Footnotes
CHAPTER 1 - Introduction
[1] National
Human Rights Consultation Committee, National Human Rights Consultation
Report, September 2009, www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/report
(accessed 30 November 2010).
[2] House of
Representatives Hansard, 30 September 2010, p. 271.
[3] The
material in this part of the committee's report is based substantially on
National Human Rights Consultation Committee, National Human Rights Consultation
Report, September 2009, www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/report
(accessed 30 November 2010).
[4]
National Human Rights Consultation Committee, Human Rights
Consultation Report, September 2009, p. 113.
[5]
National Human Rights Consultation Committee, Human Rights
Consultation Report, September 2009, pp 112-113.
[6] [1975] ATS
40; [1980] ATS 23; [1976] ATS 5; [1983] ATS 9; [1989] ATS 21; [1991] ATS 4;
[2008] ATS 12.
[7] [1991] ATS
39; [2009] ATS 5; [2009] ATS 19.
[8] [1975] ATS
40; [1989] ATS 21.
[9] Liberty
Victoria, Submission 12, p. 3.
[10] An amicus
curiae (Latin for 'friend of the court') is someone, not a party to a case,
who volunteers to offer information to assist a court in deciding a matter. The
decision on whether to admit the information lies at the discretion of the
court.
[11] Under
section 46PV of the AHRC Act, the amicus curiae function is vested in
the special-purpose Commissioners rather than the Commission itself.
[12] Section 11
of the AHRC Act.
[13] See, for
example, section 48 of the Sex Discrimination Act 1984 and section 53 of
the Age Discrimination Act 2004.
[14] Discrimination
Act 1991 (ACT); Anti-Discrimination Act 1977 (NSW);
Anti-Discrimination Act (NT); Anti-Discrimination Act 1991 (Qld);
Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1998 (TAS);
Equal Opportunity Act 2010 (Vic); Equal Opportunity Act 1984 (WA).
[15] See the Human
Rights Act 2004 (ACT) and the Charter of Human Rights and
Responsibilities Act 2006 (Vic).
[16] Section 37
of the Human Rights Act 2004 (ACT); and section 28 of the Charter
of Human Rights and Responsibilities Act 2006 (Vic). Section 37 of the Human
Rights Act 2004 (ACT) only requires compatibility statements in relation to
bills 'presented to the Legislative Assembly by a Minister'.
[17] Section 38
of the Human Rights Act 2004 (ACT); section 30 of the Charter
of Human Rights and Responsibilities Act 2006 (Vic).
[18] National
Human Rights Consultation Committee, Human Rights Consultation Report,
September 2009, p. 120. See also Civil Liberties Australia, Submission 33,
pp 9-10.
[19] National
Human Rights Consultation Committee, Human Rights Consultation Report,
September 2009, p. 121.
[20] National
Human Rights Consultation Committee, Human Rights Consultation Report,
September 2009, p. 122.
[21] National
Human Rights Consultation Committee, Human Rights Consultation Report, September
2009, pp 3-4.
[22] National
Human Rights Consultation Committee, Human Rights Consultation Report, September
2009, pp 3-4.
[23] National
Human Rights Consultation Committee, Human Rights Consultation Report,
September 2009, p. 383.
[24] National
Human Rights Consultation Committee, Human Rights Consultation Report,
September 2009, recommendations 6, 7, 13, 18 & 19, pp xxxi, xxxiii &
xxxiv.
[25] Attorney-General's
Department, 'Australia's Human Rights Framework', www.ag.gov.au/humanrightsframework
(accessed 30 November 2010).
[26] Attorney-General's
Department, 'Australia's Human Rights Framework', www.ag.gov.au/humanrightsframework
(accessed 30 November 2010).
[27] Australian
Government, Australia's Human Rights Framework, April 2010, p. 3.
[28] Australian
Government, Australia's Human Rights Framework, April 2010, p. 1.
CHAPTER 2 - Overview of the bills
[1]
Explanatory Memorandum (EM), p. 1.
[2]
Note that, with the commencement of the Parliamentary
Joint Committee on Law Enforcement Act 2010 on 25 November 2010, the
Parliamentary Joint Committee on the Australian Crime Commission was renamed
the Parliamentary Joint Committee on Law Enforcement.
[3]
EM, p. 3.
[4]
EM, p. 3.
[5]
Subsection 38(1) of the Acts Interpretation Act 1901 means that
the reference to 'Acts' in subclause 7(b) is limited to Commonwealth Acts.
[6]
EM, p. 4.
