Footnotes
Executive Summary
[1]
Autonomous Sanctions (Designated Persons and Entities and Declared
Persons – Democratic People's Republic of Korea) Amendment List 2013, pp 148-149
of this report.
[2]
Aboriginal Land Rights (Northern Territory) Amendment (Delegation)
Regulation 2013, pp 145-147 of this report and Social Security (Administration)
(Recognised State/Territory Authority – Qld Family Responsibilities Commission)
Determination 2013, pp 150-151 of this report.
[3]
See for example the committee's comments on the Building and
Construction Industry (Improving Productivity) Bill 2013 and a related bill, pp
1-30 of this report; Migration Amendment (Regaining Control Over Australia's
Protection Obligations) Bill 2013, pp 45-62; Migration Amendment (Bridging
Visas-Code of Behaviour) Regulation 2013 and Code of Behaviour for Public
Interest Criterion 4022 - IMMI 13/155, pp107-119; and Migration Amendment
(Unauthorised Maritime Arrival) Regulation 2013, pp 127-134.
[4]
Defence Legislation Amendment (Woomera Prohibited Area) Bill 2013, pp 39-43.
Bills requiring further information to determine human rights compatibility
[1]
Final Report of the Royal Commission into the Building and
Construction Industry (2003), 22 volumes plus confidential volume.
[2]
The amendments were affected by the Building and Construction Industry
Improvement Amendment (Transition to Fair Work) Act 2012, which changed the
title of the Building and Construction Industry Improvement Act 2005 to
the Fair Work (Building Industry) Act 2012.
[3]
The Hon Murray Wilcox QC, Transition to Fair Work Australia for the Building
and Construction Industry Report, March 2009.
[4]
Statement of compatibility, p 50.
[5]
Chapter 2 of the bill.
[6]
Chapter 3 of the bill.
[7]
Chapter 4 of the bill.
[8]
Chapter 5 of the bill.
[9]
Chapter 6 of the bill.
[10]
Chapter 7 of the bill.
[11]
Chapter 7 of the bill.
[12]
Chapter 8 of the bill.
[13]
Schedule 2, section 2(1).
[14]
Schedule 2, section 2(3).
[15]
Schedule 2, section 20.
[16]
Senate Education and Employment Legislation Committee, Building and Construction
Industry (Improving Productivity) Bill 2013 [Provisions] and Building and
Construction Industry (Consequential and Transitional Provisions) Bill 2013
[Provisions], 2 December 2013.
[17]
Senate Education and Employment References Committee, Government's
approach to re-establishing the Australian Building and Construction Commission.
The terms of reference for this inquiry can be found on the committee's website.
[18]
See Senate Standing Committee for the Scrutiny of Bills, Alert Digest
No 9 of 2013, pp 1-18.
[19]
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).
[20]
Article 7 of the ICESCR.
[21]
Article 14 of the ICCPR.
[22]
Article 21 of the ICCPR.
[23]
Article 19 of the ICCPR.
[24]
Article 17 of the ICCPR.
[25]
Statement of compatibility, p 65.
[26]
Statement of compatibility, p 11.
[27]
Articles 2(1) and 26 of the International Covenant on Civil and Political
Rights (ICCPR) and article 2(2) of the International Covenant on Economic
Social and Cultural Rights (ICESCR).
[28]
Article 22 of the ICCPR.
[29]
Article 21 of the ICCPR.
[30]
Article 17 of the ICCPR.
[31]
Article 14(3)(g) of the ICCPR.
[32]
Article 26 of the ICCPR.
[33]
Article 2(1) of the ICCPR and article 2(2) of the ICESCR.
[34]
Explanatory memorandum, p 2.
[35]
Explanatory memorandum, p 2.
[36]
The Hon Christopher Pyne MP, Minister for Education, Second reading speech,
House of Representatives Hansard, 14 November 2013, p 265.
[37]
Explanatory memorandum, p 2.
[38]
Explanatory memorandum, p 2.
[39]
For example, the CFMEU/Myer Emporium dispute in August 2012, see:
Explanatory memorandum, p 2; statement of compatibility, p 58; and second
reading speech, p 266. The committee is also aware of the recent allegations
regarding corruption in the building industry which have been reported by the
media.
[40]
Statement of compatibility, p 58.
[41]
Davids Distribution Pty Ltd v National Union of Workers (1999)
91 FCR 463 (picketing of grocery wholesaler and distributor); Communications,
Electrical, Energy, Information, Postal, Plumbing & Allied Services Union
of Australia v Commissioner Laing of the Australian Industrial Relations
Commission & Anor (includes corrigendum dated 13 November 1998) [1998]
FCA 1410 (picketing of power station premises); Southcorp Australia Pty
Limited v Automotive, Food, Metals, Engineering, Printing & Kindred
Industries Union [2000] FCA 1480 (12 October 2000) (packaging industry); The
Age Company Limited and Fairfax Print Holdings Pty Limited - re Alleged
industrial action at the Spencer Street and Tullamarine sites - PR944112
[2004] AIRC 183 (26 February 2004) (newspaper industry); Shell Refining
(Australia) Pty Ltd v Australian Workers' Union [1999] VSC 297 (13 August
1999) (petrol refining and distribution industry); Co-operative Bulk
Handling Ltd v Maritime Union of Australia [2013] FCA 940 (2 July 2013)
(stevedoring industry); Recall Information Management Pty Ltd v National
Union of Workers [2013] FCA 161 (1 March 2013) (document storage and
management industry); Toll Transport Pty Ltd (t/a Toll Customised Solutions)
v National Union of Workers & Ors [2012] VSC 316 (25 July 2012)
(wholesale distribution industry).
