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

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

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

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

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

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

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

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

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

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

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

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

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

[17]        SOC 78-79.

[18]        SOC 71.

[19]        SOC 71.

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

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

[22]        93% of those in Australia's current Adult Migrant English Program fail to reach functional English levels after 500 hours of tuition, a level lower than the proposed level 6 IELTS. See [1.25]. When Germany instituted an integration course and language test for candidates for permanent residence, 32.4%-46.2% of test-takers failed the language test: See, Sara Wallace Goodman, Immigration and Membership Politics in Western Europe, 136, citing BAMF, "9. Lagebericht Der Beauftragten Der Bundesregierung Für Migration, Flüchtlinge Und Integration über Die Lage Der Ausländerinnen Und Ausländer in Deutschland," (July, 2012), 677.

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

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

[25]        Explanatory memorandum (EM) 27.

[26]        See Citizenship Act, section 34.

[27]        Proposed new section 34AA.

[28]        EM, SOC 79.

[29]        EM, SOC 80; See also Migration Act 1958 section 35.

[30]        Article 3(1).

[31]        EM, SOC 79.

[32]        See, for example, Human Rights Committee, Freedom of movement (Art.12), UN Doc CCPR/C/21/Rev.1/Add.9, General Comment No.27, Pinkney v Canada HRC Communication No. 27/1977, UN Doc CCPR/C/14/D/27/1977;  See, Hasan and Chaush v Bulgaria, ECHR, Application No. 30985/96 (26 October 2000) [84].

[33]        EM, SOC 79.

[34]        EM, SOC 79.

[35]        EM, SOC 79.

[36]        EM, SOC 79.

[37]        Article 24(3) of the ICCPR.

[38]        Articles 1 and 8 of the Convention on the Reduction of Statelessness 1961.

[39]        See 2014 bill Explanatory Memorandum (EM), Attachment A, 2.

[40]        2014 bill EM, Attachment A, 2.

[42]        See, Rebecca Kingston, 'The Unmaking of Citizens: Banishment and the Modern Citizenship Regime in France', (2005) 9 Citizenship Studies 23. Macklin, Audrey and Rainer Baubock, ‘The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship?’ (February 2015), Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2015/14. Barry, Christian and Luara Ferracioli, ‘Can Withdrawing Citizenship Be Justified?’, Political Studies (forthcoming), accessed at http://philpapers.org/archive/BARCWC-3.pdf.

[43]        An Australian citizen whose citizenship is revoked will be granted an ex-citizen visa. However, a visa including an ex-citizen visa may be cancelled on a range of grounds, which means that the person may be subject to deportation.

[44]        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)).

[45]        See, item 126, proposed section 52.

[46]        Article 12 of the ICCPR.

[47]        EM, SOC 80; See also Migration Act 1958 section 35.

[48]        EM, SOC 78.

[49]        See, for example, Nystrom v Australia (2011), UN Human Rights Committee, CCPR/C/102/D/1557/2007.

[50]        Views: Communications No 1557/2007, 102^nd session, UN Doc CCPR/C/102/D/1557/2007 (18 July 2011) (‘Nystrom’), [7.6]. Emphasis added.

[51]        Department of Immigration and Border Protection, Good character and offences, http://www.border.gov.au/Trav/Citi/Appl/What-documents-do-you-need/good-character-and-offences.

[52]        Article 3(1) of the CRC.

[53]        SOC 81.

[54]        SOC 81.

[55]        SOC 81; 2014 bill EM, Attachment A, 4.

[56]        United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), http://www.un.org/documents/ga/res/40/a40r033.htm.

[57]        Citizenship Act, section 14.

[58]        EM, Attachment A, 12.

[59]        Article 3(1), 7 of the CRC.

[60]        EM, SOC 84.

[61]        EM, Attachment A, 12.

[62]        See, SOC 84.

[63]        The current definition of 'ordinarily resident' is if the child has their home in Australia or it is their permanent abode even if he or she is temporarily absent from Australia. In effect, this means that a child born and raised in Australia automatically becomes an Australian citizen on their tenth birthday, regardless of whether they or their parents hold a valid visa.

[64]        See, item 20 of the bill.

[65]        Article 3(1) of the CRC.

[66]        EM, Attachment A, 12.

[67]        EM, SOC 83.

[68]        See, EM, SOC 83.

