Footnotes


Membership of the committee

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

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

Chapter 1 - New and continuing matters

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

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

[3]        See, for example, Parliamentary Joint Committee on Human Rights, Thirty-third report of the 44th Parliament (2 February 2016), pp. 33-36; Twenty-sixth teport of the 44th Parliament (18 August 2015); Twenty-fifth report of the 44th Parliament (11 August 2015) pp. 65-67; Report 1 of 2013 (6 February 2013) p. 107.

[4]        Fee and Juror Remuneration Regulations, schedule 1, items 89 to 103.

[5]        Fees and Juror Remuneration Regulations, schedule 1, item 88.

[6]        High Court Fees Regulation, section 12(1)(c).

[7]        High Court Fees Regulation, section 12(2).

[8]        International Covenant on Civil and Political Rights (ICCPR), Article 14(1).

[9]        See UN Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial (2007), para. [11]. See also Lindon v Australia, Communication No. 646/1995 (25 November 1998), para. [6.4].

[10]        Parliamentary Joint Committee on Human Rights, Short Guide to Human Rights, pp. 13-14.

[11]        Fees and Juror Remuneration Regulations, statement of compatibility (SOC) pp. 18-19.

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

[13]      SOC, p. 19.

[14]      SOC, p. 19.

[15]      SOC, p. 19.

[16]      High Court Fees Regulation, section 11(1)(a).

[17]      High Court Fees Regulation, section 11(1)(b). Section 11(2) clarifies that the holder of a card does not include a dependent of the person who is issued the card.

[18]      High Court Fees Regulation, section 11(1)(c).

[19]      High Court Fees Regulation, section 11(1)(d).

[20]      High Court Fees Regulation, section 11(1)(e).

[21]      High Court Fees Regulation, section 11(1)(e).

[22]      High Court Fees Regulation, section 13.

[23]      See, for example, the committee's consideration of the Federal Courts Legislation Amendment (Fees) Regulation 2015 in the 33rd Report of the 44th Parliament (2 February 2016), p. 36.

[24]      See, in relation to increased court fees in employment tribunals and the Employment Appeal Tribunal in the United Kingdom, R (Unison) v Lord Chancellor [2017] UKSC 51.

[25]          Parliamentary Joint Committee on Human Rights, Report 7 of 2018 (14 August 2018)
pp. 39-47.

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

[27]        Section 8 of the rules.

[28]        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.

[29]        '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.

[30]        Section 9 of the rules.

[31]        '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.

[32]        See sections 18-20.

[33]        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.

[34]      Section 21(3) of the rules.

[35]      Section 10 of the rules.

[36]      Section 11 of the rules.

[37]      Section 12 of the rules.

[38]      Section 13 of the rules.

[39]      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.

[40]      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].

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

[42]      SOC, p. 28.

[43]      SOC, p. 30.

[44]      SOC, pp. 30-31.

[45]      See section 12 of the rules.

[46]      Section 9 of the rules.

[47]      ES, p. 9.

[48]      ES, p. 9.

[49]      CRPD, Article 12.

[50]      CRPD, Article 17.

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

[52]      CRPD, article 16.

[53]      CRPD, article 21.

[54]      ES, p. 1; SOC, p. 32.

[55]      See also section 12, which deals with circumstances where the 'first use' is not in accordance with a behaviour support plan or authorisation; or section 13 where the first use is not in accordance with a behaviour support plan but where authorisation is not required.

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

[57]      SOC, p. 28.

[58]        See explanatory memorandum (EM) p. 2.

[59]        Proposed section 4 defines 'plebiscite matter' as: (a) matter commenting on the level of migration to Australia, the plebiscite or the plebiscite proposal; (b) matter stating or indicating the plebiscite proposal; (c) matter soliciting votes in favour or not in favour of the plebiscite proposal; (d) matter referring to a meeting held or to be held in connection with the level of migration to Australia, the plebiscite or the plebiscite proposal.

[60]        See proposed section 30.

[61]        Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016) pp. 25-29; Report of 8 of 2016 (9 November 2016) pp. 66-71

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

[63]        EM, statement of compatibility, p. 31.

