Membership of the committee

[1]          The human rights committee secretariat is staffed by parliamentary officers drawn from the Department of the Senate Legislative Scrutiny Unit (LSU), which usually includes two principal research officers with specialised expertise in international human rights law. LSU officers regularly work across multiple scrutiny committee secretariats.

[2]          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).

[3]          See the committee's Short Guide to Human Rights and Guide to Human Rights, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance_Notes_and_Resources

[4]          See Guidance Note 1 – Drafting Statements of Compatibility, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance_Notes_and_Resources

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 registered in the relevant period, as listed on the Federal Register of Legislation. See, https://www.legislation.gov.au/.

[3]          Section 61(1)(a).

[4]          Section 61(1)(b).

[5]          Section 61(1)(c), (d).

[6]          Section 61(1)(e).

[7]          Section 61(1)(f).

[8]          Section 61(1)(g).

[9]          Section 61(1)(h).

[10]        Section 61(1)(i).

[11]        Section 61(1)(j).

[12]        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).

[13]        Statement of compatibility (SOC), pp. 3-4.

[14]        Explanatory statement (EM), p. 21.

[15]        SOC, p. 3.

[16]        Section 61(1)(j) of the bill.

[17]          'protective service officer' means an Australian Federal Police (AFP) employee (other than a member) who has been declared by the Commissioner of the AFP to be a protective service officer of the AFP. The Commissioner may make such a declaration if the Commissioner is satisfied that the employee meets competency and qualification requirements specified in a determination: see sections 40EA and 40EB of the Australian Federal Police Act 1979. A 'member' of the Australian Federal Police means the Commissioner of Police, Deputy Commissioner of Police or an AFP employee in respect of whom a declaration under section 40B (which relates to employees other than protective service officers) is in force: see section 4 of the Australian Federal Police Act 1979.

[18]          'airport premises' is defined in section 239 of the Airports Act 1996 to be a reference to (a) an airport site, if there is an airport lease for the airport; or (b) a building or other structure on such a site; and includes a part of any such premises.

[19]          'major airport' is defined in proposed section 3UL to mean (a) a Commonwealth aerodrome; (b) an airport in a Territory; or (c) an airport determined by the minister under proposed section 3UM. 'Commonwealth aerodrome' is defined in section 3 of the Crimes (Aviation) Act 1991 to mean (a) an area of land or water in Australia that is owned by the Commonwealth and used, or intended for use, either wholly or partly, for, or in connection with, the arrival, departure or other movement of aircraft; or (b) a 'core regulated airport' as defined in section 7 of the Airports Act 1996; and includes any building, structure, installation or equipment in that area, or on the land that forms the core regulated airport, that is provided for use in connection with the operation of that area or land as an aerodrome or airport.

[20]          Evidence of a person's identity includes a government photographic identity document or, if the person does not produce such a document, another identity document or, if so directed, 2 different identity documents. If the person does not produce any of these identity documents the person may give the constable or officer the person's name, address and date of birth: see item 5 of Schedule 1 of the bill, proposed section 3UN(2).

[21]          See item 5 of Schedule 1 of the bill, proposed section 3UN(1).

[22]          See item 2 of Schedule 1 of the bill, proposed insertion into section 3UL.

[23]          See item 5 of Schedule 1 of the bill, proposed section 3UO(3).

[24]          See item 5 of Schedule 1 of the bill, proposed section 3UO(3).

[25]          'relevant criminal activity' is criminal activity involving the commission of an offence that is punishable by imprisonment for 12 months or more, against either the law of the Commonwealth or a law of the State having a federal aspect: see item 5 of Schedule 1 of the bill, proposed section 3UO(2).

[26]        A senior police officer is a constable having the rank of sergeant or an equivalent rank, or higher; or performing the duties of a constable having such a rank.

[27]        See item 5 of Schedule 1 of the bill, proposed section 3UO(6).

[28]        See item 5 of Schedule 1 of the bill, proposed section 3UQ(2).

[29]        See item 5 of Schedule 1 of the bill, proposed section 3UQ(1).

[30]        In the context of the stop, search and seize powers in Division 3A of Part IAA of the Crimes Act (which relate to powers in relation to terrorist acts and terrorism offences), the committee has previously stated that other human rights that may be engaged by such powers include the right to a fair trial and fair hearing and the right to be treated with humanity and dignity: see the committee's analysis of the Counter-Terrorism Legislation Amendment (No.1) Bill 2018 in Parliamentary Joint Committee on Human Rights, Report 10 of 2018 (18 September 2018) pp.45-53; Report 6 of 2018 (26 June 2018) pp.21-29. See also the committee's analysis of stop, search and seize powers in the committee's consideration of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 in Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44^th Parliament (28 October 2014); Nineteenth Report of the 44^th Parliament (3 March 2015); Thirtieth Report of the 44^th Parliament (10 November 2015).

[31]        Statement of compatibility (SOC) p. 22.

[32]        SOC, p. 22.

[33]        SOC, pp. 22-23.

[34]        SOC, p. 23.

[35]        SOC, p. 23.

[36]        See, Reyntjens v Belgium, European Court of Human Rights Application No.1810/90, Decision on Admissibility (9 September 1992)  p. 152.

[37]        SOC, p. 23.

[38]        This also raises related concerns in relation to the right to freedom of expression, discussed further below.

[39]        SOC, p. 19.

[40]        SOC, p. 19.

[41]        SOC, pp. 19-20.

