Footnotes

Executive Summary

[1]        Social Security (Administration) (Recognised State/Territory Authority – NT Alcohol Mandatory Treatment Tribunal) Determination 2013, pp 172-173 of this report, and Stronger Futures in the Northern Territory Regulation 2013, pp 174-175 of this report.

Bills requiring further information to determine human rights compatibility

[1]        http://www.environment.gov.au/carbon-tax-repeal/consultation.html. The consultation also included another bill, the Climate Change Authority (Abolition) Bill 2013, discussed below.

[2]        The exposure draft bills were made available at www.environment.gov.au/carbon-tax-repeal.

[3]        These are Clean Energy Act 2011, Clean Energy (Charges—Customs) Act 2011, Clean Energy (Charges—Excise) Act 2011, Clean Energy (Unit Issue Charge—Auctions) Act 2011, Clean Energy (Unit Issue Charge—Fixed Charge) Act 2011; and Clean Energy (Unit Shortfall Charge—General) Act 2011.

[4]        Senate Environment and Communications Legislation Committee, Clean Energy Legislation (Carbon Tax Repeal) Bill 2013 [Provisions] and related bills, 2 December 2013.

[5]        Explanatory memorandum, pp 13-18.

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

[7]        Australian Constitution, s 51(xxxi).

[8]        Articles 14 and 15 of the International Covenant on Civil and Political Rights.

[9]        Article 6 of the International Covenant on Economic, Social and Cultural Rights.

[10]      Article 11 of the International Covenant on Economic, Social and Cultural Rights.

[11]      Statement of compatibility, p 18.

[12]      Clean Energy (Charges—Customs) Act 2011, Clean Energy (Charges—Excise) Act 2011, Clean Energy (Unit Issue Charge—Auctions) Act 2011, Clean Energy (Unit Issue Charge—Fixed Charge) Act 2011; and Clean Energy (Unit Shortfall Charge—General) Act 2011.

[13]      Explanatory memorandum, pp 13-18.

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

[15]      Australian Constitution, s 51(xxxi).

[16]      Articles 14 and 15 of the ICCPR.

[17]      Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[18]      Article 11 of the ICESCR.

[20]      UN Human Rights Committee, General comment No. 34 (Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, paras 21-49 (2011).

[21]      Statement of compatibility, p 16.

[22]      Statement of compatibility, p 16.

[23]      The position under the ICCPR appears to be different from that under the European Convention on Human Rights, as that has been interpreted by the English courts. See Han v Customs & Excise Commissioner [2001] 1 WLR 2253.

[24]      UN Human Rights Committee, General Comment No 32, para 30.

[25]      See the judgment of the Hong Kong Court of Final Appeal in Koon Wing Yee v Insider Dealing Tribunal [2008] HKCFA 21, (2008) 11 HKCFAR 170 (per Sir Anthony Mason NPJ, the former Chief Justice of the High Court of Australia, with whose judgment all the other members of the Court of Final Appeal agreed).

[26]      Though see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, (1992) 110 ALR 449 (‘authoritative statements ... to the effect that clear ... or strict ... proof is necessary ‘where so serious a matter as fraud is to be found’.... ... should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct ... and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.’) (citations omitted).

[27]      Koon Wing Yee v Insider Dealing Tribunal [2008] HKCFA 21, para 104-106 (rejecting the argument that an enhanced civil standard satisfies the requirements of article 14(2) of the ICCPR).  See also the alternate view of the UK House of Lords in the case of Clingham v Royal Borough of Kensington and Chelsea; R v McCann [2002] UKHL 39 (in which the court held that the equivalent right in article 6(2) of the European Convention on Human Rights could be satisfied by an enhanced civil standard, which 'will for all practical purposes be indistinguishable from the criminal standard' (para 83)).

[28]      Schedule 1, Part 3, Division 3, item 26.

[29]      Statement of compatibility, p 17.

[31]      Explanatory memorandum, p 8.

[32]      Explanatory memorandum, p 9.

Customs Amendment (Anti-Dumping Commission Transfer) Bill 2013

[33]      Statement of compatibility, p 4.

[34]      Proposed new section 269SMT.

[35]      Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

Environment Legislation Amendment Bill 2013

[36]      Under the EPBC Act, the Minister was required to have regard to the conservation advice in making his decision. In this instance, the Minister was not briefed about the conservation advice before making his decision. The Federal Court considered that the decision was void for jurisdictional error because the EPBC Act expressly required the Minister to consider the conservation advice.

