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, including the Committee Secretary, 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).

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]          A 'foreign stakeholder' is a foreign person who has a company interest in an Australian media company of 2.5% or more: proposed section 74C. 'Foreign person' has the same meaning as under the Foreign Acquisitions and Takeovers Act 1975 and includes, relevantly, an individual not ordinarily resident in Australia.

[5]          'Company interest' is defined in the bill using the definition in section 6 of the Broadcasting Services Act 1992 and means, in relation to a person who has a shareholding interest, a voting interest, a dividend interest or a winding-up interest in a company, the percentage of that interest or, if the person has two or more of those interests, whichever of those interests has the greater percentage.

[6]          Proposed section 74E of the bill. If the ACMA is satisfied that the disclosure of the information could reasonably be expected to prejudice materially the commercial interests of a person, the Register must not set out that particular information: section 74E(2).

[7]          'Designated information' means, relevantly, the person's date of birth and the country in which the person is ordinarily resident: proposed section 74B.

[8]          Proposed section 74F and 74H. See also proposed section 74J, which introduces a transitional provision for disclosure for foreign stakeholders who are required to register at the commencement of this Division of the bill. 

[9]          Proposed section 74K(1) and (2).

[10]          Statement of Compatibility (SOC), p. 20.

[11]          SOC, p. 18.

[12]          Hasan and Chaush v Bulgaria ECHR 30985/96 (26 October 2000) [84]

[13]        Proposed section 74G(2) of the bill.

[14]        Proposed sections 74F(4), 74G(3), 74H(4), 74J(4) and 74K(5) of the bill.

[15]        SOC, p. 20.

[16]          See, Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44^th Parliament (16 March 2016) p. 11; Thirty-Seventh Report of the 44^th Parliament (19 April 2016); Report 9 of 2016 (22 November 2016) p. 56; Report 7 of 2017 (8 August 2017) p. 21 (which examined the United Nations (Sanctions – Democratic People's Republic of Korea) (Documents) Instrument 2017 that is amended by the current instrument); Report 11 of 2017 (17 October 2017) pp. 46-48.

[17]          2008 DPRK regulations section 5.

[18]          See 2008 DPRK sanctions regulations section 5.

[19]          Compare, Charter of the United Nations (Sanctions – Democratic People's Republic of Korea) (Documents) Instrument 2017 [F2017L00539].

[20]          See 2008 DPRK sanctions regulations section 5(1)(c).

[21]          2008 DPRK regulations section 5.

[22]          Parliamentary Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017) p. 21.

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

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

[25]        Statement of compatibility, p. 1.

[26]          Proposed section 287(1).  'Political purpose' is defined in subsection 287(1) to mean: (a) the public expression by any means of views on a political party, a candidate in an election or a member of the House of Representatives or the Senate; (b) the public expression by any means of views on an issue that is, or is likely to be, before electors in an election (whether or not a writ has been issued for the election);  (c)  the communicating of any electoral matter (not being matter referred to in paragraph (a) or (b)) for which particulars are required to be notified under section 321D; (d)  the broadcast of political matter (not being matter referred to in paragraph (c)) in relation to which particulars are required to be announced under subclause 4(2) of Schedule 2 to the  Broadcasting Services Act 1992; (e)  the carrying out of an opinion poll, or other research, relating to an election or the voting intentions of electors;  except if: (f)  the sole or predominant purpose of the expression of the views, or the communication, broadcast or research, is the reporting of news, the presenting of current affairs or any editorial content in news media; or  (g)  the expression of the views, or the communication, broadcast or research, is solely for genuine satirical, academic or artistic purposes.

[27]          Section 287F of the bill.  An entity must register as a political campaigner if their political campaigner in the current financial year is $50,000 or more, and their political expenditure during the previous financial year was at least 50 per cent of their allowable amount.

[28]          The 'disclosure threshold' is defined in section 287(1) of the bill to be $13,200. 

[29]          Section 287G(1).

[30]          Except a registered political party or a State branch of a registered political party: section 287H(1) of the bill.

[31]          Section 287H(1).

[32]          Proposed section 287N of the bill.

[33]          Proposed section 287N(5)-(7).

[34]          Proposed section 287Q.

[35]        Statement of Compatibility (SOC) [4].

[36]        SOC [6]. 

[37]        SOC [4].

[38]        Article 25 of the ICCPR; UN Human Rights Council, General Comment No.25: Article 25, Right to participate in public affairs, voting rights and the right of equal access to public service (1996) para [1],[5]-[6].

[39]        SOC [4].

[40]        SOC [4], [8].

[41]        SOC [5].

[42]        SOC [5].

[43]        Section 287(1) of the bill.

[44]        Proposed section 287.

[45]        Explanatory Memorandum (EM), [39].

[46]        EM, [61].