[42]        One existing power is in section 86 of the Aviation Transport Security Act 2004, which allows law enforcement officers to move people on from a prescribed airport, security controlled airport or designated area or zone if they reasonably suspect a person is committing or has committed an offence under that Act: see SOC, p. 17.

[43]        SOC, p. 17.

[44]        SOC, p. 17.

[45]        See SOC, pp. 20-21.

[46]        SOC, p. 20.

[47]        SOC, p. 20.

[48]        SOC, p. 21.

[49]        This may also engage and limit the rights of the child and the right to protection of the family.

[50]        SOC, p. 21.

[51]        SOC, p. 21.

[52]        United Nations Human Rights Committee, General Comment No.27: Article 12 (Freedom of Movement), CCPR/C/21/Rev.1/Add.9 (2 November 1999) [7]; see also United Nations Human Rights Council, Report of the Working Group on Arbitrary Detention, A/HRC/22.44 (22 December 2012) [55] and [57]; Foka v Turkey, European Court of Human Rights Application No.28940/95, Judgment (24 June 2008) [78];  Gillan and Quinton v United Kingdom, European Court of Human Rights Application No.4158/05, Judgment (12 January 2010) [54]-[57]; Austin v United Kingdom, European Court of Human Rights Application Nos. 39692/09, 40713/09 and 41008/09, Grand Chamber, (15 March 2012) [57]; Gahramanov v Azerbaijan, European Court of Human Rights Application No.26291/06, Judgment (15 October 2013) [38]-[45].

[53]        See Articles 2 and 26 of the International Covenant on Civil and Political Rights; Articles 2, 4, 5 and 7 of the International Convention on the Elimination on All Forms of Racial Discrimination.

[54]        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.

[55]        United Nations Human Rights Committee, General Comment No.18: Non-Discrimination (1989).  

[56]        Althammer v Australia, UN Human Rights Committee Communication No.998/01 (2003) [10.2].

[57]        SOC, p. 18.

[58]        Williams Lecraft v Spain, UN Human Rights Committee Communication No.1493/2006 (2009) [7.2]-[7.4]. See also United Nations Human Rights Council, Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, A/HRC/29/46 (20 April 2015).

[59]        SOC, pp. 18-19.

[60]        SOC, p. 19.

[61]        See Gillan and Quinton v United Kingdom, European Court of Human Rights Application No.4158/05, Judgment (12 January 2010) [85].

[62]        Committee on the Elimination of Racial Discrimination, General Recommendation 13 on the training of law enforcement officials in the protection of human rights (1993) [2].

[63]        See the definition of PSOs in sections 40EA and 40EB of the Australian Federal Police Act 1979.

[64]          Proposed section 317C in Schedule 1 of the bill defines 'designated communications providers' by reference to 15 circumstances in which a person is a designated communications provider.

[65]          Proposed section 317B in Schedule 1 of the bill defines 'interception agency' to mean the Australian Federal Police; the Australian Commission for Law Enforcement Integrity; the Australian Crime Commission; the Police Force of a State or the Northern Territory; the Independent Commission Against Corruption of New South Wales; the New South Wales Crime Commission; the Law Enforcement Conduct Commission of New South Wales; the Independent Broad-based Anti-corruption Commission of Victoria; the Crime and Corruption Commission of Queensland; the Independent Commissioner Against Corruption (SA); or the Corruption and Crime Commission (WA).

[66]          Proposed section 317C defines 'eligible activities' in broad terms, by reference to 15 types of eligible activities. 

[67]          Proposed section 317P in Schedule 1 of the bill.

[68]          Proposed section 317L(2) in Schedule 1 of the bill.

[69]          See proposed section 317T(4) in Schedule 1 of the bill.

[70]          There is also a requirement in the bill that the relevant Director-General or chief officer of an intelligence agency advise the recipient of a technical assistance request that compliance is voluntary: see proposed section 317HAA in Schedule 1 of the bill.

[71]          Proposed section 317G(1) in Schedule 1 of the bill.

[72]          Proposed section 317G(5)(c) in Schedule 1 of the bill.

[73]        Proposed sections 317L(3), 317T(4), 317T(7), and 317G(6) in Schedule 1 of the bill.

[74]        Proposed section 317E(1)(a) in Schedule 1 of the bill.

[75]        Proposed section 317E(1)(c) in Schedule 1 of the bill.

[76]        Proposed section 317E(1)(d) in Schedule 1 of the bill.

[77]        Proposed section 317E(1)(e) in Schedule 1 of the bill.

[78]        Proposed section 317E(1)(f) in Schedule 1 of the bill.

[79]        Proposed section 317E(1)(j) in Schedule 1 of the bill.

[80]        Proposed section 317ZG(1) in Schedule 1 of the bill.

[81]        Proposed section 317ZG(2) and (3) in Schedule 1 of the bill.

[82]        Proposed section 317ZH in Schedule 1 of the bill.

[83]        Statement of compatibility (SOC), pp. 9-14. 

[84]        SOC, p. 9 [8].

[85]        SOC, p. 14 [40].

[86]        SOC, p. 14 [39].

[87]        SOC, p. 11 [16].

[88]        SOC, p. 11 [21].

[89]        Explanatory memorandum (EM), p. 2 [3]-[4].

[90]        In accordance with the committee's Guidance Note 1, the committee's expectation is that statements of compatibility read as stand-alone documents, as the committee relies on the statement as the primary document that sets out the legislation proponent's analysis of the compatibility of the bill with Australia's international human rights obligations.