[37]      Schedule 1 of the bill.

[38]      Explanatory memorandum, p 2.

[39]      Explanatory memorandum, p 2.

[40]      Statement of compatibility, p 4.

[41]      Statement of compatibility, p 4.

[42]      Item 53 of the bill (amending section 38GB of the GBRMP Act).

Fair Work (Registered Organisations) Amendment Bill 2013

[43]      The bill makes amendments to the Fair Work (Registered Organisations) Act 2009 and the Fair Work Act 2009.

[44]      Explanatory memorandum, p 1.

[45]      Explanatory memorandum, p 2.

[46]      Article 22 of the International Covenant on Civil and Political Rights (ICCPR) and article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[47]      Article 14 of the ICCPR.

[48]      Article 17 of the ICCPR.

[49]      Statement of compatibility, p 3.

[50]      Parliamentary Joint Committee on Human Rights, First Report of 2013, p 77.

[51]      Under section 604(1) of the Fair Work Act 2009.

[52]      Proposed new section 293B, inserted by item 166, Schedule 2.

[53]      Proposed new section 293C, inserted by item 166, Schedule 2.

[54]      Senate Education and Employment Legislation Committee, Fair Work (Registered Organisations) Amendment Bill 2013 [Provisions], 2 December 2013, para 2.16.

[55]      Senate Education and Employment Legislation Committee, Fair Work (Registered Organisations) Amendment Bill 2013 [Provisions], 2 December 2013, paras 2.17-2.19.

[56]      Proposed new section 329AC, inserted by item 88, Schedule 1.

[57]      Proposed new section 329AB, inserted by item 88, Schedule 1.

[58]      Statement of compatibility, p 13.

[59]      Proposed new section 6, inserted by item 4, Schedule 2.

[60]      Proposed new section 337AC, inserted by item 230, Schedule 2.

[61]      Proposed new section 337AD(1), inserted by item 230, Schedule 2.

[62]      This penalty will apply to breaches of obligations to lodge certain documents with the Fair Work Commission and other administrative tasks such as removing non-financial members from the organisations register.

[63]      This penalty will apply to breaches of officer’s civil financial management duties under sections 285 – 288, the new obligations introduced by the bill to disclose officer’s material personal interests and remuneration, payments made by an organisation or branch, general duties in relation to orders and directions of the Fair Work Commission and Federal Court and restrictions on officers voting on certain matters.

[64]      Clean Energy Legislation (Carbon Tax Repeal) Bill 2013, Statement of compatibility, p 16.

Higher Education Support Amendment (Savings and Other Measures) Bill 2013

[65]      Parliamentary Joint Committee on Human Rights, Social Security Legislation Amendment (Fair Incentives to Work) Act 2012, Final Report, Fifth Report of 2013, pp 16-17.

Infrastructure Australia Amendment Bill 2013

[66]      New section 38 proposed in item 37 of the bill will replace current section 38 of the Infrastructure Australia Act 2008.

[67]      New section 38.

[68]      Current section 38.

[69]      New section 18(1) proposed in item 15 of the bill.

[70]      UN Human Rights Committee, General Comment No. 18: The Right to Work, 24 November 2005, paras 4 and 6.

Minerals Resource Rent Tax Repeal and Other Measures Bill 2013

[71]      Minerals Resource Rent Tax Act 2012; Minerals Resource Rent Tax (Imposition—Customs) Act 2012; Minerals Resource Rent Tax (Imposition—Excise) Act 2012; and Minerals Resource Rent Tax (Imposition—General) Act 2012.

[72]      Including the Income Tax Assessment Act 1997 and the Taxation Administration Act 1953.

[73]      Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[74]      Article 9 of the ICESCR.

[75]      See, for example, Parliamentary Joint Committee on Human Rights, Sixth Report of 2013, pp 78-80.

[76]      See Parliamentary Joint Committee on Human Rights, Practice Note 1.

[77]      Prepared under Part VII of the Veteran’s Entitlement Act 1986.

[78]      Determined under the Military Rehabilitation and Compensation Act 2004.

[79]      Statement of compatibility, p 84.

[80]      Statement of compatibility, para 4.66.

[81]      See, for example, Parliamentary Joint Committee on Human Rights, Fifth Report of 2013; and Senate Education, Employment and Workplace Relations References Committee, Report of the inquiry into the adequacy of the allowance payment system, 29 November 2012.

