Footnotes

[1]          Absolute rights are: the right not to be subjected to torture, cruel, inhuman or degrading treatment; the right not to be subjected to slavery; the right not to be imprisoned for inability to fulfil a contract; the right not to be subject to retrospective criminal laws; the right to recognition as a person before the law.

Chapter 1 - New and continuing matters

[1]          See Parliament of Australia website, 'Journals of the Senate', http://www.aph.gov.au/Parliamentary_Business/Chamber_documents/Senate_chamber_documents/Journals_of_the_Senate.

[2]          See Parliamentary Joint Committee on Human Rights, Twenty-first Report of the 44th Parliament (24 March 2015); and Parliamentary Joint Committee on Human Rights, Twenty‑third Report of the 44th Parliament (18 June 2015).

[3]          See sections 164 and 167 of the A New Tax System (Family Assistance) (Administration) Act 1999; sections 204 and 207 of the Social Security (Administration) Act 1999; sections 353 and 354 of the Student Assistance Act 1973; and sections 129 to 132 of the Paid Parental Leave Act 2010.

[4]          Section 168 of the A New Tax System (Family Assistance) (Administration) Act 1999; section 208 of the Social Security (Administration) Act 1999; section 355 of the Student Assistance Act 1973 and section 128 of the Paid Parental Leave Act 2010.

[5]          See section 7 of the Family Assistance (Public Interest Certificate Guidelines) Determination 2015; section 7 of the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015; section 7 of the Student Assistance (Public Interest Certificate Guidelines) Determination 2015; and section 4 of the Paid Parental Leave Rules 2010.

[6]          Note, there are more purposes in the individual Determinations, and not all purposes are included in each Determination. See Part 2 of the Family Assistance (Public Interest Certificate Guidelines) Determination 2015; Part 2 of the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015; Part 2 of the Student Assistance (Public Interest Certificate Guidelines) Determination 2015; and Division 4.1.2 of Part 4-1 of the Paid Parental Leave Rules 2010 as amended by the Paid Parental Leave Amendment Rules 2015.

[7]          The Family Assistance (Public Interest Certificate Guidelines) Determination 2015, the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 and the Student Assistance (Public Interest Certificate Guidelines) Determination 2015, but not the Paid Parental Leave Amendment Rules 2015.

[8]          The Family Assistance (Public Interest Certificate Guidelines) Determination 2015, the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 and the Student Assistance (Public Interest Certificate Guidelines) Determination 2015, but not the Paid Parental Leave Amendment Rules 2015.

[9]          Article 16 of the CRC.

[10]          Article 3(1).

[11]          The Family Assistance (Public Interest Certificate Guidelines) Determination 2015, the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 and the Student Assistance (Public Interest Certificate Guidelines) Determination 2015.

[12]        Appendix II; See Parliamentary Joint Committee on Human Rights, Guidance Note 1 - Drafting Statements of Compatibility (December 2014) http://www.aph.gov.au/~/media/Committees/Senate/committee/humanrights_ctte/guidance_notes/guidance_note_1/guidance_note_1.pdf.

[13]        See Attorney-General's Department, Template 2: Statement of compatibility for a bill or legislative instrument that raises human rights issues at http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSector/Pages/Statementofcompatibilitytemplates.aspx.

[14]        See paragraphs 18(1)(b) and (2)(d) of the Family Assistance (Public Interest Certificate Guidelines) Determination 2015; paragraphs 20(1)(b) and 20(2)(d) of the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 and paragraphs 21(1)(b) and 21(2)(d) of the Student Assistance (Public Interest Certificate Guidelines) Determination 2015.

[20]           Article 9 of the ICESCR.

[21]           Article 11 of the ICESCR.

[22]           Article 12 of the ICESCR.

[23]           Article 13 and 14 of the ICESCR and article 28 of the CRC.

[24]         Determination 1, EM 2 and Determination 2, EM 2.

[25]          See subsection 10(2) of the Autonomous Sanctions Act 2011.

[26]          As at 2 September 2015, the countries listed were the Democratic People's Republic of Korea; the former Federal Republic of Yugoslavia; Iran; Libya; Myanmar; Syria; Zimbabwe; and Ukraine (see section 6 of the Autonomous Sanctions Regulations 2011).

