Does Australia Violate Human Rights?

Yes, it does. The UN Human Rights Committee (UNHRC) has found on several occasions that Australia has breached the fundamental human rights of people living in Australia.

In 1980 the Fraser government ratified the International Covenant on Civil and Political Rights (ICCPR), one of the main international human rights treaties. In 1990 Australia acceded to the First Optional Protocol to the ICCPR, which allows individuals to take complaints about violations of their human rights to the UN Human Rights Committee.

Since 1990 the UNHRC has heard almost fifty complaints against Australia. In seventeen (17) of those cases, the UNHRC found that Australia violated ICCPR rights. While some Australians find it embarrassing or outrageous that a foreign tribunal can sit in judgment of Australia, Australia does not have a Bill of Rights so our own courts cannot hear complaints about human rights violations.

The table below summaries those violations. The table is followed by a summary of each case.

Toonen v Australia (1994)

Mr Toonen complained that Tasmanian laws criminalising consensual sex between adult males in private: were a violation of his right to privacy; distinguished between people on the basis of sexual activity, orientation and identity; and, meant that homosexual men in Tasmania did not enjoy equality before the law.

The UNHRC found that the Tasmanian laws were not reasonable in the circumstances and amounted to an arbitrary interference with Mr Toonen’s right to privacy under article 17(1) of the ICCPR. The Committee recommended that the laws be repealed.

In response to the Tasmanian Parliament’s refusal to repeal the offending laws, the Federal government passed the Human Rights (Sexual Conduct) Act, which prohibits the making of laws that arbitrarily interfere with the sexual conduct of adults in private. In 1997 in the case of Croome v Tasmania, the High Court of Australia struck down the Tasmanian laws on the grounds that they were inconsistent with the Federal Human Rights (Sexual Conduct) Act.

A v Australia (1997)

Mr A, a Cambodian asylum seeker, arrived in Australia in 1989. He was held in mandatory immigration detention for over four years and this formed the basis of his complaint.

The UNHRC concluded that Mr A’s indefinite and prolonged detention was arbitrary: a violation of article 9(1). The Committee also determined that Australia had violated Mr A’s right to have his detention reviewed by a court: a violation of article 9(4).

In coming to its conclusions the Committee noted that detention authorised by law can still be arbitrary if it is inappropriate, unjust, unnecessary or disproportionate to the end sought – even if entry into Australia was unauthorised. Significantly, the Committee observed that review of the lawfulness of detention must include consideration of the human rights listed in the ICCPR, which is something Australian courts cannot do.

In December 1997 Australia formally rejected the Committee’s findings and refused to compensate Mr A.

Winata v Australia (2002)

Mr and Mrs Winata both overstayed their visas and were unlawful residents in Australia. In 1998 they unsuccessfully applied for refugee status and the Department of Immigration ordered their deportation.

Mr and Mrs Winata complained that deporting them was arbitrary and unreasonable because it would split up their family. Their thirteen year old son Barry, an Australian citizen, had lived his whole life in Australia, only spoke English and would not fit in well in Indonesia.

Noting that the Winatas had lived in Australia for 14 years, the Committee concluded that if Mr and Mrs Winata were deported, then Australia would be arbitrarily interfering with the family, in violation of article 17(1), breaching its obligations to protect families, in violation of article 23, and to protect children, in violation of article 24(1).

As of July 2002, Mr and Mrs Winata had not been deported. Their future remains uncertain.

Note: the official government response rejected the findings of the UNHRC.

Rogerson v Australia (2002)

Mr Rogerson is a lawyer who was tried in the Northern Territory for contempt of court. He complained that it took the court almost two years to deliver its judgment.

The UNHRC found that the delay violated Mr Rogerson’s right to be tried without undue delay (article 14(3)(c)).

C v Australia (2002)

Mr C, an Iranian national, was detained as a ‘non-citizen’ in July 1992. In 1993 a psychologist recommended his release, because his mental health was deteriorating rapidly. Mr C was finally released in August 1994 with severe psychiatric problems. In 1996 he received a 3½ year prison sentence for aggravated burglary and making death threats to a relative. In 1997 the Immigration Department ordered his deportation as a criminal non-citizen.

Mr C complained that his detention by Australia had triggered the mental illness which was responsible for his criminal behaviour. He also feared persecution in Iran.

The UNHRC concluded that Mr C’s mandatory immigration detention was arbitrary because it was unnecessary, there was no individual justification and there was no chance of substantive judicial review: violating articles 9(1) and 9(4).