[82]      Social Security and Other Legislation Amendment (Income Support Bonus) Bill 2012, Statement of compatibility, p 15.

[83]      Parliamentary Joint Committee on Human Rights, Fifth Report of 2013, para 1.115.

[84]      By amendments made to the A New Tax System (Family Assistance) Act 1999; A New Tax System (Family Assistance) (Administration) Act 1999; Income Tax Administration Act 1997; and Social Security (Administration) Act 1999.

[85]      Statement of compatibility, p 88.

National Integrity Commission Bill 2013

[86]      Explanatory memorandum, p 2 (note on clause 3).

[87]      House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory Report -  National Integrity Commissioner Bill 2012, September 2012, para 1.8. The committee noted that the same concerns had been raised by the Senate Scrutiny of Bills Committee in relation to the 2010 bill.

[88]      Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

[89]      Article 14 of the ICCPR.

[90]      Statement of compatibility, para 2.9.

[91]      Statement of compatibility, para 2.2.

[92]      Statement of compatibility, para 2.3.

[93]      Clause 31.

[94]      Clause 43(1).

[95]      Clause 43(4).

[96]      Clause 45.

[97]      Clause 49.

[98]      Use immunity is not available for proceedings for an offence against clause 45 (refusal to provide the information, document or thing), confiscation proceedings, proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (which deals with false or misleading information or documents) that relates to this bill, proceedings for an offence against section 149.1 of the 1 Criminal Code (which deals with obstruction of Commonwealth public officials) that relates to this Act; or disciplinary proceedings against the person if the person is an employee of a Commonwealth agency.

[99]      Clause 49(4).

[100]    Clause 62(2).

[101]    Clause 62(3).

[102]    Clause 67(1).

[103]    Similar to proceedings in the context of clause 49(4) (clause 67(4).

[104]    Statement of compatibility, para 2.5.

Reserve Bank Amendment (Australian Reconstruction and Development Board) Bill 2013

[105]    Proposed new section 25NA.

[106]    Proposed new section 25NB.

[107]    Proposed new section 25NL(1)(a).

[108]    Proposed new sections 25NL(2) and 25NL(3).

[109]    UN Human Rights Committee, General Comment No. 18: The Right to Work, 24 November 2005, paras 4 and 6.

Social Services and Other Legislation Amendment Bill 2013

[110]    National Gambling Reform Bill 2012 and two related bills, explanatory memorandum, p 1.

[111]    Productivity Commission, Gambling, Inquiry Report, No 50, 26 February 2010.

[112]    Productivity Commission, Gambling, Inquiry Report, No 50, 26 February 2010, chapter 4.

[113]    Pursuant to sections 123UF(1)(g) and 123UF(2)(h).

[114]    Explanatory memorandum, p 5.

[115]    Statement of compatibility, p 3.

[116]    Explanatory memorandum, p 5.

[117]    Statement of compatibility, p 3.

[118]    Parliamentary Joint Committee on Human Rights, Eleventh Report of 2013: Stronger Futures in the Northern Territory Act 2012 and related legislation.

[119]    Parliamentary Joint Committee on Human Rights, Eleventh Report of 2013: Stronger Futures in the Northern Territory Act 2012 and related legislation, pp 21-31.

[120]    Parliamentary Joint Committee on Human Rights, Eleventh Report of 2013: Stronger Futures in the Northern Territory Act 2012 and related legislation, p 27.

[121]    Parliamentary Joint Committee on Human Rights, Eleventh Report of 2013: Stronger Futures in the Northern Territory Act 2012 and related legislation, p 76.

[122]    Statement of compatibility, p 4.

[123]    Parliamentary Joint Committee on Human Rights, Practice Note 1.

[124]    Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[125]    Statement of compatibility, p. 6. It is not clear how the provisions of the Employment Promotion and Protection against Unemployment Convention, 1988 (ILO No. 168) apply to the payment of the age pensions.

[126]    Statement of compatibility, p. 6.

[127]    Statement of compatibility, p. 6.

[128]    See Parliamentary Joint Committee on Human Rights, Practice Note 1.

[129]    Statement of compatibility, p 9.

[130]    Statement of compatibility, p 10.

[131]    Statement of compatibility, p 9.

[132]    Statement of compatibility, p 11.

