Does Australia violate human rights?

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

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.

Why can the UN hear complaints?

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 many complaints against Australia.

The table below summaries the 35 cases in which the UNHRC found that Australia violated ICCPR rights between 1990 and 2019.

(Note 13 June 2023: we are working on further updates and will add them here shortly).

Year	Case	Violations	Description of violation	Government response
2019	Billy et al.	2, 6, 24	Failing to take adequate action to reduce emissions or pursue proper climate change adaptation measures on the Torres Strait Islands.	Unremedied: Ongoing
2017	C.	2(1), 26	Refusing divorce on the basis of sexual orientation is discriminatory and constitutes violation of equality before the law.	Partially remedied: Refugee visa reinstated. Not compensated
2017	G.	17, 26	Refusing to change sex on a birth certificate consistent with gender reassignment unless divorced is arbitrary interference with privacy and family.	Law repealed. No information provided regarding provision of birth certificate.
2016	Nasir	9(1), 9(3), 9(4)	Mandatory indefinite immigration detention is arbitrary detention.	Unremedied: Ignored.
2016	F.J. et al.	7, 9(1), 9(4)	Mandatory indefinite immigration detention is arbitrary detention.	Unremedied: Released.
2015	Hicks	9	Enforcing an arbitrary sentence of a transfer agreement is arbitrary detention and a violation of the right to liberty.	Unremedied: Rejected.
2015	Zoltowski	14(1), 17, 23, 24	Failure to allow regular contact and maintain relations between father and son constitutes arbitrary interference with the family when it is not in the best interests of the child, and undue delays with family law matters is a violation of the right to fair hearings.	Unremedied: Ignored and ongoing.
2015	Leghaei et al.	17, 23(1)	Deporting a father without reasonable justification is an arbitrary interference with the family and violation of due process.	Unremedied: Ignored.
2015	M.G.C.	9	Mandatory indefinite immigration detention is arbitrary detention.	Unremedied: Ignored.
2014	Horvath	2(3)	State obligations to provide effective remedies was violated by a failure to enforce reparation ensure compensation owed, and show disciplinary action.	Partially remedied: Author received compensation.
2014	Blessington & Elliot	7, 10(3), 24(1)	Juveniles who are sentenced to life imprisonment without a real possibility of release on parole or review of their rehabilitation is cruel, inhuman and degrading punishment and violates the essential aims of the penal system to reform and rehabilitate.	Unremedied: Remain incarcerated – Ignored.
2014	Griffiths	9(1), 9(4)	Three years of detention pending extradition without review was disproportionately long and unjustified, constituting arbitrary detention.	Unremedied: Ignored.
2013	F.K.A.G. et al.	7, 9(1), 9(2), 9(4), 10(1), 17(1), 23(1), 24(1)	Mandatory indefinite immigration detention and adverse security assessments without adequate reason or individualised consideration is arbitrary detention, and refusing to provide information or procedural rights amounts to cruel, inhuman and degrading treatment.	Partially remedied: 49 of the 51 authors released from detention. Remaining two individuals issued with qualified security assessments, placement into the community pending.
2013	M.M.M. et al.	7, 9(1), 9(4)	Mandatory indefinite immigration detention is arbitrary detention, and refusing to provide information or procedural rights amounts to cruel, inhuman and degrading treatment.	Partially remedied: Have not been deported. No compensation or rehabilitation received.
2011	Nystrom	12(4), 17, 23(1)	Deporting an individual who was born overseas but arrived and remained in Australia since 27 days old constitutes arbitrary expulsion and arbitrary interference with family.	Partially remedied: Deported and refused re-entry. Policy reforms made