[7]
EM, p. 4.
[8]
EM, p. 4.
[9]
EM, p. 4.
[10]
EM, p. 4.
[11]
Attorney-General, the Hon Robert McClelland MP, 'Enhancing parliamentary
scrutiny of human rights', Media Release, 2 June 2010.
[12]
House of Representatives Hansard, 30 September 2010, p. 271.
[13]
House of Representatives Hansard, 30 September 2010, pp 271-272.
[14]
House of Representatives Hansard, 30 September 2010, p. 272.
[15]
EM, p. 5.
[16]
EM, p. 5.
[17]
EM, p. 5.
[18]
EM, p. 5.
CHAPTER 3 - Key issues
[1] See, for
example, Amnesty International Australia, Submission 6, p. 2; Public
Interest Law Clearing House, Submission 8, p. 1; Australian Lawyers for
Human Rights, Submission 10, p. 2; Liberty Victoria, Submission
12, p. 2; National Children's and Youth Law Centre, Submission 15,
p. 1; Australian Privacy Foundation, Submission 17, p. 2; UnitingJustice
Australia, Submission 19, pp 2-3; Federation of Community Legal Centres
(Vic), Submission 23, p. 1; Law Council of Australia, Submission
31, pp 3 & 13; Victoria Legal Aid, Submission 32, p. 1; Civil
Liberties Australia, Submission 33, pp 5-7; Office of the Victorian
Privacy Commissioner, Submission 36, p. 2; ACT Human Rights Commission, Submission
38, p. 1; Professor David Kinley and Ms Christine Ernst, Sydney Law School,
Submission 44, p. 1; Australian Human Rights Commission, Submission
47, p. 2; Human Rights Council of Australia, Submission 48, pp 1-2;
International Commission of Jurists Victoria, Submission 49, p. 4;
Council of Social Service of NSW, Submission 62, p. 1.
[2] See, for
example, Human Rights Law Resource Centre, Submission 1, pp 1-2; Amnesty
International Australia, Submission 6, p. 2; Public Interest Law
Clearing House, Submission 8, p. 2; Liberty Victoria, Submission 12,
p. 2; Aboriginal Legal Service of Western Australia, Submission 16, p. 5;
Association of Children's Welfare Agencies, Submission 18, pp 2 and 3; UnitingJustice
Australia, Submission 19, p. 2; Gilbert and Tobin Centre of Public Law, Submission
20, pp 2-3; Australians for Native Title and Reconciliation, Submission
29, p. 3; Women's Legal Services NSW, Submission 30, p. 3; Civil
Liberties Australia, Submission 33, pp 4 and 21; Castan Centre for Human
Rights Law, Submission 35, p. 2; Dr Michael Head, Submission 39, p.
1; NSW Young Lawyers Human Rights Committee, Submission 43, pp
4-5; Human Rights Council of Australia, Submission 48, p. 2; New South
Wales Council for Civil Liberties, Submission 55, p. 5; Council of
Social Service of NSW, Submission 62, p. 1.
[3] Submission
31, p. 13.
[4] Mr Nicholas
Cowdery AM QC, Law Council of Australia, Committee Hansard, 4 November
2010, p. 2.
[5] Submission
47, p. 2.
[6] Submission
48, p. 2 (italics in original).
[7] Submission
8, p. 1.
[8] Ms Emily
Howie, Human Rights Law Resource Centre, Committee Hansard, 25 November
2010, p. 15.
[9] Submission
44, p. 1.
[10] Submission
6, p. 2.
[11] See, for
example, Public Interest Advocacy Centre, Submission 50, p. 3; Mallesons
Stephen Jaques Human Rights Law Group, Submission 77, p. 2; Mr Andrew
Murray, Submission 79, p. 3.
[12] Submission
46, p. 5.
[13] Submission
46, p. 4.
[14] Submission
46, p. 4.
[15] Submission
17, p. 3.
[16]
Submission 11, p. 2. See also Aboriginal Legal Service of Western
Australia, Submission 16, p. 3; Arts Law Centre of Australia, Submission
24, pp 2-3; National Tertiary Education Union, Submission 22, p. 3.
[17] Submission
22, p. 5. A number of other submissions expressed concern about the
omission of the Declaration on the Rights of Indigenous Peoples: see, for
example, Aboriginal Legal Service of Western Australia, Submission 16,
p. 3; Arts Law Centre of Australia, Submission 24, pp 2-3; Victoria
Legal Aid, Submission 32, pp 1-2; Human Rights Council of Australia, Submission
48, pp 2-3; Mallesons Stephen Jaques Human Rights Law Group, Submission
77, p. 2.
