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]          These are: Consular Privileges and Immunities (Indirect Tax Concession Scheme) Amendment (United Arab Emirates) Determination 2018 [F2018L00074]; Family Law Amendment (Parenting Management Hearings) Bill 2017; Marine Safety (Domestic Commercial Vessel) Levy (Consequential Amendments) Bill 2018; and Narcotic Drugs Amendment (Cannabis) Regulations 2018 [F2018L00106].

[4]          See Australian Institute of Health and Welfare, Privacy Policy (2018) https://www.aihw.gov.au/privacy-policy.

[5]          UN Human Rights Committee, General Comment 35: Liberty and security of person (2014), [18].

[6]          See Migration Act sections 189, 198.

[7]          See F.K.A.G v. Australia (2094/2011), UN Human Rights Committee, 20 August 2013, [9.5]; M.M.M et al v Australia (2136/2012), UN Human Rights Committee, 25 July 2013, [10.4] ['the authors are kept in detention in circumstances where they are not informed of the specific risk attributed to each of them... They are also deprived of legal safeguards allowing them to challenge their indefinite detention'].

[8]          Statement of compatibility (SOC), p. 26.

[9]          SOC, p. 26.

[10]          SOC, p. 26.

[11]          Human Rights Committee, General Comment 35: Liberty and security of person (2014), [18].

[12]          SOC, p. 23.

[13]          See, Parliamentary Joint Committee on Human Rights, Seventh Report of the 44^th Parliament p. 30 (18 June 2014); Tenth Report of the 44^th Parliament (26 August 2014) p. 78; Fourteenth Report of the 44^th Parliament (28 October 2014) p. 114.

[14]        CAT, article 3(1); ICCPR, articles 6(1) and 7; and Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty; Convention Relating to the Status of Refugees 1951 and its Protocol 1967 (Refugee Convention).

[15]        See Refugee Convention, article 33. The non-refoulement obligations under the CAT and ICCPR are known as 'complementary protection' as 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.

[16]        ICCPR, article 2; Agiza v. Sweden, Communication No. 233/2003, UN Doc CAT/C/34/D/233/2003 (2005) [13.7]; Josu Arkauz Arana v. France, CAT/C/23/D/63/1997, (CAT), 5 June 2000; Mohammed Alzery v. Sweden, Communication No. 1416/2005, U.N. Doc. CCPR/C/88/D/1416/2005 (2006) [11.8]. See, also, Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) pp 10-17; Report 4 of 2017 (9 May 2017) pp. 99-111.

[17]        Migration Act section 198.

[18]        SOC, p. 27.

[19]        See for example, Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) pp. 77-78.

[20]        CRC article 3(1).

[21]        SOC, p. 28.

[22]        SOC, p. 28.

[23]        UN Committee on the Rights of the Child, General comment No. 14  on the right of the child to have his or her best interests taken as a primary consideration, CRC/C/GC/14 (29 May 2013).

[24]          See the commencement information for Schedule 2 in section 2 of the Privacy Amendment (Enhancing Privacy Protection) Act 2012.

[25]          The 2012 Act was introduced to parliament on 23 May 2012, whereas the committee's First Report of 2012 considered bills introduced between 18 June-29 June 2012: see Parliamentary Joint Committee on Human Rights, First Report of 2012 (August 2012) p.3.

[26]          Explanatory Memorandum to the National Consumer Credit Protection Amendment (Mandatory Comprehensive Credit Reporting) Bill 2018, [1.26].

[27]          See the definition of 'eligible licensee' in proposed section 133CN. An ADI is considered large when its total resident assets are greater than $100 billion: see the EM to the bill, [1.14]. Other credit providers will be subject to the regime if they are prescribed in regulations: see proposed section 133CN(1)(a).

[28]          See Division 3 of Schedule 1 of the bill.

[29]          Statement of Compatibility (SOC), [2.12].

[30]          See SOC, [2.20] citing the explanatory memorandum to the Privacy Amendment (Enhancing Privacy Protection) Bill 2012.

[31]          SOC, [2.15].

[32]          SOC, [2.21].

[33]        SOC, [2.17]-[2.19]

[34]        See the definition of 'repayment history information' in section 6V of the Privacy Act 1988.

[35]        SOC, [2.22].

[36]        APP 9; APP 6.2(b).

[37]          See, proposed sections 579A, 591B, 594A; and Item 40 of the bill, proposed amendment to section 584; Explanatory Memorandum (EM) p. 11.

[38]          See, proposed Schedule 2B, section 23; EM pp. 12-13.

[39]          Under section 13.5 of the Criminal Code a legal burden of proof on the defendant must be discharged on the balance of probabilities.

[40]          See, Criminal Code Act 1995 (Criminal Code) schedule 1, subsection 13.1(3)-(5). By contrast, evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist: Criminal Code section 13.3(6).

[41]          See, Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR).

[42]          EM, Statement of Compatibility (SOC) pp. 11, 13; EM p. 33.

[43]          See proposed sections 16, 24, 32, 43.

[44]          See, for example, Explanatory Memorandum (EM) p. 13.

[45]          See, for example, EM, p. 33, p. 38.

[46]          EM, p. 28.

[47]          EM, p. 13.

[48]          These exceptions are proceedings relating to a refusal or failure to comply with a disclosure notice, knowingly providing false or misleading information in response to a disclosure notice, or knowingly giving false or misleading information to a Commonwealth entity.

