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, Advice Only, Report 1 of 2020; [2020] AUPJCHR 2.

[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]          Discrimination Free Schools Bill 2018 was previously deferred in Report 3 of 2019, Report 4 of 2019, Report 5 of 2019 and Report 6 of 2019.

[4]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Anti-Money Laundering and Counter-Terrorism Financing and Other Legislation Amendment Bill 2019, Report 1 of 2020; [2020] AUPJCHR 3.

[5]          Being a prosecution under sections 400.3 to 400.8 of the Criminal Code Act 1995.

[6]          See, Ramanauskas v Lithuania (No. 2), European Court of Human Rights Application No. 55146/14 (20 February 2018).  Jurisprudence from the European Court of Human Rights provides guidance regarding distinguishing legitimate undercover techniques by law enforcement from entrapment, which is not permissible. The court explains that it is necessary to consider whether there is a sufficient degree of certainty that authorities instigated the individual's activities in a passive way, or whether they incited them to commit the offence. The court will take into consideration whether there were objective suspicions that the applicant had been involved in criminal activity or had been predisposed to commit a criminal offence and whether the authorities exerted such an influence on the applicant as to incite the commission of an offence that would otherwise not have been committed. See, Matanović v. Croatia European Court of Human Rights Application No. 2742/12 (4 April 2017), [123] – [133].

[7]          Vanyan v. Russia, European Court of Human Rights Application no. 53203/99 (15 March 2006), [47].

[8]          Ramanauskas v Lithuania, European Court of Human Rights Application No. 74420/01 (5 February 2008), [52].

[9]          See, eg, Matanovit v. Croatia, European Court of Human Rights Application no. 2742/12, (4 July 2017), [131]-[134].

[10]        Ridgeway v the Queen [1995] HCA 66, [33] (Mason CJ, Deane and Dawson JJ); [52]-[53] (Brennan J); and [63]-[65] (Toohney J). The court also commented that, ' [T]he stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with the minimum standards of acceptable police conduct in all the circumstances including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation and prevention and any imminent danger to the community', [37] (Mason CJ, Deane and Dawson JJ).

[11]        'Authorising officer' is defined in section 15GF of the Crimes Act 1914, to include the AFP Commissioner or Deputy Commissioner, a senior executive AFP employee; the CEO of the Australian Crime Commission (ACC) or an SES member of the ACC; or an Australian Commission for Law Enforcement Integrity (ACLEI) Commissioner, Assistant Commissioner, or SES member in the case of corruption investigations.

[12]        Crimes Act 1914, subsection 15GI(2)(f).

[13]        Crimes Act 1914, subsection 15HA(2)(c).

[14]        Crimes Act 1914, subsection 15HB(c).

[15]        Crimes Act 1914, subsections 15HA(2)(c) and 15HB(c).

[16]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Australian Sports Anti-Doping Authority Amendment (Enhancing Australia’s Anti-Doping Capability) Bill 2019, Report 1 of 2020; [2020] AUPJCHR 4.

[17]          'Disclosure notice' is defined in subsection 13A(1) of the ASADA Act to mean a written notice requiring the person to attend an interview to answer questions, give information of the kind specified in the notice, and/or produce documents or things of the kind specified in the notice.

[18]          Proposed section 13D(1) would provide that a person is not excused from answering questions, giving information or producing a document or thing pursuant to a disclosure notice on the grounds that to do so might tend to incriminate the person or expose them to a penalty. However, proposed section 13D(2) would also provide that 'use' and 'derivative use' immunities are available in relation to answering questions, giving information, and producing information, documents and things. Accordingly, the measure does not raise human rights concerns in relation to the right not to incriminate oneself due to the availability of relevant safeguards. 

[19]          Sections 13(1)(ea) and 13A of the ASADA Act. Currently, the penalty for non-compliance with a disclosure notice is 30 penalty units (currently $6,300).

[20]          A 'penalty unit' is defined as $210 (subject to indexation) under the Crimes Act 1914, section 4AA.

[21]          International Covenant on Civil and Political Rights (ICCPR), article 17.

[22]          See, UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [10]; and General Comment No. 34 (Freedom of opinion and expression) (2011) [18].

[23]          See, for example, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005);  Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.

[24]          Statement of compatibility, pp. 5-6.

[25]        Statement of compatibility, p. 5.

[26]        Statement of compatibility, p. 6.

[27]        Statement of compatibility, p. 6.

[28]        Statement of compatibility, p. 6.

[29]        Statement of compatibility, pp. 5-6.

[30]        Statement of compatibility, p. 8.

[31]        ASADA Act, subsection 13A(1A)(b).

[32]        Statement of compatibility, p. 8. However, it is noted that item 44 of the bill also seeks to lower the threshold necessary for the CEO to issue a disclosure notice to a medical practitioner to where the CEO 'reasonably suspects' that the practitioner has been involved, in that capacity, in the commission, or attempted commission, of a possible violation of the anti‑doping rules.

[33]        Statement of compatibility, p. 6.

[34]        Explanatory memorandum, p. 1; and statement of compatibility pp. 1, 3-10.

[35]        Report of the Review of Australia’s Sports Integrity Arrangements, 2018, p. 129.

[36]        See section 13A of the ASADA Act.

[37]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019, Report 1 of 2020; [2020] AUPJCHR 5.

[38]          Schedule 1, item 11 of the bill. 'Sports integrity' being defined to mean the manifestation of the ethics and values that promote community confidence in sport.

[39]          Schedule 1, item 12.

[40]          Schedule 2, item 23.

[41]          Privacy Act 1988, section 26WN. 'Enforcement related activity' is defined in subsection 5(1) of the Privacy Act 1988 to mean: the prevention, detection, investigation, prosecution or punishment of criminal offences, or breaches of a law imposing a penalty or sanction; the conduct of surveillance activities, intelligence gathering activities or monitoring activities; the conduct of protective or custodial activities; the enforcement of laws relating to the confiscation of the proceeds of crime; the protection of public revenue; the prevention, detection, investigation or remedying of misconduct of a serious nature, or other conduct prescribed by the regulations; or the preparation for, or conduct of, proceedings before any court or tribunal, or the implementation of court/tribunal orders.

[42]          Australian Privacy Principle (APP) 3.4(d)(ii).

[43]          APP 6.2(e).

[44]          APP 9.2(e).

[45]          APP 8.2(f).

[46]        APP 12.3(i).

[47]        International Covenant on Civil and Political Rights (ICCPR), article 17.

[48]        See, UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [10]; and General Comment No. 34 (Freedom of opinion and expression) (2011) [18].

[49]        See, for example, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005);  Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.

[50]        Statement of compatibility, pp. 4-5.

[51]        Statement of compatibility, p. 4.

[52]        Statement of compatibility, p. 4.

[53]        Statement of compatibility, pp. 4-5.

[54]        Statement of compatibility, p. 5.

[55]        Noting that, depending on the kinds of enforcement activities which may be undertaken, and the manner in which this takes place in practice, these measures may promote the rights of the child (see, Convention on the Rights of the Child).

[56]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Broadcasting Services (Transmitter Access) Regulations 2019 [F2019L01248], Report 1 of 2020; [2020] AUPJCHR 6.

[57]          A 'penalty unit' is defined as $210 (subject to indexation) under Crimes Act 1914, section 4AA.

