Footnotes


Membership of the committee

[1]          The human rights committee secretariat is staffed by parliamentary officers drawn from the Department of the Senate Legislative Scrutiny Unit (LSU), which usually includes two principal research officers with specialised expertise in international human rights law. LSU officers regularly work across multiple scrutiny committee secretariats.

[2]          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 registered in the relevant period, as listed on the Federal Register of Legislation. See, https://www.legislation.gov.au/.

[3]          Currently, section 70 of the Crimes Act criminalises the disclosure of information by Commonwealth officers, obtained due to their role, in circumstances where they have a duty not to disclose such information. Similarly, section 79 of the Crimes Act also currently criminalises the disclosure of 'official secrets'. The bill proposes to replace these provisions.

[4]          'Commonwealth officer' would be defined broadly to include (a) an APS employee; (b) an individual appointed or employed by the Commonwealth otherwise than under the Public Service Act 1999; (c) a member of the Australian Defence Force; (d) a member or special member of the Australian Federal Police; (e) an officer or employee of a Commonwealth authority; (f) an individual who is a contracted service provider for a Commonwealth contract: Proposed section 121.1 of the Criminal Code.

[5]          Under proposed subsection 90.1(1) of the Criminal Code  a person 'deals' with information if the person receives or obtains it; collects it; possesses it; makes a record of it; copies it alters it; conceals it; communicates it; publishes it; or makes it available.

[6]          Strict liability applies to the element of the offence of whether the information is inherently harmful to the extent the information is security classified information: See, proposed subsection 122.1(4) and (5) of the Criminal Code.

[7]          See, proposed section 121.1 of the Criminal Code.

[8]          See, proposed section 121.1 of the Criminal Code.

[9]          This includes where the information in relation to the offence has a security classification of 'secret' or above; the record containing the information is marked 'for Australian eyes only' or as prescribed by regulation; the offence involves 5 or more records with a security classification; the offence involves the person altering a record to remove its security classification; or at the time the person committed the offence the person held an Australian Government security clearance. Strict liability applies as to whether 5 or more documents had a security classification.

[10]          What is not in the 'public interest' is defined in proposed section 122.5 (7).

[11]          See, Parliamentary Joint Committee on Human Rights, Report 9 of 2017 (5 September 2017) pp. 6-12; Report 11 of 2017 (17 October 2017) pp. 72-83.

[12]        Michel Forst, End of mission statement by United Nations Special Rapporteur on the situation of human rights defenders (Visit to Australia), 18 October 2016 http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20689&LangID=E;  François Crépeau, Report of the Special Rapporteur on the human rights of migrants on his mission to Australia and the regional processing centres in Nauru, Thirty-fifth session, Human Rights Council, A/HRC/35/25/Add.3 (24 April 2017) [86].

[13]        Michel Forst, End of mission statement by United Nations Special Rapporteur on the situation of human rights defenders Visit to Australia, 18 October 2016 http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20689&LangID=E;  François Crépeau, Report of the Special Rapporteur on the human rights of migrants on his mission to Australia and the regional processing centres in Nauru, Thirty-fifth session, Human Rights Council, A/HRC/35/25/Add.3 (24 April 2017) [86].

[14]        See, generally, Human Rights Committee, General comment No 34 (Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, [21]-[36] (2011). The right to freedom of expression may be subject to limitations that are necessary to protect the rights or reputations of others, national security, public order, or public health or morals.

[15]        Statement of compatibility (SOC) pp. 22-23.

[16]        SOC p. 22: UN Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression, CCPR/C/GC/34, (12 September 2011) [30].

[17]        Explanatory Memorandum (EM) p. 229.

[18]        See, Australian Government, Information security management guidelines Australian Government security classification system (April 2015) https://www.protectivesecurity.gov.au/informationsecurity/Documents/INFOSECGuidelinesAustralianGovernmentSecurityClassificationSystem.pdf.

