Footnotes

[1]          Absolute rights are: the right not to be subjected to torture, cruel, inhuman or degrading treatment; the right not to be subjected to slavery; the right not to be imprisoned for inability to fulfil a contract; the right not to be subject to retrospective criminal laws; the right to recognition as a person before the law.

Chapter 1 - New and continuing matters

[1]          See Parliament of Australia website, 'Journals of the Senate', http://www.aph.gov.au/Parliamentary_Business/Chamber_documents/Senate_chamber_documents/Journals_of_the_Senate.

[2]          See Parliamentary Joint Committee on Human Rights, Twenty-fourth Report of the 44th Parliament (23 June 2015) 2.

[3]          See the entry 'Instruments made under the Autonomous Sanctions Act 2011 and the Charter of the United Nations Act 1945' in Parliamentary Joint Committee on Human Rights, Twenty‑eighth Report of the 44th Parliament (17 September 2015) 15-38. The instrument was deferred by the committee in Parliamentary Joint Committee on Human Rights, Thirtieth Report of the 44th Parliament (10 November 2015) 2.

[4]          See Parliamentary Joint Committee on Human Rights, Twenty-first Report of the 44th Parliament (24 March 2015); and Parliamentary Joint Committee on Human Rights, Twenty‑third Report of the 44th Parliament (18 June 2015).

[5]          See Parliamentary Joint Committee on Human Rights, Thirteenth Report of the 44th Parliament (1 October 2014) 6-13; and Parliamentary Joint Committee on Human Rights, Sixteenth Report of the 44th Parliament (25 November 2014) 33-60.

[6]          See Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) 3-69; Parliamentary Joint Committee on Human Rights, Nineteenth Report of the 44th Parliament (3 March 2015) 56-100; and Parliamentary Joint Committee on Human Rights, Thirtieth Report of the 44th Parliament (10 November 2015) 82‑101.

[7]          Parliamentary Joint Committee on Human Rights, Sixteenth Report of the 44th Parliament (25 November 2014) 7-21; and Parliamentary Joint Committee on Human Rights, Twenty‑second Report of the 44th Parliament (13 May 2015) 129-162.

[8]          The Hon. Senator George Brandis QC, Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, second reading speech, Senate Hansard 12 November 2015, 27.

[9]          The Hon. Senator George Brandis QC, Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, second reading speech, Senate Hansard 12 November 2015, 27.

[10]          Although some absolute rights cannot be limited: the right not to be subjected to torture, cruel, inhuman or degrading treatment; the right not to be subjected to slavery; the right not to be imprisoned for inability to fulfil a contract; the right not to be subject to retrospective criminal laws; and the right to recognition as a person before the law.

[11]          The Hon. Senator George Brandis QC, Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, second reading speech, Senate Hansard 12 November 2015, 27.

[12]          See Appendix 2; Parliamentary Joint Committee on Human Rights, Guidance Note 1 - Drafting Statements of Compatibility (December 2014) http://www.aph.gov.au/~/media/Committees/Senate/committee/humanrights_ctte/guidance_notes/guidance_note_1/guidance_note_1.pdf.

[13]          See Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (October 2014) 3.

[14]        See Parliamentary Joint Committee on Human Rights, Sixteenth Report of the 44th Parliament (November 2014) 7.

[15]        Independent National Security Legislation Monitor, Declassified Annual Report (20 December 2012) 6.

[16]        Articles 2, 16 and 26, International Covenant on Civil and Political Rights (ICCPR). Related provisions are also contained in the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), articles 11 and 14(2)(e) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), article 32 of the Convention on the Rights of the Child (CRC) and article 27 of the Convention on the Rights of Persons with Disabilities (CRPD).

[17]        Article 9, ICCPR.

[18]        Article 12, ICCPR.

[19]        Article 14, ICCPR.

[20]        Article 17, ICCPR, and article 16, CRC.

[21]        Article 19, ICCPR and articles 13 and 14, CRC.

[22]        Article 22, ICCPR.

[23]        Articles 23 and 24, ICCPR.

[24]        Article 7, ICCPR, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

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

[26]        Article 9 and 11, ICESCR.

[27]        Article 3, CRC.

[28]        See Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (October 2014) 3.

