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/. It is noted that the Australian Citizenship Amendment (Concessional Application Fees) Regulations 2018 [F2018L00734] was disallowed in the Senate on 25 June 2018. Accordingly, the committee makes no comment on the regulations at this time.

[3]        These are: Customs (Prohibited Exports) Amendment (Defence and Strategic Goods) Regulations 2018 [F2018L00503]; Export Control (Animals) Amendment (Information Sharing and Other Matters) Order 2018 [F2018L00580]; and Financial Framework (Supplementary Powers) Amendment (2018 Measures No. 1) Regulations 2018 [F2018L00456].

[4]        Parliamentary Joint Committee on Human Rights, Twenty-eighth Report of the 44^th Parliament (17 September 2015), pp. 3-9; Parliamentary Joint Committee on Human Rights, Thirtieth Report of the 44^th Parliament (10 November 2015), pp. 140-149.

[5]        Pursuant to section 168(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Administration Act).

[6]        Family Assistance (Public Interest Certificate Guidelines) (Education) Determination 2018, section 7.

[7]        Family Assistance (Public Interest Certificate Guidelines) (Education) Determination 2018, section 6.

[8]        'Enforcement related activities' is defined in the Privacy Act 1988 (Privacy Act) to mean: the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of a law imposing a penalty or sanction; the conduct of surveillance activities, intelligence gathering activities or monitoring activities; the conduct of protective or custodial activities; the enforcement of laws relating to the confiscation of the proceeds of crime; the protection of the public revenue; the prevention, detention, investigation or remedying of misconduct of a serious nature, or other conduct prescribed by the regulations; or the preparation for, or conduct of, proceedings before any court or tribunal, or the implementation of court/tribunal orders.

[9]        Family Assistance (Public Interest Certificate Guidelines) (Education) Determination 2018, subsection 7(3).

[10]        Explanatory statement (ES), p. 1.

[11]        International Covenant on Civil and Political Rights, article 17.

[12]        Statement of compatibility (SOC), p. 11.

[13]      SOC, p. 11.

[14]      The SOC also addresses the disclosure of personal information relating to homeless young people in the context of the rights of parents of children, which raises additional issues discussed further below.

[15]      SOC, p. 11.

[16]      SOC, p. 11. The Australian Privacy Principles (APPs) contain an exemption to the prohibition on the disclosure of personal information by an APP entity for a secondary purpose where the entity reasonably believes it is reasonably necessary for one or more 'enforcement related activities' conducted by, or on behalf of, an 'enforcement body': APP 6.2(e). An 'enforcement body' is defined in section 6(1) of the Privacy Act as a list of specific bodies. The list includes Commonwealth, State and Territory bodies that are responsible for policing, criminal investigations, and administering laws to protect the public revenue or to impose penalties or sanctions. Examples of enforcement bodies are the Australian Federal Police, a police force or service of a State or Territory, the Australian Crime Commission, the Australian Securities and Investments Commission and AUSTRAC: see ES, p. 3.

[17]      ES, pp. 1-2.

[18]      SOC, p. 11.

[19]      Section 162(2)(e) of the Administration Act provides that a person may make a record of protected information, disclose protected information to 'any person', or 'otherwise use such information' for the purpose for which the information was disclosed under sections 167 or 168 of the Act. Section 168(1)(a) permits disclosures that are 'necessary in the public interest', to which the 2018 Determination applies.

[20]      SOC, p. 11.

[21]      SOC, p. 9.

[22]      See, for example, Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018), p. 87; Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018), p. 202.

[23]      APP 9; APP 6.2(b).

[24]      See section 6 of the 2018 Determination.

[25]      Subsection 25(2) of the 2018 Determination defines 'homeless young person' as a person under 18 years of age who has sought assistance on the ground of being homeless.

[26]      Family Assistance (Public Interest Certificate Guidelines) (Education) Determination 2018, section 27.

[27]      Family Assistance (Public Interest Certificate Guidelines) (Education) Determination 2018, section 28.

[28]      Family Assistance (Public Interest Certificate Guidelines) (Education) Determination 2018, section 29.

[29]      Family Assistance (Public Interest Certificate Guidelines) (Education) Determination 2018, section 30.

[30]      Convention on the Rights of the Child, article 16.

[31]      Convention on the Rights of the Child, article 3(1).

[32]      Family Assistance (Public Interest Certificate Guidelines) (Education) Determination 2018, paragraph 26(1)(a).

[33]      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, UN Doc CRC/C/GC/14 (29 May 2013), p. 3.

[34]        Under section 5 of the Human Rights (Parliamentary Scrutiny) Act 2011, the instrument 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.

[35]        Migration Act, section 495A(1).

[36]        Bridging visas are temporary visas that allow 'eligible non-citizens' to lawfully stay in Australia or lawfully leave and return to Australia for a limited period while they make an application for a substantive visa, wait for their application for a substantive visa to be processed, or make arrangements to leave Australia, finalise their immigration matter or wait for an immigration decision.

[37]        Migration Act, section 73.

[38]        Migration Act, section 72(1)(a). Section 172(1) of the Migration Act sets out the criteria for when a person will be 'immigration cleared'. The criteria vary depending on a range of factors, including how and where the person entered Australia, whether they complied with section 166 of the Migration Act, whether they were initially refused immigration clearance or bypassed immigration clearance and were then granted a substantive visa and whether they are in a prescribed class of persons.

