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).

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]          Commissions of Inquiry are a consolidation of the four higher-level inquiry formats under the former Defence (Inquiry) Regulations 1985 – General Courts of Inquiry, Boards of Inquiry, Combined Boards of Inquiry and Chief of the Defence Force (CDF) Commissions of Inquiry: see Explanatory Statement (ES) p.8. COIs are used for higher level matters that are particularly complex and sensitive: see ES p.1.

[4]          Persons can be required to attend to give evidence following a written notice from the president of the commission of inquiry, if the president reasonably believes that a person has information that is relevant to the commission's inquiry: section 19 of the regulations.

[5]          Pursuant to a notice issued under section 18 of the regulations.

[6]          Sections 53, 61 and 62 of the regulations. 'Inquiry officer' inquiries are used to inquire into more routine matters. See ES p.1.

[7]          It is noted that this applies to oral testimony only, and the privilege against self-incrimination applies to the provision of documents: see sections 124(2A) and (2C) of the Defence Act 1903. See also pp.29 of the ES.

[8]          Sections 38(2) and 67(2) of the regulations.

[9]          Section 124(2C) of the Defence Act 1903 (Defence Act); see the note to sections 38 and 67 of the regulations.

[10]          Sections 40 and 69 of the regulations.

[11]          Statement of compatibility (SOC), p. 4.

[12]        SOC, p.4.

[13]        ES p.29, p.47.

[14]        SOC, p. 5: this same point is made in the ES at pp. 29 and 47-48.

[15]        Section 25 of the regulations.

[16]        Section 36 of the regulations.

[17]        Persons who are permitted to disclose information or documents pursuant to sections 26 and 27 will not commit an offence: see section 37(2) and (3) of the regulations.

[18]        Section 26(2), section 27(3) and section 28 of the regulations.

[19]        Sections 58 (use, disclosure and copying of certain information and documents as an employee of the Commonwealth or member of the Defence Force), 59 (minister may authorise use, disclosure and copying of certain information) and 60 (minister may use, disclose and copy certain information and documents) of the regulations.

[20]        ES, p.21.

[21]        Sections 29(2), 30(2), 32(3), 36(2) and (3) and 37(2) and (3) of the regulations.

[22]        Sections 61(2) and (4), 62(2) and 66(2) and (4) of the regulations.

[23]        See, for example, ES p.23,25,43 and 46.

[24]          In the event of any change to the Senate's sitting days, the last day for the notice would change accordingly. 

[25]          Section 2.72 also applies to holders of the Subclass 457 (Temporary Work (Skilled) Visa) visa. That visa is repealed by the regulation, however, the reference is included in section 2.72 because, although the visa has been repealed, holders of 457 visas will require a new nomination if they change employer: Explanatory statement to the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (regulations), p.28.

[26]          'Nominated occupation' refers to the proposed occupation of the applicant for the visa:  see clause 482.111 in Schedule 2 of the regulations.

[27]          See clause 482.216, clause 482.316 of Schedule 2 of the regulations.

[28]          These visas allow employers to nominate skilled workers for permanent residence to fill genuine vacancies in their business. Subclass 186 visa is available nationally, while the Subclass 187 visa is for skilled workers who want to work in regional Australia: see Statement of Compatibility (SOC) to the regulations, p. 8.

[29]          Article 22 of the International Covenant on Civil and Political Rights

[30]          Article 22(2).

[31]          Explanatory statement, pp.19-20.

[32]          See section 2.72(4) and 5.19(4) of the regulation.

[33]          See, Parliamentary Joint Committee on Human Rights, Report 13 of 2017 (5 December 2017) pp. 2-16; Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) pp. 73-96.

[34]          The statement of compatibility refers to the assistance of New South Wales, Victoria and the Australian Capital Territory: see Statement of Compatibility (SOC) p. 113. See the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 (NSW) which passed both houses in New South Wales on 16 May 2018, and the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 (Victoria) passed both houses in Victoria on 7 June 2018.

[35]          Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) pp. 73, 79, 83, 93.

[36]          See Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018)
p. 74.

[37]          Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 78.

[38]          Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 78.

[39]          See proposed section 13(1)(e) of the 2018 Bill; see statement of compatibility (SOC)
pp. 117-118.

[40]          Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) pp. 79-83.

[41]          Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 80.

[42]        Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 83.

[43]        Proposed section 12(3) and (4) of the 2018 Bill.

[44]        See proposed section 13(2) and (3) of the 2018 Bill.

[45]        See proposed section 21(7) of the Commonwealth Bill.

[46]        Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) pp. 83-85.

[47]        Proposed section 15(4(f),(5) and (6) of the 2018 Bill.

[48]        Proposed sections 39 and 40 of the Commonwealth Bill.

[49]        Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) pp. 85-88.

[50]        Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 88.

[51]        Proposed section 42(2)(c) of the 2018 Bill; see also sections 39, 42 and 43 of the 2018 Bill; see also SOC pp.122-123. The SOC explains (at p.123) the rationale for expanding the release to 'associates' as follows: ' organisations comprising multiple institutions are likely to opt-in to the Scheme as one, forming a ‘participating group’ (institutions are then known as ‘associates’ of one another). In order to form a participating group, institutions must be sufficiently connected and appoint a representative for the group. That representative will then be jointly and severally liable with each associate for funding contributions. Attaching the release to all associates of responsible participating institution(s) for sexual abuse and related non-sexual abuse within the scope of the Scheme is therefore reflective of their joint financial liability, and is a necessary component of ensuring that institutions will opt-in to the Scheme together, therefore ensuring maximum coverage for survivors'.

[52]        Proposed section 43 of the 2018 Bill.

[53]        The committee also notes that it is preferable for details of proposed rules to be available for consideration in conjunction with the related bill prior to its passage. See also Committee Comment at [1.59] below.

[54]        Proposed Part 4-3 of the Commonwealth Bill.

[55]        Schedule 3 of the Commonwealth Consequential Amendments Bill.

[56]        Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) pp. 93-96.

[57]        Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 96.

[58]        Part 4-1 of the 2018 Bill.

[59]        Schedule 3 to the National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018.

[60]        SOC, p. 127.

[61]        See proposed section 77 of the Commonwealth Bill.

[62]        See Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018)
p. 93.