[29]        Independent National Security Legislation Monitor, Declassified Annual Report (20 December 2012) 30.

[30]        Lodhi v R [2006] NSWCCA 121 per Spigelman CJ at [66].

[31]        Independent National Security Legislation Monitor, Declassified Annual Report (20 December 2012) 30.

[32]        For example, in its submission to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) inquiry into the bill the Law Council of Australia warned that control orders could be sought against persons to prevent online banking, online media or community and/or religious meetings. See, Law Council of Australia, Submission 16, Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Counter-Terrorism Legislation Amendment Bill (No.1) 2014.

[33]        Recommendation 37, Australian Government, Council of Australian Governments Review of Counter-Terrorism Legislation (2013).

[34]        See Attorney General's Department, Submission 1, INSLM, Inquiry into Control Order Safeguards (November 2015) 2.

[35]        See Attorney General's Department, Submission 1, INSLM, Inquiry into Control Order Safeguards (November 2015) 2.

[36]        Explanatory Memorandum (EM) 42.

[37]        EM 16.

[38]        EM 15.

[39]        United Nations Human Rights Committee, General Comment No. 35 Article 9 (Liberty and Security of person), UN Doc CCPR/C/GC/35, 1-2 [Footnotes omitted].

[40]        Secretary of State for the Home Department v JJ & Others [2007] UKHL 45; Secretary of State for the Home Department v E & Another [2007] UKHL 47; Secretary of State for the Department v MB & AF [2007] UKHL 46; Guzzardi v Italy, Application 7367/76, Decision of 11 June 1980.

[41]        AP v Secretary of State for the Home Department [2010] UKSC 24. See also Guzzardi v Italy, Application 7367/76, Decision of 11 June 1980.

[42]        AP v Secretary of State for the Home Department [2010] UKSC 24.

[43]        EM 18.

[44]        EM 21-22.

[45]        See item 46 of Schedule 2 to the bill, proposed new section 104.28AA(2).

[46]        EM 55.

[47]        See item 46 of Schedule 2 to the bill, proposed new section 104.28AA(4).

[48]        See item 46 of Schedule 2 to the bill, proposed new section 104.28AA(4).

[49]        EM 55.

[50]        EM, Statement of Compatibility (SoC) 17.

[51]        EM, SoC 17.

[52]        See subsection 105.4(4) of the Criminal Code Act 1995 (Criminal Code). There is also the power for a PDO to be issued if a terrorist act has occurred within the last 28 days and it is reasonably necessary to detain a person to preserve evidence (subsection 105.4(6)).

[53]        See subsection 105.4(5) of the Criminal Code.

[54]        EM, SoC 22.

[55]        EM 60.

[56]        EM, SoC 22.

[57]        Council of Australian Governments Review of Counter-Terrorism Legislation (2013) 70 and recommendation 39.

[58]        Independent National Security Legislation Monitor, Declassified annual report (20 December 2012) 45.

[59]        Independent National Security Legislation Monitor, Declassified annual report (20 December 2012) 52-53.

[61]        It should also be noted that while the PDO is restricted to a maximum of 48 hours detention, there is an agreement with the states and territories that there is a nationally consistent regime for PDOs. The main difference is that while federal PDOs are restricted to 48 hours detention, state and territory PDOs can enable the detention of a person for up to 14 days. Any changes to the imminent threshold at the federal level are likely to be reflected in the nationwide PDO regime: see Council of Australian Governments, Inter-governmental Agreement on Counter-terrorism Laws (25 June 2004) which provides for consultation between the Commonwealth and the states and territories on amendments to counter‑terrorism laws.

[62]        EM, SoC 22.

[63]        EM 12.

[64]        EM 35.

[65]        EM 28.

[66]        EM 28.

[67]        EM 29.

[68]        See item 53 of Schedule 9 (proposed new section 299) and item 39 of Schedule 10 (proposed new section 65B).

[69]        See item 53 of Schedule 9 (proposed new section 299) and item 39 of Schedule 10 (proposed new section 65B).

[70]        United Nations Human Rights Committee, General Comment 32: Right to equality before courts and tribunals and to a fair trial (2007) paragraph 13.

[71]        EM, SoC 32.

[72]        See item 19 of Schedule 15 to the bill, proposed new subsection 38J(2).

