Membership of the committee

[1]        These are the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the Convention on the Elimination of Discrimination against Women (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child (CRC); and the Convention on the Rights of Persons with Disabilities (CRPD).

Chapter 1 - New and continuing matters

[1]        See appendix 1 for a list of legislation in respect of which the committee has deferred its consideration. The committee generally takes an exceptions based approach to its substantive examination of legislation.

[2]        The committee examines legislative instruments received in the relevant period, as listed in the Journals of the Senate. 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.

[3]        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.

[4]        Previously contained within Schedule 4 to the Higher Education and Research Reform Amendment Bill 2014 and Higher Education and Research Reform Bill 2014. See Parliamentary Joint Committee on Human Rights, Eighteenth Report of the 44th Parliament (10 February 2015) 59-60.

[5]        Previously contained within Schedule 8 to the Higher Education and Research Reform Amendment Bill 2014 and Higher Education and Research Reform Bill 2014. See Parliamentary Joint Committee on Human Rights, Eighteenth Report of the 44th Parliament (10 February 2015) 63-64.

[6]        Previously contained within Schedule 7 to the Higher Education and Research Reform Amendment Bill 2014 and Higher Education and Research Reform Bill 2014. See Parliamentary Joint Committee on Human Rights, Eighteenth Report of the 44th Parliament (10 February 2015) 62-63.

[7]        Originally contained in Schedule 1 to the Private Health Insurance Amendment Bill (No. 1) 2014, which passed the parliament and received Royal Assent on 26 November 2014. Schedule 6 to the current bill extends the measure for an additional three years. See Parliamentary Joint Committee on Human Rights, Thirteenth Report of the 44th Parliament (1 October 2014) 15.

[8]        Schedule 1 to the Labor 2013-14 Budget Savings (Measures No. 2) Bill 2015, which passed the parliament and received Royal Assent on 11 December 2015, replaced the student start-up scholarship payment with the student start-up loan. Schedule 11 to the current bill removes the student start-up scholarship for all remaining recipients. See Parliamentary Joint Committee on Human Rights, Thirty-third Report of the 44th Parliament (2 February 2016) 2.

[9]        Previously contained within the Social Services Legislation Amendment (Interest Charge) Bill 2016. See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 2.

[10]        Previously contained within the Social Services Legislation Amendment (Consistent Treatment of Parental Leave Payments) Bill 2016. See Parliamentary Joint Committee on Human Rights, Thirty-seventh Report of the 44th Parliament (19 April 2016) 2.

[11]        Originally contained in Schedule 2 to the Tax and Superannuation Laws Amendment (2015 Measures No. 3) Bill 2015. See Parliamentary Joint Committee on Human Rights, Twenty-third Report of the 44th Parliament (18 June 2015) 2.

[12]        Previously contained within the Veterans' Affairs Legislation Amendment (Single Appeal Path) Bill 2016. See Parliamentary Joint Committee on Human Rights, Thirty-fourth Report of the 44th Parliament (23 February 2016) 2.

[13]      Noting the bill was subsequently amended to remove Schedule 9.

[14]      Noting that the amendments made to Schedule 21 of the bill maintain the energy supplement for most social security recipients.

[15]      The amendments included the introduction of Schedule 21A—Income limit for Family Tax Benefit Part A Supplement.

[16]      There are some obligations in relation to economic, social and cultural rights which have immediate effect. These include the obligation to ensure that people enjoy economic, social and cultural rights without discrimination.

[17]      See, Limburg Principles on the Implementation of the International Covenant on Economic Social and Cultural Rights adopted in Maastricht 2-6 1986; UN Committee on Economic, Social and Cultural Rights, General Comment No. 3. The Nature of State Parties' Obligations (E/1991/23) (1990).

[18]      See Appendix 4.

[19]      Explanatory memorandum (EM), statement of compatibility (SOC) 119.

[20]      EM 212.

[21]      See EM 213.

[22]      EM 227.

[23]      EM 226.

[24]      See EM 226.

[25]      See Department of Social Services Guide to Social Security Law, Version 1.224 (15 August 2016) 3.1.12 'Employment Income Nil Rate Period' at: http://guides.dss.gov.au/guide-social-security-law/3/1/12.

[26]      EM, SOC 232.

[27]        See proposed sections 105A.3 and 105A.5.

[28]        See proposed section 105A.9. An interim detention order can last up to 28 days.

[29]        See proposed section 105A.9(3).