[39]        Migration Act, section 72(1)(b). Section 2.20 of the Migration Regulations 1994 prescribes the relevant classes of persons.

[40]        Migration Act, subsection 72(1)(c).

[41]        Migration Act, subsection 72(2)(e).

[42]        Migration Act, subsection 72(3).

[43]      Human Rights Committee, General Comment 35: Liberty and security of person (2014), [11]-[12].

[44]      With the exception of Bridging Visa B: see Migration Regulations 1994, section 1302.

[45]      Migration Act, sections 189; 198.

[46]      Migration Act, subsection 72(2)(e).

[47]      Explanatory memorandum, Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001, p. 3.

[48]      Migration Act 1958, subsection 72(2)(e).

[49]      Migration Act sections 48B, 495A(3)(a); see, also, explanatory memorandum, Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001, p. 14.

[50]        Under section 5 of the Migration Act: a port is defined as a 'proclaimed port' or a 'proclaimed airport'. A proclaimed port is defined as including a port appointed by the minister under subsection 5(5). A person is defined as having entered Australia by sea including if the person entered the 'migration zone' except on an aircraft. The migration zone means 'the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:  (a)  land that is part of a State or Territory at mean low water; and (b)  sea within the limits of both a State or a Territory and a port; and  (c)  piers, or similar structures, any part of which is connected to such land or to ground under such sea; but does not include sea within the limits of a State or Territory but not in a port' (emphasis added).  

[51]        Explanatory memorandum (EM) p. 2.

[52]        See, Statement of compatibility (SOC) p. 6; The Hon. Peter Dutton, Minister for Home Affairs, Proof House of Representatives Hansard, 20 June 2018, p. 8.

[53]        [2018] FCCA 1801.

[54]        [2018] FCCA 1801, p. 26 [111].

[55]        EM p. 2; bill sections 3-4.

[56]        The statement of compatibility states that this clause is included as there are ongoing proceedings in the Federal Circuit Court and Federal Court which are currently challenging the validity of the 2002 appointment: SOC, p. 5.

[57]        1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugee Convention).

[58]        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).

[59]      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.

[60]      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.

[61]      The Hon. Peter Dutton, Minister for Home Affairs, Proof House of Representatives Hansard, 20 June 2018, p. 7.

[62]      Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) pp. 70-92; Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 174-187; Report 4 of 2017 (9 May 2017) pp. 99-106; Report 2 of 2017 (21 March 2017) pp. 10-17; Report 12 of 2017 (28 November 2017) pp. 89- 92.

[63]      Parliamentary Joint Committee on Human Rights, Ninth report of the 44th Parliament (15 July 2014) pp. 43-44; Fourteenth report of the 44th Parliament (28 October 2014) p. 88; Report 2 of 2017 (21 March 2017) pp. 10-17.

[64]      See the committee's comments on the human rights compatibility of the fast-track review process in, Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 174-187.

[65]      SOC, p. 6.

[66]      SOC, p. 5.

[67]      Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 174-187; Report 12 of 2017 (28 November 2017) p. 92.

[68]      The Hon. Peter Dutton, Minister for Home Affairs, Proof House of Representatives Hansard, 20 June 2018, p. 7.

[69]      [2018] FCCA 1801.

[70]      UN Human Rights Committee, General Comment No. 29: States of Emergency (Article 4)(2001) [14].

[71]      See Migration Act, sections 189, 198.

[72]      See, Parliamentary Joint Committee on Human Rights, Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation: Ninth Report of 2013 (June 2013) p. 19.

[73]      See, Parliamentary Joint Committee on Human Rights, Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation: Ninth Report of 2013 (June 2013) p. 58.

[74]      See, Parliamentary Joint Committee on Human Rights, Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation: Ninth Report of 2013 (June 2013).

[75]      See, Parliamentary Joint Committee on Human Rights, Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation: Ninth Report of 2013 (June 2013) p. 60.

[76]        See also Article 17 of the International Covenant on Civil and Political Rights.

[77]        See Statement of compatibility (SOC) to the Complaints Management Rules, pp. 33-34.

[78]        SOC, p. 32.

[79]        SOC, p. 34.

[80]        Explanatory Statement (ES) to the Complaints Management Rules, p. 25.

[81]        ES to the Complaints Management Rules, p. 25.

[82]        Section 10(3) of the Complaints Management Rules.

[83]        Section 10(4) of the Complaints Management Rules.

[84]        See section 12(2) and (3) of the Reportable Incidents Rules.

[85]      Section 12(4) and (5) of the Reportable Incidents Rules.

[86]      SOC to the Reportable Incident Rules, p. 10.

[87]      SOC to the Complaints Management Rules, p. 10.

[88]      SOC to the Complaints Management Rules, p. 11; SOC to the Reportable Incidents Rules, p. 12.

[89]      ES to the Reportable Incidents Rules, p. 12.

[90]      Section 28 of the Reportable Incident Rules.

[91]      Section 30 of the Complaints Management Rules.

[92]      Section 9(2) of the Complaints Management Rules; Section 11(2) of the Reportable Incidents Rules; see also the note to section 28 of the Reportable Incidents Rules and section 30 of the Complaints Management Rules.

[93]      Section 29 of the Complaints Management Rules.

[94]      Section 27 of the Reportable Incidents Rules; pursuant to section 73Z of the NDIS Act.

[95]      Article 13 of the CRPD.

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

[97]      Section 10(1)(g) of the Reportable Incidents Rules.