[19]        See, proposed section 121.1 of the Criminal Code: 'cause harm to Australia's interests' includes 'interfere with or prejudice the prevention, detection, investigation, prosecution or punishment of: (i) a criminal offence against; or (ii) a contravention of a provision, that is subject to a civil penalty, of: a law of the Commonwealth; or (b) interfere with or prejudice the performance of functions of the Australian Federal Police under: (i) paragraph 8(1)(be) of the Australian Federal Police Act 9 1979 (protective and custodial functions); or (ii) the Proceeds of Crime Act 2002; or (c) harm or prejudice Australia’s international relations in  relation to information that was communicated in confidence: (i) by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country or an international organisation; and (ii) to the Government of the Commonwealth, to an authority of the Commonwealth, or to a person receiving the communication on behalf of the  Commonwealth or an authority of the Commonwealth; or (d) harm or prejudice Australia’s international relations in any other way; or (e) harm or prejudice relations between the Commonwealth and a State or Territory; or (f) harm or prejudice the health or safety of the public or a section of the public.

[20]        Privacy Act 1988 section 68A;

[21]        Broadcasting Services Act 1992 section 135.

[22]        SOC p. 22.

[23]        David Kaye, Special Rapporteur, Promotion and Protection of the Right to Freedom of Opinion and Expression, 70th sess, UN Doc A/70/361 (8 September 2015) 5 [8]

[24]        Under proposed subsection 90.1(1) of the Criminal Code a  person 'deals' with information if the person receives or obtains it; collects it; possesses it; makes a record of it; copies it; alters it; conceals it; communicates it; publishes it; or makes it available.

[25]        Proposed section 122.5(7) provides that, dealing with or holding information is not in the public interest if (a) dealing with or holding information that would be an offence under section 92 of the Australian Security Intelligence Organisation Act 1979 (publication of identity of ASIO employee or ASIO affiliate); (b) dealing with or holding information that would be an offence under section 41 of the Intelligence Services Act 2001 (publication of identity of staff); (c) dealing with or holding information that would be an offence under section 22, 22A or 22B of the Witness Protection Act 1994 (offences relating to Commonwealth, Territory, State participants); (d) dealing with or holding information that will or is likely to harm or prejudice the health or safety of the public or a section of the public.

[26]        Strict liability applies to the element of the offence of whether the information is inherently harmful to the extent the information is security classified information: See, proposed subsection 122.1(4) and (5) of the Criminal Code.

[27]        Michel Forst, End of mission statement by United Nations Special Rapporteur on the situation of human rights defenders (Visit to Australia), 18 October 2016 http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20689&LangID=E.

[28]        Michel Forst, End of mission statement by United Nations Special Rapporteur on the situation of human rights defenders (Visit to Australia), 18 October 2016 http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20689&LangID=E.

[29]        SOC, p. 16.

[30]        SOC, p. 16.

[31]        SOC, p. 17.

[32]        EM, p. 229.

[33]        Under section 42 of the Australian Border Force Act it is an offence to disclose categories of information including information which has a security clearance. Section 50A provides that if an offence against section 42 relates to information that has a security classification, a prosecution must not be initiated 'unless the Secretary has certified that it is appropriate that the information had a security classification at the time of the conduct'.

[34]        See EM pp. 276-283.

[35]        See explanatory memorandum, p. 88.

[36]        See, Inspector-General of Intelligence and Security, Submission 13, Parliamentary Joint Committee on Intelligence and Security inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 pp. 5-6.

[37]        EM, p. 26.

[38]        EM, p. 26.

[39]        Under proposed subsection 90.1(1) a person deals with information or an article if the person: (a) receives or obtains it; (b) collects it; (c) possesses it; (d) makes a record of it; (e) copies it; (f) alters it; (g) conceals it; (h) communicates it; (i) publishes it; (j) makes it available.

[40]        'Security classification' is to have the meaning prescribed by regulation: Proposed section 90.5.