[18] Submission
29, p. 5.
[19] Australian
Council of Trade Unions, Submission 27, p. 7. See, for example, the
ILO's Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87) and Right to Organise and Collective
Bargaining Convention, 1949 (No. 98), both of which have been ratified by
Australia.
[20] Submission
27, p. 7. A number of other submissions expressed concern about the
omission of the ILO conventions: see, for example, National Tertiary Education
Union, Submission 22, p. 3; Centre for Comparative Constitutional
Studies, Melbourne University, Submission 46, p. 4; Australian Human
Rights Commission, Submission 47, p. 4; Mallesons Stephen Jaques Human
Rights Law Group, Submission 77, p. 2.
[21] Submission
24, p. 3.
[22] Submission
17, p. 2.
[23] Submission
21, p 3.
[24] Committee
Hansard, 25 November 2010, p. 16.
[25] Submission
47, p. 3.
[26] Submission
47, pp 3-4.
[27] Committee
Hansard, 25 November 2010, pp 13 and 14.
[28] Submission
47, p. 4.
[29] Submission
47, p. 4.
[30] See, for
example, Human Rights Law Resource Centre, Submission 1, p. 4; NSW
Disability Discrimination Legal Centre, Submission 11, p. 1; Liberty
Victoria, Submission 12, p. 3; Arts Law Centre of Australia, Submission
24, p. 2; National Association of Community Legal Centres, Submission 28,
p. 2; NSW Young Lawyers Human Rights Committee, Submission 43, p. 3.
[31] Liberty
Victoria, Submission 12, p. 3.
[32] Committee
Hansard, 4 November 2010, p. 19.
[33] Submission
11, pp 1-2.
[34] Submission
61, p. 5.
[35] See, for
example, Human Rights Law Resource Centre, Submission 1, pp 4-5;
National Association of Community Legal Centres, Submission 28, p. 2; NSW
Young Lawyers Human Rights Committee, Submission 43, p. 3; Queensland
Council for Civil Liberties, Submission 45, p. 2; Mr Donald K Anton,
Adjunct Professor Peter Bailey, Mr Kevin Boreham, Ms Marianne van Galen Dickie,
Dr Penelope Mathew, Mr Wayne Morgan, Associate Professor Simon Rice OAM,
Professor Kim Rubenstein, Ms Ruth Townsend and Mr Matthew Zagor, Submission
51, p. 4; Law Society of South Australia, Submission 56, p. 1.
[36] Submission
35, pp. 4-5.
[37] Submission
35, p. 5.
[38] Submission
1, pp 4-5.
[39] Submission
11, p. 2.
[40] Submission
11, p. 1.
[41] Submission
51, p. 4.
[42] Submission
22, p. 3.
[43] Submission
33, p. 8.
[44] Committee
Hansard, 4 November 2010, p. 15.
[45] Committee
Hansard, 25 November 2010, p. 16.
[46] Committee
Hansard, 4 November 2010, p. 18.
[47] Committee
Hansard, 4 November 2010, p. 35.
[48] Submission
7, p. 1.
[49] Submission
42, p. 2.
[50] Submission
42, p. 2.
[51] Submission
41, p. 15.
[52] Submission
13, pp 2-3.
[53] Submission
45, p. 1.
[54] Submission
78, Attachment 2, p. 1.
[55] Submission
78, Attachment 2, p. 1; see also Committee Hansard, 25 November
2010, p. 2.
[56] Committee
Hansard, 25 November 2010, p. 2.
[57] Committee
Hansard, 25 November 2010, p. 28.
[58] Committee
Hansard, 25 November 2010, p. 32.
[59] Committee
Hansard, 25 November 2010, p. 32.
[60] Committee
Hansard, 25 November 2010, p. 32.
[61] See, for
example, Liberty Victoria, Submission 12, p. 5; Australian Privacy
Foundation, Submission 17, p. 2; Law Council of Australia, Submission
31, p. 19; Queensland Council for Civil Liberties, Submission 45, p.
2; Sydney Centre for International Law, Submission 53, p. 1.
[62] See, for
example, UnitingJustice Australia, Submission 19, p. 3; National Association
of Community Legal Centres, Submission 28, p. 2; Women's Legal Services
NSW, Submission 30, p. 2; Queensland Council for Civil Liberties, Submission
45, p. 2; Women's International League for Peace and Freedom, Submission
64, pp 3-4.