[63]        Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) pp. 92-93.

[64]        National Redress Scheme Operator is defined in section 6 to mean the person who is the Secretary of the Department in the person's capacity as operator of the scheme. 'Department' is not defined in the bill and pursuant to section 19A of the Acts Interpretation Act 1901 means the Department that is administered by the Minister or Ministers administering that provision in relation to the relevant matter, and that deals with that matter.

[65]        'Protected Information' is defined in section 92(2) of the 2018 Bill as '(a) information about a person or an institution that: (i) was provided to, or obtained by, an officer of the  scheme for the purposes of the scheme; and (ii) is or was held in the records of the Department or the Human Services Department; or (b) information to the effect that there is no information about a person or an institution held in the records of a Department referred to in subparagraph (a)(ii)'.

[66]        Proposed section 95 of the 2018 Bill.

[67]        For the relevant principles relating to the right to privacy, see Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) p. 89.

[68]        SOC, p. 125.

[69]        See proposed section 96(3) of the 2018 bill (operator disclosing for law enforcement or child safety or wellbeing), and proposed section 98(3) (person engaged by participating institution disclosing etc. for a specified purpose).

[70]        See the discussion of the human rights implications of expressing legal discretion of the executive in overly broad terms in Hasan and Chaush v Bulgaria ECHR 30985/96 (26 October 2000) [84].

[71]        The minister foreshadowed in his response to the Commonwealth Bill that the 2018 Bill would limit the eligibility of persons with certain criminal convictions to obtain redress: see Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) 80-83. The committee noted that there are human rights concerns in relation to the proposed exclusion of persons with certain criminal convictions from being eligible for the scheme: page 83.

[72]        'Specified advisor' is defined in section 64(3)(b) as the following: (i) if the abuse of the persons occurred inside a participating state or a participating territory – the Attorney-General of the state or territory, or another person nominated by that Attorney-General in writing; (ii) if the abuse of the person occurred outside a participating state or participating territory – the Commonwealth Attorney-General; (iii) if the offence was against a law of a participating state or participating territory – the Attorney-General of the state or territory, or another person nominated by that Attorney-General in writing; if the offence was against a law covered by subparagraph (iii) – the Commonwealth Attorney-General.

[73]        The written notice must also include sufficient information to enable the specified advisor to provide that advice. The period in which the specified advisor may provide the advice must be at least 28 days starting on the date of the notice: see proposed section 63(4) of the 2018 Bill.

[74]        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'.

[75]        Committee on the Elimination of Racial Discrimination, General Recommendation 14 (1993); See also Althammer v Austria, HRC 998/01, [10.2]

[76]        SOC, p.118.

[77]        SOC, p.118.

[78]        See Thlimmenos v Greece, ECHR Application No. 34369/97 (6 April 2000).

[79]        See also the Australian Human Rights Commission Act 1986 (Cth) which considers preventing discrimination in employment on the basis of a criminal record as part of Australia's obligations under International Labour Organisation Convention 111, the Discrimination (Employment and Occupation) Convention 1958, which prohibits discrimination in employment. See Australian Human Rights Commission, 'On the Record: Discrimination in Employment on the basis of Criminal Record under the AHRC Act' (2012).

[80]        SOC, pp. 118-119.

[81]        Proposed section 3 of the 2018 Bill.

[82]        See Hirst v the United Kingdom (No. 2), European Court of Human Rights App No. 74025/01, (Grand Chamber, 6 October 2005) [69]-[71]; Dickson v United Kingdom, European Court of Human Rights App No. 44362/04 (Grand Chamber, 4 December 2007) [68] and [72].

[83]        Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report: Impacts, Volume 3 (2017) 11.  See also, James RP Ogloff, Margaret C Cutajar, Emily Mann and Paul Mullen, 'Child sexual abuse and subsequent offending and victimisation: A 45 year follow-up study'(2012) Trends & Issues in Crime and Criminal Justice No.440.

[84]        Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report: Impacts, Volume 3 (2017) 143-145. See also Royal Commission into Institutional Responses to Child Sexual Abuse, Interim Report, Volume 1 (2014), pp. 116-117.

[85]        Proposed sections 63(2) and 63(5) of the 2018 Bill.

[86]        Proposed section 63(5) of the 2018 Bill.

[87]        Proposed section 63(6) and 63(7) of the 2018 Bill.

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

[89]        The review provisions of the 2018 Bill appear to apply to determinations made under proposed section 2: see proposed section 73.

[90]        Article 24 of the International Covenant on Civil and Political Rights: see SOC, p. 122.

[91]        Articles 19 and 34 of the Convention on the Rights of the Child: see SOC, p. 117.

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

[93]        'In gaol' in the 2018 Bill is defined by reference to section 23(5) of the Social Security Act 1991 which provides that a person is in gaol if (a) the person is being lawfully detained (in prison or elsewhere) while under sentence for conviction of an offence and not on release on parole or licence; or (b) the person is undergoing a period of custody pending trial or sentencing for an offence.

[94]        Hirst v the United Kingdom (No. 2), European Court of Human Rights App No. 74025/01, (Grand Chamber, 6 October 2005); Basic Principles for the Treatment of Prisoners, General Assembly Resolution 45/111 (14 December 1990) Principle 5.

[95]        UN Committee on Economic, Social and Cultural Rights, General Comment No.20: Non-discrimination in economic, social and cultural rights (2009) [27].

[96]        SOC, p.119.

[97]        SOC, pp. 119-120.

[98]        SOC, p. 119.

[99]        Proposed section 20(2) and (3) of the 2018 Bill. 

[100]        See proposed Part 3-2 of the 2018 Bill.

[101]        Proposed section 66 allows the foreign minister to give the home affairs minister a written notice if the foreign minister has refused to issue a travel document or cancelled a travel document of a person following a request from a competent authority on the basis the competent authority suspects on reasonable grounds that if an Australian travel document were issued to a person, the person would be likely to engage in conduct that might prejudice the security of Australia or a foreign country: see also sections 14(1)(a)(i), 14(2) and 22 of the Australian Passports Act 2005.