[47]        See also, in relation to the freedom of association for human rights defenders, Report of the Special Rapporteur on the situation of human rights defenders (A/64/226) (2009).

[48]        It is also noted that proposed section 287N of the bill gives a broad power to the electoral commissioner to determine, by legislative instrument, additional information to be published on the register. This is accompanied by a safeguard, namely that the legislative instrument is subject to mandatory consultation with the Privacy Commissioner. The committee will consider the human rights compatibility of any legislative instrument enacted pursuant to section 287N, and the sufficiency of the safeguards, once it is received.

[49]        Section 287G(3) and (4).

[50]        Section 287H(3) and (4).

[51]        EM, p. 19.

[52]        SOC [16].

[53]        Section 302D excludes political campaigners who are registered charities under the Australian Charities and Not-for-Profits Commission Act 2012 or registered organisations under the Fair Work (Registered Organisations) Act 2009: see section 302D(g).

[54]        Section 287AA of the bill.

[55]        Section 302D(2) and (3)

[56]        Section 302E(2)(b).

[57]        Section 302E(4) and (5).

[58]        Section 302F.

[59]        Section 302G(1)(d).  The effect of this is that a fundraiser can solicit foreign gifts for registered organisations or registered charities but can only use them subject to the requirements in section 302E: see EM [175].

[60]        Section 302G(2).

[61]        Section 302J.

[62]        Section 302H.

[63]        Section 302K(2) and (3).

[64]        A person obtains 'appropriate donor information' where a statutory declaration is obtained from the donor declaring the person is an allowable donor, unless the regulations provide otherwise: section 302P(1)(a) and (2). The regulations may also determine information that must be sought from the donor in order to establish other forms of appropriate donor information: section 302P(1)(b).

[65]        Section 302L(2) and(3).

[66]        SOC [4].

[67]        See Parti Nationaliste Basque – Organisation Régionale D'Iparralde v France, no.71251/01, ECHR 2007-II, [45]-[47].

[68]        SOC [14].

[69]        See sections 302L and 302P.

[70]        Report of the Special Rapporteur on the rights of freedom of peaceful assembly and of association (A/HRC/20/27) (2012) [67]-[68].

[71]        Report of the Special Rapporteur on the rights of freedom of peaceful assembly and of association (A/HRC/20/27) (2012) [70].

[72]        Section 287(1) of the bill.

[73]        See the note at the end of proposed section 309(2) and (3) and section 314AEB(1).

[74]        See proposed section 314AB(1).

[75]        SOC, [10].

[76]        SOC, [10]-[11].

[77]        SOC, [11].

[78]          See, Item 3; Statement of compatibility (SOC), p. 10. 

[79]          See proposed section 44D of the Enhancing Online Safety Act 2015.

[80]          See proposed section 44E of the Enhancing Online Safety Act 2015.

[81]          See proposed section 44F of the Enhancing Online Safety Act 2015. 

[82]          See proposed section 44K of the Enhancing Online Safety Act 2015.

[83]          SOC, p. 10.

[84]          SOC, p. 9.

[85]          SOC, p. 10.

[86]          SOC, p. 10.

[87]        Some criminal process rights may be subject to permissible limitations where they pursue a legitimate objective, are rationally connected to that objective and are a proportionate means of achieving that objective. However, other criminal process rights are absolute and cannot be subject to permissible limitations. 

[88]          Foreign principal is defined in section 10 of the bill to mean: (a) a foreign government; (b) a foreign public enterprise; (c) a foreign political organisation; (d) a foreign business; (e) an individual who is neither an Australian citizen nor a permanent Australian resident.

[89]          For Parliamentary lobbying, section 21 only applies to foreign principals who are a foreign public enterprise, foreign political organisation, foreign businesses, or individuals. Where the foreign principal is a foreign government, the activity is registrable if it is parliamentary lobbying in Australia whether or not the purpose is political or governmental influence: section 20 of the bill.  'Parliamentary lobbying' is defined in section 10 of the bill to mean lobbying a member of parliament or a person employed under section 13 or 20 of the Members of Parliament (Staff) Act 1984.

[90]          'General political lobbying' is defined in section 10 to mean lobbying any one or more of the following: (a) a Commonwealth public official; (b) a Department, agency or authority of the Commonwealth; (c) a registered political party; (d) a candidate in a federal election; other than lobbying that is Parliamentary lobbying.

[91]          Section 13 of the bill provides that a person undertakes 'communications activity' if the person communicates or distributes information or material.

[92]          For donor activity, section 21 only applies to foreign principals who are a foreign government, foreign public enterprise, or a foreign political organisation.

[93]          Section 21 of the bill. 

[94]          See sections 22 and 23 of the bill.

[95]          The requirement does not apply where the foreign principal is an individual, the activity is not registrable in relation to the foreign principal under another provision of the division, and the person is not exempt: section 22(b).