[133]    See Parliamentary Joint Committee on Human Rights, Practice Note 1.

[134]    Article 10(2) of the ICESCR.

[135]    Statement of compatibility, p 15.

[136]    Statement of compatibility, p 17.

[137]    Article 9 of the ICESCR and article 26 of the Convention on the Rights of the Child (CRC).

[138]    Statement of compatibility, p 20.

[139]    Statement of compatibility, p 20.

[140]    Statement of compatibility, p 22.

[141]    Statement of compatibility, p 22.

[142]    Statement of compatibility, p 21.

[143]    A New Tax System (Family Assistance) Act 1999; A New Tax System (Family Assistance) (Administration) Act 1999; and the Paid Parental Leave Act 2010.

[144]    Statement of compatibility, p 23.

[145]    Statement of compatibility, p 24.

[146]    Statement of compatibility, p 19.

[147]    Parliamentary Joint Committee on Human Rights, Practice Note 1.

[148]    Statement of compatibility, p 26.

[149]    Statement of compatibility, p 26.

[150]    Amending A New Tax System (Family Assistance) (Administration) Act 1999.

[151]    Amending A New Tax System (Family Assistance) (Administration) Act 1999.

[152]    Amending the Child Support (Assessment) Act 1989 and Child Support (Registration and Collection) Act 1988.

[153]    A New Tax System (Family Assistance) Act 1999 and A New Tax System (Family Assistance) (Administration) Act 1999.

[154]    Statement of compatibility, p 28.

[155]    Parliamentary Joint Committee on Human Rights, Practice Note 1.

Bills unlikely to raise human rights concerns - Australian Capital Territory Water Management Legislation Amendment Bill 2013[156]

[156]    A similar bill was introduced and lapsed during the 43^rd Parliament. That bill was examined by our predecessor committee: see Parliamentary Joint Committee on Human Rights, Eighth Report of 2013, p 69.

[157]    Statement of compatibility, p 3.

[158]    The right to water is encompassed by the right to an adequate standard of living and the right to health in articles 11(1) and 12 respectively of the International Covenant on Economic, Social and Cultural Rights.

[159]    Explanatory memorandum, p 2.

[160]    Statement of compatibility, pp 3-4.

[161]    Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[162]    Article 15(3) of the ICESCR.

[163]    Article 25 of the International Covenant on Civil and Political Rights (ICCPR).

[164]    Statement of compatibility, p 9.

[165]    Explanatory memorandum, p 2.

[166]    Explanatory memorandum, p 2.

[167]    Explanatory memorandum, p 2.

[168]    Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[169]    Article 13 of the ICESCR.

[170]    Explanatory memorandum, p 1.

[171]    Explanatory memorandum, p 1.

[172]    Statement of compatibility, p 1.

[173]    Explanatory memorandum, p 2.

[174]    A similar bill was introduced and lapsed during the 43^rd Parliament. That bill was examined by our predecessor committee: see Parliamentary Joint Committee on Human Rights, Tenth Report of 2013, p 1.

[175]    A similar bill was introduced and lapsed during the 43^rd Parliament. That bill was examined by our predecessor committee: see Parliamentary Joint Committee on Human Rights, Tenth Report of 2013, p 1.

[176]    A similar bill was introduced and lapsed during the 43^rd Parliament. That bill was examined by our predecessor committee: see Parliamentary Joint Committee on Human Rights, Tenth Report of 2013, p 1.

[177]    Explanatory memorandum, p 3.

[178]    A similar bill was introduced and lapsed during the 43^rd Parliament. That bill was examined by our predecessor committee: see Parliamentary Joint Committee on Human Rights, Sixth Report of 2013, pp 84-85.

[179]    UNCLOS is the international agreement that establishes the rights and duties of nations in relation to the seas and oceans. Australia ratified UNCLOS on 5 October 1994.

[180]    Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR).

[181]    Article 14(2) of the ICCPR.

[182]    Article 17 of the ICCPR.

[183]    Article 26 of the ICCPR.

The committee has sought further information in relation to the following instruments

[1]        Article 15(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[2]        Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

[3]        Article 14(1) of the ICCPR.

[4]        Article 14(3) of the ICCPR.

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

[6]        See, Parliamentary Joint Committee on Human Rights, Second Report of 2013; and Third Report of 2013, pp 113-114.

[7]        See, Parliamentary Joint Committee on Human Rights, Second Report of 2013; and Third Report of 2013, pp 113-114.