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

[59]          UN Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression (2011) [11]. Article 20 of the ICCPR provides that ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’

[60]          ICCPR, article 21; UN Human Rights Committee, General Comment No 25: Article 25 (Participation in public affairs and the right to vote) [8]. The Committee notes that citizens take part in the conduct of public affairs, including through the capacity to organise themselves.

[61]          ICCPR, articles 19(3) and 21.

[62]          See, for example, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005);  Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.

[63]          Noting that under articles 19(3), 20 and 21(3) of the ICCPR any limitation on the rights to freedom of expression and assembly must be demonstrated to be necessary to 'protect the rights or reputations of others, national security, public order, or public health or morals' or to prohibit ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’.

[64]          The committee's consideration of the compatibility of a measure which limits a right is assisted if the response explicitly addresses the limitation criteria set out in the committee's Guidance Note 1, pp. 2-3.

[65]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Fair Work (Registered Organisations) Amendment (Ensuring Integrity No. 2) Bill 2019, Report 1 of 2020; [2020] AUPJCHR 7.

[66]          The committee noted this bill in Parliamentary Joint Committee on Human Rights, Report 3 of 2019 (30 July 2019), p. 15, referring to substantive comments it made with regards to the 2017 iteration of the bill in Report 9 of 2017 (5 September 2017) pp. 13-24 and Report 12 of 2017 (28 November 2017), pp. 113-136.

[67]          Explanatory memorandum, p. 2.

[68]          Schedule 1, item 11, proposed section 223.

[69]          As detailed in proposed subsections 9C(1)(a) and (b).

[70]          See proposed subsection 223(6) for the grounds for disqualification.

[71]          Schedule 1, item 11, proposed Division 4, Part 4 of Chapter 7.

[72]          Schedule 1, item 2, proposed section 9C.

[73]          The designated laws include the following: Fair Work (Registered Organisations) Act 2009; Fair Work Act 2009 (Fair Work Act); Building and Construction Industry (Improving Productivity) Act 2016 (ABCC Act); Work Health and Safety Act 2011; each State or Territory OHS law; Part 7.8 of the Criminal Code (causing harm to, and impersonation and obstruction of, Commonwealth public officials): See definition of designated law in proposed subsection 9C(2). 

[74]        See, article 22 of the ICCPR and article 8 of the ICESCR.

[75]        The Freedom of Association and Protection of the Right to Organize (ILO Convention No. 87) is expressly referred to in the ICCPR and the ICESCR.

[76]        See ILO Convention N.87 article 3.

[77]        See ILO Convention N.87 articles 2, 4. See, also, ILO Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) [292]-[308].

[78]        ILO Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) [391].

[79]        Statement of compatibility,  p. 8.

[80]        Statement of compatibility,  p. 8.

[81]        Statement of compatibility, p. 10.

[82]        Statement of compatibility, p. ix.

[83]        Statement of compatibility, p. ix.

[84]        Statement of compatibility, p. ix.

[85]        Schedule 1, item 11, proposed subsection 222(2)(b).

[86]        Schedule 1, item 11, proposed subsection 222(2A).

[87]        Schedule 6, item 2, proposed new subsection 329AB (2).

[88]        Explanatory memorandum, p. 45.

[89]        Statement of compatibility, p. vi.

[90]        The right to strike is expressly protected in article 8(1)(d) of the ICESCR.

[91]        See, UN Committee on Economic Social and Cultural Rights (UNCESCR), Concluding Observations on Australia, E/C.12/AUS/CO/5 (23 June 2017) [29]-30]: ' The Committee is also concerned that the right to strike remains constrained in the State party (art. 8).The Committee recommends that the State party bring its legislation on trade union rights into line with article 8 of the Covenant and with the provisions of the relevant International Labour Organization (ILO) Conventions (nos. 87 and 98), particularly by removing penalties, including six months of incarceration, for industrial action, or the secret ballot requirements for workers who wish to take industrial action.' See, also, ILO CEACR, Observation Concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Australia, 103rd ILC session, 2013  ILO CEACR, Observation Concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Australia, 101^st ILC session, 2013; ILO CEACR, Observation Concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Australia, 99th ILC session, 2009; ILO CEACR, Individual Observation Concerning the Right to Organise and Collective Bargain Convention, 1949, (No. 98), Australia, 99th session, 2009, See also, UNCESCR, Concluding Observations on Australia, E/C.12/AUS/CO/4 (12 June 2009) 5.

[92]        Schedule 1, item 11, proposed subsection 223(3) and (3A).

[93]        Schedule 2, item 4, proposed section 28.

[94]        Schedule 2, item 4, proposed section 28C.

[95]        Schedule 2, item 4,  proposed section 28D.

[96]        Schedule 2, item 4, proposed section 28E.

[97]        Schedule 2, item 4, proposed section 28F.

[98]        Schedule 2, item 4, proposed section 28G. The section covers industrial action other than protected industrial action which prevented, hindered or interfered with a federal system employer or the provision of any public service and that had or is having a substantial adverse impact on the safety, health or welfare of the community or part of the community.

[99]        Schedule 2, item 4, proposed sections 28M-28P.

[100]        ILO Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) [391].

[101]        ILO Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) [696], [699].

[102]        Statement of compatibility, p.  10.

[103]        Statement of compatibility, p.  12.

[104]        Statement of compatibility, p.  xi.

[105]        As stipulated in Schedule 2, item 4, proposed paragraph 28J(1)(b) and subsection 28L(1A).

[106]        Schedule 6, item 2.

[107]        Statement of compatibility, p. 12.

[108]        Schedule 3, item 4, proposed section 232.

[109]        Schedule 3, item 4, proposed section 323A.

[110]        ILO Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) [450].

[111]        Statement of compatibility, p. xiii.

[112]        Statement of compatibility, p. xiii.

[113]        Statement of compatibility, p. xiii.

[114]        'Designated law' has the meaning given in proposed section 9C(a) and includes industrial laws, see Schedule 1, item 2.

[115]        As set out in Schedule 4, item 7, proposed paragraph 72A(1)(b) (the 'public interest test').

[116]        See Schedule 4, item 7, proposed section 72E.

[117]        See Schedule 4, item 7, proposed subsection 72A(2).

[118]        See Schedule 4, item 7, proposed section 72D.

[119]        See Schedule 4, item 7, proposed subsection 72D(2).

[120]        ILO Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) [332].

[121]        Statement of compatibility, p. xv.

[122]        Statement of compatibility, p. xv.

[123]        Statement of compatibility, p. xv.

[124]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Legislation (Deferral of Sunsetting—Sydney Harbour Federation Trust Regulations) Certificate 2019 [F2019L01211], Report 1 of 2020; [2020] AUPJCHR 8.

[125]          International Covenant on Civil and Political Rights (ICCPR), article 19.

[126]          ICCPR, article 21.

[127]          UN Human Rights Committee, General Comment No.34: Article 19: Freedoms of Opinion and Expression (2011) [21]-[36].

[128]          See, for example, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005);  Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.

[129]          UN Human Rights Committee, General Comment No.34: Article 19: Freedoms of Opinion and Expression (2011) [34]-[35].

[130]          Statement of compatibility.

[131]          Noting that under articles 19(3), 20 and 21(3) of the ICCPR any limitation on the rights to freedom of expression and assembly must be demonstrated to be necessary to 'protect the rights or reputations of others, national security, public order, or public health or morals' or to prohibit ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’.