[49]          Section 43 of part 3, division 4.

[50]          EM, SOC, p. 20.

[51]          EM, p. 44.

[52]        It is noted that the statement of compatibility does acknowledge that the right to privacy is engaged by other measures in the bill, including in relation to the powers of inspectors, drawn from the Regulatory Powers (Standards Provisions) Act 2014, to enter premises and inspect documents or things on the premises. See, EM, SOC, pp. 18-19.

[53]          Item 7, proposed section 120.

[54]          Item 11, proposed sections 126B and 126C.

[55]          Explanatory memorandum, p. 9.

[56]          Fit for the Future: A Capability Review of ASIC (December 2015) p. 21.

[57]          Fit for the Future: A Capability Review of ASIC (December 2015) p. 108.

[58]          The ASIC Capability Review noted that the use of IFAs was relatively uncommon at ASIC at the time the review was conducted and, further, that such arrangements 'affect efficiency given the additional complexity of managing these arrangements'. See, Fit for the Future: A Capability Review of ASIC (December2015) pp. 107-108.

[59]          Part 6, sections 120(3) and 120(4) of the ASIC Act.

[60]          See also EM, p. 13.

[61]          See Article 2(1) of ICESCR.

[62]          See Part 1 of Schedule 1 of the bill, proposed section 265-95(2).

[63]          See Part 1 of Schedule 1 of the bill, proposed section 265-95(3).

[64]          See Part 2 of Schedule 1 of the bill, proposed section 8C(1)(fa).

[65]          See Part 3 of Schedule 5 of the bill, proposed section 255-120(2).

[66]          See Part 3 of Schedule 5 of the bill, proposed section 255-120(3).

[67]          See, Statement of Compatibility (SOC), 119-120, 122-123.

[68]          SOC, [10.11] and [10.31].

[69]          Explanatory Memorandum, 12-14, 25-26, 82-84.

[70]          Proposed section 29(6).

[71]        Proposed section 31(6).

[72]        Proposed section 35(5).

[73]        Proposed section 30(6). There are also a number of civil penalties for which the proposed penalty is 120 penalty units ($25,000), however the committee considers such penalties in context would be unlikely to be considered criminal for the purposes of international human rights law: see proposed section 27 (failing to notify Minister of transfer of permit); section 28 (breach of permit condition); section 32 (supplying and offering to supply protected underwater cultural heritage without a permit); section 33 (advertising to sell underwater cultural heritage without a permit); section 34 (importing protected underwater cultural heritage without a permit); section 36 (importing underwater cultural heritage of a foreign country without a permit); section 37 (failing to produce a permit); section 38 (failing to respond to notice from Minister); section 39 (failing to comply with Ministerial direction); and section 40 (failing to advise Minister of discovery of underwater cultural heritage).

[74]        Statement of Compatibility (SOC), p.11.

[75]        Other guarantees include the guarantee against retrospective criminal laws (Article 15(1)) and the right not to incriminate oneself (article 14(3)(g)). These guarantees are not engaged by the proposed civil penalties, as the law does not appear to apply retrospectively and the conduct giving rise to the offence does not appear to engage the right not to incriminate oneself.

[76]        SOC, p. 12.

[77]        See proposed sections 27(6), 28(3), 29(5), 30(5), 31(5), 32(5), 33(4), 34(4), 35(4), 36(4), 37(5), 38(6), and 39(7).

[78]        SOC, p.13.

[79]          Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 6-11.

[80]          For further information as to the content of these rights, see Appendix 2. These rights may be subject to permissible limitations which are provided by law and are not arbitrary. In order for a limitation not to be arbitrary, it must pursue a legitimate objective and be rationally connected and proportionate to achieving that objective.

[81]          Statement of compatibility (SOC), pp. 11-12.

[82]          SOC, p. 12

[83]          SOC, p. 11.

[84]          SOC, p. 12.

[85]          See, for example, MM v United Kingdom, App. No 24029/12, European Court of Human Rights (2012); R (on the application of T and another) v Secretary of State for the Home Department and another [2014] UKSC 35. See also the decision of Bell J in the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267 (22 May 2013).

[86]          Section 85ZZGL of the bill.

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

[88]        See Victorian Government Department of Justice and Regulation, Working with Children Check: Failing the Check, available at http://www.workingwithchildren.vic.gov.au/home/applications/application+assessment/failing+the+check/;   NSW Civil and Administrative Tribunal, Working with Children Checks, available at http://www.ncat.nsw.gov.au/Pages/administrative_equal_opp/aed_your_matter/aeod_working-with-children/aeod_working-with-children.aspx .

[89]        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.

[90]        See e.g. Althammer v Austria, Human Rights Committee, 8 August 2003, [10.2].

[91]        See Thlimmenos v Greece, ECHR Application No. 34369/97 (6 April 2000).

[92]        See also the Australian Human Rights Commission Act 1986 (Cth) which considers discrimination in employment on the basis of a criminal record as part of Australia's obligations under International Labour Organisation Convention 111, the Discrimination (Employment and Occupation) Convention 1958, which prohibits discrimination in employment. See Australian Human Rights Commission, 'On the Record: Discrimination in Employment on the basis of Criminal Record under the AHRC Act' (2012).

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

[94]          Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 52-56.