[96]          'Recent Minister or member of Parliament' is defined in proposed section 10 to mean a person who was (but is no longer) a Minister or a member of the Parliament at any time in the previous 3 years: section 10.

[97]        'Recent holder of a senior Commonwealth position' is defined in section 10 to mean a person who held a senior Commonwealth position at any time in the 18 months before the time, and is not at the time a Minister, member of the Parliament or a holder of a senior Commonwealth position. 'Senior Commonwealth position' covers positions at the agency head and deputy agency head levels.

[98]        The requirement does not apply where the foreign principal is an individual, the activity is registrable in relation to the foreign principal under another provision of the division, and the person is exempt: section 23.

[99]        Section 24 of the bill.

[100]        Section 25 of the bill.

[101]        Section 26 of the bill.

[102]        Section 27 of the bill.

[103]        Section 28 of the bill.

[104]        Section 29 of the bill.

[105]        Section 30 of the bill.

[106]        Section 57 of the bill.

[107]        Section 43(1)(c) of the bill.

[108]        Section 6 of the Charges Bill.

[109]        Statement of Compatibility (SOC) [62] and [72].

[110]        SOC [62].

[111]        SOC [64]. In the United States, the registration requirements under the US Foreign Agents Registration Act have been found to be compatible with the First Amendment (freedom of expression) on the basis it promotes the freedom of expression: "Resting on the fundamental constitutional principle that our people, adequately informed, may be trusted to distinguish between the true and the false, the bill is intended to label information of foreign origin so that hearers and readers may not be deceived by the belief that the information comes from a disinterested source. Such legislation implements rather than detracts from the prized freedoms guaranteed by the First Amendment. No strained interpretation should frustrate its essential purpose": Attorney-General of the United States of America v The Irish People Inc., 684 F.2d 928 (1982) (United States Court of Appeals, District of Columbia Circuit) [71]; see also Meese v Keene, 481 U.S. 465 (1987) (United States Supreme Court) 481-483 ("By compelling some disclosure of information and permitting more, the Act's approach recognizes that the best remedy for misleading or inaccurate speech contained within materials subject to the Act is fair, truthful, and accurate speech").

[112]        SOC [71]-[73].

[113]        Article 25 of the ICCPR; UN Human Rights Council, General Comment No.25: Article 25, Right to participate in public affairs, voting rights and the right of equal access to public service (1996) [1],[5]-[6].

[114]        SOC [81].

[115]        SOC [55].

[116]        SOC [21], [85].

[117]        UN Human Rights Committee, General Comment No. 34: Article 19, Freedom of Opinion and Expression (2011), [3].  See also Parti Nationaliste Basque – Organisation Régionale D'Iparralde v France, no.71251/01, ECHR 2007-II, [43]-[44], where the European Court of Human Rights accepted that prohibiting foreign States and foreign legal entities from funding national political parties pursued the legitimate aim of protecting institutional order; Attorney-General of the United States of America v The Irish People Inc., 684 F.2d 928 (1982) (United States Court of Appeals, District of Columbia Circuit); Meese v Keene, 481 U.S. 465 (1987) (United States Supreme Court).

[118]        Primrose Riordan, 'Universities alarmed new treason laws could target academics', http://www.theaustralian.com.au/higher-education/universities-alarmed-new-treason-laws-could-target-academics/news-story/af896886be03dd1c9517536e4cd70be1 (15 December 2017)

[119]        See section 11(1)(e) of the bill.

[120]        See section 12(1)(b) of the bill.

[121]        Section 10 of the bill.

[122]        Section 6 of the Charges Bill.

[123]        See section 57 of the bill.

[124]        Explanatory Memorandum, [303].

[125]        See UN Human Rights Council, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, A/HRC.20/27 (21 May 2012) [64]-[65].

[126]        See proposed section 28 of the bill.  Section 28 only applies if the foreign principal is a foreign business or an individual, and does not apply in relation to activities that are registrable in relation to a foreign principal for recent cabinet ministers or recent Ministers, members of Parliament and other holders of senior Commonwealth positions: section 28(2). See also the exemptions listed in sections 24,25,26,27 and 29.

[127]        See the United States' Foreign Agents Registration Act, 22 USC 611-621, section 613(e).

[128]        SOC [58].

[129]        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'.

[130]        Althammer v Austria, Human Rights Committee Communication no. 998/01 [10.2].

[131]        UN Committee on the Elimination of Racial Discrimination, General Recommendation 30: Discrimination against non-citizens (2004).

[132]        Section 10 of the bill.

[133]          Parliamentary Joint Committee on Human Rights, Twenty-ninth Report of the 44th Parliament (13 October 2015) pp. 9-24 and Thirty-second report of the 44th Parliament (1 December 2015) pp. 64-86.