[73]        See item 19 of Schedule 15 to the bill, proposed new subsection 38J(3).

[74]        See item 19 of Schedule 15 to the bill, proposed new subsection 38J(4).

[75]        See item 19 of Schedule 15 to the bill, proposed new subsection 38J(1).

[76]        See section 38I of the National Security Information (Criminal and Civil Proceedings) Act 2004 (the NSI Act).

[77]        See item 12 of Schedule 15 to the bill.

[78]        See item 15 of Schedule 15 to the bill.

[79]        EM, SoC 24.

[80]        See Part 3A of the NSI Act.

[81]        See section 7 of the NSI Act which states that 'information' means that which is defined in section 90.1 of the Criminal Code.

[82]        See section 104.5(2A) of the Criminal Code.

[83]        See subsections 104.12A(2) and (3) of the Criminal Code.

[84]        EM, SoC 24.

[85]        EM, SoC 24.

[86]        EM 122.

[87]        See A and Others v the United Kingdom, European Court of Human Rights, Application no. 3455/05 (19 February 2009) 205.

[88]        See A and Others v the United Kingdom, European Court of Human Rights, Application no. 3455/05 (19 February 2009) 220. See also the recent judgment of Sher and Others v the United Kingdom, European Court of Human Rights, Application no. 520/11 (20 October 2015) which states, at 149, that 'the authorities must disclose adequate information to enable the applicant to know the nature of the allegations against him and have the opportunity to lead evidence to refute them. They must also ensure that the applicant or his legal advisers are able effectively to participate in court proceedings concerning continued detention'.

[89]        See Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28 per Lord Hope at paragraph 87 and per Lord Scott at paragraph 96.

[90]        Council of Australian Governments Review of Counter-Terrorism Legislation (2013), available at: http://www.ag.gov.au/Consultations/Documents/COAGCTReview/Final%20Report.PDF.

[91]        Council of Australian Governments Review of Counter-Terrorism Legislation (2013) 59, recommendation 31.

[92]        EM, SoC 25.

[93]        EM, SoC 25.

[94]          'The expression 'public order (ordre public)'...may be defined as the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded. Respect for human rights is part of public order (ordre public)': Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights U.N. Doc. E/CN.4/1985/4, Annex (1985), clause 22.

[95]          See UN Human Rights Committee, General comment No 34 (Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, paras 21-36 (2011).

[96]          See UN Human Rights Committee, General comment No 34 (Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, para 11.

[97]          Handyside v United Kingdom (1976) 1 EHRR 737.

[98]          See UN Human Rights Committee, General comment No 34 (Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, para 35.

[99]          Migration Regulations 1994 - Specification of Required Health Assessment - IMMI 14/042 [F2014L00981].

[100]          The prohibited grounds 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.

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

[102]          Althammer v Austria HRC 998/01, [10.2].

[103]          See Division 4C of Part 4-1 of Chapter 4 of the Telecommunications (Interception and Access) Act 1979.

[104]          See subparagraphs 180L(2)(b)(v) and 180T(2)(b)(v) of the Telecommunications (Interception and Access) Act 1979.

[105]          See Parliamentary Joint Committee on Human Rights, Fifteenth Report of the 44th Parliament (November 2014) 10-22; Parliamentary Joint Committee on Human Rights, Twentieth Report of the 44th Parliament (18 March 2015) 39-74; and Parliamentary Joint Committee on Human Rights, Thirtieth Report of the 44th Parliament (10 November 2015) 133-139.

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

[107]          Article 14, ICCPR.

[108]          Article 17, ICCPR.

[109]          Article 19, ICCPR.

[110]          Explanatory Statement, Statement of Compatibility 6.

Chapter 2 - Australian Immunisation Register Bill 2015

[1]          Parliamentary Joint Committee on Human Rights, Twenty-ninth Report of the 44th Parliament (18 August 2015) 4-8.

[2]          This includes contact details, Medicare number, vaccination status, general practitioner information regarding non-vaccination status and other information relevant to vaccinations.

[3]          Explanatory Memorandum (EM), Statement of Compatibility (SoC) 6.

[4]          See clause 10 of the Australian Immunisation Register Bill 2015.

[5]          EM, SoC 6.

[6]          EM 15.