[30]        Criminal Code, Schedule 1, Division 72, Subdivision A.

[31]        Criminal Code, Schedule 1, Division 80, Subdivision B.

[32]        Criminal Code, Schedule 1, Part 5.3. The offences in Part 5.3 include directing the activities of a terrorist organisation; membership of a terrorist organisation; recruiting for a terrorist organisation; training involving a terrorist organisation; getting funds to, from or for a terrorist organisation; providing support to a terrorist organisation; associating with terrorist organisations; financing terrorism; and financing a terrorist.

[33]        Criminal Code, Schedule 1, Part 5.5. Offences under this part include incursions into foreign countries with the intention of engaging in hostile activities; engaging in a hostile activity in a foreign country; entering, or remaining in, declared areas; preparatory acts; accumulating weapons etc; providing or participating in training; and giving or receiving goods and services to promote the commission of an offence.

[34]        Under proposed section 105A.8 the court must have regard to the following matters in deciding whether it is satisfied: (a) the safety and protection of the community; (b) any report received from a relevant expert under section 105A.6 in relation to the offender, and the level of the offender's participation in the assessment by the expert; (c) the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious Part 5.3 offence, and the level of the offender's participation in any such assessment; (d) any report, relating to the extent to which the offender can reasonably and practicably be managed in the community, that has been prepared by: (i) the relevant state or territory corrective services; or (ii) any other person or body who is competent to assess that extent; (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender's participation in any such programs; (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while: (i) on release on parole for any offence; or (ii) subject to a continuing detention order or interim detention order; (g) the offender's criminal history (including prior convictions and findings of guilt in respect of any other offences); (h) the views of the sentencing court at the time the relevant sentence of imprisonment was imposed on the offender; (i) any other information as to the risk of the offender committing a serious Part 5.3 offence; (j) any other matter the court considers relevant.

[35]        Proposed section 105A.7.

[36]      Explanatory memorandum (EM) 4.

[37]      See proposed section 105.A.13(1).

[38]      Proposed section 105A.7(5) and (6).

[39]      Proposed section 105A.4.

[40]      See, UN Human Rights Committee, General Comment 35: Article 9, Right to Liberty and Security of Person (16 December 2014)[15], [21]. See, also UN Human Rights Committee, General Comment 8: Article 9, Right to Liberty and Security of Persons (30 June 1982).

[41]      See, for example, UN Human Rights Committee, General Comment 35: Article 9, Right to Liberty and Security of Person (16 December 2014) [21] .

[42]      EM 3.

[43]      The Crimes (High Risk Offenders) Act 2006 (NSW) was first enacted in 2006 as the Crimes (Serious Sex Offenders) Act 2006 to provide for continuing supervision and detention of people convicted of sex offences. The Act was amended in 2013 to extend the regime to people convicted of violent crimes.

[44]      The Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) was enacted in 2003 to provide for continuing supervision and detention of people convicted of sex offences.

[45]      Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) section 5; Crimes (High Risk Offenders) Act 2006 (NSW) section 13A.

[46]      Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) section 5; Crimes (High Risk Offenders) Act 2006 (NSW) section 14; Crimes (High Risk Offenders) Act 2006 (NSW) sections 5D, 5G.

[47]      Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) section 14; Crimes (High Risk Offenders) Act 2006 (NSW) sections 5D, 5G.

[48]      Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) section 13; Crimes (High Risk Offenders) Act 2006 (NSW) sections 5B, 5E.

[49]      In NSW this includes community safety, medical assessments, any other information relating to the likelihood of reoffending, the offender's compliance with supervision orders and willingness to engage in assessments or rehabilitation programs, the offender's criminal history, and any other matters that the court considers relevant: see, Crimes (High Risk Offenders) Act 2006 section 17(4). In Queensland this includes medical reports or other information relating to the likelihood that the prisoner will reoffend, the prisoner's criminal history, the prisoner's engagement with rehabilitation programs, community safety, and any other relevant matter: see Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) section 13.

[50]      Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) section 13; Crimes (High Risk Offenders) Act 2006 (NSW) sections 5D, 5G.

[51]      In Queensland continuing detention orders may be indefinite; in NSW a continuing order may be up to five years. The court may also order further continuing detention orders against the same offender: Crimes (High Risk Offenders) Act 2006 sections 17(4), 18(3).

[52]      Crimes (High Risk Offenders) Act 2006 section 24AC.