[132]          The committee's consideration of the compatibility of a measure which limits a right is assisted if the response explicitly addresses the limitation criteria set out in the committee's Guidance Note 1, pp. 2-3.

[133]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, National Museum of Australia Regulations 2019 [F2019L01273], Report 1 of 2020; [2020] AUPJCHR 9.

[134]          An 'authorised officer' is a person appointed by the Director under section 12 of the regulations.

[135]          Subsections 15(2) and 15(3).

[136]          International Covenant on Civil and Political Rights (ICCPR), article 19.

[137]          UN Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression (2011) [11]. Article 20 of the ICCPR provides that ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’

[138]          ICCPR, article 21.

[139]          ICCPR, article 12(3).

[140]          UN Human Rights Committee, General Comment No.34: Article 19: Freedoms of Opinion and Expression (2011) [21]-[36]. See also Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005);  Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.

[141]          Section 14(1)(b) of the regulations (emphasis added).

[142]        Statement of compatibility, p. 31.

[143]        Noting that under articles 19(3), 20 and 21(3) of the International Covenant on Civil and Political Rights any limitation on the rights to freedom of expression and assembly must be demonstrated to be necessary to 'protect the rights or reputations of others, national security, public order, or public health or morals' or to prohibit ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’.

[144]        The committee's consideration of the compatibility of a measure which limits a right is assisted if the response explicitly addresses the limitation criteria set out in the committee's Guidance Note 1, pp. 2-3.

[145]        ICCPR, article 17.

[146]        See, UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [10]. See also, UN Human Rights Committee, General Comment No. 34 (Freedom of opinion and expression) (2011) [18].

[147]        See Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005);  Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.

[148]        The committee's consideration of the compatibility of a measure which limits a right is assisted if the response explicitly addresses the limitation criteria set out in the committee's Guidance Note 1, pp. 2-3.

[149]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, National Redress Scheme for Institutional Child Sexual Abuse Amendment (2019 Measures No. 1) Rules 2019 [F2019L01491], Report 1 of 2020; [2020] AUPJCHR 10.

[150]          Brisbane Girls Grammar School; Brisbane Grammar School; Ipswich Girls' Grammar School including Ipswich Junior Grammar School; Ipswich Grammar School; Rockhampton Girls Grammar School; The Rockhampton Grammar School; Toowoomba Grammar School; Townsville Grammar School; and the boards of trustees for these schools. 

[151]          National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Redress Act), s. 114.

[152]          Redress Act, subsection 115(3)(c).

[153]          Redress Act, subsection 115(3)(a) and (b).

[154]          Redress Act, s. 107.

[155]          Convention on the Rights of the Child, article 19.

[156]          See, United Nations 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, [24].

[157]          Article 5(1) of the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (OP3 CRC) provides that a communication can be submitted by any individual. This reflects that the understanding of the temporal nature of childhood has been adopted in OP3 CRC, which facilitates complaints submitted by adults in relation to claims of abuse of their rights as children; see Malcolm Langford and Sevda Clark, 'New Kid on the Block: A Complaints Procedure for the Convention on the Rights of the Child', Nordic Journal of Human Rights, vol. 28, no. 3-4, 2010, pp. 376, 393-4.

[158]        Statement of compatibility, pp. 5-6.

[159]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Native Title Legislation Amendment Bill 2019, Report 1 of 2020; [2020] AUPJCHR 11.

[160]          See, particularly, proposed section 62C(2), and proposed Schedule 1 more broadly.

[161]          Proposed section 251BA.

[162]          A native title claim group is defined in section 253 of the Native Title Act 1993 (NTA). See Parliamentary Joint Committee on Human Rights, Report 2 of 2019 (2 April 2019) p. 68 for further discussion.

[163]          See explanatory memorandum p. 28; section 61(2) of the NTA. The definition of 'applicant' also covers applications for compensation made by a person or persons authorised to make the application by a compensation claim group: section 61(2)(b).

[164]          See explanatory memorandum, p. 27 and section 253 of the NTA. Section 31 of the NTA provides an agreement-making mechanism in the form of a right to negotiate in good faith with a view to obtaining the agreement with native title parties relating to the grant of mining and exploration rights over land which may be subject to native title. These agreements are not publicly registered.

[165]          Explanatory memorandum, p. 32.

[166]          [2017] FCAFC 10 (McGlade).

[167]          ILUAs are voluntary agreements in relation to the use of land and waters which may cover a number of matters including how native title rights coexist with the rights of other people, who may have access to an area, native title holders agreeing to a future development or future acts, extinguishment of native title, compensation for any past or future act, employment and economic opportunities for native title groups, issues of cultural heritage, and mining: see NTA section 24CB.

[168]        'Area ILUAs' are made in relation to land or waters for which no registered native title body corporate exists.

[169]        This included deceased members of the applicant.

[170]        Explanatory memorandum, p. 32.

[171]        The committee previously considered the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 and considered the measures were likely to promote the right to self-determination and represented a proportionate limitation the right to culture for any minority members of a native title claimant: Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) pp. 18-25; Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) pp. 112-124.

[172]        This includes making ILUAs, making applications for native title determinations or compensation applications, and section 31 agreements. See the general rule in proposed section 62C(2). The bill also includes a number of specific amendments to give effect to this general rule as it applies to specific types of agreement-making by the applicant. In so doing, it repeals and replaces aspects of the NTA as amended by the 2017 Act: see EM pp. 37-38.

[173]        See Schedule 1, item 23.

[174]        Section 251A of the NTA sets out the authorisation process for the making of indigenous land use agreements, and section 251B sets out the process for authorising the making of applications for a native title determination or compensation application.

[175]        Schedule 1, item 23, proposed paragraph 251BA(2)(a).

[176]        Schedule 1, item 23, proposed paragraph 251BA(2)(b).

[177]        Schedule 1, item 43, proposed section 31(1C), explanatory memorandum, p. 35.

[178]        Schedule 1, item 1, proposed subsection 62A(2).

[179]        Schedule 1, item 16, proposed subsection 190C(4AA).

[180]        Statement of compatibility, pp. 9 and 14.

[181]        See, UN Human Rights Committee, General Comment No. 23: The rights of minorities (1994).

[182]        Kitok v Sweden, UN Human Rights Committee Communication No.197/1985 (1988) [9.8].

[183]        Statement of compatibility, p. 9.

[184]        Statement of compatibility, pp. 9-10.

[185]        Statement of compatibility, p. 8.

[186]        Statement of compatibility, p. 14.

[187]        Statement of compatibility, pp. 14-15.

[188]        Statement of compatibility, pp. 9-10.

[189]        See Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017)
pp. 120-121.

[190]        Apirana Mahuika v New Zealand, UN Human Rights Committee Communication No. 547/1993 (2000); Kitok v Sweden, UN Human Rights Committee Communication No. 197/1985 (1988) [9.8].

[191]        See Native Title Act 1993, section 251B.

[192]        See, UN Committee on the Elimination of Racial Discrimination, General Recommendation 21 on the right to self-determination (1996).

[193]        Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) pp. 122-123.

[194]        UN Declaration on the Rights of Indigenous Peoples, article 3.

[195]        Statement of compatibility, pp. 16-17.

[196]        Statement of compatibility, p. 17.

[197]        Statement of compatibility, p. 17.