The Committee also found Australia in violation of article 7 (‘cruel, inhuman or degrading treatment or punishment’) because it had continued to detain Mr C even after becoming aware that his mental deterioration was the direct result of his detention. The Committee also warned Australia that, having recognised the need to protect Mr C from persecution in Iran, to deport him would be another violation of article 7.

Mr C has been released into the care of his family. A decision is expected later in 2003 on whether his refugee visa will be reinstated.

Cabal & Pasini v Australia (2003)

Mr Cabal and Mr Pasini were both arrested in Australia in 1998 at the request of Mexico. On 17 December 1999 both men were held together for an hour in a ‘cage’ described as ‘about the size of a telephone booth’ and so small that two people could not sit down at the same time.

Messrs Cabal and Pasini complained that in prison they were not segregated from, or treated differently to, the general prison population, despite the fact that they were accused of no crime in Australia. For technical reasons these complaints were dismissed.

However, the UNHRC concluded that holding two men in a small cell, even if only for an hour, violated their right to be treated with humanity and respect while incarcerated, violating article 10(1). The Committee recommended that the men be compensated for this violation.

Both men have now returned voluntarily to Mexico. Neither have been compensated.

Young v Australia (2003)

In 1999 Mr Young applied for a war veteran’s dependant pension. The Federal Department of Veteran Affairs refused to consider his application because his partner of 38 years was also male. The relevant law stated that to be a ‘member of a couple’ the persons must be ‘of the opposite sex’. Mr Young complained that he was being discriminated against on the grounds of his sexual orientation.

The Committee found that Australia had denied Mr Young his right to equality before the law and equal treatment of the law, in violation of article 26 of the ICCPR. The Committee recommended that the law be changed to allow the Department to consider Mr Young’s application on its merits.

In September 2003 the Australian Senate passed a motion calling for an end to discrimination against same-sex couples in Federal law. In August 2004, the Australian Parliament passed more discriminatory laws banning same-sex marriages.

Baban v Australia (2003)

In June 1999 Mr Baban, an Iraqi Kurd, and his infant son arrived in Australia without travel documents. Their application for refugee status was unsuccessful. In June 2001 Mr Baban and his son escaped from the Villawood Detention Centre in Sydney.

Mr Baban complained that he and his son were treated inhumanely in detention. He also complained that he feared torture and serious mistreatment if returned to Iran.

The UNHRC concluded that their detention was arbitrary and not open to judicial review: violations of articles 9(1) and 9(4).

In 2003, Mr Baban and his son were still on the run from immigration authorities.

Bakhtiyari v Australia (2003)

In October 1999, Mr Bakhtiyari arrived in Australia from Afghanistan on a boat as an asylum seeker. He was detained in an immigration detention centre. In May 2000 Mr Bakhtiyari was granted refugee status and relased into the community.

In January 2001 Mrs Bakhtiyari arrived in Australia by boat with their children. They were detained in an immigration detention centre. Mrs Bakhtayari was refused refugee status. Mr Bakhtayari only found out that his family was in Australia in July 2001.

In December 2002, Mr Bakhtiyari's refugee visa was cancelled on the grounds that he had lied in his application for refugee status. In January 2003, the family was reunited - in an immigration detention centre. The psychological health of the children deteriorated and they self-mutilated. UN requests to release the Bakhtiyari family from detention, while there were outstanding court cases, were rejected.

In June 2003 the Family Court of Australia ordered that the children be released from detention.

The UNHRC found that the detention of Mrs Bakhtayari and the children for over 2 years was a violation of articles 9(1) and 9(4). The violation, with respect to the children, came to an end when the Family Court ordered their release.

The UNHRC found that Australia, by keeping the children in detention for so long when it was well-documented that they were suffering in detention, failed to protect the rights of the Bakhtiyari children in violation of article 24(1).

In April 2004, the High Court overturned the decision of the Family Court to release the Bakhtiyari children. On 30 December 2004, Australia deported the Bakhtiyari family to Pakistan.

Madafferi v Australia (2004)

Mr Madafferi, an Italian tourist in Australia, overstayed his visa, which expired in April 1990. This made him an unlawful non-citizen. In August 1990, he met and married an Australian citizen. They lived together in Australia and by 1996 they had four children.

In 1996 Mr Madafferi applied for permanent residency as the spouse of an Australian citizen. In his application he disclosed that he had served time in prison in Italy. He also disclosed that he had recently been informed that he had, in his absence, been sentenced to more prison in Italy, but that the Italian government had extinguished his sentence and cancelled an outstanding arrest warrant. The Australian Immigration Minister rejected Mr Madafferi's residency application on the grounds that he was a person of "bad character".

