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.

Chapter 1 - New and continuing matters[1]

[1]          This section can be cited as Parliamentary Joint Committee on Human Rights, New and continuing matters, Report 2 of 2020; [2020] AUPJCHR 29.

[2]          The committee examines all legislative instruments registered in the relevant period, as listed on the Federal Register of Legislation. To identify all of the legislative instruments scrutinised by the committee during this period, select 'legislative instruments' as the relevant type of legislation, select the event as 'assent/making', and input the relevant registration date range in the Federal Register of Legislation’s advanced search function, available at: https://www.legislation.gov.au/AdvancedSearch.

[3]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Aviation Transport Security Amendment (Security Controlled Airports) Regulations 2019 [F2019L01656], Report of 2020; [2020] AUPJCHR 30.

[4]          In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.

[5]          Section 3.01B.

[6]          Schedule 1, Item 3, section 3.01B.

[7]          Aviation Transport Security Act 2004, subsection 28(6).

[8]          Aviation Transport Security Regulations 2005, section 3.01C. The Secretary may consider: whether the airport is a designated airport; whether an international air services operates to or from the airport; whether aircraft operate regular public transport operations or open charter operations to or from the airport; whether the design of the existing terminal will prevent the airport operator from complying with particular screening requirements; and a number of other matters.

[9]          See Schedule 2, item 5, amendments to regulation 4.02.

[10]        Statement of compatibility, p. 5.

[11]        Statement of compatibility, p. 6. Subsection 44(3A) of the Aviation Transport Security Act 2004 provides that equipment which may be used for screening may include body scanning equipment, metal detection equipment, and explosive trace detection equipment.

[12]        International Covenant on Civil and Political Rights (ICCPR), article 17; Convention on the Rights of the Child, article 16; and Convention on the Rights of Persons with Disabilities, article 22. The UN Human Rights Committee has explained, for example, that personal and body searches must be accompanied by effective measures to ensure that such searches are carried out in a manner consistent with the dignity of the person who is being searched. See, UN Human Rights Committee, General Comment No.16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (1988), [8].

[13]        Legislation must specify in detail the precise circumstances in which interferences with privacy may be permitted. See, NK v Netherlands, UN Human Rights Committee Communication No.2326/2013 (2018) [9.5].

[14]        Aviation Transport Security Regulations 2005, section 4.03A.

[15]        Aviation Transport Security Regulations 2005, section 4.03A.

[16]        International Covenant on Civil and Political Rights, article 12.

[17]        Statement of compatibility, p. 6.

[18]        Statement of compatibility, p. 6.

[19]        See, for example, House Standing Committee on Infrastructure and Communications, Advisory Report on the Aviation Transport Security (Screening) Bill 2012, pp. 7-8.

[20]        Aviation Transport Security Act, subsection 44(3B).

[21]        See, for example, United States Government Accountability Office, Report to Congressional Requesters: Advanced Imaging Technology – TSA needs additional information before procuring next-generation systems (March 2014), p. 14, which discusses the increase in false positive body scan results where individuals had a high body mass index, or were wearing a wig or turban.

[22]        See, National LGBTI Health Alliance, Submission to the Senate Standing Committee on Rural and Regional Affairs and Transport inquiry into airport and aviation security (lapsed), pp. 2-3, which noted an example of a transgender person whose prosthetic was detected during a body scan, resulting in them being required to undergo further security screening, including removal of the prosthetic onto a tray.

[23]        See, for example, Colleen Deal, 'Faith or Flight: A Religious Dilemma', Journal of Air Law and Commerce, vol. 76, no. 3, 2011, pp. 525-558. See also, European Union Agency for Fundamental Rights, The use of body scanners: 10 questions and answers, July 2010, pp. 4-6.

[24]        Aviation Transport Security Act, subsection 44(3C).

[25]        For example, it is not clear that it would be an offence for a security screening officer to photograph the screen of a body scanning machine. Subsection 44(4) of the Aviation Transport Security Act 2004 provides that regulations made under section 44 may prescribe penalties for offences against those regulations. However, no such offences relating to the use of body scanners are evident in the Aviation Transport Security Regulations 2005.

[26]        Statement of compatibility, p. 6.

[27]        Aviation Transport Security Regulations 2005, section 4.03A.

[28]        This section can be cited as Parliamentary Joint Committee on Human Rights, Advice Only, Report 2 of 2020; [2020] AUPJCHR 31.