[91]        SOC, p. 14 [43], see also ICCPR article 19(3).

[92]        Proposed section 317G(5) in Schedule 1 of the bill.

[93]        For example, section 2A of the Independent Commission against Corruption Act 1988 (NSW) (Act), provides that the principal objects of the Act are 'to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body... to investigate, expose and prevent corruption involving or affecting public authorities and public officials'.  Section 13 of the Act sets out the principal functions of the Commission, which are numerous but largely all relate to investigating and preventing 'corrupt conduct'. 

[94]        SOC, p. 10 [15].

[95]        EM, p. 2 [3].

[96]        Proposed section 317E(d) in Schedule 1 of the bill.

[97]        Proposed section 317E(h) in Schedule 1 of the bill.

[98]        Proposed section 317E(c) in Schedule 1 of the bill.

[99]        SOC, p. 12 [27].

[100]        Proposed section 317L(3) in Schedule 1 of the bill.

[101]        SOC, p. 12 [16].

[102]        Proposed section 317G(5)(c) in Schedule 1 of the bill.

[103]        SOC, p. 11 [19].

[104]        Proposed section 317T in Schedule 1 of the bill.

[105]        SOC, p. 11 [19].

[106]        SOC, p. 13 [32].

[107]        See proposed section 317L(2)(c)(ii) in Schedule 1 of the bill.

[108]        See, for example, Parliamentary Joint Committee on Human Rights, Report 2 of 2017, (21 March 2017) pp. 3-9; Report 4 of 2017 (9 May 2017) pp. 70-73 and 90-98; Twenty-second report of the 44th Parliament (13 May 2015), pp. 108-110; Sixth report of 2013 (15 May 2013), pp. 149-167; Tenth Report of 2013 (26 June 2013), pp. 56-75.

[109]        Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (addressing the use of encryption and anonymity in digital communications), 30 January 2018, A/HRC/29/32, 11 [32].

[110]        Proposed section 1 in Schedule 1 of the bill.

[111]        SOC, p. 10 [11].

[112]        Proposed section 317T(4)(c)(ii) and (5) in Schedule 1 of the bill.

[113]        SOC, p. 10 [12]; see proposed section 317ZH in Schedule 1 of the bill.

[114]        Proposed sections 317ZG in Schedule 1 of the bill.

[115]        SOC, p. 11 [20].

[116]        Proposed sections 317ZG and 317ZH in Schedule 1 of the bill.

[117]        See also sections 317RA and 317ZAA, which set out whether requirements imposed by a notice are reasonable and proportionate.

[118]        The committee has considered proposed amendments to the TIA Act on a number of previous occasions: See, Parliamentary Joint Committee on Human Rights, Law Enforcement Integrity Legislation Amendment Bill 2012, Fifth Report of 2012 (October 2012) pp. 21-21; Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, Fifteenth Report of the 44th Parliament (14 November 2014) pp. 10-22; Twentieth report of the 44th Parliament (18 March 2015) pp. 39-74; and Thirtieth report of the 44th Parliament (10 November 2015) pp. 133-139; the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, Thirty-second report of the 44th Parliament (1 December 2015) pp. 3-37 and Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 85-136; the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016, Report 9 of 2016 (22 November 2016) pp. 2-8 and Report 1 of 2017 (16 February 2017) pp. 35-44; and the Telecommunications (Interception and Access – Law Enforcement Conduct Commission of New South Wales) Declaration 2017 [F2017L00533], Report 7 of 2017 (8 August 2017) pp. 30-33.

[119]        See Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 5; Report 1 of 2017 (16 February 2017) pp. 35-44.

[120]        See, for example, the investigative powers conferred on the NSW Independent Commission Against Corruption by the Independent Commission Against Corruption Act 1988 (NSW): section 21 (power to obtain information); section 22 (power to obtain documents etc.); section 23 (power to enter public premises); section 40(2)-(3) (search warrants).

[121]        SOC, p. 11 [20].

[122]        See for example, Office of the Australian Information Commissioner, Submission to the Department of Home Affairs on the consultation draft of the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (12 September 2018) pp. 5-6.

[123]        See UN Human Rights Committee, General Comment No.29: States of Emergency (Article 4) (2001) [14].

[124]        SOC, p. 14 [44].

[125]        SOC, p. 14 [45].

[126]        Division 6 of Schedule 1 of the bill imposes criminal penalties for the disclosure of information that is technical assistance notice information, technical capability notice information, technical assistance request information, or obtained in accordance with such orders or requests.

[127]        Computer is defined in proposed section 6(1) of the SD Act in Schedule 2 of the bill to mean 'all or part of (a) one or more computers; or (b) one or more computer systems; (c) one or more computer networks; or (d) any combination of the above'.

[128]        There are additional human rights issues raised in relation to the power to access computers remotely discussed below in relation to measures introduced in Schedules 3 and 4.

[129]        'Relevant offence' is defined broadly in section 6 of the SD Act, and includes an offence against the law of the Commonwealth that is punishable by a maximum term of imprisonment of 3 years or more or for life.

[130]        A mutual assistance authorisation means an authorisation under subsection 15CA(1) of the MA Act. For the proposed amendments to the MA Act, see further below.

[131]        Data is defined in proposed section 6(1) of the SD Act in Schedule 2 of the bill to include information in any form; and any program (or part of a program).

