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]          See Parliamentary Joint Committee on Human Rights, Report 3 of 2017 (28 March 2017) 21.

[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 Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) 117.

[6]          Explanatory memorandum (EM) 8.

[7]          EM 8.

[8]          Australian Privacy Principle 6.2 (b).

[9]          See, for example, National Health Security Act 2007 section 19; Corporations Amendment (Professional Standards of Financial Advisers) Act 2017 section 70.34; Tax Agent Services Act 2009 section 70.34; Product Stewardship Act 2011 section 60.

[10]          Human Rights Committee, Concluding observations on the fifth periodic report of Australia, CCPR/C/AUS/CO/5, 7 May 2009, [20].

[11]          Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 4(2); UN Human Rights Committee, General Comment 20: Article 7 (1992) UN Doc HRI/GEN/1, [3].

[12]          If the Crimes Amendment (Penalty Unit) Bill 2017 passes the parliament a penalty unit will increase to $210 so that 100 penalty units would be $21,000.

[13]          Protected worker is defined as being an employee, commission agent or contractor, a person seeking to become an employee, commission agent or contractor, or an officer or employee of a commission agent or contractor. See explanatory memorandum (EM) 32.

[14]          The definition of protected co-worker incorporates relationships where people are working together, even if they are not strictly employed by the same person. See EM 32.

[15]          Guidance Note 2 – see Appendix 4.

[16]          Specific guarantees of the right to a fair trial in the determination of a criminal charge guaranteed by article 14(1) of the ICCPR are set out in article 14(2) to (7). These include the presumption of innocence (article 14(2)) and minimum guarantees in criminal proceedings, such as the right not to incriminate oneself (article 14(3)(g)), the right not to be tried and punished twice for an offence (article 14(7)) and a guarantee against retrospective criminal laws (article 15(1)).

[17]          Statement of compatibility (SOC) 9.

[18]          Guidance Note 2 – see Appendix 4.

[19]          EM 28.

[20]          UN Human Rights Committee, General Comment No 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN.Doc CCPR/C/GC/32 (2007).

[21]          Guidance Note 2: Offence provisions, civil penalties and human rights (December 2014) at: http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance_Notes_and_Resources.

[22]          Statement of compatibility (SOC) viii.

[23]          See, SOC viii.

[24]          See proposed section 539(2).

[25]          See proposed section 539(2). If the Crimes Amendment (Penalty Unit) Bill 2017 passes the parliament a penalty unit will increase to $210 so that 600 penalty units would be $126,000.

[26]          The range of existing civil penalty provisions to which the 'serious contravention' provision would apply include: for an employer contravening national employment standards (section 44 of the Fair Work Act); for a person contravening a term of a modern award (section 45 of the Fair Work Act); for a person contravening a term of an enterprise agreement (section 50 of the Fair Work Act); for a person contravening a workplace determination (section 280 of the Fair Work Act); for an employer contravening a national minimum wage order (section 293 of the Fair Work Act); for an employer contravening a term of an equal remuneration order (section 305 of the Fair Work Act); for an employer failing to comply with requirements regarding the method and frequency of payments (section 323 of the Fair Work Act); for an employer requiring an employee to unreasonably spend any part of an amount payable in relation to the performance of work (section 325 of the Fair Work Act); for an employer to fail to comply with obligations with respect to annual earnings (section 328 of the Fair Work Act); for an employer failing to comply with requirements to make and keep certain employee records; (section 535 of the Fair Work Act); for an employer failing to comply with requirements with respect to payslips (section 536 of the Fair Work Act).

[27]          See Fair Work Act section 539.

[28]          See proposed sections 712(B)(1); 717(1); 718A(1).

[29]          Guidance Note 2 – see Appendix 4.

[30]          Specific guarantees of the right to a fair trial in the determination of a criminal charge guaranteed by article 14(1) are set out in article 14(2) to (7). These include the presumption of innocence (article 14(2)) and minimum guarantees in criminal proceedings, such as the right not to incriminate oneself (article 14(3)(g)), the right not to be tried and punished twice for an offence (article 14(7)) and a guarantee against retrospective criminal laws (article 15(1)).

[31]          Explanatory memorandum (EM), Statement of compatibility (SOC) 3.

[32]          EM, SOC 3-4.

[33]        If the Crimes Amendment (Penalty Unit) Bill 2017 passes the parliament a penalty unit will increase to $210 so that 600 penalty units would be $126,000.