[7]          See Appendix 2, Letter from the Hon Sussan Ley MP, Minister for Health, to the Hon Philip Ruddock MP (dated 28 October 2015) 1-2.

[8]          Senate Standing Committee for the Scrutiny of Bills, Eleventh Report of 2015 (14 October 2015) 651. 

[9]          See Appendix 2, Letter from the Hon Sussan Ley MP, Minister for Health, to the Hon Philip Ruddock MP (dated 28 October 2015) 2-3.

[10]          See Senate Standing Committee on Foreign Affairs, Defence and Trade, The effectiveness of Australia's military justice system (June 2005).

[11]          Defence Legislation Amendment Act 2006.

[12]          See Explanatory Memorandum (EM) to the Defence Legislation Amendment Bill 2006, notes on clauses 3(b).

[13]          Lane v Morrison [2009] HCA 29.

[14]          See EM to the Military Justice (Interim Measures) Bill (No. 1) 2009, 1.

[15]          Parliamentary Joint Committee on Human Rights, Sixth Report of 2013 (15 May 2013) 40.

[16]          Parliamentary Joint Committee on Human Rights, Twenty-second Report of the 44th Parliament (13 May 2015) 42-46.

[17]          Parliamentary Joint Committee on Human Rights, Twenty-sixth Report of the 44th Parliament (18 August 2015) 26-33.

[18]          See the Military Justice (Interim Measures) Amendment Act 2011 (extended the period of appointment to four years) and Military Justice (Interim Measures) Amendment Act 2013 (extended the period of appointment to six years).

[19]        The legislative instrument would not be subject to disallowance.

[20]        See, for example, Cooper v United Kingdom, European Court of Human Rights, Application No. 48843/99, 26 January 2005 (cf the earlier system of military justice which raised concerns regarding the perception of independence and impartiality: Findlay v United Kingdom European Court of Human Rights, (1997) 24 EHRR 221).

[21]        See items 2 and 4 of Schedule 3 of the Military Justice (Interim Measures) Act (No. 1) 2009.

[22]        See item 8 of Schedule 3 of the Military Justice (Interim Measures) Act (No. 1) 2009.

[23]        See item 8(2) of Schedule 3 of the Military Justice (Interim Measures) Act (No. 1) 2009.

[24]        Campbell and Fell v United Kingdom, European Court of Human Rights, Application No. 7819/77 and 7878/77, 28 June 1984, para 80. See also Morris v the United Kingdom, European Court of Human Rights, Application No. 38784/97, 26 May 2002, para 68 and Cooper v United Kingdom, European Court of Human Rights, Application No. 48843/99, 26 January 2005, para 118.

[25]        Cooper v United Kingdom, European Court of Human Rights, Application No. 48843/99, 26 January 2005, para 104.

[26]        See UN Human Rights Committee, General Comment No. 32 (2007) para [22].

[27]        See Appendix 1, Letter from Senator the Hon Marise Payne, Minister for Defence, to the Hon Philip Ruddock MP (received 16 November 2015) 1-2.

[28]        See Part XI of the Defence Force Discipline Act 1982.

[29]        See UN Human Rights Committee, General Comment No. 32 (2007) para [22].

[30]          Parliamentary Joint Committee on Human Rights, Twenty-ninth Report of the 44th Parliament (18 August 2015) 9-24.

[31]          Explanatory Memorandum (EM), Statement of Compatibility (SoC) 28.

[32]          EM, SoC 31-32.

[33]          EM, SoC 31.

[34]          EM, SoC 31.

[35]          EM 95.

[36]          EM 94.

[37]          See, for example, Human Rights Committee, General Comment 27 , Freedom of movement (Art.12), U.N. Doc CCPR/C/21/Rev.1/Add.9 (1999).

[38]          See proposed clause 2 of proposed Schedule 1 to the Personally Controlled Electronic Health Records Act 2012 (the PCEHR Act) as proposed to be inserted by item 106 of the bill.

[39]        Section 3 of the PCEHR Act.

[40]        http://health.gov.au/intemet/main/publishing.nsf/Content/ehealth-record.

[41]        See, for example, the comments from the Consumers Health Forum supporting opt-out which are extracted on page 28 of the PCEHR Review.

