review of refusal to grant refugee status to members
of the group. When the author was removed to Port
Hedland on 21 October 1991, the application for
review was under consideration by the RSRC, and
there was no need for immediate action by the
author's
legal
advisors.
When
RSRC's
recommendation to refuse the application was
notified to NTLAC on 22 January 1992, NTLAC
requested a reasonable time for the author to get
legal assistance. The RCoA arrived in Port Hedland
on 3 February 1992 to represent the author, and
lodged a response to RSRC's recommendation on
3 March 1992. The State party contends that nothing
suggests that requests for review in these two cases
would have been lodged much earlier had there been
no change in legal representation.
the Australian community, as well as with the
Cambodian, Khmer and Indo-Chinese communities
in Sydney, which provided some support to the
Pender Bay detainees. These groups would have
been able to provide access to legal advisers;
(c)
In June/July 1990, the Jesuit Refugee
Service approached the Legal Aid Commission of
New South Wales (LACNSW) to represent the
Pender Bay detainees. On 11 September 1990, A.
authorised LACNSW to represent him. Prior to
LACNSW's involvement, the Department of
Immigration and Ethnic Affairs (DIEA) had planned
to move the Pender Bay detainees from Sydney in
early October 1990. To ensure continued access to
their legal representatives, the group was not moved
to Darwin until 20 May 1991;
7.13 Finally, the State party denies that there is any
evidence that the remote location of the Port
Hedland Detention Centre was such as to obstruct
access to legal assistance. There are forty-two flights
to and from Perth each week, with a flight time of
130 to 140 minutes; early morning flights would
enable lawyers to be in Port Hedland before 9 a.m.
The State party notes that a team of six lawyers and
six interpreters, contracted by RCoA with funding
from DIEA, lived in Port Hedland for most of 1992
to provide legal advice to the detainees.
(d)
At the time of the move to Darwin,
LACNSW advised the Northern Territory Legal Aid
Commission (NTLAC) that the group was being
relocated. NTLAC lawyers were at the Curragundi
camp (near Darwin) approximately one week after
the Pender Bay group's arrival. When A. was moved
to Port Hedland on 21 October 1991, NTLAC
continued to act on his behalf until 29 January 1992,
when it advised DIEA that it could no longer
represent the Pender Bay detainees. On 3 February
1992, the Refugee Council of Australia (RCoA) took
over the function of representatives of all Pender
Bay detainees;
7.14 As to article 14, paragraph 1, the State party
contends that no argument can be made that there
was a breach of the author's right to equality before
the courts: in particular, he was not subject to any
form of discrimination on the grounds that he was an
alien. It notes that if the Committee were to consider
that equality before the courts encompasses a right to
(obligatory) legal advice and representation, it must
be recalled that the author's access to such advice
was never, at any stage during his detention,
impeded (see paragraphs 7.9 and 7.10 above).
(e)
The NTLAC was retained by members
of the Pender Bay group for Federal Court
proceedings in April 1992. RCoA continued to
provide advice in relation to the refugee status
applications.
7.11 The State party points out that prior to
1991/92, funds for legal assistance were not
specifically earmarked for asylum seekers in
detention, but individual applicants had access to
legal aid through the normal channels, with NGOs
also providing support. Since 1992, legal assistance
is provided to applicants through contractual
agreements between DIEA and RCoA and
Australian Lawyers for Refugees (ALR). The State
party notes that in the proceedings seeking to
overturn the decision which refused him refugee
status, A. was legally represented. His advisers
included not only the NSWLAC and the NTLAC,
but also Refugee Advice Casework and two large
law firms.
7.15 The State party affirms that the second and
third sentences of article 14, paragraph 1, do not
apply to refugee status determination proceedings.
Such proceedings cannot be described as a
"determination ... of his rights and obligations in a
suit at law". Reference is made in this context to
decisions of the European Commission of Human
Rights, which are said to support this conclusion5.
The State party fully accepts that aliens subject to its
jurisdiction may enjoy the protection of Covenant
rights: "However, in determining which provisions
of the Covenant apply in such circumstances, it is
necessary to examine their terms. This interpretation
is supported by the terms of the second and third
sentences of article 14, paragraph 1, which are
7.12 The State party contests that delays in the
hearing of A.'s case were attributable to his losing
contact with legal advisors after each move between
detention centres. When the author was removed
from Sydney to Curragundi on 21 May 1991, the
NSWLAC immediately advised the NTLAC, and on
11 June, NTLAC forwarded to the Refugee Status
Review Committee (RSRC) an application for
5
See X, Y, Z and W v. United Kingdom (Application
No. 3325/67); and Agee v. United Kingdom (Application
No. 7729/76).
98
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