Membership of the committee

[1]          These are the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the Convention on the Elimination of Discrimination against Women (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child (CRC); and the Convention on the Rights of Persons with Disabilities (CRPD).

Chapter 1 - New and continuing matters

[1]          See Appendix 1 for a list of legislation in respect of which the committee has deferred its consideration. The committee generally takes an exceptions based approach to its substantive examination of legislation.

[2]          The committee examines legislative instruments received in the relevant period, as listed in the Journals of the Senate. 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.

[3]          These are: Telecommunications (Integrated Public Number Database Scheme - Conditions for Authorisations) Determination 2017 [F2017L00941]; Telecommunications (Integrated Public Number Database Scheme - Criteria for Deciding Authorisation Applications) Instrument 2017 [F2017L00937]; and the Therapeutic Goods Legislation Amendment (2017 Measures No. 1) Regulations 2017 [F2017L00853].

[4]          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.

[5]          See Schedule 1, item 20, proposed subsection 76P(3).

[6]          See Schedule 1, item 73, proposed subsection 199(13) and item 75, proposed subsection 200(16).

[7]          See Schedule 1, item 20, proposed subsection 76A(11).

[8]          Explanatory Memorandum (EM) 19.

[9]          Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017) 32-43.

[10]          Graham v. Minister for Immigration and Border Protection; Te Puia v. Minister for Immigration and Border Protection [2017] HCA 33.

[11]          Graham v. Minister for Immigration and Border Protection; Te Puia v. Minister for Immigration and Border Protection [2017] HCA 33 at [53]

[12]          Graham v. Minister for Immigration and Border Protection; Te Puia v. Minister for Immigration and Border Protection [2017] HCA 33 at [64].

[13]          See UN Human Rights Committee, General Comment No. 32: The right to equality before courts and tribunals and to a fair trial, (2007), [17], [62]. 

[14]          The UN Human Rights Committee has held that immigration and deportation proceedings are excluded from the ambit of article 14. See, for example, Omo-Amenaghawon v. Denmark (2288/2013), 23 July 2015, [6.4]; Chadzjian et al. v. Netherlands (1494/2006), 22 July 2008, [8.4]; and K. v. Canada (1234/2003), 20 March 2007, [7.4]-[7.5].

[15]          UN Human Rights Committee, General Comment No. 32: The right to equality before courts and tribunals and to a fair trial (2007) [62] ['the procedural guarantees of article 13 incorporate notions of due process also reflected in article 14 and thus should be interpreted in light of this latter provision. Insofar as domestic law entrusts a judicial body with the task of deciding about expulsions or deportations, the guarantee of equality of all persons before the courts and tribunals, as enshrined in article 14, paragraph 1, and the principles of impartiality, fairness and equality of arms implicit in this guarantee are applicable'].

[16]          UN Human Rights Committee, General Comment No. 32: The right to equality before courts and tribunals and to a fair trial (2007) [13], citing Jansen-Gielen v. The Netherlands (846/1999) Human Rights Committee, 3 April 2001 [8.2] and Äärelä and Näkkäläjärvi v. Finland (779/1997) Human Rights Committee, 24 October 2001 [7.4].

[17]          UN Human Rights Committee, General Comment No. 15: The position of aliens under the covenant (1986) [10].

[18]        Explanatory Memorandum 4 (emphasis added).

[19]        See, for example, Human Rights Committee, General Comment 35: Liberty and security of person (2014) [11]-[12].

[20]        See Migration Act 1958, sections 189, 198.

[21]        Statement of compatibility (SOC) 6.

[22]        See F.K.A.G v. Australia (2094/2011) Human Rights Committee, 20 August 2013 [9.5]; M.M.M et al v Australia (2136/2012) Human Rights Committee, 25 July 2013 [10.4] ['the authors are kept in detention in circumstances where they are not informed of the specific risk attributed to each of them... They are also deprived of legal safeguards allowing them to challenge their indefinite detention'].

[23]        SOC 6.

[24]        Human Rights Committee, General Comment 35: Liberty and security of person (2014), [18].

[25]        F.K.A.G v. Australia (2094/2011) Human Rights Committee, 20 August 2013 [9.5] [The authors of the communication were detained in Australia as they were refused visas to stay following adverse security assessments from ASIO, but were unable to be returned to their country of origin due to their refugee status. The Committee held in relation to five of the authors: 'Given the vague and too general justification provided by the State party as to reasons for not providing the authors with specific information about the basis for the negative security assessments, the Committee concludes that, for these five authors, there has been a violation of article 9, paragraph 2 of the Covenant'].