[41]        Proposed section 90.4 defines 'national security' of Australia or a foreign country as (a) the defence of the country; (b) the protection of the country or any part of it, or the people of the country or any part of it, from defined activities (espionage; sabotage; terrorism; political violence; activities intended and likely to obstruct, hinder or interfere with the performance of the defence force; foreign interference); (c) the protection of the integrity of the country' s territory and borders from serious threats; (d) the carrying out of the country's responsibilities to any other country in relation to the matter mentioned in paragraph (c) or a defined activity; (e) the country's political, military or economic relations with another country or other countries.

[42]        Proposed section 90.2 of the Criminal Code defines 'foreign principal' as: (a) a foreign government principal; (b) a public international organisation (c) a terrorist organisation (d) an entity or organisation owned, directed or controlled by a foreign principal within the meaning of paragraph (b) or (c); (e) an entity or organisation owned, directed or controlled by 2 or more foreign principals.

[43]        Proposed section 91.1 of the Criminal Code. Strict liability applies to the element of whether information has a security classification.

[44]        Proposed section 91.2 of the Criminal Code.

[45]        Proposed section 91.3. Strict liability applies to the element of whether information has a security classification.

[46]        Proposed section 91.8 defines 'espionage' by reference to offences in Division A, sections 91.1, 91.2, 91.3, 91.6.  

[47]        Proposed section 91.8.

[48]        Proposed section 91.11. This section defines 'espionage' by reference to offences in Division A, sections 91.1, 91.2, 91.3, 91.6 and Division B, section 91.8.

[49]        Proposed section 91.12. This section defines 'espionage' by reference to offences in Division A, sections 91.1, 91.2, 91.3, 91.6 and Division B, section 91.8.

[50]        See, proposed sections 91.4, 91.9, 91.13. For example, it is a defence where the person dealt with the information or article in accordance with Commonwealth law; the person acted in accordance with an agreement or arrangement to which the Commonwealth was a party; the information is already public with the authority of the Commonwealth.

[51]        'Security classification' is to have the meaning prescribed by regulation: Proposed 90.5.

[52]        Proposed section 90.4 defines 'national security' of Australia or a foreign country as (a) the defence of the country; (b) the protection of the country or any part of it, or the people of the country or any part of it, from defined activities (espionage; sabotage; terrorism; political violence; activities intended and likely to obstruct, hinder or interfere with the performance of the defence force, foreign interference); (c) the protection of the integrity of the country' s territory and borders from serious threats; (d) the carrying out of the country's responsibilities to any other country in relation to the matter mentioned in paragraph (c) or a defined activity; (e) the country's political, military or economic relations with another country or other countries.

[53]        See proposed section 91.4 of the Criminal Code.

[54]        Proposed section 90.2 of the Criminal Code defines 'foreign principal' as: (a) a foreign government principal; (b) a public international organisation (c) a terrorist organisation (d) an entity or organisation owned, directed or controlled by a foreign principal within the meaning of paragraph (b) or (c); (e) an entity or organisation owned, directed or controlled by 2 or more foreign principals.

[55]        Proposed sections 92.2 (2), 92.3(2).

[56]        Proposed sections 92.3-92.10.

[57]        Proposed sections 92.5, 92.11.

[58]        Proposed section 90.2 of the Criminal Code.

[59]        Proposed section 92.5.

[60]        Proposed section 92.11.

[61]        See, EM, p. 215.

[62]        EM, p. 216.

[63]        See, UN Human Rights Committee, Smantser v Belarus (1178/03); WBE v the Netherlands (432/90); Hill and Hill v Spain (526/93).

[64]        See, In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147 (19 November 2010): the ACT Supreme Court declared that a provision of the Bail Act 1992 (ACT) was inconsistent with the right to liberty under section 18 of the ACT Human Rights Act 2004 which required that a person awaiting trial not be detained in custody as a 'general rule'. Section 9C of the Bail Act required those accused of murder, certain drug offences and ancillary offences, to show 'exceptional circumstances' before having a normal assessment for bail undertaken. 

