Introduction:
The events which have occurred since the election and re-election of
the Howard Government graphically illustrate the limitations of human
rights protections in Australia. Time and again, the Government has
quite brazenly acted in breach of obligations set out in international
human rights conventions, to the cheers of right-wing commentators and
the silence of a weak and dispirited Opposition.
The assault on the rights of asylum seekers in the lead-up to the November
2001 election provide an example of the frailty of human rights in this
country. The attempt to grant absolute immunity to officers of the Commonwealth
for civil or criminal acts undertaken in the removal of asylum seekers
(1), the creation of "excised offshore places" from which
a valid application for asylum cannot not be made (2) and the watering
down of the terms of the Refugees Convention (3) were all clearly in
breach of our international obligations. Add to this the running sore
of mandatory detention, the treatment of asylum seekers in detention,
in particular the detention and treatment of children, the refusal to
allow family reunion for temporary protection visa holders, and the
attempts to remove judicial review of migration decisions (4), and there
have a pretty sad picture of the human rights of asylum seekers in present-day
Australia. On top of these are the attacks on other vulnerable members
of the Australia community: the watering down of native title rights
and mandatory detention which disproportionately affects Indigenous
people, the tolerance of racial vilification, the sneering refusal to
support international women's rights, the imposition of ever more arbitrary
and unfair penalties on social security beneficiaries. Finally, there
are the vicious attacks on the institutions which normally defend the
rights of the community, including the Human Rights and Equal Opportunity
Commission, ATSIC, the formerly independent public service, and any
government funded NGO that dares to speak out against current policies.
Australia is almost unique amongst Western nations in its lack of any
entrenched human rights. We have no bill of rights, nor is there any
regional human rights body (such as the European Court of Human Rights)
that we can turn to for assistance. Despite recent advances in our domestic
jurisprudence on human rights (5), the situation remains that Australia's
international human rights obligations are not a part of our domestic
law, and they can readily be displaced by unambiguous Parliamentary
intention. (6) So, in a climate where the protection of human rights
is left to the government of the day which all too often makes decisions
based on political expediency and crude majoritarianism, the protection
of the rights of vulnerable people has become extremely problematic.
In this climate, it is not surprising that those seeking to protect
human rights have begun to look elsewhere and, in the absence of any
effective domestic human rights law, the international sphere is becoming
increasingly attractive.
This paper will consider one of the options for persons in Australia
who seek protection of their human rights, by using the mechanisms set
up under the United Nations treaty processes. Several of the most important
international human rights treaties have procedures by which an individual
can make a complaint and obtain a non-binding opinion as to whether
or not there has been a breach of human rights. While far from providing
an adequate substitute for entrenched human rights under domestic law,
it does at least provide somewhere to go for those affected by government
conduct.
Overview of the international complaints mechanisms:
Treaties and the committee system:
The major human rights treaties to which Australia is a party are:
the International Covenant on Civil and Political Rights ("ICCPR"),
the International Convention on Economic, Social and Cultural Rights
("ICESCR"), the Convention on the Elimination of All Forms
of Discrimination Against Women ("CEDAW"), the Convention
on the Elimination of Racial Discrimination ("CERD") the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
("CAT") the Convention on the Rights of the Child ("CROC"),
and the Refugees Convention. (7) To this might also be added declarations
in relation to disabled persons, including the Declaration on the Rights
of Disabled Persons, and the Declaration on the Rights of Mentally Retarded
Persons.
Each of the major human rights treaties is supervised by a committee,
which has a responsibility to monitor the implementation of States parties
and to provide guidance on each treaty, usually in the form of general
comments. It is beyond the scope of this paper to consider the broader
processes of each committee, although it should be noted that each committee
can, on its own initiative, undertake specific inquiries into human
rights concerns. (8)
The ICCPR is supervised by the Human Rights Committee ("UNHRC"),
which consists of 18 independent experts "of high moral character
and recognized competence in the field of human rights". (9) The
UNHRC meets three times per year for sessions of three weeks' duration:
in March at the UN headquarters in New York and in July and November
at the UN Office in Geneva. The CAT is supervised by the Committee Against
Torture ("UNCAT"), which consists of 10 experts of similar
moral standing and competence (10) and it has two sessions per year.