[69]        See item 126, proposed new subsection 52(4). See also section 47 of the Migration Act.

[70]        See item 126.

[71]        See, item 127, proposed section 52A.

[72]        EM, SOC 87.

[73]        See, item 103, section 30(8); EM, SOC 81.

[74]        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).

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

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

[77]        EM, SOC 82.

[78]        EM, SOC 81.

[79]        EM, SOC 82.

[80]        EM, SOC 82.

[81]        EM, SOC 82.

[82]          Graham v. Minister for Immigration and Border Protection, High Court of Australia, Case No. M97/2016; Te Puia v. Minister for Immigration and Border Protection, High Court of Australia, Case No. P58/2016.

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

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

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

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

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

[88]          Graham v. Minister for Immigration and Border Protection, High Court of Australia, Case No. M97/2016; Te Puia v. Minister for Immigration and Border Protection, High Court of Australia, Case No. P58/2016. The applicants are challenging the constitutionality of section 503A on the grounds that  its denial of information to the courts (i) offends against the constitutional separation of powers and (ii) interferes with the High Court's judicial review function established in s75(v) of the Constitution. The High Court has reserved its judgment in both cases.

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

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

[91]        Statement of compatibility (SOC) 6.

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

[93]        SOC 6.

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

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

[96]        SOC 6.

[97]        SOC 6.

[98]        SOC 6.

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

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

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

[102]        SOC 7.

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

[104]        See Refugee Convention, article 33. The non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and International Covenant on Civil and Political Rights 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.

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

[106]        SOC 7-8.

[107]        A person may apply for a protection visa or, if formally invited by the minister to do so, a Bridging R (Class WR) Visa. However, if the visa that was cancelled was a protection visa, the person will be prevented from applying for another protection visa unless the minister exercises a personable, non-compellable power to do so. The Bridging R (Class WR) Visa is temporary and applies so long as the minister is satisfied that the person's removal is not reasonably practicable.

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

[109]        Article 12 of the ICCPR.

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

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

[112]          EM 4-5.

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

[114]          Statement of Compatibility (SOC) 24.

[115]          See, International Covenant on Economic Social and Cultural Rights (ICESCR) articles 9, 11.

[116]          Statement of compatibility (SOC) 136.

[117]          SOC 137.

[118]          See, for example, Explanatory Memorandum (EM) 44.

[119]          See, SOC 137-139.

[120]          EM 2.

[121]          See, Department of Social Services, Guide to Social Security Law, Version 1.234, 3.2.1.40 RapidConnect - Impact on NSA Payability.

[122]          The one-week waiting period - or Ordinary Waiting Period (OWP) - also applies to persons claiming the parenting payment and sickness allowance. A number of exemptions are available, including for persons experiencing financial hardship.

[123]          This measure does not apply to persons claiming Youth Allowance who are new apprentices or full-time students. See EM 56.

[124]        EM, SOC 147.

[125]        EM, SOC 146.

[126]        See EM 63.

[127]        An employment pathway plan sets out particular activities certain recipients must do in order to receive their Newstart Allowance or Youth Allowance payments.

[128]        EM 63. See discussion of Schedules 13 and 14 below.

[129]        EM 63.

[130]        SOC 156.

[131]        SOC 151.

[132]        SOC 156-157. Mutual obligation requirements are either participation or activity test requirements that a person must meet in order to receive certain social security payments, including Newstart Allowance and Youth Allowance.

[133]        SOC 156-157.

[134]        Cannabis has much longer windows of detection than opiates, amphetamines and cocaine, and can be detected up to 10 days after use where a urine test is used. See Australian National Council on Drugs, Position Paper: Drug Testing, August 2013.

[135]        The person can dispute the result and request a retest, however it is not clear how this would operate, and if it would still result in the payment being quarantined.

[136]        Proposed subsection 123UFAA(1C) provides that the Secretary may determine that a person is not subject to the income management regime, but this is a non-compellable discretion, and only applies if the Secretary is satisfied that being subject to the regime 'poses a serious risk to the person's mental, physical or emotional wellbeing'. See EM 76-77.

[137]        One study indicated that the percentage of users who developed a dependency was 9% for marijuana, 15% for alcohol, 17% for cocaine, and 23% for heroin: U.S. National Academy of Sciences, Institute of Medicine, Marijuana and Medicine: Assessing the Science Base (Washington D.C., 1999).