[95]          'AUSTRAC information' is defined in section 5 of the AMLCT ACT as meaning eligible collected information (or a compilation or analysis of such information) and 'eligible collected information' is defined as information obtained by the AUSTRAC CEO under that Act or any other Commonwealth, State or Territory law or information obtained from a government body or certain authorised officers, and includes financial transaction report information as obtained under the Financial Transaction Reports Act 1988.

[96]          Section 133BA(1) of the bill.

[97]          See Parliamentary Joint Committee on Human Rights, Guidance Note 1: Drafting Statements of Compatibility (December 2014) p.2.

[98]          Human Rights Committee, Concluding observations on the fifth periodic report of Australia, CCPR/C/AUS/CO/5, 7 May 2009, [20].

[99]          Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 4(2); UN Human Rights Committee, General Comment 20: Article 7 (1992) UN Doc HRI/GEN/1, [3].

[100]          Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017)
pp. 83-91.

[101]          Item 29, proposed section 38A.

[102]          Item 29, proposed section 38A(4).

[103]        Related provisions relating to such rights for specific groups are also contained in article 5(i) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), articles 11 and 14(2)(e) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), article 32 of the Convention on the Rights of the Child (CRC) and article 27 of the Convention on the Rights of Persons with Disabilities (CRPD).

[104]        See, UN Committee on Economic, Social and Cultural Rights, General Comment No. 23: on the right to just and favourable conditions of work (article 7 of the International Covenant on Economic, Social and Cultural Rights) (26 April 2016) pp. 3 and 7.

[105]        Statement of compatibility (SOC) p. 7.

[106]             Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018)
pp. 65-69.

[107]          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.

[108]          See, e.g., Althammer v Austria, Human Rights Committee, 8 August 2003, [10.2].

[109]          See, D.H. and Others v the Czech Republic ECHR Application no. 57325/00 (13 November 2007) 49; Hoogendijk v the Netherlands ECHR, Application no. 58641/00 (6 January 2005).

[110]          Statement of compatibility (SOC), p. 8.

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

[112]          SOC, p. 8.

[113]          C N Kendall, 2014 Independent Review of the Office of the Migration Agents Registration Authority: Final Report (September 2014), p. 142.

[114]          See, for example, Flinders University, English language requirements,
http://www.flinders.edu.au/international-students/study-at-flinders/entry--and-english-requirements/english-language-requirements.cfm; Australian National University, English language admission requirements for students,
https://policies.anu.edu.au/ppl/document/ANUP_000408.

[115]        SOC, p. 8.

[116]        See, for example, Australian National University, English language admission requirements for students, https://policies.anu.edu.au/ppl/document/ANUP_000408.

[117]        Section 9(2) of the Human Rights (Parliamentary Scrutiny) Act 2011.

[118]              Autonomous Sanctions (Designated Persons and Entities – Democratic People’s Republic of Korea) Amendment List 2017 (No. 2) [F2017L01063]; Autonomous Sanctions (Designated Persons and Entities – Democratic People's Republic of Korea) Amendment List 2017 (No.3) [F2017L01592]; Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Syria) List 2017 [F2017L01080]; Autonomous Sanctions (Designated Persons and Entities – Democratic People's Republic of Korea) Continuing Effect Declaration 2018 [F2018L00049]; Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Zimbabwe) Continuing Effect Declaration 2018 [F2018L00108]; Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Iran) Continuing Effect Declaration 2018 [F2018L00102]; Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Libya) Continuing Effect Declaration and Revocation Instrument 2018 [F2018L00101]; Autonomous Sanctions (Designated and Declared Persons – Former Federal Republic of Yugoslavia) Continuing Effect Declaration and Revocation Instrument 2018 [F2018L00099]; Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Syria) Continuing Effect Declaration and Revocation Instrument 2018 [F2018L00100].

[119]          Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 82-96.

[120]          See footnote 1.

[121]          See, Parliamentary Joint Committee on Human Rights, Sixth report of 2013 (15 May 2013) pp. 135-137; and Tenth report of 2013 (26 June 2013) pp. 13-19; Twenty-eighth report of the 44th Parliament (17 September 2015) pp. 15-38; and Thirty-third report of the 44th Parliament (2 February 2016) pp. 17-25.

[122]          Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) pp. 41-55.

[123]          Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 53; see also Report 10 of 2017 (12 September 2017) pp. 27-31.

[124]          Section 10(2) of the Autonomous Sanctions Act 2011.

[125]          Section 6 of the Autonomous Sanctions Regulations 2011.

[126]          Section 14 of the Autonomous Sanctions Regulations 2011.

[127]        See section 18 of the Autonomous Sanctions Regulations 2011.

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

[129]        See subsection 20(3)(b) of the Autonomous Sanctions Regulations 2011.

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

[131]        See further below and Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 45.

[132]        See Migration Regulations 1994, section 2.43(1)(aa) and section 116(1)(g) of the Migration Act 1958.

[133]        The minister may grant a permit for the payment of such expenses (including foodstuffs, rent or mortgage, medicines or medical treatment, public utility charges, insurance, taxes, legal fees and reasonable professional fees): Section 18 and 20 of the Autonomous Sanctions Regulations 2011.  However, the minister must not grant a permit unless the minister is satisfied that it would be in the national interest to grant the permit and is satisfied about any circumstance or matter required by the regulations to be considered for a particular kind of permit: section 18(3) of the Autonomous Sanctions Regulations 2011.

[134]        UN Human Rights Committee, General Comment No.27: Article 12 (Freedom of Movement) (1999). See also Nystrom v Australia (1557/2007), UN Human Rights Committee, 1 September 2011.

