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]          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.

[2]          These are: the Appeals Rule 2017 [F2017L01197]; the ASIC Client Money Reporting Rules 2017 [F2017L01333]; the Discipline Rule 2017 [F2017L01196]; Health Insurance (Approved Pathology Undertakings) Approval 2017 [F2017L01293]; and the Torres Strait Regional Authority Election Rules 2017 [F2017L01279].

[3]          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.

[4]          See proposed section 16 of the bill.

[5]          Proposed section 117(1) of the bill provides that the minister may, by legislative instrument, make rules prescribing matters required or permitted by the bill to be prescribed by the rules, or necessary or convenient to be prescribed for carrying out or giving effect to the bill.

[6]          Althammer v Austria, HRC 998/01, [10.2]

[7]          For a further discussion of the right to an effective remedy, see further below.

[8]          Statement of Compatibility (SOC) 70.

[9]          Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) 347.

[10]        SOC 69-70.

[11]        The power to determine eligibility by way of legislative instrument will be discussed further below in relation to the right to an effective remedy.

[12]        Article 24 of the International Covenant on Civil and Political Rights: see Statement of Compatibility (SOC) 70.

[13]        Articles 19 and 34 of the Convention on the Rights of the Child: see SOC, 69.

[14]        See also Committee on the Rights of the Child, General Comment No.13: Article 19: The right of the child to freedom from all forms of violence, CRC/C/GC/13 (2011) 14-15.

[15]        See 'Child sex abuse redress scheme to cap payments at $150,000 and exclude some criminals' (26 October 2017): http://www.abc.net.au/news/2017-10-26/sex-offenders-to-be-excluded-from-child-abuse-redress-scheme/9087256.

[16]        See the discussion of the human rights implications of expressing legal discretion of the executive in overly broad terms in Hasan and Chaush v Bulgaria ECHR 30985/96 (26 October 2000) [84].

[17]        The statement of compatibility does acknowledge this right is engaged in relation to other aspects of the bill, discussed further below.

[18]        See pages 69-70. This aspect of the bill is discussed above in relation to the right to equality and non-discrimination.

[19]        UN Human Rights Committee, General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.1326 (2004) [18]; see also UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UNGA Res 60/147 (2006) 8-9.

[20]        Explanatory memorandum 16-17.

[21]        SOC, 70, 73.

[22]        SOC, 70.

[23]        See SOC, 66.

[24]        SOC 70-71.

[25]        See proposed section 117(2)(a) of the bill.

[26]        It is noted that the recommendation as to the provision of legal services of the Royal Commission into Institutional Responses to Child Sexual Abuse was that 'a redress scheme should fund, at a fixed price, a legal consultation for an applicant before the applicant decides whether or not to accept the offer of redress and grant the required releases':  Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015) Recommendation 64, 390

[27]        The Commonwealth Redress Scheme Operator is the Secretary to the Human Services Department (or the Department administered by the Minister administering the Human Services (Centrelink) Act 1997), and is responsible for operating the scheme, including making offers of redress to the person.

[28]        Proposed section 77(1)(a) of the bill.

[29]        Proposed section 77(1)(b) of the bill.

[30]        SOC 71.

[31]        SOC 72.

[32]        SOC 71.

[33]        Proposed section 77(1(a) of the bill.

[34]        Proposed sections 81-84 of the bill.

[35]        See proposed section 78(3) of the bill.

[36]        See proposed section 78(1) of the bill.

[37]        Proposed section 79(3) of the bill.

[38]        Proposed Part 4-3 of the bill.

[39]        Proposed sections 87 and 88 of the bill.

[40]        Proposed section 88(2) of the bill.

[41]        Proposed section 88(3) of the bill.

[42]        Schedule 3 of the consequential amendments bill.

[43]        See UN Human Rights Committee, General Comment 32: Article 14, Right to Equality before Courts and Tribunals and to Fair Trial (2007) [16].

[44]          'Personal Information' is defined in section 6(1) of the Privacy Act means information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not.

[45]          Clause 55(1)(b) of the instrument.

[46]          Parliamentary Joint Committee on Human Rights, Marriage Legislation Amendment Bill 2016; Marriage Legislation Amendment Bill 2016 [No.2], Freedom to Marry Bill, Report 8 of 2016 (9 November 2016) 33-44; Marriage Legislation Amendment Bill 2015, Thirtieth Report of the 44th Parliament (10 November 2015) 112‑124.