[34]        EM, SOC 5.

[35]        See EM i; EM, SOC 5.

[36]        EM i.

[37]        See item 8; see also section 280 of the Fair Work Act.

[38]        See proposed section 712B.

[39]        See proposed section 712B; EM 17.

[40]        See proposed section 713.

[41]        See proposed section 713.

[42]        See proposed section 713(1).

[43]        EM, SOC 6.

[44]        See, for example, Parliamentary Joint Committee on Human Rights, Tenth Report of the 44th Parliament (26 August 2014) 66; Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (11 February 2014) 17. Compare, Parliamentary Joint Committee on Human Rights, Twenty-second Report of the 44th Parliament (13 May 2015) 24‑25.

[45]        EM, SOC 6.

[46]        See Fair Work (Building Industry) Act 2012 section 45 (now repealed).

[47]        See, for example, Parliamentary Joint Committee on Human Rights, Tenth Report of the 44th Parliament (26 August 2014) 66; Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (11 February 2014) 17. Compare, Parliamentary Joint Committee on Human Rights, Twenty-second Report of the 44th Parliament (13 May 2015) 24‑25.

[48]        International Labour Organization, Committee on Freedom of Association, Case No 2326 (Australia), June 2006; See Committee on Freedom of Association, Case No 2326 (Australia), Report in which the committee requests to be kept informed of development - Report No 338, November 2005, paras 454-456; Case No 2326 (Australia), Effect given to the recommendations of the committee and the Governing Body - Report No 353, March 2009, paras 21-24; Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), General Report and observations concerning particular countries, International Labour Conference, 102nd Session, 2013, p 537 (in the context of the Labour Inspection Convention, 1947 (No 81).

[49]        See Parliamentary Joint Committee on Human Rights, Guidance Note 1—Drafting Statements of Compatibility (December 2014) ‒ Appendix 4.

[50]        See Attorney-General's Department, Template 2: Statement of compatibility for a bill or legislative instrument that raises human rights issues at https://www.ag.gov.au/RightsAnd
Protections/HumanRights/Human-rights-scrutiny/Documents/Template2.pdf.

[51]        EM 19.

[52]        See Parliamentary Joint Committee on Human Rights, Guidance Note 1—Drafting Statements of Compatibility (December 2014) ‒ Appendix 4.

[53]        See proposed section 713(3).

[54]        EM 21.

[55]          See, for example, Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 14; and Thirty-eighth report of the 44th Parliament (3 May 2016) 21. See also, Third report of 2013 (13 March 2013); and Seventh report of 2013 (5 June 2013) 91.

[56]          Explanatory memorandum (EM) 5. See section 6DD.

[57]          A 'derivative use' immunity provides that self-incriminatory information or documents provided by a person cannot be used to investigate unlawful conduct by that person but can be used to investigate third parties.

[58]          See, for example, Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 14; Thirty-eighth report of the 44th Parliament (3 May 2016) 21. See also Third Report of 2013 (13 March 2013) 42; and Seventh Report of 2013 (5 June 2013) 91.

[59]          RC Act section 6A(1).

[60]          EM 5.

[61]          See, for example, Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 14; Thirty-eighth report of the 44th Parliament (3 May 2016) 21. See also Third Report of 2013 (13 March 2013) 42; and Seventh Report of 2013 (5 June 2013) 91.

[62]          RC Act section 6P.

[63]          EM 5.

[64]        See, for example, Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 14; Thirty-eighth report of the 44th Parliament (3 May 2016) 21. See also, Third Report of 2013 (13 March 2013) 42; and Seventh Report of 2013 (5 June 2013) 91.

[65]        See Australian Law Reform Commission, Making Inquiries: A statutory framework (2009).

[66]          Previously contained in the Social Services Legislation Amendment (Omnibus Savings and Child Care Reform) Bill 2017. See Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) 51.

[67]          Previously contained in the Social Services Legislation Amendment (Omnibus Savings and Child Care Reform) Bill 2017. See Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) 52.

[68]          Previously contained in the Social Services and Other Legislation Amendment (2014 Budget Measures No. 4) Bill 2014. See Parliamentary Joint Committee on Human Rights, Fourteenth report of the 44th Parliament (28 October 2014) 94-95.

