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]          For more information regarding the committee's previous comments see Parliamentary Joint Committee on Human Rights, Thirty-fourth Report of the 44th Parliament (23 February 2016) 29.

[3]          For more information regarding the committee's previous comments see Parliamentary Joint Committee on Human Rights, Thirty-second Report of the 44th Parliament (1 December 2015) 64.

[4]          For more information regarding the committee's previous comments see Parliamentary Joint Committee on Human Rights, Thirty-second Report of the 44th Parliament (1 December 2015) 64.

[5]          See Parliamentary Joint Committee on Human Rights, Thirty-fourth Report of the 44th Parliament (23 February 2016) 4.

[6]          See Parliamentary Joint Committee on Human Rights, Thirty-fourth Report of the 44th Parliament (23 February 2016) 3.

[7]          '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.

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

[9]          Explanatory memorandum (EM), statement of compatibility (SOC) [4].

[10]          EM, SOC [4].

[11]          Human Rights Committee, General comment No 34 (Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, para 38 (2011).

[12]          Appendix 2; See 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 Attorney-General's Department, Template 2: Statement of compatibility for a bill or legislative instrument that raises human rights issues at http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSector/Pages/Statementofcompatibilitytemplates.aspx.

[14]          Subsection 7A(3).

[15]          Statement of compatibility (SOC) 2-3.

[16]          Explanatory statement, statement of compatibility [1].

[17]          Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011) 27, available at https://www.ag.gov.au/Publications/Documents/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers/A%20Guide%20to%20Framing%20Cth%20Offences.pdf.

[18]          Royal Commissions Act 1902 (Cth) (RC Act), section 6D(5).

[19]          RC Act, sections 3 and 6B.

[20]          RC Act, section 6A.

[21]          Explanatory memorandum (EM), statement of compatibility (SOC) [3].

[22]          A derivative use immunity prevents the use of material that has been compulsorily disclosed to 'set in train a process which may lead to incrimination or my lead to the discovery of real evidence of an incriminating character.' See Rank Film Distributors Ltd and Others v Video Information centre and Others [1982] AC 380 per Lord Wilberforce at 443.

[23]          Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011) 27, available at https://www.ag.gov.au/Publications/Documents/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers/A%20Guide%20to%20Framing%20Cth%20Offences.pdf.

[24]          RC Act, section 6A.

[25]          RC Act, sections 3 and 6B.

[26]          RC Act, section 6A.

[27]        EM, SOC [4].

[28]          Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) 70-92.

[29]          See explanatory statement (ES), Attachment B 5-9.

[30]          See above footnote 1.

[31]          Parliamentary Joint Committee on Human Rights, Twenty-fourth Report of the 44th Parliament (24 June 2015) 20-24.

[32]          See Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) 70-92.

[33]          ES, Attachment B 9.

[34]          See clause 8570 of Schedule 8 to the Migration Regulations 1994.

[35]          See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 20 July 2015) 2-3.

[36]          See UN Human Rights Committee, General Comment 27: Freedom of movement (1999) paragraphs [8] to [10].

Chapter 2 - Concluded matters

[1]          See amendments in item 6 of the bill to paragraph 36(1)(a) of the Citizenship Act.

[2]          Parliamentary Joint Committee on Human Rights, Twenty-fifth Report of the 44th Parliament (11 August 2015) 4-46.

[3]          Section 72.3 of the Criminal Code.

[4]          Section 101.1 of the Criminal Code.

[5]          Section 101.2 of the Criminal Code.

[6]          Section 102.2 of the Criminal Code.

[7]          Section 102.4 of the Criminal Code.

[8]          Section 103.1 of the Criminal Code.

[9]          Section 103.2 of the Criminal Code.

[10]        Section 119.1 and 119.4 of the Criminal Code.

[11]        Section 119.2 of the Criminal Code.

[12]        Subsections 119.4(3) and (4) of the Criminal Code.

[13]        Subsection 119.4(5) of the Criminal Code.

[14]        Section 119.5 of the Criminal Code.

[15]        Section 119.7 of the Criminal Code.

[16]        Section 33AA(4).

[17]        Section 33AA(20), (22).