[134]          Under the My Health Records Act 2012, 'healthcare recipient' is defined as 'an individual who has received, receives, or may receive, healthcare'.

[135]          The three-month period will begin on a date to be specified by the minister. See, explanatory statement (ES) pp. 4-5.

[136]          ES, p. 5.

[137]          According to the Department of Health Website, the information stored on My Health Record can include: 'Clinical documents about your health – added by healthcare providers including: Shared Health Summary; Hospital discharge summaries; Pathology and diagnostic imaging reports; Prescribed and dispensed medication; Specialist and referral documents; Medicare and PBS information stored by the Department of Human Services, Medicare and RPBS information stored by the Department of Veterans’ Affairs; Organ Donor decisions; Immunisations that are included in the Australian Immunisation Register. This may include childhood immunisations and other immunisations given to you by a healthcare provider; Personal health notes written by you or an authorised representative including: Contact numbers and emergency contact details; Current medications; Allergy information and any previous adverse reactions; Indigenous status; Veteran or ADF status; living will or advance care planning documents". Department of Health, My Health Record, https://myhealthrecord.gov.au/internet/mhr/publishing.nsf/Content/find-out-more?OpenDocument&cat=Managing%20your%20My%20Health%20Record

[138]          ES, statement of compatibility (SOC), p. 8.

[139]          ES, SOC, p. 8.

[140]          ES, SOC, p. 10.

[141]          Health Legislation Amendment (eHealth) Bill 2015, explanatory memorandum, p. 95.

[142]        ES, SOC, p. 9.

[143]        Siggins Miller Consultants, Evaluation of the Participation Trials for the My Health Record: Final Report (November 2016) p. vii.

[144]        ES, SOC, pp. 9-10.

[145]        The explanatory statement states that individuals aged 14 years or older will be able to opt themselves out. Persons with parental or legal authority for another person may also opt out that other person. See ES, p. 5.

[146]          See proposed section 80A in Schedule 1, item 3 and proposed section 73A in Schedule 2, item 3 of the bill.

[147]          'On-air talent contract' refers to a contract between the ABC or SBS and an individual under which the individual performs services for the ABC or SBS including appearing on a television program or speaking or performing on a radio program: proposed section 80A(3) in Schedule 1, item 3 and proposed section 73A(3) in Schedule 2, item 3 of the bill.

[148]          See proposed section 80A(1)(b) in Schedule 1, item 3 and proposed section 73A(1)(b) in Schedule 2, item 3 of the bill.

[149]          Statement of Compatibility (SOC), p. 6.

[150]          SOC, p. 6.

[151]          See Rechnungshof v Österreichischer Rundfunk and others, Court of Justice of the European Union C-465/00, C-138/01, C-139/01, 20 May 2003, [85], where the Court of Justice of the European Union noted in a case concerning public disclosure of salaries that 'in a democratic society, taxpayers and public opinion generally have the right to be kept informed of the use of public revenues, in particular as regards the expenditure on staff. Such information....may make a contribution to the public debate on a question of general interest, and thus serves the public interest'. See also, the United Kingdom Information Commissioner's Office, Freedom of Information Act Decision Notice (26 September 2011), relating to disclosure of salary details of senior managers at the BBC:  'taxpayers will have a natural, and legitimate, interest in knowing how a publicly funded organisation allocates its funding' ([27]).

[152]          See Rechnungshof v Österreichischer Rundfunk and others, Court of Justice of the European Union C-465/00, C-138/01, C-139/01, 20 May 2003, [73]-[75]; Information Commissioner's Office, Freedom of Information Act 2000 Decision Notice: British Broadcasting Corporation (26 September 2011), available at: https://ico.org.uk/media/action-weve-taken/decision-notices/2011/648762/fs_50363389.pdf, [25].

[153]          SOC, pp. 6-7.

[154]          Parliamentary Service Determination 2013 [F2013L00448] (2013 Determination).

[155]          See, Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) pp. 12‑15; Report 10 of 2016 (30 November 2016) pp. 13-16; Report 1 of 2017 (16 February 2017) pp. 20-23.

[156]          Australian Public Service Commissioner's Directions 2013 [F2013L00448] (APS 2013 Directions) reported in Parliamentary Joint Committee on Human Rights, Sixth Report of 2013 (15 May 2013) pp. 133‑134; Eighteenth Report of the 44th Parliament (10 February 2015) pp. 65-67; and Twenty-first Report of the 44th Parliament (24 March 2015) pp. 25‑28.

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

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

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

[160]          See section 34(1)(e).

[161]          Parliamentary Joint Committee on Human Rights, Report 10 of 2016 (30 November 2016)
p. 16.

[162]          Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (8 August 2017) p. 40.

[163]        Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (8 August 2017) p. 40.

