State party, there is no evidence that at any time A.
failed to obtain legal advice or representation when
he sought it. On balance, the conditions under which
the author was detained did not obstruct his access to
legal advice (see below, paragraphs 7.8 to 7.11). The
State party maintains that contrary to counsel's
assertion, long delays did not result from any change
in legal advisors after A.'s consecutive moves
between detention centres.
particular, the State party disagrees with the
suggestion that rules or standards which are said to
exist under customary international law or under
other international agreements may be imported into
the Covenant. The State party concludes that
detention for purposes of exclusion from the country,
for the investigation of protection claims, and for
handling refugee or entry permit applications and
protecting public security, is entirely compatible
with article 9, paragraph 1.
7.5 As to the claim under article 9, paragraph 1,
the State party argues that the author's detention was
lawful and not arbitrary on any ground. A. entered
Australia without authorization, and subsequently
applied for the right to remain on refugee status
basis. Initially, he was held pending examination of
his application. His subsequent detention was related
to his appeals against the decisions refusing his
application, which made him liable to deportation.
Detention was considered necessary primarily to
prevent him from absconding into the Australian
community.
7.8 As to the claim under article 9, paragraph 4,
the State party reaffirms that it was always open to
the author to file an action challenging the
lawfulness of his detention, e.g. by seeking a ruling
from the courts as to whether his detention was
compatible with Australian law. The courts had the
power to release A, if they determined that he was
being unlawfully detained. In that respect, the State
party takes issue with the Committee's admissibility
considerations relating to article 9, paragraph 4. For
the State party, this provision does not require that
State party courts must always be free to substitute
their discretion for the discretion of Parliament, in as
much as detention is concerned: "[T]he Covenant
does not require that a court must be able to order
the release of a detainee, even if the detention was
according to law".
7.6 The State party notes that the travaux
préparatoires to article 9, paragraph 1, show that the
drafters of the Covenant considered that the notion
of "arbitrariness" included "incompatibility with the
principles of justice or with the dignity of the human
person". Furthermore, it refers to the Committee's
jurisprudence according to which the notion of
arbitrariness must not be equated with "against the
law", but must be interpreted more broadly as
encompassing elements of inappropriateness,
injustice and lack of predictability4. Against this
background, the State party contends, detention in a
case such as the author's was not disproportionate
nor unjust; it was also predictable, in that the
applicable Australian law had been widely
publicized. To the State party, counsel's argument
that it is inappropriate per se to detain individuals
entering Australia in an unauthorized manner is not
borne out by any of the provisions of the Covenant.
7.9 Furthermore, the State party specifically
rejects the notion that article 9, paragraph 4,
implicitly includes the same (procedural) guarantees
for provision of legal assistance as are set out in
article 14, paragraph 3: in its opinion, a distinction
must be drawn between the provision of free legal
assistance in terms of article 14, paragraph 3, and
allowing access to legal assistance. In any event, it
continues, there is no substance to the author's
allegation that his rights under article 9, paragraph 4,
were impeded by an alleged absence of effective
access to legal advice. The author "had ample access
to legal advice and representation for the purpose of
challenging the lawfulness of his detention", and was
legally represented when he brought such a
challenge.
7.7 The State party asserts that the argument that
there is a rule of public international law, be it
derived from custom or conventional law, against the
detention of asylum seekers, is not only erroneous
and unsupported by prevailing State practice, but
also irrelevant to the considerations of the Human
Rights Committee. The instruments and practice
invoked by counsel -inter alia the 1951 Refugee
Convention, Conclusion 44 of the Executive
Committee of the UNHCR, the Convention on the
Rights of the Child, the practice of 12 Western states
- are said to fall far short from proving the existence
of a rule of customary international law. In
7.10 In support of its argument, the State party
provides a detailed chronology of attempts to inform
A. of his right to legal advice:
(a)
The form used for applications for
refugee status advises applicants of their right to
have a legal advisor present during interview and to
ask for legal aid assistance. The application form
was read to the author on 9 December 1989 at
Willie's Creek in the Kampuchean language by an
interpreter, completed and signed by the author. The
author did not request legal advice or access to a
lawyer at this time;
4
See Views on communication No. 305/1988 (Hugo
van Alphen v. The Netherlands), adopted on 23 July 1990,
paragraph 5.8.
(b)
During his first six months of
detention, the author had contact with members of
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