[18]        Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (September 2015) 179, paragraph [9.3].

[19]        Article 12 of the International Covenant on Civil and Political Rights (ICCPR).

[20]        Article 17 of the ICCPR.

[21]        Articles 17 and 23 of the ICCPR and article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[22]        Article 25 of the ICCPR.

[23]        Article 9 of the ICCPR.

[24]        Articles 6 and 7 of the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

[25]        Article 26 of the ICCPR.

[26]        Article 14 of the ICCPR.

[27]        Article 15 of the ICCPR.

[28]        Article 14(7) of the ICCPR.

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

[30]        For example, full access to a range of benefits, such as social security, health care, education and work rights, may only be available to citizens (or those holding permanent residency visas) and loss of citizenship, and a consequential loss of a right to full residence in Australia, would constitute a limitation on the ex-citizen's economic, social and cultural rights.

[31]        Articles 6, 7 and 8 of the ICESCR.

[32]        Article 9 of the ICESCR.

[33]        Article 11 of the ICESCR.

[34]        Article 12 of the ICESCR.

[35]        Article 13 and 14 of the ICESCR and article 28 of the CRC.

[36]        Explanatory memorandum (EM), Attachment A 29.

[37]        See Second Reading Speech, the Hon Peter Dutton MP, Minister for Immigration and Border Protection (24 June 2015).

[38]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14 January 2016) 3-6.

[39]        Revised explanatory memorandum (Revised EM), Attachment A 55.

[40]        See Second Reading Speech, the Hon Peter Dutton MP, Minister for Immigration and Border Protection (24 June 2015).

[41]        Revised EM, Attachment A 52.

[42]        The original bill simply provided that the minister has the power to exempt a person if he or she considered it 'in the public interest' to do so: see Original bill, proposed section 33AA(7), 35A(6).

[43]        Citizenship Act, section 33AA(15), (20), 35A(10).

[44]        Citizenship Act, section 33AA(22), 35A(11).

[45]        EM, Attachment A 29.

[46]        EM, Attachment A 29.

[47]        See proposed section 35A of the bill which provides that citizenship ceases if a person is convicted of an offence against section 29 of the Crimes Act, which makes it an offence to damage property belonging to the Commonwealth.

[48]        Revised EM, Attachment A 55.

[49]        UN Human Rights Committee, General Comment 27, Freedom of Movement (1999) [21].

[50]        Genovese v Malta, European Court of Human Rights, Application no. 5314/09 (11 November 2011). This is based on article 8 of the European Convention on Human Rights which is in substantially similar terms to article 17 of the ICCPR.

[51]        UK Joint Committee on Human Rights, Legislative Scrutiny: Immigration Bill (second report), Twelfth Report of Session 2013-14 (26 February 2014) available at: http://www.publications.parliament.uk/pa/jt201314/jtselect/jtrights/142/142.pdf.

[52]        Immigration Bill, European Convention on Human Rights, Supplementary Memorandum by the Home Office (January 2014) [12], available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/276660/Deprivation_ECHR_memo.pdf.

[53]        EM, Attachment A 33-34.

[54]        Revised EM, Attachment A 56.

[55]        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.

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

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

[58]        EM, Attachment A 32.

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

[60]        EM, Attachment A 32.

[61]        Niamh Lenagh-Maguire and Kim Rubenstein, 'More or Less Secure? Nationality questions, deportation and dual nationality' in Edwards and van Waas (eds) Nationality and Statelessness under International Law (Cambridge 2014).

[62]        CAT, article 3(1); ICCPR, articles 6(1) and 7; and Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty.

[63]        See Refugee Convention, article 33. The non-refoulement obligations under the CAT and ICCPR are known as 'complementary protection' as they are protection obligations available both to refugees and to people who are not covered by the Refugee Convention, and so are 'complementary' to the Refugee Convention.

[64]        ICCPR, article 2. See Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (February 2014), Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013, 45, and Fourth Report of the 44th Parliament (March 2014), Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013, 513.

[65]        For example, see A v Australia (Human Rights Committee Communication No. 560/1993) and C v Australia (Human Rights Committee Communication No. 900/1999). See also F.K.A.G et al v Australia (Human Rights Committee Communication No. 2094/2011) and M.M.M et al v Australia (Human Rights Committee Communication No. 2136/2012).