[65]        SOC, p. 13.

[66]        SOC, p. 13.

[67]        See, Crimes Act 1914 section 15AB.

[68]        SOC, p. 13.

[69]        See, In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147 (19 November 2010);

[70]        EM, pp. 298-301.

[71]        See TIA Act section 46.

[72]        The committee has considered proposed amendments to the TIA Act on a number of previous occasions: See, Parliamentary Joint Committee on Human Rights, Law Enforcement Integrity Legislation Amendment Bill 2012, Fifth Report of 2012 (October 2012) pp. 21-21; Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, Fifteenth Report of the 44th Parliament (14 November 2014) pp. 10-22; Twentieth report of the 44th Parliament (18 March 2015) pp. 39-74; and Thirtieth report of the 44th Parliament (10 November 2015) pp. 133-139; the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, Thirty-second report of the 44th Parliament (1 December 2015) pp. 3-37 and Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 85-136; the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016, Report 9 of 2016 (22 November 2016) pp. 2-8 and Report 1 of 2017 (16 February 2017) pp. 35-44; and the Telecommunications (Interception and Access - Law Enforcement Conduct Commission of New South Wales) Declaration 2017 [F2017L00533], Report 7 of 2017 (8 August 2017) pp. 30-33.

[73]        See, for example, Parliamentary Joint Committee on Human Rights, Telecommunications (Interception and Access – Law Enforcement Conduct Commission of New South Wales) Declaration 2017 [F2017L00533], Report 7 of 2017 (8 August 2017) p. 33; Investigation and Prosecution Measures Bill 2017, Report 12 of 2017 (28 November 2017) p. 88.

[74]        SOC, p. 19.

[75]        SOC, pp. 19-20.

[76]        See item 3 of part 2 of schedule 5.

[77]        See explanatory memorandum to the bill, p. 303.

[78]        See proposed section 287F of the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 (the electoral funding bill). Additionally, an entity must register as a political campaigner if their political expenditure in the current financial year is $50,000 or more, and their political expenditure during the previous financial year was at least 50 per cent of their allowable amount.

[79]        Proposed section 287(1) of the electoral funding bill.

[80]        Proposed section 12(1)(g) in item 4 of schedule 5 of the bill.

[81]        foreign principal means: (a)  a foreign government; (b)  a foreign public enterprise; (c)  a foreign political organisation; (d)  a foreign business; (e)  an individual who is neither an Australian citizen nor a permanent Australian resident.

[82]        Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018)
pp. 34-44.

[83]        The right to freedom of expression in Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) includes freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or print, in the form of art, or through any other media of her or his choice.

[84]        The right to freedom of association in Article 22 of the ICCPR protects the right to join with others in a group to pursue common interests. The right prevents States parties from imposing unreasonable and disproportionate restrictions on the right to form associations, including imposing procedures that may effectively prevent or discourage people from forming an association.

[85]        The right to take part in public affairs includes the right of every citizen to take part in the conduct of public affairs by exerting influence through public debate and dialogues with representatives either individually or through bodies established to represent citizens.

[86]        The right to privacy protects against arbitrary and unlawful interferences with an individual's privacy, and recognises that individuals should have an area of autonomous development; a 'private sphere' free from government intervention and excessive unsolicited intervention by others. The right to privacy also includes respect for informational privacy, including the right to control the dissemination of information about one's private life.

[87]        Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018)
pp. 39-40.

[88]        Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018) p. 43.

[89]        Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018) p. 41.

[90]        Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018)
pp. 11-29.

[91]        Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018)
pp. 16-17.

[92]        Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018) p. 17.

[93]        Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018) p. 17.

[94]        Statement of compatibility to the foreign influence bill, [21], [85].

[95]          See Social Security (Administration) Act 1999, Part 3B.

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

[97]          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).

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

[99]          Explanatory Statement (ES), p. 1.

[100]          Section 27 of the Alcohol Harm Reduction Act 2017 (NT).