[138]        SOC 157.

[139]        The Department of Human Services has previously maintained that it is permissible to disclose welfare recipients' personal information to correct media statements. See http://www.abc.net.au/news/2017-03-02/department-of-human-services-defends-release-blogger-personal/8317910.

[140]        S and Marper v UK, ECtHR, 4 December 2008, [72]-[73].

[141]        Proposed section 38FA provides that the Minister may make rules providing for a number of matters, including the confidentiality and disclosure of drug test results.

[142]        See SOC 150: 'The trial sites will be set out in a legislative instrument and will be selected based on the best available evidence and data around drug use in Australia, as well as the availability of alcohol and other drug treatment options'; and EM, 62: 'These locations will be selected by considering a range of factors, including crime statistics, drug use statistics, social security data and health service availability'.

[143]        SOC 153.

[144]        Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures Measures, (16 March 2016) 60-61.

[145]        Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures Measures, (16 March 2016) 61, [4.101].

[146]        Henry Review of Australia's Future Tax System Final Report, F1 [Income support payments], http://taxreview.treasury.gov.au/content/FinalReport.aspx?doc=html/publications/Papers/Final_Report_Part_2/chapter_f1-2.htm; Business Council of Australia, Submission to the Senate Inquiry into the Adequacy of the Allowance Payment System for Jobseekers and Others, August 2012, http://www.bca.com.au/publications/submission-to-the-senate-inquiry-into-the-adequacy-of-the-allowance-payment-system-for-jobseekers-and-others; Senate Standing Committees on Education and Employment, The adequacy of the allowance payment system for jobseekers and others, the appropriateness of the allowance payment system as a support into work and the impact of the changing nature of the labour market, 29 November 2012, 3.5, 3.83.

[147]        Proposed section 1206XD(1) of the Social Security Act 1991. EM 71.

[148]        SOC 154.

[149]        See Australian National Council on Drugs, Position Paper: Drug Testing, August 2013, 14; National Institute on Drug Abuse, Principles of Drug Addiction Treatment: A Research Based Guide, December 2012, 12 [Figure illustrating relapse rates between drug addiction and other chronic illnesses: drug addiction was 40 to 60% of all patients. 'For the addicted individual, lapses to drug abuse do not indicate failure — rather, they signify that treatment needs to be reinstated or adjusted, or that alternative treatment is needed'].

[150]        SOC 154.

[151]        United Nations Committee on Economic, Social and Cultural Rights, General Comment 19: The Right to Social Security (art. 9), 23 November 2007, [42], discussed above at [1.8].

[152]        Art. 2 and 9 ICESCR; S.W.M Broeks v Netherlands, Communication No. 172/1984, CCPR/C/OP/2 at 196 (1990).

[153]        Concluding Observations on Ireland (2000) UN Doc A/55/40, [422]-[51], [29e]; Panama, 2008, [8]; Sweden (2009), [9], Dominican Republic (2012) [9].

[154]        The Department of Human Services has stated that they are required to seek an exemption from the operation of the Disability Discrimination Act 1992.

[155]        SOC 155.

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

[157]        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).

[158]        Concluding Observations on Ireland (2000) UN Doc A/55/40, paras 422-51, para 29e; Panama, 2008, para. 8; Sweden (2009), para 9, Dominican Republic (2012) [9].

[159]        The Department of Human Services has stated that they are required to seek an exemption from the operation of the Disability Discrimination Act 1992.

[160]        SOC 161.

[161]        SOC 162.

[162]        SOC 162.

[163]        EM 80.

[164]        Compare, Social Security (Employment Pathway Plan Requirements) Determination 2015 (No. 1) [F2015L02029], s 5(a)(ii) and (iii).

[165]        SOC 165.

[166]        SOC 165.

[167]        EM 86.

[168]        See, Schedule 14.

[169]        SOC 161.

[170]        SOC 159.

[171]        Mutual obligation requirements include a range of requirements a job seeker can be compelled to undertake under social security law, such as attending employment service provider appointments or appointments with relevant third party specialist organisations or undertaking job search requirement: Department of Human Services, Guide to Social Security Law [3.2.8.10] http://guides.dss.gov.au/guide-social-security-law/3/2/8/10.