[66]        For further analysis see the committee's analysis in this report in relation to the Migration and Maritime Powers Amendment Bill (No. 1) 2015.

[67]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14 January 2016) 6.

[68]        See section 35 of the Migration Act 1958.

[69]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14 January 2016) 6.

[70]        Revised EM, Attachment A 53.

[71]        Most recently, see Thirty-Fourth Report of the 44^th Parliament (23 February 2016) 34-37.

[72]        EM 31.

[73]        For example, an individual maybe denied consular assistance at an Australian embassy on the basis that they are no longer a citizen because they have travelled to Mosul which  a declared area.

[74]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14 January 2016) 8.

[75]        See section 33AA(11) and section 35(6) of the Citizenship Act.

[76]        See UN Human Rights Committee, General Comment 32 [15].

[78]        See, Rebecca Kingston, 'The Unmaking of Citizens: Banishment and the Modern Citizenship Regime in France', (2005) 9 Citizenship Studies23. Macklin, Audrey and Rainer Baubock, 'The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship?' (February 2015), Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2015/14. Barry, Christian and Luara Ferracioli, 'Can Withdrawing Citizenship Be Justified?', Political Studies (forthcoming), accessed at http://philpapers.org/archive/BARCWC-3.pdf.

[79]        See EM 30 which acknowledges that the measures may ultimately result in the expulsion of the former Australian citizen.  

[80]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14 January 2016) 8-9.

[81]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14 January 2016) 8.

[82]        Section 33AA(12).

[83]        See the terms of references to the Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, available at: http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Citizenship_Bill/Terms_of_Reference.

[84]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14 January 2016) 9.

[85]        Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (4 September 2015) 128, Recommendation 10.

[86]        Tom Bingham, The Rule of Law (2011) 74.

[87]        Revised EM, Attachment A 58.

[88]        ICCPR, article 15(2).

[89]        Mohamed Shahabuddeen, 'Does the Principle of Legality Stand in the way of Progressive Development of Law?' (2004) 2 Journal of International Criminal Justice 1007, 1011.

[90]        Polyukhovich v Commonwealth (1991) 172 CLR 501.

[91]        Revised EM 42.

[92]        Revised EM, Attachment A 58.

[93]        Revised EM, Attachment A, 48.

[94]        Revised EM, Attachment A 50.

[95]        Article 3(1).

[96]        EM 33.

[97]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14 January 2016) 11.

[98]        Committee on the Rights of the Children, General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) [40].

[99]        Citizenship Act, section 33AA(15), (20), 35A(10).

[100]      Citizenship Act, section 33AA(22), 35A(11).

[101]      Article 24(3) of the ICCPR.

[102]      EM 34.

[103]      Professor Jaap Doek,'The CRC and the Right to Acquire and to Preserve a Nationality' Refugee Survey Quarterly 25(3), 26.

[104]      EM 34.

[105]          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.

[106]          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.

[107]          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.

[108]          Parliamentary Joint Committee on Human Rights, Thirty-second Report of the 44th Parliament (1 December 2015) 3-37.

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

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

[111]          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).

[112]          Article 9, ICCPR.

[113]          Article 12, ICCPR.

[114]        Article 14, ICCPR.

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

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

[117]        Article 22, ICCPR.

[118]        Articles 23 and 24, ICCPR.

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

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

[121]        Article 9 and 11, ICESCR.

[122]        Article 3, CRC.

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

[124]        For example, see Independent National Security Legislation Monitor, Declassified Annual Report (20 December 2012) 30.

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

[126]        See Appendix 1, Letter from Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (received 25 February 2016) 3.

[127]        Report 14, 16, 19 and 22.

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

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

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

[131]        The Hon Roger Gyles AO QC, Control order safeguards – (INSLM Report) Special Advocates and the Courter Terrorism Legislation Amendment Bill (No1) 2015 (January 2016) 3.

[132]        EM 16.

[133]        EM 15.

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

[135]        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.

[136]        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.

[137]        Publicly available on the PJCIS website:

             http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security

[138]        See Appendix 1, Letter from Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (received 25 February 2016) 3-6.