[8]        Parliamentary Joint Committee on Human Rights, Second Report of 2013, paras 1.16-1.22 (referring to proposed new section 13D).

[9]        Other than proceedings for an offence against section 137.1 (false or misleading information) or section 137.2 (false or misleading documents) of the Criminal Code that relates to the Act.

[10]      Proposed new section 13D(3); Parliamentary Joint Committee on Human Rights, Third Report of 2013, p 117 (response by the former Minister to the committee’s comments).

[11]      Section 13D(1A)–(3).

[12]      Other than proceedings for an offence against section 137.1 (false or misleading information) or section 137.2 (false or misleading documents) of the Criminal Code that relates to the Act.

[13]      Article 14(1) of the ICCPR.

[14]      Article 6 of the ICESCR.

[15]      Parliamentary Joint Committee on Human Rights, Third Report of 2013, p 117.

Corporations and Related Legislation Amendment Regulation 2013 (No. 1)

[16]      Items 11 and 12.

International Organisations (Privileges and Immunities) (International Committee of the Red Cross) Regulation 2013

[17]      Statement of compatibility, p 1.

[18]      Statement of compatibility, p 1.

[19]      See, Parliamentary Joint Committee on Human Rights, Fourth Report of 2013, pp 42-47; and Sixth Report of 2013, pp 228-232.

[20]      Parliamentary Joint Committee on Human Rights, Fourth Report of 2013, p 43.

[21]      Parliamentary Joint Committee on Human Rights, Fourth Report of 2013, p 43.

[22]      See, Parliamentary Joint Committee on Human Rights, Fourth Report of 2013, pp 42-47; and Sixth Report of 2013, pp 228-232.

Migration Act 1958 - Determination under subsection 262(2) - Daily Maintenance Amounts for Persons in Detention - October 2013

[24]      Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 requires statements of compatibility only for legislative instruments within the meaning of section 42 of the Legislative Instruments Act 2003. The committee's scrutiny mandate, however, is not limited to the section 42 definition and extends to all legislative instruments: see section 7(a) of the Human Rights (Parliamentary Scrutiny) Act 2011.

[25]      Article 10 of the International Covenant on Civil and Political Rights (ICCPR).

[26]      Article 26 of the ICCPR and other relevant treaties.

Migration Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013

[27]      Article 9 of the International Covenant on Civil and Political Rights (ICCPR).

[28]      Article 3(1) of the Convention against Torture (CAT) and articles 6 and 7 of the ICCPR.

[29]      Article 37(b) of the Convention on the Rights of the Child (CRC).

[30]      Article 17(1) and article 23(1) of the ICCPR and article 16(1) of the CRC.

[31]      Statement of compatibility, p 6.

[32]      See, for example, van Alphen v. Netherlands, Communication No. 305/1988, CCPR/C/39/D/305/1988, (23 July 1990), para 5.8; Gorji-Dinka v. Cameroon, Communication No. 1134/2002, CCPR/C/83/D/1134/2002, (17 March 2005), para 5.1; F.K.A.G. et al. v Australia, Communication No. 2094/2011, CCPR/C/108/D/2094/2011 (20 August 2013), paras 9.3, 9.6-9.7; and M.M.M. et al. v Australia, Communication No. 2136/2012, CCPR/C/108/D/2136/2012 (20 August 2013), paras 10.3-10.4, 10.6.

[33]      Article 37(b) of the CRC.

[34]      Article 3(1) of the CRC.

[35]      Item 1, new section 2.43(1)(p).

[36]      UN Human Rights Committee, General Comment No. 27: Freedom of movement, (1999), para 13.

[37]      Statement of compatibility, p 4.

Migration Amendment (Temporary Protection Visas) Regulation 2013

[38]      As a result of the disallowance, the government is barred from re-introducing a substantially same instrument for six months.

[39]      Statement of compatibility, p 1.

[40]      Statement of compatibility, p 1.

[41]      Article 17 and 23 of the International Covenant on Civil and Political Rights (ICCPR)

[42]      Convention on the Rights of the Child (CRC).

[43]      Article 12 of the ICCPR.

[44]      Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 24 of the CRC.

[45]      Article 9 of the ICESCR.

[46]      Article 11 of the ICESCR.

[47]      Article 13 of the ICESCR.

[48]      Article 6 of the ICESCR.