[47]          Marriage Act section 5(1).

[48]          See, Explanatory Memorandum (EM) 5.

[49]          See, EM 5.

[50]          Item 3, proposed section 5(1).

[51]          Under the Marriage Act, a foreign marriage will be recognised in Australia if it was a valid marriage in the foreign country and would be recognised as valid under Australian law if it had taken place in Australia.

[52]          Statement of compatibility (SOC) 19.

[53]          See UN Human Rights Committee, Toonen v Australia, Communication No. 488/1992 (1992) and UN Human Rights Committee, Young v Australia, Communication No. 941/2000 (2003).

[54]          See Joslin v New Zealand, UN Human Rights Committee, Communication No. 902/1999 (2002) at [8.3]: 'In light of the scope of the right to marry under article 23, paragraph 2, of the Covenant, the Committee cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has violated the rights of the authors under articles 16, 17, 23, paragraphs 1 and 2, or 26 of the Covenant'. For further analysis of this case in light of the right to equality and non-discrimination in the context of the proposed measures see, Parliamentary Joint Committee on Human Rights, Thirtieth Report of the 44th Parliament (10 November 2015) 114 at [1.494]. Compare, UNHRC, Concluding Observations on the Six Periodic Report of Australia, CCPR/C/AUS/CO/6 (9 November 2017); G v  Australia, UNHRC, communication No. 2172/2012, CCPR/C/119/D/2172/2012 (15 June 2017); ; C v Australia, UNHRC, communication No 2216/2012, CCPR/C/119/D/2216/2012 (3 August 2017).

[55]        SOC 19.

[56]        See European Court of Human Rights, Schalk and Kopf v Austria, Application No 30141/04 (2010) [99]; European Court of Human Rights, Oliari v Italy, Application Nos 18766/11 and 36030/11 (2015) [165]; C v Australia, UNHRC, communication No 2216/2012, CCPR/C/119/D/2216/2012 (3 August 2017).

[57]        UN Human Rights Committee, Roger Judge v Canada, Communication No 829/1998 (5 August 2002) [10.3]. See also European Court of Human Rights, Oliari v Italy, Application Nos 18766/11 and 36030/11 (2015).

[58]        See, G v  Australia, UNHRC, communication No. 2172/2012, CCPR/C/119/D/2172/2012 (15 June 2017): which concerned a refusal in NSW to change the sex on the birth certificate of a married, female transgender person unless she divorced her female spouse. Australia argued that this requirement was reasonable and proportionate to the legitimate aim of consistency with the Marriage Act which defines marriage as being between a man and a woman. The UNHRC stated that, irrespective of whether the aim was legitimate, the interference with the right to privacy and family life was not necessary and proportionate. In relation to the right to equality and non-discrimination, the UNHRC did not consider that the differential treatment between married and unmarried persons who have undergone a sex affirmation procedure and request to amend their sex on their birth certificate was based on reasonable and objective criteria, and therefore constituted discrimination on the basis of marital and transgender status. Accordingly, the UNHRC determined Australia had breached the right to equality and non-discrimination and the right to privacy and family life; C v Australia, UNHRC, communication No 2216/2012, CCPR/C/119/D/2216/2012 (3 August 2017): the UNHRC found that Australia's denial of access to divorce proceedings to a same-sex couple who married overseas breached the right to equality and non-discrimination. See, also, UNHRC, Concluding Observations on the Sixth Periodic Report of Australia, CCPR/C/AUS/CO/6 (9 November 2017).

[59]        UNHRC, Concluding Observations on the Sixth Periodic Report of Australia, CCPR/C/AUS/CO/6 (9 November 2017).

[60]        SOC 20. This would address the violation that the UNHRC found against Australia in respect of the right to equality and non-discrimination for Australia's denial of access to divorce proceedings to a same-sex couple who married overseas C v Australia, UNHRC, communication No 2216/2012, CCPR/C/119/D/2216/2012 (3 August 2017).

[61]        EM, SOC 19.

[62]        UN Committee on Economic, Social and Cultural Rights, General Comment No 19: The Right to Social Security (2008).

[63]        European Court of Human Rights, Schalk and Kopf v Austria, Application No 30141/04, (2010) [93]-[94].

[64]        UN Committee on the Rights of the Child, Report on the Fifth Session, 5th session, UN Doc CRC/C/24 (8 March 1994) Annex 5 ('Role of the Family in the Promotion of the Rights of the Child'). See also UN Committee on the Rights of the Child, General Comment No 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child (2003).