[172]        See, Parliamentary Joint Committee on Human Rights, Ninth Report of the 44th Parliament, Social Security Legislation Amendment (Stronger Penalties for Serious Failures) Bill 2014 (15 July 2014) 66-70; Thirty-Second Report of the 44^th Parliament, Social Security Legislation Amendment (Further Strengthening Job Seeker Compliance) Bill 2015 (1 December 2015) 92-100; Thirty-Third Report of the 44^th Parliament, Social Security Legislation Amendment (Community Development Program) Bill 2015 (2 February 2016) 7-12.

[173]        See proposed sections 42AC, 42AJ.

[174]        See SOC 169.

[175]        SOC 172.

[176]        SOC 172.

[177]        EM 88-89; SOC 144.

[178]        EM 170.

[179]        EM 170.

[180]        Social Security Administration Act, section 42Q.

[181]        SOC 176.

[182]        SOC 175-176.

[183]        EM 90.

[184]        See, Parliamentary Joint Committee on Human Rights, Ninth Report of the 44th Parliament, Social Security Legislation Amendment (Stronger Penalties for Serious Failures) Bill 2014 (15 July 2014) 66-70.

[185]        EM 90.

[186]        EM 90; SOC 176.

[187]        EM 90; SOC 176.

[188]        EM 90; SOC 176.

[189]        EM 90; SOC 176.

[190]        SOC 172.

[191]        EM 89.

[192]        See, Parliamentary Joint Committee on Human Rights, Ninth Report of the 44th Parliament, Social Security Legislation Amendment (Stronger Penalties for Serious Failures) Bill 2014 (15 July 2014) 66-70.

[193]        Social Security (Administration) Act 1999, Part 5, section 197. There are equivalent provisions under A New Tax System (Family Assistance) (Administration) Act 1999, the Student Assistance Act 1973 and the Paid Parental Leave Act 2010.

[194]        SOC 179.

[195]        See, item 54, proposed section 197A.

[196]        SOC 182.

[197]        SOC 179.

[198]        SOC 181.

[199]        SOC 180.

[200]        A 'use' immunity provides that where a person has been required to give incriminating evidence, that evidence cannot be used directly against the person in any civil or criminal proceeding. 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.

[201]        Art. 2 and 9 ICESCR; S.W.M Broeks v Netherlands, Communication No. 172/1984, CCPR/C/OP/2 at 196 (1990).

[202]        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'.

[203]        Convention on the Rights of Persons with Disabilities, art 5(4).

[204]        SOC 184-185.

[205]          Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 [F2011L02716].

[206]          Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 [F2011L02716], Table 6.

[207]          Explanatory Statement (ES) 1.

[208]          Statement of compatibility (SOC) 3.

[209]          SOC 3.

[210]          See, Advisory Committee Final Report, Submitted to the Australian Government Department of Families, Housing, Community Services and Indigenous Affairs https://www.dss.gov.au/sites/default/files/documents/05_2012/dsp_impairment_tbls_final_rpt.pdf.

[211]          Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, Table 6.

Chapter 2 - Concluded matters

[1]          Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) 3-6.

[2]          Parliamentary Joint Committee on Human Rights, Report 5 of 2017 (14 June 2017) 34-41.

[3]          Explanatory memorandum (EM) 8.

[4]          EM 8.

[5]          The first of these related to the right to privacy and the application of the Australian Privacy Principles to the measure, which was clarified by the Minister. The committee therefore concluded in its Report 5 of 2017 the measure was likely to be compatible with the right to privacy. 

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

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

[8]          See, Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment, articles 3-5. See, also, Manfred Nowak and Elizabeth McArthur, The United Nations Convention Against Torture: a commentary (2008) 116-7, 308-21.

[9]          'Substantial grounds for believing a person would be in danger of being subjected to TCIDTP' are defined in the TCIDTP guideline as 'established in circumstances where there is a foreseeable, real and personal risk to the particular individual'.

[10]          Parliamentary Joint Committee on Human Rights, Report 5 of 2017 (14 June 2017) 14-21.

[11]          Proposed section 321D includes a table specifying what authorisations are required for different forms of communications about an 'electoral matter'.

[12]          See proposed section 321D(b)-(c).

[13]          See proposed section 110A.

[14]          ICCPR, article 19(2).

[15]          Schedule 1, proposed section 321D(5).