[98]      Section 26(1)(a) of the Reportable Incidents Rules.

[99]      Section 26(1)(f) of the Reportable Incidents Rules.

[100]      Section 16(3) and (5) of the Complaints Management Rules.

[101]      Section 24(6) of the Reportable Incidents Rules; section 29 of the Complaints Management Rules.

[102]      SOC to the Complaints Management Rules, p. 27.

[103]        Parliamentary Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017) pp. 27-30.

[104]        NDIS Amendment Bill, Addendum to the explanatory memorandum, p. 2.

[105]        NDIS Amendment Bill, statement of compatibility (SOC), p. 13.

[106]        Parliamentary Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017) p. 30.

[107]        Section 8 of the Disclosure Rules defines 'NDIS information' as information acquired by a person in the performance of a person's functions or duties or in the exercise of the person's powers under the NDIS Act.

[108]        NDIS Act, section 67E(1)(a).

[109]        NDIS Act, section 67E(1)(b)(i), (iv).

[110]        NDIS Act, section 67E(1)(b)(iii).

[111]        See discussion at [1.126].

[112]      Disclosure Rules, section 10.

[113]      Disclosure Rules, section 11.

[114]      Disclosure Rules, section 12.

[115]      Disclosure Rules, section 13.

[116]      Under section 14(2) of the Disclosure Rules, a person will have a 'sufficient interest' in the information if the Commissioner is satisfied that they have a 'genuine and legitimate interest' in the information or if they are a Commonwealth, State or Territory Minister.

[117]      Disclosure Rules, section 15.

[118]      Disclosure Rules, section 16.

[119]      Disclosure Rules, section 17.

[120]      Disclosure Rules, section 18.

[121]      Disclosure Rules, section 19.

[122]      Section 19(2) of the Disclosure Rules defines 'professional body' as 'an organisation that is responsible, nationally or in one or more States or Territories, for registering members of a particular profession and monitoring their compliance with specified standards of behaviour'.

[123]      Disclosure Rules, section 19.

[124]      Article 17 of the International Covenant on Civil and Political Rights; Article 22 of the Convention on the Rights of Persons with Disabilities; article 16 of the Convention on the Rights of the Child (CRC)

[125]      Statement of compatibility (SOC), p. 13.

[126]      SOC, p. 15.

[127]      SOC, p. 15.

[128]      Parliamentary Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017) p. 28.

[129]      SOC, p. 16.

[130]      Parliamentary Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017), p. 29.

[131]      Disclosure Rules, SOC, p. 15.

[132]      Disclosure Rules, section 14(1)(f).

[133]      Disclosure Rules, section 14(1)(e).

[134]      Disclosure Rules, section 14(1)(a).

[135]      Disclosure Rules, SOC, p. 16.

[136]      Disclosure Rules, section 16.

[137]      Disclosure Rules, section 11(7)(b).

[138]        Section 6 of the National Disability Insurance Scheme (Restrictive Practice and Behaviour Support) Rules 2018 (rules).

[139]        Section 8 of the rules.

[140]        The rules note that an authorisation process may, for example, be a process under relevant State or Territory legislation or policy or involve obtaining informed consent from a person and/or their guardian, approval from a guardianship board or administrative tribunal or approval from an authorised state or territory officer.

[141]        'Single emergency use' is not defined in the instrument but is described in the explanatory statement (ES) as 'the use of a regulated restrictive practice in relation to a person with disability, in an emergency, where the use of a regulated restrictive practice has not previously been identified as being required in response to behaviour of that person with disability previously'. See, ES, p. 9.

[142]        Section 9 of the rules.

[143]        'Behaviour support practitioner' is defined in section 5 of the rules to mean a person the Commissioner considers is suitable to undertake behaviour support assessments (including functional behavioural assessments) and to develop behaviour support plans that may contain the use of restrictive practices.

[144]        See sections 18-20.

[145]        A specialist behaviour support provider is defined in section 5 of the rules to mean a registered NDIS provider whose registration incudes the provision of specialist behaviour support services.

[146]        Section 21(3) of the rules.

[147]      Section 10 of the rules.

[148]      Section 11 of the rules.

[149]      Section 12 of the rules.

[150]      Section 13 of the rules.

[151]      Article 7 of the International Covenant on Civil and Political Rights; article 15 of the Convention on the Rights of Persons with Disabilities; articles 3-5 Convention against Torture and other Cruel, Inhuman, Degrading Treatment or Punishment; article 37 of the Convention on the Rights of the Child.

[152]      Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Australia, adopted by the committee at its tenth session, CRPD/C/AUS/CO1(2013) [35]-[36].

[153]      Statement of compatibility (SOC) p. 29.

[154]      SOC, p. 28.

[155]      SOC, p. 30.

[156]      SOC, pp. 30-31.

[157]      See section 12 of the rules.

[158]      Section 9 of the rules.

[159]      ES, p. 9.

[160]      ES, p. 9.

[161]      CRPD, Article 12.

[162]      CRPD, Article 17.

[163]      CRPD, article 14; ICCPR, article 9; CRC, article 37.

[164]      CRPD, article 16.

[165]      CRPD, article 21.

[166]      ES, p. 1; SOC, p. 32.

[167]      See also article 17 of the International Covenant on Civil and Political Rights.

[168]      SOC, p. 28.

[169]        See subsection 42(1)(b).