[198]        See Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017)
pp.122-123.

[199]        UN Human Rights Council, Free, prior and informed consent: a human rights-based approach - Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018)
[15]-[16].

[200]        Statement of compatibility, p. 6. Consultation took place in relation to an options paper for native title reform released in November 2017 and exposure draft legislation released in October 2018. The recommendations from the Australian Law Reform Commission and other inquiries were also considered.

[201]        Statement of compatibility, p. 6. See also explanatory memorandum, p. 2. The Expert Technical Advisory Group comprised of nominated representatives from the National Native Title Council, states and territories, industry peaks and the National Native Title Tribunal.

[202]        UN Human Rights Council, Free, prior and informed consent: a human rights-based approach. Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018) [20].

[203]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019, Report 1 of 2020; [2020] AUPJCHR 12.

[204]          Schedule 1, item 10, proposed subsection 114A(1).

[205]          Crimes Act 1914, subsection 4AA(1).

[206]          Schedule 1, item 3.

[207]          Schedule 1, item 10, proposed subsection 114B(1).

[208]          Crimes Act 1914, subsection 4AA(1).

[209]          Schedule 1, item 10, proposed subsection 114B(2).

[210]          Schedule 1, item 26, proposed section 127A.

[211]          Proposed subsections 114C(4) and (8).

[212]        Trade and commerce: paragraph 51(i); corporations: paragraph 51(xx); communications: paragraph 51(v).

[213]        The term 'alien' has been interpreted to include individuals who have an allegiance to a foreign country, include via possession of foreign citizenship, and may include people who were born in Australia. See, Koroitamana v Commonwealth (2006) 227 CLR 31.

[214]        Schedule 1, item 10, proposed subsection 114C(8).

[215]        Articles 2 and 26 of the International Covenant on Civil and Political Rights.

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

[217]        Althammer v Austria, UN Human Rights Committee Communication no. 998/01 (2003) [10.2]. 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'.

[218]        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].

[219]        Crimes Act 1914, subsection 4AA(1).

[220]        For further detail, see Parliamentary Joint Committee on Human Rights, Guidance Note 2.

[221]        Explanatory memorandum, pp. 4, 15.

[222]        Explanatory memorandum, p. 15.

[223]        Explanatory memorandum, p. 18.

[224]        Explanatory memorandum, p. 15.

[225]        Proposed section 127A.

[226]        ICCPR, article 19(2).

[227]        Restrictions on this ground must be constructed with care. For example, while it may be permissible to protect voters from forms of expression that constitute intimidation or coercion, such restrictions must not impede political debate. See UN Human Rights Committee, General Comment No. 34: Article 19: Freedoms of Opinion and Expression (2011) [28].

[228]        The concept of 'morals' here derives from myriad social, philosophical and religious traditions. This means that limitations for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition. See UN Human Rights Committee, General Comment No. 34: Article 19: Freedoms of Opinion and Expression (2011) [32]

[229]        See, UN Human Rights Committee, General Comment No.34: Article 19: Freedoms of Opinion and Expression (2011) [21]-[36].

[230]        Statement of compatibility, p. 8.

[231]        Statement of compatibility, p. 8.

[232]        Explanatory memorandum, pp. 3 and 20-21.

[233]        Article 19(3) of the International Covenant on Civil and Political Rights provides that limitations on this right can be placed to respect the rights or reputations of others; or for the protection of national security, public order, public health or morals.

[234]        Statement of compatibility, p. 8.

[235]        Proposed subsection 127A(7).

[236]          Commonwealth Registers Bill 2019; Business Names Registration (Fees) Amendment (Registries Modernisation) Bill 2019; Corporations (Fees) Amendment (Registries Modernisation) Bill 2019; and National Consumer Credit Protection (Fees) Amendment (Registries Modernisation) Bill 2019. The committee commented on these bills as they were previously introduced into the Parliament in Report 2 of 2019, seeking further information. This entry can be cited as: Parliamentary Joint Committee on Human Rights, Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019 and related bills, Report 1 of 2020; [2020] AUPJCHR 13.

[237]          Statement of compatibility, p. 63.

[238]          Explanatory memorandum, p. 6.

[239]          See Corporations (Aboriginal and Torres Strait Islander) Act 2006, proposed section 308-5; Corporations Act 2001 (Corporations Act), proposed section 1272.

[240]          Commonwealth Registers Bill, proposed subsection 13(1).

[241]          The Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019 inserts equivalent provisions into the National Consumer Credit Protection Act 2009 (NCCP Act) (proposed section 212H), the Business Names Registration Act 2011 (Business Names Registration Act) (proposed section 62H), and the Corporations Act (proposed section 1270G).

[242]          Commonwealth Registers Bill, Part 4.

[243]          Commonwealth Registers Bill, section 5. The Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019 seeks to insert the same definition of 'protected information' into the Corporations Act, section 9; Business Names Registration Act, section 3; and the NCCP Act, section 5(1).

[244]          Proposed section 16.

[245]        Commonwealth Registers Bill, proposed subsection 16(2).

[246]        Commonwealth Registers Bill, proposed subsection 16(2).

[247]        Commonwealth Registers Bill, proposed subsection 16(5).

[248]        Commonwealth Registers Bill, proposed section 17. Subsection 17(2) would create an exemption to this offence where the disclosed information is authorised by subsection 17(3), namely where: the recording or disclosure is for the purposes of the Act; the recording or disclosure happens in the course of the performance of the duties of the person's official employment; the disclosure is to another person to use in the course of their official employment and performance or exercise of the functions or powers of a government entity; each person to whom the information relates consents to the disclosure; or the disclosure is in accordance with the disclosure framework.

[249]        Statement of compatibility, pp. 69-72.

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

[251]        See, for example, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005);  Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.

[252]        Statement of compatibility, p. 70.

[253]        Statement of compatibility, p. 71.

[254]        Statement of compatibility, pp. 71-72.

[255]        See, Parliamentary Joint Committee on Human Rights, Guidance Note 1 – Drafting Statements of Compatibility.

[256]        Statement of compatibility, p. 70.

[257]        Commonwealth Registers Bill 2019, section 5.

[258]        Commonwealth Registers Bill, subsection 17(1).

[259]        Commonwealth Registers Bill, subsection 16(2)(a).

[260]        Commonwealth Registers Bill, subsections 16(2)(e)-(f).

[261]          This section can be cited as Parliamentary Joint Committee on Human Rights, Advice Only, Report 1 of 2020; [2020] AUPJCHR 14.

[262]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Crimes Amendment (National Disability Insurance Scheme—Worker Screening) Regulations 2019 [F2019L01397], Report 1 of 2020; [2020] AUPJCHR 15.

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

[264]          The committee previously considered the bill which created those exclusions—the Crimes Amendment (National Disability Insurance Scheme—Worker Screening) Bill 2018. Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018), Crimes Amendment (National Disability Insurance Scheme—Worker Screening) Bill 2018, pp. 6-11; Report 4 of 2018 (8 May 2018), pp. 38-46; and Report 5 of 2018 (19 June 2018), pp. 64-76.

[265]          Statement of compatibility, p. 10.

[266]          Statement of compatibility, pp. 8-9.

[267]          International Covenant on Civil and Political Rights (ICCPR), article 17. See also, UN Human Rights Committee, General Comment No. 16: Article 17 (1988); and General Comment No. 34 (Freedom of opinion and expression) (2011).