[132]        'Data held in a computer' is defined in proposed section 6(1) of the SD Act in Schedule 2 of the bill to include (a) data held in any removable data storage device for the time being held in a computer; and (b) data held in a data storage device on a computer network of which the computer forms a part.

[133]        'target computer' may be a particular computer, a computer on particular premises, or a computer associated with, used by or likely to be used by, a person (whose identity may or may not be known): see proposed section 27A(15) of the SD Act in Schedule 2 of the bill.

[134]        A recovery order means an order under section 67U of the Family Law Act 1975 or an order for the apprehension or detention of a child under the Family Law (Child Abduction Convention) Regulations 1986.

[135]        'Integrity authority' is defined in section 6 of the SD Act.

[136]        'Eligible Judge' and 'nominated AAT member' are defined in section 12 of the SD Act.

[137]        This interception power is similar to that introduced into the ASIO Act in Schedule 2 of the bill and is discussed further below.

[138]        See proposed section 27E(2) of the SD Act in Schedule 2 of the bill.

[139]        See proposed section 27E(7) of the SD Act in Schedule 2 of the bill.

[140]        See proposed sections 64A((2),(3),(4),(5),(6) and(7) of Schedule 2 of the bill.

[141]        See proposed section 27E(6) of the SD Act in Schedule 2 of the bill.

[142]        See proposed section 47A of the SD Act in Schedule 2 of the bill.

[143]        See proposed section 65B(1)(a)(ia) of the SD Act in Schedule 2 of the bill, and section 65B of the SD Act.

[144]        'appropriate authorising officer' is defined in section 6A of the SD Act and includes senior members of federal law enforcement agencies and state and territory enforcement agencies (for example in the context of the AFP: (a) the Commissioner of Police; or (b) a Deputy Commissioner of Police; or (c) a senior executive AFP employee the chief officer properly authorised).

[145]        'target computer' may be a particular computer, a computer on particular premises, or a computer associated with, used by or likely to be used by, a person (whose identity may or may not be known): proposed section 28(1B) of the SD Act in Schedule 2 of the bill.

[146]        Proposed amendments to the SD Act in Schedule 2 of the bill in sections 28(1A) (in relation to the course of an investigation into a relevant offence), section 29(1B) (in relation to a recovery order) and section 30(1A) (in relation to the loss of evidence).

[147]        See section 28(4),29(3) and 30(3) of the SD Act.

[148]        Proposed section 35A of the SD Act in Schedule 2 of the bill.

[149]        See proposed section 34(4) of the SD Act in Schedule 2 of the bill.

[150]        Proposed section 34(1A), 34(2A), 34(4) of the SD Act in Schedule 2 of the bill.

[151]        SOC, p. 17 [70].

[152]        SOC, pp. 17-18 [71].

[153]        SOC, pp. 18 [84].

[154]        Proposed section 27E(6) of the SD Act in Schedule 2 of the bill.

[155]        SOC, p. 18 [72].

[156]        See proposed section 27E(5) of the SD Act in Schedule 2 of the bill.

[157]        SOC, pp. 18-19.

[158]        SOC, p. 18 [79].

[159]        See, for example Parliamentary Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017) pp. 84-88.

[160]        See proposed section 27E(2)(a),(b) and (e) of the SD Act in Schedule 2 of the bill.

[161]        See proposed section 27E(2)(e) of the SD Act in Schedule 2 of the bill.

[162]        EM, p. 88 [421]-[423].

[163]      See proposed section 35A(5) and (6) of the SD Act in Schedule 2 of the bill; EM, p. 108 [579]-[580].

[164]      See proposed section 47A of the SD Act in Schedule 2 of the bill.

[165]      SOC, p. 20 [92].

[166]      SOC, p. 20 [95].

[167]      SOC, p. 20 [93].

[168]      See, most recently, Parliamentary Joint Committee on Human Rights, Report 10 of 2018 (18 September 2018) pp. 21-36.

[169]      See proposed section 65A(2A) of the SD Act in Schedule 2 of the bill.

[170]      See section 65B of the SD Act.

[171]      See, most recently, Parliamentary Joint Committee on Human Rights, Report 10 of 2018(18 September 2018) pp. 36-45.

[172]      Proposed sections 25A(8), 27A(3C),and 27E(6) of the ASIO Act, and proposed section 27E(7) of the SD Act in Schedule 2 of the bill.

[173]      Proposed sections 25A(8)(j), 27A(3C)(j), 27E(6)(j) of the ASIO Act, and , and proposed section 27E(7)(j)  of the SD Act in Schedule 2 of the bill. 

[174]      Proposed sections 25A(8)(k), 27A(3C)(k), 27E(6)(k) of the ASIO Act, and proposed section 27E(7)(k) of the SD Act in Schedule 2 of the bill. 

[175]      SOC, p. 17 [63].

[176]      SOC, p. 17[69].

[177]      SOC, p. 17 [64]-[66].

[178]      SOC, p. 17 [67]-[68].

[179]      See proposed sections 64A((2),(3),(4),(5),(6) and(7) of Schedule 2 of the bill.

[180]      Proposed section 64A of Schedule 2 of the bill.

[181]      See proposed subsection 3LA(1)(a)(ia) and proposed subsection 3LA(5) of the Crimes Act in Schedule 3 of the bill; see proposed insertion to subparagraph 201(2)(c)(ii) and proposed subsection 201A(3) of the Customs Act in Schedule 4 of the bill.