[102]        'Security' is defined in section 4 of the Australian Security Intelligence Organisation Act 1979 to mean: (a)  the protection of, and of the people of, the Commonwealth and the several States and Territories from: (i)  espionage; (ii)  sabotage; (iii)  politically motivated violence;   (iv)  promotion of communal violence;  (v)  attacks on Australia’s defence system; or (vi)  acts of foreign interference;  whether directed from, or committed within, Australia or not; and (aa)  the protection of Australia’s territorial and border integrity from serious threats; and (b)  the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).

[103]        Proposed section 65(2) of the 2018 Bill.

[104]        Proposed section 69 of the 2018 Bill.

[105]        Proposed section 70 of the 2018 Bill.

[106]        SOC, pp. 121-122.

[107]        Explanatory Memorandum, p. 55.

[108]        See UN Human Rights Committee, General Comment 32: Article 14, Right to Equality before Courts and Tribunals and to Fair Trial (2007) [16].

[109]        SOC p. 126; See Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018) [2.179]-[2.189].

[110]        Proposed section 64 of the 2018 Bill.

[111]        Proposed section 21 of the 2018 Bill. It is noted that proposed section 20(1)(c) provides a person who is a child who will not turn 18 before the scheme sunset day cannot make an application for redress. The effect of this is that children under eight when the scheme commences will not be able to receive redress under the scheme. Proposed section 20(1)(c) engages the right to equality and non-discrimination and the right to an effective remedy. However, the SOC explains at pp. 120-121 that only around 50 of more than 8,000 survivors that attended private sessions were under the age of 8 years. The SOC explains that, as found by the Royal Commission, while it was possible that some individuals would wish to seek redress while they are still a minor, it is not expected that many minors will apply as it would almost always be within the time limitations to commence proceedings through civil litigation, and an individual would be more than likely to receive larger payment either through settlement or civil litigation than they might during the scheme. The SOC also explains alternative avenues that were considered, such as requiring minors to have a nominee arrangement or paying amounts into a trust account, and explains why this approach was not considered to be appropriate. Based on the information provided (particularly the availability of civil litigation for survivors under the age of 8 and the explanation of less rights restrictive approaches that were considered), this aspect of the measure appears to be compatible with the right to an effective remedy and appears to constitute a permissible limitation on the right to equality and non-discrimination.

[112]        Schedule 5 to the 2018 Consequential Amendments Bill.

[113]        Love v Australia (983/01), UN Human Rights Committee (2003) [8.2].

[114]        Article 2(1) Convention on the Rights of the Child.

[115]        Articles 19 and 34 read with Article 2(1) of the CRC. See Committee on the Rights of the Child, General Comment No.13: The right of the child to freedom from all forms of violence (2011) [60].

[116]        SOC, p. 120.

[117]        SOC, pp. 120-121.

[118]        This includes information as to the extent to which the rules will be subject to parliamentary oversight, noting section 44(1)(a) of the Legislation Act 2003.

[119]          The Social Security (Assurances of Support) Determination 2018 [F2018L00425] (the determination) was amended by the Social Security (Assurances of Support) Amendment Determination 2018 [F2018L00650] (the amended determination) on 24 May 2018.

[120]          Visa subclasses for which it is a mandatory condition of grant of the visa to have an assurance of support include the visa subclass 103 (parent), subclass 143 (contributory parent), subclass 864 (contributory aged parent); subclass 114 (aged dependent relative); subclass 115 (remaining relative). There are also several visa subclasses for which the Minister for Home Affairs may request an assurance of support as a condition of the grant, including subclass 117 (orphan relative); subclass 101 (child); subclass 102 (adoption); subclass 151 (former resident); subclass 202 (global humanitarian visa – community support programme entrants).

[121]          The length of the assurance period depends on the type of visa. For example, for a contributory parent visa, the period of assurance may be 10 years; for a community support programme entrant, the period is 12 months: explanatory statement to the determination,
p. 2.

[122]          Section 1061ZZGA(a) of the Social Security Act 1991; Statement of compatibility (SOC) to the amended determination, pp. 1,3.  Recoverable social security payments for the purpose of assurances of support includes widow allowance, parenting payment, youth allowance, austudy payment, newstart allowance, mature age allowance, sickness allowance, special benefit and partner allowance.

[123]          Section 14(1) of the determination.

[124]          'Base FTB child rate' refers to the base Family Tax Benefit rate. The rate has the meaning and is determined by clause 8 of Schedule 1 to the A New Tax System (Family Assistance) Act 1999.  See further the explanation at [1.126] below.

[125]          'Applicable supplement amount' has the meaning and is determined by clause 38A(2) of Schedule 1 to the A New Tax System (Family Assistance) Act 1999. See further the explanation at [1.126].

[126]          Section 15(2) of the amended determination. The determination before amendment required a higher level of income in order to meet the income requirement, namely the newstart income cut-off amount multiplied by the total of: (i) one (representing the individual giving the assurance of support); and (ii) the total number of adults receiving assurance under the assurance of support given by the person; and (iii) if the individual giving assurance under the assurance of support has a partner – one; and (b) 10% of the newstart income cut-off amount multiplied by: (i)  the number of children of the individual giving assurance under the assurance of support; and  (ii) the number of children of any adults receiving assurance under the assurance of support.

[127]          Section 15(2) of the amended determination.  Before the amendment, the determination required that if a partnered individual with one child applied to give an assurance of support for a migrating family of two parents and two children, the minimum required income amount of the individual would have been the total of:  (a) $115 476 (the newstart income cut-off amount of $28 869 multiplied by the total number of individuals giving assurance, persons receiving an assurance, and the partner of the individual giving assurance (4)); and (b) $8 661 (10% of the newstart income cut-off amount of $28 869 multiplied by the total number of children of both the individual giving assurance, and the persons receiving assurance (3)).

[128]        Section 16(2) of the amended determination. The determination before amendment required a higher level of income in order to meet the income requirement, namely (a) the newstart income cut-off amount multiplied by the total of: (i) the total number of individuals giving assurance under the assurance of support; and (ii) the total number of adults receiving assurance under an assurance of support given by the individual; and (iii) the total number of partners of the individuals that are jointly giving assurance under the assurance of support; and (b) 10% of the newstart income cut-off amount multiplied by (i) the number of children of the individuals giving assurance under the assurance of support; and (ii) the number of children of any adults receiving assurance under the assurance of support.