The CERD is supervised by the CERD Committee, which consists of 18 experts
of "high moral standing and acknowledged impartiality" (11),
which also holds two sessions per year. The CEDAW is supervised by the
Committee on the Elimination of Discrimination Against Women.
At present, four of the international human rights treaties provide
individual complaints mechanisms which can be accessed by persons within
the jurisdiction of the relevant State. These are the ICCPR, the CAT,
the CERD and the CEDAW.
Each of these conventions contains an optional procedure which, if
acceded to by the State party, can be used by individuals to lodge a
complaint (or "communication") alleging that their rights
under the convention are being breached by the State party. This procedure
is contained in the First Optional Protocol to the ICCPR ("OP"),
the First Optional Protocol to the CEDAW, Article 22 of the CAT, and
Article 14 of the CERD.
As at 9 December 2002, 104 States had acceded to the OP, 47 States
had acceded to the Optional Protocol to CEDAW, 52 States had recognised
the complaints process under the CAT, and 39 had recognised the complaints
process under the CERD. (12)
Australia acceded to the OP on 25 December 1991, and it recognised
the complaints process under the CAT and CERD on 28 January 1993. (13)
The Optional Protocol to CEDAW was opened for signature in December
1999; however in 2000 the Howard Government announced that it did not
intend to accede to it. (14)
Form and requirements for communications:
The determination of communications is undertaken by each relevant
supervising committee, which has Rules of Procedure governing the procedures.
(15)
Communications follow a standard model which is published by each committee.
(16) They must be in writing, and the committees do not hear oral argument.
Communications must not be anonymous (17), and they should be made
by the individual who claims that his or her rights have been violated.
Where the individual cannot submit the communication, the Committee
may consider a communication from another person who must prove that
he or she is acting on behalf of the alleged victim. (18) A third party
with no apparent links to the person whose rights have allegedly been
violated cannot submit a communication.
Victims do not have to be nationals of the State alleged to be in breach,
as long as they are within the jurisdiction and territory of the State.
(19) This means that non-citizens within the State will be protected
by each treaty.
The major admissibility requirement for all communications is that the
individual must first have "exhausted" all domestic remedies.
(20) This provides the State party with an opportunity to correct the
human rights abuse at a domestic level before it is taken to the international
sphere.
The exhaustion of domestic remedies usually means that an individual
must exhaust all available judicial remedies to the point where a final
adjudication has been reached, with no possibility of further appeal.
(21) In Australia this may require the individual to take the matter
to the High Court. However an applicant will not be required to pursue
futile proceedings for the purpose of admissibility; for example where
the issue has previously been determined by the highest court. Moreover
there is no requirement to exhaust remedies that objectively have no
prospect of success. For example, during the 1980s the UNHRC repeatedly
found that individuals lodging communications against the State security
forces in Uruguay did not have to pursue all available domestic remedies,
as the military regime did not provide a fair and effective system of
justice. (22)
There is no requirement to pursue domestic remedies which would be
"unreasonably prolonged"; for example, where a complaint would
take several years to make its way through the court system. (23)
In some cases an individual will need to exhaust available administrative
remedies which offer a reasonable prospect of redress, although there
is no requirement to exhaust non-enforceable administrative and executive
remedies. (24)
A failure to comply with procedural requirements, such as a failure
to meet time limits on the lodgement of an appeal, means that the communication
will be inadmissible unless such failure can somehow be attributed to
the State party. (25) Lack of funds will not usually absolve an applicant
from pursuing domestic remedies unless the State party can be regarded
as being responsible in some way, for example by refusing to provide
legal aid. (26)
There is an additional requirement under the CERD that communications
be lodged within six months of the exhaustion of domestic remedies.
(27)
Interim measures:
Each of the committees has an "interim measures" provision,
which provides that the committee may inform the State party of its
views on the desirability of taking interim measures to avoid possible
irreparable damage to the person who claims to be a victim of the violation.
(28) This has proved particularly useful in protecting asylum seekers
from removal pending the final determination of the committee, which
can take several years.
In practice, a request for interim measures should be made at the same
time as the communication, and it will be considered urgently by the
Special Rapporteur on New Communications. If the Special Rapporteur
is satisfied that such measures are required, he or she will contact
the relevant State party representative and request that interim measures
be taken pending a final determination of the communication.