[268]          International Covenant on Economic, Social and Cultural Rights (ICESCR), articles 6 and 7.

[269]          ICESCR, articles 6 and 2(1).

[270]        See, for example, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005);  Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.

[271]        Statement of compatibility, p. 8.

[272]        Statement of compatibility, p. 9.

[273]        Noting that, as set out at page 8 of the statement of compatibility, these measures may promote the rights of persons with disabilities (see, Convention on the Rights of Persons with Disabilities).

[274]        Statement of compatibility, p. 9.

[275]        Statement of compatibility, p. 10.

[276]        'Risk assessed role' is defined in section 5 of the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 to mean a key personnel role of a person or entity; a role for which normal duties include the direct delivery of specified supports or specified services to a person with disability; or a role for which normal duties are likely to require more than incidental contact with a person with disability.

[277]        Statement of compatibility, pp. 8-9.

[278]        Council of Australian Governments, Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme, p. 18.

[279]        See, Parliamentary Joint Committee on Human Rights, Report 5 of 2018 (19 June 2018), at p. 70.

[280]        See, Parliamentary Joint Committee on Human Rights, Report 5 of 2018 (19 June 2018), at pp. 71 and 73.

[281]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Discrimination Free Schools Bill 2018, Report 1 of 2020; [2020] AUPJCHR 16.

[282]          Fair Work Act 2009 (Fair Work Act), section 153(1).

[283]          Fair Work Act, section 195(1).

[284]          Fair Work Act, section 351(1).

[285]          Fair Work Act, section 772(1).

[286]          Fair Work Act, sections 153(1), 195(1), 351(1), 772(1).

[287]          Fair Work Act, sections 153(2)(b), 195(2)(b), 351(2)(c), 772(2)(b).

[288]          Proposed section 12.

[289]          Section 37(1)(c) of the Sex Discrimination Act 1984 also provides an exemption for 'the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice'.

[290]        Statement of compatibility, p. 4.

[291]        The rights to work, and to just and favourable conditions of work are protected by articles 6(1), 7 and 8(1)(a) of the  International Covenant on Economic, Social and Cultural Rights (ICESCR). Articles 2(1) and 2(2) of the ICESCR protect the non-discriminatory application of these rights. See UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005). By providing access to a remedy for any breach of the right to equality and non-discrimination, the bill also appears to engage and promote the right to an effective remedy (International Covenant on Civil and Political Rights (ICCPR), article 2(3)).

[292]        UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion [1].

[293]        UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion [4].

[294]        UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion [4].

[295]        UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion (1993) [1].

[296]        UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion (1993) [8]. See also, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005);  Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.

[297]        UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion (1993) [8].

[298]        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'.

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

[300]        Schedule 1, item 3.

[301]        Statement of compatibility, p. 3. The right to education is protected by article 13 of the ICESCR.  Articles 2(1) and 2(2) of the ICESCR protect the non-discriminatory application of these rights. The bill also appears to engage and promote the right of the child, including the right of the child to have his or her best interests taken as a primary consideration (Convention on the Rights of the Child (CRC), article 3(1)); UN Committee on the Rights of Children, General Comment 14 on the right of the child to have his or her best interest taken as primary consideration (2013)). By providing access to a remedy for any breach of the right to equality and non-discrimination, the bill also appears to engage and promote the right to an effective remedy (ICCPR, article 2(3)).

[302]        UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion (1993) [4].

[303]        UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion (1993) [5].

[304]        UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion (1993) [5].

[305]        Discrimination under articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR) encompasses a distinction based on a personal attribute (such as on the basis of sex, marital status, or sexual orientation) which has either the purpose ('direct' discrimination), or the effect ('indirect' discrimination), of adversely affecting human rights.

[306]        Schedule 1, item 3.

[307]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Health Legislation Amendment (Data-matching and Other Matters) Bill 2019, Report 1 of 2020; [2020] AUPJCHR 17

[308]          The Chief Executive Medicare may request such information under proposed subsection 132D(2) or the private health insurer may do so on their own initiative.

[309]          Explanatory memorandum, p. 7.

[310]          Schedule 1, item 5.

[311]          The right to privacy is protected by article 17 of the International Covenant on Civil and Political Rights (ICCPR), article 16 of the Convention on the Rights of the Child (CRC), and article 22 of the Convention on the Rights of Persons with Disabilities (CRPD). See also, UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [10], and General Comment No. 34 (Freedom of opinion and expression) (2011) [18].

[312]          See, for example, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005);  Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.

[313]          Statement of compatibility, pp. 4-5.

[314]          Statement of compatibility, p. 4.

[315]          Including information that is held or had been obtained by the Chief Executive Medicare for the purposes of a medicare program (proposed paragraph 132B(1)(a)); therapeutic goods information (proposed paragraph 132B(1)(b) and subsection 132C(1)); information relating to hospital treatment or general treatment provided to a person who is insured under an insurance policy (proposed paragraph 132B(1)(c) and subsection 132D(1)); and other information disclosed to the Chief Executive Medicare (proposed paragraph 132B(1)(f)).

[316]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Student Identifiers Amendment (Higher Education) Bill 2019, Report 1 of 2020; [2020] AUPJCHR 18.

[317]          Schedule 1, item 12.

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

[319]          Statement of compatibility, pp. 6-8.

[320]          Statement of compatibility, p. 7.

[321]          Statement of compatibility, p. 7.

[322]          Statement of compatibility, pp. 7-8.

[323]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Transport Security Amendment (Serious Crime) Bill 2019, Report 1 of 2020; [2020] AUPJCHR 19.

[324]          See, Aviation Transport Security Regulations 2005, division 3.2, and Maritime Transport and Offshore Facilities Security Regulations 2003, division 6.1A. 

[325]          International Covenant on Economic, Social and Cultural Rights, articles 2(1) and 6.

[326]          See, for example, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005);  Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.

[327]          Statement of compatibility, p. 1.

[328]          Explanatory memorandum, p. 2.

[329]          The section can be cited as: Parliamentary Joint Committee On Human Rights, Bills and instruments with no committee comment, Report 1 of 2020, [2020] AUPJCHR 20.

[330]          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.

[331]          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.

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, Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, Report 1 of 2020; [2020] AUPJCHR 21.

[3]          Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019),
pp. 2-19.

[4]          Proposed sections 36B and 36C would replace existing sections 33AA, 35 and 35AA of the Australian Citizenship Act 2007 (Australian Citizenship Act), which were introduced in 2015, which provides for the automatic cessation of citizenship for certain conduct. The 2015 changes were introduced by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015.

[5]          Currently, only convictions from 12 December 2015 which resulted in a sentence of six years or more, or convictions in the ten years prior to this date resulting in a sentence of at least 10 years imprisonment, can be considered.

[6]          Explanatory memorandum, p. 1. Proposed section 36D seeks to replace an existing provision, section 35A of the Australian Citizenship Act, which provides for conviction of the same listed offences as in this bill, but that the person has been sentenced to at least six years imprisonment (or periods totalling six years), and only for convictions from 12 December 2015 (or convictions in the ten years prior this date resulting in a sentence of at least 10 years imprisonment, can be considered).

[7]          Proposed subsections 36B(2) and 36D(2).

[8]          Australian Citizenship Act, subsection 33AA(1) and paragraph 35A(1)(c).