[53]      UN Human Rights Committee, (1629/2007) (18 March 2010).

[54]      UN Human Rights Committee (1635/2007) (18 March 2010).

[55]      See, proposed section 105.A.13(1). Some preventative detention regime proceedings are criminal in nature: Dangerous Sexual Offenders Act 2006 (WA) section 40.

[56]      Proposed section 105A.7.

[57]      State regimes currently contain a more limited version of this test; the court is required to consider whether a non-custodial supervision order would be adequate to address the risk in deciding whether to make a continuing detention order: see Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) section 13; Crimes (High Risk Offenders) Act 2006 (NSW) sections 5D, 5G.

[58]      See Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) section 13; Crimes (High Risk Offenders) Act 2006 (NSW) sections 5B, 5E.

[59]      See proposed section 105A.6.

[60]      Victorian Sentencing Advisory Council, High Risk Offenders: Post-sentence preventative detention: final report (2007) 115; NSW Sentencing Council, High-risk Violent Offenders: Sentencing and Post-Custody Management Options (2012).

[61]        Explanatory memorandum (EM) i.

[62]        See, article 22 of the ICCPR and article 8 of the ICESCR.

[63]        The Freedom of Association and Protection of the Right to Organize (ILO Convention No. 87) is expressly referred to in the ICCPR and the ICESCR.

[64]        ILO General Survey by the Committee of Experts on the Application of Conventions and Recommendations on Freedom of Association and Collective Bargaining (1994), [248]. See, also, ILO Committee of Experts on the Application of Conventions and Recommendations, Individual Observation concerning Right to Organise and Collective Bargaining Convention, 1949 (No. 98) Australia (ratification: 1973), ILO Doc 062009AUS098 (2009).

[65]        See ICCPR article 22.

[66]        See ILO Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) 182 (citing ILO Freedom of Association Committee 308th Report, Case No. 1897, [473]).

[67]        ILO Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) 182 (citing ILO Freedom of Association Committee 330th Report, Case No. 2194, [791]; and 335th Report, Case No. 2293, [1237]).

[68]        See Fair Work Act 2009, section 194.

[69]        EM, statement of compatibility (SOC) vi.

[70]      EM, SOC vii-viii.

[71]        See UN Human Rights Committee, Toonen v Australia, Communication No. 488/1992 (1992) and UN Human Rights Committee, Young v Australia, Communication No. 941/2000 (2003).

[72]        See section 5, definition of 'marriage' in the Marriage Act 1961.

[73]        See the discussion of the international human rights law position in Parliamentary Joint Committee on Human Rights, Thirtieth Report of the 44th Parliament (10 November 2015) 113‑114.

[74]        See Racial Discrimination Act 1975; Sex Discrimination Act 1984; Disability Discrimination Act 1992; and Age Discrimination Act 2004.

[75]        See proposed Subdivision B of Part 3 of the bill.

[76]        See proposed section 4 of the bill, definition of 'plebiscite matter'.

[77]        EM, SOC 7-8.

[78]        EM, SOC 8.

[79]        See clause 3 of Schedule 2 to the Broadcasting Services Act 1992.

[80]      See Human Rights Committee, General Comment No. 34, Article 19: Freedom of opinion and expression, [16].

[81]        The Biosecurity (Listed Human Diseases) Determination 2016 [F2016L01027] lists the communicable diseases that are to be classified as a listed human disease that may require certain biosecurity measures to be implemented, such as those set out in this regulation. The listed human diseases include human influenza with pandemic potential; Middle East respiratory syndrome; plague; severe acute respiratory syndrome; smallpox; viral haemorrhagic fevers; and yellow fever.

[82]        See, Biosecurity Act 2015 sections 71, 90-91.

[83]        See Appendix 2. See, also, LH v Latvia - 52019/07, Judgment 29 April 2014, ECHR (2014).

[84]        S and Marper v UK, ECtHR, 4 December 2008 [72] and [73].

[85]        Biosecurity (Human Health) Regulation 2016, subsection 10(2).

[86]        Biosecurity (Human Health) Regulation 2016, subsection 10(3).

[87]        See, Census and Statistics Act 1905 sections 14 and 15.

[88]        See, X v United Kingdom 9072/82 ECHR (6 October 1982).

[89]        See, Census and Statistics Act 1905 section 14.

[90]        See, Census and Statistics Act 1905 section 13.

[91]        See, Census and Statistics Act 1905 subsection 13(3).