[69]          Previously contained in the Social Services and Other Legislation Amendment (2014 Budget Measures No. 1) Bill 2014. See Parliamentary Joint Committee on Human Rights, Ninth report of the 44th Parliament (15 July 2014) 78-80; and Twelfth report of the 44th Parliament (24 September 2014) 61-62. The measure has since been included in the Social Services and Other Legislation Amendment (2014 Budget Measures No. 4) Bill 2014, Social Services Legislation Amendment (Youth Employment and Other Measures) Bill 2015, Social Services Legislation Amendment (Youth Employment) Bill 2015, Social Services Legislation Amendment (Youth Employment) Bill 2016 and Social Services Legislation Amendment (Omnibus Savings and Child Care Reform) Bill 2017.

[70]          For more information on retrogressive measures see Guidance Note 1 at Appendix 4.

[71]          See Parliamentary Joint Committee on Human Rights, Twelfth report of the 44th Parliament (24 September 2014) 61-62.

[72]          Explanatory memorandum (EM), statement of compatibility (SOC) 26.

[73]          EM, SOC 23.

[74]          EM, SOC 27.

[75]          Explanatory memorandum (EM), statement of compatibility (SOC) 18-19.

[76]          EM, SOC 18.

[77]          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 may 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.

[78]          This committee has previously sought further information as to whether the arrest powers
in the Royal Commissions Act 1902 are compatible with the prohibition against arbitrary detention; see Parliamentary Joint Committee on Human Rights, Third Report of 2013 (13 March 2013) 48; and Seventh Report of 2013 (5 June 2013) 91-92. See also the Australian Law Reform Commission, Making Inquiries: A New Statutory Framework (ALRC Report 111) (10 February 2010) para 11.48 and Recommendation 11-3.

[79]          See Royal Commissions Act 1902, subsection 4(1).

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

[81]          See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2017 (22 March 2017) 71.

[82]          The prohibited grounds of discrimination or 'protected attributes' include 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: UN Human Rights Committee, General Comment 18, Non-discrimination (1989).

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

[84]          See Parliamentary Joint Committee on Human Rights, Freedom of speech in Australia: Inquiry into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth) (28 February 2017).
For more information on this inquiry, see the inquiry website at: http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia.

[85]          Section 18C is contained in Part IIA of the RDA. The title to that section, 'Prohibition of Offensive Behaviour Based on Racial Hatred', is to be taken into account when interpreting the content of specific provisions in that part: Hagan v Trustees of Toowoomba Sports Ground Trust [2000] FCA 1615 [34].

[86]          Schedule 1, item 3 (at time of first reading).

[87]          Schedule 1, item 4 (at time of first reading).

[88]          International Covenant on Civil and Political Rights (ICCPR), articles 19, 20 and 26; and International Convention on the Elimination of All Forms of Racial Discrimination (CERD), article 4.

[89]          ICCPR, article 19. Part IIA of the RDA does not limit the right to hold opinions.

[90]          ICCPR, article 19(2).

[91]          UN Human Rights Council, Resolution 12/16, Freedom of opinion and expression, UN Doc A/HRC/RES/12/16, 12 October 2009, preamble. At: http://www.un.org/en/ga/search/view
_doc.asp?symbol=A/HRC/RES/12/16 (viewed 8 December 2016).

[92]          '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.

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

[94]        Where each of the treaty provisions above refer to prohibition by law, and offence punishable by law, they refer to criminal prohibition. Although Australia has ratified these treaties, Australia has made reservations in relation to both the ICCPR and CERD in relation to its inability to legislate for criminal prohibitions on race hate speech.

[95]        See, UN Committee on the Elimination of Racial Discrimination (UNCERD), General recommendation 35: Combating racist hate speech (26 September 2013) 3.

[96]        See, ICCPR article 20, CERD article 4. See, also, UN Special Rapporteur, F La Rue, Annual Report of the Special Rapporteur on the promotion and protection of the right to freedom of expression and opinion, Human Rights Council, UN Doc A/HRC/14/23 (20 April 2010) [79] available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/14/23 (last accessed 15 February 2017). See also submissions to the Parliamentary Joint Committee on Human Rights' inquiry, Freedom of speech in Australia: Inquiry into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth) (28 February 2017).

[97]        See, also, UN Special Rapporteur, F La Rue, Annual Report of the Special Rapporteur on the promotion and protection of the right to freedom of expression and opinion, Human Rights Council, UN Doc A/HRC/14/23 (20 April 2010) [79] available at http://www.un.org/en/ga/
search/view_doc.asp?symbol=A/HRC/14/23 (last accessed 15 February 2017).