[27]          See in particular the Charter of the United Nations (Dealing with Assets) Regulations 2008 [F2014C00689].

[28]          See section 6 of the Charter of the United Nations Act 1945.

[29]          These criteria rely on a designation being made by the UN Security Council. As at 2 September 2015, the list of countries from which people have been designated by the UN Security Council are the Central African Republic; Côte d'Ivoire; Democratic People's Republic of Korea; Democratic Republic of the Congo; Eritrea; Iran; Iraq; Lebanon; Liberia; Somalia; South Sudan; Sudan; and Yemen. Also listed are individuals said to be involved with Al-Qaida; the Taliban; and Libyan Arab Jamahiriya, as well as anyone the UN Security Council lists under Resolution 1373. As such these instruments implement Australia's international obligations under the UN Charter with respect to decisions by the UN Security Council.

[30]          See Department of Foreign Affairs and Trade, 'Consolidated List', accessed 2 September 2015, available at: http://dfat.gov.au/international-relations/security/sanctions/pages/consolidated-list.aspx.

[31]          See Parliamentary Joint Committee on Human Rights, Sixth Report of 2013 (15 May 2013); Seventh Report of 2013 (5 June 2013) and Tenth Report of 2013 (26 June 2013).

[32]          See Appendix 1, Letter from the Hon Julie Bishop MP, Minister for Foreign Affairs, to Senator Dean Smith (dated 16 February 2015) 1.

[33]          Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

[34]        Article 14 of the ICCPR.

[35]        Article 17 and 23 of the ICCPR and article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[36]        Article 26 of the ICCPR.

[37]        Article 11 of the ICESCR.

[38]        Article 12 of the ICCPR.

[39]        Article 6 and 7 of the ICCPR, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Refugee Convention.

[40]        There may be issues relating to the compatibility of the sanctions regimes with the human rights listed at paragraph [1.84] which have not been examined in the analysis that follows.

[41]        See Parliamentary Joint Committee on Human Rights, Tenth Report of 2013 (26 June 2013) 15.

[42]        A number of academic studies and the European Parliament have said that it is difficult to gauge whether sanctions are effective. See, for example, European Parliament, Resolution of 4 September 2008 on the Evaluation of EU Sanctions as Part of the EU's Actions and Policies in the Area of Human Rights (2008/2031(INI)) and Stefan Lehne, The Role of Sanctions in EU Foreign Policy, December 2012 available at http://carnegieendowment.org/2012/12/14/role-of-sanctions-in-eu-foreign-policy/etnv.

[43]        See UN Human Rights Council, 28th session, agenda items 3 and 5, Research-based progress report of the Human Rights Advisory Committee containing recommendations on mechanisms to assess the negative impact of unilateral coercive measures on the enjoyment of human rights and to promote accountability, 10 February 2015.

[44]        Section 14 of the Autonomous Sanctions Regulations 2011 and section 21 of the Charter of the United Nations Act 1945.

[45]        See section 18 of the Autonomous Sanctions Regulations 2011 and section 22 of the Charter of the United Nations Act 1945.

[46]        See section 20 of the Autonomous Sanctions Regulations 2011.

[47]        See paragraph 20(3)(b) of the Autonomous Sanctions Regulations 2011.

[48]        See article 2(2) and article 41 of the Charter of the United Nations 1945.

[49]        See section 103 of the UN Charter which provides: 'In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail'.

[50]        HM Treasury v Ahmed [2010] UKSC2 at [60] (Ahmed).

[51]        Ahmed at [192] per Lord Brown.

[52]        Letter from Senator the Hon Bob Carr, Minister for Foreign Affairs to Mr Harry Jenkins MP, Chair, Parliamentary Joint Committee on Human Rights (dated 5 June 2013), published in the Parliamentary Joint Committee on Human Rights, Tenth Report of 2013 (26 June 2013) 18.

[53]        Appendix 2; See Parliamentary Joint Committee on Human Rights, Guidance Note 1 - Drafting Statements of Compatibility (December 2014) http://www.aph.gov.au/~/media/Committees/Senate/committee/humanrights_ctte/guidance_notes/guidance_note_1/guidance_note_1.pdf.