[65]        UN Committee on the Rights of the Child, General Comment No 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child (2003). Privacy, family life and home life are protected by article 16 of the CRC, as well as by article 17(1) of the ICCPR, which states that: 'No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation'.

[66]        UN Committee on the Rights of the Child, Report on the Twenty-eighth Session, 28th session, UN Doc CRC/C/111 (28 November 2001) [558].

[67]        UNHRC, Concluding Observations on the Sixth Periodic Report of Australia, CCPR/C/AUS/CO/6 (9 November 2017).

[68]        There is one amendment which would engage the rights of the child, namely a consequential amendment to Part III of the Schedule to the Marriage Act,  which would recognise that when a minor is an adopted child and wishes to get married, consent to the marriage is in relation to two adopted parents (removing a reference to 'husband and wife'). This marginally engages, but does not promote or limit, the rights of the child: see item 65.

[69]        EM, SOC 19.

[70]        See article 2 of the CRC which states that all rights should be ensured to children without discrimination of any kind, irrespective of the child's or parent's social origin or birth. See also article 26 of the ICCPR which requires state parties to guarantee equal protection against discrimination on any ground, including social origin, birth or other status.

[71]        Fathers are not mentioned in the CRC and mothers are only referred to in the context of pre and postnatal care.

[72]        See the Preamble to the CRC.

[73]        See articles 7 and 9 of the CRC.

[74]        UN Committee on the Rights of the Child, General comment No. 14: on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) (2013) [19].

[75]        UN Committee on the Rights of the Child, General comment No. 14: on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) (2013) [20].

[76]        See, Lixia Qu and Ruth Weston, Australian Institute of Family Studies, Occasional Paper No. 46: Parental marital status and children's wellbeing (2012).

[77]        Christopher Ramos, Naomi G Goldberg and M V Lee Badgett, Williams Institute, The Effects of Marriage Equality in Massachusetts: A Survey of the Experience and Impact of Marriage on Same-sex Couples (2009) 10.

[78]        Under section 5 of the Marriage Act a 'minister of religion' is defined as '(a)  a person recognised by a religious body or a religious organisation as having authority to solemnise marriages in accordance with the rites or customs of the body or organisation; or (b)  in relation to a religious body or a religious organisation in respect of which paragraph (a) is not applicable, a person nominated by:  (i)  the head, or the governing authority, in a State or Territory, of that body or organisation; or  (ii)  such other person or authority acting on behalf of that body or organisation as is prescribed; to be an authorised celebrant for the purposes of this Act."

[79]        See, Marriage Act section 47. 'Recognised denominations' are defined under section 26 of the Marriage Act as those religious bodies or religious organisations that are declared by the Governor-General for the purposes of the Marriage Act. The Marriage (Recognised Denominations) Proclamation 2007 lists over 140 religious organisations as 'recognised denominations' for the purposes of section 26 the Marriage Act.

[80]        See, item 20, proposed section 47.

[81]        See, item 21, proposed section 47A.

[82]        EM 7.

[83]        EM 5.

[84]        EM 5.

[85]        SOC 21.

[86]        SOC 21.

[87]        See, for example, House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory Report: Marriage Equality Amendment Bill 2012 and Marriage Amendment Bill 2012 (June 2012) 45-46; Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill (February 2017) xiii-xiv, 18.

[88]        United Nations Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion (1993) [8].

[89]        SOC 21.

[90]        Parliamentary Joint Committee on Human Rights, Marriage Legislation Amendment Bill 2016; Marriage Legislation Amendment Bill 2016 [No.2], Report 8 of 2016 (9 November 2016) 33-44; Marriage Legislation Amendment Bill 2015, Thirtieth Report of the 44th Parliament (10 November 2015) 112 124.

[91]        See, Eweida & Ors v United Kingdom [2013] ECHR 37.

[92]        On this point, in the context of civil marriage celebrants in South Africa and Canada, see Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs, CCT60/04; CCT10/05 [2005] ZACC 19 [97]; Barbeau v British Columbia (A-G) 2003 BCCA 251; Halpern v Canada (A-G) [2003] 65 OR (3d) 161 (CA) [53].

[93]        SOC 22.

[94]        Eweida & Ors v United Kingdom [2013] ECHR 37.