2010	Tillman	9(1), 14, 15(1)	Continued indefinite preventative detention is arbitrary detention if it is applied without a new conviction, without due process, and imposed under legislation retroactively applied. It is also arbitrary detention if it increases the sentence with a heavier penalty than was available when the criminal offence was committed.	Remedied: Released under supervision order.
2010	Fardon	9(1), 10(3), 14, 15(1)	Continued indefinite preventative detention is arbitrary detention if it is applied without a new conviction, without due process, and imposed under legislation retroactively applied. It is also arbitrary detention if it increases the sentence with a heavier penalty than was available when the criminal offence was committed.	Remedied: Released under supervision order.
2009	Kwok	9(1) Potential: 6,7.	Mandatory indefinite immigration detention is arbitrary detention.	Partially remedied: Granted permanent residence.
2007	Dudko	14(1)	Refusing an unrepresented prisoner the right to appear in court violates the fundamental principle of equality before the law.	Pending...
2007	Shams et al.	2(3), 9(1) & 9(4)	Mandatory indefinite immigration detention is arbitrary detention.	Pending...
2006	Shafiq	9(1) & 9(4)	Mandatory indefinite immigration detention is arbitrary detention.	Partially remedied: Remains on a temporary visa.
2006	Coleman	19(2)	Queensland laws restricting people from delivering non-violent speeches in public malls are a violation of freedom of speech.	Unremedied: Ignored.
2006	D & E	9(1)	Mandatory immigration detention is arbitrary detention.	Unremedied: Granted temporary humanitarian visas in March 2006.
2005	Brough	10(1), 10(3), 24(1)	Holding a disabled juvenile Aboriginal man in solitary confinement, exposed to artificial light for extended periods and deprived of his blanket and clothes in a NSW adult prison violates his right to humane treatment and was inappropriate for his age.	Unremedied: Ignored.
2005	Faure	2(3)	Australia does not provide a general mechanism to challenge laws that violate human rights.	Unremedied: Ignored.
2004	Madafferi	10(1), 17(1), 23 & 24(1)	Returning a mentally-ill man to immigration detention violates his right to be treated with dignity in detention, deportation of father is arbitrary interference with family, and fails to protect the family unit and the rights of children.	Partially remedied: Not deported.
2003	Bakhtiyari	9(1), 9(4) & 24(1)	Mandatory immigration detention is arbitrary detention and keeping children in detention for two years violates duty to protect children's rights.	Unremedied: Deported.
2003	Baban	9(1) & 9(4)	Mandatory immigration detention is arbitrary detention	Unremedied: Deported.
2003	Young	26	Federal law that discriminates against gays violates the right to equal treatment by the law	Unremedied: Ignored.
2003	Cabal & Pasini	10(1)	Holding two men together in a very small prison cell violated their right to be treated with dignity in prison	Partially remedied: Men left Australia voluntarily.
2002	C	7, 9(1) & 9(4)	Returning a mentally-ill man to immigration detention is cruel, inhuman and degrading treatment, and mandatory immigration detention is arbitrary detention	Partially remedied: Not deported.
2002	Rogerson	14(3)(c)	Two years for a court to deliver judgment violates right to a speedy trial	Remedied: No response required.
2002	Winata	17(1), 23 & 24(1)	Deportation of parents of Australian child is arbitrary interference with family, and fails to protect the family unit and the rights of children	Partially remedied: Have not been deported.
1997	A	9(1) & 9(4)	Mandatory immigration detention is arbitrary detention	Unremedied: Ignored.
1994	Toonen	17(1)	Tasmanian anti-gay laws violate right to privacy	Remedied: Legislation repealed