[42]
Proposed new section 81 of the main bill.
[43]
The Hon Murray Wilcox QC, Transition to Fair Work Australia
for the Building and Construction Industry Report, March 2009,
paras 1.18.
[44]
Senate Scrutiny of Bills Committee, Alert Digest No. 9 of 2013, p
49.
[45]
Article 22(2) of the ICCPR.
[46]
Article 8(1)(a) of the ICESCR.
[47]
Article 8(3) of the ICESCR.
[48]
UN Committee on Economic, Social and Cultural Rights, Concluding
observations on the fourth periodic report of Australia, (2009) E/C.12/AUS/CO/4,
para 19.
[49]
Statement of compatibility, p 52.
[50]
Statement of compatibility, p 52.
[51]
ILO Committee on Freedom of Association, Case No 2326 (Australia),
Report in which the committee requests to be kept informed of developments -
Report No 338, November 2005, para 448 (emphasis added).
[52]
Observation (CEACR) - adopted 2011, published 101st ILC session (2012 (Right to Organise and Collective
Bargaining Convention, 1949 (No. 98) - Australia (Ratification:
1973)).
[53]
Statement of compatibility, p 58.
[54]
Proposed new section 61 of the main bill. A ‘designated building law’ is
defined in section 5 as the Independent Contractors Act 2006, the Fair
Work Act 2009, Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009, or a Commonwealth industrial instrument.
[55]
Proposed new section 62 of the main bill.
[56]
The Hon Murray Wilcox QC, Transition to Fair Work Australia
for the Building and Construction Industry Report, March 2009,
paras 1.24-1.26.
[57]
Wilcox, Transition to Fair Work Australia
for the Building and Construction Industry Report , pp 6-7,
Recommendations 3 and 4.
[58]
Fair Work (Building Industry) Act 2012, section 47.
[59]
Fair Work (Building Industry) Act 2012, section 54A.
[60]
Fair Work Building and Construction, Annual Report 2012-13, p 36.
[61]
Commonwealth Ombudsman, Annual report by the Commonwealth Ombudsman:
review conducted under Division 3 of the Fair Work (Building Industry) Act 2012,
November 2013 (report on one examination carried out on 18 June 2012 with full
documentation provided to the Ombudsman in July 2012).
[62]
Sections 155 and 156 of the Trade Practices Act 1974, now section
155 of the Competition and Consumer Act 2010.
[63]
Statement of compatibility, pp 62-63.
[64]
See C Allan, A Dungan and D Peetz, D, ‘”Anomalies”, Damned “Anomalies” and
Statistics: Construction Industry Productivity in Australia’ (2010) 52(1) Journal
of Industrial Relations 61, 63-64 and sources cited there.
[65]
The statement of compatibility (p 58) asserts, without further, ‘the need
for higher penalties to apply’.
[66]
The committee also notes that the coercive information gathering powers
under the 2005 Act were criticised by the ILO Committee on Freedom of
Association for the breadth of the powers conferred and the absence of adequate
safeguards. See Committee on Freedom of Association, Case No 2326
(Australia), Report in which the committee requests to be kept informed of
development - Report No 338, November 2005, paras 454-456; Case No 2326
(Australia), Effect given to the recommendations of the committee and the
Governing Body - Report No 353, March 2009, paras 21-24. The Australian
government indicated to the ILO ‘the retention of these powers is balanced by
the introduction of significant new safeguards, including a sunset provision
three years after they come into effect’. Report of the Committee of Experts
on the Application of Conventions and Recommendations, Report III (Part 1A),
General Report and observations concerning particular countries,
International Labour Conference, 102nd Session, 2013, p 537 (in the
context of the Labour Inspection Convention, 1947 (No 81).
[67]
Proposed new section 61(4).
[68]
Proposed new section 65(2).
[69]
Proposed new section 65 (3), (6) and (7).
[70]
The Hon Murray Wilcox QC, Transition to Fair Work Australia
for the Building and Construction Industry Report, March 2009, p
31.
[71]
Statement of compatibility, pp 64-65.
[72]
Senate Scrutiny of Bills Committee, Alert Digest No 9 of 2013, p
14.
[73]
Senate Scrutiny of Bills Committee, Alert Digest No 9 of 2013, p
14.
[74]
Proposed new section 57(1).
[75]
Statement of compatibility, pp 55-56.
[76]
Similar provision is also made by section 783 of the Fair Work Act 2009
in relation to the prohibitions on termination of employment on certain grounds
contained in section 772 of that Act.