[170]        Under proposed subsection 43(1)(a) these associations include 'that the person is or was a staff member of ONI, that the person has entered into any contract, agreement or arrangement with ONI or that the person has been an employee or agent of a person who has entered into a contract, agreement or arrangement with ONI'. See explanatory memorandum (EM), p. 38.

[171]        Under proposed subsection 44(1)(a) 'dealing with' information includes copying a record, transcribing a record, retaining a record, removing a record, or dealing with a record in any other manner.

[172]        Under the bill, Director-General means the Director-General of National Intelligence, whose functions include overseeing and managing ONI. See division 1 of part 3 of the bill.

[173]        See proposed subsections 42(2), 43(2) and 44(3).

[174]        See proposed subsections 42(3) and 43(3).

[175]        See proposed subsection 44(4).

[176]        See proposed subsection 43(3).

[177]        See, respectively, Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 213-279; Report 11 of 2017 (17 October 2017) pp. 72-83; Report 7 of 2016 (11 October 2016) pp. 64-83; and Sixteenth Report of the 44th Parliament (25 November 2014) pp. 33-60.

[178]      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.

[179]      EM, Statement of compatibility (SOC), p. 13.

[180]      EM, SOC, p. 13.

[181]      This includes the Australian Security Intelligence Organisation (ASIO), Australian Secret Intelligence Service (ASIS), Defence Intelligence Organisation (DIO), Australian Signals Directorate (ASD) and the Australian Geospatial-Intelligence Organisation (AGO), the Australian Criminal Intelligence Commission (ACIC); and the intelligence functions of the Department of Home Affairs, the Australian Federal Police (AFP), the Australian Transaction Reports and Analysis Centre (AUSTRAC) and the Department of Defence.

[182]      See division 1 of part 4 of the bill.

[183]      EM, SOC, p. 13.

[184]      As stated above, under proposed subsection 44(1)(a) 'dealing with' information includes copying a record, transcribing a record, retaining a record, removing a record, or dealing with a record in any other manner.

[185]      See section 8 of division 2 of part 2 of the National Security Information (Criminal and Civil Proceedings) Act 2004.

[186]      See section 10 of division 2 of the National Security Information (Criminal and Civil Proceedings) Act 2004.

[187]      See EM, SOC, p. 38.

[188]      EM, SOC, p. 12.

[189]      EM, SOC, p. 12.

[190]      EM, p. 37.

[191]      Article 17 of the International Covenant on Civil and Political Rights.

[192]      SOC, p. 8.

[193]      SOC, p. 8.

[194]      SOC, p. 8.

[195]      SOC, p. 9.

[196]      SOC, p. 9.

[197]      SOC, p. 9.

[198]      'Identifiable information' means information about an Australian citizen or permanent resident, who is identified or reasonably identifiable: section 4.

[199]      SOC, p. 9. See, section 53 of the bill.

[200]      SOC, p. 9.

[201]      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'.

[202]      Althammer v Austria, Human Rights Committee Communication no. 998/01 (8 August 2003) [10.2].

[203]      UN Committee on the Elimination of Racial Discrimination, General Recommendation 30: Discrimination against non-citizens (2004).

[204]      SOC, p. 6.

[205]      SOC, p. 6.

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

[207]      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].

[208]        'Unexplained wealth' refers to an amount that is the difference between a person's total wealth and the wealth shown to have been derived lawfully: see section 179E(2) of the POC Act.

[209]        Section 20A of the POC Act.

[210]        Section 179B of the POC Act.

[211]        Section 179E of the POC Act.

[212]        See, Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018)
p. 121; Report 12 of 2017 (28 November 2017); Ninth Report of the 44^th Parliament (July 2014)
p. 133; Fourth Report of the 44^th Parliament (March 2014) p. 1; Sixth Report of 2013 (May 2013) pp. 189-191; Third Report of 2013 (March 2013) p. 120; First Report of 2013 (February 2013) p. 27.

[213]        See, Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018) p. 121; Report 12 of 2017 (28 November 2017); Report 4 of 2017 (9 May 2017) pp. 92-93; Report 2 of 2017 (21 March 2017); Report 1 of 2017 (16 February 2017); Thirty-First Report of the 44^th Parliament (24 November 2015) pp. 43-44; Twenty-Sixth Report of the 44^th Parliament (18 August 2015).

[214]        Parliamentary Joint Committee on Human Rights, Thirty-First Report of the 44^th Parliament (24 November 2015) pp. 43-44.

[215]        See proposed section 14B(3) of Schedule 1 of the bill. 

[216]        A 'relevant offence' of a participating state is defined to mean an offence of a kind that is specified in the referral Act or adoption Act of the state: see proposed amendment to section 338 in item 2, Schedule 2 of the bill. 

[217]      A 'participating state' is one which refers powers to the commonwealth parliament (for the purposes of paragraph 51(xxxvii) of the Constitution) so as to participate in the national unexplained wealth scheme: see proposed section 14C in Schedule 1 of the bill.

[218]      See items 1 and 2 of Schedule 2 and 3, proposed amendments to sections 20A(1)(g)(i) and 20A(1)(g)(ii) of the bill.

[219]      See item 5 of Schedule 2 and 3, proposed amendment to section 179E(1)(b)(ii) of the bill.

[220]      Article 14(2) of the ICCPR.

[221]      Article 14(3)(g) of the ICCPR.

[222]      Article 15(1) of the ICCPR.

[223]      Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018) p. 121.

[224]      SOC, [61].

[225]      SOC, [62].

