Nasir v Australia CCPR/C/116/D/2229/2012
Mr Nasir was an Indonesian cook on a boat that brought asylum seekers to Australia. He was convicted of aggravated people smuggling under the Migration Act 1958 (Cth). Mr Nasir was detained without charge for 146 days on Christmas Island and in the Northern Territory, pursuant to an unreviewable Criminal Justice Stay Certificate. He did not appear before a judge for 177 days. At trial, Mr Nasir received the mandatory minimum sentence of five years with a three-year non-parole period pursuant to section 236B of the Migration Act, despite his undisputed minor role as a cook and non-organiser of the voyage. The sentencing judge addressed the disproportionality of the sentence to his culpability, noting,
You have already been imprisoned for 632 days during which your family has been left destitute. The sentence of imprisonment is not, therefore, necessary to deter you any more than that has already done. (…) I regard you as already having been adequately punished. However, I am obliged to impose further imprisonment upon you so as to comply with the obligation I have at law.
In 2012, Mr Nasir filed a communication against Australia before the UN Human Rights Committee, represented by the UNSW Human Rights Clinic. He argued that Australia violated his rights under the ICCPR with respect to the length and conditions of his pre-charge detention and his mandatory minimum sentence, among other issues.
- Detention for 146 days before being charged was arbitrary (article 9(1))
- Mr Nasir was not brought promptly before a judge upon arrest (article 9(3))
- There were no mechanisms for review of the Criminal Justice Stay Certificate to determine necessity and lawfulness of Mr Nasir’s ongoing detention (article 9(4))
Mandatory Minimum Sentencing
- Mr Nasir’s sentence under the Migration Act resulted in arbitrary detention as it was disproportionate to his personal culpability (article 9(1))
- Mr Nasir’s right to a fair trial was violated as the judiciary did not have sentencing discretion (article 14(1))
- Mr Nasir’s right to a fair trial was violated as an appeal court could not review his mandatory minimum sentence (article 14(5))
The Committee’s Views are noteworthy regarding three issues: (1) exhaustion of domestic remedies without an appeal to the High Court, (2) implications of Australia’s use of Criminal Justice Stay Certificates to indefinitely detain non-citizens, and (3) compatibility of mandatory sentencing laws with the ICCPR.
Admissibility: Exhaustion of Domestic Remedies
The Australian government challenged the admissibility of Mr Nasir’s claims on two grounds: (i) Mr Nasir had not exhausted domestic remedies, and (ii) certain claims were not sufficiently substantiated. The Committee found admissible the claims on mandatory minimum sentences and length of pre-charge detention, concluding that Mr Nasir had exhausted all domestic remedies. Mr Nasir was not required to bring a Constitutional challenge to his sentence before the High Court of Australia in order to exhaust domestic remedies because in light of longstanding High Court jurisprudence, such a challenge had ‘no real prospect of success’. Importantly, the Committee reached this conclusion despite the fact that subsequent to the conclusion of Mr Nasir’s appeal, the High Court granted special leave in an analogous case, Magaming v The Queen  HCA 40, which challenged the constitutionality of mandatory minimum penalties. This finding expands current Committee jurisprudence. An individual is required the reassess the availability of a particular remedy only if the state of the law changes; not merely because a similar case is being litigated. Further, the Committee found that Mr Nasir exhausted domestic remedies on the question of the arbitrariness of his detention, even though he did not seek a writ of habeas corpus. Australia failed to demonstrate that the writ would have provided an ‘effective remedy’ for Mr Nasir’s claim because an Australian court could not grant the writ based on a breach of the ICCPR.
The Committee found Mr Nasir’s claims relating to interference with family contact, detention conditions and fair trial violations connected with mandatory minimum penalties, insufficiently substantiated and thus inadmissible.
Merits: Indefinite Pre-charge Detention Pursuant to a Criminal Justice Stay Certificate
The Committee found that Mr Nasir’s lengthy pre-charge detention pursuant to a CJSC violated articles 9(1), 9(3) and 9(4). Under section 147 of the Migration Act, the Attorney General can issue a CJSC to temporarily (and indefinitely) prevent the removal of an unlawful non-citizen from Australia for the purposes of administration of justice in relation to a Commonwealth offence. This automatically results in immigration detention of the non-citizen while the CJSC is in effect. The Committee concluded that Mr Nasir’s detention was arbitrary under article 9(1) because Australia could not justify it as ‘reasonable, necessary and proportionate in light of the circumstances of the case’. It found no evidence of periodic review of Mr Nasir’s detention during the 146 days he was detained without charge, noting that he was deprived of legal safeguards allowing him to challenge his detention. The Committee also concluded that Mr Nasir’s inability to challenge the lawfulness of his detention before a court violated article 9(4). CJSCs are a private clause decision under the Migration Act and therefore not subject to judicial review. The Committee affirmed that judicial review under article 9(4) is not limited to compliance of the detention with domestic law, but also compliance with international obligations under the ICCPR. While Mr Nasir could challenge the domestic legality of his detention, Australian courts have no authority to order that a person be released from detention on the grounds that the person’s continued detention is arbitrary under the ICCPR.