[49]      Articles 2(1) and 26 of the ICCPR and article 2(2) of the ICESCR.

[50]      See Parliamentary Joint Committee on Human Rights, Practice Note 1.

[51]      Statement of compatibility, p 1.

[52]      Australia acceded to the 1951 Convention Relating to the Status of Refugees on 17 January 1954, and acceded to its 1967 Protocol on 13 December 1973.

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

[54]      Parliamentary Joint Committee on Human Rights, Ninth Report of 2013, pp 27-28.

[55]      Available at: http://www.unhcr.org/3f1408764.html.

[56]      UN Committee on the Rights of the Child, General Comment No. 5 (2003): General Measures of Implementation of the Convention on the Rights of the Child, (2003), para 12; General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1).

[57]      Article 10 of the CRC.

[58]      Article 20 of the CRC.

[59]      Article 22 of the CRC.

[60]      Statement of compatibility, p 2.

[61]      Statement of compatibility, p 2.

[62]      Statement of compatibility, p 2.

[63]      Statement of compatibility, p 2.

[64]      Statement of compatibility, p 2.

[65]      Statement of compatibility, p 2.

[66]      UN Human Rights Committee, General Comment No. 15: The position of aliens under the Covenant, (1986), para 5.

[67]      Statement of compatibility, p 2.

[68]      Statement of compatibility, p 3.

[69]      Statement of compatibility, p 3.

[70]      Statement of compatibility, p 3.

[71]      See also Parliamentary Joint Committee on Human Rights, Third Report of 2013, p 39.

[72]      See also Parliamentary Joint Committee on Human Rights, Third Report of 2013, p 39.

[73]      UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The right to social security, (2008), para 22.

[74]      Statement of compatibility, p 1.

[75]      See, Parliamentary Joint Committee on Human Rights, Ninth Report of 2013 and Fifth Report of 2013: Final Report on the Social Security Legislation Amendment (Fair Incentives to Work) Act 2012.

[76]      See the Coalition’s election policy, available at: http://www.nationals.org.au/Portals/0/2013/policy/ClearLabor30000BorderFailureBacklog.pdf, (accessed on 1 December 2013).

[77]      Statement of compatibility, p 1.

[78]      Department of Immigration and Border Protection, Temporary Protection Visas: Information for people who arrive illegally by boat or plane intending to seek Australia's protection, available at: http://www.immi.gov.au/ima/en/arrived/temporary-protection-visas/, (accessed on 1 December 2013).

[79]      Parliamentary Joint Committee on Human Rights, Third Report of 2013, p 40.

[80]      See, Harriet Spinks, A return to Temporary Protection Visas?, Flagpost, Information and Research from Australia’s Commonwealth Parliamentary Library, 18 November 2013.

Migration Amendment Regulation 2013 (No. 4)

[81]      Explanatory statement, attachment C, p 2.

[82]      Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

[83]      Article 12 of the ICCPR.

[84]      Article 22 of the ICCPR.

[85]      Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

[86]      Statement of compatibility, p 3.

[87]      Explanatory statement, attachment C, p 2.

[88]      Statement of compatibility, p 3.

Migration Regulations 1994 - Specification under subclauses 8551(2) and 8560(2) - Definition of Chemicals of Security Concern

[89]      Migration Regulations 1994, Schedule 8, subclauses 8551(2) and 8560(2).  

[90]      Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 requires statements of compatibility only for legislative instruments within the meaning of section 42 of the Legislative Instruments Act 2003.

[91]      See section 7(a) of the Human Rights (Parliamentary Scrutiny) Act 2011.

[92]      The UN Human Rights Committee has recognised that laws which distinguish between different categories of non-citizens engage article 26: See, for example, Karakurt v Austria, Communication No. 965/2000, (2002), para 8.4. See also, General Comment No. 15: The position of aliens under the Covenant, (1986).

[93]      Migration Regulations 1994, Schedule 8, subclauses 8551(1) and 8560(1). 

National Disability Insurance Scheme (Becoming a Participant) Rules 2013

[94]      Explanatory memorandum to the National Disability Insurance Scheme Bill 2012, p 75.

[95]      NDIS Act, s 22, 23, 25, 27 and 209.

[96]      Especially articles 3, 7, 22 and 23 of the CRPD.

[97]      Especially articles 2, 9, 18 and 23 of the CRC.

[98]      Article 10 of the ICESCR.

