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: the Law Enforcement Integrity Commissioner Regulations 2017 [F2017L00304] and the Telecommunications Integrated Public Number Database Scheme 2017 [F2017L00298] (first deferred in Report 4 of 2017); the Aviation Transport Security Amendment (Persons in Custody) Regulations 2017 [F2017L00440], the Imported Food Control Amendment Bill 2017, and the Specification of Occupations, a Person or Body, a Country or Countries Amendment Instrument 2017/040 - IMMI 17/040 [F2017L00450] (first deferred in Report 5 of 2017); the Long Service Leave (Commonwealth Employees) Amendment (2017 Measures No. 1) Regulations 2017 [F2017L00568], the Migration Legislation Amendment (2017 Measures No. 2) Regulations 2017 [F2017L00549], and the Norfolk Island Continued Laws Amendment (2017 Measures No. 1) Ordinance 2017 [F2017L00581] (deferred in Report 6 of 2017).

[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]        Federal Financial Relations (National Partnership payments) Determination No. 116 (February 2017) [F2017L00198]; Federal Financial Relations (National Partnership payments) Determination No. 117 (March 2017) [F2017L00413]; Federal Financial Relations (National Partnership payments) Determination No. 118 (April 2017) [F2017L00540]; Federal Financial Relations (National Partnership Payments) Determination No. 119 (May 2017) [F2017L00707].

[6]        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) 102-109; Report 7 of 2016 (11 October 2016) 40-43; Report 8 of 2016 (9 November 2016) 84-87; and Report 3 of 2017 (28 March 2017) 13-16.

[7]        Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016) 40-43.

[8]        Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 84-87.

[9]        Federal Financial Relations (National Partnership payments) Determination No. 112 (October 2016) [F2016L01724]; Federal Financial Relations (National Partnership Payments) Determination No. 113 (November 2016) [F2016L01937]; Federal Financial Relations (National Partnership payments) Determination No. 114 (December 2016) [F2017L00049]; and Federal Financial Relations (National Partnership payments) Determination No. 115 (January 2017) [F2017L00050] 13-16.

[10]      The committee has previously considered similar issues in relation to the human rights compatibility of funding allocation measures through appropriation bills: See, Parliamentary Joint Committee on Human Rights, Twenty-third report of the 44th Parliament (18 June 2015) Appropriation Bill (No. 3) 2014-2015 and Appropriation Bill (No. 4) 2014-2015, 13-17; Report 2 of 2017 (21 March 2017) Appropriation Bill (No. 3) 2016-2017 and Appropriation Bill (No. 4) 2016-2017, 44-46; Report 5 of 2017 (14 June 2017) Appropriation Bill (No. 1) 2017-2018 and Appropriation Bill (No. 2) 2017-2018, 42-44.

[11]      Explanatory statement, statement of compatibility 2.

[12]      Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 84-87.

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

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

[15]        Explanatory Memorandum (EM) 2.

[16]        SOC 3.

[17]        EM 2.

[18]        SOC 5.

[19]        SOC 5.

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

[21]        EM 2.

[22]      EM 12.

[23]      EM 2.

[24]      EM 9-10.

[25]      EM 2.

[26]      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 (accessed 15 June 2017).

[27]      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.

[28]      SOC 5.

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

[30]      SOC 7.

[31]      SOC 7.

[32]      SOC 6.

[33]      SOC 6.

[34]      SOC 7.

[35]        Explanatory memorandum (EM) 5.

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

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

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

[39]        Statement of compatibility, schedule 1.

[40]        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'.

[41]        See, e.g., Althammer v Austria, Human Rights Committee (HRC) 998/01, 8 August 2003, [10.2].

[42]        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).

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

[44]        See Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 11; and Report 9 of 2016 (22 November 2016) 56.

[45]        Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 12.

[46]        See DPRK sanctions regulations section 5.

[47]        See DPRK sanctions regulations section 5(1)(c).

[48]        Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 12.

[49]        United Nations Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of persons), (16 December 2014) [22].