[95]        London Borough Council v Ladele [2009] EWCA Civ 1357; [2010] ICR 532.

[96]        SOC 21.

[97]        See, Parliamentary Joint Committee on Human Rights, Marriage Legislation Amendment Bill 2016; Marriage Legislation Amendment Bill 2016 [No.2], Report 8 of 2016 (9 November 2016) 34-44; Marriage Legislation Amendment Bill 2015, Thirtieth Report of the 44th Parliament (10 November 2015) 112‑124.

[98]        'Recognised denominations' are defined under section 26 of the Marriage Act as those religious bodies or religious organisations that are declared by the Governor-General for the purposes of the Marriage Act. The Marriage (Recognised Denominations) Proclamation 2007 lists over 140 religious organisations as 'recognised denominations' for the purposes of section 26 the Marriage Act; Under section 5 of the Marriage Act a 'minister of religion' is defined as '(a)  a person recognised by a religious body or a religious organisation as having authority to solemnise marriages in accordance with the rites or customs of the body or organisation; or (b)  in relation to a religious body or a religious organisation in respect of which paragraph (a) is not applicable, a person nominated by:  (i)  the head, or the governing authority, in a State or Territory, of that body or organisation; or  (ii)  such other person or authority acting on behalf of that body or organisation as is prescribed; to be an authorised celebrant for the purposes of this Act."

[99]        House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory Report: Marriage Equality Amendment Bill 2012 and Marriage Amendment Bill 2012 (June 2012) 45-46;  Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill, Report on the Commonwealth Government's Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill (February 2017) xiii-xiv, 18

[100]        Sex Discrimination Act, section 22.

[101]        EM 10-11; proposed section 47B.

[102]        Sex Discrimination Act, section 36.

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

[104]        SOC 22.

[105]        SOC 21.

[106]        See, Sex Discrimination Act, section 37.

[107]        SOC 21-22.

Chapter 2 - Concluded matters

[1]          Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) 2-14.

[2]          See, Schedule 6, item 2, proposed section 16AAA. Mandatory minimum sentences would apply in relation to sections 272.8(1), 272.8(2), 272.9(1), 272.9(2), 272.10, 272.11, 272.18, 272.19, 273.7, 471.22, 474.23A, 474.25A(1), 474.25A(2), 474.25B of the Criminal Code.

[3]          See, Schedule 6, item 2, proposed section 16AAB.

[4]          United Nations Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of person) (16 December 2014) [12].

[5]          See, for example, A v Australia (1997) 560/1993, UN Doc. CCPR/C/59/D/560/1993, [9.4]; UN Human Rights Committee, Concluding Observations on Australia in 2000 (2000) UN doc A/55/40, volume 1, [522] (in relation to mandatory sentencing in the Northern Territory and Western Australia).

[6]          Statement of Compatibility (SOC) 9.

[7]          SOC 10.

[8]          SOC 10.

[9]          See, Appendix 4, Guidance Note 2; Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 30-32.

[10]        SOC 10.

[11]        Nasir v Australia, UN Human Rights Committee (17 November 2016) [7.7].

[12]        See, UN Human Rights Committee, General comment 35, liberty and security of person; UN Human Rights Committee, Concluding observations on Australia 24/07/2000, A/55/40, paras. 498-528

[13]        See, proposed section 20(1)(b), schedule 11, item 1.

[14]        SOC 11.

[15]        SOC 11.

[16]        SOC 11.

[17]        Explanatory Memorandum (EM) 41.

[18]        See, UN Human Rights Committee, Smantser v Belarus (1178/03); WBE v the Netherlands (432/90); Hill and Hill v Spain (526/93).

[19]        See, In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147 (19 November 2010) (ACT Supreme Court declared that a provision of the Bail Act 1992 (ACT) was inconsistent with the right to liberty under section 18 of the ACT Human Rights Act 2004 which required that a person awaiting trial not be detained in custody as a 'general rule'. Section 9C of Bail Act required those accused of murder, certain drug offences and ancillary offences, to show 'exceptional circumstances' before having a normal assessment for bail undertaken. 

[20]        SOC 10.

[21]        SOC 10.

[22]        See, Crimes Act 1914 section 15AB.

[23]        SOC 10.

[24]        See, In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147 (19 November 2010);

[25]        See, UN Human Rights Committee, Smantser v Belarus (1178/03); WBE v the Netherlands (432/90); Hill and Hill v Spain (526/93).

[26]        EM 51.