[226]      SOC, [51].

[227]      See Gogitdze & Ors v Georgia, European Court of Human Rights App No.36862/05 (2015) [126]; Butler v United Kingdom, European Court of Human Rights App No.41661/98 (2002).

[228]      See, for example, Welch v United Kingdom, European Court of Human Rights App No.17440/90 (1995).

[229]      Dassa Foundation v Lichtenstein, European Court of Human Rights Application No.696/05 (2007); Butler v United Kingdom, European Court of Human Rights App No.41661/98 (2002).

[230]      Gogitdze & Ors v Georgia, European Court of Human Rights App No.36862/05 (2015) [125]; Allen v United Kingdom, European Court of Human Rights (Grand Chamber) App No. 25424/09 (2013) [103]-[104].

[231]      Welch v United Kingdom, European Court of Human Rights App No.17440/90 (1995) [28].

[232]      See, Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018)
p. 115.

[233]      Section 179E of the POC Act.

[234]      Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018) p. 121.

[235]      Parliamentary Joint Committee on Human Rights, Fourth Report of the 44^th Parliament (March 2014) p. 6.

[236]      Section 179E(4) of the POC Act.

[237]      SOC, [55]-[60].

[238]      SOC, [57]-[58].

[239]      SOC, [59]; sections 29, 31 and 179C of the POC Act.

[240]      Section 31(2)(a) of the POC Act.

[241]      Section 31(3)(a) of the POC Act.

[242]      See the definition of 'property' in section 338 of the POC Act; see also SOC, [80]; see also section 179S of the POS Act.

[243]      SOC, [80].

[244]      Sections 20A(4); 179B(4) and 179E(6) of the POC Act.

[245]      Sections 20A(4) and 179E(6) of the POC Act.

[246]      Sections 24A, 29A, 42 and 179C of POC Act.

[247]      Section 179L of the POC Act.

[248]      Section 24 of the POC Act.

[249]      SOC, [82].

[250]      Section 24(1) of the POC Act. In contrast, the court must relieve certain dependants from hardship caused by unexplained wealth orders if certain criteria are satisfied: section 179L(1).

[251]      See Schedule 4, section 1 of proposed Part 1 of Schedule 1 of the POC Act. Documents relevant to identifying or locating any document necessary for the transfer of property and documents that would assist in the reading or interpretation of documents referred to in section 1(6)(a) and (b) would also be subject to production orders: section 1(6)(c).

[252]      See Schedule 4, section 1(3)(b)-(c) of proposed Part 1 of Schedule 1 of the POC Act.

[253]      See Schedule 4, section 5(1)(a) of proposed Part 1 of Schedule 1 of the POC Act.

[254]      See Schedule 4, section 5(2) of proposed Part 1 of Schedule 1 of the POC Act; see also proposed section 18(3) and (4) of Part 3 of Schedule 1 of the POC Act.

[255]      See Schedule 4, section 18(3) and (4) of proposed Part 3 of Schedule 1 of the POC Act. A derivative use immunity would prevent information or evidence indirectly obtained from being used in criminal proceedings against the person.

[256]      See Schedule 4, section 18 of proposed Part 3 of Schedule 1 of the POC Act.

[257]      See Schedule 4, section 18(2) of proposed Part 3 of Schedule 1 of the POC Act.

[258]      International Covenant on Civil and Political Rights, Article 14(3)(g).

[259]      SOC, [62].

[260]      Explanatory memorandum (EM), [205]-[206].

[261]      EM, [190]-[191].

[262]      EM, [191].

[263]      SOC, [67].

[264]      SOC, [68].

[265]      SOC, [69-[71].

[266]      See Schedule 4, section 18(2) of proposed Part 3 of Schedule 1 of the POC Act.

[267]      See section 5B(1)(b) of the Telecommunications (Interception and Access) Act 1979.

[268]      'Dealing' for permitted purposes in relation to an agency allows an officer or staff member of an agency, for a permitted purpose, or permitted purposes, in relation to the agency and for no other purpose, to communicate to another person, make use of, or make a record of specified information: see section 67 of the TIA Act.

[269]      See item 2 of Schedule 6, proposed sections 5B(1)(be) and (bf) of the bill.

[270]      See item 7 and 8 of Schedule 6, proposed section 68(c)(ia) of the bill.

[271]      SOC, [72]-[75].

[272]      SOC, [73].

[273]      'Communication' is defined in section 5 of the TIA Act as 'conversation and a message, and any part of a conversation or message, whether: (a) in the form of: (i) speech, music or other sounds; (ii) data; (iii) text; (iv) visual images, whether or not animated; or (v) signals; or (b) in any other form or in any combination of forms.' See also, TIA Act section 46.

[274]      'Telecommunications data' refers to metadata rather than information that is the content or substance of a communication: see section 172 of the TIA Act

[275]      SOC, [76].

[276]      SOC, [77].

[277]      See Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 5; Report 1 of 2017 (16 February 2017) pp. 35-44.  

[278]        See proposed subsections 10(2); 12(2); 14(14) and 14(16).

[279]        United Nations Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of persons), (16 December 2014) [22].

[280]        See, for example, proposed subsection 10(2) and subsection 12(2).

[281]        Explanatory memorandum, statement of compatibility, p. [10].

[282]        See subsection 14(16) of the bill.