[92]        See, Census and Statistics Act 1905 section 19A.

[93]        For example, Privacy Act 1988.

[94]        Australian Bureau of Statistics, Retention of names and addresses collected in the 2016 Census of Population and Housing, http://www.abs.gov.au/websitedbs/D3310114.nsf/home/Retention+of+names+and+addresses+collected.

[95]        Australian Bureau of Statistics, Privacy, confidentiality & security, http://www.abs.gov.au/websitedbs/censushome.nsf/home/privacy.

[96]      See, Sunday Times v the United Kingdom (no. 1) ECHR, judgment of 26 April 1979, Series A no. 30, 31, [49]; Larissis and Others v Greece judgment of 24 February 1998, Reports 1998-I, 378, § 40.

[97]      See, Hasan and Chaush v Bulgaria ECHR 30985/96 (26 October 2000) [84].

[98]        See Parliamentary Joint Committee on Human Rights, Twenty-eighth Report of the 44th Parliament (17 September 2015) 10-14; and Thirtieth Report of the 44th Parliament (10 November 2015) 102.

[99]        Federal Financial Relations (National Partnership payments) Determination No. 104 (March 2016) [F2016L01193]; Federal Financial Relations (National Partnership payments) Determination No. 105 (April 2016) [F2016L01194]; Federal Financial Relations (National Partnership Payments) Determination No. 106 (May 2016) [F2016L01201]; Federal Financial Relations (National Partnership Payments) Determination No. 107 (June 2016) [F2016L01202]; Federal Financial Relations (National Partnership Payments) Determination No. 108 (June 2016) [F2016L01203]; Federal Financial Relations (National Partnership Payments) Determination No. 108 (July 2016) [F2016L01211].

[100]        The committee has previously considered similar issues in relation to the human rights compatibility of funding allocation measures through appropriation bills; see Parliamentary Joint Committee on Human Rights, Twenty-third Report of the 44th Parliament (18 June 2015) Appropriation Bill (No. 3) 2014-2015 and Appropriation Bill (No. 4) 2014‑2015, 13-17.

[101]        Under section 5 of the Human Rights (Parliamentary Scrutiny) Act 2011, the determinations are not required to be accompanied by statements of compatibility because they are exempt from disallowance (the committee nevertheless scrutinises exempt instruments because section 7 of the same Act requires it to examine all instruments for compatibility with human rights).

[102]        Explanatory statement (ES) 2.

[103]        See Parliamentary Joint Committee on Human Rights, Thirtieth Report of the 44th Parliament (10 November 2015) 109 at [1.470].

[104]        See, for example, the terms and conditions set out in the ES of each Determination, 2.

[105]        See Social Security (Administration) Act 1999, Part 3B. Income management currently applies in the Perth Metropolitan, Peel and Kimberley regions, Laverton, Kiwirrkurra and Ngaanyatjarra Lands in Western Australia; Anangu Pitjantjatjara Yankunytjatjara Lands, Ceduna, Playford and Greater Adelaide in South Australia; Cape York, Rockhampton, Livingstone and Logan in Queensland; Bankstown in New South Wales; Greater Shepparton in Victoria; and in the NT.  See also Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 37-38.

[106]        See, further, Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 39.

[107]        See Parliamentary Joint Committee on Human Rights, Eleventh Report of 2013: Stronger Futures in the Northern Territory Act 2012 and related legislation (27 June 2013) and 2016 Review of Stronger Futures measures (16 March 2016).

[108]        Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 61.

[109]        Social Security (Administration) Act 1999, section 123UCA, and Social Security (Administration) (Vulnerable Welfare Payment Recipient) Principles 2013, subsection 8(1). These payments are: Special Benefit (for people aged under 16 years); Youth Allowance granted at the Unreasonable to Live at Home level of payment (for people aged between 16 and 24 years); and Crisis Payment on release from prison or psychiatric confinement (for people aged under 25 years).

[110]        Social Security (Administration) (Vulnerable Welfare Payment Recipient) Principles 2013, subsection 8(2), provides limited exceptions to the requirement to make a determination if the person's mental, physical or emotional wellbeing would be placed at risk as a result of being subject to income management; if the person is undertaking full-time study or is an apprentice; or if the person has received less than 25% of their applicable payment (i.e. because they have been receiving other declarable income, for example, from employment).

[111]        Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 43-63.

[112]        Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 42.

[113]        Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 52.