[77]
Statement of compatibility, p 56.
[78]
Senate Scrutiny of Bills Committee, Alert Digest No 9 of 2013, p 10
(emphasis in original).
[79]
‘The committee does not, therefore, see the privilege against self-incrimination as absolute. In considering whether to accept legislation that includes a provision affecting this privilege
the committee must be
convinced that the public benefit sought
will decisively outweigh the resultant harm to the
maintenance of civil rights.’
Senate Standing Committee for the Scrutiny of Bills, The work of the
committee during the 42nd Parliament February 2008 – June 2010 (2013), para
2.6.
[80]
Senate Scrutiny of Bills Committee, Alert Digest No 9 of 2013, p
17.
[81]
Proposed new section 81(2).
[82]
Statement of compatibility, pp 36-38.
[83]
Statement of compatibility, p 58.
Criminal Code Amendment (Harming Australians) Bill 2013
[1]
Article 14 of the International Covenant on Civil and Political Rights
(ICCPR).
[2]
Article 14(2) of the ICCPR.
[3]
Articles 14(3), (5), (6) and (7) of the ICCPR.
[4]
Statement of compatibility, p 1.
[5]
Article 15 of the ICCPR.
[6]
Statement of compatibility, p 1.
[7]
Criminal Code Amendment (Offences Against Australians) Bill 2002, Explanatory
memorandum, p 1.
[8]
Criminal Code Amendment (Offences Against Australians) Bill 2002, Second
reading speech, Mr Daryl Williams MP, Senate Hansard, Tuesday 12
November 2002, p 8797.
[9]
Criminal Code Amendment (Offences Against Australians) Bill 2002, Explanatory
memorandum, p 2.
[10]
Statement of compatibility, p 1.
[11]
M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary
(2nd ed, 2005), p 360.
[12] See, for
example, the jurisprudence of the European Court of Human Rights in: SW v UK
(Application No. 20166/92, 22 November 1995), paras 35 and 43; Kokkinakis v
Greece (Application No. 14307/88, 25 May 1993), para 52; and G v France
(Application No. 15312/89, 27 September 1995), para 25. The UN Human Rights
Committee has also stated that laws which are vague and not clearly prescribed
will not satisfy the requirement that offences be established in law for the
purposes of article 15: see Concluding Observations of the Human Rights
Committee, Belgium, UN Doc. CCPR/CO/81/BEL (2004), para 24.
[13] M Nowak, UN Covenant on
Civil and Political Rights: CCPR Commentary (2nd ed, 2005), p
368.
[14]
Criminal Code Act 1995, s 115.1(2), s 115.2(2), s 115.3(2) and s
115.4(2).
[15]
Criminal Code Act, s 115.2(2).
Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013
[1] Criminal
Code Amendment (Misrepresentation of Age to a Minor) Bill 2013, introduced into
the Senate on 2 February 2013.
[2] Article 14
of the International Covenant on Civil and Political Rights (ICCPR).
[3] Article 17
of the ICCPR.
[4] Including
article 19(1) of the Convention on the Rights of the Child.
[5] See PJCHR
comments on the Criminal Code Amendment (Misrepresentation of Age to a Minor)
Bill 2013, Third Report of 2013, p 5.
[6] Article 19
of the ICCPR.
[7] Article 17
of the ICCPR.
[8] Article 22
of the ICCPR.
[9] Article
14(2) of the ICCPR.
Defence Legislation Amendment (Woomera Prohibited Area) Bill 2013
[1]
Explanatory memorandum, p 2.
[2]
Article 6 of the International Covenant on Civil and Political Rights
(ICCPR).
[3]
Article 9 of the ICCPR.
[4]
Article 12 of the ICCPR.
[5]
Article 14(2) of the ICCPR.
[6]
Article 17 of the ICCPR.
[7]
Article 27 of the ICCPR and article 15 of the International Covenant on
Economic, Social and Cultural Rights.
[8]
Statement of compatibility, p 18.
[9]
Item 1 of Schedule 1 to the bill.
[10]
Section 71H of the Defence Act 1903 (Defence Act).
[11]
Section 71J of the Defence Act.
[12]
Sections 71H(3)(a) and 71J(2)(a) of the Defence Act.
[13]
Sections 71R and 71S of the Defence Act.
[14]
Under sections 71R and 71S of the Defence Act.
[15]
Under sections 71H and 71J of the Defence Act.
[16]
Section 72P of the Defence Act.
[17]
Section 72K of the Defence Act.
[18]
Article 9(3) of the ICCPR.
[19]
Australian Government, Review of the Woomera Prohibited Area: Final
Report, 4 February 2011, p 5.
Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill 2013
[1] The
term 'complementary protection' refers to protection against refoulement
(removal), which is additional to that provided by the 1951 Refugee Convention
as amended by the 1967 Protocol (Refugee Convention).