[101]          See Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) p. 38 and p. 41.

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

[103]          Statement of Compatibility (SOC), p. 7.

[104]        SOC, pp. 7-8.

[105]        SOC, p. 9.

[106]        SOC, p. 9.

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

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

[109]        Section 34 of the Alcohol Mandatory Treatment Act 2013. A mandatory treatment order was able to be made when the AMTT considered that an adult is misusing alcohol, had lost the capacity to make appropriate decisions about their alcohol use or personal welfare and the misuse was a risk to their health, safety or welfare or to others: see Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016)
p. 41.

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

[111]        Section 29 of the Alcohol Harm Reduction Act 2017.

[112]        Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) pp. 60-61.

Chapter 2 - Concluded matters

[1]             Parliamentary Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 2-5.

[2]          Special purpose funding entities are described in the explanatory statement as 'a vehicle established to raise or receive funds from investors or a securitisation entity that usually has no employees and acts through a servicing agreement with a third party who must hold an ACL and who is required to meet the obligations of a credit provider under the agreement. A special purpose funding entity therefore does not need to hold an ACL if it operates under the exemption in the National Credit Regulations'. See ES, p. 6.

[3]          Explanatory Statement (ES) 1.

[4]          See subsection 53B(3).

[5]          See subsection 53B(4).

[6]          ES, p. 2.

[7]          Parliamentary Joint Committee on Human Rights, Report 5 of 2017 (14 June 2017) pp. 2-13.

[8]          Parliamentary Joint Committee on Human Rights, Report 9 of 2017 (5 September 2017)
pp. 45-63.

[9]          Parliamentary Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)

pp. 58-79.

[10]             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) pp. 1-30; Tenth Report of the 44th Parliament (26 August 2014) pp. 43‑77; and Fourteenth Report of the 44th Parliament (28 October 2014) pp. 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. The bills were reintroduced to the Senate on 31 August 2016, following the commencement of the 45th Parliament; see Report 7 of 2016 (11 October 2016) pp. 62-63. See also, International Labour Organization, Committee of Experts on the Application of Conventions and Recommendations, Direct Request, adopted 2016, published 106th ILC session (2017) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) – Australia.

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

[12]             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.

[13]             ILO, General Survey by the Committee of Experts on the Application of Conventions and Recommendations on Freedom of Association and Collective Bargaining (1994), [248]; 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). See, also, ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), Direct Request (CEACR) - adopted 2016, published 106th International Labour Conference (ILC) session (2017) Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Australia (Ratification: 1973) http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID:3299912; ILO's Committee on Freedom of Association (CFA Committee), Report in which the committee requests to be kept informed of development - Report No 338, November 2005 Case No 2326 (Australia) - Complaint date: 10 March 2004, http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2908523.

[14]             See ICCPR article 22.

[15]             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]).

[16]           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]).

[17]           Code for the Tendering and Performance of Building Work 2016, Explanatory Statement (ES), statement of compatibility (SOC) 6.

[18]           ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), Direct Request - adopted 2016, published 106th ILC session (2017), Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Australia http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:3299912,102544,Australia,2016.

[19]           ILO's Committee on Freedom of Association (CFA Committee), Report in which the committee requests to be kept informed of development - Report No 338, November 2005 Case No 2326 (Australia) - Complaint date: 10 March 2004 http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2908523.

[20]           UN Committee on Economic, Social and Cultural Rights, Concluding Observations, Australia, E/C.12/AUS/CO/4 (12 June 2009).

[21]           See, for example, 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) pp. 55-56; Report 7 of 2016 (11 October 2016) pp. 21-24, pp. 62-63; Report 8 of 2016 (9 November 2016) pp. 62-64.

[22]           Parliamentary Joint Committee on Human Rights, Report of 9 of 2017 (5 September 2017) pp. 45-63.

[23]           These include clauses that provide subcontractors need to afford workers equivalent terms and conditions to those contained in the relevant enterprise agreement; that contain limitations on when and the ways in which employers can direct employees to perform work; paid union meetings on work time; and clauses requiring union consultation. 