[164]        Parliamentary Joint Committee on Human Rights, First Report of the 44th Parliament (10 December 2013) pp. 157-159.

[165]        Parliamentary Service Amendment (Notification of Decisions and Other Measures) Determination 2016 [F2016L01649].

[166]        Parliamentary Joint Committee on Human Rights, Report 1 of 2017 (16 February 2017)
pp. 20-23.

[167]        Parliamentary Joint Committee on Human Rights, Report 1 of 2017 (16 February 2017) p. 110.

[168]        Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (16 February 2017) p. 23.

[169]        See section 39(1)(e).

[170]        Statement of compatibility, Attachment B.

[171]        See, Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016)
p. 14; Report 1 of 2017 (16 February 2017) pp. 22-23.

[172]                             Parliamentary Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017) pp. 16-24.

[173]              Statement of Compatibility (SOC), p. xi.

[174]             See, article 22 of the ICCPR and articles7, 8 of the ICESCR.

[175]             The Freedom of Association and Protection of the Right to Organize (ILO Convention No. 87) is expressly referred to in the ICCPR and the ICESCR.

[176]             ILO, General Survey by the Committee of Experts on the Application of Conventions and Recommendations on Freedom of Association and Collective Bargaining (1994) [248];ILO, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) 182 (citing ILO Freedom of Association Committee 308th Report, Case No. 1897). See, also, ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR),Direct Request (CEACR) - adopted 2016, published 106th International Labour Conference (ILC) session (2017) Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Australia (Ratification: 1973) http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID:3299912; ILO's Committee on Freedom of Association (CFA Committee), Report in which the committee requests to be kept informed of development - Report No 338, November 2005 Case No 2326 (Australia) - Complaint date: 10 March 2004, http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2908523.

[177]             See ICCPR article 22.

[178]             See ILO, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) 182 (citing ILO Freedom of Association Committee 308th Report, Case No. 1897, [473]).

[179]             ILO, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) 182 (citing ILO Freedom of Association Committee 330th Report, Case No. 2194, [791]; and 335th Report, Case No. 2293, [1237]).

[180]             See, for example, ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), Direct Request - adopted 2016, published 106th ILC session (2017), Right to Organise and Collective Bargaining Convention, 1949 (No. 98) – Australia http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:3299912,102544,Australia,2016.

[181]           ILO's Committee on Freedom of Association (CFA Committee), Report in which the committee requests to be kept informed of development - Report No 338, November 2005 Case No 2326 (Australia) - Complaint date: 10 March 2004 http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2908523.

[182]           SOC, p. xi.

[183]           SOC, p. x.

[184]           SOC, p. xi.

[185]        See, article 22 of the ICCPR and article 8 of the ICESCR. The Freedom of Association and Protection of the Right to Organize (ILO Convention No. 87) is expressly referred to in the ICCPR and the ICESCR.

[186]        See ILO Convention N.87 article 3.

[187]        SOC, p. x.

[188]        SOC, p. x.

[189]        SOC, p. x.

[190]        SOC, p. x.

[191]        SOC, p. x.

[192]        See, Schedule 4, item 355, proposed section 355A of the Fair Work Act.

[193]        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) p. 5.

[194]        SOC, p. xi.

[195]        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) p. 5.

Chapter 2 - Concluded matters

[1]          Parliamentary Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 6-9.

[2]          Section 8(1)(c) of the ABC Act.

[3]          See Human Rights Committee, General comment No 34 (Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, [16] (2011).

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

[5]          Statement of Compatibility (SOC), p. 5.

[6]          SOC, p. 5.

[7]          ABC Editorial Policies, Editorial Guidance Note: Impartiality (2014) https://edpols.abc.net.au/guidance/impartiality/.

[8]          ABC Editorial Policies, Editorial Guidance Note: Impartiality (2014) https://edpols.abc.net.au/guidance/impartiality/.

[9]          ABC Editorial Policies, Editorial Guidance Note: Impartiality (2014) https://edpols.abc.net.au/guidance/impartiality/.

[10]        SOC, p. 5.

[11]        SOC, p. 5.

[12]        Section 8(1)(c) of the ABC Act.

[13]          Parliamentary Joint Committee on Human Rights, Report 13 of 2017 (5 December 2017)
pp. 17-18.

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

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

[16]          For example an agency may disclose personal information or a government related identifier of an individual where its use or disclosure is required or authorised by or under an Australian Law: Australian Privacy Principles 6.2(b) and 9.

[17]          Parliamentary Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 10-15.

[18]          See item 2 of the Bill. Proposed section 124(1)(gc) goes on to note several exceptions to this regulation-making power in relation to certain inquiries, namely inquiries conducted by the Defence Force Remuneration Tribunal under Part IIIA of the Act; or the Inspector-General ADF under Part VIIIB; or the Defence Honours and Awards Appeals Tribunal under Part VIIIC.