Chapter 2 - Concluded matters

[1]        Parliamentary Joint Committee on Human Rights, Report 7 of 2018 (14 August 2018)
pp. 23-31.

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

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

[4]        SOC, p. 32.

[5]        SOC, p. 34.

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

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

[8]        These safeguards do not apply where the person has given express or implied consent to the disclosure (that is, they do not apply to information disclosed pursuant to section 67E(1)(b)(ii): see section 10(1), 11(1), 12(1) and 13(1) of the Commissioner Protection and Disclosure Rules).

[9]        Section 10(1) of the Commissioner Protection and Disclosure Rules. This is subject to the exception that de-identification is not required if the Commissioner is satisfied that the disclosure is necessary to prevent or lessen a serious threat to an individual’s life, health or safety; compliance would result in unreasonable delay or compliance would frustrate the purpose of disclosure: section 10(3). Personal information is also not required to be de-identified where the affected individual has consented to the proposed disclosure: section 10(2).

[10]      Section 11 of the Commissioner Protection and Disclosure Rules. 'Consultation' includes notifying any affected individual about disclosure, seeking the consent of the affected individual to the proposed disclosure and providing a reasonable opportunity for the affected individual to comment on the proposed disclosure: section 11(1). There are several exceptions to the consultation requirements, including those similar to the requirements in section 10(3). See section 11(5)-(7).

[11]      Section 12 of the Commissioner Protection and Disclosure Rules.

[12]      See sections 67B-67D of the NDIS Act.

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

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

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

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

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

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

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

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

[21]      Section 28 of the Reportable Incident Rules.

[22]      Section 30 of the Complaints Management Rules.

[23]      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.

[24]      Section 29 of the Complaints Management Rules.

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

[26]      Article 13 of the CRPD.

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

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

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

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

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

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

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

[34]      Parliamentary Joint Committee on Human Rights, Report 7 of 2018 (14 August 2018) pp. 32-38.

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

[36]      NDIS Amendment Bill, addendum to the explanatory memorandum, p. 2.

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

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

[39]      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.

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

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

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

[43]      See discussion at [1.21].

[44]      Disclosure Rules, section 10.

[45]      Disclosure Rules, section 11.

[46]      Disclosure Rules, section 12.

[47]      Disclosure Rules, section 13.

[48]      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.

[49]      Disclosure Rules, section 15.

[50]      Disclosure Rules, section 16.

[51]      Disclosure Rules, section 17.

[52]      Disclosure Rules, section 18.

[53]      Disclosure Rules, section 19.

[54]      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'.

[55]      Disclosure Rules, section 19.

[56]      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)

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

[58]      SOC, p. 15.

[59]      SOC, p. 15.

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

[61]      SOC, p. 16.

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

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

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

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

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

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

[68]      Disclosure Rules, section 16.

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

[70]      NDIS Act, section 67B.

[71]      NDIS Act, section 67C.

[72]      NDIS Act, section 67D.

[73]      NDIS Act, sections 67B, 67C and 67D. Under section 4AA of the Crimes Act 1914, the current amount of a penalty unit is $210.

[74]      Parliamentary Joint Committee on Human Rights, Report 5 of 2018 (19 June 2018) pp. 16-40.

[75]      See, Parliamentary Joint Committee on Human Rights, Report 13 of 2017 (5 December 2017) pp. 2-16; Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) pp. 73-96.

[76]      The statement of compatibility refers to the assistance of New South Wales, Victoria and the Australian Capital Territory: see Statement of compatibility (SOC) p. 113. See the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 (NSW) which passed both houses in New South Wales on 16 May 2018, and the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 (Victoria) which passed both houses in Victoria on 7 June 2018.

[77]      The committee has assessed the National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018 and the National Redress Scheme for Institutional Child Sexual Abuse Direct Personal Response Framework 2018 and considers that the compatibility of these instruments with the right to an effective remedy will depend on how the instruments operate in practice on a case by case basis.

[78]      Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) pp. 73, 79, 83, 93.

[79]      See Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 74.

[80]      Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 78.

[81]      Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 78; see section 13(2) and (3) of the 2018 Bill.