Mr Madafferi was sent to an immigration detention centre in Melbourne, while he challenged this decision in the courts. Mr Madafferi's mental health declined in the detention centre. At the request of the UN, Mr Madafferi was transferred to home detention. When Mr Madafferi's court challenges had all failed, immigration officials took him back to the immigration detention centre. Three months later he was committed to a psychiatric hospital.

The UNHRC found that the decision to send Mr Madafferi to the detention centre the second time, when Australia knew that Mr Madafferi had mental health problems, was a violation of article 10(1).

The UNHRC noted that the Madafferis have four minor children, that Mr Madafferi has a mental illness (partially contributed to by Australia's treatment of him) and that the family would suffer hardship if they were forced to choose between following Mr Madafferi to Italy (neither Mrs Madafferi nor the children speak Italian, and they would have to look after their sick father in a foreign country) or splitting up the family by some members remaining in Australia. The UNHRC found that if Australia deported Mr Madafferi it would be arbitrarily interfering with the family, in violation of article 17(1), breaching its obligations to protect families, in violation of article 23, and to protect children, in violation of article 24(1).

As of June 2005, Mr Madafferi was still in Australia under immigration home detention.

Note: the official government response rejected the findings of the UNHRC.

Faure v Australia (2005)

Bernadette Faure, a 21 year old Australian citizen, had her employment benefits cancelled for two months because she breached her "Work for the Dole" agreement three times in the space of two years. This meant that she was receiving no unemployment benefits at all during that time.

Ms Faure claimed that the Work for the Dole scheme was a form of forced or compulsory labour and therefore a violation of her human rights. Ms Faure attempted to challenge the law that set up the Work for the Dole scheme, but she discovered that there was no way to do this in Australia.

The UNHRC found that, under Australia's legal system, Ms Faure was unable to challenge a law that she claimed violated her human rights. The UNHRC found that this is a violation of article 2(3), which requires that everyone has the right to challenge a violation of their human rights provided their claim is 'sufficiently well-founded to be arguable' under the ICCPR.

The UNHRC found that the Work for the Dole scheme is not a form of compulsory labour. Therefore, Australia was not in breach of article 8 of the ICCPR.

Brough v Australia (2006)

In February 1999 Corey Brough, a 17 year old Aboriginal youth, was sentenced to 8 months prison for burglary and assault. In March 1999 Mr Brough was transferred to the Parklea adult prison after he participated in a riot and held a guard hostage at the Kariong Juvenile Justice Centre in a protest against conditions. In Parklea, Mr Brough began to self-harm and was placed in a solitary confinement cell for 72 hours, where the artificial lights were on all the time and where he was stripped to his underwear and his blanket was taken away from him. Mr Brough suffers from a mild intellectual disability.

"In the circumstances, the author’s extended confinement to an isolated cell without any possibility of communication, combined with his exposure to artificial light for prolonged periods and the removal of his clothes and blanket, was not commensurate with his status as a juvenile person in a particularly vulnerable position because of his disability and his status as an Aboriginal."

The UNHRC found violations of: article 10(1), which requires that prisoners be treated humanely; article 10(3), which provides that juveniles be separated from adults in prison; and article 24(1) which requires that children be protected by society and the State without discrimination.

D & E v Australia (2006)

A family of Iranian asylum seekers arrived in Australia by boat in November 2000. 'D' (mother) feared returning to Iran because she had worked in the illegal adult pornographic video industry in Iran (a strict Muslim country). 'D' and 'E' (father) and their two children were kept in mandatory immigration detention until 22 January 2004.

The UNHRC confirmed that Australia's mandatory immigration detention regime is a violation of article 9(1), which guarantees the fundamental human right of liberty. Australia detained the family beyond a period that can be justified for making the necessary checks (ascertaining identity etc). The UNHRC concluded that:

"[Australia] has not demonstrated that other, less intrusive, measures could not have achieved the same end of compliance with [Australia's] immigration policies by resorting to, for example, the imposition of reporting obligations, sureties or other conditions which would take into account the family’s particular circumstances. As a result, the continuation of immigration detention for the authors, including two children, for [three years and two months], without any appropriate justification, was arbitrary and contrary to [article 9(1)] of the Covenant."

Coleman v Australia (2006)

On 20 December 1998, Mr Coleman stood in the Townsville (Queensland) shopping mall and delivered a speech on various topics, including bills of rights, freedom of speech and land rights. He was charged, convicted and fined for 'taking part in a public address in a pedestrian mall' without a council permit. Mr Coleman refused to pay the fine.

On 29 August 1999, Mr Coleman again stood in the Townsville shopping mall (without a council permit) and delivered a speech. When police tried to remove him he sat down and refused to move. He was charged with failing to pay a fine and for obstructing police. He was arrested and held by police for five days.