[114]      See Social Security (Administration) (Vulnerable Welfare Payment Recipient) Principles 2013, section 7.

[115]      Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 52, 56.

[116]      Statement of compatibility (SOC) 4.

[117]      SOC 1.

[118]        Human Rights (Parliamentary Scrutiny) Act 2011, s 8.

[119]        See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 27-84; and Twenty‑Fifth Report of the 44th Parliament (11 August 2015) 4-46.

[120]        Specified conduct under section 33AA(2) of the Australian Citizenship Act 2007 includes: (a)  engaging in international terrorist activities using explosive or lethal devices; (b)  engaging in a terrorist act;  (c)  providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act;  (d)  directing the activities of a terrorist organisation;   (e)  recruiting for a terrorist organisation;  (f)  financing terrorism; (g)  financing a terrorist; or (h)  engaging in foreign incursions and recruitment.

[121]        See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 34-59; and Twenty‑Fifth Report of the 44th Parliament (11 August 2015) 4-46.

[122]        See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) [2.154].

[123]        See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) [2.179].

[124]        See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 149-194; and Fourteenth Report of the 44th Parliament (28 October 2014) 85-88.

[125]        See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) [2.700].

[126]        See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 174-187.

[127]        See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 149-194

[128]        These rights are descripted at Appendix 2 of the report.

[129]        See Agiza v Sweden, Communication No. 233/2003, UN Doc CAT/C/34/D/233/2003 (2005) [13.7].

[130]        See Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament (24 November 2015) 21-36.

[131]        Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016).

[132]        Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 61.

[133]        Statement of compatibility (SOC) 5.

[134]        Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 48-49, and Thirty-first report of the 44th Parliament (24 November 2015) 23.

[135]        Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament (24 November 2015) 23.

[136]        SOC 2.

[137]        The committee originally considered the Building and Construction Industry (Improving Productivity) Bill 2013 and Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 in Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (11 February 2014) 1-30; Tenth Report of the 44th Parliament (26 August 2014) 43‑77; and Fourteenth Report of the 44th Parliament (28 October 2014) 106-113. These bills were then reintroduced as the Building and Construction Industry (Improving Productivity) Bill 2013 [No. 2] and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 [No. 2]; see Thirty-fourth Report of the 44th Parliament (23 February 2016) 2.

[138]        Proposed section 61(7) would provide power to the ABCC to compel the disclosure of information or documents not limited by any provision of any other law that prohibits the disclosure of information. Proposed section 105 allows disclosure of information to third parties for a wide range of purposes.

[139]        See the analysis of the 2015 bill at Parliamentary Joint Committee on Human Rights, Thirty‑second Report of the 44th Parliament (1 December 2015) 3-37 and Thirty-sixth Report of the 44th Parliament (16 March 2016) 85-136.

[140]        Schedules 1, 3, 4, 6, 7, 11, 12, 13, 14, 16 and 17 of the bill.

[141]        The committee has previously considered three bills in relation to counter-terrorism and national security: National Security Legislation Amendment Bill (No. 1) 2014; Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; and Counter-Terrorism Legislation Amendment Bill (No. 1) 2014.

[142]        See Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) 3.

[143]        See Parliamentary Joint Committee on Human Rights, Sixteenth Report of the 44th Parliament (25 November 2014) 7.

[144]        See Criminal Code section 104.4.

[145]        See Parliamentary Joint Committee on Human Rights: Fourteenth Report of the 44th Parliament (28 October 2014); Sixteenth Report of the 44th Parliament (25 November 2014); Nineteenth Report of the 44th Parliament (3 March 2015); Twenty-second Report of the 44th Parliament (13 May 2015); and Thirty-Sixth Report of the 44th Parliament (16 March 2016).

[146]        See Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) 16.

[147]        See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 90; for example, see Independent National Security Legislation Monitor, Declassified Annual Report (20 December 2012) 30.

[148]      Parliamentary Joint Committee on Human Rights, Thirty-second Report of the 44th Parliament (1 December 2015) 11.

[149]      For example, in its submission to the PJCIS inquiry into the bill the Law Council of Australia warned that control orders could be sought against persons to prevent online banking, online media or community and/or religious meetings. See, Law Council of Australia, Submission 16, Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter‑Terrorism Legislation Amendment Bill (No.1) 2014.

[150]      See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 93, 94.

[151]      Explanatory memorandum (EM), statement of compatibility (SOC) 20.