[9]          Proposed paragraphs 36B(1)(b) and 36D(1)(d).

[10]        Pursuant to proposed subsection 36E(2), these include: the severity of the conduct to which a determination relates, the sentence or sentences to which the determination relates (if relevant), the degree of threat posed by the person to the Australian community, the person's age (including the best interests of the child as a primary consideration if the person is aged under 18), whether the person is being or likely to be prosecuted in relation to conduct to which the determination relates, the person's connection to the other country of which they are a national or citizen, Australia's international relations, and any other matters of public interest.

[11]        Proposed subsections 36B(11), 36D(9).

[12]        Under clause 7.2 of the Criminal Code, a child aged between 10 and 14 years of age can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.

[13]        Statement of compatibility, p. 10.

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

[15]        UN Human Rights Committee, General Comment No.27: Article 12 (Freedom of Movement) (1999). See also Nystrom v Australia (1557/2007), UN Human Rights Committee, 1 September 2011.

[16]        Migration Act, section 501.

[17]        Migration Act, subsection 501(7).

[18]        Migration Act, section 501E. While subsection 501E(2) provides that a person is not prevented from making an application for a protection visa, that section also notes that the person may be prevented from applying for a protection visa because of section 48A of the Migration Act. Section 48A provides that a non-citizen who, while in the migration zone, has made an application for a protection visa and that visa has been refused or cancelled, may not make a further application for a protection visa while the person is in the migration zone.

[19]        Migration Act, sections 189, 198.

[20]        International Covenant on Civil and Political Rights, article 9.

[21]        See, MGC v. Australia, UN Human Rights Committee Communication No.1875/2009 (2015) [11.6]. See, also UN Human Rights Committee, Concluding observations on the sixth periodic report of Australia, CCPR/C/AUS/CO/6 (2017) [37].

[22]        See, Convention on the Rights of the Child.

[23]        Convention on the Rights of the Child, article 40. See, also, UN Committee on the Rights of the Child, General Comment 10: children's rights in juvenile justice (2007) [10].

[24]        Convention on the Rights of the Child, article 9.

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

[26]        Convention on the Rights of the Child; International Covenant on Civil and Political Rights, articles 17 and 23; International Covenant on Economic, Social and Cultural Rights, article 10.

[27]        Winata v Australia, UN Human Rights Committee Communication No.930/2000 (26 July 2001) [7.3].

[28]        Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019)
pp. 39-51.

[29]        The minister's response to the committee's inquiries was received on 6 January 2020. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[30]        Pinkney v Canada, UN Human Rights Communication No.27/1977 (1981) [34].

[31]        Item 9, proposed paragraphs 36B(1)(b) and 36D(1)(c).

[32]        Australian Citizenship Act, subsection 33AA(3).

[33]        Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019),
pp. 2-19.

[34]        Statement of compatibility, p. 3.

[35]        'ASIO submission to the Parliamentary Joint Committee on Intelligence and Security: Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019' (14 October 2019)
p. 2.

[36]        'ASIO submission to the Parliamentary Joint Committee on Intelligence and Security: Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019' (14 October 2019)
p. 5.

[37]        Proposed section 36E provides that the minister, in determining whether it is in the public interest to make a determination to cease citizenship, must have regard to the severity of the relevant conduct; the degree of threat posed by the person; the age of the person; if the person is under 18, the best interests of the child as a primary consideration; whether the person is likely to be prosecuted for the relevant conduct; the person’s connection to the other country of which they are (or may be) a national; Australia’s international relations; and any other matters of public interest.

[38]        UN Human Rights Committee, General Comment No. 27: Article 12 (Freedom of movement) (1999) [15].

[39]        United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), http://www.un.org/documents/ga/res/40/a40r033.htm; and Australian Institute of Criminology, The Age of Criminal Responsibility, https://aic.gov.au/publications/cfi/cfi106.

[40]        Convention on the Rights of the Child, article 40. See, also, UN Committee on the Rights of the Child, General Comment 10: children's rights in juvenile justice (2007) [10].

[41]        UN Committee on the Rights of the Child, General comment 14 on the right of the child to have his or her best interests taken as a primary consideration (2013); see also IAM v Denmark, UN Committee on the Rights of the Child Communication No.3/2016 (2018) [11.8].

[42]        UN Committee on the Rights of the Child, General comment 14 on the right of the child to have his or her best interests taken as a primary consideration (2013) [32].

[43]        UN Committee on the Rights of the Child, General comment 14 on the right of the child to have his or her best interests taken as a primary consideration (2013) [16(a)] and [82].

[44]        Article 5 of the Convention on the Rights of the Child, which introduced for the first time in an international human rights treaty, the concept of the ‘evolving capacities’ of the child. This principle has been described as a new principle of interpretation in international law. See Gerison Lansdown, Innocenti Insights Report No. 11, The Evolving Capacities of the Child, 2005, p. ix.

[45]        UN Committee on the Rights of the Child, General comment 14 on the right of the child to have his or her best interests taken as a primary consideration (2013) [84].

[46]        As the power to make a determination under proposed section 36B would apply to persons aged 14 or over, and proposed section 36D could apply to those aged 10 or over.

[47]        UN Committee on the Rights of the Child, General comment 24 on children's rights in the child justice system (2019) [98].

[48]        Statement of compatibility, p. 13.

[49]        See proposed subsections 36B(11), 36D(9), 36F(7), 36G(8), and 36J(7).

[50]        Proposed section 36H.

[51]        See proposed subsection 36F(6).

[52]        The minister's response to the committee's inquiries was received on 6 January 2020. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[53]        International Covenant on Civil and Political Rights; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[54]        Committee against Torture, General Comment No.4 (2017) on the implementation of article 3 in the context of article 22 (9 February 2018).

[55]        International Covenant on Civil and Political Rights, article 2 (the right to an effective remedy). See, for example, Singh v Canada, UN Committee against Torture Communication No.319/2007 (30 May 2011) [8.8]-[8.9]; Alzery v Sweden, UN Human Rights Committee Communication No. 1416/2005 (20 November 2006) [11.8].

[56]        See, for example, the committee's analysis of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 in Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (October 2014) pp. 77-78. The UN Human Rights Committee in its Concluding observations on Australia recommended '[r]epealing section 197(c) of the Migration Act 1958 and introducing a legal obligation to ensure that the removal of an individual must always be consistent with the State party's non-refoulement obligations': CCPR/C/AUS/CO/6 (2017), [34]. See, also, Parliamentary Joint Committee on Human Rights, Report 1 of 2019 (12 February 2019) 
pp. 14-17; Report 12 of 2018 (27 November 2018) pp. 2-22; Report 11 of 2018 (16 October 2018) pp. 84-90; Thirty-sixth report of the 44th Parliament (16 March 2016)
pp. 196-202; Report 12 of 2017 (28 November 2017) p. 92 and Report 8 of 2018 (21 August 2018) pp. 25-28. 

[57]        See section 197C of the Migration Act 1958.

[58]        Australian Citizenship Act, section 52.

[59]        See Singh v Canada, UN Committee against Torture Communication No.319/2007 (30 May 2011) [8.8]-[8.9].

[60]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Civil Aviation Order 48.1 Instrument 2019 [F2019L01070], Report 1 of 2020; [2020] AUPJCHR 22.