The UNHRC noted that there are legitimate ground to restrict freedom of speech. The grounds are found in article 19(3) of the ICCPR. They include protecting the rights and reputations of others, and maintaining public order. The Committee noted that Mr Coleman's speech was not violent or threatening and did not pose a danger to public order. The Committee concluded that the council laws and the actions of police were disproportionate and therefore violated Mr Coleman's freedom of speech, which is a violation of article 19(2).

Note: the official government response rejected the findings of the UNHRC.

Postscriptum: Mr Coleman was again arrested in March 2000 in the Townsville Mall for distributing a pamphlet that described a particular police officer as 'corrupt'. The UNHRC was not asked to consider this incident. But in 2004, the High Court of Australia upheld Mr Coleman's constitutional right to freedom of political expression: see Coleman v Power [2004] HCA 39.

For more information about free speech and local councils and in shopping malls, read: Katharine Gelber, 'Political speech practice in Australia: a study in local government powers' [2005] Australian Journal of Human Rights 7.

Shafiq v Australia (2006)

In September 1999, Mr Shafiq arrived in Australia by boat as an asylum seeker. He fled political persecution in Bangladesh. He is stateless because Bangladesh says he is not from Bangladesh.

Mr Shafiq was refused a visa because he cannot prove who he is. Because he is stateless there is nowhere to deport him to. So he is being detained indefinitley in immigration detention. Australia will not release him into the community because it believes he will abscond.

In July 2005, as a direct result of his lengthy detention, Mr Shafiq was committed to a mental institution. The hospital in which he is receiving treatment does not have a fence and Mr Shafiq, if he desired, could escape at anytime. He has not done so.

The UNHRC confirmed that Australia's mandatory immigration detention regime is arbitrary and a violation of article 9(1), which guarantees the fundamental human right of liberty. This is the sixth time the UNHRC has made this determination. Australia continues to ignore the Committee and to violate the rights of people detained in immigration detention for lengthy periods.

The UNHRC noted that Australian courts can only decide whether a person is being lawfully detained in accordance with the Migration Act, without reference to fundamental human rights standards. The Committee reiterated its view that:

...the notion of “arbitrariness” must not be equated with “against the law” but be interpreted more broadly to include such elements as inappropriateness and injustice.

The Committee found a violation of article 9(4) because Australian courts cannot review Mr Shafiq's case in light of fundamental human rights.

Shams et al v Australia (2007)

Mr Shams was one of eight Iranian nationals who brought this complaint to the UN Human Rights Committee. Mr Shams and the other seven complainants all arrived in Australia by boat seeking asylum.

All of the complainants were detained in mandatory immigration detention. Some of the men were detained for three years, others for four years.

The UNHRC confirmed that Australia's mandatory immigration detention regime is arbitrary and a violation of article 9(1), which guarantees the fundamental human right of liberty. This is the seventh time the UNHRC has made this determination. Australia continues to ignore the Committee and to violate the rights of people detained in immigration detention for lengthy periods.

The Committee found a violation of article 9(4) because Australian courts cannot review an asylum seeker's detention in light of fundamental human rights.

The Committee found a violation of article 2(3) because Australia refuses to compensate people who have been held for prolonged periods in mandatory immigration detention.

Dudko v Australia (2007)

Miss Dudko was convicted of several charges relating to the theft of a helicopter that was then used to break an inmate out of prison in NSW in 1999.

Miss Dudko appealed her conviction to various courts. When Miss Dudko's matter came before the highest court in the land, the High Court of Australia, Miss Dudko was unrepresented. NSW prison officials refused to bring her to the court. Miss Dudko was also prohibited from representing herself by audiovisual link from prison.

The NSW Director of Public Prosecutions was represented by a lawyer in the High Court.

The UNHRC found that Miss Dudko's right to equal treatment before the law was violated: a violation of article 14(1) of the ICCPR. Essentially, the Committee found that it was unfair to allow the prosecution to attend the oral hearing but, at the same time, deny the appellant the right to be heard.

Links

• Bayefsky Human Rights Website
• http://documents.un.org/ (use 'Advanced Search' and type in the UN Doc number)
• Universal Human Rights Index (use 'Search' and select 'Australia')

The federal Attorney-General's Department also maintains a webpage giving the offical government line on these human rights violations. The webpage is called: Human Rights Communications.

This page is based on an article that first appeared in the Human Rights Defender as: Michael Walton, "Are we listening to the United Nations? Australia and the UN Human Rights Committee" (2003) 12(3) Human Rights Defender 20.