[152]      Parliamentary Joint Committee on Human Rights, Thirty-second Report of the 44th Parliament (1 December 2015) 14.

[153]      See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 100-105.

[154]      See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 102.

[155]      See recommendation 1 of Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment Bill (No.1) 2015 (15 February 2016).

[156]      The issuing court is not required to appoint a lawyer if (a) the proceedings are ex parte proceedings relating to a request for an interim control order; or (b) the person refused a lawyer previously appointed during proceeding relating to: (i)the control order; or(ii) if the control order is a confirmed control order the interim control order that was confirmed.

[157]      See subsection 105.4(4) of the Criminal Code. There is also the power for a PDO to be issued if a terrorist act has occurred within the last 28 days and it is reasonably necessary to detain a person to preserve evidence (subsection 105.4(6)).

[158]      See subsection 105.4(5) of the Criminal Code.

[159]      EM 72.

[160]      EM, SOC 28.

[161]      EM, SOC 28.

[162]      See Parliamentary Joint Committee on Human Rights: Fourteenth Report of the 44th Parliament (28 October 2014); Sixteenth Report of the 44th Parliament (25 November 2014); Nineteenth Report of the 44th Parliament (3 March 2015); Twenty-second Report of the 44th Parliament (13 May 2015); and Thirty-Sixth Report of the 44th Parliament (16 March 2016).

[163]      EM, SOC 28.

[164]      EM 72.

[165]      EM 72.

[166]      Section 101.6 of the Criminal Code make its offence to do 'any act in preparation for, or planning a terrorist act.

[167]      See Parliamentary Joint Committee on Human Rights, Thirty-Sixth Report of the 44th Parliament (16 March 2016) 123.

[168]      See recommendations 9 to 13 of Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment Bill (No.1) 2015 (15 February 2016) xvi-xvii.

[169]      See Schedule 8 to the 2016 bill, proposed paragraph 3ZZOA(4)(g) to the Crimes Act 1914 (Crimes Act).

[170]      See Schedule 8 to the 2016 bill, proposed subsections 3ZZKE(4) and (5) to the Crimes Act.

[171]      See Schedule 8 to the 2016 bill, proposed sections 3ZZTD and 3ZZTE to the Crimes Act; Schedule 9, proposed amendment to paragraph 35(1)(a), and proposed section 59B, to the Telecommunications (Interception and Access) Act 1979 (TI Act); and Schedule 10, proposed section 49A, proposed subsections 51(l)-(m) and proposed paragraph 52(1)(k), to the Surveillance Devices Act 2004 (SD Act).

[172]      See Schedule 8 to the 2016 bill, proposed section 3ZZUH to the Crimes Act; Section 9, amended subsection 84(1) to the TI Act; and Schedule 10, proposed subsection 55(2)(a) to the SD Act.

[173]      See Schedule 8 to the 2016 bill, proposed paragraphs 104.29(2)(g)-(i) to the Criminal Code.

[174]      See Schedule 9 to the 2016 bill, proposed paragraph 46(5)(f) to the TI Act.

[175]      See item 21 of Schedule 15 to the 2016 bill, proposed new subsection 38J(2) to the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act).

[176]      See item 21 of Schedule 15 to the 2016 bill, proposed new subsection 38J(3) to the NSI Act.

[177]      See item 21 of Schedule 15 to the 2016 bill, proposed new subsection 38J(4) to the NSI Act.

[178]      Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 128.

[179]      See recommendations 4, 5 and 6 of Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 (15 February 2016) 75-82.

[180]      Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 136.

[181]      See clause 2 of the 2016 bill (commencement).

[182]      EM 159.

[183]      Independent National Security Legislation Monitor, Report on the impact on journalists of section 35P of the ASIO Act (February 2016).

[184]      See Australian Security Intelligence Organisation Act 1979 (ASIO Act) sections 35P(1) and (2).

[185]      Parliamentary Joint Committee on Human Rights, Sixteenth Report of the 44th Parliament (25 November 2014) 33.

[186]      Parliamentary Joint Committee on Human Rights, Sixteenth Report of the 44th Parliament (25 November 2014) 56.

[187]      Parliamentary Joint Committee on Human Rights, Sixteenth Report of the 44th Parliament (25 November 2014) 56.

[188]      See item 4 of Schedule 18 to the 2016 bill, proposed new subsections 35P(1)-(2) to the ASIO Act.

