Poynder, Nick --- "A (Name Deleted) v Australia: A Milestone For Asylum Seekers" [1997] AUJlHRights 21; (1997) 4(1) Australian Journal of Human Rights 155
[1] A (name deleted) v Australia, Communication No. 560/1993, Human Rights Committee, 59th session, 24 March -- 11 April 1997, UN Doc CCPR/C/59/D/560/1993 dated 30 April 1997, reported in (1997) 9(3) International Journal of Refugee Law at 506.
[2] Nick Poynder prepared the communication for A on a pro bono basis while at the Melbourne Bar in 1993. He is currently working as a lawyer in Sydney.
[3] Both the ICCPR and the First Optional Protocol were adopted and opened for signature and ratification and accession by General Assembly Resolution 2200 A (XXI) of \t16 December 1966, and both entered into force on 23 March 1976. The ICCPR was ratified by Australia on 13 August 1980 and the First Optional Protocol came into effect for Australia on 25 December 1991.
[4] See, generally, Charlesworth H "Australia's Accession to the First Optional Protocol to the International Covenant on Civil and Political Rights" [1991] MelbULawRw 25; (1991) 18 MULR 428.
[5] Toonen v Australia, Communication No. 488/1992.
[6] See Joseph S "Gay rights under the ICCPR -- commentary on Toonen v Australia" (1994) 13(2) University of Tasmania LR 392.
[7] HREOC, Report on the Detention of Asylum Seekers, 10 March 1992 at 5.
[8] Now Migration Act, Division 6.
[9] Section 54L, now Migration Act, s 178.
[10] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1993) 110 ALR 97. See also Poynder N "An opportunity for justice goes begging: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs" [1994] AUJlHRights 28; (1994) 1 AJHR 414.
[11] (1993) 110 ALR 97 at 109-110 per Brennan, Deane and Dawson JJ (with whom Gaudron J agreed); 126-127 per Toohey J; and 143 per McHugh J.
[12] Section 54RA. This was later repealed and replaced by legislation purporting to retrospectively authorise the detention of the detainees: Migration Legislation Amendment Bill (No. 3) 1994.
[13] Rules of Procedure of the Human Rights Committee, UN Doc CCPR/C/3/Rev 2.
[14] First Optional Protocol to the ICCPR, Art 5.
[16] The High Court proceedings have not yet been completed. However, when they have been completed it will be open for A to seek to reopen this aspect of the communication on the grounds that his domestic remedies have now been exhausted.
[17] 1951 Convention Relating to the Status of Refugees, done 28 July 1951, Australian Treaty Series No 5 of 1954, entered into force 21 April 1954. As amended by the 1967 Protocol Relating to the Status of Refugees, done 1 January 1967, Australian Treaty Series No. 37 of 1973, entered into force 4 October 1967.
[18] Adopted and opened for signature and ratification and accession by the General Assembly on 20 November 1989, entered into force on 2 September 1990: UN Doc A/RES/44/25.
[19] A (name deleted) v Australia, Communication No. 560/1993, Human Rights Committee, \t59th session, 24 March-11 April 1997, UN Doc CCPR/C/59/D/560/1993 dated \t30 April 1997, para 9.2.
[20] Ibid, para 9.4.
[21] Ibid.
[22] Ibid, para 9.5.
[23] Ibid.
[24] Ibid.
[25] Ibid, para 11.
[26] Ibid, para 12.
[27] See eg, Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at 487, 508, 566, 581; Waters & Ors v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; Re Ontario Human Rights Commission v Simpsons-Sears Ltd (1958) 23 DLR (4d) 321 at 329; Re Saskatchewan Human Rights Commission v Canadian Odeon Theatres Ltd (1985) 18 DLR (4d) 93.
[28] See, eg, Joint Standing Committee on Migration, Asylum, Border Control and Detention, (AGPS, Canberra, 1994) at paras 4.37-4.42; 4.146-4.156; 4.181.
[29] Length of detention, while relevant, will not be conclusive. In the leading decision on arbitrary detention under Art 9 -- Van Alphen v the Netherlands, (Communication No. 305/1988, views adopted 23 July 1990) -- the complainant had been held in detention for a period of only nine weeks.
[30] Migration Act s 72, Migration Regulations reg 2.20.
[31] "Boat people have compo case: UN" The West Australian 16 May 1997.
[32] See, eg, Minister For Immigration and Ethnic Affairs v Tang Jai Xin (1993) 118 ALR 603 (Full Federal Court; [1994] HCA 31; (1994) 125 ALR 203 (High Court), where findings were made that the applicants had been detained unlawfully under the Migration Act.
[33] See, eg, Alec Kruger & Ors v The Commonwealth of Australia [1997] HCA 27; (1997) 146 ALR 126.
[34] It is relevant in this context to note that the Human Rights Committee has recently accepted for registration a new Communication relating to the incommunicado detention of a Sino-Vietnamese asylum seeker who was refused information about his right to request a lawyer, thereby losing his opportunity to apply for refugee status. The new communication alleges that Australia acted in breach of Art 10(1) of the ICCPR, which states that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity for the human person. Australia has been requested to provide a response on both the admissibility and merits of the communication within six months: see letter dated 9 October 1997 from the Human Rights Committee (copy on file with the author).
[35] See, eg, Lombard G "We mustn't spit the dummy" Canberra Times, 26 February 1997.
[36] Amnesty International has recently launched an international campaign on refugees which has focussed upon Australia's treatment of boat people -- see, eg, Amnesty International "Australia: a champion of human rights?" January 1997 (27) Focus 3 at 6.
[37] Australia has still not responded to the finding of the Committee by the end of November 1997, and criticism was beginning to mount. On 30 October 1997 a motion proposed by Senator Brian Harradine was passed by the Senate calling on the Government to urgently respond to the ruling and to report to Parliament within 60 days on how the mandatory detention policy can be amended to meet international human rights standards, and on \t17 November 1997 Amnesty international held a national day of action in which members were called upon to flood the Minister's office with facsimiles reminding him that the Government had not responded to the Committee's findings.