Australia:

Views in 10 cases with findings of violations:

488/1992 - Toonen (A/49/40); for follow-up reply, see A/51/40, paragraph 456;

560/1993 - A. (A/52/40); for follow-up reply, dated 16 December 1997, see A/53/40, paragraph 491.  See also A/55/40, paragraph 605 and A/56/40, paragraph 183;

802/1998 - Rogerson (A/58/40); no follow-up reply required because the Committee considered the finding of a violation to be a sufficient remedy; this was affirmed by the State party in its follow-up reply, see paragraph 229 above; for the same reason, in the follow-up report (CCPR/C/80/FU1), adopted by the Committee during the eightieth session, the Special Rapporteur recommended that this case should not be considered under the follow-up procedure;

900/1999 - C. (A/58/40); for follow-up reply see A/58/40, paragraph 225.  In the follow-up report (CCPR/C/80/FU1), adopted by the Committee during its eightieth session, the Special Rapporteur recommended that the State party be reminded to furnish its follow-up reply;

930/2000 - Winata et al. (A/56/40); for follow-up replies, see A/56/40, paragraph 232.  In the follow-up report (CCPR/C/80/FU1), adopted by the Committee during its eightieth session, the Special Rapporteur recommended that the State party be reminded to furnish its reply;

941/2000 - Young (A/58/40); for follow-up reply see paragraph 230 above;

1014/2001 - Baban et al. (A/58/40); follow-up reply not yet received;

1020/2001 - Cabal and Pasini (A/58/40); for follow-up reply see paragraph 231 below; in the follow-up report (CCPR/C/80/FU1), adopted by the Committee during its eightieth session, the Special Rapporteur recommended that this case should not be considered any further under the follow-up procedure;

1069/2002 - Bakhitiyari (annex IX); follow-up reply not yet due;

1011/2002 - Madaferri (annex IX); follow-up reply not yet due.

State party and number of cases with violation

Communication number, author and location^a

Follow-up response received from State party and location

Satisfactory response

Unsatisfactory response

No follow-up response

Follow-up dialogue ongoing

...

Australia (10)

488/1992, Toonen

A/49/40

X

A/51/40

X

560/1993, A.

A/52/40

X

A/53/40, A/55/40, A/56/40

X

X

802/1998, Rogerson

A/58/40

Finding of a violation was considered sufficient

X

X

900/1999, C.

A/58/40

X

A/58/40, CCPR/C/80/FU1

A/60/40 (annex VII)

930/2000, Winata et al.

A/56/40

X

CCPR/C/80/FU1, A/57/40, A/60/40 (annex VII)

X

941/2000, Young

A/58/40

X

A/58/40, A/60/40 (annex VII)

X

X

1014/2001, Baban et al.

A/58/40

X

A/60/40 (annex VII)

X

X

1020/2001, Cabal and Pasini

A/58/40

X

A/58/40, CCPR/C/80/FU1

X

X

1069/2002, Bakhitiyari

A/59/40

X

A/60/40 (annex VII)

X

X

1011/2002, Madaferri,

A/59/40

X

X

State party

AUSTRALIA

Case

C., 900/1999

Views adopted on

28 October 2002

Issues and violations found

Immigration detention of refugee applicant with psychiatric problems ‑ articles 7 and 9, paragraphs 1 and 4.

Remedy recommended

As to the violations of articles 7 and 9 suffered by the author during the first period of detention, the State party should pay the author appropriate compensation.  As to the proposed deportation of the author, the State party should refrain from deporting the author to Iran.

Due date for State party response

4 February 2003

Date of reply

28 September 2004 (similar reply received on 10 February 2003)

State party response

The State party advises the Committee that the author has been released from the Maribyrnong Immigration Detention Centre into home detention.  He is now living in a private home in Melbourne.  He is free to move about within the Australian community provided he is in the presence of one of his nominated relatives.  This arrangement has been in place for over 14 months.  The State party is considering how the author=s situation is to be resolved but has not yet finalized this process.  It ensures the Committee that a detailed response will be provided as soon as possible.

Author=s response

On 19 October 2004, the author responded to the State party=s submission, confirming that the author is in Ahome detention@ but that his movements are restricted as described by the State party.  He states that as the deportation order has not been revoked, he is still at risk of deportation, and that no compensation has been paid for his unlawful detention.

State party

AUSTRALIA

Case

Madafferi, 1011/2001

Views adopted on

28 July 2004

Issues and violations found

Deportation of Italian man to Italy, married to Australian with Australian‑born children ‑ article 10, paragraph 1.

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective and appropriate remedy, including refraining from removing Mr. Madafferi from Australia before he has had the opportunity to have his spouse visa examined with due consideration given to the protection required by the children=s status as minors.

Due date for State party response

26 October 2004

State party response

None

Author=s response

On 17 March 2005, counsel submitted that the State party had still not resolved the author=s situation.  The author continues to be unwell, but while the State party has made arrangements for him to be released from the detention centre and to return home with liberal arrangements to stay within the community with a member of his family, his legal status has not changed.  The Minister for Immigration is reluctant to make a decision.

State party

AUSTRALIA

Case

Young, 941/2000

Views adopted on

6 August 2003

Issues and violations found

Discrimination on grounds of sexual orientation in provision of social security benefits ‑ article 26.

Remedy recommended

An effective remedy, including the reconsideration of his pension application without discrimination based on his sex or sexual orientation, if necessary through an amendment of the law.

Due date for State party response

12 November 2003

Date of reply

The State party had replied on 11 June 2004

State party response

In the State party=s response, it submitted, inter alia, that it does not accept the Committee=s finding that it violated article 26 and therefore rejects the conclusion that the author is entitled to an effective remedy.  (see Annual Report CCPR/C/81/CRP.1/Add.6).

Author=s response

On 16 August 2004, the author responded to the State party=s submission, expressing his disappointment that the State party merely reiterates its arguments provided prior to consideration of the case.  He is particularly offended by the State party=s questioning of his long‑standing and committed relationship of 38 years with his partner Mr. Cains.  He requests the Committee to ask the State party to fulfil its obligations under the Covenant.

State party

AUSTRALIA

Case

Winata, 930/2000

Views adopted on

26 July 2001

Issues and violations found

Removal from Australia of Indonesian parents of Australia‑born child ‑ articles 17, 23, paragraph 1, and 24, paragraph 1.

Remedy recommended

To refrain from removing the authors from Australia before they have had an opportunity to have their applications for parent visas examined with due consideration given to the protection required by their child=s status as a minor.