[182]      Proposed subsection 3LA(5) of the Crimes Act in Schedule 3 of the bill; proposed 201A(3) of the Customs Act in Schedule 4 of the bill.

[183]      SOC, p. 21 [101]; p. 25 [124]; SOC, p. 27 [134].

[184]      SOC, p. 26 [126].

[185]      SOC, p. 22 [107].

[186]      SOC, p. 22 [102].

[187]      SOC, p. 27 [137].

[188]      SOC, p. 26 [127].

[189]      SOC, p. 27.

[190]      See proposed sections 64A(2)(d), (3)(d),(4)(b),(5)(b),(6)(b),(7)(b) of the SD Act in Schedule 2 of the bill. The scope is similar in the amendments to Schedules 3 and 4, see section 201A(2) of the Customs Act and section 3LA(2)(b) of the Crimes Act.

[191]      Proposed section 64A(8) of Schedule 2 of the bill.

[192]      Proposed subsection 3LA(5) of the Crimes Act in Schedule 3 of the bill and proposed subsection 201A(3) of the Customs Act in Schedule 4 of the bill; see also proposed section 34AAA(4) of the ASIO Act in Schedule 5 of the bill.

[193]      'ASIO computer access warrant' is defined in the proposed amendment to section 5(1) of the TIA Act in Schedule 2 of the bill to mean: (a) a warrant issued under section 25A of the Australian Security Intelligence Organisation Act 1979; or (b) a warrant issued under section 27A of the Australian Security Intelligence Organisation Act 1979 that authorises the Organisation to do any of the acts or things referred to in subsection 25A(4) or (8) of that Act; or (c) an authorisation under section 27E of the Australian Security Intelligence Organisation Act 1979.

[194]      See sections 9 and 9A of the TIA Act.

[195]      See proposed sections 25A(4)(ba), 25A(8)(h), 27A(3C)(h) and 27E(2)(ea) of the ASIO Act in Schedule 2 of the bill.

[196]      SOC, p. 15 [50].

[197]      SOC, p. 15 [50].

[198]      SOC, p. 15 [51].

[199]      SOC, p. 15 [52].

[200]      See proposed sections 64(1)(a) and 65(1)(a) of the TIA Act in Schedule 2 of the bill.

[201]      See proposed section 65(4)-(7) of the TIA Act in Schedule 2 of the bill.

[202]      See proposed section 74(1) of the TIA Act in Schedule 2 of the bill. 'Exempt proceeding' is defined in section 5B of the TIA Act. There are certain bases on which ASIO computer access information can be disclosed set out in proposed sections 63AB and 63AC of the TIA Act in Schedule 2 of the bill.

[203]      See sections 9 and 9A of the TIA Act.

[204]      See section 25A of the ASIO Act, and proposed section 25A(4)(ba) of the ASIO Act in Schedule 2 of the bill. See also section 27E(4) of the ASIO Act and proposed section 27E(2)(ea) of the ASIO Act in Schedule 2 of the bill.

[205]      EM, p. 80 [354].

[206]      'eligible law enforcement officer' means, in the context of the Australian Federal Police, the Commissioner of Police, a Deputy Commissioner of Police, an AFP employee (within the meaning of the Australian Federal Police Act 1979), a special member or a person seconded to the Australian Federal Police. In the context of state and territory police forces it includes an officer of the police force or a person seconded to the police force: see column 3 of item 5 of the table in subsection 6A(6), and in column 3 of item 5 of the table in subsection 6A(7), of the SD Act.

[207]      The phrases 'data', 'data held in a computer' and 'computer' have the same meaning as in the SD Act discussed above.

[208]      Proposed section 15CC(1) of the MA Act in Schedule 2 of the bill.  

[209]      Proposed section 15CC(2) of the MA Act in Schedule 2 of the bill. 

[210]      See proposed amendments to section 44 of the SD Act in Schedule 2 of the bill, and proposed amendment to section 3(1) of the MA Act in Schedule 2 of the bill.  

[211]      See EM, p. 84 [395].

[212]      See, in relation to amendments to the MA Act, Parliamentary Joint Committee on Human Rights, Report 2 of 2017, (21 March 2017) pp. 3-9; Report 4 of 2017 (9 May 2017) pp. 70-73 and pp. 90-98; Twenty-second report of the 44th Parliament (13 May 2015) pp. 108-110; Sixth report of 2013 (15 May 2013) pp. 167-172; Tenth Report of 2013 (26 June 2013) pp. 56-75.

[213]      See subsection 8(1A) of the MA Act.

[214]      While the ICCPR itself does not completely prohibit the imposition of the death penalty, international law prohibits states which have abolished the death penalty, such as Australia, from exposing a person to the death penalty in another nation state. The United Nations Human Rights Committee has outlined that this not only prohibits deporting or extraditing a person to a country where they may face the death penalty but also prohibits the provision of information to other countries that may be used to investigate and convict someone of an offence to which the death penalty applies: see See Human Rights Committee, Concluding observations on the fifth periodic report of Australia, CCPR/C/AUS/CO/5, 7 May 2009, [20].

[215]      It is noted that some of the human rights that may be engaged by the MA Act are absolute rights that are not capable of limitation, namely the prohibition against torture and cruel, inhuman and degrading treatment.

[216]      See proposed section 3F(2A) of the Crimes Act in Schedule 3 of the bill and proposed section 199(4A) of the Customs Act in Schedule 4 of the bill.