Determination of communications:
Once a communication has been received, the committee will request
the State party to provide its comments on admissibility and merits
of the matter within six months. (29) The applicant is then given an
opportunity to comment on the State party's submission, following which
the matter is set down at one of the committee sessions for delivery
of the final "views" on the communication.
The committees seek to come to a single view by consensus; however
individual members can and often do add their opinions to the views
expressed by the committee as a whole.
Views of the committees are not enforceable; however they are widely
published (30) and carry significant moral and persuasive authority.
There is no doubt, for example, that the UNHRC's views in Toonen v Australia
(31), that Tasmania's anti-homosexual laws were in breach of Article
17 of the ICCPR (right to non-interference with privacy and family),
led directly to the enactment by the Australian Parliament of legislation
rendering those laws ineffective. (32) Similarly, the finding in A v
Australia that the detention of a Cambodian asylum seeker was arbitrary
and in breach of Article 9 of the ICCPR has meant that the Australian
Government can no longer credibly claim that its policy of mandatory
detention of asylum seekers is not in breach of human rights.
As at 17 April 2003, 53 communications had been lodged against Australia
under the OP to the ICCPR. Of these, 17 were at pre-admissibility stage,
21 had been determined to be inadmissible, seven had been discontinued,
and eight had proceeded to determination. (33) Of the eight communications
which had been determined, Australia was in violation of the ICCPR in
five cases and was not in violation in three cases. (34)
As at 5 December 2002, 19 communications had been lodged against Australia
under Article 22 of the CAT. Of these, four were at the pre-admissibility
stage, nine had been discontinued, and six had proceeded to determination.
(35) Of these, the Committee had found that Australia was in violation
of the CAT in only one case. (36)
According to the CERD Committee records, as at 15 April 2003, five
communications had been lodged against Australia under Article 14. Of
these, two had been determined to be inadmissible and the Committee
had found that there was no violation in the other three cases. (37)
However, to this must now be added the case of Hagan v Australia, which
was publicly released on 23 April 2003. (38) This was a complaint by
an Aboriginal person in relation to the naming of a sports grandstand
in Toowoomba. Queensland, as the "E.S. 'Nigger' Brown Stand".
The stand had been named in 1960; however the CERD Committee took the
view that, even if the name had not been offensive in 1960 the CERD,
as a "living instrument", had to be interpreted and applied
taking into account the circumstances of contemporary society. There
was no express finding of a breach of Article 4; however it was clear
that the Committee considered that such a breach was occurring. Needless
to say, the Australian Government has moved quickly to reject any suggestion
that it would comply with the views. (39)
The use of international mechanisms to protect the human rights of
asylum seekers and immigrants:
The international complaints mechanisms have proven to be particularly
useful in clarifying and protecting the rights of asylum seekers and
immigrants in Australia.
The OP has been used by asylum seekers to challenge conditions of detention,
and to prevent their removal States where their rights may be violated.
It has also been used in immigration cases to prevent family breakup.
The prolonged detention of an asylum seeker was the subject of the
second communication under the OP that led to a finding against Australia,
in A v Australia. (40) In that case the UNHRC found that the detention
of a Cambodian national for over four years was in breach of Articles
9(1) and 9(4) of the ICCPR, which prohibit arbitrary detention. (41)
A v Australia has recently been confirmed by Mr C v Australia (42),
which is referred to in greater detail below.
In deportation cases the usual view taken by the UNHRC is that a State
party will be liable where it takes a decision relating to a person
within its jurisdiction and the "necessary and foreseeable consequence"
of that decision is that the person's rights will be violated. Thus,
if the State party hands over a person to another State, either by extradition
(43) or deportation (44), it would be in violation of the treaty if
it is a necessary and foreseeable consequence that the person's rights
under the ICCPR will be violated.
There have been two cases where interim measures have been requested
and complied with by Australia, but the communication has ultimately
failed. In A.R.J. v Australia (45) an Iranian citizen arrested in Western
Australia on charges of importing and possessing cannabis claimed that
if he was returned to Iran he would face the death penalty, which would
be in violation of his right to life under Article 6 of the ICCPR (prohibiting
the death penalty) and Article 7 (prohibiting torture). However, after
making an interim request the UNHRC ultimately found against the applicant
on the merits of the claim, on the grounds that his offence only carried
a five year maximum term of imprisonment in Iran and there was no evidence
that he was likely to be arrested and prosecuted upon return to Iran.