[19]          See sections 124(2A) and 124(2C) of the Defence Act.

[20]          UN Human Rights Council, General Comment No.32: Article 14, Right to equality before courts and tribunals and to fair trial (2006) [22].

[21]          See, Defence (Inquiry) Regulations 1985. See also Parliamentary Joint Committee on Human Rights, Twenty-Third Report of the 44^th Parliament (18 June 2015) pp. 18-21.

[22]          See also, Parliamentary Joint Committee on Human Rights, Twenty-Third Report of the 44^th Parliament (18 June 2015) pp. 18-21.

[23]          See, Parliamentary Joint Committee on Human Rights, Twenty-Third Report of the 44^th Parliament (18 June 2015) p. 21.

[24]          See, for example, Human Rights Committee, Freedom of movement (Art.12), UN DocCCPR/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; Hasan and Chaush v Bulgaria ECHR 30985/96 (26 October 2000) [84].

[25]          UN Human Rights Council, General Comment No.32: Article 14, Right to equality before courts and tribunals and to fair trial (2006) [22].

[26]        Within defence aviation areas, buildings and objects can be regulated for the purposes of removing and reducing hazards to defence aviation.

[27]        See for example sections 18 and 19 of the Regulatory Powers (Standard Provisions) Act 2014.

[28]        Section 32(2) of the Regulatory Powers (Standard Provisions) Act 2014.

[29]        See proposed section 117AE(2)(b) of the bill.

[30]        See proposed section 117AG(1) of the bill.

[31]        SOC [6].

[32]        Proposed section 117AG(2) of the bill.

[33]        See proposed section 117AF(3) of the bill.

[34]        SOC [6].

[35]          Parliamentary Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 25-30.

[36]          An Insurance Act and Life Insurance Act 'statutory manager' is either the Australian Prudential Regulation Authority (APRA) or an administrator appointed by APRA to control a body corporate's business: see Schedule 2, item 58, proposed section 62ZOA(8) to the Insurance Act; see Schedule 3, item 52, proposed section 179AA(8) to the Life Insurance Act.

[37]          Schedule 2, item 58, proposed section 62ZOD(2) to the Insurance Act; Schedule 3, item 52, proposed section 179AD(2) to the Life Insurance Act.

[38]          Schedule 2, item 58, proposed section 62ZOD(3) to the Insurance Act; Schedule 3, item 52, proposed section 179AD(3) to the Life Insurance Act.

[39]          Schedule 2, item 58, proposed section 62ZOD(4) to the Insurance Act; Schedule 3, item 52, proposed section 179AD(4) to the Life Insurance Act.

[40]          Schedule 2, item 58, proposed section 62ZOD(5) to the Insurance Act; Schedule 3, item 52, proposed section 179AD(5) to the Life Insurance Act.

[41]          The statement of compatibility also addresses the privilege against self-incrimination in relation to the new information gathering powers to allow APRA to obtain information from current and past officers of an insurer and a life insurance entity that is under statutory management: see Statement of Compatibility (SOC), 224-225.  The provisions relating to APRA's powers to obtain information include a use and a derivative use immunity provision and therefore do not raise human rights concerns: Schedule 2, item 58, proposed section 62ZOI(5) and (6) of the Insurance Act 1973; Schedule 3, item 52, proposed section 179AI(5) and (6) of the Life Insurance Act 1995.

[42]          SOC, pp. 224-225.

[43]          See, Schedule 2, item 58, proposed section 62ZOD(5) to the Insurance Act; Schedule 3, item 52, proposed section 179AD(5) to the Life Insurance Act.

[44]        Schedule 2, item 58, proposed section 62ZOI(5) and (6) of the Insurance Act 1973; Schedule 3, item 52, proposed section 179AI(5) and (6) of the Life Insurance Act 1995.

[45]        Schedule 4, item 92, proposed section 42 of the Transfer Act.

[46]        SOC, p. 226.

[47]        SOC, p. 227.

[48]        APP 9; APP 6.2(b).

[49]          Parliamentary Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 31-33.

[50]          See item 24 of the Regulations, amendment to Schedule 1 (items 16590 and 16591).

[51]          See item 9 of the Regulations, amendment to Schedule 1 (item 16407).

[52]          Parliamentary Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 34-42.

[53]          Item 6 of the bill; Explanatory Memorandum (EM) [19].

[54]          Item 13 of the bill; EM [22].

[55]          Item 12 of the bill.

[56]          EM [37].

[57]          Article 14(2) of the ICCPR.

[58]          Article 14(3)(g) of the ICCPR.

[59]          Article 15(1) of the ICCPR.