[98]        UNCERD General Recommendation 1 (5^th session, 1972), General Recommendation 7 (32^nd session, 1985), General Recommendation 15 (42^nd session, 1993).

[99]        UNCERD, General recommendation 35: Combating racist hate speech (26 September 2013) [45].

[100]        UNCERD, General Recommendation 15 (42^nd session, 1993).

[101]        See, UNCERD, General recommendation 35: Combating racist hate speech (26 September 2013) 3.

[102]        See, Hon Michael Lavarch, Attorney-General, House of Representatives Hansard, Second reading speech, 15 November 1994, 3336; and Australian Law Reform Council, Multiculturalism and the Law (1991).

[103]        ICCPR article 20, CERD article 4. See, also, Hon Michael Lavarch, Attorney-General, House of Representatives Hansard (16 November 1994) 3341.

[104]        ICCPR Entry into force for Australia 13 November 1980; CERD Entry into force for Australia 30 November 1975; Hon Michael Lavarch, Attorney-General, House of Representatives Hansard, Second reading speech (15 November 1994) 3336.

[105]        EM 1994, 1.

[106]        EM 1994, 1.

[107]        EM 1994, 1.

[108]        EM 1994, 1.

[109]        Creek v Cairns Post [2001] FCA 1007 [16].

[110]        Kiefel J is now the Chief Justice of the High Court.

[111]        [2001] FCA 1007.

[112]        [2001] FCA 1007 [16].

[113]        Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at 131 [70] (French J); Jones v Scully (2002) 120 FCR 243 [102]; Eatock v Bolt (2011) 197 FCR 261 at [267]‑[268] (Justice Bromberg) (Eatock).

[114]        RDA section 18C.

[115]        See, Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FLR 56 [15].

[116]        Eatock [243], [250].

[117]        RDA section 18C.

[118]        RDA section 18D.

[119]        See, Australian Human Rights Commission Act 1986 (AHRC Act) Part IIB and section 46PO(1)

[120]        See, AHRC Act section 46PO(1).

[121]        See Re East; Ex parte Nguyen (1998) 196 CLR 354.

[122]        These general limitation criteria reflect international human rights law. For the limitation of freedom of expression specifically, see Human Rights Committee, General comment No 34 (Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, paras 21-36 (2011).

[123]        See UNCERD, General recommendation 35: Combating racist hate speech (26 September 2013) 3.

[124]        It is noted, however, that this is not a stand-alone protection for freedom of speech but operates as an exception to conduct which would otherwise be unlawful under section 18C.

[125]        Explanatory memorandum (EM) 13.

[126]        EM 14.

[127]        See final report, Freedom of speech in Australia: Inquiry into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth) (28 February 2017).

[128]        See final report, Freedom of speech in Australia: Inquiry into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth) (28 February 2017).

[129]        See final report, Freedom of speech in Australia: Inquiry into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth) (28 February 2017).

[130]        United Nations, International Covenant on Civil and Political Rights (ICCPR) article 2. See also UN Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (2004) [15],[18].

[131]        ICCPR article 2(3); and CERD article 6.

[132]        See also UN Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (2004) [15].

[133]        ICCPR article 14.

[134]        AHRC Act section 46PO(1).

[135]        EM 8.

[136]        See final report, Freedom of speech in Australia: Inquiry into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth) (28 February 2017).

[137]        See, Supplementary Explanatory Memorandum relating to sheet HZ118 (Supplementary EM) 5; Revised Explanatory Memorandum 6.

[138]        Supplementary EM 5; Revised Explanatory Memorandum 6; Human Rights Legislation Amendment Act 2017 Schedule 2 item 53 (new subsection 46PO(3A)).

[139]        Supplementary EM 5.

[140]          See proposed section 11.

[141]          See, for example, Parliamentary Joint Committee on Human Rights, Thirty-Sixth Report of the 44th Parliament (16 March 2016) 14-18; and Thirty-Eight Report of the 44th Parliament (3 May 2016) 21-26.

[142]          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 may 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.

[143]          See proposed section 11.

[144]          See proposed section 11.

[145]          This committee has previously sought further information as to whether the arrest powers
in the Royal Commissions Act 1902 are compatible with the prohibition against arbitrary detention; see Parliamentary Joint Committee on Human Rights, Third Report of 2013 (13 March 2013) 48; and Seventh Report of 2013 (5 June 2013) 91-92. See also the Australian Law Reform Commission, Making Inquiries: A New Statutory Framework (ALRC Report 111) (10 February 2010) para 11.48 and Recommendation 11-3.