[139]        UN Committee on the Rights of the Child, General Comment 14, (2013), UN Doc. CRC/C/GC/14, [37]- [39]

[140]        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].

[141]        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.

[142]        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.

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

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

[145]        See Appendix 1, Letter from Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (received 25 February 2016) 6-7.

[146]        EM, SOC 17.

[147]        The Hon Roger Gyles AO QC, Control order safeguards – (INSLM Report) Special Advocates and the Courter Terrorism Legislation Amendment Bill (No1) 2015, January 2016, 3.

[148]        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)).

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

[150]        EM, SOC 22.

[151]        See Appendix 1, Letter from Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (received 25 February 2016) 7-8.

[152]        Parliamentary Joint Committee on Human Rights: Fourteenth Report of the 44th Parliament (28 October 2014); Sixteenth Report of the 44th Parliament (25 November 2014); Nineteenth Report of the 44th Parliament (3 March 2015); and Twenty-second Report of the 44th Parliament (13 May 2015).

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

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

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

 

[157]        Section 101.6 of the Criminal Code make its offence to do 'any act in preparation for, or planning a terrorist act.

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

[159]        Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter‑Terrorism Legislation Amendment Bill (No.1) 2015 (15 February 2016) xviii.

[160]        EM 12.

[161]        See Appendix 1, Letter from Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (received 25 February 2016) 8-10.

[162]        Independent National Security Legislation Monitor, Control Order Safeguards (INSLM) Report Special Advocates and the Counter-Terrorism Legislation Amendment Bill (No 1) 2015 (2016) 3.

[163]        Independent National Security Legislation Monitor, Control Order Safeguards (INSLM) Report Special Advocates and the Counter-Terrorism Legislation Amendment Bill (No 1) 2015 (2016) 3.

[164]        Pfennig v The Queen (1995) 182 CLR 461, 485; HML v The Queen (2008) 235 CLR 334.

[165]        Evidence Act 1995 (Cth) ss 97, 101. See also Evidence Act 1995 (NSW); Evidence Act 2008 (Vic); Evidence Act 2001 (Tas); Evidence Act 2011 (ACT); and Evidence (National Uniform Legislation) Act 2011 (NT).

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

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

[168]        (1978) 141 CLR 54.

[169]        Section 138 of the Evidence Act 1995 (Cth).

[170]        Sees 63 of the TIA Act and s 45 of the SD Act.

[171]        Brandstetter v Austria, Application No: 11170/84; 12876/87; 13468/87, Strasbourg judgment 28 August 1991 §§41-69.

[172]        H. v Belgium, Application No: 8950/80, Strasbourg judgment 30 November 1987 §§49-55.

[173]        See Appendix 1, Letter from Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (received 25 February 2016) 11-12.

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

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

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

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

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

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

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

[181]        EM, SOC 24.

[182]        See Appendix 1, Letter from Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (received 25 February 2016) 12-14.

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

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

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

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

[187]        Independent National Security Legislation Monitor, Control Order Safeguards (INSLM) Report Special Advocates and the Counter-Terrorism Legislation Amendment Bill (No 1) 2015 (2016) 4.

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

[189]        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'.

[190]        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.

[191]        Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter‑Terrorism Legislation Amendment Bill (No.1) 2015 (15 February 2016) xiv-xv.

[192]          Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (11 February 2014) 31-35.

[193]          Parliamentary Joint Committee on Human Rights, Fourth Report of the 44th Parliament (18 March 2014) 39-40.

[194]          Parliamentary Joint Committee on Human Rights, Thirtieth Report of the 44th Parliament (10 November 2015) 4-10.

[195]          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/~/media/Committees/Senate/committee/humanrights_ctte/guidance_notes/guidance_note_2/guidance_note_2.pdf?la=en.

[196]          See Appendix 1, Letter from the Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (dated and received 11 February 2016) 1-2.

[197]          See Appendix 1, Letter from the Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (dated and received 11 February 2016) 1-2.

[198]          Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment) [2002] ICJ Rep 3, 76-7.

[199]          Explanatory memorandum (EM), statement of compatibility (SOC) 4.