[2] The
criteria for a protection visa are set out in s 36 of the Migration Act 1958
and Part 866 of Schedule 2 to the Migration Regulations 1994. An
applicant for the visa must meet one of the alternative criteria in s.36(2)(a),
(aa), (b), or (c). That is, the applicant is either a person in respect of whom
Australia has protection obligations under the ‘refugee’ criterion, or on other
‘complementary protection’ grounds, or is a member of the same family unit as
such a person and that person holds a protection visa.
[3] Statement
of compatibility, p 1.
[4] Explanatory
memorandum, p 1.
[5] Explanatory
memorandum, p 1.
[6] See
items 20
and 21 of the bill and explanatory memorandum, pp 11-13.
[7] See
Senate Standing Committee for the Scrutiny of Bills, Alert Digest No 9 of
2013, pp 27-32.
[8] Statement
of compatibility, p 2.
[9] Statement
of compatibility, p 2.
[10] Statement
of compatibility, p 1.
[11] Statement
of compatibility, p 2.
[12] Statement
of compatibility, p 2.
[13] Statement
of compatibility, p 3.
[14] Statement
of compatibility, p 3.
[15] Agiza
v. Sweden, Communication No. 233/2003, UN Doc. CAT/C/34/D/233/2003 (2005),
para 13.7. See also Arkauz Arana v. France, Communication No. 63/1997,
CAT/C/23/D/63/1997 (2000), paras 11.5 and 12 and comments on the initial report
of Djibouti (CAT/C/DJI/1) (2011), A/67/44, p 38, para 56(14).
[16] See,
for example, Concluding Observations of the Human Rights Committee, Portugal,
UN Doc. CCPR/CO/78/PRT (2003), at para 12.
[17] Alzery
v. Sweden, 10 November 2006, No.1416/2005, para 11.8.
[18] Article
2(3)(b) of the ICCPR. See also, HRC, Judge v. Canada, 20 October 2003,
No. 829/1998, para. 10.9 and HRC comments on 4th report of France
CCPR/C/FRA/CO/4 (2008).
[19] M
Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd
ed 2005), p 64. (footnotes omitted, emphasis in original).
[20] See
items 17 and 18 of Schedule 1 to the bill.
[21]
M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary
(2nd ed 2005), p 64.
[22] See Parliamentary Joint Committee on Human
Rights, Practice Note 1.
[23] Senate
Legal and Constitutional Affairs Legislation Committee, Migration Amendment
(Complementary Protection) Bill 2009 [Provisions], October 2009,
para 1.11.
[24] Department
of Immigration and Citizenship, Submission to the Senate Legal
and Constitutional Affairs Legislation Committee inquiry on the Migration
Amendment (Complementary Protection) Bill 2009 [Provisions],
2009, p 3.
[25] Senate
Legal and Constitutional Affairs Legislation Committee, Migration Amendment
(Complementary Protection) Bill 2009 [Provisions], October 2009,
para 3.44.
[26] Senate
Standing Committee for the Scrutiny of Bills, Alert Digest No 9 of 2013,
p 29.
[27] Senate
Standing Committee for the Scrutiny of Bills, Alert Digest No 9 of 2013,
p 30.
[28] Senate
Standing Committee for the Scrutiny of Bills, Alert Digest No 9 of 2013,
p 31.
[29] See
M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, (2nd
ed 2005), p 460, para 46.
[30] Human
Rights Committee, General Comment 27, (1999), para 15. See also Human Rights
Committee, General Comment No 34 (2011), para 25.
[31] Gillan
and Quinton v UK (Application No 415/05, 12 January 2010) at para 77.
[32] Senate
Legal and Constitutional Affairs Legislation Committee, Migration Amendment
(Complementary Protection) Bill 2009 [Provisions], October 2009,
para 1.10.
[33] Senate
Legal and Constitutional Affairs References Committee, A Sanctuary under Review: An
Examination of Australia’s Refugee and Humanitarian Determination Processes,
June 2000, para 2.77.
[34] Senate
Select Committee on Ministerial Discretion in Migration Matters, Report, March 2004,
paras 8.86 and 8.88.
[35] Committee
against Torture, Concluding observations of the Committee against Torture -
Australia, CAT/C/AUS/CO/3 (22 May 2008), para 15.
[36] UN
Committee on the Rights of the Child, General Comment No. 5 (2003), para
12; General comment No. 14 (2013).
[37] Article
10 of the CRC.
[38] Article
20 of the CRC.
[39] Article
22 of the CRC.
[40] Statement
of compatibility, p 3.
[41] Article
37(b) of the CRC.
[42] Article
3(1) of the CRC.
[43] Australian
Human Rights Commission, Submission to the Senate Legal
and Constitutional Affairs Legislation Committee inquiry on the Migration
Amendment (Complementary Protection) Bill 2009 [Provisions], 30
March 2009, para 13.
[44] Senate
Standing Committee for the Scrutiny of Bills, Alert Digest No 9 of 2013,
p 32.
Migration Amendment Bill 2013
[1]
Department of Immigration and Border Protection, Submission to the Legal and
Constitutional Affairs Legislation Committee Inquiry on the Migration Amendment
Bill 2013 [Provisions], 13 January 2014, p 3.