[129]        Section 16(2) of the amended determination. Before the amendment, the determination required that for two joint assurers (who each have a partner and two children) give an assurance of support for a migrating family of two parents and three children, the combined minimum required income amount of both assurers is the total of: (a) $173 214 (the newstart income cut-off amount of $28 869 multiplied by the total number individuals giving assurance, persons receiving an assurance, and the partners of the individuals giving assurance (6)); and (b) $20 208 (10% of the newstart income cut-off amount of $28 869 multiplied by the total number of children of both the individuals giving the assurance, and the persons receiving assurance (7)).

[130]        UN Committee on the Rights of Children, General Comment 14 on the right of the child to have his or her best interest taken as primary consideration (2013).

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

[132]        SOC to the amended determination, p.1.

[133]        See above at [1.125] to [1.128] and accompanying footnotes.

[134]          Coral Sea Marine Park Management Plan 2018 [F2018L00327]; Temperate East Marine Parks Network Management Plan 2018 [F2018L00321]; North-West Marine Parks Network Management Plan 2018 [F2018L00322]; North Marine Parks Network Management Plan 2018 [F2018L00324]; South-West Marine Parks Network Management Plan 2018 [F2018L00326].

[135]          North Marine Parks Network Management Plan 2018 [F2018L00324] p. 51, [4.2.6]; Temperate East Marine Parks Network Management Plan 2018 [F2018L00321] p. 51 [4.2.5]; North-West Marine Parks Network Management Plan 2018 [F2018L00322] p. 54 [4.2.6]; South-West Marine Parks Network Management Plan 2018 [F2018L00326] p. 50 [4.2.4]; Coral Sea Marine Park Management Plan 2018 [F2018L00327] p. 43, [4.2.5].

[136]          Limitations must be prescribed by law, pursue a legitimate objective, and be rationally connected and proportionate to that objective. Additionally, the right may only be limited for certain prescribed purposes, that is, where it is necessary to respect the rights of others, or to protect national security, public safety, public order, public health or morals.

[137]          See, Parliamentary Joint Committee on Human Rights, Third report of 2013 (13 March 2013) p. 65; Seventh report of 2013 (5 June 2013) p. 21; Third report of the 44th Parliament (4 March 2014) p. 3; Eighth report of the 44th Parliament (24 June 2014) p. 5 and p. 31; Twentieth report of the 44th Parliament (18 March 2015) p. 5; Twenty-third report of the 44th Parliament (18 June 2015) p. 13;Thirty-fourth report of the 44th Parliament (23 February 2016) p. 2; Report 2 of 2017 (21 March 2017) p.44; Report 5 of 2017 (14 June 2017) p. 42; Report 3 of 2018 (27 March 2018) p. 97.

[138]          Parliamentary Joint Committee on Human Rights, Seventh report of 2013 (5 June 2013) p. 21; and Eighth report of the 44th Parliament (18 June 2014) p. 32.

[139]          See, for example, Parliamentary Joint Committee on Human Rights, Eighth Report of the 44th Parliament (June 2014) pp. 5-7, 33.

[140]          See, Parliamentary Joint Committee on Human Rights, Third report of 2013 (13 March 2013); Seventh report of 2013 (5 June 2013); Third report of the 44th Parliament (4 March 2014); and Eighth Report of the 44th Parliament (24 June 2014), Report 5 of 2017 (14 June 2017) p. 42.

[141]          Parliamentary Joint Committee on Human Rights, Twenty-third report of the 44th Parliament (18 June 2015), p. 17.

[142]          Appropriation Bill (No. 1) 2018-2019: explanatory memorandum (EM), statement of compatibility (SOC), p. 3; Appropriation Bill (No. 2) 2018-2019: EM, SOC, p. 4; Appropriation (Parliamentary Departments) Bill (No. 1) 2018-2019: EM, SOC, p. 4; Appropriation Bill (No. 5) 2018-2019: EM, SOC, p. 4; Appropriation Bill (No. 6) 2018-2019: EM, SOC, p. 4.

[143]          Bill No. 1, EM, SOC, p. 3; Bill No. 2, EM, SOC, p. 4; Parliamentary Departments, EM, SOC, p. 4; Bill No. 5, EM, SOC, p. 4; Bill No. 6 2018-2019: EM, SOC, p. 4.

[144]          Bill No. 1, EM, SOC, p. 3; Bill No. 2, EM, SOC, p. 4; Parliamentary Departments, EM, SOC, p. 4; Bill No. 5, EM, SOC, p. 4; Bill No. 6 2018-2019: EM, SOC, p. 4.

[145]          Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) pp. 30‑33.

[146]        See, UN Office of the High Commissioner for Human Rights, Manual on Human Rights Monitoring, http://www.ohchr.org/Documents/Publications/Chapter20-48pp.pdf; Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[147]        There are a range of international resources to assist in the preparation of human rights compatibility assessments of budgets: See, for example, Diane Elson, Budgeting for Women's Rights: Monitoring Government Budgets for Compliance with CEDAW, (Unifem, 2006) https://www.internationalbudget.org/wp-content/uploads/Budgeting-for-Women%E2%80%99s-Rights-Monitoring-Government-Budgets-for-Compliance-with-CEDAW.pdf; UN Practitioners' Portal on Human Rights Approaches to Programming, Budgeting Human Rights, http://hrbaportal.org/archives/tools/budgeting-human-rights; Rory O'Connell, Aoife Nolan, Colin Harvey, Mira Dutschke, Eoin Rooney, Applying an International Human Rights Framework to State Budget Allocations: Rights and Resources (Routledge, 2014).

Chapter 2 - Concluded matters

[1]             Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 2-5.

[2]          'Requesting officer' is defined under subsection 75.10(2) of the instrument, and means the head of an eligible agency, or a member of an eligible agency who is a Senior Executive Service (SES) employee or equivalent, or who holds the rank of superintendent or higher.

[3]          'Eligible agency' is defined under subsection 75.10(1) of the instrument, and means the Australian Crime Commission, the Australian Federal Policy, the Immigration Department, the NSW Crime Commission or the police force or service of a State or the Northern Territory.