Due date for State party response

12 November 2001

Date of reply

2 September 2004

State party response

The State party advises that the authors remain in Australia and that it is considering how their situation can be resolved within existing Australian immigration laws.  It ensures the Committee that a detailed response will be provided as soon as possible.

State party

AUSTRALIA

Case

Baban, 1014/2001

Views adopted on

6 August 2003

Issues and violations found

Deportation; risk of torture ‑ articles 9, paragraphs 1 and 4.

Remedy recommended

Effective remedy, including compensation.

Due date for State party response

27 November 2003

Date of reply

18 February 2005

State party response

As to the finding that the State party breached its obligations regarding arbitrary detention under article 9, paragraph 1, the State party reiterates its submission to the Committee on the merits, that immigration detention is not arbitrary and is an exceptional measure reserved to persons who arrive or remain in Australia without authorization.  The author and his son were free to leave Australia at any time while in detention.  The High Court of Australia has upheld the constitutionality of Australia=s immigration detention provisions under the Migration Act 1958, finding that they are not punitive but reasonably capable of being seen as necessary for the purposes of deportation or of enabling an entry application to be made and considered.  Consistent with Australia=s obligations under the Convention on the Rights of the Child, it was assessed to be in the best interests of the son for him to remain with his father, the author.  In the individual circumstances of this case the detention was considered necessary, justifiable and appropriate.  It was also proportionate to the ends sought, namely, to allow consideration of the author=s claims and appeals, and to ensure the integrity of Australia=s right to control entry.

As to the finding of a violation of article 9, paragraph 4, the State party does not agree with the interpretation of this article.  In its view the term Alawfulness@ refers to the Australian domestic legal system, and there is nothing in the Covenant, travaux preparatoires, or Committee=s general comments to suggest that it means Alawful at international law@ or Anot arbitrary@.  Thus, the State party does not accept the Committee=s view that Australia breached article 9, paragraph 4 of the Covenant, neither is it of the view that the authors are entitled to an effective remedy.

State party

AUSTRALIA

Case

Bakhtiyari, 1069/2002

Views adopted on

29 October 2003

Issues and violations found

Possible deportation of the wife and children of the author while the latter is recognized as a refugee in Australia ‑ articles 9, paragraphs 1 and 4, and 24, paragraph 1, and, potentially, of articles 17, paragraph 1, and 23, paragraph 1. 

Remedy recommended

As to the violation of article 9, paragraphs 1 and 4, continuing up to the present time with respect to Mrs. Bakhtiyari, the State party should release her and pay her appropriate compensation.  So far as concerns the violations of articles 9 and 24 suffered in the past by the children, which came to an end with their release on 25 August 2003, the State party is under an obligation to pay appropriate compensation to the children.  The State party should also refrain from deporting Mrs. Bakhtiyari and her children while Mr. Bakhtiyari is pursuing domestic proceedings, as any such action on the part of the State party would result in violations of articles 17, paragraph 1, and 23, paragraph 1, of the Covenant.

Due date for State party response

1 February 2004

Date of reply

The State party had responded on 24 December 2004.

State party response

On 29 December 2004, the State party welcomes the finding that Mr. Bakhtiyari was not detained arbitrarily.  As to the finding that the children and Mrs. Bakhtiyari were arbitrarily detained, the State party reiterates its submission to the Committee on the merits, that immigration detention is not arbitrary and is an exceptional measure reserved to persons who arrive or remain in Australia without authorization.  It states that the process of assessing Mrs. Bakhtiyari=s application for a protection visa and merits review of the decision on that application was completed within six months of the making of her application.  Detention following that time reflects her own efforts to have a more favourable decision substituted by the Minister in her favour, and the hearing of domestic legal proceedings relating to her application.  She was free to leave Australia with her children and husband at any time while in detention.  The High Court of Australia has upheld the constitutionality of Australia=s immigration detention provisions under the Migration Act 1958, finding that they are not punitive but reasonably capable of being seen as necessary for the purposes of deportation or of enabling an entry application to be made and considered.  In these circumstances, the State party maintains that the detention of Mrs. Bakhtiyari is reasonable and proportionate, and remains justified.  With regard to the view that the State party violated article 9, paragraph 4, with respect to Mrs. Bakhtiyari= and her children, the State party does not accept the Committee=s interpretation.  In its view the term Aunlawful@ in this provision refers to the Australian domestic legal system.  There is nothing in the terms of the Covenant that suggests that Alawful@ was intended to mean Alawful at international law@ or Anot arbitrary@.  It maintains that the option of seeking a writ of habeas corpus is and was available to Mrs. Bakhtiyari, and also to her children prior to their release.  As to the possibility of a breach of articles 17 and 23 if Mrs. Bakhtiyari and her children are removed prior to Mr. Bakhtiyari, the State party submits that it is its objective to remove the family together.  This can be demonstrated by the way in which the Government has managed the various family members to date.  As to the Committee=s view that the State party has breached the children=s rights under article 24, it maintains its view that it has afforded the children adequate protection.  Having regard to its position, the State party is not of the view that the authors are entitled to an effective remedy of compensation or that Mrs. Bakhtiyari is entitled to release.

State party and number of cases with violation

Communication number, author and location

Follow‑up response received from State party and location

Satisfactory response

Unsatisfactory response

No follow‑up response received

Follow‑up dialogue ongoing

...

Australia (14)

488/1992, Toonen

A/49/40

X

A/51/40

X

560/1993, A.

A/52/40

X

A/53/40, A/55/40, A/56/40

X

X

802/1998, Rogerson

A/58/40

Finding of a violation was considered sufficient

X

900/1999, C.

A/58/40

X

A/58/40, CCPR/C/80/FU1

A/60/40 (annex V to this report)

X

X

930/2000, Winata et al.

A/56/40

X

CCPR/C/80/FU1 and A/57/40 and A/60/40 (annex V to this report)

X

X

941/2000, Young

A/58/40

X

A/58/40, A/60/40 (annex V to this report)

X

1011/2002, Madaferri

A/59/40

X

A/61/40

X

1014/2001, Baban et al.

A/58/40

X

A/60/40 (annex V to this report)

X

X

1020/2001, Cabal and Pasini

A/58/40

X

A/58/40, CCPR/C/80/FU1

X^a

X

1036/2001, Faure

 A/61/40

X

A/61/40

X

1050/2002, Rafie and Safdel

A/61/40

Not due

1157/2003, Coleman

A/61/40

Not due

1069/2002, Bakhitiyari

A/59/40

X

A/60/40 (annex V to this report)

X

X

1184/2003, Brough

A/61/40

X

X

...