[146]          The Extradition (People's Republic of China) Regulations 2017 [F2017L00185] was subject to 15 days disallowance and tabled in the House of Representatives on 2 March 2017 and in the Senate on 20 March 2017. The Extradition (People's Republic of China) Repeal Regulations 2017 [F2017L00325] is subject to 15 days disallowance and tabled in the House of Representatives and the Senate on 29 March 2017.

[147]          See the committee's comments on the human rights compatibility of Extradition (Convention for Suppression of Acts of Nuclear Terrorism) Regulation 2012 [F2012L02434] in Parliamentary Joint Committee on Human Rights, First report of 2013 (6 February 2013) 107-108. See also Parliamentary Joint Committee on Human Rights, Third report of 2013 (13 March 2013) 128 where the committee published the then Attorney-General's response but deferred its consideration to include consideration of the response together with a number of new instruments dealing with extradition.

[148]          Parliamentary Joint Committee on Human Rights, Sixth report of 2013 (15 May 2013) 149.

[149]          Parliamentary Joint Committee on Human Rights, Tenth report of 2013 (26 June 2013) 56.

[150]          Parliamentary Joint Committee on Human Rights, Twenty-second report of the 44th Parliament (13 May 2015) 108-110.

[151]          Not yet in force.

[152]          See the committee's comments on the human rights compatibility of the Extradition (Convention for the Suppression of Acts of Nuclear Terrorism) Regulation 2012 [F2012L02434]; Extradition (Cybercrime) Regulation 2013 [F2013L00214]; Extradition (Piracy against Ships in Asia) Regulation 2013 [F2013L00397]; and Mutual Assistance in Criminal Matters (Cybercrime) Regulation 2013 [F2013L00205] in Parliamentary Joint Committee on Human Rights, Tenth report of 2013 (26 June 2013) 58.

Chapter 2 - Concluded matters

[1]          Parliamentary Joint Committee on Human Rights, Report 3 of 2017 (28 March 2017) 26-28.

[2]          Guidance Note 2: Offence provisions, civil penalties and human rights (December 2014) at: http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance_Notes_and_Resources.

[3]          Guidance Note 2: Offence provisions, civil penalties and human rights (December 2014) at: http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance_Notes_and_Resources.

[4]          Parliamentary Joint Committee on Human Rights, Report 3 of 2017 (28 March 2017) 5-8.

[5]          Guidance Note 2: Offence provisions, civil penalties and human rights (December 2014) at: http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance_Notes_and_Resources.

[6]          Guidance Note 2: Offence provisions, civil penalties and human rights (December 2014) at: http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance_Notes_and_Resources.

[7]          Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) 3-9.

[8]          Explanatory memorandum (EM) 160.

[9]          EM, statement of compatibility (SOC) 21. Note the SOC also identifies that the right to privacy is engaged and justifiably limited. No comment is made in respect of this right as, based on the information provided in the SOC and the safeguards in the relevant legislation, no concerns are raised in respect of this right.

[10]          EM, SOC 5.

[11]          EM, SOC 21-22.

[12]          Parliamentary Joint Committee on Human Rights, Tenth Report of 2013 (26 June 2013) 56-61 at 61.

[13]          Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament (24 November 2015) 37-44 at 43-44.

[14]          Parliamentary Joint Committee on Human Rights, Report 1 of 2017 (16 February 2017) 43.

[15]          EM 160 in relation to item 33 of Schedule 2 of the bill.

[16]        EM 160. This is based on section 8(2)(g) of the MA Act which provides that the Attorney‑General may refuse a request by a foreign country for assistance if in the opinion of the Attorney-General it is appropriate in all the circumstances of the case that the assistance should not be granted.

[17]        See Parliamentary Joint Committee on Human Rights, Tenth report of 2013 (27 June 2013) 56‑61 at 59.

[18]        Human Rights Committee, General Comment 27, Freedom of movement (Art.12), U.N. Doc CCPR/C/21/Rev.1/Add.9 (1999), para 13.

[19]        EM, SOC 24.

[20]        EM, SOC 24.

[21]        EM, SOC 24.

[22]        EM, SOC 24.

[23]        EM, SOC 24.

[24]          Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) 10-17.

[25]          See Parliamentary Joint Committee on Human Rights, Correspondence register, http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Correspondence_register.