[61]          Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019)
pp. 20-23.

[62]          As set out in Table 10.1 of the instrument which includes requiring 'any operation' to comply with Appendix 7.

[63]          Statement of compatibility, p. 20. See also: https://www.casa.gov.au/safety-management/fatigue-management/casas-approach-fatigue-management.

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

[65]          Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019)
pp. 20-23.

[66]          The minister's response to the committee's inquiries was received on 6 January 2020. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[67]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill 2019, Report 1 of 2020; [2020] AUPJCHR 23.

[68]          Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019)
pp. 39-53

[69]          Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill 2019 (the bill), item 17.

[70]          Items 10, 11 and 15 of the bill. The minister would be granted the power to make a notifiable instrument to exclude any part of the Northern Territory from the trial area, reflecting the power the minister also has to make such a notifiable instrument in relation to Cape York.

[71]          The Cashless Debit Card would be trialled in the Northern Territory to 30 June 2021 and in the Cape York area until 31 December 2021, see item 17 of the bill.

[72]          Explanatory memorandum, p. 4. In addition, the bill would permit persons with a welfare payment nominee receiving their payments to also participate in the cashless welfare scheme, provided their payment nominee is also a participant: see items 19, 21, 23, 25, and 27A which would permit participation by an individual with a 'part 3B payment nominee,' defined in section 123TC of the Social Security (Administration) Act 1990 to include a person to whom another person's payments are made.

[73]          Item 26 of the bill sets out the categories of welfare payment which would be subject to the trial.

[74]          Proposed subsection 124PJ(2C) clarifies that where the Secretary has made an individual determination that one person's restricted rate of payment will be varied, a broader determination by this Minister varying rates of restriction for cohorts of participants would not impact that individual.

[75]          Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill 2019, third reading of the bill.

[76]        See items 41 and 42 of the bill.

[77]        Item 51 of the bill.

[78]        The stated objectives of the Cashless Debit Card are set out in Part 3D of the Social Security (Administration) Act 1999. See also the objectives outlined in the statement of compatibility, pp. 20-21.

[79]        Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019)
pp. 39-51.

[80]        The minister's response to the committee's inquiries was received on 20 December 2019. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[81]        International Covenant on Civil and Political Rights (ICCPR), article 17.

[82]        International Covenant on Economic, Social and Cultural Rights (ICESCR), article 9.

[83]        ICCPR, articles 2, 16 and 26 and ICESCR, article 2. It is further protected with respect to persons with disabilities by the Convention on the Rights of Persons with Disabilities, article 2.

[84]        See, for example, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005);  Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.

[85]        The stated objectives of the Cashless Debit Card are set out in Part 3D of the Social Security (Administration) Act 1999. See also the objectives outlined in the statement of compatibility, pp. 20-21.

[86]        The University of Adelaide is conducting a second impact evaluation in Ceduna, East Kimberley and Goldfields, as well as a baseline data collection in the Bundaberg and Hervey Bay region. See, statement of compatibility, p. 19.

[87]        These include evidence of 'workarounds' to circumvent the cashless welfare restrictions, including: trading the card to purchase alcohol; trading the card for cash of lesser value; harassing elderly relatives for money; pooling resources to make purchases; and consuming cheaper forms of alcohol such as methylated spirits. Concerns have also been raised as to: the inability of participants to participate in the second-hand goods market; the inability to make small cash-based transactions at places like school canteens; concerns regarding the lack of targeting in the application of the trial; and perceptions among participants that the widespread application of the trial is racist, patronising and discriminatory. See, University of Adelaide Future of Employment and Skills Research Centre, Cashless Debit Card Baseline Data Collection in the Goldfields Region: Qualitative Findings, February 2019; and ORIMA, Cashless Debit Card Trial Evaluation – Final Evaluation Report, August 2017. 

[88]        See, statement of compatibility, p. 19.

[89]        The UN Committee on Economic, Social and Cultural Rights has explained that it is a core obligation of state parties to ‘allow and encourage the participation of persons belonging to minority groups, indigenous peoples or to other communities in the design and implementation of laws and policies that affect them’ See, UN Committee on Economic, Social and Cultural Rights, General Comment No. 21: Right of everyone to take part in cultural life (art. 15, para. 1a of the Covenant on Economic, Social and Cultural Rights), 21 December 2009, [55]. See also, the Declaration on the Rights of Indigenous Peoples, article 19.

[90]        Including for people with existing mental health problems (who are reported to have exacerbated negative health impacts as a result of the scheme); people with disabilities; and to protect the elderly. See, University of Adelaide Future of Employment and Skills Research Centre, Cashless Debit Card Baseline Data Collection in the Goldfields Region: Qualitative Findings, February 2019; and ORIMA, Cashless Debit Card Trial Evaluation – Final Evaluation Report, August 2017.

[91]        Social Security (Administration) Act 1990, section 124PS. This requires that an evaluation be completed within six months, and be conducted by an independent evaluation expert with significant expertise in the social and economic aspects of welfare policy, who must consult trial participants and make recommendations.

[92]        Item 51 of the bill.

[93]        Under existing cashless welfare arrangement rules, 80 per cent of participants' welfare payments are restricted. Under these amendments, participants in the Cape York area would be subject to a 50 per cent restriction of payments unless the Queensland Commission has otherwise set a restriction in their case. Participants in the Northern Territory would be subject to restrictions of 50 to 70 per cent (those referred by child protection). It is proposed that participants transitioning from income management to the cashless welfare scheme would keep their existing rate at which welfare payments are restricted (which are between 50 to 70 per cent).

[94]        See the third reading of the bill (as agreed to on 27 November 2019 in the House of Representatives), schedule 1, item 39.

[95]        As set out in the initial analysis, at March 2017, 75 per cent of participants in the Ceduna trial area, and 80 per cent of participants in the East Kimberley, were Aboriginal and/or Torres Strait Islander. In 2019, 43 per cent of participants in the Goldfields trial site were Indigenous. In 2016, approximately 90 per cent of people subject to income management in the Northern Territory were indigenous. See Parliamentary Joint Committee on Human Rights, Report 6 of 2019, (5 December 2019) p. 43.

[96]        The statement of compatibility lists the objectives as: 'reducing immediate hardship and deprivation, reducing violence and harm, encouraging socially responsible behaviour and reducing the likelihood that welfare payment recipients will remain on welfare and out of the workforce for extended periods of time', statement of compatibility, p. 19.

[97]        The full analysis of these trial evaluations are outlined in the preliminary international human rights legal advice.

[98]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Social Services Legislation Amendment (Drug Testing Trial) Bill 2019, Report 1 of 2020; [2020] AUPJCHR 24.

[99]          Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019)
pp. 54-63.

[100]          Explanatory memorandum, p. 29.

[101]          An employment pathway plan sets out particular activities certain recipients must do in order to receive their Newstart Allowance or Youth Allowance payments.

[102]          Explanatory memorandum, p. 26.

[103]          Explanatory memorandum, p. 4.

[104]          International Covenant on Civil and Political Rights (ICCPR), article 17.

[105]          International Covenant on Economic, Social and Cultural Rights (ICESCR), article 9.

[106]          ICESCR, article 11.

[107]        ICCPR, articles 2, 16 and 26, and ICESCR, article 2. It is further protected with respect to persons with disabilities by the Convention on the Rights of Persons with Disabilities, article 2.