[283]        The committee previously addressed the human rights compatibility of the fourth bill, namely, the Racial Discrimination Law Amendment (Free Speech) Bill 2016, in its Report 2 of 2017, by reference to its comments in its inquiry into freedom of speech in Australia: Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) p. 1; 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). For more information on this inquiry, see the inquiry website at: http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia.

[284]        Insult and Offend Bill.

[285]        Security Bill.

[286]        Under the National Classification Code, publications, films and computer games that are classified as RC depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; or describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child under 18 (whether the person is engaged in sexual activity or not); or promote, incite or instruct in matters of crime or violence: National Classification Code, section 2, item 1; section 3, item 1; section 4, item 1. In addition, section 9A of the Classification Act requires publications, films or computer games that advocate terrorism to be classified as RC. Materials that are classified as RC cannot be sold, hired, advertised or legally imported in Australia. See Department of Communications and the Arts, Refused Classification (RC) at http://www.classification.gov.au/Guidelines/Pages/RC.aspx.

[287]        Censorship Bill, schedule 1, item 4.

[288]        Censorship Bill, schedule 1, item 2.

[289]        Censorship Bill, schedule 1, clause 7.

[290]        National Classification Code, section 3, item 2. Under the code, films that are classified as X 18+ are unsuitable for minors to see and contain real depictions of actual sexual activity between consenting adults in which there is no violence, sexual violence, sexualised violence, coercion, sexually assaultive language, or fetishes or depictions which purposefully demean anyone involved in that activity for the enjoyment of viewers, in a way that is likely to cause offence to a reasonable adult. X 18+ films are currently only available for sale or hire in the ACT and Northern Territory: Department of Communications and the Arts, Restricted (X 18+) at http://www.classification.gov.au/Guidelines/Pages/X18+.aspx.

[291]        National Classification Code, section 2, item 3. Under the code, Category 1 Restricted publications explicitly depict nudity, or describe or impliedly depict sexual or sexually related activity between consenting adults, in a way that is likely to cause offence to a reasonable adult, or describe or express in detail violence or sexual activity between consenting adults that is likely to cause offence to a reasonable adult, or are unsuitable for a minor to see or read.

[292]      National Classification Code, section 2, item 2. Under the code, Category 2 Restricted publications explicitly depict sexual or sexually related activity between consenting adults in a way that is likely to cause offence to a reasonable adult, or depict, describe or express revolting or abhorrent phenomena in a way that is likely to cause offence to a reasonable adult and are unsuitable for a minor to see or read.

[293]      Censorship Bill, schedule 2, clause 2.

[294]      Censorship Bill, schedule 3.

[295]      International Covenant on Civil and Political Rights, article 19(2).

[296]      Censorship Bill, statement of compatibility (SOC), p. 13; Insult and Offend Bill, SOC, p. 14; Security Bill, SOC, p. 23.

[297]      Regarding disclosure offences see, for example, Parliamentary Joint Committee on Human Rights, National Security Legislation (Amendment (Espionage and Foreign Interference) Bill 2017, Report 2 of 2018 (13 February 2018) pp. 2-11; and Report 3 of 2018 (27 March 2018) pp. 213-236; Australian Border Force Amendment (Protected Information Bill) 2017, Report 9 of 2017 (5 September 2017) pp. 6-12; and Report 11 of 2017 (17 October 2017) pp. 72-83; Australian Border Force Bill 2015, Twenty-second Report of the 44^th Parliament (13 May 2015) pp. 18-23; and Thirty-seventh Report of the 44^th Parliament (19 April 2016) pp. 34-35; National Security Legislation Amendment Bill (No 1) 2014, Thirteenth Report of the 44^th Parliament, pp. 6-13; and Sixteenth Report of the 44^th Parliament (November 2014) pp. 55-57. In relation to provisions prohibiting offensive or insulting conduct see, for example, Parliamentary Joint Committee on Human Rights, National Integrity Commission Bill 2017, Report 12 of 2017 (28 November 2017) pp. 94-95, National Integrity Commission Bill 2013, First Report of the 44^th Parliament (10 December 2013) pp. 44-45 and Report 8 of 2016 (9 November 2016), pp. 45-46; Veterans' Affairs Legislation Amendment (Mental Health and Other Measures) Bill 2014, Sixth Report of the 44^th Parliament (May 2014) pp. 33-36; Ninth Report of the 44^th Parliament (July 2014) pp. 110-112; and Eleventh Report of 44^th Parliament (September 2014), pp. 38-39.

[298]      In the committee's examinations of the Stronger Futures in the Northern Territory Act 2012 in 2013 and 2016, it considered that the legislation could not properly be characterised as 'special measures' under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), because the measures criminalised the conduct of some members of the group to be benefitted: Parliamentary Joint Committee on Human Rights, Eleventh Report of 2013 (June 2013) pp. 21-28; 2016 Review of Stronger Futures Measures (16 March 2016) pp. 3, 22.

[299]      Convention on the Rights of the Child (CRC), article 19(1).

[300]      Censorship Bill, schedule 1, item 2.

Chapter 2 - Concluded matters

[1]        Parliamentary Joint Committee on Human Rights, Report 5 of 2018 (19 June 2018) pp. 2-10.

[2]        Commissions of Inquiry are a consolidation of the four higher-level inquiry formats under the former Defence (Inquiry) Regulations 1985 – General Courts of Inquiry, Boards of Inquiry, Combined Boards of Inquiry and Chief of the Defence Force (CDF) Commissions of Inquiry: see Explanatory Statement (ES) p.8. COIs are used for higher level matters that are particularly complex and sensitive: see ES p.1.

