Nystrom v Australia: human rights umpire snubbed again

In September last year, the UN Human Rights Committee adopted its Views in the case of Nystrom v Australia, which said Australia had violated Mr Nystrom’s rights under the International Covenant on Civil and Political Rights (ICCPR).

You may have read about Stefan Nystrom in the papers – he was deported to Sweden in December 2006 due to a negative character assessment under the Migration Act. There are two main reasons why his case was remarkable (remarkable enough to earn him a personal Wikipedia page). First, he had spent all but the first month of his life in Australia, had all his close relatives here, and had never experienced life in Sweden or learned how to speak Swedish. Second, he was dumped in Stockholm in the middle of a freezing Winter (and believe me, a Swedish Winter is properly cold) without even an official to meet him at the airport, and has since become homeless, unemployed, and suffers from worsening mental health issues.

Mr Nystrom had, quite reasonably, assumed that he was legally entitled to be in Australia because he spent almost all of his life here. However, he had never applied for citizenship, and so technically remained a Swede living here on a ‘permanent’ visa. Unfortunately, Mr Nystrom acquired a criminal record serious enough to bring him to the attention of the Minister for Immigration, who cancelled this visa in 2004. In November 2006, the High Court confirmed the validity of this decision under Australian Law.

Since he had exhausted domestic avenues of appeal (which a person must do before taking a case to the UN), the Human Rights Law Centre subsequently helped Mr Nystrom lodge a communication (complaint) with the Human Rights Committee. The communication alleged (amongst other things) that Australia had violated Mr Nystrom’s right to enter ‘his own country’ under article 12 of the ICCPR, and the right to be free from arbitrary interference with his family life under articles 17 and 23.

There were certainly arguments to be made in defence of the Government’s decision, and in fact I was involved in making them (I worked for the Attorney-Generals’ Department at the time), so I can’t claim to be a disinterested commentator now. Briefly speaking, the arguments focussed on what constitutes “one’s own country” at international law and the right of a State to protect its citizens from non‑citizens who commit serious crimes.

I won’t comment on the merits of the case but there is plenty of other commentary on the domestic and international law involved if you are interested. In this blog, I would like to focus on the Government’s response to the Human Rights Committee’s Views, and its troubled relationship with the Committee in general.

There is a reason why decisions of the Committee, which look for all the world like judgments, are called Views. The Committee is not a court, and its opinions cannot bind States – not even those which are party to the first Optional Protocol to the ICCPR (as Australia has been since 1991). Unsurprisingly, States like to maintain control over sensitive issues such as potential human rights breaches, and as such they were never likely to negotiate a treaty which set a UN tribunal above their national courts. In Europe, there is just such a ‘supranational’ court – the European Court of Human Rights, and its judgments cause no end of controversy – particularly in the UK.

The fact that UN Committee Views are non-binding means State compliance with them is voluntary. One approach (the one recommended by the UN itself) is to take the Views as the authoritative statements by international experts of a State’s obligations under the ICCPR (which is binding) – and therefore to treat it more or less like the decision of a domestic court (even if graceful deference to domestic court decisions can’t always be taken for granted). Another approach is to emphasise the non-binding nature of the Committee’s Views, and comply with them only to the extent that they are consistent with existing policy. The latter approach is arguably the one Australia has taken over the past 16 years.

In 1994, the federal Government overrode Tasmanian legislation criminalising private homosexual acts in response to the Human Rights Committee’s Views in the case of Toonen. Labor was in power at the time, but the move had bipartisan support.

In 1996, a new Coalition Government came to power, and brought with it a markedly different attitude to the Committee (and the other UN Treaty Bodies, as the Committees are known). Since that time, there have been 64 communications lodged with the Human Rights Committee against Australia. Of these, more than half (39) were found to be inadmissible or not to involve a violation, which shows the Committee is no soft touch. On the other hand, 25 resulted in findings of violations of the ICCPR, yet not a single one has prompted a change to domestic law, and only very few have prompted changes in practice (usually without admission of fault). A shift back to Labor in 2007 might have been expected to bring about change in this regard (especially after statements to this effect), but the response in the Nystrom case (and others decided since the shift) suggests otherwise.

It’s not that the Government doesn’t take the Committee seriously – I know from experience that it assiduously drafts submissions addressing each allegation and prepares thoroughly for appearances in Geneva. It is also getting better at providing information to the public on these activities.

In its response to the Committee in Nystrom (at paragraph 15), the Government reveals it has ‘implemented measures to enhance consideration of relevant factors in decisions involving other persons [in] a similar situation to that of Mr Nystrom,’ and that the relevant policy Directive ‘ensures that the length of a person’s residence in Australia is now given greater weight in decisions involving the cancellation of a person’s visa under section 501.’ However, this will be of little comfort to Mr Nystrom, since the Committee’s recommendation to allow him to return to Australia was emphatically rejected.

The Government’s record of responses either rejecting Committee Views or simply noting them and providing factual updates must give anyone pause if they are considering taking their case to the UN. No matter how persuasive the arguments, or how successful they are with the Committee, the pattern of responses strongly suggests the Australian Government will not be swayed.

Admittedly, most of the cases in which violations have been found by the Human Rights Committee concern the policy of mandatory detention, which has been a cornerstone of both Labor and Coalition immigration policy since 1992 (ie for almost the entire period during which Australians have been able to make complaints to the Committee) and forms an ongoing bone of contention with the UN regarding compatibility with the ICCPR. However, the responses in cases such as Nystrom and Young show that the inflexibility goes deeper.

As Rachel Ball from the Human Rights Law Centre notes, the Government’s own National Human Rights Action Plan ‘commits [only] to “review whether any Treaty Body recommendations can be accepted as consistent with the Government’s immigration detention policies,”’ which rather suggests that such policies effectively ‘outrank’ Australia’s human rights obligations.

All of this leads to the uneasy conclusion that vulnerable individuals have little chance of gaining a successful human rights outcome if they take their case to the UN. Perhaps Julian Assange has the right idea in running for Parliament – after all, a Senator probably has a better chance of changing Australian policy than a homeless, unemployed, mentally ill man forced to live in another country whose language he can’t speak. Whether this defeats the purpose of an international human rights regime is certainly worth debating.