[217]      Data is 'account-based data' if an electronic service has accounts for end-users, and the person (living or deceased) holds (or held) an account with the electronic service, or the person is or is likely to be (or was) a user of an account with an electronic service, and the person can (or could) access particular data provided by the service: see proposed section 3CAA of the Crimes Act in Schedule 3 of the bill.

[218]      See proposed section 3F(2B) of the Crimes Act in Schedule 3 of the bill.

[219]      SOC, p. 21 [96]; p. 234 [116].

[220]      SOC, p. 25 [120]; see also p. 21 [100].

[221]      SOC, p. 21 [97]-[98]; p. 24 [117]-[118].

[222]      SOC, p. 1 [99]; p. 24 [119].

[223]      SOC, p. 24 [119]; p. 21 [99].

[224]      See proposed section 3F(2C) of the Crimes Act in Schedule 3 of the bill and proposed section 199(4B) of the Customs Act in Schedule 4 of the bill.

[225]      SOC, p. 21 [100].

[226]      See proposed section 3F(2A)(c) of the Crimes Act in Schedule 3 of the bill and proposed section 199(4A) of the Customs Act in Schedule 4 of the bill.

[227]      See proposed section 199A(1) of the Customs Act in Schedule 4 of the bill.

[228]      SOC, p. 24 [115].

[229]      SOC, p. 24 [114].

[230]      SOC, p. 24 [113].

[231]      SOC, p. 24 [115].

[232]      Compare proposed subsections 199B(2)-(3) of the Customs Act in Schedule 4, with proposed subsection 3F(2A) of the Crimes Act in Schedule 3 and proposed section 4A of the Customs Act in Schedule 4.

[233]      See proposed subsection 3K(3B) of the Crimes Act in Schedule 3 of the bill.

[234]      See proposed subsection 200(3A) of the Customs Act in Schedule 4 of the bill.

[235]      SOC, p. 23 [108]; p. 26 [129].

[236]      SOC, p. 23 [112]; see also p. 26 [131].

[237]      SOC, p. 26 [131].

[238]      SOC, p. 23 [108].

[239]      For example, the right to work (article 6 of the ICCPR).

[240]      Proposed section 21A of Schedule 5 of the bill.

[241]      Proposed subsections 21A(1)(b),(d),(e) of Schedule 5 of the bill.

[242]      Proposed section 21A(1)(e) of Schedule 5 of the bill.

Chapter 2 - Concluded matters

[1]          See https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports

[2]          Parliamentary Joint Committee on Human Rights, Report No 9 of 2018 (11 September 2018), pp. 2-6.

[3]          The minister's response is available in full on the committee's scrutiny reports page: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[4]          Fee and Juror Remuneration Regulations, schedule 1, items 89 to 103.

[5]          Fees and Juror Remuneration Regulations, schedule 1, item 88.

[6]          High Court Fees Regulation, section 12(1)(c).

[7]          High Court Fees Regulation, section 12(2).

[8]          Parliamentary Joint Committee on Human Rights, Report 9 of 2018 (11 September 2018), pp. 2-6.

[9]          Parliamentary Joint Committee on Human Rights, Report 9 of 2018 (11 September 2018), p. 4.

[10]        Productivity Commission, Access to Justice Arrangements No 72 (2014) vol 1, p. 561.

[11]        Parliamentary Joint Committee on Human Rights, Report 9 of 2018 (11 September 2018), p. 5. See, also, the committee's consideration of the Federal Courts Legislation Amendment (Fees) Regulation 2015 in the 33^rd Report of the 44^th Parliament (2 February 2016), p. 36.

[12]        Under section 5 of the Human Rights (Parliamentary Scrutiny) Act 2011, the instrument is not required to be accompanied by a statement of compatibility because it is exempt from disallowance. The committee nevertheless scrutinises exempt instruments because section 7 of the same Act requires it to examine all instruments for compatibility with human rights.

[13]        Parliamentary Joint Committee on Human Rights, Report 7 of2018 (17 August 2018) 11-15.

[14]        The minister's response is available in full on the committee's scrutiny reports page: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports

[15]        Bridging visas are temporary visas that allow 'eligible non-citizens' to lawfully stay in Australia or lawfully leave and return to Australia for a limited period while they make an application for a substantive visa, wait for their application for a substantive visa to be processed, or make arrangements to leave Australia, finalise their immigration matter or wait for an immigration decision.

[16]        Migration Act, section 73.

[17]        Migration Act, section 72(1)(a). Section 172(1) of the Migration Act sets out the criteria for when a person will be 'immigration cleared'. The criteria vary depending on a range of factors, including how and where the person entered Australia, whether they complied with section 166 of the Migration Act, whether they were initially refused immigration clearance or bypassed immigration clearance and were then granted a substantive visa and whether they are in a prescribed class of persons.

[18]        Migration Act, section 72(1)(b). Section 2.20 of the Migration Regulations 1994 prescribes the relevant classes of persons.

[19]        Migration Act, subsection 72(1)(c).

[20]        Migration Act, subsection 72(2)(e).

[21]        Migration Act, subsection 72(3).

[22]        Migration Act, subsection 72(2)(e).

[23]        Parliamentary Joint Committee on Human Report 7 of 2018 (17 August 2018) pp. 11-15.

[24]          Parliamentary Joint Committee on Human Rights, Report 7 of 2018 (14 August 2018)
pp. 15-22.