[29]        This section can be cited as Parliamentary Joint Committee on Human Rights, Bills and instruments with no committee comment, Report 2 of 2020; [2020] AUPJCHR 32.

[30]        Inclusion in the list is based on an assessment of the bill and relevant information provided in the statement of compatibility accompanying the bill. The committee may have determined not to comment on a bill notwithstanding that the statement of compatibility accompanying the bill may be inadequate.

[31]        The committee examines all legislative instruments registered in the relevant period, as listed on the Federal Register of Legislation. To identify all of the legislative instruments scrutinised by the committee during this period, select 'legislative instruments' as the relevant type of legislation, select the event as 'assent/making', and input the relevant registration date range in the Federal Register of Legislation’s advanced search function, available at: https://www.legislation.gov.au/AdvancedSearch.

[32]        See, most recently, Parliamentary Joint Committee on Human Rights, Report 2 of 2019 (2 April 2019) pp. 112-122; Report 6 of 2018 (26 June 2018) pp. 104-131.See also Report 4 of 2018 (8 May 2018) pp. 64-83; Report 3 of 2018 (26 March 2018) pp. 82-96; Report 9 of 2016 (22 November 2016) pp. 41-55; Thirty-third Report of the 44th Parliament (2 February 2016) pp. 17-25; Twenty-eighth Report of the 44th Parliament (17 September 2015) pp. 15-38; Tenth Report of 2013 (26 June 2013) pp. 13-19; Sixth Report of 2013 (15 May 2013) pp. 135-137.

Chapter 2 - Concluded matters

[1]          See https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[2]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Disability Discrimination Regulations 2019 [F2019L01186], Report 2 of 2020; [2020] AUPJCHR 33.

[3]          Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019)
pp. 24-38.

[4]          Disability Discrimination Act 1992, section 47(2).

[5]          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'.

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

[7]          UN Committee on the Rights of Persons with Disabilities, General Comment No. 6 (2018) on equality and non-discrimination [4] and [11].

[8]          Education Act 1972 (SA), sections 75(3) and 75A.

[9]          Convention on the Rights of Persons with Disabilities (CRPD), article 24.

[10]        CPRD, article 24(2)(a).

[11]        UN Committee on the Rights of Persons with Disabilities, General Comments No. 4, Article 24: Right to inclusive education (2016) [11] and [13].

[12]        Office of the High Commissioner on Human Rights, Thematic Study of the Rights of Persons with Disabilities to Education, A/HRC/25/29 (2013), para 3.

[13]        International Covenant on Economic, Social and Cultural Rights (ICESCR), article 2(2).

[14]        ICESCR, article 2(1); CRPD, article 4(2).

[15]        UN Committee on the Rights of Persons with Disabilities, General Comment No. 4, Article 24: Right to inclusive education (2016) [39].

[16]        See UN Human Rights Committee, General Comment 29: States of Emergency (Article 4) (2001) [14].

[17]        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 CRC and article 27 of the CRPD.

[18]        UN Committee on Economic, Social and Cultural Rights, General Comment No. 23: on the right to just and favourable conditions of work (2016).

[19]        UN Committee on the Rights of Persons with Disabilities, General Comment No. 6 (2018) on equality and non-discrimination [67].

[20]        Statement of compatibility, p. 5.

[21]        Statement of compatibility, p. 5.

[22]        See paragraph 45(1)(b) of the Disability Discrimination Act 1992.

[23]        UN Human Rights Committee, General Comment 18: Non-discrimination (1989) [13]; see also Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2].

[24]        UN Committee on the Rights of Persons with Disabilities, General Comment No. 4 (2016) on the right to inclusive education [13].

[25]        UN Committee on the Rights of Persons with Disabilities, General Comment No. 6 (2018) on equality and non-discrimination [29].

[26]        CRC, article 23(3) [emphasis added].

[27]        UN Committee on the Rights of Persons with Disabilities, General Comment No. 6 (2018) on equality and non-discrimination [37].

[28]        UN Committee on the Rights of Persons with Disabilities, General Comments No. 4, Article 24: Right to inclusive education (2016) [10(a)].

[29]        Office of the High Commissioner on Human Rights, Thematic Study of the Rights of Persons with Disabilities to Education, A/HRC/25/29 (2013), para 3.

[30]        International Covenant on Economic, Social and Cultural Rights (ICESCR), article 2(2).

[31]        ICESCR, article 2(1); CRPD, article 4(2).

[32]        UN Committee on the Rights of Persons with Disabilities, General Comment No. 4, Article 24: Right to inclusive education (2016) [39].