power of the courts to review the lawfulness of
detention and order release of the detention was
found unlawful, was taken away by Section 54R of
the Migration Amendment Act. If the detained
person was a ‘designated person’ the courts had no
power to review the continued detention of such
person and order his/her release. The only judicial
review available in such a case was limited to a
determination of the fact whether the detained
person was a ‘designated person’ and if he was, the
court could not proceed further to review the
lawfulness of his detention and order his/her
release. The author in the present case, being
admittedly a ‘designated person’, was barred by
Section 54R of the Migration Amendment Act
from challenging the lawfulness of his continued
detention and seeking his release by the courts.”
That A. was moved repeatedly between detention
centres and was obliged to change his legal
representatives cannot detract from the fact that he
retained access to legal advisers; that this access was
inconvenient, notably because of the remote location
of Port Hedland, does not, in the Committee's
opinion, raise an issue under article 9, paragraph 4.
9.7 In the circumstances of the case and given the
above findings, the Committee need not consider
whether an issue under article 14, paragraph 1, of the
Covenant arises.
10. The Human Rights Committee, acting under
article 5, paragraph 4, of the Optional Protocol to the
Covenant, concludes that the facts as found by the
Committee reveal a breach by Australia of article 9,
paragraphs 1 and 4, and article 2, paragraph 3, of the
Covenant.
But it was argued on behalf of the State that all that
article 9, paragraph 4, of the Covenant requires is that the
person detained must have the right and opportunity to
take proceedings before a court for review of lawfulness
of his/her detention and lawfulness must be limited merely
to compliance of the detention with domestic law. The
only inquiry which the detained person should be entitled
to ask the court to make under article 9, paragraph 4, is
whether the detention is in accordance with domestic law,
whatever the domestic law may be. But this would be
placing too narrow an interpretation on the language of
article 9, paragraph 4, which embodies a human right. It
would not be right to adopt an interpretation which will
attenuate a human right. It must be interpreted broadly and
expansively. The interpretation contended for by the State
will make it possible for the State to pass a domestic law
virtually negating the right under article 9, paragraph 4,
and making non-sense of it. The State could, in that event,
pass a domestic law validating a particular category of
detentions and a detained person falling within that
category would be effectively deprived of his/her right
under article 9, paragraph 4. I would therefore place a
broad interpretation on the word “lawful” which would
carry out the object and purpose of the Covenant and in
my view, article 9, paragraph 4, requires that the court be
empowered to order release “if the detention is not
lawful”, that is, the detention is arbitrary or incompatible
with the requirement of article 9, paragraph 1, or with
other provisions of the Covenant. It is no doubt true that
the drafters of the Covenant have used the word
“arbitrary” along with “unlawful” in article 17 while the
word “arbitrary” is absent in article 9, paragraph 4. But it
is elementary that detention which is arbitrary is unlawful
or in other words, unjustified by law. Moreover the word
“lawfulness” which calls for interpretation in article 9,
paragraph 4, occurs in the Covenant and must therefore be
interpreted in the context of the provisions of the
Covenant and having regard to the object and purpose of
the Covenant. This conclusion is furthermore supported by
article 9, paragraph 5, which governs the granting of
compensation for detention “unlawful” either under the
terms of the domestic law or within the meaning of the
Covenant or as being arbitrary. Since the author in the
present case was totally barred by Section 54R of the
Migration Amendment Act from challenging the
“lawfulness” of his detention and seeking his release, his
right under article 9, paragraph 4, was violated.
11. Under article 2, paragraph 3, of the Covenant,
the author is entitled to an effective remedy. In the
Committee's opinion, this should include adequate
compensation for the length of the detention to
which A. was subjected.
12. Bearing in mind that, by becoming a State
party to the Optional Protocol, the State party has
recognized the competence of the Committee to
determine whether there has been a violation of the
Covenant or not and that, pursuant to article 2 of the
Covenant, the State party has undertaken to ensure to
all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant
and to provide an effective and enforceable remedy
in case a violation has been established, the
Committee wishes to receive from the State party,
within 90 days, information about the measures
taken to give effect to its Views.
APPENDIX
Individual opinion submitted by Mr. Prafullachandra
Natwarlal Bhagwati pursuant to rule 94, paragraph 3, of
the Committee’s rules of procedure, concerning the Views
of the Committee on communication No 569/1993
A. v. Australia
I am in agreement with the opinion rendered by the
Committee save and except that in regard to
paragraph 9.5, I would prefer the following formulation:
“9.5 The Committee observes that the author
could, in principle, have applied to the court for
review of the grounds of his detention before the
enactment of the Migration Amendment Act on 5
May 1992; after that date, the domestic courts
retained the power of judicial review of detention
with a view to ordering the release of a person if
they found the detention to be unlawful. But with
regard to a particular category of persons falling
within the meaning of the expression ‘designated
person’ in the Migration Amendment Act, the
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