[25]          The minister's response is available in full on the committee's scrutiny reports page: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports

[26]          Under section 5 of the Migration Act: a port is defined as a 'proclaimed port' or a 'proclaimed airport'. A proclaimed port is defined as including a port appointed by the minister under subsection 5(5). A person is defined as having entered Australia by sea including if the person entered the 'migration zone' except on an aircraft. The migration zone means 'the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes: (a)  land that is part of a State or Territory at mean low water; and (b)  sea within the limits of both a State or a Territory and a port; and  (c)  piers, or similar structures, any part of which is connected to such land or to ground under such sea; but does not include sea within the limits of a State or Territory but not in a port' (emphasis added).  

[27]          Explanatory memorandum (EM) p. 2.

[28]          See, Statement of compatibility (SOC) p. 6; The Hon. Peter Dutton, Minister for Home Affairs, Proof House of Representatives Hansard, 20 June 2018, p. 8.

[29]          [2018] FCCA 1801.

[30]          [2018] FCCA 1801, p. 26 [111].

[31]          EM p. 2; sections 3-4 of the bill.

[32]          The statement of compatibility states that this clause is included as there are ongoing proceedings in the Federal Circuit Court and Federal Court which are currently challenging the validity of the 2002 appointment: SOC, p. 5.

[33]        1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugee Convention).

[34]        CAT, article 3(1); ICCPR, articles 6(1) and 7; and Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty; Convention Relating to the Status of Refugees 1951 and its Protocol 1967 (Refugee Convention).

[35]        See Refugee Convention, article 33. The non-refoulement obligations under the CAT and ICCPR 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.

[36]        ICCPR, article 2; Agiza v Sweden, Communication No. 233/2003, UN Doc CAT/C/34/D/233/2003 (2005) [13.7]; Josu Arkauz Arana v. France, CAT/C/23/D/63/1997, (CAT), 5 June 2000; Mohammed Alzery v Sweden, Communication No. 1416/2005, U.N. Doc. CCPR/C/88/D/1416/2005 (2006) [11.8]. See, also, Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) pp 10-17; Report 4 of 2017 (9 May 2017) pp. 99-111.

[37]        The Hon. Peter Dutton, Minister for Home Affairs, Proof House of Representatives Hansard, 20 June 2018, p. 7.

[38]        Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) pp. 70-92; Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 174-187; Report 4 of 2017 (9 May 2017) pp. 99-106; Report 2 of 2017 (21 March 2017) pp. 10-17; Report 12 of 2017 (28 November 2017) pp. 89- 92.

[39]        Parliamentary Joint Committee on Human Rights, Ninth report of the 44th Parliament (15 July 2014) pp. 43-44; Fourteenth report of the 44th Parliament (28 October 2014) p. 88; Report 2 of 2017 (21 March 2017) pp. 10-17.

[40]        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) pp. 174-187.

[41]        SOC, p. 6.

[42]        SOC, p. 5.

[43]        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) pp. 174-187; see also Report 12 of 2017 (28 November 2017) p. 92 and Report 8 of 2018 (21 August 2018) pp. 25-28.

[44]        Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 182-183; see also Report 12 of 2017 (28 November 2017) p. 92 and Report 8 of 2018 (21 August 2018) pp. 25-28.

[45]        See Agiza v Sweden, Committee against Torture Communication No.233/2003, CAT/C/34/D/233/2003 (24 May 2005) [13.7]; Josu Arkauz Arana v France, Committee against Torture Communication No.63/1997, CAT/C/23/D/63/1997 (5 June 2000); Alzery v Sweden, Human Rights Committee Communication No.1416/2005, CCPR/C/88/D/1416/2005 (20 November 2006) [11.8]. For an analysis of this jurisprudence, see Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 182-183.

[46]        Alzery v Sweden, Human Rights Committee Communication No.1416/2005, CCPR/C/88/D/1416/2005 (20 November 2006) [11.8].

[47]        Singh v Canada, UN Committee against Torture Communication No.319/2007, CAT/C/46/D/319/2007 (30 May 2011) [8.8];

[48]        Singh v Canada, UN Committee against Torture Communication No.319/2007, CAT/C/46/D/319/2007 (30 May 2011) [8.8]-[8.9].

[49]        See section 75(v) of the Constitution and section 39B of the Judiciary Act 1903.

[50]        See Parliamentary Joint Committee on Human Rights, Report 8 of 2018 (21 August 2018) pp. 25-28.

[51]        Sogi v Canada, Committee against Torture Communication No.297/2006, CAT/C/39/D/297/2006 (16 November 2007) [10.5].

[52]        See, for example, EJ v Sweden, Committee against Torture Communication No.306/2006, CAT/C/41/D/306/2006 (21 November 2008) [8.4].

[53]        Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) p.184-185.

[54]        Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 182-183; Report 12 of 2017 (28 November 2017) p. 92 and Report 8 of 2018 (21 August 2018) pp. 25-28.

[55]        Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 174-187; Report 12 of 2017 (28 November 2017) p. 92.

[56]        The Hon. Peter Dutton, Minister for Home Affairs, Proof House of Representatives Hansard, 20 June 2018, p. 7.

[57]        [2018] FCCA 1801.

[58]        UN Human Rights Committee, General Comment No.15: The Position of Aliens under the Covenant (1986) para. [9].

[59]        UN Human Rights Committee, General Comment No.32: Right to Equality before Courts and Tribunals and to Fair Trial (2007) [16].