[27]        SOC 12.

[28]        SOC 12.

[29]        See, for example, Parliamentary Joint Committee on Human Rights, Report 10 of 2017 (12 September 2017) 5-26.

[30]          Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) 19-34.

[31]          Section 251A(1) provides that a thing is a prohibited thing in relation to a person in detention, or in relation to an immigration detention facility, if: (a) both: (i) possession of the thing is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained, or in which the facility is located; and (ii) the thing is determined under paragraph (2)(a); or (b) the thing is determined under paragraph (2)(b).

[32]          Angel Estrella v Uruguay, UN Human Rights Committee Communication No. 74/80, UN Doc. CCPR/C/18/D/74/1980 (1983) [9.2].

[33]          See UN Human Rights Committee, General Comment No.21: Article 10 (Humane Treatment of Persons Deprived of their Liberty) (1992)

[34]          Angel Estrella v Uruguay, UN Human Rights Committee Communication No. 74/80, UN Doc. CCPR/C/18/D/74/1980 (1983) [9.2].

[35]          The committee will consider the human rights compatibility of the proposed legislative instrument once it is received.

[36]          Statement of Compatibility (SOC) 25. The human rights compatibility of the search and seizure powers are discussed further below.

[37]          SOC 24.

[38]          SOC 25.

[39]        SOC 25.

[40]        SOC 24.

[41]        Explanatory Memorandum 2; SOC 24.

[42]        UN Human Rights Committee, General Comment No.16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, (1988), para 8.  

[43]        This policy has been in force since 2010: for a summary, see SZSZM v Minister for Immigration & Ors [2017] FCCA 819 at [37]-[42].

[44]        See the minister's response to the Inquiries of the Scrutiny of Bills Committee in Scrutiny of Bills Digest 13 of 2017 (15 November 2017) pp 118-119.

[45]        See Hasan and Chaush v Bulgaria (2000) ECHR Application no. 30985/96 (26 October 2000), [84].

[46]        SOC  26.

[47]        See https://www.border.gov.au/about/immigration-detention-in-australia/locations

[48]        ICCPR, article 19(2).

[49]        SOC 26.

[50]        See generally UN Human Rights Committee, General Comment No.34: Article 19: Freedoms of Opinion and Expression (2011), [21]-[36].

[51]        UN Human Rights Committee, General Comment No.34: Article 19: Freedoms of Opinion and Expression (2011) [34].

[52]        UN Human Rights Committee, General Comment No.34: Article 19: Freedoms of Opinion and Expression (2011), [35].

[53]        Section 252A of the Migration Act.

[54]        Proposed section 252(2)(c).

[55]        Proposed section 252(4A).

[56]        Proposed amendment to sections 252AA(1),(3A),(3AA).

[57]        Proposed amendment to section 252A(1).

[58]        Proposed amendment to section 252G(3),(4).

[59]        Proposed section 252BA.

[60]        Proposed section 252BA(6).

[61]        The prohibition against torture, cruel, inhuman or degrading treatment or punishment is also protected by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[62]        UN Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment) (1992) [2].

[63]        UN Human Rights Committee, General Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of their Liberty) (1992) [3].

[64]        UN Human Rights Committee, General Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of their Liberty) (1992) [10].

[65]        Rule 52(1)  of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).

[66]        Frerot v France, European Court of Human Rights Application No.70204/01, 12 June 2007 [35]-[49].

[67]        Frerot v France, European Court of Human Rights Application No.70204/01, 12 June 2007 [35]-[49].

[68]        SOC 28.

[69]        Section 252A(1) of the Migration Act.

[70]        Kalamiotis v Cyprus, UNHRC No. 1486/06 [7.3].

[71]        See Guridi v Spain, CAT 212/02 [6.6]-[6.8].

[72]        UN Human Rights Committee, General Comment No.16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, (1988) [8].

[73]        SOC 25.

[74]        Section 252A(3)(a) and (b) of the Migration Act.

[75]        Section 252A(3A)(c). The other grounds upon which suspicion on reasonable grounds may be formed are based on a search conducted under section 252 or a screening procedure conducted under section 252AA: section 252A(3A)(a) and (b).

[76]        Section 252B(1)(f) of the Migration Act.

[77]        For example, for a detainee who is at least 10 but under 18, only a magistrate may order a strip search: section 252A(3)(c)(ii).

[78]        Article 37(a).

[79]        Article 37(c).

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'.