[108]        This is acknowledged in the statement of compatibility, p. 32.

[109]        Note that Schedule 1, item 3, proposed section 38FA of the Social Security Act 1991 would enable the minister to make rules providing for the giving and taking samples of persons' saliva, urine or hair; dealing with such samples; carrying out drug tests; confidentiality and disclosure of results of drug test and keeping; and destroying records relating to samples or drug tests.

[110]        See, Social Security (Administration) Act 1999, schedule 1, item 28, proposed new subsection 123UFAA(1A).

[111]        In compliance with a notice given under Social Security (Administration) Act 1999, subsection 63(4). See Schedule 1, items 4 and 7 of the bill.

[112]        See Schedule 1, items 4 and 7 of the bill.

[113]        Statement of compatibility, p. 30.

[114]        Statement of compatibility, p. 31.

[115]        See, statement of compatibility, p. 27.

[116]        Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019)
pp. 54-63.

[117]        Having regard to the comments made by the Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 10 of 2017 (6 September 2017) pp. 85-91.

[118]        The minister's response to the committee's inquiries was received on 20 December 2019. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[119]        Furthermore, no information is provided as to what other barriers to attaining employment exist in these locations, including a lack of available jobs. See, Sue Olney, 'Should Love Conquer Evidence in Policy-Making? Challenges in Implementing Random Drug-Testing of Welfare Recipients in Australia', Australian Journal of Public Administration, vol. 77, no. 1, 2017, pp. 114-119.

[120]        Drug-testing of welfare recipients has been undertaken in New Zealand; and legislation providing for such testing has been passed in the United States in: Alabama, Arkansas, Arizona, Florida, Georgia, Kansas, Michigan, Mississippi, Missouri, North Carolina, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin. Additionally, welfare-related drug-testing programs have previously been considered in the United Kingdom and Canada.

[121]        See, for example, Robert Crew and Belinda Creel, ‘Assessing the Effects of Substance Abuse Among Applicants for TANF Benefits’, Journal of Health and Social Policy, vol 17, no. 1, 2003, pp. 39;53; and US Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, Drug testing welfare recipients: recent proposals and continuing controversies, 2011. See also, Economic and Social Research Council, Welfare conditionality project 2013-2018 – Final findings report, 2018; Think Progress, What 7 states discovered after spending more than $1 million drug testing welfare recipients, 2015; Michelle Price, ‘Only 12 test positive in Utah welfare drug screening’, KSL, 23 August 2013.

[122]        See the definition of 'positive drug test' in Schedule 1, item 1, which relevantly means an indication by a drug test that a testable drug was present in a sample of the person’s saliva, urine or hair.

[123]        See, Scott Macdonald et al, 'Drug testing and mandatory treatment for welfare recipients', International Journal on Drug Policy, vol. 12, 2001, pp. 249-257. See also, Australian National Council on Drugs, 'Position Paper: Drug Testing', August 2013, p. 2.

[124]        See, for example, Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures Measures (16 March 2016) pp. 60-61. See also Eleventh Report of 2013: Stronger Futures in the Northern Territory Act 2012 and related legislation (June 2013) pp. 45-62.

[125]        See Guides to Social Policy Law, Social Security Guide, version 1.260, released 2 January 2020, 3.1.14.40, available at: https://guides.dss.gov.au/guide-social-security-law/3/1/14/40

[126]        The right to an adequate standard of living is set out in article 11(1) of the International Covenant on Economic, Cultural and Social Rights. It requires that the State party take steps to ensure the availability, adequacy and accessibility of food, clothing, water and housing for all people in its jurisdiction.

[127]        Schedule 1, item 28, proposed paragraph 123UFAA(1A) (c).

[128]        Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 10 of 2017, pp. 89-91.

[129]          This entry can be cited as: Parliamentary Joint Committee on Human Rights, Treasury Laws Amendment (International Tax Agreements) Bill 2019, Report 1 of 2020; [2020] AUPJCHR 25.

[130]          Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019)
pp. 64-66.

[131]          Explanatory memorandum, p. 5.

[132]          Explanatory memorandum, p. 43.

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

[134]          Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019)
pp. 64-66.

[135]          The minister's response to the committee's inquiries was received on 18 December 2019. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

Dissenting Report by Labor and Greens members[1]

[1]          This section can be cited as Parliamentary Joint Committee on Human Rights, Advice Only, Report 1 of 2020; [2020] AUPJCHR 26.

[2]          As the power to make a determination under proposed section 36B would apply to persons aged 14 or over, and proposed section 36D could apply to those aged 10 or over.

[3]          International Covenant on Civil and Political Rights; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4]          Committee against Torture, General Comment No.4 (2017) on the implementation of article 3 in the context of article 22 (9 February 2018).

[5]          International Covenant on Civil and Political Rights, article 2 (the right to an effective remedy). See, for example, Singh v Canada, UN Committee against Torture Communication No.319/2007 (30 May 2011) [8.8]-[8.9]; Alzery v Sweden, UN Human Rights Committee Communication No. 1416/2005 (20 November 2006) [11.8].

[6]          Australian Citizenship Act, section 52.

[7]          See Singh v Canada, UN Committee against Torture Communication No.319/2007
(30 May 2011) [8.8]-[8.9].

[8]          Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill 2019 (the bill), item 17.

[9]          Items 10, 11 and 15 of the bill. The minister would be granted the power to make a notifiable instrument to exclude any part of the Northern Territory from the trial area, reflecting the power the minister also has to make such a notifiable instrument in relation to Cape York.

[10]        The Cashless Debit Card would be trialled in the Northern Territory to 30 June 2021 and in the Cape York area until 31 December 2021, see item 17 of the bill.

[11]        As set out in the Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2020), pp. 39-53, at March 2017, 75 per cent of participants in the Ceduna trial area, and 80 per cent of participants in the East Kimberley, were Aboriginal and/or Torres Strait Islander. In 2019, 43 per cent of participants in the Goldfields trial site were Indigenous. In 2016, approximately 90 per cent of people subject to income management in the Northern Territory were indigenous. See Report 6 of 2019, (5 December 2019) p. 43.

[12]        The statement of compatibility lists the objectives as: 'reducing immediate hardship and deprivation, reducing violence and harm, encouraging socially responsible behaviour and reducing the likelihood that welfare payment recipients will remain on welfare and out of the workforce for extended periods of time', statement of compatibility, p. 19.

[13]        The full analysis of these trial evaluations are outlined in the preliminary international human rights legal advice.

[14]        Explanatory memorandum, p. 29.

[15]        An employment pathway plan sets out particular activities certain recipients must do in order to receive their Newstart Allowance or Youth Allowance payments.

[16]        See the definition of 'positive drug test' in Schedule 1, item 1, which relevantly means an indication by a drug test that a testable drug was present in a sample of the person’s saliva, urine or hair.

[17]        See, Scott Macdonald et al, 'Drug testing and mandatory treatment for welfare recipients', International Journal on Drug Policy, vol. 12, 2001, pp. 249-257. See also, Australian National Council on Drugs, 'Position Paper: Drug Testing', August 2013, p. 2.

[18]        The right to an adequate standard of living is set out in article 11(1) of the International Covenant on Economic, Cultural and Social Rights. It requires that the State party take steps to ensure the availability, adequacy and accessibility of food, clothing, water and housing for all people in its jurisdiction.