[4]          'Serious offence' is defined under subsection 75.10(3) of the instrument, and means an offence against a Commonwealth, State or Territory law, punishable on indictment by imprisonment for 2 or more years, or an offence against a law of a foreign country constituted by conduct that, if it had occurred in Australia, would constitute a serious offence.

[5]          Section 75.3 provides that the exemption in section 75.2 applies to the following provisions of the AML/CTF Act: section 29 (identity verification for certain pre-commencement customers); section 32 (carrying out the applicable customer identification procedure before the commencement of the provision of a designated service); section 34 (carrying out the applicable customer identification procedure after the commencement of the provision of a designated service); section 35 (verification of identity of customers); section 36 (ongoing customer due diligence); section 82 (compliance with Part A of an anti-money laundering and counter-terrorism financing program); section 136 (false or misleading information); section 137 (producing false or misleading documents); section 138 (false documents); section 139 (providing a designated service using a false customer name or customer anonymity); and section 142 (conducting transactions so as to avoid reporting requirements relating to threshold transactions).

[6]          AML/CTF Act section 6.

[7]          AML/CTF Act section 5, definition of 'reporting entity'.

[8]          International Covenant on Civil and Political Rights (ICCPR) article 14(2)-14(7).

[9]          See, Ramanauskas v Lithuania, European Court of Human Rights (ECHR) Application No. 74420/01, 5 February 2008, [55]. The ECHR has consistently held that entrapment violates article 6 of the European Convention on Human Rights, which is equivalent to article 14 of the ICCPR.

[10]        See, Khudobin v Russia, ECHR Application No. 59696/00, 26 October 2006; Baltins v Latvia, ECHR Application No. 25282/07, 8 January 2013; Ramanauskas v Lithuania, ECHR Application No. 74420/01, 5 February 2008, [55].

[11]        Statement of compatibility (SOC), p. 5.

[12]        Explanatory statement (ES), p. 1.

[13]          Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 6-11.

[14]          Parliamentary Joint Committee on Human Rights, Report 4 of 2018 (8 May 2018) pp. 38-46.

[15]          For further information as to the content of these rights, see Appendix 2. These rights may be subject to permissible limitations which are provided by law and are not arbitrary. In order for a limitation not to be arbitrary, it must pursue a legitimate objective and be rationally connected and proportionate to achieving that objective.

[16]          Statement of compatibility (SOC), pp. 11-12.

[17]          SOC, p. 12.

[18]          SOC, p. 11.

[19]          SOC, p. 12.

[20]          See, for example, MM v United Kingdom, App. No 24029/12, European Court of Human Rights (2012); R (on the application of T and another) v Secretary of State for the Home Department and another [2014] UKSC 35. See also the decision of Bell J in the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267 (22 May 2013).

[21]          Section 85ZZGL of the bill.

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

[23]        See Victorian Government Department of Justice and Regulation, Working with Children Check: Failing the Check, available at http://www.workingwithchildren.vic.gov.au/home/applications/application+assessment/failing+the+check/;   NSW Civil and Administrative Tribunal, Working with Children Checks, available at http://www.ncat.nsw.gov.au/Pages/administrative_equal_opp/aed_your_matter/aeod_working-with-children/aeod_working-with-children.aspx .

[24]        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.

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

[26]        See Thlimmenos v Greece, ECHR Application No. 34369/97 (6 April 2000).

[27]        See also the Australian Human Rights Commission Act 1986 (Cth) which considers discrimination in employment on the basis of a criminal record as part of Australia's obligations under International Labour Organisation Convention 111, the Discrimination (Employment and Occupation) Convention 1958, which prohibits discrimination in employment. See Australian Human Rights Commission, 'On the Record: Discrimination in Employment on the basis of Criminal Record under the AHRC Act' (2012).

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

[29]             Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018)
pp. 16-29.

[30]          See the committee's comments in Parliamentary Joint Committee on Human Rights, First report of 2013 (6 February 2013) pp. 111-112; see also Sixth report of 2013 (15 May 2013) p. 149; Tenth report of 2013 (26 June 2013) p. 56; Twenty-second report of the 44^th Parliament (13 May 2015) pp. 108-110; Report 4 of 2017 (9 May 2017) pp. 70-73.

[31]          Parliamentary Joint Committee on Human Rights, Tenth report of 2013 (26 June 2013) p. 56; Twenty-second report of the 44^th Parliament (13 May 2015) pp. 108-110; Report 4 of 2017 (9 May 2017) pp. 70-73.

[32]          'Extradition country' is defined in section 5 of the Extradition Act to mean, relevantly '(a) any country (other than New Zealand) that is declared by the regulations to be an extradition country'.

[33]          It is noted that it is difficult to assess the compatibility of the Extradition Act for human rights in the absence of a foundational human rights compatibility assessment. Therefore, the rights listed are not intended to be comprehensive and there may be other human rights engaged and limited by the Extradition Act.

[34]          Statement of Compatibility (SOC) p. 4.

[35]          UN Human Rights Committee, General Comment No.20: Article 7 (Prohibition of Torture, or other Cruel, Inhuman or Degrading Treatment of Punishment) (1992) [9]; UN Human Rights Committee, General Comment No. 3: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (2004) [12]. See, also, Committee against Torture, General Comment No.4 on the implementation of article 3 of the Convention in the context of article 22 (advance unedited edition, 9 February 2018) [26]; Babar Ahmad & Ors v United Kingdom, European Court of Human Rights App No.24027/07 et al, 10 April 2012, [175].

[36]          SOC, p. 7.

[37]          See, for example, Parliamentary Joint Committee on Human Rights, Tenth Report of 2013 (June 2013) p. 58.

[38]        A number of human rights do impose positive duties on States, including requiring states parties to protect the rights by law: see for example, Article 6(1) (Right to Life). The UN Human Rights Committee has stated, for example, that it is 'implicit in article 7 that States Parties have to take positive measures to ensure that private persons or entities do not inflict torture or cruel, inhuman or degrading treatment or punishment on others within their power': UN Human Rights Committee, General Comment No. 3: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (2004) [8].

[39]        UN Human Rights Committee, Concluding Observations on the Sixth Periodic Report of Australia (1 December 2017) [33].

[40]        See Parliamentary Joint Committee on Human Rights, Report 10 of 2013 (June 2013) p. 59.