State party

AUSTRALIA

Case

Winata, 930/2000

Views adopted on

26 July 2001

Issues and violations found

Removal from Australia of Indonesian parents of Australia-born child.

Articles 17; 23, paragraph 1; 24, paragraph 1.

Remedy recommended

To refrain from removing the authors from Australia before they have had an opportunity to have their applications for parent visas examined, with due consideration given to the protection required by their child=s status as a minor.

Due date for State party response

12 November 2001

Date of State party=s response

2 September 2004

State party response

The State party advised that the authors remained in Australia and that it was considering how their situation could be resolved within existing Australian immigration laws.  A detailed response would be provided to the Committee as soon as possible.

Author=s response

On 5 September 2005 counsel informed the Committee that no action had been taken by the State Party to implement the Committee=s recommendation.  Mr. Winata and Ms. Li have not been deported but rather remain in limbo.  They are still stateless and have been told that their application is still Ain the queue@.

Case

Madafferi, 1011/2001

Views adopted on

28 July 2004

Issues and violations found

Removal from Australia of Italian father of Australia-born children -Articles 10, paragraph, 1, 17, paragraph 1, in conjunction with articles 23 and 24, paragraph 1 of the Covenant

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective and appropriate remedy, including refraining from removing Mr. Madafferi from Australia before he has had the opportunity to have his spouse visa examined with due consideration given to the protection required by the children=s status as minors.  The State party is under an obligation to avoid similar violations in the future.

Due date for State party response

26 October 2004

Date of State party=s response

June 2006

State party response

As to the violation of article 10, paragraph 1, for the relocation of Mr. Madafferi to an immigration detention centre at risk to his mental health in June 2003, the State party advises that immigration detainees are treated with humanity and with respect for their inherent dignity as human persons.  The Department of Immigration and Multicultural Affairs (ADIMA@) works closely with experienced health professionals to ensure that the health care needs of detainees are appropriately met.  Detainees have access to a wide range of health care services, including psychological/psychiatric services.  The health care needs of each detainee are identified by qualified medical personnel as soon as possible after a person is placed in detention.  The care and welfare of detainees with special needs is a matter of particularly close oversight and management by both departmental and detention service provider staff within immigration detention facilities.  Where necessary, detainees are referred to external advice and/or treatment.

In the present case, the author was transferred to an immigration detention centre for the following reasons:  his flight risk had increased because he had exhausted his domestic avenues for judicial remedy and was facing the imminent prospect of removal from Australia; he had a previous history of avoiding DIMA whilst living in Australia unlawfully for 6 years; and to facilitate the administrative aspects of his removal from Australia.

The state of Mr. Madafferi=s mental health (including as described in medical reports) was carefully weighed against these factors.  However, the Australian Government considered that it was the prospect of removal from Australia, rather than the return to an immigration detention centre for a short period, which was having the greatest impact on Mr. Madafferi=s mental health at this point in time.  Taking all these factors into account, the Australian Government considers that the decision to detain Mr. Madafferi was based on a proper assessment of his circumstances and was proportionate to the ends sought.  Mr. Madafferi=s detention was in accordance with Australian domestic law and flowed directly from his status as an unlawful non-citizen.

The Australian Government wishes to advise the Committee that Mr. Madafferi was granted a spouse (migrant) permanent visa on 3 November 2005.  This allows Mr. Madafferi to remain in Australia on a permanent basis, subject to the conditions of the visa.  The decision to grant Mr. Madafferi a visa has been made in accordance with Australian domestic immigration law.

As to the Committee=s view that the removal of Mr. Madafferi from Australia would constitute arbitrary interference with the family, contrary to article 17 (1), in conjunction with article 23, and article 24 (1) (in relation to the four minor children), the State party reiterates its submissions to the Committee on the admissibility and merits of Mr. Madafferi=s communication with regard to these articles.  It submits, inter alia, that article 17 does not confer on a non-citizen the right to live and raise children in a country in which he resides unlawfully.  Nor is there a legitimate expectation on the part of a person residing unlawfully in a country of continuing to live in that country.  Any removal of Mr. Madafferi would not have interfered with the privacy of the Madafferi family as individuals or their relationships with each other.  Nor would Australia=s actions with regard to Mr. Madafferi have been unlawful or arbitrary.  Any decision to remove Mr. Madafferi from Australia would have been made in accordance with Australian law and would have been solely aimed at ensuring the integrity of Australia=s migration system.

The State party=s obligation to protect the family under article 23 of the Covenant does not mean that Australia is unable to remove an unlawful non-citizen just because that person has established a family with Australian nationals.  Had Mr. Madafferi been removed from Australia, it would have resulted from his conduct in twice over‑staying his Australian entry permit, his dishonesty when dealing with Australian immigration officials and his substantial criminal record.

Finally, the State party does not accept that Mr. Madafferi=s removal would have amounted to a violation of article 24 as it would not have amounted to a failure to provide protection measures that are required by the Madafferi children=s status as minors.  Any long term separation of Mr. Madafferi from the Madafferi children would have occurred as a result of decisions made by the Madafferi family and not as a result of Australia=s actions.

The State party does not accept the Committee=s view that Australia is under an obligation to provide Mr. Madafferi with an effective and appropriate remedy.

Author=s response

By email on 16 June 2006, the author confirmed that he had been granted a permanent residence visa.

Committee=s Decision

While regretting the State party=s refusal to accept its Views, the Committee regards the provision of a permanent residence visa to the author as a satisfactory remedy to the violations found.

Case

Faure, 1036/2001

Views adopted on

31 October 2005

Issues and violations found

Compatibility of AWork for Dole Programme@ with the Covenant B articles 2, paragraphs 3 in conjunction with 8.

Remedy recommended

While in accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy, the Committee is of the view that in the present case its Views on the merits of the claim constitutes sufficient remedy for the violation found.  The State party is under an obligation to ensure that similar violations of the Covenant do not occur in the future.

Due date for State party response

20 February 2006

Date of State party=s response

7 February 2006

State party response

Australia welcomes the HRC finding that there was no violation of article 8 (3) of the ICCPR.  However, regarding the HRC=s view that there was a breach of article 2, the Australian Government does not share the HRC=s interpretation of article 2, and it notices that it is the first occasion on which the HRC has found that there can be a breach of article 2 in the absence of a breach of an article that contains a substantive guarantee.

Australia refers to the HRC=s jurisprudence (Karen Noelia Llantoy Huamán v. Peru, 1153/2003) and says that article 2 is an accessory right which lays down general obligations for States and that it cannot be invoked in isolation from other Covenant rights.  Australia also recalls general comment No. 29, paragraph 14, and says it interprets the statement in line with its ordinary meaning, so that there must be a breach of a right before article 2 may be invoked to require a State to provide an effective remedy.  Australia further adds that academic commentators have agreed with Australia=s interpretation of article 2 (3) and quotes Joseph, Schultz and Castan.