[82]      See section 13(1)(e) of the 2018 Bill; see statement of compatibility (SOC) 117-118. While the redress scheme rules do not prescribe any further classes of persons who would be eligible pursuant to section 13(2) of the bill, the redress scheme rules do provide that certain institutions are equally responsible for the abuse of certain child migrants from the United Kingdom and Malta: see section 10 of the redress scheme rules.

[83]      Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) pp. 79-83.

[84]      Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 80.

[85]      Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 83.

[86]      Section 12(3) and (4) of the 2018 Bill, section 13(2) and (3) of the 2018 Bill.

[87]      See section 21(7) of the 2017 Bill.

[88]      Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018)
pp. 83-85.

[89]      Section 15(4)(f),(5) and (6) of the 2018 Bill.

[90]      The redress scheme rules contain provisions relating to circumstances in which institutions (section 11) and government authorities (section 12) will not be held responsible for abuse, including where an institution has already been ordered by a court to pay damages or compensation. While these sections of rules do not raise specific human rights concerns, the broad power in the 2018 Bill to enact rules to prescribe when institutions are or are not responsible for abuse remains a concern for the reasons discussed above.

[91]      Sections 39 and 40 of the 2017 Bill.

[92]      Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018)
pp. 85-88.

[93]      Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 88.

[94]      Section 42(2)(c) of the 2018 Bill; see also sections 39, 42 and 43 of the 2018 Bill; see also SOC 122-123. The SOC explains (at 123) the rationale for expanding the release to 'associates' as follows: ' organisations comprising multiple institutions are likely to opt-in to the Scheme as one, forming a ‘participating group’ (institutions are then known as ‘associates’ of one another). In order to form a participating group, institutions must be sufficiently connected and appoint a representative for the group. That representative will then be jointly and severally liable with each associate for funding contributions. Attaching the release to all associates of responsible participating institution(s) for sexual abuse and related non-sexual abuse within the scope of the Scheme is therefore reflective of their joint financial liability, and is a necessary component of ensuring that institutions will opt-in to the Scheme together, therefore ensuring maximum coverage for survivors'.

[95]      Section 43 of the 2018 Bill.

[96]      The redress scheme rules do not address the provision of legal services. The committee will therefore consider the compatibility of the proposed rules governing the provision of legal services, and whether they offer adequate safeguards, when they are received. The committee also notes that it is preferable for details of proposed rules to be available for consideration in conjunction with the related bill prior to its passage.

[97]      Part 4-3 of the 2017 Bill.

[98]      Schedule 3 of the 2017 Consequential Amendments Bill.

[99]      Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) pp. 93-96.

[100]    Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 96.

[101]    Part 4-1 of the 2018 Bill.

[102]    Schedule 3 to the National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018.

[103]    SOC, p. 127.

[104]    See section 77 of the 2017 Bill.

[105]    National Redress Scheme Operator is defined in section 6 to mean the person who is the Secretary of the Department in the person's capacity as operator of the scheme. 'Department' is not defined in the bill and pursuant to section 19A of the Acts Interpretation Act 1901 means the department that is administered by the minister or ministers administering that provision in relation to the relevant matter, and that deals with that matter.

[106]    'Protected Information' is defined in section 92(2) of the 2018 Bill as '(a) information about a person or an institution that: (i) was provided to, or obtained by, an officer of the  scheme for the purposes of the scheme; and (ii) is or was held in the records of the Department or the Human Services Department; or (b) information to the effect that there is no information about a person or an institution held in the records of a Department referred to in subparagraph (a)(ii)'.

[107]    Section 95 of the 2018 Bill.

[108]    For the relevant principles relating to the right to privacy, see Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 89.

[109]    SOC, p. 125.

[110]    See the discussion of the human rights implications of expressing legal discretion of the executive in overly broad terms in Hasan and Chaush v Bulgaria, European Court of Human Rights application no 30985/96 (26 October 2000) [84].

[111]    Redress scheme rules, section 44.

[112]    Redress scheme rules, section 45.

[113]    Redress scheme rules, section 46.

[114]    Redress scheme rules, section 47.