Similarly, in G.T. v Australia (46) a Malaysian national convicted of
importing heroin into Australia who claimed to face the death penalty
upon return had been refused a protection visa. A request for interim
measures was made; however the communication was ultimately rejected
on the grounds that nothing in the information before the Committee
pointed to any intention on the part of Malaysian authorities to prosecute
the applicant.
In the important recent communication in Mr C v Australia (47), the
UNHRC considered the case of an Iranian asylum seeker who was incarcerated
at the Maribyrnong Detention Centre in Melbourne for over two years.
As a direct result of his prolonged detention, he developed a psychiatric
disorder, which led to the formation of a delusion about a female employee
at the Centre. Mr C was granted a protection visa, but upon release
he approached and threatened the female on three occasions, and he was
charged and convicted of aggravated burglary and threats to kill and
sentenced to three and a half years imprisonment. He was granted parole
in December 1998, but a deportation order was made against him and he
was taken into immigration detention where he has remained ever since.
Despite the unanimous opinions of no less than four psychiatrists that
he has made a full recovery and is no longer a danger to the community,
the Minister has refused to release him.
In its damning views published in October 2002, the UNHRC found, in
accordance with the views in A v Australia, that the detention of Mr
C upon arrival in Australia was in breach of Articles 9(1) and 9(4)
of the ICCPR. Significantly, it went on to find that his continued detention
in circumstances that led to his mental deterioration amounted to a
breach of Article 7, which prohibits torture, cruel, inhuman or degrading
treatment or punishment. It also found that his deportation to Iran
would amount to a breach of Article 7. Australia was requested to provide
information about the measures taken to give effect to its views within
90 days. No substantive response has yet been provided.
In Winata v Australia (48), the UNHRC considered the case of an Indonesian
couple who had remained unlawfully in Australia for more than ten years,
during which time they had a son who received Australian citizenship.
The parents were located by the Department of Immigration which took
steps to deport them, and a communication was lodged under the OP and
interim measures were requested. In its views, the Committee found that
the removal of the parents would be in breach of Article 17 of the ICCPR
(interference with privacy and the family). It rejected an argument
that the son could return to Indonesia, because of his cultural links
to Australia, and it rejected an argument that the parents could return
to Indonesia and apply for a Parent visa, which had a waiting list of
several years.
Article 3 of the CAT contains an absolute prohibition on States from
returning (or refouling) anyone to another State where there are "substantial
grounds for believing she would be in danger of torture".
The CAT (as with the ICCPR) is broader than the Refugees Convention,
in that it does not require a nexus between the ill-treatment and one
of the five Convention reasons. In addition, the absolute prohibition
upon return under the CAT would also cover persons excluded under Article
1F of the Refugees Convention for having committed criminal acts and
acts against the United Nations.
In determining communications under the CAT, the UNCAT will look afresh
at all the facts of the case, including current information as to whether
there is a consistent pattern of gross, flagrant or mass violations
of human rights in the receiving State. (49) It will also give considerable
weight to findings of fact made by the State authorities. Thus, in its
views in N. P. (Name withheld) v Australia (50) the Committee rejected
the applicant's contention that he would be at risk upon return to Sri
Lanka, noting the important inconsistencies in his statements before
Refugee Review Tribunal and observing that he had not provided the Committee
with any arguments, including medical evidence, which could have explained
such inconsistencies. On the other hand, the UNCAT will not be bound
by such findings, and it considers itself free to assess the facts based
upon the full set of circumstances in every case.
Virtually all communications lodged against Australia under the CAT
have been from failed asylum seekers. (51) To date, the only successful
communication has been Elmi v Australia. (52) This involved a Somali
asylum seeker who had a strong claim for refugee status, based on his
membership of a minority clan which had a well-documented history of
persecution from the dominant clan in Mogadishu. His claim was rejected
by the Refugee Review Tribunal on the grounds that any harm he faced
upon return to Somalia would be because of the generalised situation
of civil war rather than any Convention reason. He had unsuccessfully
sought review of his case by the High Court, and he had been refused
humanitarian entry by the Minister for Immigration. An attempt was then
made to remove him by the Department of Immigration, but this failed
when the captain of the airline refused to carry him. By then Mr Elmi
had lodged a communication with the UNCAT, which made a request for
interim measures to the Australian mission in Geneva. At the same time
Amnesty International initiated an "Urgent Action" against
the Minister, which led to a flood of letters of protest to the Minister's
office. When the Department finally managed to get Mr Elmi on a plane
from Melbourne to Perth, it was held up at Perth Airport by picketing
trade unionists. It was only then that the Minister agreed to comply
with the interim measure and undertook not to remove Mr Elmi. (53)
When Mr Elmi's case was finally considered by UNCAT, it rejected Australia's
argument that the CAT did not apply to a situation of generalised violence,
since the majority clan which held Mogadishu could be regarded as exercising
de facto control and was therefore responsible for any acts of torture
for the purposes of the Convention. 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.