[135]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 44.

[136]        See the examples in the committee's previous analysis at paragraph [1.114] of the Twenty-Eighth report of the 44^th Parliament  and section 6 of the Autonomous Sanctions Regulations 2011

[137]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 46. 

[138]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) pp. 46-47; and Twenty-eighth Report of the 44th Parliament (17 September 2015) [1.116] to [1.123].

[139]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 47.

[140]        See, http://dfat.gov.au/international-relations/security/sanctions/pages/consolidated-list.aspx; Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) pp. 48-49.

[141]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 49.

[142]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 49.

[143]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 49.

[144]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 50.

[145]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 50.

[146]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 50.

[147]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 51.

[148]        See further below.

[149]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 48.

[150]        Al-Dulimi and Montana Management Inc. v Switzerland, ECHR (Application no. 5809/08) (21 June 2016).

[151]        See section 26 of Terrorist Asset-Freezing etc. Act 2010 (UK) (TAFA 2010).

[152]        See section 30 of TAFA 2010.

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

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

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

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

[157]        See, Committee against Torture, General Comment No.4 (2017) on the implementation of article 3 in the context of article 22 (9 February 2018).

[158]        See, Migration Regulations 1994, section 2.43(1)(aa) and section 116(1)(g) of the Migration Act 1958.

[159]        See, for example, Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44^th Parliament (October 2014) pp. 76-77; Report 11 of 2017 (17 October 2017) pp. 108-111.

[160]        See further section 8(3) of the Human Rights (Parliamentary Scrutiny) Act 2011.

[161]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016)
pp. 53-54.

[162]        'Relevant visas' are defined in regulation 2.43(3) and means a visa of the following subclasses: Subclass 050 (Bridging Visa E); Subclass 070 (Bridging (Removal Pending) Visa); Subclass 200 (Refugee Visa); Subclass 201 (In-country Special Humanitarian Visa); Subclass 202 (Global Special Humanitarian Visa);  Subclass 203 (Emergency Rescue Visa); Subclass 204 (Women at Risk Visa); Subclass 449 (Humanitarian Stay (Temporary) Visa); Subclass 785 (Temporary Protection Visa); Subclass 786 (Temporary Humanitarian Concern Visa); Subclass 866 (Permanent Protection Visa).

[163]        See Department of Home Affairs, Safe Haven Enterprise Visa (Subclass 790) at https://www.homeaffairs.gov.au/trav/visa-1/790-

[164]        Section 197C was introduced by Schedule 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.

[165]        ICCPR, article 2. See Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) 102.

[166]        See Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44^th Parliament (October 2014) p.77-78. See also Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 149-194.

[167]        Section 9(2) of the Human Rights (Parliamentary Scrutiny) Act 2011.

[168]          Statement of Compatibility (SOC), p.3.

[169]          See also International Convention on the Elimination of All Forms of Racial Discrimination, Article 6; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 14; Convention on the Elimination of All Forms of Discrimination against Women, Article 2.

[170]          United Nations Human Rights Committee, General Comment No.31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (2004) [15].

[171]          SOC, p.2.

[172]          SOC, p.2.

[173]          SOC, pp.2-3.

[174]          See generally, Australian Human Rights Commission, A Quick Guide to Australian Discrimination Laws (2014); Neil Rees, Simon Rice and Dominique Allen,  Australian anti-discrimination and equal opportunity law (3^rd edition, 2018) Chapter 10.

[175]          See AHRC Act, section 46P.

[176]          See Parliamentary Joint Committee on Human Rights, Freedom of Speech in Australia: Inquiry into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth) (28 February 2017) [2.37]. It is noted that in September 2017 the Northern Territory government released a discussion paper on modernising the Northern Territory Anti-Discrimination Act to include provisions relating to anti-vilification: Northern Territory Department of Attorney-General and Justice, Discussion Paper: Modernisation of the Anti-Discrimination Act (September 2017) p.11.

[177]        Parliamentary Joint Committee on Human Rights, Freedom of Speech in Australia: Inquiry into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth) (28 February 2017) [2.37]; see also Legal Aid New South Wales, Discrimination Law Complaints: Should I go to the ADB or AHRC? (2018) https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/discrimination-toolkit/what-you-can-do-about-discrimination/discrimination-law-complaints.

[178]        See Part II, Division 4 of the Australian Human Rights Commission Act 1986 (the AHRC Act).

[179]        See AHRC Act, section 3.

[180]        See for example, the South Australian Equal Opportunity Act 1984 (SA); see also South Australia Equal Opportunity Commission, Where do I complain – state or federal? (2018) http://www.eoc.sa.gov.au/eo-you/discrimination-laws/where-do-i-complain-state-or-federal.

[181]        For example, Part IV of the Racial Discrimination Act 1975; Division 4 of the Disability Discrimination Act 1992; Part 5 of the Age Discrimination Act 2004; Part IV of the Sex Discrimination Act 1984.

[182]        For example section 26 of the AHRC Act.

[183]          Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) pp. 34-44.

[184]          See, Parliamentary Joint Committee on Human Rights, Eighteenth Report of the 44^th Parliament (10 February 2015) pp. 71-73.

[185]          Statement of Compatibility (SOC), p. 1.

[186]          SOC, p. 1.

[187]          SACCs are defined in section 5 of the National Consumer Credit Protection Act 2009 and are loans of up to $2,000 where the term of the contract is between 16 days and 12 months. 

