4.5 The State party contests the admissibility of
the allegation under article 9, paragraph 4, and
argues that existing avenues for review of the
lawfulness of detention under the Migration Act are
compatible with article 9, paragraph 4. It notes that
counsel does not allege that there is no right under
Australian law to challenge the lawfulness of
detention in court. Habeas corpus, for instance, a
remedy available for this purpose, has never been
invoked by the author. It is noted that the author did
challenge the constitutional validity of division 4B
of part 2 of the Migration Act in the Australian High
Court, which upheld the relevant provision under
which, from 6 May 1992, the author had been
detained. In its judgement, the High Court confirmed
that, if a person was unlawfully detained, he could
request release by a court. Prior to his release, no
proceedings to challenge the lawfulness of his
detention were initiated by A, despite the possibility
of such proceedings. Other detainees, however,
successfully instituted proceedings which led to their
release on the ground that they were held longer than
allowed under division 4B of the Migration Act2.
After this action, another 36 detainees were released
from custody. The State party submits that, on the
basis of the material submitted by counsel, there is
"no basis whatsoever on which the Committee could
find a breach of article 9, paragraph 4, on the ground
that the author was unable to challenge the
lawfulness of his detention". A violation has not
been sufficiently substantiated, as required under
rule 90 (b) of the rules of procedure. The State party
adds that the allegations relating to article 9,
paragraph 4, could be deemed an abuse of the right
of submission and that, in any event, the author
failed to exhaust domestic remedies in this respect,
as he did not test the lawfulness of his detention.
flows from the guarantee that an individual is
entitled to take proceedings before a court. It
confirms that the author had access to legal advisers.
Thus, the funding for legal assistance was provided
through all the stages of the administrative
procedure; subsequently, he had access to legal
advice to pursue judicial remedies. For these
reasons, the State party argues that there is
insufficient substantiation of facts which might
establish a violation of article 9, paragraph 4, by
virtue of absence of access to legal advisers. To the
extent that the claim concerning access to legal
advisers seeks to rely on article 16 of the 1951
Convention Relating to the Status of Refugees, the
State party refers to its arguments in paragraph 4.3
above.
4.8 The State party disputes that the
circumstances of the author's detention give rise to
any claim for compensation under article 9,
paragraph 5, of the Covenant. It notes that the
Government itself conceded in legal proceedings
brought by the author and others that the applicants
in this case had been detained without the statutory
authority under which boat people had been held
prior to the enactment of division 4B of part 2 of the
Migration Act: this was merely the result of a bona
fide but mistaken interpretation of the legislation
under which the author had been held. On account of
the inadvertent basis for the unlawful detention of
individuals in the author's situation, the Australian
Parliament enacted special compensation legislation.
The State party considers this legislation compatible
with article 9, paragraph 5.
4.9 The State party points out that a number of
boat people have instituted proceedings challenging
the constitutional validity of the relevant legislation.
As the author is associated with those proceedings,
he cannot be deemed to have exhausted domestic
remedies in respect of his claim under article 9,
paragraph 5.
4.6 To the extent that the communication seeks to
establish a violation of article 9, paragraph 4, on the
ground that the reasonableness or appropriateness of
detention cannot be challenged in court, the State
party considers that the absence of discretion for a
court to order a person's release falls in no way
within the scope of application of article 9,
paragraph 4, which only concerns review of
lawfulness of detention.
4.10 The State party refutes the author's claim that
article 14 applies to immigration detention and
considers the communication inadmissible to the
extent that it relies on article 14. It recalls that article
14 only applies to criminal charges; detention for
immigration purposes is not detention under criminal
law, but administrative detention, to which article
14, paragraph 3, is clearly inapplicable. This part of
the communication is therefore considered
inadmissible ratione materiae.
4.7 To the extent that the communication claims a
breach of article 9, paragraph 4, because of absence
of effective access to legal representation, the State
party notes that this issue is not covered by the
provision: access to legal representation cannot, in
the State party's opinion, be read into the provision
as in any way related to or a necessary right which
4.11 Finally, the State party rejects the author's
allegation of discrimination based on articles 9 and
14 juncto article 2, paragraph 1, on the ground that
there is no evidence to sustain a claim of
discrimination on the ground of race. It further
submits that the quality of "boat person" cannot be
approximated to "other status" within the meaning of
2
Tang Jia Xin v. Minister for Immigration and Ethnic
Affairs No. 1 (1993), 116 ALR 329; Tang Jia Xin v.
Minister for Immigration and Ethnic Affairs No. 2 (1993),
116 ALR 349.
93
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