[54]        See Attorney-General's Department, Template 2: Statement of compatibility for a bill or legislative instrument that raises human rights issues at http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSector/Pages/Statementofcompatibilitytemplates.aspx.

[55]        See examples below at paragraph [1.114] and s 6 of the Autonomous Sanctions Regulations 2011.

[56]        See, for example, Kadi v Council of the European Union (Joined Cases C-402/05P and C-415/05P) and Abdelrazik v The Minister of Foreign Affairs [2009] FC 582, [51] (Canada).

[57]        It has broader asset freezing powers not restricted to terrorism but these cannot be applied to UK residents, see Part II of the Anti-terrorism, Crime and Security Act 2001 (UK).

[58]        See s 26 of TAFA 2010.

[59]        See subs 16(3) of TAFA 2010.

[60]        See s 30 of TAFA 2010.

[61]        See Third Report on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Review Period: Year to 16 September 2013), David Anderson QC, Independent Reviewer of Terrorism Legislation, December 2013 para 1.3.

[62]        See s 4 of TAFA 2010; First Report on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Review Period: December 2010 to September 2011), David Anderson QC, Independent Reviewer of Terrorism Legislation, December 2011, para 6.5; and Third Report on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Review Period: Year to 16 September 2013), David Anderson QC, Independent Reviewer of Terrorism Legislation, December 2013 para 3.4.

[63]        Third Report on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Review Period: Year to 16 September 2013), David Anderson QC, Independent Reviewer of Terrorism Legislation, December 2013 para 3.2.

[64]        First Report on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Review Period: December 2010 to September 2011), David Anderson QC, Independent Reviewer of Terrorism Legislation, December 2011 para 1.2.

[65]        See Third Report on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Review Period: Year to 16 September 2013), David Anderson QC, Independent Reviewer of Terrorism Legislation, December 2013 paras 3.2-3.7.

[66]        See section 6 and the definition of 'counter‑terrorism and national security legislation' in section 4 of the Independent National Security Legislation Monitor Act 2010. The INSLM briefly considered the UN Charter sanctions regime in its First Annual Report (Independent National Security Legislation Monitor, Annual Report (16 December 2011) 37-41) and considered it, together with the autonomous sanctions regime, in his Third Annual Report (Independent National Security Legislation Monitor, Annual Report (7 November 2013) 15-57). The INSLM's report mainly focused on the inadequacies of the listing process by the UN Security Council, and the disparity between the UN Charter sanctions regime and terrorism financing offences, and made recommendations in relation to this. None of the recommendations made by the INSLM have been responded to by the government (see Independent National Security Legislation Monitor, Annual Report (28 March 2014) 2).

[67]        See Independent National Security Legislation Monitor, Annual Report (7 November 2013) 30‑31 and Independent National Security Legislation Monitor, Annual Report (7 November 2013) 52.

[68]        Ahmed at [4].

[69]        R v HM Treasury, ex p M [2008] UKHL 26 at [15].

[70]        Appendix 2; See Parliamentary Joint Committee on Human Rights, Guidance Note 1 - Drafting Statements of Compatibility (December 2014) http://www.aph.gov.au/~/media/Committees/Senate/committee/humanrights_ctte/guidance_notes/guidance_note_1/guidance_note_1.pdf

[71]        See Attorney-General's Department, Template 2: Statement of compatibility for a bill or legislative instrument that raises human rights issues at http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSector/Pages/Statementofcompatibilitytemplates.aspx

[72]        See section 10 of the Autonomous Sanctions Regulations 2011.

[73]        See section 11 of the Autonomous Sanctions Regulations 2011.

[74]        See also examples set out above at paragraph [1.114].

[75]        For further details see letter from Senator the Hon Bob Carr, Minister for Foreign Affairs to Mr Harry Jenkins MP, Chair, Parliamentary Joint Committee on Human Rights (dated 19 June 2013), published in the Parliamentary Joint Committee on Human Rights, Tenth Report of 2013 (26 June 2013) 23.

[76]        Parliamentary Joint Committee on Human Rights, Tenth Report of 2013 (26 June 2013) 21-22.