[63] Committee
Hansard, 4 November 2010, p. 3.
[64] Submission
79, p. 4.
[65] Submission
6, p. 5.
[66] Submission
6, p. 5. Liberty Victoria advised that recent inquiries by the UK Committee
have considered human rights in relation to older people in healthcare,
counter-terrorism policy, the treatment of asylum seekers, mental healthcare,
deaths in custody, and human trafficking: Submission 6, p. 5.
[67] Submission
12, pp 4-5.
[68] Submission
46, pp 12-13.
[69] Submission
1, p. 5.
[70] See, for
example, Amnesty International, Submission 6, p. 6; Liberty Victoria, Submission
12, p. 5; National Children's and Youth Law Centre, Submission 15,
p. 3; UnitingJustice Australia, Submission 19, p. 3; Australians for
Native Title and Reconciliation, Submission 29, p. 7; Women's Legal
Services NSW, Submission 30, p. 2; Law Council of Australia, Submission
31, p. 20; Victoria Legal Aid, Submission 32, p. 2; Castan Centre
for Human Rights Law, Submission 35, p. 6; Australian Human Rights
Commission, Submission 47, p. 2; Centre for Comparative Constitutional
Studies, Melbourne University, Submission 46, pp 12-13; International
Commission of Jurists Victoria, Submission 49, p. 12; Law Society of
South Australia, Submission 56, pp 1-2.
[71] Committee
Hansard, 25 November 2010, p. 15.
[72] Submission
31, p. 20.
[73] Committee
Hansard, 25 November 2010, p. 32.
[74] Committee
Hansard, 25 November 2010, p. 33.
[75] See, for
example, NSW Disability Discrimination Legal Centre, Submission 11, p.
3; Law Council of Australia, Submission 31, pp 17-18; Queensland Council
for Civil Liberties, Submission 45, p. 2; International Commission of
Jurists Victoria, Submission 49, p. 8.
[76] See, for
example, Human Rights Law Resource Centre, Submission 1, pp 7-8; Liberty
Victoria, Submission 12, p. 5; Victoria Legal Aid, Submission 32,
p. 2; Centre for Comparative Constitutional Studies, Melbourne University, Submission
46, p. 13.
[77] Submission
46, p. 13. See also, for example, Law Council of Australia, Submission
31, p. 18; Mr Benjamin Lee and Mr Chris Sidoti, Submission 61, p.
11.
[78] Submission
79, p. 4.
[79] Submission
45, p. 2.
[80]
Submission 31, p. 22.
[81] See, for
example, Dr Julie Debeljak, Submission 25, p. 10; Law Council of
Australia, Submission 31, p.19; International Commission of Jurists
Victoria, Submission 49, p. 8.
[82] Submission
47, p. 5.
[83] See, for
example, Federation of Community Legal Centres (Vic), Submission 23, p.
3; Law Institute of Victoria, Submission 66, p. 2.
[84] Submission
12, p. 3.
[85] Submission
46, p. 7.
[86] Submission
50, pp 4-5.
[87] Submission
61, p. 12. See also Human Rights Law Resource Centre, Submission 1,
p. 2; Castan Centre for Human Rights Law, Submission 35, p. 5.
[88] See, for
example, Amnesty International, Submission 6, pp 3-4; Australian Privacy
Foundation, Submission 17, p. 3; UnitingJustice Australia, Submission
19, p. 3; Law Council of Australia, Submission 31, p. 23; Centre for
Comparative Constitutional Studies, University of Melbourne, Submission 46,
p. 10; Mr Donald K Anton, Adjunct Professor Peter Bailey, Mr Kevin Boreham, Ms
Marianne van Galen Dickie, Dr Penelope Mathew, Mr Wayne Morgan, Associate
Professor Simon Rice OAM, Professor Kim Rubenstein, Ms Ruth Townsend and Mr
Matthew Zagor, Submission 51, p. 2.
[89] See, for
example, Human Rights Law Resource Centre, Submission 1, pp 9-11;
Dr Julie Debeljak, Submission 25, p. 7; Law Council of Australia,
Submission 31, pp 25-27; Victoria Legal Aid, Submission 32, p. 2;
NSW Young Lawyers Human Rights Committee, Submission 43, p. 4; Mr Donald
K Anton, Adjunct Professor Peter Bailey, Mr Kevin Boreham, Ms Marianne van
Galen Dickie, Dr Penelope Mathew, Mr Wayne Morgan, Associate Professor Simon
Rice OAM, Professor Kim Rubenstein, Ms Ruth Townsend and Mr Matthew Zagor, Submission
51, p. 5; Law Institute of Victoria, Submission 66, p. 2; Victorian
Equal Opportunity and Human Rights Commission, Submission 75, p. 5.
