Gap Not Closing Case Study

Another example of the “gap” not closing anytime soon is a case where Australia did not comply and enforce a UN decision. “A” is a Cambodian male, born in 1934. He arrived by boat to Australia in 1989 with his Vietnamese wife and their children, it was the same year the Australian Government proclaimed people fleeing post-genocidal violence in Cambodia to be “economic refugees”. The family was detained in immigration detention for more than four years. The family had no communication with a lawyer for almost a year and, through movement between detention centres in different Australian states, the family lost contact with the legal support they did acquire. 1992 was when the family joined with other Cambodian detainees to challenge in the Federal Court of Australia the Migration Amendment Act 1992 which impeded their release from detention. In “direct response”, the Australian Government rushed through further amendments to the Migration Act 1958, consolidating mandatory detention in law and confining “compensation for

The Human Rights Committee said that domestic review of the lawfulness of detention ought to include deliberation of Australia’s obligations under the International Covenant of Civil and Political Rights. The Human Rights Council found an added breach of article 2(3), despite this breach not being affirmed explicitly by “A”. Australia rejected the Human Rights Committee’s interpretation of the Covenant and declined to compensate the “A” family. The Human Rights Council has deemed this response from the State Party unsatisfactory. Both France and Australia have ignored the decisions of the UN treaty bodies. These cases both counter the argument of Harrington that the UN treaty body complaints mechanism is “closing the gap”. There is still a long way to achieve that because there is no consequence for a state to not enforce a UN