[200]          Parliamentary Joint Committee on Human Rights, Fourth Report of the 44th Parliament (18 March 2014) 40.

[201]        See Appendix 1, Letter from the Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (dated and received 11 February 2016) 3.

[202]        EM, SOC 5.

[203]        See Appendix 1, Letter from the Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (dated and received 11 February 2016) 4.

[204]          Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) 70-92.

[205]          Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), article 3(1); International Covenant on Civil and Political Rights (ICCPR), articles 6(1) and 7; and Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty; Article 31 of the Refugee Convention.

[206]          Article 9 of the ICCPR.

[207]          Article 7 of the ICCPR.

[208]          Article 12 of the ICCPR.

[209]          Article 14 of the ICCPR.

[210]          Articles 3 and 10 of the Convention on the Rights of the Child (CRC).

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

[212]          See, for example, Explanatory Memorandum (EM), Attachment A, 22.

[213]        See EM, Attachment A, 6, 28.

[214]        See EM, Attachment A, 6, 28.

[215]        CAT, article 3(1); ICCPR, articles 6(1) and 7; and Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty.

[216]        See Refugee Convention, article 33. The non-refoulement obligations under the CAT and the ICCPR are known as 'complementary protection' as they are protection obligations available both to refugees and to people who are not covered by the Refugee Convention, and so are 'complementary' to the Refugee Convention.

[217]        ICCPR, article 2. See Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (11 February 2014), Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013, 45, and Fourth Report of the 44th Parliament (18 March 2014), Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013, 513.

[218]        EM, Attachment A, 6.

[219]        ICCPR, article 2. See Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (11 February 2014) 45, 49-51; Fourth Report of the 44th Parliament (18 March 2014) 51, 55-57.

[220]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 21-23.

[221]        ICCPR, article 2. See Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (11 February 2014), Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013, 45, and Fourth Report of the 44th Parliament (18 March 2014), Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013, 513.

[222]        Agiza v. Sweden, Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003 (2005) [13.7], emphasis added.

[223]        Josu Arkauz Arana v. France, CAT/C/23/D/63/1997, (CAT), 5 June 2000.

[224]        Mohammed Alzery v. Sweden, Communication No. 1416/2005, U.N. Doc. CCPR/C/88/D/1416/2005 (2006)) [11.8], emphasis added.

[225]        Australia is a party to this treaty and has voluntarily accepted obligations under it. Article 31 of that treaty provides that treaties are to be interpreted in good faith, according to ordinary meaning, in context, in light of object and purpose. Subsequent practice in the application and interpretation of the treaties is to be taken together with context in the interpretation of treaty provisions. The views of human rights treaty monitoring bodies may be considered an important form of subsequent practice for the interpretation of Australia's treaty obligations. More generally, statements by human rights treaty monitoring bodies are generally seen as authoritative and persuasive for the interpretation of international human rights law.

[226]        Articles 26, 27 31(1) of the Vienna Convention on the Law of Treaties (VCLT).

[227]        Article 27 3 of the VCLT.

[228]        EM, Attachment A, 29.

[229]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 31.

[230]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 31.

[231]        Article 3(1) of the CAT; Articles 6(1) and 7 of the ICCPR; Article 31 of the Refugee Convention.

[232]        Article 12(1) of the International Covenant on Economic Social and Cultural Rights (ICESCR).

[233]        Articles 17 and 23 of the ICCPR; articles 3 and 10 of the CRC.

[234]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 24.

[235]        EM, Attachment A, 9.

[236]        UNHCR, 'UNHCR concerned about confirmation of TPV system by High Court' (20 November 2006) http://www.unhcr.org.au/pdfs/TPVHighCourt.pdf.

[237]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 24.

[238]        See Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) 77 - 78: Section 198 of the Migration Act sets out the circumstances in which the mandatory removal of an 'unlawful non-citizen' is authorised. New section 197C(1) of the Migration Act provides that it is irrelevant whether Australia has non refoulement obligations in respect of such a removal. The statement of compatibility for the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 states that the purpose of this amendment is to ensure that removal powers are not 'constrained by assessments of Australia's non-refoulement obligations'.

36        UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment 14 on the right to the highest attainable standard of health, E/C.12/2000/4 (2000).