[189]      See item 6 of Schedule 18 to the 2016 bill, proposed new subsection 35P(3A) to the ASIO Act.

[190]        See Parliamentary Joint Committee on Human Rights, Twenty-fourth Report of the 44th Parliament (23 June 2015) 3; and Twenty-eighth Report of the 44th Parliament (17 September 2015) 40.

[191]        See Parliamentary Joint Committee on Human Rights, Twenty-seventh Report of the 44th Parliament (8 September 2015) 8; and Thirtieth Report of the 44th Parliament (10 November 2015) 125.

[192]        The measures were originally introduced in the Fair Work (Registered Organisations) Amendment Bill 2013 (2013 bill); see Parliamentary Joint Committee on Human Rights, First Report of the 44th Parliament (10 December 2013) 21-28; and Fifth Report of the 44th Parliament (25 March 2014) 63-65. The measures were then reintroduced in the Fair Work (Registered Organisations) Amendment Bill 2014 (2014 no. 1 bill) (see Ninth Report of the 44th Parliament (11 February 2014) 21-28); the Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2] (2014 no. 2 bill) (see Twenty-second Report of the 44th Parliament (3 May 2016) 47-52); and the Fair Work (Registered Organisations) Amendment Bill 2014 [No. 3] (2014 no. 3 bill) (see Thirty-eighth Report of the 44th Parliament (3 May 2016) 2).

[193]        See Parliamentary Joint Committee on Human Rights, Fifth Report of the 44th Parliament (25 March 2014) 64 at [3.28].

[194]        The 2014 no. 1 bill was introduced without the amendments previously proposed by the minister in correspondence to the committee in relation to the 2013 bill. The committee noted this in conjunction with its consideration of the 2014 no. 1 bill in the Ninth Report of the 44th Parliament, and the 2014 no. 1 bill was subsequently amended by the government prior to it being negatived in the Senate. The 2014 no. 2 bill and 2014 no. 3 bill have subsequently been introduced in identical form to the amended 2014 no. 1 bill.

[195]        See Parliamentary Joint Committee on Human Rights, Twenty-second Report of the 44th Parliament (3 May 2016) 47-52.

[196]        See Parliamentary Joint Committee on Human Rights, Twenty-second Report of the 44th Parliament (3 May 2016) 52 at [1.211].

[197]        See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 195-234; Parliamentary Joint Committee on Human Rights, Nineteenth Report of the 44th Parliament (3 March 2015) 85-88.

[198]        A person may apply for a protection visa or a Removal Pending Bridging Visa (RPBV). However, if the visa that was cancelled was a protection visa, the person will be prevented from applying for another protection visa unless the minister exercises a personable, non‑compellable power to do so. Similarly, a person may apply for a Removal Pending Bridging Visa only if the minister has invited them to, and this is a personal, non-compellable power. Also, RPBVs are temporary and apply only so long as the minister is satisfied that a person's removal is not reasonably practicable.

[199]        Section 198 of the Migration Act 1958 (Migration Act).

[200]        See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016), 195-234.

[201]        Explanatory memorandum (EM) 1.

[202]        The non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and International Covenant on Civil and Political Rights are known as 'complementary protection'. This is because they are protection obligations available both to refugees and to people who are not covered by the Refugee Convention, and so are 'complementary' to the Refugee Convention.

[203]        The requirements for the effective discharge of Australia's non-refoulement obligations were set out in more detail in Second Report of the 44th Parliament (2 February 2015) [1.89] to [1.99]. See also Fourth Report of the 44th Parliament (18 March 2014) [3.55] to [3.66] (both relating to the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013). See Agiza v. Sweden, Communication No. 233/2003, UN Doc. CAT/C/34/D/233/2003 (2005), para 13.7. See also Arkauz Arana v. France, Communication No. 63/1997, CAT/C/23/D/63/1997 (2000), [11.5] and [12] and comments on the initial report of Djibouti (CAT/C/DJI/1) (2011), A/67/44, 38, [56(14)], see also: Concluding Observations of the Human Rights Committee, Portugal, UN Doc. CCPR/CO/78/PRT (2003) at [12].

[204]        See, Migration Act section 140E.

[205]        Explanatory memorandum (EM) 22.

