15 Joslin v. New Zealand
FACT:
Ms. Joslin and Ms. Rowan commenced a lesbian relationship in January 1988. Since
that point, they have jointly assumed responsibility for their children out of previous
marriages. In living together, they have pooled finances and jointly own their common
home. They maintain sexual relations. On 4 December 1995, they applied under the
Marriage Act 1955 to the local Registrar of Births, Deaths and Marriages for a marriage
licence, by lodging a notice of intended marriage at the local Registry Office. On 14
December 1995, the Deputy Registrar-General rejected the application.
Similarly, Ms. Zelf and Ms. Pearl commenced a lesbian relationship in April 1993. They
also share responsibility for the children of a previous marriage, pool financial resources
and maintain sexual relations. On 22 January 1996, the local Registry Office refused to
accept a notice of intended marriage. On 2 February 1996, Ms Zelf and Ms Pearl
lodged a notice of intended marriage at another Registry Office. On 12 February 1996,
the Registrar-General informed them that the notice could not be processed. The
Registrar-General indicated that the Registrar was acting lawfully in interpreting the
Marriage Act as confined to marriage between a man and a woman.
All four authors thereupon applied to the High Court for a declaration that, as lesbian
couples, they were lawfully entitled to obtain a marriage licence and to marry pursuant to
the Marriage Act 1955. On 28 May 1996, the High Court declined the application. Observing
inter alia that the text of article 23, paragraph 2, of the Covenant "does not point to
same-sex marriages", the Court held that the statutory language of the Marriage Act was
clear in applying to marriage between a man and a woman only.
ISSUE:
Whether there was a violation of rights under the Covenant for the refusal of the State party to
grant marriage license to homosexual couples
RULING: NO
The authors' essential claim is that the Covenant obligates States parties to
confer upon homosexual couples the capacity to marry and that by denying the authors
this capacity the State party violates their rights under articles 16, 17, 23, paragraphs 1
and 2, and 26 of the Covenant.
The Committee notes that article 23, paragraph 2, of the Covenant expressly
addresses the issue of the right to marry. Given the existence of a specific provision in
the Covenant on the right to marriage, any claim that this right has been violated must
be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is
the only substantive provision in the Covenant which defines a right by using the term
"men and women", rather than "every human being", "everyone" and "all persons". Use
of the term "men and women", rather than the general terms used elsewhere in Part III
of the Covenant, has been consistently and uniformly understood as indicating that the
treaty obligation of States parties stemming from article 23, paragraph 2, of the
Covenant is to recognize as marriage only the union between a man and a woman
wishing to marry each other.
In light of the scope of the right to marry under article 23, paragraph 2, of the
Covenant, the Committee cannot find that by mere refusal to provide for marriage
between homosexual couples, the State party has violated the rights of the authors
under articles 16, 17, 23, paragraphs 1 and 2, or 26 of the Covenant. 9. The Human
Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the
view that the facts before it do not disclose a violation of any provision of the
International Covenant on Civil and Political Rights.
16 Winata v Australia
International Covenant on Civil and Political Rights, Article 17 (right to respect for
privacy, family, home and correspondence), Article 23 (protection of the family),
Article 24 (protection of the child).
FACT:
Mr. Winata and Ms. Li arrived in Australia on a visitor's visa and a student visa
respectively and commenced a de facto relationship similar to marriage, and have a
thirteen year old son, Barry, born in Australia on 2 June 1988 whom he acquired
Australian citizenship. Mr. Winata and Ms. Li, lodged combined applications for a
protection visa with the Department of Immigration and Multicultural Affairs (DIMA), based
generally upon a claim that they faced persecution in Indonesia owing to their Chinese
ethnicity and Catholic religion. Mr. Winata and Ms. Li, representative in Jakarta lodged an
application with the Australian Embassy to migrate to Australia on the basis of a
"subclass 103 Parent Visa". A requirement for such a visa, of which presently 500 are
granted per year, is that the applicant must be outside Australia when the visa is
granted. According to counsel, it thus could be expected that the Winata’s would face a
delay of several years before they would be able to return to Australia under parent
visas.
Refugee Review Tribunal (RRT) affirmed DIMA's decision to refuse a protection visa.
The RRT considered that while the possibility of being caught up in racial and religious
conflict could not be discounted, the outlook in Indonesia was improving and any chance
of persecution in the particular case was remote. Mr. Winata and Ms. Li did not seek
review of the decision within the filing period so they cannot pursue now on that
avenue.
Mr. Winata and Ms. Li applied to the Minister for Immigration and Multicultural
Affairs.The application, relying on articles 17 and 23 of the Covenant, cited "strong
compassionate circumstances such that failure to recognize them would result in
irreparable harm and continuing hardship to an Australian family". The application was
accompanied by a two and a half page psychiatric report on the authors and possible
effects of a removal from Australia. However, the Minister decided against exercising his
discretionary power.
The authors allege that their removal from Australia to Indonesia would violate rights of
all three alleged victims under articles 17, 23, paragraph 1, and 24, paragraph 1.The
authors argue that de facto relationships are recognized under Australian law, including
in migration regulations, and that there should be no doubt that their relationship would
be so recognized by the Australian courts. Their relationship with Barry would also be
recognized as a "family" by Australia.
ISSUE: Whether or not such interference would be arbitrary and contrary to article 17 of
the Covenant.
RULING:
It is certainly unobjectionable under the Covenant that a State party may require, under
its laws, the departure of persons who remain in its territory beyond limited duration
permits. Nor is the fact that a child is born, or that by operation of law such a child
receives citizenship either at birth or at a later time, sufficient of itself to make a
proposed deportation of one or both parents arbitrary .