[50]        See Guidance Note 1, Appendix 4. See also the Attorney-General's Department's guidance on the preparation of statements of compatibility: 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/RightsAndProtections/HumanRights/Human-rights-scrutiny/Pages/Statements-of-Compatibility-Templates.aspx.

[51]        See Appendix 4.

[52]        See, article 17 of the International Covenant on Civil and Political Rights, article 22 of the Convention on the Rights of Persons with Disabilities (CRPD), and article 16 of the Convention on the Rights of the Child (CRC).

[53]        Statement of compatibility (SOC) 13.

[54]        SOC 13.

[55]        SOC 13.

[56]        SOC 13.

[57]        Proposed section 67F states '[t]he National Disability Insurance Scheme rules may make provision for and in relation to the exercise of the Commissioner’s power to disclose information for the purposes of paragraph 67E(1)(a) or subparagraph 67E(1)(b)(i), (iii) or (iv)' (emphasis added).

[58]        Parliamentary Joint Committee on Human Rights, Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016, Report 9 of 2017 (22 November 2016) 2-8; Report 1 of 2017 (16 February 2017) 35-44.

[59]        Subject to the requirement that the respective state legislation meets the requirements in section 35 of the Telecommunications (Interception and Access) Act 1979 (TIA Act).

[60]        'Communication' is defined in section 5 of the TIA Act as including: 'conversation and a message, and any part of a conversation or message, whether: (a) in the form of: (i) speech, music or other sounds; (ii) data; (iii) text; (iv) visual images, whether or not animated; or (v) signals; or (b) in any other form or in any combination of forms'. The declaration would enable the LECC to access the content of private communications via warrant under chapter 2 and chapter 3 of the TIA Act.

[61]        See section 107H of the TIA Act.

[62]        See section 109 of the TIA Act.

[63]        'Telecommunications data' refers to metadata rather than information that is the content or substance of a communication: see section 172 of the TIA Act.

[64]        That is, the interception of live communications.

[65]        Explanatory memorandum (EM), statement of compatibility (SOC) 2.

[66]        SOC 2.

[67]        UN Committee on Economic, Social and Cultural Rights, General Comment 14: the Right to the Highest Attainable Standard of Health, [51]

[68]        See, for example, Quit Resource Centre, E-cigarettes, http://www.quit.org.au/resource-centre/policy-advocacy/policy/e-cigarettes1; Cancer Council NSW, Why we need to regulate e-cigarettes, https://www.cancercouncil.com.au/109406/cancer-prevention/smoking-reduce-risks/why-we-need-to-regulate-electronic-cigarettes/

[69]        Explanatory Memorandum, Statement of Compatibility 4.

[70]        The following three bills, introduced into the Parliament between 9 May and 1 June, should have been listed as not raising human rights concerns in the committee's Report 5 of 2017: the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Bill 2017; the Industrial Chemicals (Notification and Assessment) Amendment Bill 2017; and the Industrial Chemicals Charges (General) Bill 2017.

Chapter 2 - Concluded matters

[1]          Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 12‑15.

[2]          Parliamentary Joint Committee on Human Rights, Report 10 of 2016 (30 November 2016)   13-16.

[3]          See, Parliamentary Joint Committee on Human Rights, Sixth Report of 2013 (15 May 2013) Australian Public Service Commissioner's Directions 2013 [F2013L00448] 133‑134; Eighteenth Report of the 44th Parliament (10 February 2015) Australian Public Service Commissioner's Amendment (Notification of Decisions and Other Measures) Direction 2014 [F2014L01426] 65-67; and Twenty-first Report of the 44th Parliament (24 March 2015) Australian Public Service Commissioner's Amendment (Notification of Decisions and Other Measures) Direction 2014 [F2014L01426] 25‑28.

[4]          Parliamentary Joint Committee on Human Rights, Twenty-first Report of the 44th Parliament (24 March 2015) 25‑28.

[5]          Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 12‑15.

[6]          Parliamentary Joint Committee on Human Rights, Report 10 of 2016 (30 November 2016)   13-16.