[41]        See UN Human Rights Committee, General Comment 27: Freedom of Movement (Article 12) (1999) [13].

[42]        Pinkey v Canada, UN Human Rights Communication No.27/1977 (1981) [34].  The European Court of Human Rights has also found that an interference with an applicant's human rights was not 'prescribed by law' because it was 'arbitrary and was based on legal provisions which allowed unfettered discretion to the executive and did not meet the required standards of clarity and foreseeability'. The court considered that the law must indicate with sufficient clarity the scope of any discretion and the manner of its exercise:  Hasan and Chaush v Bulgaria, ECHR App No.30985/96 (26 October 2000) [84]- [86]; Maestri v Italy, ECHR App No.39748/98 (17 February 2004) [30]-[31].

[43]        Judge v Canada (929/1998), Human Rights Committee, 13 August 2003, [10.4]; Kwok v Australia (1442/05) Human Rights Committee, 23 November 2009, [9.4],[9.7];

[44]        See El Salvador's Depository Notification to the Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty (8 April 2014) available https://treaties.un.org/doc/Publication/CN/2014/CN.201.2014-Eng.pdf .  See also Article 2(2) of the Second Optional Protocol to the International Covenant on Civil and Political Rights.

[45]        SOC, p. 7.

[46]        Extradition Act, section 15B(3)(b).

[47]        SOC, p. 7.

[48]        SOC, p. 7.

[49]        Parliamentary Joint Committee on Human Rights, Sixth report of 2013 (15 May 2013) p. 154.

[50]        Alzery v Sweden (1416/2005) Human Rights Committee, 10 November 2006, [11.5].

[51]        Harkins and Edwards v United Kingdom, European Court of Human Rights App No.9146/07, 17 January 2012, [85].

[52]        Harkins and Edwards v United Kingdom, European Court of Human Rights App No.9146/07, 17 January 2012, [85].

[53]        See, for example, Attorney-General's Department, Annual Report 2016-2017 (29 September 2017) Appendix 4: Extradition and Mutual Assistance, https://www.ag.gov.au/Publications/AnnualReports/16-17/Pages/Part5-Appendixes/appendix-4.aspx.

[54]        Rrapo v Albania, European Court of Human Rights App No. 5855/10, 25 September 2012, [73].

[55]        Babar Ahmad & Ors v United Kingdom, European Court of Human Rights App No.24027/07 et al, Decision on Admissibility, 6 July 2010, [106].

[56]        Alzery v Sweden (1416/2005) Human Rights Committee, 10 November 2006, [11.5].

[57]        See UN Human Rights Committee, Draft General Comment on Article 6, on the right to life (July 2017) [38]. See also, in the context of diplomatic assurances in relation to Article 3 of the CAT, Committee against Torture, General Comment No.4 on the implementation of article 3 of the Convention in the context of article 22 (advance unedited edition, 9 February 2018) [20]; HY v Switzerland (747/2016) Committee against Torture, 7 September 2017, [10.6]-[10.7]; Othman (Abu Qatada) v United Kingdom, European Court of Human Rights App No.8139/09, 17 January 2012.

[58]        Under section 15A of the Extradition Act, if a person is on remand after being arrested under an extradition arrest warrant, the person can elect to waive the extradition process, the effect of which is that not all stages of the extradition process will be completed (such as requirements relating to extradition objections): see Attorney-General's Department, 'Fact Sheet 3 – Waiver of Extradition' available at https://www.ag.gov.au/Internationalrelations/Internationalcrimecooperationarrangements/Extradition/Documents/Fact-sheet-waiver-of-extradition.pdf.

[59]        Extradition Act, Section 15B(3)(b).

[60]        Griffiths v Australia (193/2010), UN Human Rights Committee, 21 October 2014, [6.5].

[61]        See, Al Nashiri v Poland, European Court of Human Rights (24 July 2014), [562]-[569]; Othman (Abu Qatada) v United Kingdom, European Court of Human Rights (17 January 2012), [252]-[262]; R v Special Adjudicator ex parte Ullah [2004] 2 AC 323, per Lord Steyn at [41]; Soering v United Kingdom European Court of Human Rights (7 July 1989) [113]. 

[62]        It is acknowledged that in 2007 the UN Working Group on Arbitrary Detention noted the reluctance of states to extend the application of the prohibition of refoulement to articles 9 and 14.  However the Working Group continued by stating that 'to remove a person to a State where there is a genuine risk that the person will be detained without legal basis, or without charges over a prolonged time, or tried before a court that manifestly follows orders from the executive branch, cannot be considered compatible with the obligation in article 2 of the International Covenant on Civil and Political Rights, which requires that States parties respect and ensure the Covenant rights for all persons in their territory and under their control': see Report of the Working Group on Arbitrary Detention to the Human Rights Council, 9 January 2007, UN Doc. A/HRC/4/40, [44]-[49]. 

[63]        Model Treaty on Extradition, adopted by General Assembly resolution 45/116 as amended by General Assembly resolution 52/88, available at: https://www.unodc.org/pdf/model_treaty_extradition.pdf.

[64]        Parliamentary Joint Committee on Human Rights, Sixth report of 2013 (15 May 2013) 154-155; Tenth Report of 2013 (June 2013) pp. 60-61.

[65]        SOC, p. 8.

[66]        Extradition Act section 7(e).

[67]        SOC, p. 8.

[68]        Joint Standing Committee on Treaties, Report 40, Extradition – a review of Australia's law and policy, August 2001, [3.77].

[69]        Section 19(5), Extradition Act.

[70]        Section 21A(4), Extradition Act.

[71]        Joint Standing Committee on Treaties, Report 40, Extradition – a review of Australia's law and policy, August 2001, [3.77]. The Joint Standing Committee also noted at that time that there were persuasive grounds for Australia to consider increasing its evidentiary requirements from the default 'no evidence' model: [3.80].

[72]        The question has been raised in several individual complaints to the UN Human Rights Committee; however, the committee has decided these complaints on other bases without ruling on the question: see, for example, ARJ v Australia (692/1996), UN Human Rights Committee, 28 July 1997, [6.15]; Kwok v Australia (1442/2005), UN Human Rights Committee, 23 October 2009, [9.8]; Alzery v Sweden (1416/2005) Human Rights Committee, 10 November 2006, [11.9]. 