37        EM, Attachment A, 9.

38        EM, Attachment A, 17.

39        See, for example, Greg Marston, Temporary Protection Permanent Uncertainty (RMIT University 2003) 3. http://dpl/Books/2003/RMIT_TemporaryProtection.pdf; Australia Human Rights Commission, A last resort? - Summary Guide: Temporary Protection Visas, https://www.humanrights.gov.au/publications/last-resort-summary-guide-temporary-protection-visas.

[243]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 24-25.

40        Article 3(1).

41        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, CRC/C/GC/14 (2013).

42        EM, Attachment A 12.

[247]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 25.

[248]        EM, Attachment A, 19.

[249]        EM, Attachment A, 19.

[250]        Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 3(1); International Covenant on Civil and Political Rights, articles 6(1) and 7; and Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty; Article 31 of the Refugee Convention.

[251]        Article 14 of the ICCPR.

[252]        Articles 3 and 10 of the Convention on the Rights of the Child (CRC).

[253]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 26-28.

[254]        EM, Attachment A 19.

[255]        EM, Attachment A 19.

[256]        EM 133.

[257]        See Agiza v Sweden, Communication No. 233/2003, UN Doc. CAT/C/34/D/233/2003 (2005), para 13.7. See also Arkauz Arana v France, Communication No. 63/1997, CAT/C/23/D/63/1997 (2000) [11.5], [12] and comments on the initial report of Djibouti (CAT/C/DJI/1) (2011), A/67/44, 38, para 56(14), see also: Concluding Observations of the Human Rights Committee, Portugal, UN Doc. CCPR/CO/78/PRT (2003) [12].

[258]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 28-30.

[259]        Agiza v. Sweden, Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003 (2005) [13.7].

[260]        Josu Arkauz Arana v. France, CAT/C/23/D/63/1997, (CAT), 5 June 2000.

[261]        Mohammed Alzery v. Sweden, Communication No. 1416/2005, U.N. Doc. CCPR/C/88/D/1416/2005 (2006)) [11.8].

[262]        Australia is a party to this treaty and has voluntarily accepted obligations under it. Article 31 of that treaty provides that treaties are to be interpreted in good faith, according to ordinary meaning, in context, in light of object and purpose. Subsequent practice in the application and interpretation of the treaties is to be taken together with context in the interpretation of treaty provisions. The views of human rights treaty monitoring bodies may be considered an important form of subsequent practice for the interpretation of Australia's treaty obligations. More generally, statements by human rights treaty monitoring bodies are generally seen as authoritative and persuasive for the interpretation of international human rights law.

[263]        EM, Attachment A, 19.

[264]        EM, Attachment A, 21.

[265]        EM, Attachment A, 19 - 21.

[266]        EM 8.

[267]        International Covenant on Civil and Political Rights, article 2. See Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (11 February 2014) 45, at 49‑51, paragraphs [1.188] to [1.199] (committee comments on Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013), and Fourth Report of the 44th Parliament (18 March 2014) 51, at 55-57, paragraphs [3.41] to [3.47] (comments on minister's response to committee views on Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013).

[268]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 30.

[269]        Article 3(1) of the CRC.

[270]        Article 24(3) of the ICCPR.

[271]        Article 1 of the Convention on the Reduction of Statelessness 1961.

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

[273]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 32.

[274]        See Senate Standing Committees on Legal and Constitutional Affairs, Incident at the Manus Island Detention Centre from 16 February to 18 February 2014 (11 December 2014). See also submissions to the Senate Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru, from the Office of the United Nations High Commissioner for Refugees (UNHCR) and Save the Children Australia, at:
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regional_processing_Nauru/Regional_processing_Nauru/Submissions.

[275]        EM, Attachment A, 31.

[276]        EM, Attachment A, 32.

[277]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 34.

[278]          Parliamentary Joint Committee on Human Rights, Nineteenth Report of the 44th Parliament (3 March 2015) 13-28.

[279]          Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 3(1); International Covenant on Civil and Political Rights, articles 6(1) and 7; and Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty.