[7]        Parliamentary Joint Committee on Human Rights, Report 5 of 2017 (14 June 2017) 22-30.

[8]        Parliamentary Joint Committee on Human Rights, Twelfth Report of the 44^th Parliament (24 September 2014) 8-13; Eighteenth Report of the 44^th Parliament (10 February 2015) 43-64; Twenty-second Report of the 44^th Parliament.

[9]        A commonwealth supported student place is part subsidised by the Australian government through the government paying part of the fees for the place directly to the university. Students are also required to contribute towards the study and pay the remainder of the fee called the 'student contribution amount' for each unit they are enrolled in at the higher education institution.

[10]      See, UN Committee on Economic, Social and Cultural Rights, General Comment 13: the Right to education (8 December 1999).

[11]      SOC 3.

[12]      See, UN Committee on Economic, Social and Cultural Rights, General Comment 13: the Right to education (8 December 1999) [45].

[13]      SOC 8.

[14]      However, it should be noted that the UN Committee on Economic, Social and Cultural Rights (UNESCR) has raised serious concerns about access to education in relation to the operation of the student loans scheme in the United Kingdom which shares similar elements to the Australian HELP scheme: UNESCR, Concluding observations on the United Kingdom of Great Britain and Northern Ireland, E/C.12/1/Add.79 (5 June 2002) [22]; UNESCR, Concluding observations on the United Kingdom of Great Britain and Northern Ireland, E/C.12/GBR/CO/5 (12 July 2009) [44]; UNESCR, Concluding observations on the United Kingdom of Great Britain and Northern Ireland, E/C.12/GBR/CO/6 (14 July 2016) [65]-[66].

[15]      See, for example, University of New South Wales, Submission 32; University of Sydney, Submission 34, to the Senate Education and Employment Legislation Committee inquiry into the Higher Education Support Legislation Amendment (A More Sustainable, Responsive and Transparent Higher Education System) Bill 2017, which argues that under the bill Australian students will pay more while universities will receive substantially less funding.

[16]      An enabling course is a course of instruction that enables a person to undertake a course leading to a higher education award (sometimes referred to as a bridging course).

[17]      Item 3, new section 36-10(2)(b); EM 45.

[18]      Item 3, new section 36-10(2)(b); EM 45.

[19]      The prohibited grounds are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation: UN Human Rights Committee, General Comment 18, Non-discrimination (1989).

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

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

[22]      As noted in the minister's response, the commonwealth will contribute a subsidy of on average 54 per cent of the cost of courses for an Australian commonwealth supported student. A non-commonwealth supported student will have to cover the full fees for the course. From this it can be inferred that New Zealand citizens and Australian permanent residents would be required to pay close to twice the amount of a commonwealth supported student.

[23]      Until 1996 HECS-HELP loans were available to New Zealand citizens studying in Australia who were permanent residents. The Higher Education Funding Amendment Act (No. 2) 1995 restricted access to HECS loans to those New Zealanders who had been permanent residents before 1 January 1996 and who had commenced their courses before this date. From 1 January 2005 under the Higher Education Support Act 2003 permanent residents were no longer able to access HECS-HELP loans and defer their fees. While such students had to pay their fees upfront they were still eligible for commonwealth supported university places.

[24]      EM 45.

[25]      EM 45.

[26]      See, Australian Bureau of Statistics (ABS), Employee Earnings and Hours (May 2016) http://www.abs.gov.au/ausstats/abs@.nsf/0/27641437D6780D1FCA2568A9001393DF?Opendocument; ABS, Gender indicators, Australia (August 2016) http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4125.0~August%202016~Main%20Features~Economic%20Security~6151; Workplace Gender Equality Agency,  Gender pay gap statistics (March 2016)  https://www.wgea.gov.au/sites/default/files/Gender_Pay_Gap_Factsheet.pdf (accessed 24 May 2017). 

[27]      See, for example, Senate Standing Committee on Education and Employment, The Future of HECS (28 October 2014) 52.

[28]      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).

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

[30]      SOC 10.

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'.