[73]        Government of Rwanda v Emmanuel Nteziryayo [2017] EWHC 1912 (Admin) at [91]-[95].

[74]        See R (Ullah) v Special Adjudicator [2004] 2 AC 323 at [24] (Lord Bingham).

[75]        Government of Rwanda v Emmanuel Nteziryayo [2017] EWHC 1912 (Admin) at [91].

[76]        See generally, Joint Standing Committee on Treaties, Report 40, Extradition – a review of Australia's law and policy, August 2001. See also, for example, United States of America v Ferras; United States of America v Latty [2006] 2 S.C.R. 77, [42]; M.M. v United States of America [2015] 3 S.C.R. 973 [40], [71].

[77]        United States of America v Ferras; United States of America v Latty [2006] 2 S.C.R. 77, [24]-[25].

[78]        United States of America v Ferras; United States of America v Latty [2006] 2 S.C.R. 77, [42].

[79]        M.M. v United States of America [2015] 3 S.C.R. 973 [40], [71]; citing United States of America v Ferras; United States of America v Latty [2006] 2 S.C.R. 77, [40], [47]-[49], [54].

[80]        See sections 15(6), 18(3), 19(9A), 21(2B), 21(6)(f)(iv), 32(3), 35(6)(g)(iv), 49C(3).

[81]        This is particularly the case in light of the proposed amendments to the Extradition Act in Schedule 3 of the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016. Those amendments would provide that where a person has been released on bail and a temporary surrender warrant for the extradition of the person has been issued, the magistrate, judge or relevant court must order that the person be committed to prison to await surrender under the warrant. The committee has previously concluded in relation to this proposed amendment that there was a risk the measure is not a proportionate limitation on the right to liberty, as the measure may not be the least rights restrictive measure in each individual case in circumstances where it obliges a court to commit a person awaiting transfer to prison regardless of their individual risk: see Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) p. 98. The bill passed both houses on 10 May 2018.

[82]        This is the default period provided by section 17(2)(a) of the Extradition Act.

[83]        Section 6 of the El Salvador Regulations.

[84]        SOC, p. 9.

[85]        Parliamentary Joint Committee on Human Rights, Sixth report of 2013 (15 May 2013) 156-157; Report 4 of 2017 (9 May 2017) pp. 95-97.

[86]        Griffiths v Australia (193/2010), UN Human Rights Committee, 21 October 2014, [7.3].

[87]        Griffiths v Australia (193/2010), UN Human Rights Committee, 21 October 2014, [7.2]; see also, C v Australia (90/1999), UN Human Rights Committee, 28 October 2002, [8.2].

[88]        Griffiths v Australia (193/2010), UN Human Rights Committee, 21 October 2014, [7.2].

[89]        Griffiths v Australia (193/2010), UN Human Rights Committee, 21 October 2014, [7.5].

[90]        See 'Griffiths v Australia (1973/2010) – Australian Government response' available at Attorney-General's Department 'Human Rights Communications' website at https://www.ag.gov.au/RightsAndProtections/HumanRights/Pages/Humanrightscommunications.aspx.

[91]        See, in the context of the right to release pending trial, the findings of the UN Human Rights Committee that pre-trial detention should remain the exception and bail should be granted except in circumstances where the likelihood exists that, for example, the accused would abscond, tamper with evidence, influence witnesses or flee from jurisdiction: UN Human Rights Committee, Smantser v Belarus (1178/03); WBE v the Netherlands (432/90); Hill and Hill v Spain (526/93).

[92]        United Mexican States v Cabal [2001] HCA 60, [61].

[93]        United Mexican States v Cabal [2001] HCA 60, [72].

[94]        See Griffiths v Australia (193/2010), UN Human Rights Committee, 21 October 2014, [4.6].

[95]        Griffiths v Australia (193/2010), UN Human Rights Committee, 21 October 2014, [7.3].

[96]        UN Human Rights Committee, General Comment No.35: Article 9 (Liberty and security of person) (2014).

[97]        Griffiths v Australia (193/2010), UN Human Rights Committee, 21 October 2014, [7.5].

[98]        These avenues were also relied upon by the Australian government in Griffiths v Australia: see Griffiths v Australia (193/2010), UN Human Rights Committee, 21 October 2014, [4.6].

[99]        Griffiths v Australia (193/2010), UN Human Rights Committee, 21 October 2014, [7.5].

[100]        SOC, p. 9.

[101]        SOC, p. 9.

[102]        See , UN Committee on Economic, Social and Cultural Rights, General Comment No.20: Non-discrimination in economic, social and cultural rights (2009) p. 7.

[103]        UN Committee on Economic, Social and Cultural Rights General Comment No.20: Non-discrimination in economic, social and cultural rights (2009) 7.

[104]        UN Committee on Economic, Social and Cultural Rights, General Comment No.20: Non-discrimination in economic, social and cultural rights (2009) 7-9; UN Committee on Economic, Social and Cultural Rights, General Comment No.5: Persons with Disabilities (1994).  Australia also has obligations not to discriminate on the basis of disability under Article 5 of the Convention on the Rights of Persons with Disabilities.

[105]        UN Committee on Economic, Social and Cultural Rights, General Comment No.20: Non-discrimination in economic, social and cultural rights (2009) 9.

[106]        Statement of Compatibility to the Extradition Legislation Amendment (2017 Measure No.1) Regulations, p. [6].

[107]        See section 8 of the Extradition (Commonwealth Countries) Regulations 2010.

[108]        See section 9 of the Extradition (Commonwealth Countries) Regulations 2010.

[109]        Under the Extradition Act, there is an extradition objection in relation to an extradition offence if the offence is a 'political offence' in relation to the extradition country: Section 7(a), Extradition Act.

[110]        Statement of Compatibility to the Extradition Legislation Amendment (2017 Measure No.1) Regulations, page [5]-[6].

[111]          Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 41-51.

[112]          Parliamentary Joint Committee on Human Rights, Report 9 of 2017 (5 September 2017)
pp. 25-27; Report 11 of 2017 (17 October 2017) pp. 84-91.

[113]          Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) p. 91.

[114]          Identity Matching Bill, section 14.