[280]          See Refugee Convention, article 33. The non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and International Covenant on Civil and Political Rights are known as 'complementary protection' as they are protection obligations available both to refugees and to people who are not covered by the Refugee Convention, and so are 'complementary' to the Refugee Convention.

[281]          International Covenant on Civil and Political Rights, article 2. See Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (February 2014), Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013, 45, and Fourth Report of the 44th Parliament (March 2014), Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 201, 513.

[282]          A person may apply for a protection visa or a Removal Pending Bridging Visa. However, the visa is temporary and applies so long as the minister is satisfied that the person's removal is not reasonable practicable. In addition, if the visa that was cancelled was a protection visa, the person will be prevented from applying for another protection visa unless the minister exercises a personable, non-compellable power to do so. A person is also not entitled to apply for a Removal Pending Bridging Visa—the minister may invite the person to apply for the visa and this is a personal, non-compellable power.

[283]          The non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and International Covenant on Civil and Political Rights are known as 'complementary protection' as they are protection obligations available both to refugees and to people who are not covered by the Refugee Convention, and so are 'complementary' to the Refugee Convention.

[284]          See Agiza v. Sweden, Communication No. 233/2003, UN Doc. CAT/C/34/D/233/2003 (2005), para 13.7. See also Arkauz Arana v. France, Communication No. 63/1997, CAT/C/23/D/63/1997 (2000), paras 11.5 and 12 and comments on the initial report of Djibouti (CAT/C/DJI/1) (2011), A/67/44, 38, para 56(14), see also: Concluding Observations of the Human Rights Committee, Portugal, UN Doc. CCPR/CO/78/PRT (2003), at para 12.

[285]          The requirements for the effective discharge of Australia's non-refoulement obligations were set out in more detail in Second Report of the 44th Parliament (11 February 2014), paragraphs [1.89] to [1.99]. See also Fourth Report of the 44th Parliament (18 March 2014) paragraphs [3.55] to [3.66] (both relating to the Migration Amendment (regaining Control Over Australia's Protection Obligations) Bill 2013).

[286]          See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 29 April 2015) 2.

[287]        Agiza v. Sweden, Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003 (2005) [13.7].

[288]        Josu Arkauz Arana v. France, CAT/C/23/D/63/1997, (CAT), 5 June 2000.

[289]        Mohammed Alzery v. Sweden, Communication No. 1416/2005, U.N. Doc. CCPR/C/88/D/1416/2005 (2006)) [11.8].

[290]        Australia is a party to this treaty and has voluntarily accepted obligations under it. Article 31 of that treaty provides that treaties are to be interpreted in good faith, according to ordinary meaning, in context, in light of object and purpose. Subsequent practice in the application and interpretation of the treaties is to be taken together with context in the interpretation of treaty provisions. The views of human rights treaty monitoring bodies may be considered an important form of subsequent practice for the interpretation of Australia's treaty obligations. More generally, statements by human rights treaty monitoring bodies are generally seen as authoritative and persuasive for the interpretation of international human rights law.

[291]        For example, see A v Australia (Human Rights Committee Communication No. 560/1993) and C v Australia (Human Rights Committee Communication No. 900/1999). See also F.K.A.G et al v Australia (Human Rights Committee Communication No. 2094/2011) and M.M.M et al v Australia (Human Rights Committee Communication No. 2136/2012).

[292]        EM, Attachment A, 6.

[293]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 29 April 2015) 3.

[294]        UN Human Rights Committee, F.K.A.G. et al. v Australia, CCPR/C/108/D/2094/2011 (2013).

[295]        Any statutory right of review would need to ensure the appropriate protection of national security sources as provided for in the National Security Information (Criminal and Civil Proceedings) Act 2004.

[296]        See Nystrom v Australia (Human Rights Committee, Communication No. 1557/07).

[297]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 29 April 2015) 4.

[298]        Views: Communications No 1557/2007, 102nd sess, UN Doc CCPR/C/102/D/1557/2007 (18 July 2011) ('Nystrom').

[299]        Warsame, UN Doc CCPR/C/102/D/1959/2010.