[60]          Parliamentary Joint Committee on Human Rights, Thirty-First Report of the 44^th Parliament (24 November 2015) pp. 43-44; Twenty-Sixth Report of the 44^th Parliament Report 1 of 2017 (16 February 2017); Report 2 of 2017 (21 March 2017) p. 6; Report 4 of 2017 (9 May 2017) pp.
92-93.

[61]        Section 49 of the POC Act.

[62]        Sections 51 and 80 of the POC Act.

[63]        Section 49(2)(a) of the POC Act.

[64]        Parliamentary Joint Committee on Human Rights, Thirty-First Report of the 44^th Parliament (24 November 2015) p. 43.

[65]        Parliamentary Joint Committee on Human Rights, Thirty-First Report of the 44^th Parliament (24 November 2015) pp. 43-44; Twenty-Sixth Report of the 44^th Parliament Report 1 of 2017 (16 February 2017); Report 2 of 2017 (21 March 2017) p. 6; Report 4 of 2017 (9 May 2017) pp.
92-93.

[66]        See, in this respect, the report of the United Kingdom Parliamentary Joint Committee on Human Rights, Joint Committee on Human Rights Third Report (26 November 2001), [40]-[41] where similar concerns were raised in relation to the UK Proceeds of Crime Bill.

[67]        Statement of Compatibility (SOC) [21]-[23]. See section 315 of the POC Act  which relevantly provides that '[p]roceedings on an application order or a confiscation order are not criminal proceedings', that the rules of construction applicable only in criminal law do not apply, and that rules of evidence applicable in civil proceedings do apply.

[68]        Parliamentary Joint Committee on Human Rights, Guidance Note 2: Offence provisions, civil penalties and human rights (December 2014) p. 3.

[69]        SOC [15].

[70]        See R v Green [1983] 9 CRR 78; Johnston v British Columbia [1987] 27 CRR 206.

[71]        SOC [27].

[72]        The amendments were introduced following several court cases where doubts had been raised as to whether it was possible to consider the origins of payments made on property in order to determine whether the property could be forfeited: see Commissioner of Australian Federal Police v Huang [2016] WASC 5; Commissioner of Australian Federal Police v Hart & Ors [2016] QCA 215

[73]        Section 24 of the POC Act.

[74]        Sections 17(4) and 19(3) of the POC Act, and also sections 47(4), 48(2) and 49(4).

[75]        Section 330(4) of the Act.

[76]        Sections 77 and 94A.

[77]        Section 80 of the POC Act.

[78]        Section 48(1)(c) of the POC Act.

[79]        'Unexplained wealth' refers to an amount that is the difference between a person's total wealth and the wealth shown to have been derived lawfully: see section 179E(2) of the Act.

[80]        See section 179E(1) of the POC Act.

[81]        See proposed amendment to section 179E(1) of the POC Act.

[82]        See proposed amendment to section 179E(3) of the POC Act.

[83]        See, Parliamentary Joint Committee on Human Rights, First Report of 2013, p. 27; Third Report of 2013, p. 120; Sixth Report of 2013, p. 189; Fourth Report of the 44^th Parliament (March 2014) p. 1; Ninth Report of the 44^th Parliament (July 2014), p. 133.

[84]        See, Parliamentary Joint Committee on Human Rights, Fourth Report of the 44^th Parliament (March 2014) p. 6.

[85]        The amendments apply after the commencement in relation to property derived or realised after commencement, from the commission of an offence occurring before or after that commencement: see item 14(1).

[86]        Parliamentary Joint Committee on Human Rights, Guidance Note 2: Offence provisions, civil penalties and human rights (December 2014) p. 3.

[87]          Parliamentary Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 43-52.

[88]          See proposed section 124QB of the Social Security (Administration) Act 1999, which defines 'divertible welfare payment' as a social security payment or a payment under the ABSTUDY scheme that is payable to a particular person and is not '(i) an Australian Victim of Terrorism Overseas Payment; or (ii) a Disaster Recovery Allowance; or (iii) a student start-up loan; or (iv) an ABSTUDY student start-up loan under the Student Assistance Act 1973; or (v) of a kind determined in an instrument [made by the Minister]'.

[89]          See proposed section 124QF(3) to the Social Security (Administration) Act 1999  and proposed section 67D(3) to the A New Tax System (Family Assistance) (Administration) Act 1999.

[90]          Proposed section 124QF(1) to the Social Security (Administration) Act 1999  and proposed section 67D(1) to the A New Tax System (Family Assistance) (Administration) Act 1999.

[91]          Proposed section 124QD to the Social Security (Administration) Act 1999.

[92]          Explanatory Memorandum (EM) p. 7.

[93]          UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security, UN Doc E/C.12/GC/19 (2008), [22].

[94]          Article 26 and Article 27 of the Convention on the Rights of the Child.

[95]          Statement of Compatibility (SOC) p. 2.