Australia's response to the views of the UNCAT in Elmi is an illustration
of the contempt that it has recently shown to international human rights
bodies. The Department of Immigration's first reaction to the interim
measures undertaking was to transfer Mr Elmi to the Port Hedland Detention
Centre, where he was completely isolated from his advisers in Melbourne.
He was only moved back to Melbourne when an application was lodged by
his advisers in the Federal Court. Then, instead of granting Mr Elmi
a protection visa in response to the Committee's final views, the Minister
determined that he would have to re-apply for asylum from the beginning,
and remain in detention during the entire period that his case was being
re-processed. Unsurprisingly, his case was rejected by the Minister's
delegate and the Refugee Review Tribunal. Eventually, rather than spend
any longer in detention awaiting court appeals, Mr Elmi chose to get
on an aircraft heading in the general direction of Somalia, and his
current whereabouts are unknown.
The future of the international complaints procedure in Australia:
The string of findings in cases such as A v Australia, Elmi and Mr
C, and the frequent criticism of Australia's human rights record by
the committees, have proven to be highly embarrassing to the Australian
Government. The use of the interim measures procedures in particular
strike at the very heart of the Government's culture of control over
the migration process. This is highly offensive to a conservative agenda
deeply suspicious of international organisations that are not subject
to political and administrative control by the government of the day.
The attitude of the present Government to international human rights
mechanisms was illustrated in a Joint News Release issued on 29 August
2000, ironically entitled "Improving the Effectiveness of United
Nations Committees". In that document, Immigration Minister Ruddock,
along with Foreign Affairs Minister Alexander Downer and Attorney-General
Daryl Williams announced that the Government would take "strong
measures" to improve the effectiveness of the UN human rights treaty
bodies, including the implementation of a package of measures to "improve"
interaction with UN human rights treaty committees, and the rejection
of "unwarranted requests from treaty committees to delay removal
of unsuccessful asylum seekers from Australia". This move was part
of a wider agenda by the Government to attack the credibility of the
UN human rights system which has been so critical of Australia's asylum
procedures and its policies on Aboriginal people and women. (54) The
writing is on the wall: "democratic" countries like Australia
will not stand for interference from unelected international committees.
Since the joint announcement, Australia has indicated its reluctance
to cooperate with requests for interim measures from the committees.
Shortly prior to the announcement, in June 2000, the Australian Government
Solicitor refused to give an undertaking to the UNCAT that it would
not remove a Somali asylum seeker pending determination of his communication,
although the undertaking was given later, after the person attempted
to commit suicide in the detention centre. (55) Since then, the policy
appears to be simply to ignore requests for interim measures, although
applicants are not being removed prior to determinations by the committees.
The most recent indication of the Government's attitude to the committees
may be seen in the Attorney-General's response to the views of the CERD
Committee in Hagan v Australia. A spokesperson for the Attorney-General
was quoted as saying:
The Government is confident that Australia's domestic processes, which
found no racial discrimination in this case, are second to none in the
world, the spokesperson said.
The Government notes that the committee is not a court and its views
are not binding. In particular, it does not adopt the rigorous judicial
standards employed by our own domestic courts.
The Government's serious concerns regarding the quality and standards
applied by UN complaint bodies are a matter of public record. In the
absence of real reform of the UN treaty body system, those concerns
remain. (56)
In the longer term, it is unlikely that Australia will be able to avoid
its obligations under the international treaty processes. While it is
always possible to denounce an international treaty - indeed serial
human rights offenders Jamaica and Trinidad and Tobago have denounced
the OP - it would be politically difficult for a country like Australia
to pull out of its human rights obligations. The one attempt to denounce
the ICCPR - by Korea in 1997- was met with such severe criticism that
it did not proceed. (57)
It is therefore unlikely that Australia would further risk its international
human rights reputation by seeking to withdraw from its obligations
under the treaty processes. What is more likely is that Australia will
continue to ignore inconvenient findings against it, and to pursue diplomatic
efforts to pressure and intimidate the committees in an attempt to ensure
that States parties receive a more favourable hearing.