[206]        The Social Services Legislation Amendment (Family Payments Structural Reform and Participation Measures) Bill 2015 passed both houses on 30 November 2015 with a number of amendments to remove certain measures; and achieved Royal Assent on 11 December 2015. The Social Services Legislation Amendment (Family Payments Structural Reform and Participation Measures) Bill (No. 2) 2015, containing the removed measures, was subsequently introduced. See Parliamentary Joint Committee on Human Rights, Thirtieth Report of the 44th Parliament (10 November 2015) 53-60; Thirty-third Report of the 44th Parliament (2 February 2016) 3; and Thirty-seventh Report of the 44th Parliament (19 April 2016) 49-57.

[207]        Measures in the bill were initially included in the Social Services and Other Legislation Amendment (2014 Budget Measures No. 1) Bill 2014 (the No. 1 bill) and the Social Services and Other Legislation Amendment (2014 Budget Measures No. 2) Bill 2014 (the No. 2 bill). The committee reported on the No. 1 bill and No. 2 bill in its Ninth Report of the 44th Parliament (15 July 2014) at 71-99; and concluded its examination of the No. 2 bill in its Twelfth Report of the 44th Parliament (24 September 2014) at 55-64. A number of measures in the No. 1 bill and No. 2 bill were subsequently reintroduced in the Social Services and Other Legislation Amendment (2014 Budget Measures No. 4) Bill 2014 (the No. 4 bill) (see Fourteenth Report of the 44th Parliament (28 October 2014) 94-95; and the committee's concluding remarks on the No. 1 bill and No. 4 bill in Seventeenth Report of the 44th Parliament (2 December 2014) 11‑13). They were again reintroduced in the Social Services Legislation Amendment (Youth Employment and Other Measures) Bill 2015 (see Twenty-fourth Report of the 44th Parliament (24 June 2015) 12-19; and Twenty-eighth Report of the 44th Parliament (17 September 2015) 51-63); and subsequently again in the Social Services Legislation Amendment (Youth Employment) Bill 2015 (see Twenty-ninth Report of the 44th Parliament (23 June 2015) 34-41).

[208]        See Parliamentary Joint Committee on Human Rights, Twenty-eighth Report of the 44th Parliament (17 September 2015) 55.

[209]        This may be because the bill does not engage or promotes human rights, and/or permissibly limits human rights.

Chapter 2 - Concluded matters

[1]        See proposed section 102A(2).

[2]        This view was preferred by Mr Ian Goodenough MP; Mr Russell Broadbent MP; Mr Julian Leeser MP; Senator James Paterson; and Senator Linda Reynolds.

[3]        This view was preferred by Mr Graham Perrett MP; Senator Nick McKim; and Senator Claire Moore.

[4]        The committee reported on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (RALC bill) in its Fourteenth Report of the 44th Parliament and Thirty-sixth Report of the 44th Parliament. The bill finally passed both Houses of Parliament on 5 December 2014 and received Royal Assent on 15 December 2014.

[5]        Parliamentary Joint Committee on Human Rights, Twenty-fourth Report of the 44th Parliament (24 June 2015) 20-24; and Thirty-sixth Report of the 44th Parliament (16 March 2016) 19-25.

[6]        The main criteria for the grant of a SHEV were introduced by an amendment to the RALC bill (see section 1404 set out in the bill). The committee therefore did not examine the human rights compatibility of the SHEV regime in full during its initial consideration of the RALC bill. However, many of the concerns outlined in the human rights assessment of the RALC bill, in respect of Temporary Protection Visas (TPVs), also apply to the SHEV regime, particularly in relation to Australia's non-refoulement obligations (see Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) 70-92).

[7]        See clause 8570 of Schedule 8 to the Migration Regulations 1994.

[8]        See UN Human Rights Committee, General Comment 27: Freedom of movement (1999) paragraphs [8] to [10].

[9]        See UN Human Rights Committee, General Comment 27: Freedom of movement (1999) paragraphs [8] to [10].

Appendix 1 - Deferred legislation

[1]        See Parliamentary Joint Committee on Human Rights, Thirty-fourth Report of the 44^th Parliament (23 February 2016) 4.

[2]        See Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44^th Parliament (16 March 2016) 2-3.

Appendix 2

[1]        Parliamentary Joint Committee on Human Rights, Guide to Human Rights (June 2015).

[2]        Parliamentary Joint Committee on Human Rights, Guidance Note 1 (December 2014).

[3]        The prohibited grounds of discrimination 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. The prohibited grounds of discrimination are often described as 'personal attributes'.

[4]         Althammer v Austria HRC 998/01, [10.2]. See above, for a list of 'personal attributes'.