Accordingly, there is significant scope for States parties to enforce their immigration
policy and to require departure of unlawfully present persons. That discretion is,
however, not unlimited and may come to be exercised arbitrarily in certain
circumstances. In the present case, both authors have been in Australia for over
fourteen years. The authors' son has grown in Australia from his birth 13 years ago,
attending Australian schools as an ordinary child would and developing the social
relationships inherent in that. In view of this duration of time, it is incumbent on the
State party to demonstrate additional factors justifying the removal of both parents that
go beyond a simple enforcement of its immigration law in order to avoid a
characterisation of arbitrariness. In the particular circumstances, therefore, the Committee
considers that the removal by the State party of the authors would constitute, if
implemented, arbitrary interference with the family, contrary to article 17, paragraph 1, in
conjunction with article 23, of the Covenant in respect of all of the alleged victims, and,
additionally, a violation of article 24, paragraph 1, in relation to Barry Winata due to a
failure to provide him with the necessary measures of protection as a minor.
In accordance with article 2, paragraph 3 (a), of the Covenant, the State Party is under
an obligation to provide the authors with an effective remedy, including refraining from
removing the authors from Australia before they have had an opportunity to have their
application for parent visas examined with due consideration given to the protection
required by Barry Winata's status as a minor.
The State party is under an obligation to ensure that violations of the Covenant in
similar situations do not occur in the future.Bearing in mind that, by becoming a State
party to the Optional Protocol, the State party has recognized the competence of the
Committee to determine whether there has been a violation of the Covenant or not and
that, pursuant to article 2 of the Covenant , the State party has undertaken to ensure to
all individuals within its territory and subject to its jurisdiction the rights recognized in
the Covenant to provide an effective and enforceable remedy in case a violation has
been established, the Committee wishes to receive from the State party, within 90 days,
information about the measures taken to give effect to its Views.
17 A vs Australia
FACT:
On 30 April 1997 the UN Human Rights Committee adopted its Views on a Communication
lodged on behalf of ‘A’, a Cambodian boat person who had been held in detention by the
Australian immigration authorities for more than four years. The Communication, lodged in
Geneva on 20 June 1993, was made pursuant to the First Optional Protocol to the International
Covenant on Civil and Political Rights (ICCPR), which entered into force for Australia on 25
December 1991. The First Optional Protocol provides a procedure where, after exhausting all
available domestic remedies, an individual may allege to the Human Rights Committee that he
or she has been a victim of a breach of the ICCPR by a state party. This procedure was used
successfully in the case of Toonen v Australia in March 1994. The case of A ’ was only the
second time.
‘A’ had been taken into custody by immigration authorities along with 26 other Cambodian
asylum seekers on their arrival in Australia in November 1989. He remained in custody until
January 1994, when he was released because his wife had been granted refugee status. During
the period of his custody, ‘A’ was moved between detention centres in Broome, Sydney, the
Northern Territory and Port Hedland in Western Australia. He was not provided with any
government-funded legal advice until almost a year after his arrival. His detention was
effectively non-reviewable, under Division 4B (now Part 2, Division 6 ) of the Migration Act 195 8
, which had been rushed through Parliament in May 1992 in order to head off an application for
release by Cambodian boat people. The latter provisions were held to be valid by the High
Court in a constitutional challenge in Chu Kheng Lim v Minister fo r Im m igration, Local
Government and Ethnic Affairs (1992) 176 CLR 1, and it was this ‘exhaustion’ of domestic
remedies which allowed the matter to be taken by ‘A’ to the Human Rights Committee.
RULING:
In summary, the Committee made the following findings:
Article 9(1) Everyone has the right to liberty and security o f person. No one shall be
subjected to arbitrary arrest o r detention. No one shall be deprived o f his liberty except
on such grounds and in accordance with such procedure a s are established by law.
The Committee found Australia to be in breach of article 9(1) on the grounds that the period of
detention went beyond that for which Australia could provide appropriate justification. The
Committee noted that while the fact of illegal entry may indicate a need for investigation, there
must be other factors particular to the individual, such as likelihood of absconding and lack of
cooperation, in order to justify detention. Without such factors detention may be considered
arbitrary, and in the present case Australia had provided no such justification for the prolonged
detention of ‘A’.
Article 9(4) Anyone who is deprived o f his liberty by arrest o r detention shall be entitled
to take proceedings before a court, in order that that court may decide without delay on
the lawfulness o f his detention and order his release if the detention is not lawful
The Committee found that every decision to keep a person in detention should be open to
periodical review so that the grounds justifying the detention can be assessed. In the present
case ‘A’ had no effective remedy to seek release in the courts. Under Division 4B, court review
to ‘A’ was limited to a mere formal assessment of the self-evident fact that he came within the
scope of the provision, and beyond that the court was unable to order his release. The
Committee commented that court review of the lawfulness of detention under article 9(4) is not
limited to mere compliance of the detention with domestic law — what is decisive is that such
review is, in its effects, real and not merely formal.
Articles 9(4) a n d 14(1) The Committee rejected, on the facts, allegations of a breach of
articles 9(4) and 14(1) in that ‘A’ had been denied access to lawyers because of the delay in
providing legal assistance and frequent removal to distant detention centres. The Committee
noted ‘A’ had signed a standard form when he arrived acknowledging he had been told of his
right to a lawyer and, in any event, he had in fact managed to get access to lawyers throughout
his detention. However, the Committee implicitly recognised the principle that a person should
be advised of their right to a lawyer upon arrival.