[188]          Consumer leases are contracts for goods (hired wholly or predominately for personal, domestic or household purposes) for longer than four months where: the consumer does not have the right or obligation to purchase the goods; and the total amount payable exceeds the cash price: see Exposure Draft Explanatory Memorandum to the Bill at [3.6] https://static.treasury.gov.au/uploads/sites/1/2017/10/c2017-t229374-Explanatory-Memorandum-1.pdf

[189]          A licensee means a person who holds a licence: section 5 of the National Consumer Credit Protection Act 2009.

[190]          Items 4 and 12, proposed sections 116A(1) and 129A of the bill.

[191]          Items 8 and 18, proposed sections 124B(1) and 133CB(1) of the bill.

[192]          Items 10 and 22, proposed sections 124C and 133CF of the bill.

[193]          Items 19 and 21, proposed sections 133CE(1) and 133CC(1) of the bill.

[194]          Items 25,28,31,and 34, proposed sections 139A(1), 147A(1), 152A(1), 156A(1), 156C(1).

[195]          Item 36, proposed sections 160H(1)

[196]        See item 38, proposed sections 323A(1)and 323C(1),

[197]        See item 42, proposed section 31C(1).

[198]        See item 58, proposed section 175AA.

[199]        See item 62, proposed section 179VA.

[200]        Other guarantees include the guarantee against retrospective criminal laws (Article 15(1)) and the right not to incriminate oneself (article 14(3)(g)).  These guarantees are not engaged by the proposed civil penalties, as the law does not appear to apply retrospectively and the conduct giving rise to the civil penalties do not appear to engage the right not to incriminate oneself.

[201]        See item 4,  section 116A(3)-(4); item 10, section 124C(3)-(4); item 12, section 129A(3)-(4); item 21, section 133CE(6)-(7); item 22, section 133CF(3)-(4); item 25, section 139A(3)-(4); item 31, section 152A(3)-(4); item 36, section 160H(3)-(4); item 42, section 31C(3)-(4); item 62, section 179VA(3)-(4).

[202]        Statement of compatibility, pp.10-11.

[203]        See item 21, section 133CE(6)-(7); item 42, section 31C(3)-(4).

Chapter 2 - Concluded matters

[1]          Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 12-15.

[2]          The 'secretary' is the Secretary of the Department of the minister who will administer the Export Control Act 2017 if the bill passes the parliament and receives Royal Assent: Explanatory memorandum (EM) p. 6.

[3]          See, for example, sections (a) sections 112, 117, 123, 127 and 138 (decisions in relation to registered establishments); (b) sections 151, 156, 165, 171 and 179 (decisions in relation to 8 approved arrangements); (c) sections 191, 196, 201, 205 and 212 (decisions in relation to export licences).

[4]          The legislation is the bill; the Biosecurity Act 2015; another Act prescribed by the rules; the Criminal Code or the Crimes Act 1914 to the extend it relates to the Biosecurity Act 2015 or another Act prescribed by the rules: see section 372(2) of the rules.

[5]          'Associate' is defined in section 13 of the bill as including (a) a person who is or was a consultant, adviser, partner, representative on retainer, employer or employee of: (i) the first person; or (ii) any corporation of which the first person is an officer or employee or in which the first person holds shares; (b) a spouse, de facto partner, child, parent, grandparent, grandchild, sibling, aunt, uncle, niece, nephew or cousin of the first person; (c) a child, parent, grandparent, grandchild, sibling, aunt, uncle, niece, nephew or cousin of a spouse or de facto partner of the first person; (d) any other person not mentioned in paragraph (a), (b) or (c) who is or was: directly or indirectly concerned in; or in a position to control or influence the conduct of; a business or undertaking of: the first person; or a corporation of which the first person is an officer or employee, or in which the first person holds shares; (e) a corporation: of which the first person, or any of the other persons mentioned in paragraphs (a), (b), (c) and (d), is an officer or employee; or in which the first person, or any of those other persons, holds shares; (f) if the first person is a body corporate—another body corporate that is a related body corporate (within the meaning of the Corporations Act 2001) of the first person.

[6]          Subsection 373(3).

[7]          Pursuant to article 2(1) of the International Covenant on Economic, Social and Cultural Rights.

[8]          Article 22 of the International Covenant on Civil and Political Rights.

[9]          Statement of compatibility (SOC), p. 451.

[10]        SOC, p. 451.

[11]        SOC, pp. 454-455.

[12]          Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 30-40.

[13]          Parliamentary Joint Committee on Human Rights, Twelfth Report of the 44^th Parliament (24 September 2014) pp. 8-13; Eighteenth Report of the 44^th Parliament (10 February 2015) pp. 43-64; Twenty-second Report of the 44^th Parliament (13 May 2015) pp. 163-174; Report 5 of 2017 (14 June 2017) pp. 22‑30 and Report 7 of 2017 (8 August 2017) pp. 41-60.

[14]          Parliamentary Joint Committee on Human Rights, Report 5 of 2017 (14 June 2017) pp. 22‑30 and Report 7 of 2017 (8 August 2017) pp. 41-60.

[15]          Higher Education Support Legislation Amendment (Student Loan Sustainability) Bill 2018.

[16]          Statement of compatibility (SOC) p. 4; Schedule 1, item 2.

[17]          Schedule 1, item 2.

[18]          See schedule 3 of the 2017 bill.