[26]          The committee considered the Tribunals Amalgamation Bill 2014 in its Eighteenth Report of the 44th Parliament (10 February 2015), and found that the bill did not raise human rights concerns.

[27]          See Parliamentary Joint Committee on Human Rights, Ninth report of the 44th Parliament (15 July 2014) 43-44; Twelfth report of the 44th Parliament (24 September 2014) 24-45 Twentieth report of the 44th Parliament (18 March 2015) 80-87; Fourth Report of the 44th Parliament (18 March 2014) 51; Thirty-sixth report of the 44th Parliament (16 March 2016) 174-187.

[28]          Schedule 1, Part 1, item 34, new paragraph 338A(2)(c) applies in relation to a decision to refuse to grant a protection visa. The relevant grounds for exclusion are decisions made relying on: subsection 5H(2), which corresponds to the exclusion grounds for refugee status under article 1F of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (Refugee Convention); subsection 36(1B), which sets out that a person cannot receive a protection visa if determined by the Australian Security Intelligence Organisation (ASIO) to be a risk to security; subsection 36(1C), which sets out that the person is excluded from the grant of a protection visa if the minister considers the person is a danger or threat to Australia's security, or is a danger to the Australian community having been convicted by final judgement of a particularly serious crime; paragraph 36(2C)(a), which excludes people from complementary protection on the basis of the exclusion grounds for refugee status under article 1F of the Refugee Convention; or paragraph 36(2C)(b) which also excludes people from complementary protection if the minister considers the person to be a danger or threat to Australia's security, or a danger to the Australian community, having been convicted by final judgment of a particularly serious crime. New paragraph 338A(2)(d) applies in relation to a decision to cancel a protection visa. The relevant grounds for exclusion are the same as those under paragraph 338(2)(c), with the addition of a further ground: that a person has been assessed by ASIO as a risk to security.

[29]          These include unauthorised maritime arrivals who entered Australia on or after 13 August 2012 but before 1 January 2014 and who have not been taken to a regional processing country.

[30]          See the committee's comments on the human rights compatibility of the fast-track review process in Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 174-187.

[31]          Australia's obligations arise under the article 33 of the Refugee Convention in respect of refugees, and also under articles 6(1) and 7 of International Covenant on Civil and Political Rights (ICCPR), article 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty. The non‑refoulement obligations under the ICCPR and CAT 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.

[32]          ICCPR, article 2. See Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (11 February 2014) 45; Fourth Report of the 44th Parliament (18 March 2014) 51; Thirty-sixth report of the 44th Parliament (16 March 2016) 174-187.

[33]        See Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 179-180, 182-183. Treaty monitoring bodies have found that the provision of effective and impartial review of non-refoulement decisions by a court or tribunal is integral to complying with the obligation of non-refoulement under the ICCPR and CAT.

[34]        Explanatory memorandum (EM), statement of compatibility (SOC) 45.

[35]        EM, SOC 45.

[36]        See section 7 of the Human Rights (Parliamentary Scrutiny) Act 2011.

[37]        EM, SOC 46.

[38]        For the reasoning in support of this view, see Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 184.

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

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

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

[42]        Australia is a party to this the VCLT 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.

[43]           Any subsequent response received from the minister will be published on the committee's website. See Parliamentary Joint Committee on Human Rights, Correspondence register, http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Correspondence_register.

[44]        EM, SOC 45.

[45]        Parliamentary Joint Committee on Human Rights, Ninth report of the 44th Parliament (15 July 2014) 43-44. The committee also considered the 'quality of law test' in respect of the requirement on applicants to provide a 'reasonable explanation', and on the basis of information provided by the minister, subsequently found this measure to be compatible with the quality of law test for human rights purposes: Parliamentary Joint Committee on Human Rights, Twelfth report of the 44th Parliament (24 September 2014) 30-32.

[46]        Parliamentary Joint Committee on Human Rights, Ninth report of the 44th Parliament (15 July 2014) 43.

[47]        Parliamentary Joint Committee on Human Rights, Ninth report of the 44th Parliament (15 July 2014) 43-44.

[48]        See, Parliamentary Joint Committee on Human Rights, Twelfth report of the 44th Parliament (24 September 2014) 30.

[49]        Any subsequent response received from the minister will be published on the committee's website. See Parliamentary Joint Committee on Human Rights, Correspondence register, http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Correspondence_register.

[50]        Schedule 2, Part 3, item 27 inserts new subsection 473CA(2).

[51]        Schedule 2, Part 3, item 28 inserts new section 473DG.

