for refugee status. On 5 December 1992, the Minister's delegate rejected the author's claim. regime for asylum-seekers who have arrived by boat, without documentation ("boat people") and who are designated under the provision. The practical effect of the amendment is said to be that persons designated under division 4B automatically remain in custody unless or until removed from Australia or granted an entry permit. 2.12 The author once more sought a review of the decision in the Federal Court of Australia, and since the Immigration Department refused to give assurances that the author would not be deported immediately to Cambodia, an injunction restraining the Department from removing the author was obtained in the Federal Court. In the meantime, by judgement of 8 December 1992, the High Court of Australia upheld the validity of major portions of the Migration Amendment Act, which meant that the author would remain in custody. 3.3 It is contended that the State party's policy of detaining boat people is inappropriate, unjustified and arbitrary, as its principal purpose is to deter other boat people from coming to Australia, and to deter those already in the country from continuing with applications for refugee status. The application of the new legislation is said to amount to "human deterrence", based on the practice of rigidly detaining asylum-seekers under such conditions and for periods so prolonged that prospective asylumseekers are deterred from even applying for refugee status, and current asylum-seekers lose all hope and return home. The complaint 3.1 Counsel argues that his client was detained "arbitrarily" within the meaning of article 9, paragraph 1. He refers to the Human Rights Committee's General Comment on article 9, which extends the scope of article 9 to cases of immigration control, and to the Views of the Committee on communication No. 305/1988, Van Alphen v. the Netherlands1, where arbitrariness was defined as not merely being against the law, but as including elements of "inappropriateness, injustice and lack of predictability". By reference to article 31 of the Convention Relating to the Status of Refugees and to conclusion No. 44 (1986) of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees on detention of refugee and asylum-seekers, it is argued that international treaty law and customary international law require that detention of asylum-seekers be avoided as a general rule. Where such detention may become necessary, it should be strictly limited (see conclusion No. 44, para. (b)). Counsel provides a comparative analysis of immigration control and legislation in several European countries as well as Canada and the United States of America. He notes that, under Australian law, not all illegal entrants are subject to detention, nor all asylum-seekers. Those who arrive at Australian borders without a valid visa are referred to as "prohibited entrants" and may be detained under section 88 or 89 of the Migration Act 1958. Section 54B classifies individuals who are intercepted before or on arrival in Australia as "unprocessed persons". Such persons are deemed not to have entered Australia, and are taken to a "processing area". 3.4 No valid grounds are said to exist for the detention of the author, as none of the legitimate grounds of detention referred to in conclusion No. 44 (see para. 3.1 above) applies to his case. Furthermore, the length of detention - 1,299 days or three years and 204 days as at 20 June 1993 - is said to amount to a breach of article 9, paragraph 1. 3.5 Counsel further contends that article 9, paragraph 4, has been violated in the author's case. The effect of division 4B of the Migration Amendment Act is that once a person is qualified as a "designated person", there is no alternative to detention, and the detention may not be reviewed effectively by a court, as the courts have no discretion to order the person's release. This was conceded by the Minister for Immigration in a letter addressed to the Senate Standing Committee for the Scrutiny of Bills, which had expressed concern that the legislative amendment was to deny designated persons access to the courts and might raise problems in the light of Australia's obligations under the Covenant. The Australian Human Rights Commissioner, too, commented that the absence of court procedures to test either reasonableness or necessity of such detention was in breach of article 9, paragraph 4. 3.6 It is further contended that persons such as the author have no effective access to legal advice, contrary to article 16 of the Convention Relating to the Status of Refugees. That individuals like the author are kept in prolonged custody is said to make access to lawyers all the more important. With respect to the author's case, counsel contends that the State party breached article 9, paragraph 4, and article 14 in the following situations: 3.2 The author and others arriving in Australia before 1992 were held by the Federal Government under section 88 as "unprocessed persons", until the entry into force of division 4B of the Migration Amendment Act. Counsel argues that, under these provisions, the State party has established a harsher (a) 1 status; Views adopted on 23 July 1990, paragraph 5.8. 91 Preparation of application for refugee