Australia has agreed, by ratifying Optional Protocols, that individuals can make direct complaints (called ‘communications’) about the Australian Government to the United Nations.
Communications can be made regarding breaches of the human rights standards contained in the following treaties:
- International Covenant on Civil and Political Rights (ICCPR)
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
- Convention on the Elimination of All Forms of Racial Discrimination (CERD)
- Convention on the Elimination of All Forms of Discrimination Against Women
- Convention on the Rights of Persons with Disabilities.
In mid-2013, there were 26 communications pending with the Human Rights Committee alleging breaches by Australia of the ICCPR; seven communications pending with the Committee against Torture; and one communication pending with both the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of Persons with Disabilities.
In 1991, Nicholas Toonen complained to the Human Rights Committee that Tasmania’s prohibition of male homosexuality meant that Australia was in violation of the right to privacy guaranteed under Article 17 of the International Convention on Civil and Political Rights (ICCPR). In 1994 the HRC said that in its view the communication established a violation of Article 17. In accordance with its obligations under the ICCPR, the Australian Government acted to address the violation. It introduced Federal legislation to override the Tasmanian law. Before the constitutional validity of the Federal law was tested, Tasmania amended its own law and repealed the offending provision.
In 1993, Mr A, a Cambodian asylum seeker, complained to the HRC that his lengthy detention was in breach of Article 9 of the ICCPR. In 1997 the HRC said that in its view the communication established a violation of Article 9: unwarranted detention and no means of challenging it. On this occasion the Australian Government rejected the Committee’s view, saying it disagreed with its legal basis. An explicit rejection by a party to the ICCPR, rather than a mere failure to act on the Committee’s view, is extremely rare. In its subsequent concluding observations on Australia’s periodic report under the ICCPR, the Committee expressed its concern at Australia’s response.
In November 1998 Mr Elmi complained to the Committee Against Torture. He had been kept in an Australian detention centre since arriving in Australia from Somalia in October 1997, seeking asylum. He was unsuccessful in his application for asylum, and took the claim, ultimately, to the High Court. Mr Elmi complained that his forced return to Somalia by Australia would be a violation of Article 3 of the Convention Against Torture: not to expel or return (refouler – French for ‘turn back’) a person if it is likely they will be subjected to torture. In May 1999 the CAT Committee published its view that Mr Elmi’s expulsion would constitute a violation by Australia of article 3. The Australian Government allowed Mr Elmi the opportunity to pursue his claim over again, from the beginning. Rather than remain in detention for a further unknown period, with an unknown future, Mr Elmi left voluntarily to a different country.
In August 2003, Mr Young was successful in his communication to the Human Rights Committee alleging discrimination on the basis of sexual orientation against the Australian Government, in violation of the ICCPR. Mr Young was in a same-sex relationship with a veteran. Due to his sexual orientation, upon his partner’s death, Mr Young was denied a pension benefit. The Human Rights Committee found that the denial of the pension violated Mr Young’s right to equal treatment before the law and was contrary to Article 26 of the ICCPR. The former Howard Government refused to amend the relevant legislation. In 2006, the Commonwealth Human Rights & Equal Opportunity Commission (now the Australian Human Rights Commission) conducted a review of the Commonwealth laws that discriminate against same-sex couples and their children. It identified at least 58 instances of discrimination. The Rudd Government was elected on a platform of removing those discriminatory laws, and announced measures to amend the discriminatory laws identified by HREOC (now known as the ‘Australian Human Rights Commission’) in addition to over 40 further instances identified by the Government. Amendments to relevant legislation were passed into law in mid-2009.
In March 2006, Mr Corey Brough was successful in his communication to the Human Rights Committee. Mr Brough was an Indigenous youth who was an inmate at a juvenile justice centre. He participated in a riot and was transferred to an adult correctional centre where he was held for prolonged periods, alone, in a so-called ‘safe cell’. The Committee said that Mr Brough’s ‘extended confinement to an isolated cell without any possibility of communication, combined with his exposure to artificial light for prolonged periods and the removal of his clothes and blanket, was not commensurate with his status as a juvenile person in a particularly vulnerable position because of his disability and his status as an Aboriginal’. The Committee found a breach of Articles 10 and 24 of the ICCPR, and emphasised Mr Brough’s right to an effective remedy. No such remedy was granted by either the NSW or the Australian Governments.
Australia has been found repeatedly to be in breach of the prohibition against arbitrary detention by virtue of the policy of mandatory detention of people who enter Australia irregularly, often to seek asylum from persecution. In July 2007, a joint communication by eight Iranian asylum seekers who had been held in immigration detention for up to four years was upheld by the Committee as a breach of the prohibition against arbitrary detention (Article 9(1), ICCPR) (Shams et al v Australia(2007)). A number of the current communications before the Human Rights Committee are based on similar fact scenarios, that is, ongoing detention in Australian immigration detention facilities.