[19]          Explanatory Memorandum (EM) p. 1.

[20]          See, UN Committee on Economic, Social and Cultural Rights, General Comment 13: the Right to education (8 December 1999) [44]-[45].

[21]        See, for example, UN Committee on Economic, Social and Cultural Rights, General Comment 13: the Right to education (8 December 1999) [44]-[45].

[22]        For example, the UN Committee on Economic, Social and Cultural Rights raised concerns about access to education in relation to the operation of the student loans scheme in the United Kingdom which shares similar elements to the Australian HELP scheme: UN Committee on Economic, Social and Cultural Rights , Concluding observations on the United Kingdom of Great Britain and Northern Ireland, E/C.12/1/Add.79 (5 June 2002) [22]; UN Committee on Economic, Social and Cultural Rights, Concluding observations on the United Kingdom of Great Britain and Northern Ireland, E/C.12/GBR/CO/5 (12 July 2009) [44]; UNESCR, Concluding observations on the United Kingdom of Great Britain and Northern Ireland, E/C.12/GBR/CO/6 (14 July 2016) [65]-[66].

[23]        SOC, p. 5.

[24]        SOC, p. 4.

[25]        Article 1 of CEDAW defines 'discrimination against women' as 'any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field'.

[26]        The prohibited grounds are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status: ICCPR articles 2 and 26; ICESCR article 2(2); UN Human Rights Committee, General Comment 18, Non-discrimination (10 November 1989) [1]. 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: See, for example, Schmitz-de-Jon v Netherlands, UN Human Rights Committee 855/99 (2001); Gueye v France UN Human Rights Committee 196/85 (1989); Danning v Netherlands, UN Human Rights Committee 180/84 (1990); Lindgren et al v Sweden UN Human Rights Committee 298-9/88 (1990); Young v Australia, UN Human Rights Committee 941/00 (2003); UN Human Rights Committee, Concluding observations on Ireland, A/55/40 (2000) [422]-[451].  See, also, UN Committee on Economic, Social and Cultural Rights, General Comment 20,  Non-discrimination in economic, social and cultural rights, E/C.12/GC/20 (2 July 2009) [28]-[35].

[27]        UN Human Rights Committee, General Comment 18, Non-discrimination (1989) [7].

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

[29]        See, for example, the UN Committee on Economic, Social and Cultural Rights, General Comment 20,  Non-discrimination in economic, social and cultural rights, E/C.12/GC/20 (2 July 2009) [28]-[35].

[30]        See, Australian Bureau of Statistics (ABS), Employee Earnings and Hours (May 2016) http://www.abs.gov.au/ausstats/abs@.nsf/0/27641437D6780D1FCA2568A9001393DF?Opendocument; ABS, Gender indicators, Australia (August 2016) http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4125.0~August%202016~Main%20Features~Economic%20Security~6151; Workplace Gender Equality Agency,  Gender pay gap statistics (March 2016)  https://www.wgea.gov.au/sites/default/files/Gender_Pay_Gap_Factsheet.pdf (last accessed 24 May 2017); See, for example, Senate Standing Committee on Education and Employment, The Future of HECS (28 October 2014) p. 52.

[31]        See, D.H. and Others v the Czech Republic ECHR Application no. 57325/00 (13 November 2007) 49; Hoogendijk v. the Netherlands ECHR, Application no. 58641/00 (6 January 2005).

[32]        See, for example, Althammer v Austria HRC 998/01 [10.2].

[33]        SOC, p. 6.

[34]        See, SOC to the 2017 bill, p. 10.

[35]        UN Committee on Economic, Social and Cultural Rights, Concluding observations on the fifth periodic report of Australia, E/C.12/AUS/CO/5 (11 July 2017) [22].

[36]        Parliamentary Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017) pp. 41-60.

[37]        FEE-HELP is a loan scheme that assists eligible fee paying students to pay all or part of their tuition fees. It is for domestic undergraduate and postgraduate students who do not have a Commonwealth supported place.

[38]        VET Student Loans commenced on 1 January 2017, replacing the VET FEE-HELP scheme, which ceased for new students on 31 December 2016.

[39]        The VET Student Loans program is an income contingent loan offered by the Australian Government that helps eligible students pay for some vocational education and training (VET) diploma level or above courses.

[40]        A commonwealth supported student place is part subsidised by the Australian government through the government paying part of the fees for the place directly to the university. Students are also required to contribute towards the study and pay the remainder of the fee called the 'student contribution amount' for each unit they are enrolled in at the higher education institution. HECS-HELP is a loan scheme for eligible students enrolled in Commonwealth supported places to pay their student contribution amounts.

[41]        Explanatory memorandum (EM), p. 22.

[42]        SOC, p. 6.

[43]        See, UN Committee on Economic, Social and Cultural Rights, General Comment 13: the Right to education (8 December 1999).

[44]        See, UN Committee on Economic, Social and Cultural Rights, General Comment 13: the Right to education (8 December 1999) [45].

[45]        SOC, p. 6.

[46]        SOC, p. 6.

[47]        See, Study Assist, Commonwealth Supported places, http://studyassist.gov.au/sites/studyassist/helppayingmyfees/csps/pages/commonwealth-supported-places.