[60]        UN Human Rights Committee, General Comment No.32: Right to Equality before Courts and Tribunals and to Fair Trial (2007) [17]. See PK v Canada, UN Human Rights Committee Communication No.1234/03, CCPR/C/89/D/1234/2003 (3 April 2007), especially [7.5] where the committee rejected the applicability of article 14 to a claim relating to the complainant's right to receive protection in the state party's territory. See also Zündel v Canada, UN Human Rights Committee Communication No.1341/2005, CCPR/C/89/D/1341/2005 (20 March 2007) at [6.8] which held that deportation proceedings do not fall within the scope of article 14.

[61]        Sogi v Canada, Committee against Torture Communication No.297/2006, CAT/C/39/D/297/2006 (16 November 2007) [10.5].

[62]        Singh v Canada, UN Committee against Torture Communication No.319/2007, CAT/C/46/D/319/2007 (30 May 2011) [8.8]-[8.9].

[63]        UN Human Rights Committee, General Comment No.32: Right to Equality before Courts and Tribunals and to Fair Trial (2007) [62].

[64]        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, UN Human Rights Committee Communication No.846/1999, CCPR/C/71/D/846/1999 (3 April 2001) [8.2] and Äärelä and Näkkäläjärvi v. Finland, UN Human Rights Committee Communication No.779/1997, Human Rights Committee, CCPR/C/73/D/779/1997 (24 October 2001) [7.4].

[65]        UN Human Rights Committee, General Comment No. 15: The Position of Aliens under the Covenant (1986) [10].

[66]        See, for example, Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) p. 101; Parliamentary Joint Committee on Human Rights, Nineteenth report of the 44th Parliament (3 March 2015) p. 18.

[67]        UN Human Rights Committee, General Comment No. 29: States of Emergency (Article 4) (2001) [14].

[68]        See Migration Act, sections 189, 198.

[69]        See, Parliamentary Joint Committee on Human Rights, Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation: Ninth Report of 2013 (June 2013) p. 19.

[70]        See, Parliamentary Joint Committee on Human Rights, Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation: Ninth Report of 2013 (June 2013) p. 58.

[71]        See, Parliamentary Joint Committee on Human Rights, Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation: Ninth Report of 2013 (June 2013).

[72]        See, Parliamentary Joint Committee on Human Rights, Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation: Ninth Report of 2013 (June 2013) p. 60.

[73]          Parliamentary Joint Committee on Human Rights, Report 8 of 2018, pp. 17-22.

[74]          The minister's response is available in full on the committee's scrutiny reports page: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports

[75]          Proposed section 4 provides that 'reporting entities' include: entities with a consolidated revenue of at least $100 million for the reporting period that are Australian entities or that carry on business in Australia; the Commonwealth; corporate Commonwealth entities and Commonwealth companies with a consolidated revenue of at least $100 million for the reporting period; and entities that have volunteered to comply with the modern slavery reporting requirements.

[76]          'Modern slavery' is defined in proposed section 4 as conduct which would constitute: an offence under Division 270 or 271 of the Criminal Code (offences relating to human trafficking, slavery and slavery-like practices); an offence under either of those Divisions if the conduct took place in Australia; trafficking in persons, as defined in Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children to the UN Convention against Transnational Organized Crime; and the worst forms of child labour, as defined in Article 3 of the ILO Convention.

[77]          Proposed section 16.

[78]          Proposed section 19(1).

[79]          Proposed section 19(2).

[80]          Proposed section 6.

[81]          Parliamentary Joint Committee on Human Rights, Report 8 of 2018 (21 August 2018),
pp. 17-20 https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_
Rights/Scrutiny_reports/2018/Report_8_of_2018

[82]        Parliamentary Joint Committee on Human Rights, Report 8 of 2018 (21 August 2018),
pp. 20-22.

[83]        Parliamentary Joint Committee on Human Rights, Report 8 of 2018 (21 August 2018),
pp. 20-22.

[84]        Parliamentary Joint Committee on Human Rights, Report 8 of 2018 (21 August 2018), pp. 20-22 https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_
Rights/Scrutiny_reports/2018/Report_8_of_2018.

[85]        See Parliamentary Joint Committee on Human Rights, Report 8 of 2018 (21 August 2018),
pp. 21.

[86]        Parliamentary Joint Committee on Human Rights, Report 8 of 2018 (21 August 2018),
pp. 20-22.

[87]        It is noted that discretionary or administrative safeguards alone may be insufficient for the purpose of international human rights law. This is because such safeguards are less stringent than the protection of statutory processes and can be amended or removed at any time.

[88]        Parliamentary Joint Committee on Human Rights, Report 8 of 2018 (21 August 2018),
pp. 20-22.

[89]        Modern Slavery Act 2015 (UK).

[90]        Transparency in Supply Chains Act 2010.

[91]        Section 6 of the Human Rights Act 1998 (UK).

[92]        For example, public authorities are not required to disclose information to the Anti-slavery Commissioner if it would breach any restriction on disclosure: see section 43(5) of the Modern Slavery Act 2015 (UK). See also section 48(6)(e)(ii), which limits the requirement to provide access to independent child trafficking advocates to information that would not contravene a restriction on disclosure of information and section 52(4)(b) (which provides that regulations relating to information to be notified to the Secretary of State may not require or authorise the inclusion of information which contravenes any other restriction on the disclosure of information).

Appendix 1 - Deferred legislation

[1]          See Parliamentary Joint Committee on Human Rights, Report 10 of 2018 (18 September 2018) 81.