[26]        SOC 6.

[27]        SOC 6.

[28]        SOC 6.

[29]        Parliamentary Joint Committee on Human Rights, Nineteenth report of the 44th Parliament
(3 March 2015) 18.

[30]        For example, the Commonwealth Ombudsman cannot override the decisions of agencies it deals with, but tries to resolve disputes through consultation and negotiation.

[31]        Leghaei v Australia (1937/2010) Human Rights Committee, 26 March 2015.

[32]        SOC 7.

[33]        Leghaei v Australia (1937/2010) Human Rights Committee, 26 March 2015 [10.4]-[10.5]. 

[34]        Australia is a party to this treaty and has voluntarily accepted obligations under it. Article 31 of the 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.

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

[36]        See Refugee Convention, article 33. The non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 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.

[37]        ICCPR, article 2; Alzery v Sweden (1416/2005), UN Human Rights Committee, 25 October 2006. See, for example, Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (11 February 2014) 45; and Fourth Report of the 44th Parliament (18 March 2014) 51; Report 2 of 2017 (21 March 2017) 10.

[38]        SOC 7-8.

[39]        A person may apply for a protection visa or, if formally invited by the minister to do so, a Bridging R (Class WR) Visa. However, 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. The Bridging R (Class WR) Visa is temporary and applies so long as the minister is satisfied that the person's removal is not reasonably practicable.

[40]        See for example, Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) 77-78.

[41]        See for example, Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) 77-78.

[42]        Article 12 of the ICCPR.

[43]        See, for example, Nystrom v Australia (2011), UN Human Rights Committee, CCPR/C/102/D/1557/2007 [explaining that a person may have stronger ties with a country of which they are not a national, than a country of which they hold citizenship]; Parliamentary Joint Committee on Human Rights, Thirty-fourth report of the 44th  parliament (23 February 2016) 46-50.

[44]        See Parliamentary Joint Committee on Human Rights, Thirty-Fourth Report of the 44^th Parliament (23 February 2016) 50; Thirty-Six Report of the 44th Parliament (16 March 2016) 195-217.

[45]        EM 4 (emphasis added).

[46]          See in particular the Charter of the United Nations (Dealing with Assets) Regulations 2008 [F2014C00689].

[47]          Note, together the autonomous sanctions regime and the UN Charter sanctions regime are referred to as the 'sanctions regimes'.

[48]          See Parliamentary Joint Committee on Human Rights, Sixth report of 2013 (15 May 2013) 135‑137; and Tenth report of 2013 (26 June 2013) 13-19 and 20-22.

[49]          See Parliamentary Joint Committee on Human Rights, Twenty-eighth report of the 44th Parliament (17 September 2015) 15-38; and Thirty-third report of the 44th Parliament (2 February 2016) 17-25.

[50]          Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) 41‑55.

[51]          Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) 41-55 at 53.

[52]          Section 6(1) of the Autonomous Sanctions Regulations 2011 provides that for the purposes of paragraph 10(1)(a) of the Autonomous Sanctions Act 2011, which empowers the minister to make regulations for the purpose of imposing sanctions, the minister may, by legislative instrument: (a) designate a person or entity mentioned in an item of the table as a designated person or entity for the country mentioned in the item; (b) declare a person mentioned in an item of the table for the purpose of preventing the person from travelling to, entering or remaining in Australia.

[53]          See Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Ukraine) Amendment List 2017 [F2017L00675].

[54]          See item 55 of the Charter of the United Nations (Sanctions—Democratic People’s Republic of Korea) Amendment (2017 Measures No. 1) Regulations 2017 [F2017L00878].

[55]        This definition previously included only persons or entities that: (a) the Minister has designated under regulation 4A; or (b)  the Committee established by paragraph 12 of UN Security Council Resolution 1718 or the UN Security Council designates for paragraph 8(d) of Resolution 1718.

[56]        See Parliamentary Joint Committee on Human Rights, Twenty-eighth report of the 44th Parliament (17 September 2015) 15-38.

[57]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) 53.

[58]          See, Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016) 64.

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

[60]          See Parliamentary Joint Committee on Human Rights, Sixteenth Report of the 44th Parliament (25 November 2014) 7.