[300]        Australia is a party to this treaty and has voluntarily accepted obligations under it. Article 31 of that treaty provides that treaties are to be interpreted in good faith, according to ordinary meaning, in context, in light of object and purpose. Subsequent practice in the application and interpretation of the treaties is to be taken together with context in the interpretation of treaty provisions. The views of human rights treaty monitoring bodies may be considered an important form of subsequent practice for the interpretation of Australia's treaty obligations. More generally, statements by human rights treaty monitoring bodies are generally seen as authoritative and persuasive for the interpretation of international human rights law.

[301]        See Right to enter one's country, Commission on Human Rights, 5th Session (1949), Commission on Human Rights, 6th Session (1950), on Human Rights, 8th Session (1952) 261 in Marc J. Bossuyt, Guide to the "Travaux Préparatoires" of the International Covenant on Civil and Political Rights (1987) 261.

[302]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 29 April 2015) 4-5.

[303]        '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.

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

[305]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 29 April 2015) 5-6.

[306]        EM, Attachment A, 12.

[307]        See item 25 of the bill (new subsection 501L(5)).

[308]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 29 April 2015) 6.

[309]          Parliamentary Joint Committee on Human Rights, Twenty-first Report of the 44th Parliament (24 March 2015) 12-19.

[310]          Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 3(1); International Covenant on Civil and Political Rights, articles 6(1) and 7; and Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty.

[311]          See Refugee Convention, article 33. The non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and International Covenant on Civil and Political Rights are known as 'complementary protection' as they are protection obligations available both to refugees and to people who are not covered by the Refugee Convention, and so are 'complementary' to the Refugee Convention.

[312]          International Covenant on Civil and Political Rights, article 2. See Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (February 2014), Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013, 45, and Fourth Report of the 44th Parliament (March 2014), Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 201, 513.

[313]          See clause 866.225 of the Migration Regulations 1994.

[314]          See item 3 of Schedule 3, proposed new regulation 2.03AA.

[315]          Explanatory statement (ES), Attachment A, 6.

[316]          See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 8 May 2015) 2-3.

[317]          ES, Attachment A, 9.

[318]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 8 May 2015) 3-4.

[319]        UN Human Rights Committee, F.K.A.G. et al. v Australia, CCPR/C/108/D/2094/2011 (2013).

[320]        Any statutory right of review would need to ensure the appropriate protection of national security sources as provided for in the National Security Information (Criminal and Civil Proceedings) Act 2004.

[321]        Nystrom v Australia (Human Rights Committee, Communication No. 1557/07).

[322]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 8 May 2015) 5.

[323]        Warsame, UN Doc CCPR/C/102/D/1959/2010.

[324]        Australia is a party to this treaty and has voluntarily accepted obligations under it. Article 31 of that treaty provides that treaties are to be interpreted in good faith, according to ordinary meaning, in context, in light of object and purpose. Subsequent practice in the application and interpretation of the treaties is to be taken together with context in the interpretation of treaty provisions. The views of human rights treaty monitoring bodies may be considered an important form of subsequent practice for the interpretation of Australia's treaty obligations. More generally, statements by human rights treaty monitoring bodies are generally seen as authoritative and persuasive for the interpretation of international human rights law.

[325]        See Right to enter one's country, Commission on Human Rights, 5th Session (1949), Commission on Human Rights, 6th Session (1950), on Human Rights, 8th Session (1952) 261 in Marc J. Bossuyt, Guide to the "Travaux Préparatoires" of the International Covenant on Civil and Political Rights (1987) 261.

[326]        ES, Attachment A, 7.

[327]        See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and Border Protection, to the Hon Philip Ruddock MP (received 8 May 2015) 5-6.

[328]          Parliamentary Joint Committee on Human Rights, Thirty-third Report of the 44th Parliament (2 February 2016) 7-12.

[329]          Explanatory memorandum (EM) 4.

[330]          EM ii.

[331]          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.

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

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

[334]          See Attorney-General's Department, Template 2: Statement of compatibility for a bill or legislative instrument that raises human rights issues at http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSector/Pages/Statementofcompatibilitytemplates.aspx.

[335]          See Appendix 1, Letter from the Hon Nigel Scullion, Minister for Indigenous Affairs, to the Hon Philip Ruddock MP (received 23 February 2016) 1-2 and Attachment A.