[16]          Explanatory Memorandum (EM) 7.

[17]          EM 7.

[18]          EM 25.

[19]        Guidance Note 2 – see Appendix 4.

[20]        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)).

[21]        EM 7.

[22]        Schedule 2, item 2, proposed section 150.1(4).

[23]          Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) 17-27.

[24]          Parliamentary Joint Committee on Human Rights, Report 6 of 2017 (20 June 2017) 8-25.

[25]          See proposed section 539(2).

[26]          See proposed section 539(2). As of 1 July 2017, a penalty unit increased to $210 so that 600 penalty units would be $126,000.

[27]          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).

[28]          See Fair Work Act section 539.

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

[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]          Guidance Note 2 – see Appendix 4.

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

[33]        EM, SOC 3-4.

[34]        As of 1 July 2017, a penalty unit increased to $210 so that 600 penalty units would be $126,000.

[35]        EM, SOC 5.

[36]        See EM i; EM, SOC 5.

[37]        EM i.

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

[39]        Parliamentary Joint Committee on Human Rights, Report 6 of 2017 (20 June 2017) 8-25.

[40]        See proposed section 712B.

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

[42]        See proposed section 713.

[43]        See proposed section 713.

[44]        See, Parliamentary Joint Committee on Human Rights, Report 6 of 2017 (20 June 2017) 8-25 for a full analysis.

[45]        See proposed section 713(1).

[46]        EM, SOC 6.

[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]        EM, SOC 6.

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

[50]        See, for example, Parliamentary Joint Committee on Human Rights, Tenth Report of the 44th Parliament (26 August 2014) 66 and 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.

[51]        See International Labour Organization, Committee on Freedom of Association, Case No 2326 (Australia), in which the committee requests to be kept informed of development - Report No 338, November 2005, [454]-[456]; Case No 2326 (Australia), Effect given to the recommendations of the committee and the Governing Body - Report No 353, March 2009, [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)).

[52]        See, for example, Parliamentary Joint Committee on Human Rights, Tenth Report of the 44th Parliament (26 August 2014) 66 and 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.

[53]        See, International Labour Organization (ILO), Committee on Freedom of Association (CFA), Case No 2326 (Australia) [454]-[456]; Case No 2326 (Australia), Report No 353, March 2009, [21]-[24]; ILO Report of the Committee of Experts on the Application of Conventions and Recommendations (CEACR), Report III (Part 1A), General Report and observations concerning particular countries, International Labour Conference, 102nd Session, 2013, 537 (in the context of the Labour Inspection Convention, 1947 (No 81).

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

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

[56]        See, for example, Parliamentary Joint Committee on Human Rights, Tenth Report of the 44th Parliament (26 August 2014) 66 and 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.

[57]        See, ILO CFA Case No 2326 (Australia) [454]-[456]; Case No 2326 (Australia), Report No 353, March 2009, [21]-[24]; ILO CEACR Report III (Part 1A), General Report and observations concerning particular countries, International Labour Conference, 102nd Session, 2013, 537 (in the context of the Labour Inspection Convention, 1947 (No 81).

[58]           Parliamentary Joint Committee on Human Rights, Report 5 of 2017 (14 June 2017) 31-33.

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

[60]           The trials were initially extended to a period of twelve months in two instruments: Social Security (Administration) (Trial Area - Ceduna and Surrounding Region) Amendment Determination (No. 2) 2016 [F2016L01424] and Social Security (Administration) (Trial Area – East Kimberley) Amendment Determination 2016 [F2016L01599]. See Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 53.

[61]           See Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament (24 November 2015) 21-36.

[62]           See Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016) 58‑61.

[63]           See Social Security Legislation Amendment (Debit Card Trial) Bill 2015, Explanatory Memorandum 4; Social Security (Administration) (Trial - Declinable Transactions) Amendment Determination (No. 2) 2016 [F2016L01248], Explanatory Statement 6.

[64]           See Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament (24 November 2015) 21-36; 2016 Review of Stronger Futures measures (16 March 2016) 61; and Report 7 of 2016 (11 October 2016) 58-61.

[65]           Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament (24 November 2015) 27.

[66]           Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament (24 November 2015) 21-36; 2016 Review of Stronger Futures measures (16 March 2016) 61; and Report 7 of 2016 (11 October 2016) 42.