Australia states that its interpretation of article 2 is also in accordance with the HRC=s decisions in GB v. France (348/1989) and SG v. France (347/1988).  It quotes paragraph 3 of the individual opinion of three HRC members in Kall v. Poland (552/1993) in which it is affirmed that the HRC Ahas taken the view so far that [article 2 (3)] cannot be found to have been violated by a State unless a corresponding violation of another right under the Covenant has been determined@.  Australia further recalls that in paragraph 7.9 of

Andrew Rogerson v. Australia (802/1998) the HRC found that Athe provisions of article 2 of the Covenant, which lay down general obligations for States parties, cannot, in isolation, give rise to a claim in a communication under the Optional Protocol@.

Moreover, Australia stresses that in Karen Noelia Llantoy Huamán v. Peru (1153/2003), whose views were adopted the day before the present views, the HRC found a violation of article 2 only in conjunction with a violation of other substantive articles.  Australia finally recalls that in Dimitrov v. Bulgaria (1030/2001), considered in the same sitting, the HRC found that, as the claim under article 14 was inadmissible ratione materiae, the claim under article 2 was unable to be sustained and was also inadmissible.  Australia deems that the conclusion of the HRC in this case - that there has been a breach of article 2 in the absence of a breach of a substantive right which requires a remedy - departs from the HRC=s previous jurisprudence.

Applying the jurisprudence of CF et al v. Canada (113/1981) to the present case, Australia states it should not be obliged to provide a way of challenging the entire legislative structure for the Work of the Dole scheme as a preventive measure, but if there is a violation, there should be an effective remedy after that violation.  Australia affirms that the complainant did have access to many domestic remedies which could provide her with redress.  Australia further claims that the complainant could have sought judicial review of the decision of the Human Rights and Equal Opportunity Commission in the Federal Court or Federal Magistrates Court.Australia then comments on the HRC=s Concluding Observations on Australia=s third and fourth Reports where the HRC was concerned about the absence of a constitutional >bill of rights= in Australia.  Australia notes that there is no requirement for States parties to adopt the Covenant and other international human rights obligations in their entirety into their domestic law.  The Australian Government says it does not support a bill of rights for Australia because the country already has a robust constitutional structure, an extensive framework of legislation protecting human rights and prohibiting discrimination, and an independent human rights institution, the Commission.  The latter mechanism holds the legislative branch and Australian Government accountable against human rights standards and thereby substantively achieves the same outcome in this respect as would legislation that directly implements the Covenant.  Australia adds that human rights are also protected and promoted by Australia=s strong democratic institutions.

For these reasons, the Australian Government cannot accept the HRC=s view that Australia has breached article 2.

Author=s response

In March 2006, the author commented that although the State party purported to accept the Views of the Committee in one paragraph of its response it specifically refused to accept its Views in a subsequent.

Committee=s Decision

The Committee regrets the State party=s refusal to accept the Committee=s Views and considers the dialogue ongoing.

...

Australia (24)

488/1992, Toonen

A/49/40

X

A/51/40

X

560/1993, A.

A/52/40

X

A/53/40, A/55/40, A/56/40

X

X

802/1998, Rogerson

A/58/40

Finding of a violation was considered sufficient

X

900/1999, C.

A/58/40

X

A/58/40, CCPR/C/80/FU1

A/60/40 (annex V to this report) A/62/40

X

930/2000, Winata et al.

A/56/40

X

CCPR/C/80/FU1 and A/57/40 and A/60/40 (annex V to this report)

A/62/40

X

941/2000, Young

A/58/40

X

A/58/40, A/60/40 (annex V to this report)

A/62/40

X

X

1011/2002, Madaferri

A/59/40

X

A/61/40

X

1014/2001, Baban et al.

A/58/40

X

A/60/40 (annex V to this report)

A/62/40

X

X

1020/2001, Cabal and Pasini

A/58/40

X

A/58/40, CCPR/C/80/FU1

X*

X

*  In CCPR/C/80/FU1 the State party=s response is set out.  It submitted that it is unusual for two persons to share cells and that it has asked the Victorian police to take the necessary steps to ensure that a similar situation does not arise again.  It does not accept that the authors are entitled to compensation.  The Committee considered that this case should not be considered any further under the follow‑up procedure.

1036/2001, Faure

 A/61/40

X

A/61/40

X

1050/2002, Rafie and Safdel

A/61/40

X

A/62/40

X

1157/2003, Coleman

A/61/40

X

A/62/40

X

A/62/40

1069/2002, Bakhitiyari

A/59/40

X

A/60/40 (annex V to this report)

A/62/40

X

X

1184/2003, Brough

A/61/40

X

A/62/40

X

X

A/62/40

1255, 1256, 1259, 1260, 1266, 1268, 1270 and 1288/2004, Shams, Atvan, Shahrooei, Saadat, Ramezani, Boostani, Behrooz and Sefed

A/62/40

Not yet due

1324/2004, Shafiq

A/62/40

X

A/62/0

X

A/62/40

1347/2005, Dudko

A/62/40

Not yet due

...

...

State party

AUSTRALIA

Case

C., 900/1999

Views adopted on

28 October 2002

Issues and violations found

Immigration detention of refugee applicant with psychiatric problems - Articles 7, and 9, paragraphs 1 and 4.

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. As to the violations of articles 7 and 9 suffered by the author during the first period of detention, the State party should pay the author appropriate compensation. As to the proposed deportation of the author, the State party should refrain from deporting the author to Iran. The State party is under an obligation to avoid similar violations in the future.

Due date for State party response

6 February 2003

Date of reply

16 March 2007 (The State party had previously responded on 10 February 2003, 28 September 2004 and 16 August 2006)

State party response

The Committee will recall that, as set out in Annual Reports A/58/40 and A/60/40, the State party had previously advised the Committee that the author had been released from the Maribyrnong Immigration Detention Centre into home detention. He was living in a private home in Melbourne, and was free to move about within the Australian community provided he was in the presence of one of his nominated relatives.