Horvath v Australia (2014)

Note: Legislative Reform

a. Government Response:
- S 72-81 Victoria Police Act 2013 (Vic) – amended state liability for police conduct (State must pay compensation for tortious police misconduct if the victim cannot recover it from the police officer responsible s 79)
- S 74(2) – State of Victoria is not liable for the tortious conduct of its police officers when the conduct giving rise to the tort amounts to ‘serious and wilful misconduct’

b. Non-repetition Obligations:
- Recommendation for police perpetrators to be disciplined through an ‘impartial and independent body’ –remains inadequately addressed or entirely unaddressed.
- Current complaints system – complaint investigations are conducted internally, neither independent nor transparent body implemented.

M.M.M. et. al. v Australia (2013)

Facts

Between October 2009 and December 2010, nine asylum seekers arrived in Australian waters by boat without visas.
Domestic migration law (section 189(3) of the Migration Act 1958 (Cth)) stipulates strict guidelines for Australian authorities to enforce for those deemed ‘unlawful non-citizens’. This immigration policy was applied as the authors arrived without the relevant documentation and via illegitimate channels. Subsequently, they were placed in immigration detention facilities upon arrival where they remained for periods ranging from 13 and 24 months.
Though the authors were officially recognised as refugees by the Department of Immigration and Citizenship (DIAC), they were denied visas to remain in Australia due to adverse security assessments made by the Australian Security Intelligence Organisation (ASIO).
However, neither ASIO nor DIAC provided the authors with a statement of reasons or presented them with any evidence substantiating their adverse claims. There are very limited domestic avenues to appeal such decisions, and they become exhausted particularly when the fundamental supporting information is not disclosed and errors of law cannot be identified.

Nystrom v Australia (2011)

Facts

Mr Nystrom was born in Sweden and travelled to Australia at 25 days old. Mr Nystrom held a Transitional (Permanent) Visa and remained here since he was 27 days old with his sister (who had been born in Australia) and his mother (a permanent resident).
Mr Nystrom believed he was an Australian citizen, held a Medicare card and Australian driver’s license. He had no close cultural or familial ties to Sweden and had not returned.
Since 10 years old, Mr Nystrom has garnered a substantial criminal record and has been prosecuted and convicted under the Australian criminal justice system for several serious criminal offences, including aggravated rape when he was 16-years old.
In August 2004 – 7 years after his last offence, during which time he had been a productive member of society – the Immigration Minister cancelled Mr Nystrom’s Transitional (Permanent) Visa on the basis of his criminal record and subsequent failure to meet the character test specified in S 501(6) of the Migration Act 1958 (Cth).
The decision oscillated between the appeals process, and ultimately resulted in favour of the Minister’s appeal to the High Court which ruled Mr Nystrom should be deported and his visa cancelled.

Human Rights Committee final views

The case set a precedent interpretation of article 12(4) (the right to enter one’s own country).
The HRC considered the threshold of what constitutes a person’s connection to their ‘own country’ and upheld that, although Mr Nystrom was not Australian, ‘there are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality.’*
The Committee found Mr Nystrom’s deportation to be arbitrary as its effects exceeded the objective of his removal. This was made on balance as the HRC considered broader community expectations and safety with Mr Nystrom – who was in a process of rehabilitation – coupled with the substantial time that had lapsed since he had been release from prison or committed any offence.
The outcome of deportation was substantially disproportionate to any legitimate claim of preventative community protection and has had ‘irreparable consequences’ on Mr Nystrom and his mother and sister by proxy. The disruption caused was in contravention to the right to protection of family life, and constituted an arbitrary interference with family and thus a violation of article 17 and 23(1).

* Nystrom v Australia at [7.4].

Tillman v Australia (2009)

Facts

In 1998, Mr Tillman was convicted of serious sexual offences and sentenced to 10 years gaol.
In 2007, one week prior to his scheduled release, the Attorney-General of NSW sought to extend Mr Tillman’s supervision order for a further 5 years on the basis of ‘preventative detention.’
This was enforced by the Supreme Court of NSW who granted an interim order under a new legislative provision, section 17(1b) of the Crimes (Serious Sex Offenders) Act 2006 (NSW), which had not existed when the criminal offence was committed.

Human Rights Committee final views

The application of legislation retrospectively applied constitutes arbitrary detention as it imposes double punishment without further determination of criminal guilt.
The HRC held that ‘imprisonment is penal in character’. Mr Tillman had served the sentence initially imposed at the time of offending, and further imprisonment in the absence of any further conviction would ‘subject him to a heavier penalty than was applicable at the time when the criminal offence was committed.’*
Article 15(1) prohibits the Court to impose a new sentence without new proceedings, and thus, the HRC held that Australia had breached Mr Tillman’s right to due process, and the guarantees required under the right to fair trial per article 14 of the Covenant.

* Tillman v Australia at [7.4(2)].

Fardon v Australia (2009)

Facts

In 1989, Mr Fardon was convicted of serious sexual offences and sentenced to 14 years gaol. His sentence expired on June 20 2003.
The Queensland Dangerous Prisoners (Sexual Offenders) Act 2003 came into force on 6 June 2003. Section 13 of this legislation permits that a prisoner who is proven to be a serious danger to the community be detained in custody for an indefinite term for control, care or treatment. Under this provision, on the 17th of June 2003, the Attorney-General of QLD applied for Mr Fardon to be in indefinite preventative detention.
Mr Fardon was placed on a continuing detention order for nearly 10 years after the conclusion of his initial sentence. During that time, he was placed on conditional release twice – both for a period of less than 12 months.

