Note that committees can record actual or potential violations.
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.ICCPR art 9(1)
A Cambodian man known as ‘A’ arrived in Australia by boat in 1989 with his wife and children. The family was detained for more than four years until the success of Mrs A’s refugee claim. The HRC found that Australia’s system of ‘indefinite and prolonged’ mandatory detention constitutes arbitrary detention. The family’s right to have their detention reviewed by a court, and their right to an effective remedy, were also violated. Australia rejected the Committee’s interpretation of the ICCPR and refused to compensate the A family.
Read more on A v Australia.
An Iraqi-Kurd asylum seeker and his infant son were detained and his refugee claim was rejected. The HRC requested a stay of deportation; Australia complied. The HRC found the Babans’ detention was arbitrary and not subject to judicial review, and recommended compensation. They have not been compensated.
Read more on Baban v Australia.
A family of Hazara asylum seekers claiming to be from Afghanistan was detained on arrival in Australia. Australia determined that the Bakhtiyaris’ claim to be from Afghanistan was not credible; doubt about their origins undermined their refugee claim. The HRC requested a stay of deportation. In its Final Views, the HRC decided that the long-term detention of the family was arbitrary, beyond judicial review, and had not been ‘guided by the best interests of the children’. Further potential violations were found. It proposed that Australia should pay appropriate compensation for these violations. Australia deported the family to Pakistan in 2004, without compensation.
Read more on Bakhtiyari & Bakhtiyari v Australia.
‘C’ was detained on arrival in Australia in 1992 and accepted as a refugee in 1995. He acquired serious mental illness in detention, and his threatening behaviour while in a delusional state led to his being sentenced to 3½ years’ gaol. With psychiatric care, he made ‘dramatic’ improvement and was deemed no longer dangerous. However, as a non-citizen with a custodial sentence exceeding 12 months, he was slated for deportation. The HRC accepted that detention had been the cause of mental illness in this man with no psychiatric history, that his mental illness was the ‘direct cause’ of his offending and that, with appropriate medical care, he was unlikely to re-offend. As well as being arbitrary and lacking judicial review, his detention became ‘cruel, inhuman or degrading treatment’ once it was evident that it was causing his deteriorating mental health. To deport Mr C would also breach article 7. The Committee recommended compensation. Mr C ultimately obtained a visa to remain in Australia, in accord with Committee Views, but he has not been compensated.
Read more on C v Australia.
A make-up artist known as D, having participated in the production of pornography in Iran, suffered a beating and short imprisonment. Her husband, E, was also ‘repeatedly arrested and questioned regarding his wife’. They fled Iran with their children, and were detained on arrival in Australia. While Australia accepted that D faced the death penalty in Iran because of her activities, it did not accept that her claim fell under the Refugee Convention. The HRC requested a halt to the family’s deportation; Australia complied. The Committee found the family’s detention of more than 3 years was arbitrary and that Australia should provide an effective remedy, including compensation. The family was eventually granted humanitarian visas to remain in Australia, but has not been paid compensation.
Read more on D & E and their two children v Australia.
Five authors, refugees from Iran, Sri Lanka and Afghanistan, were detained on arrival by boat in Australian territorial waters. They were assessed by Australian authorities as refugees, but also deemed a security threat. The basis of their security assessment was kept secret, meaning the authors were unable to challenge the merits of the assessment nor the justification of their detention.
The Committee accepted that their detention was arbitrary (art 9(1)), lacking periodic re-evaluation and judicial review (art 9(4)) and that the arbitrary and indefinite nature of their detention, as well as the conditions of their detention, inflicted “serious, irreversible psychological harm” (art 7). It recommended rehabilitation and compensation for the authors and non-repetition measures.
Read more on FJ et al v Australia.
Thirty-six Tamils, including 3 children, plus a Rohingya man from Burma, applied for asylum in Australia and were detained. They were later accepted by Australia as refugees, but were not released from detention because ASIO determined that they represented an undisclosed security risk. The HRC issued repeated requests concerning the authors’ mental health, which led to no discernible improvement in their conditions. The HRC found the authors had suffered inhuman and degrading treatment, arbitrary detention, denial of habeas corpus and, for 5 of the authors, a denial of the right to be informed of the reasons for one’s arrest. It recommended the authors be released, given rehabilitation and compensation. Further, Australia ‘should review its migration legislation’ to respect the prohibitions on inhuman and degrading treatment and arbitrary detention. As at May 2017, two of the 37 authors remained in immigration detention. (The children and their parents were released in 2013).
Read more on FKAG et al v Australia.
Robert Fardon was held in ‘preventive detention’ beyond the completion of a 14-year prison term for sexual offences. Queensland’s Dangerous Prisoners (Sexual Offenders) Act 2003 allows prisoners deemed a threat to the community to be gaoled indefinitely. The HRC found Mr Fardon’s continued imprisonment without a new conviction to be arbitrary, retroactive and a violation of his fair-trial rights. It constituted a breach of the prohibition on imposing ‘a heavier penalty … than the one that was applicable at the time when the criminal offence was committed’. Further, the civil proceedings by which Mr Fardon’s continuing imprisonment was reviewed did not meet due process guarantees. An appropriate remedy would include ending his preventive detention, which occurred in 2013.
Read more on Fardon v Australia.
Hew Griffiths, an Australian permanent resident, was indicted in the US for breach of copyright for making proprietary software and computer games freely available online, without financial gain.
Mr Griffiths was arrested and held on remand for periods totalling more than 3 years before he was extradited to face the charge of conspiracy to commit copyright infringement. He pleaded guilty and was sentenced to 51 months in prison, taking account of the time already served.