On 16 August 2006, the State party confirmed that the author was not currently held in immigration detention. It contested that it had violated any of the author=s rights, reiterated its arguments provided prior to consideration of the communication and provided further information. As to the violation of article 7 with respect to his detention, it referred to the jurisprudence of the ECHR for the proposition that the detention of a mentally ill person for criminal offences did not amount to a breach of article 3 (equivalent to article 7 of the Covenant). It claimed that in finding such a breach, the Committee has placed an obligation on States to release detainees who suffer from mental illness per se in order to comply with article 7, without regard for the circumstances and conditions of each complainant=s detention. The Committee does not give any guidance as to how the complainant suffered cruel, inhuman or degrading treatment and does not make clear at which point the complainant=s treatment became cruel, inhuman or degrading.

As to the violation of article 7 with respect to his deportation, the State party submitted that the situation in Iran for Assyrian Christians has improved greatly in recent years, such that there is no longer a Areal risk@ that the complainant will be exposed to a violation of his rights under the Covenant. It referred to one case of the ECHR in which the Court found in favour of the applicant, but only on the bases of the absence of adequate medical facilities in St. Kitts and the fact that he was in an advanced stage of his illness and removal would have precipitated his death. It also submitted that although the drug Clozaril is still not readily available in Iran another equivalent drug AClozapine@ is locally available. Thus, there was no basis for the finding of a violation of article 7 if the author were to be deported. It also stated that there is currently no plan to remove the author but if the situation changes the State party will inform the Committee.

On the violation of article 9, paragraph 1, while the State party denied that the author=s detention violated this provision, it submitted that in June 2005, the government announced a number of changes to both the law and the handling of matters relating to people in immigration detention, including that: alternative arrangements rather than tradition detention would be made for the detention of unlawful non-citizen families; all decisions on primary protection visas would occur within three months; all reviews by the Refugee Review Tribunal will occur within three months, regular reporting to Parliament on cases exceeding the time limit; the situation of persons detained for two years or more will be reported upon to the Ombudsman every six months for assessment; the Minister of Immigration and Multicultural Affairs has an additional non-compellable powers to grant visas to persons in detention and to specify alternative arrangements for a person=s detention and conditions to apply; and the Migration Regulations 1994 create a new bridging visa to enable the release of persons in immigration detention into the community whose removal from Australia is not reasonably practicable at the current time. However, the State party maintained its argument that the provisions under which the author was detained were found to be legally valid by the High Court in several decisions, including recent decisions.

The State party submitted that the author had access to judicial review of the lawfulness of his detention at all times, thus satisfying article 9 (4). In its view, this provision does not require that the merits of that detention must be open to review by the court. It aligned itself with the individual opinion of Sir Nigel Rodley. In conclusion, for the reasons expressed above, the State party did not accept that it should pay the complainant compensation.

On 16 March 2007, and in response to a query from the Rapporteur on the status of his detention, the State party clarified that the author has been the holder of a permanent Protection Visa Class 866, since 15 March 1995 and was released from home detention on 10 May 2005.

Author=s response

On 19 October 2004, the author responded to the State party=s submission of September 2004, confirming that he was in Ahome detention@ but that his movements were restricted as described by the State party. He stated that as the deportation order had not been revoked, he was still at risk of deportation, and no compensation had been paid for his unlawful detention.

Committee=s Decision

While welcoming the author=s release from detention, the Committee regrets the State party=s refusal to accept the Committee=s Views and considers the dialogue ongoing.

Case

Winata, 930/2000

Views adopted on

26 July 2001

Issues and violations found

Removal from Australia of Indonesian parents of Australia-born child - Articles 17; 23, paragraph 1; and 24, paragraph 1.

Remedy recommended

To refrain from removing the authors from Australia before they have had an opportunity to have their applications for parent visas examined, with due consideration given to the protection required by their child=s status as a minor.

Due date for State party response

12 November 2001

Date of reply

28 July 2006

State party response

The State party contests that it has violated any of the articles of the Covenant with respect to this case and relies on the individual opinions therein. It reiterates its arguments made on the merits. On the violation of article 17, it does not accept that it should refrain from enforcing its migration laws in cases where unlawful non-citizens are said to have established a family life. It refers to other Views of the Committee in which it failed to find violations of article 17 in removal cases where the authors had existing families in the removing State. It cites  jurisprudence of the ECHR, which has found inter alia that article 8 (equivalent to article 17) does not recognize a right to choose the most suitable place to develop family life and may not choose the place of residence for their family simply by unlawfully remaining in the country in which it wishes to raise its family.

As to the violation of article 23, the State party submits that this provision does not regulate the details of how the family is specifically to be protected. This provision must be read against the background of the acknowledged right of Australia, under international law, to control the entry, residence and expulsion of aliens. If Mr. Winata and Ms. Li are required to leave Australia, the Government will not prevent their son from leaving with them or travelling to Indonesia to visit them.

Although Barry Winata is no longer a minor, having reached his 18th birthday on 2 June 2006, the State party submits that before he turned 18 he was afforded the same measures of protection as other children in Australia. There is nothing to suggest that he would not eventually adjust to the changes involved in any move to Indonesia. The State party informs the Committee that Mr. Winata and Ms. Li are currently living unlawfully in the State party. They are the subject of an outstanding request under article 417 of the Migration Act 1958 for the Minister of Immigration to use her discretionary power to allow them to remain in Australia. This request will not however be processed until they are located. In the meantime, there are no plans to remove them from Australia and the State party will inform the Committee if this situation changes.

Case

Coleman, 1157/2003

Views adopted on

17 July 2006

Issues and violations found

Freedom of expression - Article 19, paragraph 2.

Remedy recommended

An effective remedy, including quashing of his conviction, restitution of any fine paid by the author pursuant to his conviction, as well as restitution of court expenses paid by him, and compensation for the detention suffered as a result of the violation of his Covenant right.

Due date for State party response

2 November 2006

Date of reply

5 February 2007

State party response

The State party does not accept the Committee=s view that the reaction to the author=s conduct amounted to a breach of article 19 (2) of the Covenant. It reiterates its submission that section 8 (2) (e) of Townsville City Council Local Law No. 39 (Athe Council By-Law@) is a restriction on freedom of expression which is provided by law and necessary for the protection of public order and therefore permitted by article 19 (3) (b) of the Covenant. It agrees with the statement contained in the concurring individual opinions of Committee members Mr. Nisuke Ando, Mr. Michael O=Flaherty and Mr. Walter Kälin that it is wholly consistent with the Covenant to have in place a permit system to strike appropriate balances between freedom of expression and countervailing interests.

Such a permit system is designed to balance the rights of individuals to exercise their freedom of expression and the legitimate countervailing interests of the community generally, and in particular other users of the pedestrian mall, including the public in having a shopping environment which is free from undue noise or interference, the traders and shop owners in ensuring that potential customers have access to their shops and a pleasant environment in the mall is maintained, other individuals or groups who may wish to legitimately use the public space for other activities; or other individuals who may also wish to exercise their freedom of expression.