[77]        Counter terrorism: the new UN listing regimes for the Taliban and Al-Qaida - Statement by the Special Rapporteur on human rights and counter terrorism, Martin Scheinin, 29 June 2011 at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=11191&LangID=E.

[78]        Ahmed v HM Treasury [2010] UKSC 2 (Ahmed) at [182].

[79]        See article 2(2) and article 41 of the Charter of the United Nations 1945.

[80]        See section 103 of the UN Charter which provides: 'In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail'.

[81]        See section 15 of the Charter of the United Nations Act 1945, s 20 of the Charter of the United Nations (Dealing with Assets) Regulations 2008 [F2014C00689] and resolution 1373 of the UN Security Council.

[82]        See section 6 and the definition of 'counter‑terrorism and national security legislation' in section 4 of the Independent National Security Legislation Monitor Act 2010.

[83]        Independent National Security Legislation Monitor, Annual Report (7 November 2013) 30-32.

[84]        See section 6 of the Autonomous Sanctions Regulations 2011.

[85]        See Migration Regulations 1994, section 2.43(1)(aa) and Public Interest Criterion 4003(c).

[86]        See section 6 of the Autonomous Sanctions Regulations 2011 in relation to Libya and Myanmar.

[87]        The prohibited grounds are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation.

[88]        See the explanatory statement to the Autonomous Sanctions Amendment (Ukraine) Regulation 2014 [F2014L00720].

Chapter 2 - Concluded matters

[1]          Parliamentary Joint Committee on Human Rights, Twenty-fourth Report of the 44th Parliament (23 June 2015) 3-6.

[2]          See Appendix 2, Letter from Senator Chris Back to the Hon Philip Ruddock MP (dated 17 July 2015) 2-3.

[4]          See Appendix 2, Letter from Senator Chris Back to the Hon Philip Ruddock MP (dated 17 July 2015) 3-7.

[5]          United Nations Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of persons), UN Doc CCPR/C/GC/35 (16 December 2014) 3.

[6]          United Nations Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of persons), UN Doc CCPR/C/GC/35 (16 December 2014) 3.

[7]          Parliamentary Joint Committee on Human Rights, Ninth Report of the 44th Parliament (15 July 2014) 83.

[8]          Parliamentary Joint Committee on Human Rights, Twelfth Report of the 44th Parliament (24 September 2014) 67.

[9]          Parliamentary Joint Committee on Human Rights, Twelfth Report of the 44th Parliament (24 September 2014) 55-64.

[10]        Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) 94-95, and Parliamentary Joint Committee on Human Rights, Seventeenth Report of the 44th Parliament (2 December 2014) 11-13.

[11]        Parliamentary Joint Committee on Human Rights, Twenty-fourth Report of the 44th Parliament (24 June 2015) 12-19.

[12]        The prohibited grounds are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation.

[13]        UN Human Rights Committee, General Comment 18, Non-discrimination (1989).

[14]        Althammer v Austria HRC 998/01, [10.2].

[15]        See Appendix 2, Letter from the Hon Scott Morrison MP, Minister for Social Services, to the Hon Philip Ruddock MP (dated 31 July 2015) 1-2.

[16]        See Parliamentary Joint Committee on Human Rights, Twelfth Report of the 44th Parliament (24 September 2014) 73, para 2.12.

[17]        Explanatory Memorandum (EM), Statement of Compatibility (SoC) 9.

[18]        Analysis commissioned by the New Zealand Government (Actuarial valuation of the Benefit System for Working-Age Adults as at 30 June 2013: Greenfield/Miller/McGuire), which would be broadly applicable to the Australian system, shows that if young unemployed people are not provided with the right mix of programmes and support, there is a high chance that they will end up trapped on welfare for much of their lives.

[19]        See Appendix 2, Letter from the Hon Scott Morrison MP, Minister for Social Services, to the Hon Philip Ruddock MP (dated 31 July 2015) 3-4.

[20]        See Parliamentary Joint Committee on Human Rights, Twelfth Report of the 44th Parliament (24 September 2014) 79, para 2.25.

[21]        EM, SoC 12.

[22]        See Appendix 2, Letter from the Hon Scott Morrison MP, Minister for Social Services, to the Hon Philip Ruddock MP (dated 31 July 2015) 4.

[23]        EM, SoC 12.