[61]          See, sections 3A-3C.

[62]          See, Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016)
70-73.

Chapter 2 - Concluded matters

[1]          Parliamentary Joint Committee on Human Rights, Eighteenth Report of the 44th Parliament (10 February 2015) 4-30; Twenty-fourth Report of the 44th Parliament (23 June 2015) 25-73.

[2]          Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017) 2-31.

[3]          Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017) 2-31.

[4]          Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017) 2-31.

[5]          The current citizenship test is designed to assess whether an applicant has 'adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship' and 'basic knowledge of the English language'. It consists of 20 questions derived from content in the resource book Australian Citizenship: Our Common Bond. There is no separate English language test, but applicants need basic knowledge of English to pass the test. A sample question from a practice test is: 'Which arm of government has the power to interpret and apply laws? A) Legislative B) Executive C) Judicial'. See, Department of Immigration and Border Protection, Citizenship Test, https://www.border.gov.au/Trav/Citi/pathways-processes/Citizenship-test.

[6]          The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.

[7]          See, e.g., Althammer v Austria, Human Rights Committee, 8 August 2003, [10.2].

[8]          See, e.g., UN Human Rights Committee, Concluding Observations on Estonia, UN Doc CCPR/C/79/Add.59 (1995), [12] ['The Committee expresses its concern that a significantly large segment of the population, particularly members of the Russian speaking minority, are unable to enjoy Estonian citizenship due to the plethora of criteria established by law, and the stringency of language criterion, and that no remedy is available against an administrative decision rejecting the request for naturalization under the Citizenship law.']; ICERD, art 1(3) ['Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality'.]

[9]          UN Committee on the Elimination of Racial Discrimination, General Recommendation 30: Discrimination against non-citizens, (2004), [13]-[15] [Paragraph 15 additionally provides: 'Take into consideration that in some cases denial of citizenship for long-term or permanent residents could result in creating disadvantage for them in access to employment and social benefits, in violation of the Convention’s anti-discrimination principles'].

[10]        See, e.g., UN Human Rights Committee, General Comment 18: Non-Discrimination, (1989), [13]; Althammer v Austria, Human Rights Committee, 8 August 2003, [10.2].

[11]        See Department of Immigration and Border Protection, Australian Citizenship Test Snapshot Report, 30 June 2015, 3 [although fail rates were all quite low amongst the top ten countries of birth listed, the highest were Vietnam (4%), China (1.84%), and Sri Lanka (1.84%)]; R Van Oers, Deserving Citizenship, 2014, 182-184 [analysis of UK test], 179 [analysis of Netherlands test].

[12]        Department of Immigration and Border Protection, Fact sheet – Australia's Refugee and Humanitarian Programme, https://www.border.gov.au/about/corporate/information/fact-sheets/60refugee#c [listing 2015-2016 Offshore Visa Grants by Top Ten Countries of Birth]. For the onshore humanitarian programme see Department of Immigration and Border Protection, Onshore Humanitarian Programme 2015-2016, Table 4 – Grant and grant rates by last known country of citizenship, at https://www.border.gov.au/ReportsandPublications/Documents/statistics/ohp-april-16.pdf.

[13]        See R Jenkison et al., Building a New Life in Australia: Settlement experiences of recently arrived humanitarian migrants, Australian Institute of Family Studies at https://aifs.gov.au/sites/default/files/publication-documents/bnla-fs1-settlement-experiences.pdf, 1 & 3-5. [Longitudinal study of 1,500 individuals and their families who had been granted permanent humanitarian visas. 89% reported that they or their immediate family had experienced at least one type of traumatic event before arriving in Australia, including war and persecution. 15% of adult respondents reported having never attended school prior to arrival in Australia. Three quarters reported that they understood English 'not well' or 'not at all' prior to arrival].

[14]        Department of Immigration and Border Protection, Australian Citizenship Test Snapshot Report, 30 June 2015, https://www.border.gov.au/Citizenship/Documents/2014-15-snapshot-report.pdf, 2-3.

[15]        See, D.H. and Others v the Czech Republic European Court of Human Rights (ECHR) Application no. 57325/00 (13 November 2007) 49; Hoogendijk v the Netherlands, ECHR, Application no. 58641/00 (6 January 2005).

[16]        Statement of compatibility (SOC) 78-79.

[17]        SOC 78-79.

[18]        SOC 71.

[19]        SOC 71.