[99]      Article 2 of the ICCPR.

[100]    Statement of compatibility, p 16.

[101]    Statement of compatibility, p 15.

National Disability Insurance Scheme (Children) Rules 2013

[102]    Explanatory memorandum to the National Disability Insurance Scheme Bill 2012, p 75.

[103]    National Disability Insurance Scheme Act 2013, s 74 – 76.

[104]    Especially articles 3 and 7 of the CRPD.

[105]    Especially articles 3, 5, 9, 12, 18, 19 and 23 of the CRC.

[106]    Article 10 of the ICESCR.

[107]    Statement of compatibility, p 11.

[108]    Article 3 of the CRC and article 7 of the CRPD.

[109]    Article 7 of the CRPD.

[110]    Paragraph 3.5 of the Rules.

[111]    Paragraph 4.6 (b)(i) of the Rules.

[112]    Paragraph 5.3(b)(i) of the Rules.

[113]    NDIS Act 2013, s 76(1).

[114]    Paragraph 6.4 of the Rules.

National Disability Insurance Scheme (Nominees) Rules 2013

[115]    Explanatory memorandum to the National Disability Insurance Scheme Bill 2012, p 75.

[116]    NDIS Act 2013, s 80, 88 and 93.

[117]    Articles 3 and 12 of the CRPD.

[118]    Article 3 of the CRPD.

[119]    Article 12 of the CRPD.

[120]    Consistent with article 12(4) of the CRPD.

[121]    NDIS Act 2013, s 86(4), (5).

[122]    Statement of compatibility, p 10.

National Disability Insurance Scheme (Plan Management) Rules 2013

[123]    Explanatory memorandum to the National Disability Insurance Scheme Bill 2012, p 75.

[124]    NDIS Act, s 35, 40, 44, 45 and 46.

[125]    Statement of compatibility, p 11.

[126]    Article 1 of the ICCPR and the ICESCR.

[127]    Article 12 of the ICCPR.

[128]    Article 10 of the ICESCR.

[129]    Especially articles 3, 4, 7, 9, 12, 16, 18, 19, 20, 22, 23, 24 and 27 of the CRPD.

[130]    Especially articles 3, 5 and 19 of the CRC.

[131]    See UN Committee on the Rights of Persons with Disabilities, Draft General Comment on Article 12 – on Equal Recognition before the Law, September 2013.

[132]    Statement of compatibility, p 14.

National Disability Insurance Scheme (Protection and Disclosure of Information) Rules 2013

[133]    Explanatory memorandum to the National Disability Insurance Scheme Bill 2012, p 75.

[134]    NDIS Acr 2013, s 58(2) and s 67.

[135]    Articles 3 and 22 of the CRPD.

[136]    Article 14 and article 17 of the ICCPR.

[137]    National Disability Insurance Scheme Bill 2012, clause 60(3).

[138]    Article 7 of the CRC.

[139]    Article 14 of the ICCPR.

National Disability Insurance Scheme (Registered Providers of Supports) Rules 2013

[140]    Explanatory memorandum to the National Disability Insurance Scheme Bill 2012, p 75.

[141]    Explanatory Statement, p 1.

[142]    NDIS Act 2013, s 70-73.

[143]    Notably article 26 of the Convention on the Rights of Persons with Disabilities, which requires State parties to take effective and appropriate measures to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.

[144]    Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[145]    Article 9 of the ICESCR.

[146]    Article 11 of the ICESCR.

[147]    Articles 6 and 7 of the ICESCR.

[148]    Statement of compatibility, p 9.

National Disability Insurance Scheme (Supports for Participants – Accounting for Compensation) Rules 2013

[149]    Explanatory memorandum to the National Disability Insurance Scheme Bill 2012, p 75.

[150]    NDIS Act 2013, s 35.

[151]    Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

[152]    Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[153]    Convention on the Rights of Persons with Disabilities (CRPD).

[154]    Statement of compatibility, p 16.

[155]    Article 11 of the ICESCR and article 28(1) of the CRPD.

[156]    Article 9 of the ICESCR.

[157]    Article 28(1) of the CRPD.

National Disability Insurance Scheme (Supports for Participants) Rules 2013

[158]    Explanatory memorandum to the National Disability Insurance Scheme Bill 2012, p 75.

[159]    NDIS Act 2013, s 33 and 34.

