Gap Not Closing Case Study

Another example of the “gap” not closing anytime soon is a case where Australia did not comply and enforce a UN decision. “A” is a Cambodian male, born in 1934. He arrived by boat to Australia in 1989 with his Vietnamese wife and their children, it was the same year the Australian Government proclaimed people fleeing post-genocidal violence in Cambodia to be “economic refugees”. The family was detained in immigration detention for more than four years. The family had no communication with a lawyer for almost a year and, through movement between detention centres in different Australian states, the family lost contact with the legal support they did acquire. 1992 was when the family joined with other Cambodian detainees to challenge in the Federal Court of Australia the Migration Amendment Act 1992 which impeded their release from detention. In “direct response”, the Australian Government rushed through further amendments to the Migration Act 1958, consolidating mandatory detention in law and confining “compensation for

unlawful detention to the symbolic sum of one dollar per day”. The Cambodian detainees group failed in a constitutional challenge to the amendments. With the eventual success of “A’s” wife’s refugee claim, the family was released on temporary visas in January 1994, long before the Human Rights Committee formed its final views of the situation. In this decision the Human Rights Committee found that Australia’s system of ‘indefinite and prolonged’ mandatory detention constitutes arbitrary detention in violation of article 9(1) of the International Covenant of Civil and Political Rights (ICCPR), regardless of its lawfulness domestically.
Therefore, the inability of the family to have their detention reviewed by a court violated article 9(4).

The Human Rights Committee said that domestic review of the lawfulness of detention ought to include deliberation of Australia’s obligations under the International Covenant of Civil and Political Rights. The Human Rights Council found an added breach of article 2(3), despite this breach not being affirmed explicitly by “A”. Australia rejected the Human Rights Committee’s interpretation of the Covenant and declined to compensate the “A” family. The Human Rights Council has deemed this response from the State Party unsatisfactory. Both France and Australia have ignored the decisions of the UN treaty bodies. These cases both counter the argument of Harrington that the UN treaty body complaints mechanism is “closing the gap”. There is still a long way to achieve that because there is no consequence for a state to not enforce a UN

decision.

The UN Human Rights Treaty Complaints are an extremely accommodating system for individuals to lodge their complains to. Third parties on behalf of individuals may also bring complaints provided the individual has given their written consent. In specific cases, a third party may bring a case without consent, an example of this case would be where a person is in prison without access to the outside world or is a victim of an enforced disappearance. In such cases, the author of the complaint should state clearly why such consent couldn’t be provided.
Allowing third parties on behalf of an individual bringing a complaint to the UN treaty bodies is a benefit of the whole UN Human Rights Treaty Complaints system because it is permitting individuals who may not be able to complain because of different circumstances can still be heard to the UN and the specific treaty body. It is also a benefit that in some cases the individual does not need to give written consent because that means that if the individual cannot complain for security or alternative reasons, their complaint will still be filed to be heard at the UN. This gives equal opportunity to all people around the world because third parties and individuals may complain with and without consent so it is not just limited to the individuals that can complain themselves.