[2] See
statement of compatibility, pp 2-4.
[3]
Article 14(1) of the International Covenant on Civil and Political
Rights (ICCPR).
[4]
See statement of compatibility, pp 5-7.
[5]
See statement of compatibility, pp 8-12.
[6] Article
9 of the ICCPR.
[7] Articles
6 and 7 of the ICCPR; and article 3 of the CAT.
[8] Article
14(1) of the ICCPR.
[9] Article
13 of the ICCPR.
[10] Article
10 of the ICCPR.
[11] Migration
Act 1958, Part 7.
[12] Migration
Act 1958, section 430.
[13] Migration
Act 1958, sections 430A(1) and 430A(2).
[14] Migration
Act 1958, section 430A(3).
[15] Migration
Act 1958, section 5(9).
[16] Migration
Act 1958, section 198.
[17]
Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131.
[18]
Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY
[2013] FCAFC 104.
[19]
Statement of compatibility, p 2.
[20]
Statement of compatibility, p 3.
[21] Statement
of compatibility, p 3.
[22] The
complementary protection provisions in the Migration Act 1958 were
introduced by the Migration Amendment (Complementary Protection) Act 2011
to provide a statutory basis for implementing Australia’s non-refoulement
obligations under the International Covenant on Civil and Political Rights
(ICCPR) and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT). The term 'complementary protection'
refers to protection against refoulement (removal), which is additional to that
provided by the 1951 Refugee Convention as amended by the 1967 Protocol
(Refugee Convention).
[23]
Migration Act 1958, section 36(2).
[24]
Migration Act 1958, section 48A.
[25] Migration
Act 1958, section 48B.
[26]
SZGIZ v Minister for Immigration and Citizenship [2013]
FCAFC 71 (3 July 2013).
[27] Explanatory
statement, p 2.
[28]
Statement of compatibility, p 6.
[29]
Statement of compatibility, p 5.
[30]
Statement of compatibility, p 5.
[31] Statement
of compatibility, p 7.
[32]
Statement of compatibility, p 7.
[33] Plaintiff
M47/2012 v Director-General of Security & Ors [2012] HCA 46.
[34] Public
Interest Criterion 4002 of Part 1 of Schedule 4 to the Migration Regulations
1994.
[35] Migration
Act 1958, section 36(2).
[36] Within
the meaning of section 4 of the Australian Security Intelligence
Organisation Act 1979.
[37] Where
the detention involves children, article 37(b) of the
CRC requires that children are detained only as a measure of last resort,
and for the shortest appropriate period of time. Article 3(1)
of the CRC also requires that, ‘in all actions concerning
children ... the best interests of the child shall be a primary consideration.’
[38]
See ccommunications No. 1134/2002, Gorji-Dinka v. Cameroon, Views adopted on
17 March 2005, para 5.1; and No. 305/1988, van Alphen
v. Netherlands, Views adopted on 23 July 1990, para 5.8.
[39]
UN Human Rights Committee, F.K.A.G. et al. v Australia,
CCPR/C/108/D/2094/2011 (2013), para 9.3. See also M.M.M. et al. v Australia,
CCPR/C/108/D/2136/2012 (2013).
[40]
Law Council of Australia, Submission to the Legal and
Constitutional Affairs Legislation Committee Inquiry on the Migration Amendment
Bill 2013 [Provisions], 9 January 2014, p 1.
[41]
Statement of compatibility, p 9.
[42] Statement
of compatibility, pp 9-10.
[43] See
statement of compatibility, pp 9-10.
[44] UN
Human Rights Committee, F.K.A.G. et al. v Australia,
CCPR/C/108/D/2094/2011 (2013).
[45] See,
for example, the Australian Human Rights Commission, Report of an
inquiry into complaints by Sri Lankan refugees in immigration detention with
adverse security assessments ( 2012) AusHRC 56, available at: http://www.humanrights.gov.au/publications/aushrc-56-sri-lankan-refugees-v-commonwealth-australia-department-immigration.
[46] UN
Human Rights Committee, F.K.A.G. et al. v Australia,
CCPR/C/108/D/2094/2011 (2013).
[47] UN
Human Rights Committee, F.K.A.G. et al. v Australia,
CCPR/C/108/D/2094/2011 (2013).
Tax Bonus for Working Australians Repeal Bill 2013
[1]
Explanatory memorandum, p 5.
[2]
Explanatory memorandum, p 5.
[3]
Item 1 of Schedule 1 repeals the Tax Bonus for Working Australians
Act (No. 2) 2009.
[4]
Item 9 of Schedule 1.
[5]
Article 9 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR).
[6]
Article 11 of the ICESCR.
[7]
Tax Bonus for Working Australians Bill 2009, Explanatory memorandum, p
5.
[8]
Explanatory memorandum, p 3.
Therapeutic Goods Amendment (2013 Measures No. 1) Bill 2013
[1]
Statement of compatibility, p 5.
[2]
See item 1 of Schedule 11 to the bill.
[3]
Statement of compatibility, pp 6-7.