[3]        Persons can be required to attend to give evidence following a written notice from the president of the commission of inquiry, if the president reasonably believes that a person has information that is relevant to the commission's inquiry: section 19 of the regulations.

[4]        Pursuant to a notice issued under section 18 of the regulations.

[5]        Sections 53, 61 and 62 of the regulations. 'Inquiry officer' inquiries are used to inquire into more routine matters. See ES p.1.

[6]        It is noted that this applies to oral testimony only, and the privilege against self-incrimination applies to the provision of documents: see sections 124(2A) and (2C) of the Defence Act 1903. See also p. 29 of the ES.

[7]        Sections 38(2) and 67(2) of the regulations.

[8]        Section 124(2C) of the Defence Act 1903 (Defence Act); see the note to sections 38 and 67 of the regulations.

[9]        Statement of compatibility (SOC), p. 4.

[10]      SOC, p.4.

[11]      ES, p.29; p. 47.

[12]      SOC, p. 5, this same point is made in the ES at pp. 29 and 47-48.

[13]      For example, section 37(1) of the regulations provides that a person who is an employee of the Commonwealth or member of the Defence Force commits an offence if the person discloses certain information contained in a COI record or report. Sections 37(2) and (3) provide that this offence does not apply if the person is permitted to disclose the information under section 26, or authorised to disclose the information under section 27.

[14]      Section 25 of the regulations.

[15]      Section 36 of the regulations.

[16]      Persons who are permitted to disclose information or documents pursuant to sections 26 and 27 will not commit an offence: see section 37(2) and (3) of the regulations.

[17]      Section 26(2), section 27(3) and section 28 of the regulations.

[18]      Sections 58 (use, disclosure and copying of certain information and documents as an employee of the Commonwealth or member of the Defence Force), 59 (minister may authorise use, disclosure and copying of certain information) and 60 (minister may use, disclose and copy certain information and documents) of the regulations.

[19]      ES, p. 21.

[20]      Sections 26 and 58 of the regulations.

[21]      Chief of the Defence Force Directive 08/2014 Attachment 2: Guidance on Disclosure of Inquiry Documents in the Performance of Duties, 3. It is noted that Attachment 3 to the Directive outlines how inquiry documents should be redacted to protect sensitive information. Attachment 3 was not provided to the committee.

[22]      Sections 27 and 59 of the regulations.

[23]      Sections 28 and 60 of the regulations.

[24]      Sections 29(2), 30(2), 32(3), 36(2) and (3) and 37(2) and (3) of the regulations.

[25]      Sections 61(2) and (4), 62(2) and 66(2) and (3) of the regulations.

[26]      See, for example, ES pp. 23, 25, 43 and 46.

[29]      Sections 36(2) and (3), 37(2) and (3), and 66(2) and (3) of the regulations.

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

[31]      Parliamentary Joint Committee on Human Rights, Report 4 of 2018 (8 May 2018) pp. 47-57. The initial human rights analysis raised questions as to whether a proposal in the bill that the Australian Signals Directorate would operate outside the Public Service Act 1999 was compatible with the right to just and favourable conditions at work. However, based on further information from the minister, including as to the safeguards in place to protect just and favourable conditions at work, the committee concluded that the measure was likely to be compatible with the right to just and favourable conditions at work. See, Report 4 of 2018, p. 57.

[32]      See Parliamentary Joint Committee on Human Rights, Correspondence register, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Correspondence_register.

[33]      '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.

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

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

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

[37]      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].

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

[39]      Parliamentary Joint Committee on Human Rights, Report 5 of 2018 (19 June 2018) pp. 11-15.

[40]      Section 2.72 also applies to holders of the Subclass 457 (Temporary Work (Skilled) Visa) visa. That visa is repealed by the regulation, however, the reference is included in section 2.72 because, although the visa has been repealed, holders of 457 visas will require a new nomination if they change employer: Explanatory statement to the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (regulations), p.28.

[41]      'Nominated occupation' refers to the proposed occupation of the applicant for the visa:  see clause 482.111 in Schedule 2 of the regulations.

[42]      See clause 482.216, clause 482.316 of Schedule 2 of the regulations.

[43]      These visas allow employers to nominate skilled workers for permanent residence to fill genuine vacancies in their business. Subclass 186 visa is available nationally, while the Subclass 187 visa is for skilled workers who want to work in regional Australia: see Statement of compatibility (SOC) to the regulations, p. 8.

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

[45]      Article 22(2).

[46]      Explanatory statement, pp. 19-20.

[47]      See section 2.72(4) and 5.19(4) of the regulation.

[48]      Section 1.13A of the regulation.

[49]      Explanatory statement, pp. 19-20.

[50]      Parliamentary Joint Committee on Human Rights, Report 5 of 2018 (19 June 2018) pp. 41-46.

[51]      The Social Security (Assurances of Support) Determination 2018 [F2018L00425] (the determination) was amended by the Social Security (Assurances of Support) Amendment Determination 2018 [F2018L00650] (the amended determination) on 24 May 2018.

[52]      Visa subclasses for which it is a mandatory condition of grant of the visa to have an assurance of support include the visa subclass 103 (parent), subclass 143 (contributory parent), subclass 864 (contributory aged parent); subclass 114 (aged dependent relative); subclass 115 (remaining relative). There are also several visa subclasses for which the Minister for Home Affairs may request an assurance of support as a condition of the grant, including subclass 117 (orphan relative); subclass 101 (child); subclass 102 (adoption); subclass 151 (former resident); subclass 202 (global humanitarian visa – community support programme entrants).