[115]    Redress scheme rules, section 48.

[116]    Redress scheme rules, section 49.

[117]    Redress scheme rules, section 50.

[118]    Redress scheme rules, section 51.

[119]    Redress scheme rules, section 52.

[120]    Redress scheme rules, section 53.

[121]    Redress scheme rules, section 54.

[122]    See sections 99-101 of the 2018 Bill.

[123]    See sections 99-101 of the 2018 Bill.

[124]    The minister foreshadowed in his response to the 2017 Bill that the 2018 Bill would limit the eligibility of persons with certain criminal convictions to obtain redress: see Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) pp. 80-83. The committee noted that there are human rights concerns in relation to the proposed exclusion of persons with certain criminal convictions from being eligible for the scheme: 83.

[125]    'Specified advisor' is defined in section 64(3)(b) as the following: (i) if the abuse of the persons occurred inside a participating state or a participating territory – the Attorney-General of the state or territory, or another person nominated by that Attorney-General in writing; (ii) if the abuse of the person occurred outside a participating state or participating territory – the Commonwealth Attorney-General; (iii) if the offence was against a law of a participating state or participating territory – the Attorney-General of the state or territory, or another person nominated by that Attorney-General in writing; (iv) if the offence was against a law covered by subparagraph (iii) – the Commonwealth Attorney-General.

[126]    The written notice must also include sufficient information to enable the specified advisor to provide that advice. The period in which the specified advisor may provide the advice must be at least 28 days starting on the date of the notice: see section 63(4) of the 2018 Bill.

[127]    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'.

[128]    Committee on the Elimination of Racial Discrimination, General Recommendation 14 (1993); see also Althammer v Austria, HRC 998/01 (2003) para 10.2.

[129]    SOC, p. 118.

[130]    SOC, p. 118.

[131]    See Thlimmenos v Greece, European Court of Human Rights Application No. 34369/97 (6 April 2000).

[132]    See also the Australian Human Rights Commission Act 1986 (Cth) which considers preventing 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).

[133]    SOC, pp. 118-119.

[134]    Section 3 of the 2018 Bill.

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

[136]    Sections 63(2) and 63(5) of the 2018 Bill.

[137]    Section 63(5) of the 2018 Bill.

[138]    Section 63(6) and 63(7) of the 2018 Bill.

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

[140]    The review provisions of the 2018 Bill appear to apply to determinations made under section 29: see section 73.

[141]    See Hirst v the United Kingdom (No. 2), European Court of Human Rights App No. 74025/01, (Grand Chamber, 6 October 2005) [69]-[71]; Dickson v United Kingdom, European Court of Human Rights App No. 44362/04 (Grand Chamber, 4 December 2007) [68] and [72].

[142]    Section 63(5) of the 2018 Bill; Section 63(6) and 63(7) of the 2018 Bill.

[143]    Article 24 of the International Covenant on Civil and Political Rights: see SOC, p. 122.

[144]    Articles 19 and 34 of the Convention on the Rights of the Child: see SOC, p. 117.

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

[146]    'In gaol' in the 2018 Bill is defined by reference to section 23(5) of the Social Security Act 1991 which provides that a person is in gaol if (a) the person is being lawfully detained (in prison or elsewhere) while under sentence for conviction of an offence and not on release on parole or licence; or (b) the person is undergoing a period of custody pending trial or sentencing for an offence.

[147]    This includes the Attorney-General of the state or territory in which the person is in gaol, and if the person claims to have suffered abuse in another state or territory, the Attorney-General of that state or territory: see section 14(3) of the redress scheme rules.

[148]    Section 14(5) of the redress scheme rules.

[149]    Section 14(6) of the redress scheme rules.

[150]    Section 14(2) of the redress scheme rules.

[151]    Hirst v the United Kingdom (No. 2), European Court of Human Rights App No. 74025/01, (Grand Chamber, 6 October 2005); Basic Principles for the Treatment of Prisoners, General Assembly Resolution 45/111 (14 December 1990) Principle 5.

[152]    UN Committee on Economic, Social and Cultural Rights, General Comment No.20: Non-discrimination in economic, social and cultural rights (2009) [27].