[4]
Items 5 and 6 of Schedule 2 to the bill and items 2 and 3 of Schedule 4
to the bill.
[5]
Therapeutic Goods Act 1989, s 31(5B).
[6]
Items 5 and 6 of Schedule 2 of the bill.
[7]
Explanatory memorandum, p 16.
[8]
Therapeutic Goods Act 1989, s 42DL(1)(a).
[9]
Item 1 of Schedule 4 of the bill. Under section 42DK(2) of the Therapeutic
Goods Act 1989, the Secretary may permit the use of a prohibited
representation, including on the label of goods or in information included in
the package in which goods are contained.
[10]
Item 2 of Schedule 4 of the bill.
[11]
Section 42DL(3)(a) of the Therapeutic Goods Act, amended by item 3 of
Schedule 4 of the bill.
[12]
Explanatory memorandum, pp 25-26.
[13]
See note accompanying section 42DM(3) of the Therapeutic Goods Act 1989.
[14]
New section 9H at item 1 of Schedule 11 to the bill.
[15]
Explanatory Memorandum, p 47.
[16]
Therapeutic Goods Act 1989, s 31AAA.
[17]
Item 9 of Schedule 2 to the bill.
[18]
Explanatory memorandum, p 16.
Bills unlikely to raise human rights concerns - High Speed Rail Planning Authority Bill 2013
[1] Article 11
of the International Covenant on Economic, Social and Cultural Rights.
[2] Article 17
of the International Covenant on Civil and Political Rights.
[3] Article 23
of the International Covenant on Civil and Political Rights (ICCPR).
[4] Article 26
of the ICCPR.
[5] Article 12 of
the International Covenant on Economic, Social and Cultural Rights.
[6] See PJCHR
comments on the Marriage Equality Amendment Bill 2013, Third Report of 2013,
p 79 and the Marriage Act Amendment (Recognition of Foreign Marriage for
Same-Sex Couples) Bill 2013, Seventh Report of 2013, p 31.
[7] Instruments
made under Part 2 of the Migration Act 1958 are not subject to
disallowance (see section 44(2) of the Legislative Instruments Act 2003).
[8] Statement
of compatibility, p 5.
[9] Revocation
of IMMI13/156 'Granting of Protection Class XA Visas in 2013/2014 Financial
Year' – IMMI 13/159.
[10] Made under section
333-20 of the Private Health Insurance Act 2007.
[11] The Private
Health Insurance Legislation Amendment (Base Premium) Act 2013 received
Royal Assent on 29 June 2013. The measure is due to take effect from 1 April
2014.
[12] Explanatory memorandum,
p 1.
[13] Statement of
compatibility, p 2.
[14] Statement of
compatibility, p 3.
[15] Statement of
compatibility, p 3.
[16] See comments
of the PJCHR on the Private Health Insurance Legislation Amendment (Base
Premium) Bill 2013, Seventh Report of 2013, p 34.
[17] Statement of
compatibility accompanying the Private Health Insurance Legislation Amendment
(Base Premium) Bill 2013, p 4.
The committee has sought further comment in relation to the following instruments
[1]
Higher Education Support Act 2003, section 238-10 at item 3.
[2]
Article 13 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR).
[3]
See article 2(2) of the ICESCR and articles 2, 16 and 26 of the
International Covenant on Civil and Political Rights.
[4]
Statement of compatibility, p 2.
[5]
Statement of compatibility, p 2.
[6]
Statement of compatibility, p 2.
[7]
Explanatory statement, p 2.
[8]
PJCHR, Social Security Legislation Amendment (Fair Incentives to
Work) Act 2012, Final Report, Fifth Report of 2013, pp 16-17.
[9]
Statement of compatibility, p 2.
[10]
Explanatory statement, p 1.
Customs Amendment (Record Keeping Requirements and Other Measures) Regulation 2013
[1]
PJCHR, Sixth Report of 2013, pp 25-35, and Tenth Report of
2013, p 124 and pp 144-147.
[2]
PJCHR, Sixth Report of 2013, p27.
[3]
PJCHR, Tenth Report of 2013, p 144-145.
Determination of Granting of Protection Class XA Visas in 2013/2014 Financial Year – IMMI 13/156
[1]
Section 85 of the Migration Act 1958 provides that the Minister
may determine by instrument in writing the maximum number of the visas of a
specified class that may be granted in a specified financial year.
[2] Revocation
of IMMI13/156 'Granting of Protection Class XA Visas in 2013/2014 Financial
Year' – IMMI 13/159.
[3]
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 by the section 42 definition and
extends to all legislative instruments: see section 7(a) of the Human Rights
(Parliamentary Scrutiny) Act 2011.
[4]
The Hon Scott Morrison MP, Minister for Immigration and Border
Protection, 'Government acts swiftly to deny people smugglers' promise of
permanent visas', Media release, 4 December 2013.
[5]
Mr Martin Bowles PSM, Secretary, Department of
Immigration and Border Protection, Supplementary Budget Estimates Hansard, 19
November 2013, p 37.