[24]        See, UN Committee on Economic Social and Cultural Rights (UNCESCR), Concluding Observations on Australia, E/C.12/AUS/CO/5 (23 June 2017) [29]-[30]: 'The Committee is also concerned that the right to strike remains constrained in the State party (art. 8). The Committee recommends that the State party bring its legislation on trade union rights into line with article 8 of the Covenant and with the provisions of the relevant International Labour Organization (ILO) Conventions (nos. 87 and 98), particularly by removing penalties, including six months of incarceration, for industrial action, or the secret ballot requirements for workers who wish to take industrial action.' See, also, CEACR, Direct Request - adopted 2016, published 106th ILC session (2017) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Australia (Ratification: 1973) http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:3298573,102544,Australia,2016; CEACR, Observation - adopted 2016, published 106th ILC session (2017) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Australia (Ratification: 1973) http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:3298569,102544,
Australia,2016.

[25]           See, for example, CEACR Observation - adopted 2009, published 99th ILC session (2010) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Australia (Ratification: 1973) http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:2314863,102544,Australia,2009.

[26]           Section 6(1) of the Code for the Tendering and Performance of Building Work 2016 provides that an entity becomes covered by the code from the first time they submit an expression of interest or tender for commonwealth funded building work.

[27]           ILO's Committee on Freedom of Association (CFA Committee), Report in which the committee requests to be kept informed of development - Report No 338, November 2005 Case No 2326 (Australia) - Complaint date: 10 March 2004 http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2908523.

[28]           ILO, Committee of Experts on the Application of Conventions and Recommendations (CEACR), Direct Request - adopted 2016, published 106th ILC session (2017), Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Australia http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:3299912,102544,Australia,2016.

[29]           UN Committee on Economic Social and Cultural Rights, Concluding Observations on Australia, E/C.12/AUS/CO/5 (23 June 2017) [29].

[30]           Parliamentary Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
   pp. 58- 79.

[31]           ICCPR, article 19(2).

[32]           See, generally, Human Rights Committee, General comment No 34 (Article 19: Freedoms of opinion and expression), CCPR/C/GC/34 [21]-[36] (2011).

[33]           See, ILO, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth revised edition (2006) [154]-[173]. 

[34]           ES, SOC, p. 8.

[35]           See Attorney-General's Department, Template 2: Statement of compatibility for a bill or legislative instrument that raises human rights issues, at https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/Documents/Template2.pdf.

[36]           See, ILO, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth revised edition (2006) [161]-[163]. 

[37]           See, ILO, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth revised edition (2006) [365]-[367]. 

[38]           See, ILO, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth revised edition (2006) [161]-[163]. 

[39]           ES, SOC, p. 8.

[40]           ES, p. 3.

[41]           ES, SOC, p. 8.

[42]           See ICCPR article 22.

[43]           See ICESCR article 8, ICCPR article 22.

[44]           See, ILO, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth revised edition (2006) [161]-[163]. 

[45]           See, ILO, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth revised edition (2006) [161]-[163]. 

[46]           See, ILO, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth revised edition (2006) [162]-[163]. 

[47]          Parliamentary Joint Committee on Human Rights, Report 13 of 2017 (5 December 2017)
pp. 2-16.

[48]          See proposed section 16 of the bill.

[49]          Proposed section 117(1) of the bill provides that the minister may, by legislative instrument, make rules prescribing matters required or permitted by the bill to be prescribed by the rules, or necessary or convenient to be prescribed for carrying out or giving effect to the bill.

[50]          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'.

[51]          Althammer v Austria, HRC 998/01, [10.2]

[52]          For a further discussion of the right to an effective remedy, see below.

[53]          Statement of Compatibility (SOC), p. 70.

[54]          Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015), p. 347.

[55]          SOC, pp. 69-70.

[56]        The power to determine eligibility by way of legislative instrument will be discussed further below in relation to the right to an effective remedy.