[153]    SOC, p. 119.

[154]    SOC, pp. 119-120.

[155]    SOC, p. 119.

[156]    Section 20(2) and (3) of the 2018 Bill.  At the time of the initial analysis, the redress scheme rules were not yet available.

[157]    Section 66 allows the foreign minister to give the home affairs minister a written notice if the foreign minister has refused to issue a travel document or cancelled a travel document of a person following a request from a competent authority on the basis the competent authority suspects on reasonable grounds that if an Australian travel document were issued to a person, the person would be likely to engage in conduct that might prejudice the security of Australia or a foreign country: see also sections 14(1)(a)(i), 14(2) and 22 of the Australian Passports Act 2005.

[158]    'Security' is defined in section 4 of the Australian Security Intelligence Organisation Act 1979 to mean: (a)  the protection of, and of the people of, the Commonwealth and the several States and Territories from: (i)  espionage; (ii)  sabotage; (iii)  politically motivated violence;   (iv)  promotion of communal violence;  (v)  attacks on Australia’s defence system; or (vi)  acts of foreign interference;  whether directed from, or committed within, Australia or not; and (aa)  the protection of Australia’s territorial and border integrity from serious threats; and (b)  the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).

[159]    Section 65(2) of the 2018 Bill.

[160]    Section 69 of the 2018 Bill.

[161]    Section 70 of the 2018 Bill.

[162]    SOC, pp. 121-122.

[163]    Explanatory memorandum, p. 55.

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

[165]    SOC p. 126; See Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) [2.179]-[2.189].

[166]    Section 64 of the 2018 Bill.

[167]    In relation to the minister's reference to consistency between the redress scheme and existing arrangements under social security laws, the committee has previously raised questions as to the compatibility of measures which cancel social security payments of persons as part of the counter-terrorism legislative framework with multiple human rights: See, relevantly, the committee's analysis of the Counter-Terrorism Legislation (Foreign Fighters) Bill 2014 in Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (October 2014) 56-62; Thirtieth Report of the 44th Parliament (10 November 2015) pp. 98-101.

[168]    While this may be a safeguard in some circumstances, it is noted that a person may be unable to pursue a civil claim due to, for example, statute of limitation periods expiring. Therefore, whether this is a sufficient safeguard will depend on how the measure operates in practice.

[169]    Section 21 of the 2018 Bill. Section 20(1)(c) provides that a person who is a child who will not turn 18 before the scheme sunset day cannot make an application for redress. The effect of this is that children under eight when the scheme commences will not be able to receive redress under the scheme. Section 20(1)(c) engages the right to equality and non-discrimination and the right to an effective remedy. However, the SOC explains at 120-121 that only around 50 of more than 8,000 survivors that attended private sessions were under the age of 8 years. The SOC explains that, as found by the Royal Commission, while it was possible that some individuals would wish to seek redress while they are still a minor, it is not expected that many minors will apply as it would almost always be within the time limitations to commence proceedings through civil litigation, and an individual would be more than likely to receive larger payment either through settlement or civil litigation than they might during the scheme. The SOC also explains alternative avenues that were considered, such as requiring minors to have a nominee arrangement or paying amounts into a trust account, and explains why this approach was not considered to be appropriate. Based on the information provided (particularly the availability of civil litigation for survivors under the age of 8 and the explanation of less rights restrictive approaches that were considered), this aspect of the measure appears to be compatible with the right to an effective remedy and appears to constitute a permissible limitation on the right to equality and non-discrimination.

[170]    Schedule 5 to the 2018 Consequential Amendments Bill.

[171]    Love v Australia (983/01), UN Human Rights Committee (2003) [8.2].

[172]    Article 2(1), CRC.

[173]    Articles 19 and 34 read with Article 2(1) of the CRC. See Committee on the Rights of the Child, General Comment No.13: The right of the child to freedom from all forms of violence (2011) [60].

[174]    SOC, p. 120.

[175]    SOC, pp. 120-121.

[176]    This includes information as to the extent to which the rules will be subject to parliamentary oversight, noting section 44(1)(a) of the Legislation Act 2003.

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'.