[6]
The Hon Scott Morrison MP, Minister for Immigration and Border
Protection, 'Government acts swiftly to deny people smugglers' promise of permanent
visas', Media release, 4 December 2013, in which the Minister stated
'[t]he government has acted swiftly to ensure that none of the 33,000 people
who arrived in Australia illegally by boat under Labor's watch and were yet to
be processed will be granted a permanent visa'.
Higher Education (Maximum Amounts for Other Grants) Determination 2013
[1]
Higher Education Support Act 2003, Part 2-3.
[2]
Higher Education Support Act, section 41-45.
[3]
Article 13 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR).
[4]
Statement of compatibility, p 1.
[5]
Statement of compatibility, p 1.
[6]
See section 41-45 of the Higher Education Support Act.
[7]
PJCHR, Social Security Legislation Amendment (Fair Incentives to
Work) Act 2012, Final Report, Fifth Report of 2013, pp 16-17.
[8]
Higher Education Support (Maximum Amounts for Commonwealth Scholarships)
Determination 2013.
Migration Amendment (Bridging Visas—Code of Behaviour) Regulation 2013
[1] Mr
Martin Bowles, Secretary, Department of Immigration and Border Protection, Estimates
Hansard, 19 November 2013, p 54.
[2]
See further, PJCHR, Comments on the Migration Amendment (Unauthorised
Maritime Arrival) Regulation 2013.
[3]
Visa Condition 8566, inserted by item 6 of Schedule 1 to the bill.
[4]
Namely, where the BVE holder (a) has been convicted of, or charged with,
an offence in Australia or another country; (b) is the subject of an Interpol
notice relating to criminal conduct or public safety threats; or (c) is under
investigation by an agency responsible for the regulation of law enforcement or
security.
[5] Item
5 of Schedule 1 to the bill.
[6]
Articles 2 and 26 of the International Covenant on Civil and Political
Rights (ICCPR).
[7]
Article 19 of the ICCPR.
[8]
Article 14(2) of the ICCPR.
[9]
Article 12 of the ICCPR.
[10]
Article 9 of the ICCPR.
[11]
Articles 17(1), 23 and 24 of the ICCPR; and article 3 of the Convention on
the Rights of the Child (CRC).
[12]
Article 3 of the Convention against Torture (CAT); and articles 6 and 7 of
the ICCPR.
[13]
Article 9 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR).
[14]
Article 11(1) of the ICESCR.
[15]
This instrument does not come within the definition of a disallowable
legislative instrument under section 42 of the Legislative Instruments Act 2003
(LI Act). Section 9 of the Human Rights (Parliamentary Scrutiny) Act
2011 only requires statements for legislative instruments within the
meaning of section 42 of the LI Act. The committee’s mandate to examine
legislative instruments, however, is not tied to the section 42 definition.
[16] See Parliamentary Joint Committee on Human
Rights, Practice Note 1.
[17] R
v Oakes, [1986] 1 S.C.R. 103, 69.
[18] Migration
Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013 (F2013L01218). The
committee examined these amendments in its last report and outlined a series of
human rights concerns in relation to these powers: see, PJCHR, First Report
of the 44th Parliament, 10 December 2013, pp 103-108.
[19] Migration
Amendment (Disclosure of Information) Regulation 2013 (F2013L02101). See the
committee’s comments on this regulation elsewhere in this report.
[20] Mr
Martin Bowles, Secretary, Department of Immigration and Border Protection, Estimates
Hansard,
19 November 2013, p 54.
[21]
Statement of compatibility, p 6.
[22] Statement
of compatibility, p 8.
[23] Statement
of compatibility, p 6.
[24] Statement
of compatibility, p 8.
[25] Statement
of compatibility, p 9.
[26] Statement
of compatibility, p 9.
[27] Statement
of compatibility, p 10.
[28] Human
Rights Committee, General Comment 27, (1999), para 15. See also Human Rights
Committee, General Comment No 34 (2011), para 25.
[29] Gillan
and Quinton v UK (Application No 415/05, 12 January 2010) at para 77.
[30] See,
PJCHR, First Report of the 44th Parliament, 10 December 2013,
pp 103-108.
[31] Statement
of compatibility, p 4.
[32] Statement
of compatibility, p 4.
Migration Amendment (Disclosure of Information) Regulation 2013
[1] PJCHR,
Comments on the Migration Amendment (Subclass 050 and Subclass 051 Visas)
Regulation 2013 (F2013L01218), First Report of the 44th
Parliament, 10 December 2013, pp 103-108.
[2] See
Migration Act 1958, section 116(1)(g) and Migration Regulation 1994,
Regulations 2.43(1)(p) and (q).
[3] Article
17 of the International Covenant on Civil and Political Rights (ICCPR).
[4] Article
9 of the ICCPR.
[5] Statement
of compatibility, p 5.
[6] Article
26 of the ICCPR.
[7] Statement
of compatibility, p 4.
[8] Statement
of compatibility, p 4.
[9] Statement
of compatibility, p 2.