[90] Submission
12, p. 6.
[91] Submission
43, p. 4.
[92] Submission
38, p. 2.
[93] Submission
25, p. 7.
[94] Submission
9, p. 1.
[95] Submission
54, p. 5.
[96] Submission
75, p. 5.
[97] Submission
75, p. 5.
[98] Submission
1, p. 10.
[99] Submission
48, p. 6.
[100] Submission
48, p. 6.
[101] Submission
20, pp 3-4.
[102] Submission 31, p. 14.
[103] EM, p. 4.
Information available on the Attorney-General's Department's website explains
further that '[s]tatements will form part of, or be attached to, the
Explanatory Memorandum (EM) of a Bill. Therefore statements will be presented
as part of presenting the EM'. In relation to legislative instruments, '[t]he
statement will form part of the explanatory statement (ES) for a legislative
instrument. As part of the ES, it will be lodged with the Office of Legislative
Drafting and Publishing before being tabled in Parliament in accordance with
the Legislative Instruments Act 2003': 'Frequently Asked Questions –
Parliamentary Scrutiny', www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_FrequentlyAskedQuestions-ParliamentaryScrutiny
(accessed 14 January 2011).
[104] Submission
50, p. 7.
[105] Submission
46, p. 10.
[106] Submission
31, p. 23.
[107] Submission
50, p. 8.
[108] Committee
Hansard, 25 November 2010, pp 28-29.
[109] Committee
Hansard, 25 November 2010, p. 29.
[110] Committee
Hansard, 25 November 2010, p. 29.
[111]
See, for example, section 243 of the Australian Securities and Investments
Commission Act 2001, which outlines the duties of the Parliamentary Joint
Committee on Corporations and Financial Services; section 7 of the Parliamentary
Joint Committee on Law Enforcement Act 2010, which outlines the functions
of the Parliamentary Joint Committee on Law Enforcement; and section 215
of the Law Enforcement Integrity Commissioner Act 2006, which
outlines the duties of the Parliamentary Joint Committee on the Australian
Commission for Law Enforcement Integrity.
[112] EM, p. 4.
[113] See the
Attorney-General's Department's website at: 'Frequently Asked Questions –
Parliamentary Scrutiny', at http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_FrequentlyAskedQuestions-ParliamentaryScrutiny
(accessed 12 January 2011).
[114] EM, p. 4.
[115] The committee
notes that this information is included on the Attorney-General's Department's
website at: 'Frequently Asked Questions – Parliamentary Scrutiny', at http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_FrequentlyAskedQuestions-ParliamentaryScrutiny
(accessed 12 January 2011).
OPPOSITION SENATORS' DISSENTING REPORT
[1] The Case
Against a Bill of Rights [Submission to the National Human Rights Consultation
on behalf of the Federal Opposition], 15 June 2009, pp. 10-11.
[2]
Senator the Hon. George Brandis, address to the Australian Financial
Review Legal Debate, Sydney, 13 August 2010.
[3]
National Human Rights Committee Report, 30 September 2009, pp.
168-75.
[4]
Hon Robert McClelland MP, The Protection and Promotion of Human
Rights in Australia, October 2009, p. 3.
[5]
Hon Robert McClelland MP, Australia's Human Rights Framework,
April 2010, p. 8.
[6]
See for instance Mr Barney Cooney, Hansard, 4 November 2010,
L&C, p.28.
[7]
Committee Hansard, 25 November 2010, L&C, p. 2.
[8]
See, for instance, the papers published by the Rule of Law Institute of
Australia, including Coercive Powers: out of control or an invaluable
investigative tool? (2010) and the submission of the Rule of Law Institute
to the Senate Economics Committee's inquiry into the Corporations Amendment
(No. 1) Bill 2010.
[9]
Opposition Submission to the National Human Rights Consultation, op.
cit., p. 1.
[10]
Committee Hansard, 25 November 2010, L&C, p.15.
[11]
The Common Law Bill of Rights [The 2008 McPherson Lecture], The
University of Queensland, 10 March 2008.
[12]
ibid, pp. 23-4.
[13]
Committee Hansard, 4 November 2010, L&C, pp. 22, 26-7.
[14]
Committee Hansard, 4 November 2010, L&C, p. 28.
[15]
op. cit. p. 175.