[20]        IELTS, How IELTS is scored, https://www.ielts.org/about-the-test/how-ielts-is-scored.

[21]        See, for example, Flinders University, English language requirements, http://www.flinders.edu.au/international-students/study-at-flinders/entry--and-english-requirements/english-language-requirements.cfm; Australian National University, English language admission requirements for students, https://policies.anu.edu.au/ppl/document/ANUP_000408.

[22]        Questions taken on notice, Supplementary Budget Estimates Hearing, 30 October 2006, Q.236 [stating ISLPR 2=IELTS 4 to 5]; ACIL Allen Consulting, Final Report to Department of Education and Training: AMEP Evaluation, 22 May 2015, 6-7 & 68.

[23]        ACIL Allen Consulting, Final Report to Department of Education and Training: AMEP Evaluation, 22 May 2015, 65 ['The AMEP defines ‘functional English’ as a score of 2 or higher on all four of the ISLPR macro skills. Around 7 per cent of AMEP clients achieve this level of English language skills after 500 hours. Consultations indicated that the vast majority of AMEP clients are committed and value the programme highly. Despite this commitment, in many cases a very low level of English language skill on programme entry means social proficiency is unlikely to be obtained through the current AMEP. This is recognised in the programme's design and objectives as discussed...'].

[24]        Explanatory memorandum (EM) 27.

[25]          Parliamentary Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017) 7-16.

[26]          Australian Passports Act 2005 section 12(3).

[27]          Statement of Compatibility (SOC) 4, 5.

[28]          Explanatory Memorandum (EM) 2.

[29]          SOC 3.

[30]          EM 2.

[31]          SOC 5.

[32]          SOC 5.

[33]          This would appear to be provided for in existing section 14 of the Australian Passports Act 2005.

[34]        EM 2.

[35]        EM 12.

[36]        EM 2.

[37]        EM 9-10.

[38]        EM 2.

[39]        See Child Protection (Offender Reporting and Registration) Act 2004 (Northern Territory); Child Protection (Offender Reporting) Act 2004 (Queensland); Community Protection (Offender Reporting) Act 2005 (Tasmania); Sex Offenders Registration Act 2004 (Victoria). For a summary of offender registration legislation in each Australian state or territory, see also: https://aifs.gov.au/cfca/offender-registration-legislation-each-australian-state-and-territory.

[40]        See, for example, Vienna Convention on the Law of Treaties, 1969, article 27; International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, articles 1-3, http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.

[41]        SOC 5.

[42]        See, also, Fardon v Australia, UN Human Rights Committee (1629/2007) (18 March 2010).

[43]        SOC 7.

[44]        SOC 7.

[45]        SOC 6.

[46]        SOC 6.

[47]        SOC 7.

[48]          Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017) 44-45.

[49]          Explanatory Memorandum (EM) 4. Department of Social Services, Guide to Social Security Law, Version 1.234, 3.8.15.10 Qualification for Relocation Scholarship Qualification, http://guides.dss.gov.au/guide-social-security-law/3/8/15/10.

[50]          EM 4-5.

[51]          Department of Human Services, Relocation Scholarship, https://www.humanservices.gov.au/customer/services/centrelink/relocation-scholarship.

[52]          Statement of Compatibility (SOC) 24.

[53]          Parliamentary Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017) 17-20.

[54]          Explanatory memorandum (EM) 5.

[55]          See proposed sections 43A, 95A; Schedule 1, items 4, 10.

[56]          See proposed sections 43A, 95A; Schedule 1, items 4, 10.

[57]          See proposed sections 43A, 95A; Schedule 1, items 4, 10.

[58]          Statement of compatibility, schedule 1.

[59]          The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.

[60]          See, e.g., Althammer v Austria, Human Rights Committee, 8 August 2003, [10.2].

[61]          See, D.H. and Others v the Czech Republic ECHR Application no. 57325/00 (13 November 2007) 49; Hoogendijk v the Netherlands ECHR, Application no. 58641/00 (6 January 2005).

[62]        See, for example, Althammer v Austria HRC 998/01 [10.2].

Appendix 2

[1]          Parliamentary Joint Committee on Human Rights, Guide to Human Rights (June 2015).

[2]          Parliamentary Joint Committee on Human Rights, Guidance Note 1 (December 2014).

[3]          The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.

[4]           Althammer v Austria HRC 998/01, [10.2]. See above, for a list of 'personal attributes'.