The Committee further found that the failure to bring Mr Nasir promptly before a judge when the CJSC was issued violated article 9(3). The Committee clarified that in order for article 9(3) to apply, a person does not need to have been formally charged with an offence: it can apply at an earlier stage, so long as the person is arrested or detained on suspicion of criminal activity. The basis of Mr Nasir’s detention under the CJSC was the ‘administration of criminal justice’. Thus, he should have been brought before a judge within a few days after the CJSC was first issued.
These findings create a strong basis for law reform or future claims challenging the unreviewability and indefinite nature of CJSCs when used as a basis for detention. Further, the Committee’s finding that the operation of the privative clause violates article 9(4) provides further grounds for challenging its application in other contexts.
Mandatory Minimum Sentencing
Members of the Committee were divided with respect to the compatibility of Australia’s mandatory minimum sentencing laws with freedom from arbitrary detention under article 9(1), the right to a fair trial under article 14(1), the right to appeal a sentence under article 14(5). In a notably brief treatment of these issues, the majority rejected Mr Nasir’s claims under article 9(1), noting that Mr Nasir’s trial was the result of proper legal process as he was represented at trial. They did not consider whether the inability of the trial judge to take Mr Nasir’s personal circumstances into account, and the resulting disproportionality of his sentence, rendered his detention arbitrary.
There were two strong dissenting opinions on this issue. The first was a joint opinion by Olivier de Frouville, Victor Rodriguez Rescia and Fabián Salvioli. It drew on international and comparative jurisprudence to find that if a judge is forced to impose a minimum sentence that disregards the responsibility of the perpetrator, it may, as in this case, eventuate in an outcome that is ‘grossly disproportionate’ to the offence, which is incompatible with article 9(1).
Professor Sarah Cleveland, in an extensive and thoroughly reasoned separate dissenting opinion, agreed that application of Australia’s mandatory minimum sentencing laws violated article 9(1). Professor Cleveland concluded that if a sentence does not take into account personal circumstances it could be arbitrary, and further, could violate article 14(1), a person’s right to a fair trial, due to the lack of sentencing discretion. She relied on the Committee’s longstanding jurisprudence regarding the arbitrariness of mandatory death sentences among other sources. She drew attention to the fact that the captain of the ship received the same term of imprisonment as Mr Nasir, a low level cook.
Mr Nasir’s challenge to the Committee was the first of its kind to question the compatibility mandatory minimum sentencing laws with articles 9 and 14 of the ICCPR outside the death penalty context. The majority’s rejection of the claims was thinly reasoned and did not engage relevant Committee jurisprudence. In contrast, the extensive reasoning and jurisprudential analysis underpinning the dissenting opinions may provide a basis for further challenges. Moreover, the majority opinion did not directly address the claim under article 14(5) at all and did not consider the merits of the claim under article 14(1) because it was found inadmissible, leaving open further possibilities for future challenges on these grounds.
These challenges may extend to other mandatory minimum sentencing regimes that continue to be used at both state and federal level in Australia, despite considerable evidence that they do not act as general or specific deterrents and often punish offenders with complete disregard for their culpability. At the least, the dissenting views provide support for law reform in this area and may be useful for reporting to UN treaty bodies and within the UPR process, or regarding new laws such as the proposed mandatory sentencing scheme for gun trafficking offences.
Nasir v Australia is significant in three respects. First, law and policy concerning the use of CJSCs must undergo immediate reform to address the Committee’s findings that indefinite, unreviewable detention pursuant to a CJSC violates articles 9(1), (3) and (4), and pre-charge detention should be kept to a few days at most, with immediate access to a judge upon issuance of a CJSC. These findings also create scope for similar challenges to the use of CJSCs as a basis for detention and potentially other privative clause decisions in the future. Second, the challenge to mandatory minimum sentencing, whilst unsuccessful in Mr Nasir’s case, leaves open a (small) window to bring similar challenges in the future, and the dissenting opinions provide arguments for law reform to these and other mandatory sentencing regimes. Finally, the Committee’s finding that litigation of an analogous case did not reduce the objective unlikelihood of success of a High Court appeal in this case may assist future claimants to demonstrate exhaustion of domestic remedies without seeking to mount a constitutional challenge if there is clearly unfavourable jurisprudence on the issue.
Ashleigh Condon and Caitlin Healey-Nash - UNSW Human Rights Clinic