Human Rights Committee final views

The HRC determined that the post-sentence continued imprisonment of Mr Fardon was arbitrary – a violation of article 9(1). This was found on the basis of several reasons, including that imprisonment is penal in character. Retroactive punishment imposed upon a criminal offence with terms that had not been available when the crime was committed amounts to arbitrary detention.
The HRC found Australia to be in violation of article 14(7) – the prohibition against double punishment.

Kwok v Australia (2009)

Facts

Ms Kwok arrived in Australia in 2000. She had fled China after her husband had been arrested, and later sentenced to death, for corruption offences.
The Chinese authorities sought her forced repatriation for her alleged involvement in ‘the same set of circumstances’.
China did not pursue formal extradition procedures with the Australian Government as Australia was willing to comply with the request.
If sent to China, Ms Kwok argued that she would not receive a fair trial and may also be sentenced to death.
Though Australia complied with the HRC issued Interim Views requesting a stay of deportation, Ms Kwok spent 6½ years in Villawood Detention Centre awaiting response.

Human Rights Committee final views

Regarding the potential death penalty, the HRC found potential violations of the right to life and the prohibition on torture.
The HRC asserted that Australia should not send Ms Kwok to China ‘without adequate assurances’ from the Chinese government, and should compensate her for ‘the length of detention to which [she] was subjected’.*
In its follow-up report, the HRC determined Australia’s response as satisfactory as Ms Kwok remained in Australia, however, she did not receive any compensation for arbitrary detention.

* Kwok v Australia at [11].

Dudko v Australia (2007)

CCPR/C/90/D/1347/2005 (29 August 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.

Note: Government response not published on AG site.
- HRC determined Australia should provide Ms Dudko with an unspecified remedy, no remedy has been forthcoming.

Shams et al v Australia (2007)

CCPR/C/90/D/1255 (11 September 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.

Note: Government response not published on AG site.
- Seven of the eight authors found by Australia to be refugees
- Eighth, Amin Houvedar Sefed, obtained permanent humanitarian visa in 2005.
- Mr Sefed is the only Shams et al author who cannot be located. Reports suggest Mr Sefed has since left Australia.

Shafiq v Australia (2006)

CCPR/C/88/D/1324/2004 (13 November 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.

Coleman v Australia (2006)

CCPR/C/87/D/1157/2003 (17 July 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: seeColeman 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.

D & E v Australia (2006)

UN Doc CCPR/C/87/D/1050/2002 (11 July 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."

Brough v Australia (2006)

UN Doc CCPR/C/86/D/1184/2003 (27 April 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.

The UNHRC found that:

"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.

Faure v Australia (2005)

UN Doc CCPR/C/85/D/1036/2001 (31 October 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.

Madafferi v Australia (2004)

UN Doc CCPR/C/81/D/1011/2001 (26 August 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.

Bakhtiyari v Australia (2003)

UN Doc CCPR/C/79/D/1069/2002 (29 October 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.

Baban v Australia (2003)

UN Doc CCPR/C/78/D/1014/2001 (12 August 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.

Young v Australia (2003)

UN Doc CCPR/C/78/D/941/2000 (12 August 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.

Cabal & Pasini v Australia (2003)

UN Doc CCPR/C/78/D/1020/2001 (29 August 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 has been compensated.

C v Australia (2002)

UN Doc CCPR/C/76/D/900/1999 (13 November 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.

Rogerson v Australia (2002)

UN Doc CCPR/C/74/D/802/1998 (15 April 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)).

Winata v Australia (2002)

UN Doc CCPR/C/72/D/930/2000 (16 August 2001)

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.

Toonen v Australia (1994)

UN Doc CCPR/C/50/D/488/1992 (4 April 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)

UN Doc CCPR/C/59/D/560/1993 (30 April 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.

links

The text of the determinations of the UN Human Rights Committee is available at:

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. The content we linked to is no longer available

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