[52]        Schedule 2, Part 3, item 33 inserts new section 473HE.

[53]        EM, SOC 45.

[54]        Parliamentary Joint Committee on Human Rights, Fourteenth report of the 44th Parliament (28 October 2014) 88.

[55]        Parliamentary Joint Committee on Human Rights, Fourteenth report of the 44th Parliament (28 October 2014) 88.

[56]        Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 178. It was noted that the fact that the reviewers are employees under the Public Service Act 1999 affects the independence of such a review and therefore the impartiality of such a review.

[57]        Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 178.

[58]        Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 178. Specifically, it was noted that: '... nothing in Part 7AA requires the IAA to give a referred applicant any material that was before the primary decision maker. There is also no right for an applicant to comment on the material before the IAA. These provisions therefore diminish procedural fairness and the applicant's prospects of correcting factual errors or wrong assumptions in the primary decision at the review stage.'

[59]           Any subsequent response received from the minister will be published on the committee's website. See Parliamentary Joint Committee on Human Rights, Correspondence register, http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Correspondence_register.

[60]          Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) 18-25.

[61]          See Native Title Act 1993 (NTA) section 34CD.

[62]          See NTA section 24CB.

[63]          See NTA section 24AA(3).

[64]          Explanatory memorandum (EM) 2.

[65]          EM 2.

[66]          [2017] FCAFC 10 (McGlade).

[67]          The decision of the full bench of the Federal Court in McGlade reversed the decision of Reeves J in QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412 (Bygrave) which held the authorisation of the ILUA by the claimant group was of paramount importance, not the signature of all of the persons comprising the applicant. Once authorised, the claimant group could decide who they wanted to sign the Area ILUA. Prior to Bygrave an Area ILUA would not be registered unless it was signed by all of the RNTCs.

[68]          See proposed section 251A(2).

[69]        See proposed section 251A(2).

[70]        See proposed section 24CD(2)(a).

[71]        EM 6.

[72]        See, UN Human Rights Committee, General Comment No. 23: The rights of minorities (1994); UN Human Rights Committee, Concluding Observations of the Human Rights Committee: Australia, A/55/40 (2000) and Human Rights Committee, Concluding observations on the fifth periodic report of Australia, CCPR/C/AUS/CO/5 (2009).

[73]        EM 7.

[74]        EM 7.

[75]        EM 4.

[76]        See UN Committee on the Elimination of Racial Discrimination, General Recommendation 21, The right to self-determination (1996).

[77]        EM 8.

[78]        UN Declaration on the Rights of Indigenous Peoples, article 3.

[79]        EM 8.

[80]        Customary international law is the practice of states accepted by states internationally as law. It has two elements (1) widespread and representative state practice and (2) opinio juris (belief by states that such conduct is required because a rule of law renders it compulsory). Customary international law is binding on all states.

[81]        EM 8.

[82]        EM 8.

[83]        See Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, A/HRC/12/34 (2009) [38]; See, also Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Stronger Futures in the Northern Territory Act 2012 and related legislation (June 2013) 16.

[84]        See, for example, Trevor Buck, International Child Law (Routledge, 2014) 437 – 438; Brenda L Gunn, 'Self-Determination as the Basis for Recognition: Implementing the UN Declaration on the Rights of Indigenous Peoples' 7(30) (May/June 2012) Indigenous Law Bulletin 22; Kanchana Kariyawasam, 'The significance of the UN Declaration on the rights of Indigenous Peoples: The Australian Perspectives' 11(2) (2010) Asia-Pacific Journal on Human Rights and the Law 1-17; Elvira Pulitano (ed) Indigenous Rights In the Age of the UN Declaration (Cambridge University Press, 2012).

[85]          Parliamentary Joint Committee on Human Rights, Report 3 of 2017 (28 March 2017) 26-28.

[86]          Guidance Note 2: Offence provisions, civil penalties and human rights (December 2014) at: http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance_Notes_and_Resources.

[87]          Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) 26-28.

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

[89]          See Mid-Year Economic and Fiscal Outlook 2016-17, December 2016, Appendix A. See also Crimes Amendment (Penalty Unit) Bill 2017, which seeks to increase the amount of the Commonwealth penalty unit from $180 to $210, with effect from 1 July 2017. This bill was introduced into the House of Representatives on 16 February 2017.

[90]          Parliamentary Joint Committee on Human Rights, Report 3 of 2017 (28 March 2017) 5-8.