[42]        Australian Government's 2010 Intergenerational Report.

[43]        See Appendix 1, Letter from the Hon Sussan Ley MP, Minister for Health, to the Hon Philip Ruddock MP (dated 28 October 2015) 3-7.

[44]        See subsection 6(1) of the PCEHR Act.

[45]        See subsection 6(3) of the PCEHR Act.

[46]        EM, SoC 36.

[47]        See proposed new section 7A to the PCEHR Act, item 64 of the bill.

[48]        See Parents FAQ, on the eHealth.gov.au website which states 'Parents or Authorised Representatives who are managing the eHealth record for a person under 18 years old will be notified when the person has taken control of their own eHealth record': see http://www.ehealth.gov.au/internet/ehealth/publishing.nsf/Content/faqs-individuals-parents (accessed 23 September 2015).

[49]        See Appendix 1, Letter from the Hon Sussan Ley MP, Minister for Health, to the Hon Philip Ruddock MP (dated 28 October 2015) 3-7.

[50]        See subsection 6(4) of the the PCEHR Act.

[51]        EM, SoC 35.

[52]        See subsection 6(7) of the PCEHR Act.

[53]        Australian Law Reform Commission (ALRC), Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124), 24 November 2014, see in particular Recommendations 4-1 to 4-12, available from https://www.alrc.gov.au/publications/equality-capacity-disability-report-124.

[54]        See proposed new section 7A to the PCEHR Act, item 64 of the bill.

[55]        See subsection 6(7) of the PCEHR Act.

[56]        EM, SoC 35.

[57]        See UN Committee on the Rights of Persons with Disabilities, General comment No. 1: Article 12: Equal recognition before the law (2014), paragraph 47.

[58]        See Appendix 1, Letter from the Hon Sussan Ley MP, Minister for Health, to the Hon Philip Ruddock MP (dated 28 October 2015) 3-7.

[59]        See subsection 6(7) of the PCEHR Act.

[60]        See subsection 6(7) of the PCEHR Act.

[61]        ALRC, Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124), 24 November 2014, see in particular Recommendations 4-1 to 4-12, available from https://www.alrc.gov.au/publications/equality-capacity-disability-report-124.

[62]        Appendix 2; See Parliamentary Joint Committee on Human Rights, Guidance Note 2 –Offence provisions, civil penalties and human rights (December 2014); http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance_Notes_and_Resources.

[63]        EM, SoC 34.

[64]        The current penalty unit rate is $180 per unit, see section 4AA of the Crimes Act 1914.

[65]        See section 90 (in Division 3 of Part 4) of the Regulatory Powers (Standard Provisions) Act 2014.

[66]        EM, SoC 34.

[67]        See Appendix 1, Letter from the Hon Sussan Ley MP, Minister for Health, to the Hon Philip Ruddock MP (dated 28 October 2015) 7-9.

[68]          Parliamentary Joint Committee on Human Rights, Seventh Report of the 44th Parliament (18 June 2014) 76-81.

[69]          Parliamentary Joint Committee on Human Rights, Seventh Report of the 44th Parliament (18 June 2014) 80.

[70]          Parliamentary Joint Committee on Human Rights, Twenty-second Report of the 44th Parliament (13 May 2015) 66-71.

[71]          See proposed section 7(2AA) of the Social Security Act 1991.

[72]          The prohibited grounds 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.

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

[74]          Althammer v Austria HRC 998/01, [10.2].

[75] EM 55.

[76]          See Appendix 1, Letter from the Hon Jamie Briggs MP, Assistant Minister for Infrastructure and Regional Development, to the Hon Philip Ruddock MP (dated 18 September 2015) 1-2.

[77]          Parliamentary Joint Committee on Human Rights, Twenty-ninth Report of the 44th Parliament (18 August 2015) 25-30.

[78]          Explanatory Memorandum (EM) 46.

[79]          See Appendix 1, Letter from Senator the Hon Michaelia Cash, Minister for Employment, to the Hon Philip Ruddock MP (dated 2 November 2015) 1-2.

[80]          EM 48.

[81]          EM 9.

[82]          See Appendix 1, Letter from Senator the Hon Michaelia Cash, Minister for Employment, to the Hon Philip Ruddock MP (dated 2 November 2015) 2-3.