[57]        Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) 347.

[58]        Article 24 of the International Covenant on Civil and Political Rights: see Statement of Compatibility (SOC), p. 70.

[59]        Articles 19 and 34 of the Convention on the Rights of the Child: see SOC, p. 69.

[60]        See also Committee on the Rights of the Child, General Comment No.13: Article 19: The right of the child to freedom from all forms of violence, CRC/C/GC/13 (2011), pp. 14-15.

[61]        See 'Child sex abuse redress scheme to cap payments at $150,000 and exclude some criminals' (26 October 2017): http://www.abc.net.au/news/2017-10-26/sex-offenders-to-be-excluded-from-child-abuse-redress-scheme/9087256.

[62]        See the discussion of the human rights implications of expressing legal discretion of the executive in overly broad terms in Hasan and Chaush v Bulgaria ECHR 30985/96 (26 October 2000) [84].

[63]        The statement of compatibility does acknowledge this right is engaged in relation to other aspects of the bill, discussed further below.

[64]        See pages 69-70. This aspect of the bill is discussed above in relation to the right to equality and non-discrimination.

[65]        See UN Human Rights Committee, General Comment No. 29, States of Emergency (article 4) (2001), [14].

[66]        Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report: Impacts, Volume 3 (2017) 11.  See also, James RP Ogloff, Margaret C Cutajar, Emily Mann and Paul Mullen, 'Child sexual abuse and subsequent offending and victimisation: A 45 year follow-up study'(2012) Trends & Issues in Crime and Criminal Justice No.440.

[67]        Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report: Impacts, Volume 3 (2017) 143-145. See also Royal Commission into Institutional Responses to Child Sexual Abuse, Interim Report, Volume 1 (2014), pp. 116-117.

[68]        UN Human Rights Committee, General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.1326 (2004) [18]; see also UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UNGA Res 60/147 (2006) pp. 8-9.

[69]        Explanatory memorandum, pp. 16-17.

[70]        SOC, p. 70 and p. 73.

[71]        SOC, p. 70.

[72]        See SOC, p. 66.

[73]        SOC, pp. 70-71.

[74]        See proposed section 117(2)(a) of the bill.

[75]        It is noted that the recommendation as to the provision of legal services of the Royal Commission into Institutional Responses to Child Sexual Abuse was that 'a redress scheme should fund, at a fixed price, a legal consultation for an applicant before the applicant decides whether or not to accept the offer of redress and grant the required releases':  Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) Recommendation 64, 390

[76]        The Commonwealth Redress Scheme Operator is the Secretary to the Human Services Department (or the Department administered by the Minister administering the Human Services (Centrelink) Act 1997), and is responsible for operating the scheme, including making offers of redress to the person.

[77]        Proposed section 77(1)(a) of the bill.

[78]        Proposed section 77(1)(b) of the bill.

[79]        SOC, p. 71.

[80]        SOC, p. 72.

[81]        SOC, p. 71.

[82]        Proposed section 77(1(a) of the bill.

[83]        Proposed sections 81-84 of the bill.

[84]        See proposed section 78(3) of the bill.

[85]        See proposed section 78(1) of the bill.

[86]        Proposed section 79(3) of the bill.

[87]        The committee has previously considered that the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 is compatible with the right to privacy: see Parliamentary Joint Committee on Human Rights, Thirtieth Report of the 44th Parliament (10 November 2015) p. 140 and pp. 146-147.

[88]        Proposed Part 4-3 of the bill.

[89]        Proposed sections 87 and 88 of the bill.

[90]        Proposed section 88(2) of the bill.

[91]        Proposed section 88(3) of the bill.

[92]        Schedule 3 of the consequential amendments bill.

[93]        See UN Human Rights Committee, General Comment 32: Article 14, Right to Equality before Courts and Tribunals and to Fair Trial (2007) [16].

[94]                             Parliamentary Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 16-24.