[10] See,
for example, Gueye v. France, Communication No. 196/1985, CCPR/C/35/D/196/1985
(3 April 1989), para 9.5; and Olsson v Sweden, European Court of Human
Rights, Application No. 10465/83 (24 March 1988), para 82.
[11]
Statement of compatibility, p 4.
Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013
[1] Explanatory
statement, p 1.
[2]
Explanatory statement, p 1.
[3]
Migration Act 1958, s 36(2)(a).
[4]
Migration Act 1958, s 36(2)(aa).
[5]
Migration Act 1958, ss 36(2)(b) and (c).
[6] Migration
Regulations 1994, Part 866 of Schedule 2.
[7] An
‘unauthorised maritime arrival’ is defined in section 5AA of the Migration
Act 1958 to be a person who (i) entered Australia by sea at an excised
offshore place (such as Christmas Island) at any time
after the excision time for that place or at any other place at any time on or
after 1 June 2013; and (ii) became an unlawful non-citizen
because of that entry; and (iii) is not an excluded maritime arrival.
[8] Article
3 of the Convention against Torture (CAT); and articles 6 and 7 of the ICCPR.
[9] Article
26 of the ICCPR.
[10] Article
3 of the Convention on the Rights of the Child (CRC).
[11] Legislative
Instruments Act 2003, section 48.
[12] Article
12 of the International Covenant on Economic, Social and Cultural Rights and
article 24 of the CRC.
[13] Article
9 of the ICESCR.
[14] Article
11 of the ICESCR.
[15] Article
13 of the ICESCR.
[16] Article
6 of the ICESCR.
[17]
See ,PJCHR, First Report of the 44th Parliament, 10 December
2013, pp 109-120.
[18] Article
2 of the ICCPR.
[19] Article
17 and 23 of the ICCPR; and the CRC.
[20] Article
6 of the ICESCR.
[21] Statement
of compatibility, p 1.
[22]
FRLI No: F2013L02102.
[23] FRLI
No: F2013L02105.
[24] FRLI
No: F2013L01218. The committee’s comments on this instrument are contained in
its last report; see PJCHR, First Report of the 44th Parliament,
10 December 2013, pp 103-108.
[25] FRLI
No: F2013L02101. The committee’s comments on this instrument are contained
elsewhere in this report.
[26] Statement
of compatibility, p 2.
MRCA Pharmaceutical Benefits Scheme (No. MRCC 44/2013)
[1]
Statement of compatibility, p 5.
[2]
Explanatory statement, p 4.
Native Title (Assistance from Attorney-General) Amendment Guideline 2013
[1]
Native Title Act 1993, section 213A.
[2]
Explanatory statement, p 1.
[3]
Explanatory statement, p 1.
[4]
Native Title (Assistance from Attorney-General) Guideline 2012,
see PJCHR, Third Report of 2013, p 90 and Sixth Report of 2013, p
289.
[5]
The Attorney-General's response is set out in the PJCHR's Sixth
Report of 2013, p 290.
[6]
PJCHR, Sixth Report of 2013, p 290.
[7]
PJCHR, Sixth Report of 2013, p 290.
[8]
Article 15 of the International Covenant on Economic, Social and
Cultural Rights and article 27 of the International Covenant on Civil and
Political Rights.
[9]
Article 1 of the ICESCR and article 1 of the ICCPR.
[10]
Statement of compatibility, p 1.
Repatriation Pharmaceutical Benefits Scheme (No. R43/2013)
[1]
Statement of compatibility, p 6.
[2]
Statement of compatibility, p 2.
Treatment Principles (Australian Participants in British Nuclear Tests) 2006
[1]
Explanatory statement, p. 3.
[2]
Explanatory statement, p. 4.
[3]
It appears that items 34, 37 and 44 of the instrument may relate to
preventing 'double-dipping'.
The committee has deferred its consideration of the following legislative instruments
[1]
Statement of compatibility, p 7.
[2]
Statement of compatibility, p 7.
[3]
Parliamentary Joint Committee on Human Rights, Eleventh Report of
2013, pp 29-31.
[4]
Parliamentary Joint Committee on Human Rights, Eleventh Report of
2013, p 28.
Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Democratic People's Republic of Korea) Amendment List 2013
[1]
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.
[2]
Parliamentary Joint Committee on Human Rights (PJCHR), Tenth Report
of 2013, p 14.
[3]
PJCHR, First Report of the 44th Parliament, pp 165 –
167.
Social Security (Administration) (Recognised State/Territory Authority – Qld Family Responsibilities Commission Determination 2013
[1]
Explanatory statement, p 2.
[2]
Article 9 of the ICESCR.
[3]
Article 11 of the ICESCR.
[4]
Article 24(1) and article 14(4) of the ICCPR.
[5]
Article 1 of the ICESCR.
[6]
Article 17 of the ICCPR.
[7]
Article 1 of the International Convention on the Elimination of all
Forms of Racial Discrimination.
[8]
Statement of compatibility, p 9.
Appendix 1: Full list of Legislative Instruments received by the committee between 23 November 2013 and 31 January 2014
[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
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