The State party acknowledges that the mere existence of some permit systems which are of extremely broad application may amount to an unacceptable restriction on freedom of expression. By contrast, the Council By-Law only requires a permit in a relatively small public area and leaves other areas of the city available for public speeches. The Council By-Law also allows a political speech such as the one given by the author to be given within the pedestrian mall without a permit, provided the speech is given from a booth set up for political purposes. It refers to the Committee=s jurisprudence for the preposition that the right to freedom of expression does not guarantee an unfettered right to use a particular premises or area.¹  The critical issue is whether the application of the permit system by the authorities to the particular circumstances of the author=s case was permissible under article 19 (3). The author declined to seek a permit and therefore did not afford the authorities the opportunity to grant or deny a permit. In fact, in proceedings in the District Court of Queensland, where the District Court dismissed an appeal by the author against his conviction against the Council By-Law, as well as in correspondence with various authorities concerning the conviction, the author maintained that he did not or should not be required to obtain a permit. The author had previously engaged in activities in the mall as part of his Afree speech@ campaign, which were seen by the Council (and allegedly by members of the general public) as disruptive and detracting from the enjoyment of the mall by the general public, particularly during the mall=s busiest days, such as days on which the ACotters Market@ were held. The Council had, as a result of Mr. Coleman=s campaign, agreed to introduce a designated podium to allow persons to give addresses.

The address giving rise to the author=s complaint was given on 20 December 1998, a day when the ACotters Market@ was taking place at the pedestrian mall. The Council has indicated that AMr. Coleman would be likely to receive a permit if he applied for one for a day other than a Cotters Market day, and that Council would be likely to arrange for an alternative venue to the Flinders Mall if Mr. Coleman remained committed to making the address on a Cotters Market day@.

The State party also notes that the detention of the author which eventually resulted from the offence was not merely a result of the author giving a public address without a permit, but was a result of the author=s refusal to pay the fine imposed for this offence by the Queensland Magistrate=s Court. In the author=s conviction in the Queensland Magistrate=s Court, the prosecution submitted that a fine should be imposed due to the contempt with which the author treated the Magistrate=s Court proceedings. Nevertheless the Magistrate canvassed a number of alternative sentencing options permitted under Queensland law including probation orders or community service orders. These alternative options were refused by the author, apparently based on his belief that he should be entitled to give public addresses in the mall without requiring a permit. The author had also refused offers from other people to pay the fine on his behalf. His failure to pay resulted in his arrest, during which he also resisted arrest and was charged with obstructing a police officer. The decision to imprison him appears to be influenced by his repeated history of breaching the Council By-Law both before and after the occasion in question, and his persistent refusal to accept the legitimacy of any sanctions for his disregard of the Council By-Law.

The State party submits that consideration should be given to the overall circumstances of the case. Based on these circumstances the Australian Government believes that the treatment of the author was not disproportionate and does not accept the view that he is entitled to any remedy.

Committee=s Decision

The Committee regrets the State party=s refusal to accept the Committee=s Views and considers the dialogue ongoing.

Case

Brough, 1184/2003

Views adopted on

17 March 2006

Issues and violations found

Detention of a juvenile aborigine - Articles 10 and 24, paragraph 1.

Remedy recommended

Effective remedy, including adequate compensation.

Due date for State party response

6 July 2006

Date of reply

15 February 2007

State party response

The State party maintains its view that the communication is inadmissible and does not accept the Committee=s view that it violated any of the author=s rights. It submits that the Committee did not give due weight to the fact that the author was involved in a serious incident at the Kariong Juvenile Detention Centre, which indicated significant risk implications for the safety of the author himself and his fellow inmates during his time at the Parklea Correctional Centre. The Committee failed to note that the author was not transferred directly from Kariong Juvenile Detention Centre to Parklea Correctional Centre. As submitted in its response to the Committee, he spent 10 days at the Metropolitan Remand and Reception Centre (MRRC) before he was transferred to Parklea Correctional Centre. He was received by this Centre as a result of behaviour in the juvenile system that could not be safely managed in that environment. During these 10 days he was assessed and staff prepared a management plan which identified his risks and needs and ways in which they could be addressed. His experiences at Parklea cannot be considered in isolation from the behaviour that preceded his placement there. His self-harming behaviour was exhibited before this introduction into this facility and should be understood as a manifestation of his complex and challenging personality, rather than an outcome of his treatment. His behaviour while in custody represented the continuation of a long-term pattern, which began in 1994 at the age of 12 and which the staff at Parklea were attempting to manage. The Committee did not advance that the author had seen a psychologist on several occasions while in his safe cell. Further details of his treatment could not be provided, as the author refused to consent to the release of medical records.

The State party sets out a number of changes introduced since 1999 designed to enhance the management of offenders with complex needs. Risk intervention protocols have been revised to ensure a greater emphasis on interaction with those inmates who have been identified as being at risk of self-harm or suicide. This includes a Reception Assessment for new inmates to identify Aat risk@ inmates and necessary arrangements for their safety. A Mental Health Screening Unit was opened in early 2006 at the main male adult reception gaol at Silverwater. This unit forms part of the second tier integrated system that allows for the identification of and intervention for persons with a mental illness entering a correctional facility. Another screening unit for women is nearing completion at the Maulawa Correctional Centre.

There have been improvements at the Parklea Correctional Centre where inmates have access to specialised mental health staff who work closely with the Department of Corrective Services staff at MRRC at the Silverwater Correctional Centre to ensure persons with a mental illness are managed appropriately. There have also been improvements in the range of psychotropic medications available to treat mentally-ill patients.

The Department of Corrective Services now has responsibility for the management of Kariong Juvenile Correctional Centre, so that the management of juvenile inmates in this centre is now based on the same system of case management as within adult correctional centres. This means that it is less likely to be necessary to transfer an offender under the age of 18 to an adult prison for management.

The New South Wales Government has developed a plan to address the needs of Aboriginal people, which includes initiatives relating to justice, education and health. This initiative will implement programs focussing on early intervention, diversion and breaking the cycle family violence to reduce the over-representation of Aboriginal people in the criminal justice system.

Author=s response

On 30 April 2007, the author responded to the State party=s submission. He regrets the State party=s response noting that it failed to address the substance of the complaint made by him. It focused on the programmes undertaken by him since 2005 but not on the substantive issues raised in the communication. It failed also to address his transfer to adult correctional facilities and his treatment whilst at an adult correctional facility in breach of articles 10 and 24.

(This information was added after the consideration of the report for the purposes of inclusion in the annual report.)