An international complaints procedure that does not lead to enforceable
remedies may not appear to be of much value. However, as the evidence
mounts up against Australia, something will have to be done to avoid
the international fallout. Maybe, in the end, Australia might have to
take responsibility for its own enforcement of human rights by providing
binding remedies under domestic law. In the meantime, the international
treaties provide one way of "keeping the bastards honest".
1 Border Protection Bill 2001.
2 Migration Amendment (Excision from Migration Zone) Act 2001.
3 Migration Legislation Amendment Act (No. 6) 2001.
4 Migration Legislation Amendment (Judicial Review) Act 2001.
5 See, e.g., Plaintiff S157/2002 v Commonwealth of Australia (2003)
195 ALR 24; Minister for Immigration v Al Masri [2003] FCAFC 70.
6 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.
7 That is, the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees.
8 For example, in August 1998 the CERD Committee made a special request
for information on changes proposed to the Native Title Act 1993 in
terms of its compatibility with the CERD: see Decision 1(53) on Australia,
11.8.98, UN Doc A/53/18, paraIIB1. In June 2002 Justice P.N. Bhagwati,
a member of the UN Human Rights Committee and Regional Advisor for Asia
and the Pacific of the UN High Commissioner for Human Rights, visited
Australia and drew worldwide attention to the plight of detained asylum
seekers: see http://www.chilout.org/files/BhagwatiReportJuly2002.pdf
9 ICCPR, Article 28
10 CAT, Article 17
11 CERD, Article 8(1)
12 Office of the United Nations High Commissioner for Human Rights,
Status of Ratifications of the Principal International Human Rights
Treaties as at 9 December, 2002, via Office of the High Commissioner
for Human Rights website, http://www.unhchr.ch; see also Treaty Bodies
Database via same website.
13 Ibid
14 CEDAW Information Package, HREOC website, http://www.hreoc.gov.au/sex_discrimination/
cedaw/text.html#optional. A more detailed history of the Optional Protocol
to the CEDAW may be found at http://www.un.org/womenwatch/ daw/cedaw/protocol/optional.htm.
15 The Rules of Procedure of each body have now been consolidated into
one document, HRI/GEN/3, which can be accessed via the UN Treaty Bodies
Database: http://www.unhchr.ch/tbs/doc.nsf
16 For information on lodging communications and a model communication,
see also the Australian Lawyers for Human Rights website, www.alhr.asn.au
17 UNHRC Rule 90(a); UNCAT Rule 107(a), CERD Committee Rule 91(a)
18 UNHRC Rule 90(b); UNCAT Rule 107(b); CERD Committee Rule 91(b); see
also Mr Colin McDonald and Mr Nicholas Poynder on behalf of Mr Y v Australia
(No. 772/1997), 17 July 2000, UN Doc CCPR/C/69/D/772/1997, reported
in 19(1) Netherlands Quarterly of Human Rights (March 2001) at 77
19 ICCPR, Article 2(1), OP, Article 1
20 OP Article 5(2)(b); CAT, Article 22(5)(b), CERD, Article 14(2)
21 See cases referred to in Joseph S, Schultz J and Castan M, The International
Covenant on Civil and Political Rights - Cases, Materials and Commentary
(Oxford University Press, New York, 2000) at pp. 74-75
22 See Joseph et al, op cit pp. 80-81
23 Andras Fillastre v Bolivia (No. 336/1988), 5 November 1991.
24 See Mr C v Australia (No. 930/2000); UN Doc CCPR/C/76/D900/1999,
at par 7.3; reported in 21(1) Netherlands Quarterly of Human Rights
(March 2003) at 121.