[95]                              Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018)
pp. 59-77.

[96]              Statement of Compatibility (SOC), p. xi.

[97]             See, article 22 of the ICCPR and articles 7, 8 of the ICESCR.

[98]             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.

[99]             ILO, General Survey by the Committee of Experts on the Application of Conventions and Recommendations on Freedom of Association and Collective Bargaining (1994) [248];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). See, also, ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR),Direct Request (CEACR) - adopted 2016, published 106th International Labour Conference (ILC) session (2017) Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Australia (Ratification: 1973) http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID:3299912; ILO's Committee on Freedom of Association (CFA Committee), Report in which the committee requests to be kept informed of development - Report No 338, November 2005 Case No 2326 (Australia) - Complaint date: 10 March 2004, http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2908523.

[100]             See ICCPR article 22.

[101]             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]).

[102]             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]).

[103]           See, for example, ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), Direct Request - adopted 2016, published 106th ILC session (2017), Right to Organise and Collective Bargaining Convention, 1949 (No. 98) – Australia http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:3299912,102544,Australia,2016.

[104]           ILO's Committee on Freedom of Association (CFA Committee), Report in which the committee requests to be kept informed of development - Report No 338, November 2005 Case No 2326 (Australia) - Complaint date: 10 March 2004 http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2908523.

[105]           SOC, p. xi.

[106]           SOC, p. x.

[107]           SOC, p. xi.

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

[109]        See ILO Convention N.87 article 3.

[110]        SOC, p. x.

[111]        SOC, p. x.

[112]        SOC, p. x.

[113]        SOC, p. x.

[114]        SOC, p. x.

[115]        See, Schedule 4, item 355, proposed section 355A of the Fair Work Act.

[116]        See, UN Committee on Economic Social and Cultural Rights (UNCESCR), Concluding Observations on Australia, E/C.12/AUS/CO/5 (23 June 2017) [29]-30]: 'The Committee is also concerned that the right to strike remains constrained in the State party (art. 8).The Committee recommends that the State party bring its legislation on trade union rights into line with article 8 of the Covenant and with the provisions of the relevant International Labour Organization (ILO) Conventions (nos. 87 and 98), particularly by removing penalties, including six months of incarceration, for industrial action, or the secret ballot requirements for workers who wish to take industrial action'. See, also, ILO CEACR, Observation Concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Australia, 103rd ILC session, 2013; ILO CEACR, Observation Concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Australia, 101st ILC session, 2013; ILO CEACR, Observation Concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Australia, 99th ILC session, 2009; ILO CEACR, Individual Observation Concerning the Right to Organise and Collective Bargain Convention, 1949, (No. 98), Australia, 99th session, 2009. See also, UNCESCR, Concluding Observations on Australia, E/C.12/AUS/CO/4 (12 June 2009) p. 5.

[117]        SOC, p. xi.

[118]        See, UN Committee on Economic Social and Cultural Rights (UNCESCR), Concluding Observations on Australia, E/C.12/AUS/CO/5 (23 June 2017) [29]-30]: 'The Committee is also concerned that the right to strike remains constrained in the State party (art. 8).The Committee recommends that the State party bring its legislation on trade union rights into line with article 8 of the Covenant and with the provisions of the relevant International Labour Organization (ILO) Conventions (nos. 87 and 98), particularly by removing penalties, including six months of incarceration, for industrial action, or the secret ballot requirements for workers who wish to take industrial action'. See, also, ILO CEACR, Observation Concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Australia, 103rd ILC session, 2013; ILO CEACR, Observation Concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Australia, 101st ILC session, 2013; ILO CEACR, Observation Concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Australia, 99th ILC session, 2009; ILO CEACR, Individual Observation Concerning the Right to Organise and Collective Bargain Convention, 1949, (No. 98), Australia, 99th session, 2009. See also, UNCESCR, Concluding Observations on Australia, E/C.12/AUS/CO/4 (12 June 2009) p. 5.

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'.