[48]        A student who completed a four year undergraduate Bachelor of Arts degree with honours as a Commonwealth supported student at, for example, Macquarie University might graduate with a HECS-HELP debt of approximately $43,016. If the student decided to undertake a graduate law degree such as a Juris Doctor as a full-fee paying student at, for example, the University of Melbourne the cost of this three year program would be approximately $124,385. These two programs of study would push the student over the proposed total lifetime HELP-loan limit: see, Melbourne University JD, Fees and Scholarships, http://law.unimelb.edu.au/study/jd#fees-and-scholarships; Macquarie University, Courses, Bachelor of Arts, https://courses.mq.edu.au/2018/domestic/undergraduate/bachelor-of-arts.       

[49]        Revised Explanatory Memorandum (EM) p. 25.

[50]        For example, a student who completed a four year undergraduate degree with a bachelor of planning as a Commonwealth supported student at, for example, Macquarie University might graduate with a HECS-HELP debt of approximately $36,740. If the student decided to undertake a graduate law degree such as a Juris Doctor as a full-fee paying student at, for example, the Australian National University the cost of this three year program would be approximately $101,664. These two programs of study would push the student over the proposed total HELP-loan limit: see, Australian National University Juris Doctor https://programsandcourses.anu.edu.au/program/MJD; Macquarie University, Courses, Bachelor of Arts, http://www.courses.mq.edu.au/2018/domestic/undergraduate/bachelor-of-economics.      

[51]          Under section 5 of the Human Rights (Parliamentary Scrutiny) Act 2011, the certificate is not required to be accompanied by a statement of compatibility because it is 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.

[52]          Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 57-64.

[53]          Under section 50 of the Legislation Act 2003 (Legislation Act), all legislative instruments registered on the Federal Register of Legislation after 1 January 2005 are repealed on the first 1 April or 1 October that falls on or after their tenth anniversary of registration. Instruments made before 1 January 2005 (when the sunsetting regime was introduced) sunset on a staggered basis, in accordance with the schedule in subsection 50(2). Section 51 of the Legislation Act provides that the Attorney-General may defer the sunsetting of a legislative instrument by up to 12 months, subject to certain conditions.

[54]          See footnote 1 above.

[55]          'State' is defined in section 4 of the ACC Act to include the Australian Capital Territory and the Northern Territory.

[56]          In 2016 the Australian Crime Commission and CrimTrac were merged to form the Australian Criminal Intelligence Commission (ACIC). Pursuant to subsection 7(1A) of the ACC Act and section 3A of the Regulations, the ACIC is the body which now exercises the powers and functions of the ACC under the ACC Act and Regulations.

[57]          Under section 4 of the ACC Act, 'relevant criminal activity' is defined as 'any circumstances implying, or any allegations, that a relevant crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory'. 'Relevant crime' means serious and organised crime, or indigenous violence or child abuse.

[58]          See, Ramanauskas v Lithuania, European Court of Human Rights (ECHR) Application No. 74420/01, 5 February 2008, [55]. The ECHR has consistently held that entrapment violates article 6 of the European Convention on Human Rights, which is equivalent to article 14 of the ICCPR.

[59]          Section 4 of the NSW Act defines a 'controlled operation' as an operation conducted for the purpose of obtaining evidence of criminal activity or corrupt conduct, arresting any person involved in criminal activity or corrupt conduct, frustrating criminal activity or corrupt conduct, or carrying out an activity reasonably necessary to facilitate one of the above purposes; and involving a controlled activity.

[60]        Section 7 of the NSW Act provides that controlled operations must not be authorised where they would involve inducing or encouraging a person to engage in criminal activity or corrupt conduct that they would not otherwise be expected to engage in; engaging in conduct likely to seriously endanger the health or safety of any person or result in serious loss or damage to property; or the commission of a sexual offence.

[61]        Schedule 3 also prescribes powers relating to surveillance devices under the Surveillance Devices Act 1999 (Victoria), Surveillance Devices Act 1998 (Western Australia) and Surveillance Devices Act [2007] (Northern Territory).

[62]        Section 59AA of the ACC Act provides for the disclosure of information in the ACIC's possession by its CEO. Subsection 59AA(1B) provides that where that information is national policing information, the CEO must obtain the approval of the board before disclosing it, except to specified bodies, including bodies prescribed by the regulations.

[63]        Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016)
pp. 30-32; Report 8 of 2016 (9 November 2016) pp. 72-74. The Australian Crime Commission Amendment (National Policing Information) Regulation 2016 [F2016L00712], and the Australian Crime Commission Amendment (National Policing Information) Regulation 2016 which were examined in those reports introduced the provisions relating to national policing information into the ACC regulations.

[64]          Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018)
pp. 45-49.

[65]          Parliamentary Joint Committee on Human Rights, Twenty-ninth Report of the 44th Parliament (13 October 2015) pp. 9-24 and Thirty-second report of the 44th Parliament (1 December 2015) pp. 64-86.

[66]          Under the My Health Records Act 2012, 'healthcare recipient' is defined as 'an individual who has received, receives, or may receive, healthcare'.

[67]          The three-month period will begin on a date to be specified by the minister. See, explanatory statement (ES) pp. 4-5.

[68]          ES, p. 5.