25 A.P.A v Spain (No. 433/90), 28 March 1994, UN Doc CCPR/C/50/D/433/1990
26 Henry v Jamaica (No. 230/88); see also cases referred to in Joseph
S, et al, op cit p. 88-89
27 CERD Committee, Rule 91(f)
28 UNHRC, Rule 86; UNCAT, Rule 108(9); CERD Committee, Rule 94(3)
29 UNHRC, Rule 91; UNCAT, Rule 110
30 Most views can be found in the UN Treaty Bodies Database, op cit
and are published in the annual reports of each committee to the UN
General Assembly. In addition, they are increasingly reported in journals
such as the Netherlands Quarterly of Human Rights, Butterworths Human
Rights Cases, International Journal of Refugee Law and Interrights Bulletin,
as well as texts such as Joseph S, op cit and Nowak, M, UN Covenant
on Civil and Political Rights: CCPR Commentary (Kehl am Rhein: Engel)
1993.
31Toonen v Australia (No. 488/1992), 4 April 1994, UN Doc No. CCPR/C/50/D/488/1992
32 Human Rights (Sexual Conduct) Act 1994
33 United Nations High Commissioner for Human Rights, Statistical survey
of individual complaints considered, http://www.unhchr.ch/html/menu2/8/stat2.htm.
34 The cases where there have been findings of violation are: Toonen
v Australia (No. 488/1992), A v Australia (No. 560/1993), Winata v Australia,
(No. 930/2000), Rogerson v Australia (No. 802/1998) and Mr C v Australia
(No. 900/1999).
35 United Nations High Commissioner for Human Rights, Statistical survey
of individual complaints considered, http://www.unhchr.ch/html/menu2/8/stat3.htm
36Elmi v Australia (No. 106/1998), 25 May 1999, UN Doc No. CAT/C/22/D/120/1998.
37 http://www.unhchr.ch/html/menu2/8/stat4.htm
38 Hagan v Australia (No. 26/2002) 20 March 2003, UN Doc CERD/C/62/D26/2002.
39 Canberra to defy UN on 'nigger' sign, The Australian, 24 April, 2003
40 A v Australia (No. 560/1993).
41 For a general discussion of the decision, see Poynder N, "A
v Australia: a milestone for asylum seekers", 1997 4(1) Australian
Journal of Human Rights 155
42 Mr C v Australia (No. 900/1999).
43 Kindler v Canada (No. 470/1991), 18 November 1993, UN Doc No. CCPR/C/48/D/470/1991
44 G.T. v Australia (No. 706/96), 4 December 1997, UN Doc No. CCPR/C/61/D/706/1996
45 A.R.J. v Australia (No. 692/1996), 11 August 1997, UN Doc No. CCPR/C/60/D/692/1996
46 G.T. v Australia (No. 706/96)
47 Mr C v Australia (No. 930/2000); UN Doc CCPR/C/76/D900/1999, at par
7.3; reported in 21(1) Netherlands Quarterly of Human Rights (March
2003) at 121.
48 Winata v Australia (No. 930/2000), 16 August 2001, UN Doc No. CCPR/C/72/D/930/2000
49 CAT, General Comment No. 1, Implementation of article 3 of the Convention
in the context of article 22, UN Doc A53/44, annex IX, 21 November 1997,
para 6(a)
50 N. P. (Name withheld) v Australia (No. 120/98), 3 June 1999, UN Doc
No. CAT/C/22/D/106/1998
51 See Summary record of the first part (public) of the 444th meeting:
Australia, Committee Against Torture, 25th Session, 21 November 2000
UN Doc CAT/C/SR.444, accessed via Treaty Bodies Database, 12 June 2001
52 Elmi v Australia (No. 106/98), 25 May 1999, UN Doc No. CAT/C/22/D/120/1998
53 For an account of the failed attempt to deport Mr Elmi, see Crock
M, "A Sanctuary Under Review: Where to from here for Australia's
Refugee and Humanitarian Program?", (2000) 23(3) UNSW Law Journal
246 at pp. 261-264. See also Senate Legal and Constitutional References
Committee, A Sanctuary Under Review: An Examination of Australia's Refugee
and Humanitarian Determination Processes (June 2000), Chapter 7, The
Case of Mr SE
54 See Kingston M, "Three Wise Men?", Sydney Morning Herald
Web Diary, 29 August 2000
55 Abdi v Australia (No. 162/2000)
56 Canberra to defy UN on 'nigger' sign, The Australian, 24 April, 2003
57 See, e.g., Summary record of the 1616th meeting of the Human Rights
Committee, 26 November 1997, UN Doc CCPR/C/SR.1616