Case

Shafiq, 1324/2004

Views adopted on

31 October 2006

Issues and violations found

Mandatory immigration detention and no right to review - Article 9, paragraphs 1 and 4.

Remedy recommended

An effective remedy, including release and appropriate compensation.

Due date for State party response

6 February 2007

Date of reply

25 May 2007

State party response

The State party states that on 21 March 2007, the Minister for Immigration and Citizenship granted the author a Removal Pending Bridging Visa (RPBV) and he was released from detention. The RPBV was introduced by the Australian Government in May 2005. It provides for the release from detention, pending removal from Australia, of persons in immigration detention whose removal is not reasonably practicable at the time. A RPBV may be granted using the non-delegable power of the Minister for Immigration to grant a visa to a person in immigration detention if the Minister thinks it is in the public interest to do so. This power is provided for in section 195A of the Migration Act 1958 (Migration Act).

As a RPBV holder, the author is entitled to a range of social support benefits: work rights and job matching through Centrelink; access to certain Centrelink benefits, such as Special Benefit and Rent Assistance; access to Medicare benefits; access to the Early Health Assessment and Intervention services; eligibility for torture and trauma counseling. Since the grant of the RPBV, Mr. Shafiq is no longer in any form of immigration detention. He remains voluntarily in the suburb of Glenside in Adelaide and attends the Royal Adelaide Hospital Psychiatric Campus in that suburb where he is being treated for a mental illness.

The State party contests that it has violated article 9 (4), as in its view the obligation on State parties is to provide for review of the lawfulness of detention. There can be no doubt that the term Alawfulness@ refers to the Australian domestic legal system. There is nothing apparent in the terms of the Covenant that Alawful@ was intended to mean Alawful at international law@ or Anot arbitrary@. The author had the opportunity, as a person in immigration detention in Australia, to take proceedings before the High Court of Australia to determine the legality of the decision to detain him under the Migration Act. He could have sought to invoke the original jurisdiction of the High Court under section 75 of the Australian Constitution to obtain a writ of mandamus or other appropriate remedy to enable him to be released from detention. He could have also sought this remedy in the Federal Magistrates Court pursuant to section 476 of the Migration Act. Finally, he could have also sought the remedy of habeas corpus in the High Court or the Federal Court.

In light of the above, the State party does not accept that the author is entitled to be paid compensation pursuant to article 2 (3) (a).

Committee=s Decision

While welcoming the author=s release from detention, the Committee regrets the State party=s refusal to accept the Committee=s Views, notes that no compensation has been provided, and considers the dialogue ongoing.

...

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State party

AUSTRALIA

Case

Winata, 930/2000

Views adopted on

26 July 2001

Issues and violations found

Removal of the authors from the country constituted arbitrary interference with family life. Articles 17, 23, paragraph 1, 24, paragraph 1.

Remedy recommended

Effective remedy, including refraining from removing the authors from Australia before they have had an opportunity to have their application for parent visas examined, with due consideration given to the protection required by Barry Winata=s status as a minor.

Due date for State party response

October 2001

Date of reply

Several responses provided from December 2001; last one dated 15 October 2007

State party response

Mr. Winata and Ms. Li are in contact with the Department of Immigration and Citizenship of the Australian Government and are currently residing lawfully in the community on Bridging E visas. Barry Winata, their son now aged 19, is an Australian citizen. Further dialogue on the matter Ais not considered to be fruitful@ by the State party.

Author=s comments

Not yet received.

Committee=s Decision

The Committee considers that no further dialogue is necessary on this case and decided that this case should not be considered any further under the follow‑up procedure.

Case

Young, 941/2000

Views adopted on

6 August 2003

Issues and violations found

Discrimination on grounds of sexual orientation in provision of social security benefits, article 26.

Remedy recommended

Effective remedy, including the reconsideration of his pension application without discrimination based on his sex or sexual orientation, if necessary through an amendment of the law.

Due date for State party response

1 December 2003

Date of reply

October 2006 and 15 October 2007

State party response

The State party recalls its previous refusal to accept the Committee=s findings and recommendations. It states that Afurther dialogue on this matter would not be fruitful and declines the offer to provide more information@.

Author=s comments

Not yet received.

Committee=s Decision

The Committee regrets the State party=s refusal to accept the Views and recommendations. It considers the dialogue ongoing.

Case

Shafiq, 1324/2004

Views adopted on

31 October 2006

Issues and violations found

Arbitrariness of mandatory immigration detention for a period of over seven years; denial of right to have his detention reviewed by a court. Article 9, paragraphs 1 and 4.

Remedy recommended

Effective remedy, including release and appropriate compensation.

Due date for State party response

February 2007

Date of reply

25 May 2007, 15 October 2007

State party response

During the ninetieth session the Committee decided: Awhile welcoming the author=s release from detention, the Committee regrets the State party=s refusal to accept the Views, notes that no compensation has been provided, and considers the dialogue ongoing@.

In October 2007, the State party reported that Mr. Shafiq=s visa status remained unchanged since the information provided earlier, i.e. he remains in the community on a Removal pending bridging visa. AFurther dialogue on the matter will not be fruitful@, according to the State party.

Author=s comments

Not yet received.

Committee=s Decision

The Committee regrets the State party=s refusal to accept the Views. It considers the dialogue ongoing.

Case

Dudko, 1347/2005

Views adopted on

23 July 2007

Issues and violations found

Absence of unrepresented defendant during appeal ‑ article 14, paragraph 1.

Remedy recommended

Effective remedy.

Due date for State party response

13 November 2007

Date of reply

27 May 2008

State party response

On 27 May 2008, the State party informed the Committee of new rules of court adopted by the High Court in 2004, which took effect from 1 January 2005. In recognition of the nature of special leave applications, these rules give primary emphasis to written arguments. If an applicant for special leave to appeal is not represented by a legal practitioner that applicant must present his or her argument to the Court in the form of a draft notice of appeal and written case. These documents are considered by two justices who decide either that the papers should be served on the respondent or that the application should be dismissed without calling on the respondent to answer. Any application for special leave that has been served on the respondent (whether represented by a lawyer or not) may be decided without listing the application for hearing. Most applications for special leave are now decided by the Court without oral hearing. If the application reveals that the Court may be assisted by oral argument, the application will be listed for hearing. In that event, if one of the parties is not represented by counsel, the Court will generally seek to arrange for counsel to appear for the party concerned without charging a fee. According to the State party, these changes reduce the likelihood of a situation such as the author=s arising again. The State party also reaffirms that the outcome of the author=s case was not affected by her absence or the absence of counsel appearing on her behalf.