[53]      The length of the assurance period depends on the type of visa. For example, for a contributory parent visa, the period of assurance may be 10 years; for a community support programme entrant, the period is 12 months: explanatory statement to the determination,
p. 2.

[54]      Section 1061ZZGA(a) of the Social Security Act 1991; Statement of compatibility (SOC) to the amended determination, pp. 1,3.  Recoverable social security payments for the purpose of assurances of support includes widow allowance, parenting payment, youth allowance, austudy payment, newstart allowance, mature age allowance, sickness allowance, special benefit and partner allowance.

[55]      Section 14(1) of the determination.

[56]      'Base FTB child rate' refers to the base Family Tax Benefit rate. The rate has the meaning and is determined by clause 8 of Schedule 1 to the A New Tax System (Family Assistance) Act 1999.  See further the explanation at [2.155] below.

[57]      'Applicable supplement amount' has the meaning and is determined by clause 38A(2) of Schedule 1 to the A New Tax System (Family Assistance) Act 1999. See further the explanation at [2.155].

[58]      Section 15(2) of the amended determination. The determination before amendment required a higher level of income in order to meet the income requirement, namely the newstart income cut-off amount multiplied by the total of: (i) one (representing the individual giving the assurance of support); and (ii) the total number of adults receiving assurance under the assurance of support given by the person; and (iii) if the individual giving assurance under the assurance of support has a partner – one; and (b) 10% of the newstart income cut-off amount multiplied by: (i)  the number of children of the individual giving assurance under the assurance of support; and  (ii) the number of children of any adults receiving assurance under the assurance of support.

[59]      Section 15(2) of the amended determination.  Before the amendment, the determination required that if a partnered individual with one child applied to give an assurance of support for a migrating family of two parents and two children, the minimum required income amount of the individual would have been the total of:  (a) $115 476 (the newstart income cut-off amount of $28 869 multiplied by the total number of individuals giving assurance, persons receiving an assurance, and the partner of the individual giving assurance (4)); and (b) $8 661 (10% of the newstart income cut-off amount of $28 869 multiplied by the total number of children of both the individual giving assurance, and the persons receiving assurance (3)).

[60]      Section 16(2) of the amended determination. The determination before amendment required a higher level of income in order to meet the income requirement, namely (a) the newstart income cut-off amount multiplied by the total of: (i) the total number of individuals giving assurance under the assurance of support; and (ii) the total number of adults receiving assurance under an assurance of support given by the individual; and (iii) the total number of partners of the individuals that are jointly giving assurance under the assurance of support; and (b) 10% of the newstart income cut-off amount multiplied by (i) the number of children of the individuals giving assurance under the assurance of support; and (ii) the number of children of any adults receiving assurance under the assurance of support.

[61]      Section 16(2) of the amended determination. Before the amendment, the determination required that for two joint assurers (who each have a partner and two children) give an assurance of support for a migrating family of two parents and three children, the combined minimum required income amount of both assurers is the total of: (a) $173 214 (the newstart income cut-off amount of $28 869 multiplied by the total number individuals giving assurance, persons receiving an assurance, and the partners of the individuals giving assurance (6)); and (b) $20 208 (10% of the newstart income cut-off amount of $28 869 multiplied by the total number of children of both the individuals giving the assurance, and the persons receiving assurance (7)).

[62]      UN Committee on the Rights of Children, General Comment 14 on the right of the child to have his or her best interest taken as primary consideration (2013).

[63]      See, for example, Sen v the Netherlands (Application no. 31465/96) (2001) ECHR; Tuquabo-Tekle And Others v The Netherlands (Application no. 60665/00) (2006) ECHR [41]; Maslov v Austria (Application no. 1638/03) (2008) ECHR [61]-[67].

[64]      SOC to the amended determination, p.1.

[65]      See above at [2.154] to [2.157] and accompanying footnotes.

[66]      SOC to the amended determination, p. 1.

[67]      See above at [2.164].

[68]      Coral Sea Marine Park Management Plan 2018 [F2018L00327]; Temperate East Marine Parks Network Management Plan 2018 [F2018L00321]; North-West Marine Parks Network Management Plan 2018 [F2018L00322]; North Marine Parks Network Management Plan 2018 [F2018L00324]; South-West Marine Parks Network Management Plan 2018 [F2018L00326].

[69]      Parliamentary Joint Committee on Human Rights, Report 5 of 2018 (19 June 2018) pp. 47-48.

[70]      North Marine Parks Network Management Plan 2018 [F2018L00324] p. 51, [4.2.6]; Temperate East Marine Parks Network Management Plan 2018 [F2018L00321] p. 51 [4.2.5]; North-West Marine Parks Network Management Plan 2018 [F2018L00322] p. 54 [4.2.6]; South-West Marine Parks Network Management Plan 2018 [F2018L00326] p. 50 [4.2.4]; Coral Sea Marine Park Management Plan 2018 [F2018L00327] p. 43, [4.2.5].

[71]      Limitations must be prescribed by law, pursue a legitimate objective, and be rationally connected and proportionate to that objective. Additionally, the right may only be limited for certain prescribed purposes, that is, where it is necessary to respect the rights of others, or to protect national security, public safety, public order, public health or morals.

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'.