[115]          Identity Matching Bill, Explanatory Memorandum (IMB, EM), p. 2.

[116]          IMB, EM, p. 2.

[117]          Identity Matching Bill sections 3 and 17, 18; EM, p. 2-3. Under subsection 17(2) 'identification information' may be collected, used or disclosed for the following purposes: (a) providing or developing an identity-matching service for identity and community protection activities, being an activity for: (i) preventing and detecting identity fraud; (ii) preventing, detecting, investigating or prosecuting a federal, state or territory offence or starting or conducting proceedings for proceeds of crime; (iii) investigating or gathering intelligence relevant to national security; (iv) checking the background of a person  with access to an asset, facility or person associated with government or protecting a person with a legally assumed identity or under witness protection; (v) promoting community safety, including identifying a person suffering or at risk of suffering physical harm (including missing or deceased persons or those affected by disaster) and a person reasonably believed to be involved in a significant risk to public health or safety; (vi) promoting road safety, including the integrity of driver licensing systems; and (vii) verifying the identity of an individual; (b) developing, operating or maintaining the NDLFRS; or (c) protecting the identities of persons who have legally assumed identities or are under witness protection.

[118]          Identity Matching Bill, section 5.

[119]          IMB, EM, p. 4.

[120]        Identity Matching Bill, statement of compatibility (IMB, SOC) p. 40.

[121]        Parliamentary Joint Committee on Human Rights, Report 9 of 2017 (5 September 2017) pp. 25-27; Report 11 of 2017 (17 October 2017) p. 84-91. See, also, for example, Peck v United Kingdom (2003) 36 EHRR 41.

[122]        IMB, SOC, p. 44.

[123]        IMB, SOC, p. 45-56.

[124]        SOC, p. 44.

[125]        See, SOC, p. 44.

[126]        Identity Matching Bill, subsection 8(2).

[127]        Identity Matching Bill, subsection 10(2).

[128]        See, Privacy Act, section 6.

[129]        APP 9; APP 6.2(b).

[130]        APP 6.2(e).

[131]        See, Identity Matching Bill, section 5.

[132]        See, S and Marper v United Kingdom, European Court of Human Rights Application Nos.30562/04 and 30566/04 (2008) [119]. See, also, for example, NK v Netherlands, UN Human Rights Committee, CCPR/C/120/D/2326/2013 (27 November 2017).

[133]        See, S and Marper v United Kingdom, European Court of Human Rights Application Nos.30562/04 and 30566/04 (2008) [127].

[134]        Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 (21 May 2009).

[135]        Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 (21 May 2009) at [89] and [97].

[136]        Secretary of State for the Home Department v Watson MP & Ors [2018] EWCA Civ 70 (30 January 2018) applying the Court of Justice of the European Union decision in Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for the Home Department v Watson and Others [2016] EUECJ C-203/15; see also Digital Rights Ireland Limited v Minister for Communications, Marine and Natural Resources & Others and Seitlinger and Others [2014] EUECJ C-293/12. See, also, for example, the committee's consideration of the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 in its Fiftieth Report of the 44^th Parliament (14 November 2014) pp. 10-22.

[137]        APP 9; APP 6.2(b).

[138]        APP 3 relevantly outlines when an agency may collect solicited personal information including sensitive information. 'Personal information' is defined under section 6 of the Privacy Act as '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.'  'Sensitive information' is defined under section 6 of the Privacy Act to include 'biometric information that is to be used for the purposes of automated biometric verification or biometric identification'. As such photographs which are collected and then shared through the Hub are likely to constitute 'sensitive information'. Under APP 3 sensitive information must generally be collected with the consent of the individual. It is noted that the issue of consent does not fully address human rights concerns in relation to the collection of personal information in the context of the measure. Further, under APP 3 there are exceptions to the requirement of consent including where the collection of sensitive information is: authorised under another Australian law, for a permitted general situation, for a permitted health situation or by an enforcement body for an enforcement related activity. See, also, Australian Privacy Principles guidelines, Chapter 3: Australian Privacy Principle 3 — Collection of solicited personal information (2015) <https://www.oaic.gov.au/resources/agencies-and-organisations/app-guidelines/APP_guidelines_complete_version_2_March_2018.pdf>.

[139]        See, APP 6.

[140]        See proposed subsection 46(d) of the Passports Act.

[141]        See proposed section 56A of the Passports Act.

[142]        Statement of compatibility (SOC) to the Passport Amendment Bill, p 4.

[143]        SOC, Passport Amendment Bill, p. 4.

[144]        SOC, Passport Amendment Bill, p. 5.

[145]        SOC, Passport Amendment Bill, p. 5.

[146]        Department of Foreign Affairs and Trade, 2017 Passport Facts https://www.passports.gov.au/2017-passport-facts

[147]          Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018)
pp. 65-69.

[148]          Parliamentary Joint Committee on Human Rights, Report 4 of 2018 (8 May 2018)
pp. 58-63.

[149]          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.

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

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

[152]          Statement of compatibility (SOC), p. 8.

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

[154]          SOC, p. 8.

[155]          C N Kendall, 2014 Independent Review of the Office of the Migration Agents Registration Authority: Final Report (September 2014), p. 142.

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

[157]        SOC, p. 8.

[158]        See, for example, Australian National University, English language admission requirements for students, https://policies.anu.edu.au/ppl/document/ANUP_000408.

[159]        Section 9(2) of the Human Rights (Parliamentary Scrutiny) Act 2011.

[160]          Parliamentary Joint Committee on Human Rights, Report 4 of 2018 (8 May 2018) pp. 17-19.

[161]          See, proposed sections 579A, 591B, 594A; and Item 40 of the bill, proposed amendment to section 584; Explanatory Memorandum (EM) p. 11.

[162]          See, proposed Schedule 2B, section 23; EM pp. 12-13.

[163]          Under section 13.5 of the Criminal Code a legal burden of proof on the defendant must be discharged on the balance of probabilities.

[164]          See, Criminal Code Act 1995 (Criminal Code), schedule 1, subsection 13.1(3)-(5). By contrast, evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist: Criminal Code section 13.3(6).

[165]          See, Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR).

[166]          EM, Statement of Compatibility (SOC) pp. 11, 13; EM p. 33.

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'.