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 2 - Concluded matters

[1]          Parliamentary Joint Committee on Human Rights, Report 6 of 2017 (20 June 2017) 2-7.

[2]          Parliamentary Joint Committee on Human Rights, Report 9 of 2017 (5 September 2017) 64-77.

[3]          Parliamentary Joint Committee on Human Rights, Report 9 of 2017 (5 September 2017) 72: "...the measures engage and limit the right not to incriminate oneself and the right to privacy. The measures expand the effect of coercive evidence gathering provisions which were legislated prior to the establishment of the committee and have never been required to be subject to a foundational human rights compatibility assessment in accordance with the terms of the Human Rights (Parliamentary Scrutiny) Act 2011. The preceding analysis identifies concerns that arise from increased penalties for non-compliance and the expansion of matters that may be subject to a section 155 notice. In relation to the increased penalty for non-compliance, while the measure seeks to implement a recommendation of the Harper Review with respect to penalties for corporations, it extends beyond corporations to apply to individuals. In relation to the expansion of matters that may be subject to a notice, questions arise as to the sufficiency of relevant safeguards provided by the Competition Act. The committee draws the human rights implications of the measure to the attention of parliament." The minister's further response at Appendix 3 provides some comment in response to that conclusion.

[4]          SOC 151-152.

[5]          See ILO, Committee of Experts on the Application of Conventions and Recommendations (CEACR) - adopted 2013, published 103rd ILC session (2014); Observation (CEACR) - adopted 2011, published 101st ILC session (2012), Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) – Australia.

[6]          Under section 45D: a person (A) must not engage in conduct, in concert with another person (B) which: hinders or prevents a third person (C) either supplying goods or services to a fourth person (D) or acquiring goods or services from D; and is engaged in for the purpose and would have or be likely to have the effect of causing substantial loss or damage to the business of D.  D must not be an employer of A or B for the purpose of the section.

[7]          See, for example, Australian Competition and Consumer Commission, Press Release ACCC/Maritime Union of Australia, 28 May 1998, http://www.accc.gov.au/content/index.phtml/itemId/87308/fromItemId/378006.

[8]          Observation (CEACR) - adopted 2016, published 106th ILC session (2017) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Australia (Ratification: 1973); Observation (CEACR) - adopted 2013, published 103rd ILC session (2014) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Australia (Ratification: 1973).

[9]             Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017)
15-18.

[10]        Table Item 9A, Clause 1 of Schedule 1 to the Electoral and Referendum Amendment (ASADA) Regulations 2017.

[11]        Statement of Compatibility (SOC) 2.

[12]        SOC 2.

[13]        Table Item 9A, Clause 1 of Schedule 1 to the Electoral and Referendum Amendment (ASADA) Regulations 2017.

[14]        SOC 2.

[15]          Parliamentary Joint Committee on Human Rights, Report 9 of 2017 (5 September 2017) 13-24.

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

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

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

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

[20]          Explanatory Memorandum (EM) 2.

[21]          See proposed section 223, grounds for disqualification, item 9.

[22]          This includes contravening a civil penalty provision or committing a criminal offence under any of the following laws: Fair Work Act 2009 (Fair Work Act); Fair Work (Registered Organisations) Act 2009; Building and Construction Industry (Improving Productivity) Act 2016 (ABCC Act); Part IV of the Competition and Consumer Act 2010; Work Health and Safety Act 2011; each State or Territory OHS law Part 7.8 of the Criminal Code (causing harm to, and impersonation and obstruction of, Commonwealth public officials): See definition of designated law proposed section 9C(2), schedule 1, item 2. 

[23]          Proposed section 9C(2).

[24]        Proposed section 212(aa), schedule 1, item 6. Currently, a 'prescribed offence' resulting in automatic disqualification is defined to include offences of fraud and dishonesty punishable by imprisonment for 3 month or more, certain offences related the conduct of elections or any other offence in relation to the formation, registration or management of an association or organisation: see sections 212-213A of the Registered Organisations Act. 

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

[26]        Statement of compatibility (SOC) viii.

[27]        SOC v, viii.

[28]        SOC viii.

[29]        SOC ix.

[30]        SOC vi.

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

[32]        Statement of compatibility (SOC) viii.

[33]        ILO, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) [422].

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

[35]        ILO, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) [388]-[391], [421]-[424].

[36]        See, Fair Work (Registered Organisations) Act 2009 (including the right to represent members.)

[37]        See proposed section 28C.