[96]        SOC p. 1.

[97]        The UN Special Rapporteur on adequate housing has recently emphasised the importance of the right to adequate housing and noted that it is a human right which is interdependent with other human rights, particularly the right to equality and non-discrimination and the right to life: Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, A/HRC/34/51, (2017) [11].

[98]        Parliamentary Joint Committee on Human Rights, Guidance Note 1—Drafting Statements of Compatibility (December 2014).

[99]        SOC, p. 1.

[100]        SOC, pp. 2-3.

[101]        SOC, pp. 2-3.

[102]        Proposed section 124QF(1) to the Social Security (Administration) Act 1999  and proposed section 67D(1) to the A New Tax System (Family Assistance) (Administration) Act 1999.

[103]        Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures Measures (16 March 2016) pp. 50-54.

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

[105]        See section 124QG.

[106]        Althammer v Austria, HRC 998/01 [10.2].

[107]        Australian Institute of Health and Welfare, Housing Assistance in Australia 2017 (13 July 2017) https://www.aihw.gov.au/reports/web/web-189/housing-assistance-in-australia-2017/contents/social-housing-tenants-1.

[108]        Australian Institute of Health and Welfare, Housing Assistance in Australia 2017 (13 July 2017) https://www.aihw.gov.au/reports/web/web-189/housing-assistance-in-australia-2017/contents/social-housing-tenants-1.

[109]        D.H. and Others v the Czech Republic ECHR Application no. 57325/00 (13 November 2007) 49; Hoogendijk v. the Netherlands ECHR, Application no. 58641/00 (6 January 2005).

[110]        See section 124PB of the Social Security (Administration) Act 1999.

[111]        Which includes a number of payments, including specified social security payments and family tax benefits: see section 124PD(1) of  the Social Security (Administration) Act 1999.

[112]        EM, p. 6.

[113]        See Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) pp. 126-137; Report 9 of 2017 (5 September 2017) pp. 34-40; Report 7 of 2016 (11 October 2016) pp. 58-61; Twenty-seventh report of the 44^th Parliament (8 September 2015) pp. 20-29; Thirty-first report of the 44^th Parliament (24 November 2015) pp. 21-36.

[114]        Parliamentary Joint Committee on Human Rights, Eleventh Report of 2013: Stronger Futures in the Northern Territory Act 2012 and Related Legislation (27 June 2013) and 2016 Review of Stronger Futures Measures (16 March 2016).

[115]        See also the previous comments of the committee: Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) pp. 126-137; Report 9 of 2017 (5 September 2017) pp. 34-40; Report 7 of 2016 (11 October 2016) pp. 58-61; Twenty-seventh report of the 44^th Parliament (8 September 2015) pp. 20-29; Thirty-first report of the 44^th Parliament (24 November 2015) pp. 21-36.

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

[117]        See item 7 of the bill, and page [6] of the explanatory memorandum.

[118]        See Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) pp. 126-137; Report 9 of 2017 (5 September 2017) pp. 34-40; Report 7 of 2016 (11 October 2016) pp. 58-61; Twenty-seventh report of the 44^th Parliament (8 September 2015) pp. 20-29; Thirty-first report of the 44^th Parliament (24 November 2015) pp. 21-36.

[119]        See Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) pp. 126-137; Report 9 of 2017 (5 September 2017) pp. 34-40; Report 7 of 2016 (11 October 2016) pp. 58-61; Twenty-seventh report of the 44^th Parliament (8 September 2015) pp. 20-29; Thirty-first report of the 44^th Parliament (24 November 2015) pp. 21-36.

[120]          Parliamentary Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 53-57.

[121]          See Schedule 2, item 9, sections 61A and 61C. Under the bill, a person is required to appear before an investigator where the investigator 'reasonably believes or suspects that a person... can give information relevant to the investigator’s investigation'. See proposed schedule 2, item 9, section 61C.

[122]          See Schedule 2, item 9, section 61G.

[123]          SOC, p. 79.

[124]          This includes proceedings concerning the falsity of the information provided. See SOC, p. 79.

[125]          Subsection 61(1) of the Banking Act 1959 also stipulates that APRA may appoint a person to investigate prudential matters relating to a body corporate that is an ADI; an authorised non-operating holding company; or a subsidiary of an ADI or of an authorised non-operating holding company.

[126]          It is noted that the statement of compatibility does acknowledge that the right to privacy is engaged by another measure in the bill that requires authorised deposit-taking institutions (ADIs) to provide information to APRA, including personal information, on persons with senior executive responsibility within the ADI or its subsidiaries: See SOC p. 80.

Appendix 2

[1]          Parliamentary Joint Committee on Human Rights, Guide to Human Rights (June 2015).

[2]          Parliamentary Joint Committee on Human Rights, Guidance Note 1 (December 2014).

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

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