[160]    NDIS Act 2013, s 34

[161]    Article 1 of the ICCPR and article 1 of the ICESCR.

[162]    Article 9 of the ICCPR.

[163]    Article 20 of the ICCPR.

[164]    Especially articles 4, 9, 16, 19, 20, 23, 24, 25 and 28 of the CRPD.

[165]    Especially articles 3, 5, 18, 19, 24 and 26 of the CRC.

[166]    NDIS Act 2013, ss 99(d).

[167]    Parliamentary Joint Committee on Human Rights, First Report of 2013, p 43.

Parliamentary Service Determination 2013

[168]    For our predecessor committee's views on these amendments, see, Parliamentary Joint Committee on Human Rights, see First Report of 2013, pp 62-67; Sixth Report of 2013, pp 294-299; and Tenth Report of 2013, Part 3, pp 89-90.

[169]    Article 19 of the International Covenant on Civil and Political Rights (ICCPR).

[170]    Article 17 of the ICCPR.

[171]    Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[172]    Article 26 of the ICCPR and article 2(2) of the ICESCR.

[173]    Article 27 of the ICCPR and article 15 of the ICESCR.

[174]    Article 25 of the ICCPR.

[175]    Clause 39.

[176]    Clause 39(4).

[177]    Clause 39(1)(i).

[178]    Parliamentary Service Act 1999, s 29.

[179]    See, Parliamentary Joint Committee on Human Rights, Sixth Report of 2013, pp 133-134.

[180]    See, Parliamentary Joint Committee on Human Rights, Tenth Report of 2013, Appendix 3, pp 183-184. See also, Australian Public Service Commissioner's Amendment Direction 2013
(No. 1), Statement of compatibility, p 6.

User Rights Amendment (Various Measures) Principle 2013

[181]      See http://www.health.gov.au/communitycharter.

[182]    Item 8, which inserts new section 23.21(e) into the User Rights Principles 1997.

[183]    Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 25 of the Convention on the Rights of Persons with Disabilities.

[184]    Article 11(1) of the ICESCR and article 28 of the CRPD.

[185]    Article 21 of the CRPD.

[186]    Statement of compatibility, p 11.

Water and Sewerage Fees and Charges (Christmas Island) Determination 2013

[187]    UN Committee on Economic, Social and Cultural Rights, General Comment No 15: The right to water, (2002), para 2.

The committee has deferred its consideration of the following legislative instruments

[188]    Refer to the committee's comments in the Sixth Report of 2013, tabled on 15 May 2013 for background on the operation of the Autonomous Sanctions Act 2011, and the Autonomous Sanctions Regulations 2011 (the Regulations).

[189]    http://foreignminister.gov.au/releases/2013/bc_mr_130110.html.

[190]    Statement of compatibility, p 1.

[191]    https://www.dfat.gov.au/un/unsc_sanctions/public_consultation.html.

[192]    Parliamentary Joint Committee on Human Rights, Tenth Report of 2013, p 14.

[193]    See Parliamentary Joint Committee on Human Rights, Tenth Report of 2013, pp 13 – 16.

[194]    Parliamentary Joint Committee on Human Rights, Tenth Report of 2013, p 58.

[195]    Parliamentary Joint Committee on Human Rights, Tenth Report of 2013, pp56-61.

[196]    The tribunal was established on 1 July 2013 as part of the Alcohol Mandatory Treatment Reform. It has authority to refer people, who have been taken into police custody three or more times in two months as a result of public intoxication, for mandatory treatment or other community management. This may include treatment in a secure residential treatment service or a community residential treatment service (where secure treatment is not warranted or available), or other community management including income management.

[197]    Article 1 of the ICESCR. See also article 1 of the ICCPR.

[198]    Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).  See also articles 2(1) and 26 of the International Covenant on Civil and Political Rights (ICCPR); article 2(2) of the ICESCR and article 2(1) of the Convention on the Rights of the Child (CRC).

[199]    Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[200]    Article 11(1) of the ICESCR.

[201]    Articles 26, 24 and 27 of the Convention on the Rights of the Child (CRC).

[202]    Article 1(4) of the CERD.

Appendix 1: Full list of Legislative Instruments received by the committee between 8 June and 22 November 2013

[1]        The committee has set out its expectations with regard to information that should be provided in statements of compatibility in its Practice Note 1, available at: www.aph.gov.au/joint_humanrights

[2]        FRLI is found online at www.comlaw.gov.au