When All Else Fails

The attempt to grant absolute immunity to officers of the Commonwealth for civil or criminal acts undertaken in the removal of asylum seekers, the creation of "excised offshore places" from which a valid application for asylum cannot not be made and the watering down of the terms of the Refugees Convention were all clearly in breach of our international obligations.

Nicholas Poynder is a barrister and migration agent practising at the Sydney Bar. He was formerly the coordinator of the Refugee Advice and Casework Service (NSW) and a Senior Legal Officer with the Human Rights and Equal Opportunity Commission, and he has extensive experience at all levels of immigration law. [read more]

Relevant documents:

• Complaint Form to the Committee Against Torture - Complaint Form to the Committee Against Torture, a formal document for communications under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. From UNIYA, the Jesuit Refugee Service. (WORD document 32 Kb)
• United Nations Convention against Torture General Comment One - From UNHCR, Implementation of article 3 of the Convention against Torture in the context of article 22 - 21/11/97. Convention against Torture (CAT) General comment 1. The Committee against Torture "shall consider communications received under article 22 in the light of all information made available to it by or on behalf of the individual and by the State party concerned". (PDF File 53 Kb)
• UNIYA Memo: Complaint to the UN Committee Against Torture - UNIYA Jesuit Social Justice Centre Memo: "Once all available domestic remedies have been exhausted, a complaint could be communicated on behalf of an Iranian asylum seeker to the Committee Against Torture to decide whether their forced deportation violates the obligation of Australia under article 3 of the Torture Convention..." (WORD document 70 Kb)
• UN Fact Sheet: Procedures for 1503 Complaint or Optional Protocol - Fact Sheet No.7: "A consistent pattern of violations" (the 1503 procedure); the Optional Protocol procedure - Anyone may bring a human rights problem to the attention of the United Nations. This fact sheet explains the procedures, and the ways open to individuals and groups who want the United Nations to take action on a human rights situation that is of concern to them. (WORD document 67 Kb)

When All Else Fails: The Practicalities of Seeking Protection of Human Rights under International Treaties

Castan Centre for Human Rights Law
28 April 2003
by Nick Poynder
Barrister, Frederick Jordan Chambers, Sydney

This is a Public Lecture presented by the Castan Centre and Australian Lawyers for Human Rights at Baker & McKenzie, Melbourne on 28 April 2003.

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:

1. The International Covenant on Civil and Political Rights ("ICCPR")

2. The International Convention on Economic, Social and Cultural Rights ("ICESCR")

3. The Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW")

4. The Convention on the Elimination of Racial Discrimination ("CERD")

5. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT")

6. The Convention on the Rights of the Child ("CROC")

   and

7. The Refugees Convention [7]

   To this might also be added declarations in relation to disabled persons, including

8. The Declaration on the Rights of Disabled Persons

   and

9. 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".

About Nick Poynder

Nicholas Poynder is a barrister and migration agent practising at the Sydney Bar. He was formerly the coordinator of the Refugee Advice and Casework Service (NSW) and a Senior Legal Officer with the Human Rights and Equal Opportunity Commission, and he has extensive experience at all levels of immigration law. Nick specialises in providing legal advice to prospective applicants about their immigration options under Australian law, and more specific advice about particular immigration claims. Nick also represents applicants before immigration and administrative tribunals and the Australian courts, including the Federal Court and the High Court of Australia. Nick also has experience in representing applicants before international human rights tribunals and can do so wherever possible [source].

Footnotes

Editor's note: Both hyperlinks linked in footnote [14] as listed in the original article at the Castan Centre are no longer online, and they have been replaced by items from the same website about CEDAW and the Optional Protocol.