Author=s response

None

Committee=s Decision

The Committee considers the dialogue ongoing.

Case

D. & E., 1050/2002

Views adopted on

11 July 2006

Issues and violations found

Arbitrary detention of asylum‑seekers, including children ‑ article 9, paragraph 1.

Remedy recommended

An effective remedy, including appropriate compensation.

Due date for State party response

Date of reply

July 2007

State party response

The State party informed the Committee that it does not accept its view that there has been a violation of article 9, paragraph 1 of the Covenant and reiterates its submission that the detention was reasonable and necessary. It does not accept the Committee=s view that it should pay compensation to the authors. It reiterates its arguments provided on the merits as well as recent decisions of the High Court, which upheld the validity of sections 189, 196 and 198 of the Migration Act. The authors were granted Bridging visas E (subclass 051) in January 2004. They were released from detention on 22 January 2004, as they satisfied one of the criteria under regulation 2.20 of the Migration Regulations 1994. They were granted Global Special Humanitarian visas as a result of Ministerial intervention on 13 March 2006. The State party informs the Committee of subsequent changes to its Migration Amendment (Detention Arrangement) Act 2005, which amended the Migration Act 1958 with effect from 29 June 2005. (See the State party=s response to Saed Shams, Kooresh Atvan, Shahin Shahrooei, Payam Saadat, Behrouz Ramezani, Behzad Boostani, Meharn Behrooz, and Amin Houvedar Sefed, 1255/2004, 1256/2004, 1259/2004, 1260/2004, 1266/2004, 1268/2004, 1270/2004, 1288/2004, below for details.)

Author=s response

None

Case

Saed Shams, Kooresh Atvan, Shahin Shahrooei, Payam Saadat, Behrouz Ramezani, Behzad Boostani, Meharn Behrooz, and Amin Houvedar Sefed, 1255/2004, 1256/2004, 1259/2004, 1260/2004, 1266/2004, 1268/2004, 1270/2004, 1288/2004

Views adopted on

20 July 2007

Issues and violations found

Arbitrary detention and review of lawfulness ‑ article 9, paragraphs 1 and 4, and article 2, paragraph 3.

Remedy recommended

An effective remedy should include adequate compensation for the length of the detention to which each of the authors was subjected.

Due date for State party response

11 December 2007

Date of reply

25 June 2008

State party response

The State party informs the Committee that Messrs. Atvan, Behrooz, Boostani, Ramezani, Saadat, and Shams have been granted permanent Protection visas, which allow them to remain in Australia indefinitely. As noted in the Committee=s views, Mr Shahrooei and Mr Sefed had been granted permanent Protection visas before the Committee adopted its views. Mr Houvedar Sefed was granted Australian citizenship on 10 October 2007. As to the violation of article 9, paragraph 1, the State party acknowledges its obligation under the Covenant not to subject any person to arbitrary detention, and further acknowledges that there are some circumstances in which the lawful and permissible detention of a person may become arbitrary if there are no longer any grounds to justify it. The State party will retain the system of mandatory detention (along with tough anti‑people smuggling measures) to ensure the orderly processing of migration to the country. However, it is committed to reviewing the conditions, period and forms of managing detention. In 2005 the State party=s Government announced a number of changes to both the law and the handling of matters relating to people in immigration detention and the processing of Protection visa applications. These changes include:

(1)  That where detention of an unlawful non‑citizen family (with children) is required under the Migration Act 1958 (Migration Act), detention should be under alternative arrangements (that is, in the community under residence determination arrangements [now known as community detention] at a specified place in accordance with conditions that address their individual circumstances), where and as soon as possible, rather than under traditional detention; (2) All primary Protection visa applications are to be decided by the Department of Immigration and Citizenship (DIAC) within 90 days of application lodgement; (3) All reviews by the Refugee Review Tribunal are to be finalized within 90 days of the date the Tribunal receives the relevant files from DIAC; (4) Regular reporting to Parliament on cases exceeding these time limits is required; (5) Where a person has been in detention for two years or more there will automatically be a requirement that every six months a report on that person be furnished by DIAC to the Commonwealth Ombudsman. The Ombudsman=s assessment of each report, including recommendations on whether the person should be released from detention, will be tabled in Parliament; (6) The provision in the Migration Act of an additional non‑compellable power for the Minister for Immigration and Citizenship to specify alternative arrangements for a person=s detention and conditions to apply to that person and to act personally, to grant a visa to a person in detention; and the amendment of the Migration Regulations 1994 to create a new bridging visa to enable the release of persons in immigration detention into the community whose removal from Australia is not reasonably practicable at the current time. A Removal pending bridging visa may be granted using the Minister for Immigration and Citizenship=s non‑delegable, non‑compellable public interest power to grant a visa to a person in immigration detention. These legislative changes necessary to give effect to the reforms were contained in the Migration Amendment (Detention Arrangements) Act 2005 and the Migration and Ombudsman Legislation Amendment Act 2005. The State party has also introduced Detention Review Managers (DRMs), who independently review the initial decision to detain a person and continue to review the cases of people in immigration detention on an ongoing basis to ensure their detention remains lawful and reasonable. Since its election on 24 November 2007, the State party has ended the APacific Strategy@, under which unauthorized boat arrivals who raised protection claims were assessed at offshore processing centres in Nauru and Manus Province, Papua New Guinea. In February 2008, the last asylum‑seekers to be processed in an offshore centre were granted humanitarian visas and resettled in Australia. All future unauthorized boat arrivals who raise refugee claims will be taken to Christmas Island, an Australian territory, where their claims will be processed under existing refugee status assessment arrangements. The Minister for Immigration and Citizenship has completed a review of the cases of persons who have been in immigration detention for more than two years. The review, conducted personally by the Minister, sought to apply a range of measures to progress, if not resolve, the immigration status of these detainees. A number were granted visas as a result of the review, enabling their release from immigration detention. Others were removed from immigration detention centres and placed in community detention. The Minister=s review was underpinned by the principle that indefinite detention is not acceptable. This demonstrates the State party=s commitment to promptly resolve the immigration status of all persons. The State party will only detain persons in immigration detention centres as a last resort and will only do so for the shortest practicable time.

As to the violation of article 9 (4), the State party argues that there can be no doubt that the term Alawfulness@ refers to the Australian domestic legal system, and was not intended to mean Alawful at international law@ or Anot arbitrary@. It does not accept it owes the authors compensation under article 2 (3).

Author=s response

The State party=s submission was sent to the authors on 27 June 2008, with a deadline of two months for comments.

Committee=s Decision

The Committee considers the dialogue ongoing.

...