[69]          According to the Department of Health Website, the information stored on My Health Record can include: 'Clinical documents about your health – added by healthcare providers including: Shared Health Summary; Hospital discharge summaries; Pathology and diagnostic imaging reports; Prescribed and dispensed medication; Specialist and referral documents; Medicare and PBS information stored by the Department of Human Services, Medicare and RPBS information stored by the Department of Veterans’ Affairs; Organ Donor decisions; Immunisations that are included in the Australian Immunisation Register. This may include childhood immunisations and other immunisations given to you by a healthcare provider; Personal health notes written by you or an authorised representative including: Contact numbers and emergency contact details; Current medications; Allergy information and any previous adverse reactions; Indigenous status; Veteran or ADF status; living will or advance care planning documents". Department of Health, My Health Record, https://myhealthrecord.gov.au/internet/mhr/publishing.nsf/Content/find-out-more?OpenDocument&cat=Managing%20your%20My%20Health%20Record.

[70]          ES, statement of compatibility (SOC), p. 8.

[71]          ES, SOC, p. 8.

[72]          ES, SOC, p. 10.

[73]        Health Legislation Amendment (eHealth) Bill 2015, explanatory memorandum, p. 95.

[74]        ES, SOC, p. 9.

[75]        Siggins Miller Consultants, Evaluation of the Participation Trials for the My Health Record: Final Report (November 2016) p. vii.

[76]        ES, SOC, pp. 9-10.

[77]        The explanatory statement states that individuals aged 14 years or older will be able to opt themselves out. Persons with parental or legal authority for another person may also opt out that other person. See ES, p. 5.

[78]        Australian Digital Health Agency, My Health Record Statistics – at 1 April 2018, https://myhealthrecord.gov.au/internet/mhr/publishing.nsf/Content/news-002. 

[79]          Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 70-78.

[80]          Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016) pp. 2-11; Report 8 of 2016 (9 November 2016) pp. 57-61; Report 2 of 2017 (21 March 2017) pp. 41-43; Report 4 of 2017 (9 May 2017) pp. 149-154.

[81]          Explanatory memorandum (EM), p. 1.

[82]          See, International Covenant on Economic, Social and Cultural Rights (ICESCR) article 9; United Nations Committee on Economic, Social and Cultural Rights, General Comment 19: the right to social security,  E/C.12/GC/19 (4 February 2008).

[83]          See, ICESCR, article 11.

[84]          See, ICESCR, article 2.

[85]          Statement of compatibility (SOC), p. 29.

[86]          UN Committee on Economic, Social and Cultural Rights, General Comment 3: the nature of state party obligations, E/1991/23 (14 December 1990) [9].

[87]          SOC, p. 30.

[88]        SOC, p. 30.

[89]        The Australian government on ratification of CEDAW in 1983 made a statement and reservation that: 'The Government of Australia advises that it is not at present in a position to take the measures required by Article 11(2)(b) to introduce maternity leave with pay or with comparable social benefits throughout Australia.' This statement and reservation has not been withdrawn. However, after the Commonwealth introduced the Paid Parental Leave scheme in 2011, the Australian Government committed to establishing a systematic process for the regular review of Australia's reservations to international human rights treaties: See, Attorney-General's Department, Right to Maternity Leave https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuidanceSheets/Pages/Righttomaternityleave.aspx.

[90]        UN Committee on Economic, Social and Cultural Rights, General Comment 16, The equal right of men and women to the enjoyment of all economic, social and cultural rights (2005). See also, article 3 of ICESCR.

[91]        SOC, p. 31.

[92]        Article 1 of CEDAW defines 'discrimination against women' as 'any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field'. 

[93]        The prohibited grounds are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status: ICCPR articles 2 and 26; ICESCR article 2(2); UN Human Rights Committee, General Comment 18, Non-discrimination (10 November1989) [1]. 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.  

[94]        UN Human Rights Committee, General Comment 18, Non-discrimination (1989) [7].

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

[96]        See, D.H. and Others v the Czech Republic ECHR Application no. 57325/00 (13 November 2007) 49; Hoogendijk v. the Netherlands ECHR, Application no. 58641/00 (6 January 2005).

[97]        See, for example, Althammer v Austria HRC 998/01 [10.2].

[98]        SOC, p. 36.

[99]        See, Elisabeth de Blok et al v the Netherlands, Communication No 36/2012, UN Committee on the Elimination of All Forms of Discrimination Against Women (24 March 2014).

[100]        Paid parental leave is generally available under Australian law for those earning under $150,000.

[101]          Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 79-81.

[102]          'Electronic sales suppression tools' are defined in proposed section 8WAB of the bill to mean a device, software, program or other thing, a part of any such thing, or a combination of any such things or parts, that meets the following conditions: (a)  it is capable of falsifying, manipulating, hiding, obfuscating, destroying, or preventing the creation of, a record that: (i)  an entity is required by a taxation law to keep or make; and (ii)  is, or would be, created by a system that is or includes an electronic point of sale system; (b)  a reasonable person would conclude that one of its principal functions is to falsify, manipulate, hide, obfuscate, destroy, or prevent the creation of, such records.

[103]          See sections 8WAC and 8WAD of the bill.

[104]          Section 8WAE of the bill.

[105]          See sections 8WAC(4), 8WAD(3), 8WAE(2) of the bill.

[106]          The right to the presumption of innocence requires that everyone charged with a criminal offence has the right to be presumed innocent until proven guilty according to law (see Appendix 2).

[107]          Statement of Compatibility (SOC), [1.109].

[108]          SOC, [1.104].

[109]          The committee's Guidance Note 2 sets out some of the key human rights compatibility issues in relation to provisions that create strict liability offences.

[110]        See Explanatory Memorandum, pp.5-6.

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'.