[38]        Under proposed section 9C a 'designated finding' is defined to include a finding that a person has contravened a civil penalty provision or committed a criminal offence under any of the following laws: Fair Work Act 2009 (Fair Work Act); Fair Work (Registered Organisations) Act 2009; Building and Construction Industry (Improving Productivity) Act 2016 (ABCC Act); Part IV of the Competition and Consumer Act 2010; Work Health and Safety Act 2011; each State or Territory OHS law; or Part 7.8 of the Criminal Code (causing harm to, and impersonation and obstruction of, Commonwealth public officials): See definition of 'designated law' in proposed section 9C(2), schedule 1, item 2. 'Wider criminal finding' is defined to include that the person has committed an offence against any law of the Commonwealth or a State or Territory.

[39]        See proposed section 28E.

[40]        See proposed section 28F.

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

[42]        Proposed sections 28N-28Q.

[43]        ILO Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) [295].

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

[45]        SOC ix.

[46]        SOC ix.

[47]        SOC ix.

[48]        See, ILO General Survey by the Committee of Experts on the Application of Conventions and Recommendations on Freedom of Association and Collective Bargaining (1994), [181].

[49]        ILO Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) [295].

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

[51]        SOC x.

[52]        Proposed section 323.

[53]        Proposed section 323A.

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

[55]        SOC x.

[56]        SOC x.

[57]        'Designated law' has the meaning given in proposed section 9C(a) and includes industrial laws. 

[58]        See proposed section 72A.

[59]        See proposed section 72D.

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

[61]        SOC x.

[62]        ILO, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) [521].

[63]        See, ILO General Survey by the Committee of Experts on the Application of Conventions and Recommendations on Freedom of Association and Collective Bargaining (1994), [181].

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

[65]          Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) 35-41.

[66]          "foreign person" is defined in section 4 of the Foreign Acquisitions and Takeovers Act 1975 to mean: (a) an individual not ordinarily resident in Australia; or (b) a corporation in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest; or (c) a corporation in which 2 or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest; or (d) the trustee of a trust in which an individual not ordinarily resident in Australia, a foreign corporation or a foreign government holds a substantial interest; or (e) the trustee of a trust in which 2 or more persons, each of whom is an individual not ordinarily resident in Australia, a foreign corporation or a foreign government, hold an aggregate substantial interest; or (f) a foreign government; or (g) any other person, or any other person that meets the conditions, prescribed by the regulations.

[67]          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'.

[68]          Althammer v Austria, Human Rights Committee Communication no. 998/01 [10.2].

[69]          See UN Committee on the Elimination of Racial Discrimination, General Recommendation 30: Discrimination against non-citizens (2004).

[70]          Statement of Compatibility (SOC) [3.109]-[3.110].

[71]          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). The initial analysis noted by way of example that in 2015, the Victorian Scrutiny of Acts and Regulations Committee referred to the Victorian Parliament for its consideration whether a law which imposed higher property taxes on foreign citizens than on Australian and New Zealand citizens for the purpose of ensuring that a larger number of local homebuyers remain competitive in the housing market was a reasonable limitation on the right against discrimination on the basis of nationality: Victorian Scrutiny of Acts and Regulations Committee, Alert Digest No.5 of 2015 (2015) pages 4-6.

[72]          SOC [3.109].

[73]          SOC [3.99].

[74]        Explanatory Memorandum [3.8].

[75]        Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, A/HRC/34/51, (2017), [11].

[76]        SOC [3.110].

[77]        As defined in the Foreign and Acquisitions Takeovers Act 1975.

[78]        SGS Economics and Planning, Why was no one home on Census night? (24 July 2017) http://www.sgsep.com.au/publications/why-was-no-one-home-census-night.

[79]        House of Representatives Standing Committee on Economics, Report on Foreign Investment in Residential Real Estate (November 2014) 96.

[80]        Senate Economics References Committee, Out of Reach? The Australian housing affordability challenge (May 2015) 42-43.

[81]        Senate Economics References Committee, Out of Reach? The Australian housing affordability challenge (May 2015),  xvii.

[82]        The return must be in the approved form within the meaning of section 388-50 in Schedule 1 to the Taxation Administration Act 1953. The amount of the vacancy fee is in Part 2 of the Foreign Acquisitions and Takeovers Fees Imposition Act 2015.

[83]        See proposed section 115D(1) of Schedule 3 (vacancy fee return), and proposed section 115G(1) of Schedule 3 (requirement to keep records).

[84]        See section 4AA of the Crimes Act 1914.

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'.