The Human Rights Committee found that Mr Griffiths’ disproportionately long and unjustified detention constituted arbitrary detention, and that he was denied the opportunity to challenge his detention.
Mr Griffiths is entitled to compensation, including his legal costs. Australia ought to review its Extradition Act to prevent future violations of articles 2 and 9.
Read more on Griffiths v Australia.
Australian man David Hicks was captured in Afghanistan in 2001 and detained by the US at Guantánamo Bay. In 2007, he was tried by Military Commission and sentenced to 7 years’ jail. Under a prisoner transfer agreement, Hicks was moved to Australia, where he served 7 months of his sentence, the remainder being suspended. Hicks claims his military trial was unfair, his conviction unlawfully retrospective and his detention arbitrary.
The UN Human Rights Committee found that Australia imprisoning Mr Hicks for 7 months following his return to Australia amounted to arbitrary detention, but that no individual remedy was owed to Mr Hicks because Australia’s “actions were intended to benefit” him. Australia is nonetheless obliged to “prevent similar violations in the future.”
Read more on Hicks v Australia.
Ms Kwok fled China when her husband was arrested for corruption offences. He was later sentenced to death. She was wanted for alleged involvement in the ‘same set of circumstances’. China sought her forced repatriation without launching formal extradition proceedings, and Australia was willing to comply. Ms Kwok claimed she would not receive a fair trial in China and could also be sentenced to death. The HRC requested a stay of deportation; Australia complied. The HRC found that Australia should not deport Ms Kwok, as the risk to her life ‘would only be definitively established when it is too late’. It found potential violations of the right to life and the prohibition on torture. It also found that Ms Kwok’s 6½ years in immigration detention was arbitrary detention. Australia should not send Ms Kwok to China ‘without adequate assurances’ from the People’s Republic, and should compensate her for ‘the length of detention to which [she] was subjected’. Ms Kwok was not refouled, but neither has she been compensated.
Read more on Kwok v Australia.
MGC is a US national who lived in Australia as an adult for 15 years. He committed a series of offences involving fraud, pleaded guilty and was convicted. Because his prison sentence exceeded 12 months, his visa was cancelled and he was detained for 3.5 years prior to deportation. MGC, having an Australian son, alleged his prolonged detention and permanent deportation interfered with his family. He also alleged his detention was arbitrary. The HRC agreed his detention was arbitrary, but not that the interference with his family was arbitrary.
Read more on MGC v Australia.
The 9 authors of this communication – 6 Tamils, including one child, who fled the conflict in Sri Lanka in 2009 or shortly thereafter, plus 2 Burmese and a Kuwaiti man – arrived in Australia and were detained. All were accepted by Australia as refugees. However, they were not released from detention because ASIO determined they were an undisclosed security risk. The HRC found the authors suffered inhuman and degrading treatment, arbitrary detention and denial of habeas corpus, recommending they all be released, rehabilitated and compensated. Further, Australia ‘should review its migration legislation to ensure its conformity with the requirements of articles 7 and 9 of the Covenant’. All 9 authors have reportedly been released; none is known to have been compensated nor provided with rehabilitation services.
Read more on MMM et al v Australia.
A poor Indonesian fisherman was recruited to work as a cook on a boatload of people seeking asylum in Australia. Intercepted at sea, the author was detained by Australia for almost 5 months before being charged with people smuggling. He spent a further 16 months on remand before being sentenced to 5 years’ gaol with a 3-year non-parole period, a mandatory sentence required by Australian law.
The UN Human Rights Committee found that his first 5 months of detention without charge or trial was unjustified and arbitrary, in violation of ICCPR article 9(1). His right to be brought promptly before a judge (art. 9(3)) and his right to challenge without delay the lawfulness of his detention in court (art. 9(4)) were also violated.
Read more on Nasir v Australia.
A young Bangladeshi man fled his homeland fearing reprisals from a banned political party. Having been left at an orphanage as a child, Mr Shafiq has no identity papers; Bangladesh has no record of him and denies he is a citizen, rendering him stateless. Australia detained him on his arrival in 1999 and, disbelieving his refugee claim, tried unsuccessfully to deport him. Mr Shafiq, possibly Australia’s longest-serving detainee, became mentally ill in detention and acquired diabetes from a psychiatric medication he was given, rendering him insulin-dependent. The HRC found his detention was arbitrary and that he had been denied habeas corpus. It recommended he be released and compensated. After 7½ years in detention, Mr Shafiq was released, but he remains on a temporary visa under threat of deportation and has not been compensated.
Read more on Shafiq v Australia.
Eight unrelated young men from Iran, fearing persecution for a range of reasons, arrived in Australia and were detained. Each submitted a communication to the HRC, containing similar allegations concerning their treatment in detention and their fear of refoulement. Australia responded to all 8 cases together, and the HRC did the same, hence 8 independent communications became Shams et al. The Committee found that all had suffered arbitrary detention in excess of four years, had been denied habeas corpus and the right to remedy and that each should be compensated. Seven were ultimately found by Australia to be refugees, while the 8th was given a humanitarian visa. They have not been compensated.
Read more on Shams et al v Australia.
At the conclusion of Mr Tillman’s 10-year sentence for sex offences, the NSW Attorney-General used new legislative powers to keep him, presumed a continuing threat to the community, in ‘preventive detention’ a further year under conditions identical to his imprisonment. The HRC found Mr Tillman had suffered arbitrary detention, penal in character, yet ordered by civil proceedings lacking due process, under legislation retroactively applied, without a fresh trial. It suggested he should be released from prison, which had already occurred.
Read more on Tillman v Australia.