[91]          See Parliamentary Joint Committee on Human Rights, Correspondence register, http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Correspondence_register.

[92]          Proposed section 409A of the Military, Rehabilitation and Compensation Act 2004, proposed section 151B of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 and proposed section 131A of the Veterans' Entitlements Act 1986.

[93]          At proposed subsection 409A(6) of the Military, Rehabilitation and Compensation Act 2004, proposed subsection 151B(6) of the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988 and proposed subsection 131A(6) of the Veterans' Entitlements Act 1986.

[94]          At proposed subsection 409A(7) of the Military, Rehabilitation and Compensation Act 2004, proposed subsection 151B(7) of the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988 and proposed subsection 131A(7) of the Veterans' Entitlements Act 1986. 

[95]          Namely, the Military, Rehabilitation and Compensation Act 2004, Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988  or the Veterans' Entitlements Act 1986.

[96]          Lawful interferences with privacy must be sufficiently circumscribed in order to accord with article 17 of the International Covenant on Civil and Political Rights: UN Human Rights Committee, General Comment 16: Article 17 (Right to Privacy) (1988) paragraph [8].

[97]          Explanatory memorandum (EM) 11.

[98]          EM, statement of compatibility (SOC) 3.

[99]        EM, SOC 4.

[100]           Any subsequent response received from the minister will be published on the committee's website. See Parliamentary Joint Committee on Human Rights, Correspondence register, http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Correspondence_register.

[101]             Parliamentary Joint Committee on Human Rights, Report 3 of 2017 (28 March 2017) 2-4.

[102]             See Parliamentary Joint Committee on Human Rights, Twenty-eighth report of the 44th Parliament (17 September 2015) 10-14; Thirtieth report of the 44th Parliament (10 November 2015) 102; and Thirty-fourth report of the 44th Parliament (23 February 2016) 115-119.

[103]             See Parliamentary Joint Committee on Human Rights, Thirty-fourth report of the 44th Parliament (23 February 2016) 119.

[104]          Explanatory statement, statement of compatibility 2.

[105]          Parliamentary Joint Committee on Human Rights, Report 1 of 2017 (16 February 2017) 2-4.

[106]          Parliamentary Joint Committee on Human Rights, Report 3 of 2017 (28 March 2017) 9-12.

[107]          Schedule 4, subregulation 1.12(2).

[108]          As defined at Schedule 4, subregulation 1.12(3).

[109]          Schedule 4, subregulation 1.12(4).

[110]          See, for example, UN Human Rights Committee, General Comment 16: Article 17 (Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation), 1988 at [5] which stated that the term 'family' should 'be given a broad interpretation to include all those comprising the family as understood in the society of the State Party concerned'. See also UN Human Rights Committee, General Comment 19: Article 23 (The Family), 1990 at [2].

[111]          The previous definition of member of the same family unit will continue to apply to these visa classes – see: explanatory statement (ES), statement of compatibility (SOC) 11.

[112]          ES, SOC 12.

[113]          ES, SOC 12.

[114]        See, for example, Sen v the Netherlands (Application no. 31465/96) (2001) ECHR; Tuquabo‑Tekle And Others v The Netherlands (Application no. 60665/00) (2006) ECHR [41]; Maslov v Austria (Application no. 1638/03) (2008) ECHR [61]-[67].

[115]          Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) 41-43.

[116]          The bill passed both Houses of Parliament with amendments on 15 September 2016, and received Royal Assent on 16 September 2016.

[117]          Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016) 2-11.

[118]          Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016)      57‑61.

[119]          Namely, a social security benefit (other than a special benefit), a pension Parenting Payment (single), carer payment, a mobility allowance, a seniors health card or a health care card.

[120]          Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 59.

[121]          See section 4 of the Social Security (Class of Visas —Qualifying Residence Exemption) Determination 2015 [F2015L01815]: Subclass 100 (Partner); Subclass 110 (Interdependency);   Subclass 801 (Partner); Subclass 814 (Interdependency); and Subclass 852 (Referred Stay (Permanent)).

[122]          At subsection 2(1).

[123]          At section 5.

[124]        Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 57-61.

[125]        Explanatory statement, statement of compatibility 3.

Appendix 1 - Deferred legislation

[1]          See Parliamentary Joint Committee on Human Rights, Report 1 of 2017 (16 February 2017) 53.

[2]          See Parliamentary Joint Committee on Human Rights, Report 3 of 2017 (28 March 2017) 21.

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'.