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Human Rights Explained: Case Studies: Complaints about Australia to the Human Rights Committee

Friday 14 December, 2012

Human Rights Explained

Case Studies: Complaints about Australia to
the Human Rights Committee

Sexuality under the ICCPR

Human Rights Committee
Communication No. 488/1992 (Toonen v Australia)

In 1991, Nicholas Toonen, a homosexual man from
Tasmania, sent a communication to the Human Rights Committee. At that time
homosexual sex was criminalized in Tasmania. Toonen argued that this violated
his right to privacy under Article 17 of the International Covenant on Civil and
Political Rights (ICCPR). He also argued that because the law discriminated
against homosexuals on the basis of their sexuality, it violated Article 26. As
a result of his complaint to the Human Rights Committee, Toonen lost his job as
General Manager of the Tasmanian AIDS Council (Inc), because the Tasmanian
Government threatened to withdraw the Council’s funding unless Toonen was
fired. The Human Rights Committee did not consider Toonen’s communication
until 1994, but it ultimately agreed that because of Tasmania’s law,
Australia was in breach of the obligations under the treaty. In response to the
Commission’s view, the Commonwealth Government passed a law overriding
Tasmania’s criminalization of homosexual sex.

Human Rights Committee Communication No.
941/2000 (Young v Australia)

In 1999, Mr Edward Young took a complaint against
Australia to the Human Rights Committee. Under the current Australian
veterans’ entitlements laws, same-sex couples are not entitled to the same
veterans pensions as opposite-sex couples. The Committee found that Mr Young had
been discriminated against under Article 26 of the ICCPR and was entitled to an
effective remedy, including the reconsideration of his pension application. The
Committee noted that the State party [Australia] is obliged to ensure that
similar violations of the Covenant do not occur in the future.

    Immigration under the ICCPR

Human Rights Committee
Communication No. 560/1993 (A v Australia)

In 1993 a Cambodian asylum seeker, identified only
as A, complained to the Human Rights Committee that Australia had violated his
rights under the ICCPR by detaining him in immigration detention for more than
four years. The Human Rights Committee agreed that Australia had violated
Article 9 of the Convention because A had been subject to arbitrary detention
and denied an effective opportunity to have the lawfulness of his detention
reviewed by a court. The Committee stated that Australia should pay compensation
to A, but unlike in the Toonen case, the Australian Government rejected the
Human Rights Committee’s
view and refused to pay
compensation to A. In most subsequent cases where the Human Rights Committee has
found that Australia has violated the ICCPR, the Australian Government has
rejected those views.[1]

Human Rights
Communication No.
1050/2002 (D & E v Australia)

In 2002 an Iranian family, including two young
children, made a complaint to the Human Rights Committee that Australia had
violated their right to be protected from arbitrary detention under the ICCPR by
detaining them for three years and two months in Curtin Detention Centre. Their
application for asylum had been refused twice and the Minister had declined to
exercise his discretion to grant a favourable outcome under s 417 of the
Migration Act 1958 (Cth).

In its submissions to the Committee; Australia
argued that the complaint was inadmissible because, inter alia, the
family had not exhausted all possible domestic avenues, in particular those
available to it in the form of judicial review to the Federal Court or the High
Court of Australia. The Committee did not accept this submission, noting that
because Australia's High Court has held the policy of mandatory detention
constitutional, this remedy would not have been effective. As a result it was
not necessary for the family to have pursued a judicial review claim in the
Courts before the Committee could hear the family’s claim.

The Committee agreed that the family's detention
was in breach of Article 9(1) of the ICCPR, reaffirming its previous
jurisprudence that detention will become arbitrary if it continues beyond the
period for which a state party can provide appropriate justification. The
Committee observed that in this particular case 'whatever justification there
may have been for an initial detention' Australia had failed to demonstrate that
the detention was justified for such an extended period or that compliance with
Australia's immigration policies could not have been achieved by less intrusive

The Committee further found that the allegation
that the prolonged detention of children breached Article 24(1) of the ICCPR was
insufficiently substantiated in light of Australia's efforts to provide
educational and recreational programs for children in immigration detention.

The Rights of the Child under the

Human Rights Committee
Communication No: 1069/2002 (Bakhtiyari v Australia)

In 2003 the Bakhtiyari family lodged a complaint
with the Committee on the basis inter alia that the Australian Government
had violated the rights of the child as enunciated in Article 24(1) of the ICCPR
as a result of the Bakhtiyari children being kept in immigration detention for
two years and eight months.

The Committee agreed with the applicant. It held
that that the principle - that in all decisions affecting a child his/her best
interests shall be a primary consideration - forms an integral part of every
child's right to such measures of protection as required by his or her status as
a minor, on the part of his or her family, society and the State - as required
by Article 24(1) of the ICCPR.

The Committee observed that in this case the
children had suffered demonstrable, documented and on-going adverse effects of
detention up until the point of release on 25 August 2003. It also noted that
detention was arbitrary and thus violated Article 9, paragraph 1, of the ICCPR.

As a result, the Committee considered that the
measures taken by the State Party had not been guided by the best interests of
the children, and thus revealed a violation of Article 24(1) of the Covenant,
namely the children's right to such measures of protection as required by their
status as minors up that point in time.

Case Studies: Complaints about Australia to the
CAT Committee



Committee against Torture
Communication No: 120/1998
(Elmi v Australia)

In 1998 Mr Sadiq Shek Elmi, a failed asylum seeker,
lodged a complaint with the Committee against Torture. He claimed that his
deportation to Somalia would constitute a violation of Article 3 of the
Convention against Torture, because he was a member of a member of a minority
clan which had a well-documented history of persecution in Mogadishu. There was
evidence that other members of his family had been targeted by that clan.

The Committee determined that Australia had an
obligation to refrain from forcibly returning Mr Elmi to Somalia or to any other
country where he runs a risk of being expelled or returned to Somalia because of
the danger of him being subjected to torture in Somalia. The Committee noted
that the majority clan in Mogadishu could be regarded as exercising de facto
control, and was therefore responsible for any acts of torture for the purposes
of the Convention. Mr Elmi was subsequently permitted to stay in Australia.

[1] See Hillary Charlesworth,
‘Human Rights: Australia versus the UN’ Democratic Audit of
Australia Discussion Paper 22/06
(August 2006), (last accessed November 19 2007).



September 16, 2010