A. R. BROWNING
Clerk of the House of Representatives
House of Representatives,
Canberra, 15 November 1985 a.m.
A BILL
FOR
An Act relating to the human rights and fundamental freedoms
of all Australians and all people in Australia
BE IT ENACTED by the Queen, and the Senate, and the House of Representatives
of the Commonwealth of Australia, as follows:
PART IPRELIMINARY
Short title
1. This Act may be cited as the Australian Bill of Rights Act 1985.
Commencement
2. (1) Sections 1, 2, 3 and 50 shall come into operation on the day
on which this Act receives the Royal Assent.
(2) The remaining sections (other than section 11) shall come into
operation on a day to be fixed by Proclamation.
(3) Section 11 shall come into operation at the expiration of 5 years
after the day fixed for the purposes of sub-section (2) of this section.
Objects
3. The objects of this Act are
- (a)
- to promote universal respect for, and observance of, human rights and
fundamental freedoms for all persons without discrimination;
- (b)
- to that end, to give effect to certain provisions of the International
Covenant on Civil and Political Rights by enacting an Australian Bill
of Rights;
- (c)
- to ensure that any person whose rights or freedoms as set out in the
Australian Bill of Rights are infringed by or under any law in relation
to which that Bill of Rights operates has an effective remedy; and
- (d)
- to promote, enhance and secure, as paramount objectives, the freedom
and dignity of the human person, equality of opportunity for all persons
and full and free participation by all Australians in public affairs and
public debate.
Interpretation
4. (1) In this Act, unless the contrary intention appears
"act" means an act done
- (a)
- by or on behalf of the Commonwealth, a State or a Territory; or
- (b)
- by or on behalf of an authority of the Commonwealth, of a State or of
a Territory,
being an act done
- (c)
- in relation to an Australian citizenwithin or outside Australia;
or
- (d)
- in any other casewithin Australia;
"Australia" includes the external Territories;
"authority" means
- (a)
- in relation to the Commonwealth
- (i)
- a body (whether incorporated or unincorporated) established for
a purpose of the Commonwealth by or under a Commonwealth enactment;
- (ii)
- an incorporated company over which the Commonwealth is in a position
to exercise control;
- (iii)
- a person holding or performing the duties of an office or appointment
established or made under a Commonwealth enactment or by the Governor-General
or a Minister of State of the Commonwealth (not being an office
or appointment referred to in sub-paragraph (c) (iii)); or
- (iv)
- a body, or a person holding or performing the duties of an office
or appointment, that is declared by the regulations to be an authority
of the Commonwealth for the purposes of this Act;
- (b)
- in relation to a State
- (i)
- a body (whether incorporated or unincorporated) established for
a purpose of the State by or under an enactment of the State;
- (ii)
- an incorporated company over which the State is in a position
to exercise control;
- (iii)
- a person holding or performing the duties of an office or appointment
established or made under an enactment, or by the Governor or a
Minister, of the State;
- (iv)
- a local government body in the State; or
- (v)
- a body, or a person holding or performing the duties of an office
or appointment, that is declared by the regulations to be an authority
of the State for the purposes of this Act; and
- (c)
- in relation to a Territory
- (i)
- a body (whether incorporated or unincorporated) established for
a purpose of the Territory by or under a Commonwealth enactment
or an enactment of the Territory;
- (ii)
- an incorporated company over which the Administration of the Territory
is in a position to exercise control;
- (iii)
- a person holding or performing the duties of an office or appointment
established or made under an enactment of the Territory or by the
Administrator of a Territory; or
- (iv)
- a body, or a person holding or performing the duties of an office
or appointment, that is declared by the regulations to be an authority
of the Territory for the purposes of this Act;
"Bill of Rights" means the Australian Bill of Rights set out in
section 8;
"cause" includes every civil or criminal proceeding and also includes
a proceeding that is incidental to another proceeding;
"Commonwealth enactment" means an Act or an instrument (other than
a Territory enactment or a Northern Territory enactment) made under an Act,
and includes any other legislation or rule of the common law applied (otherwise
than by virtue of the Commonwealth Places (Application of Laws) Act 1970)
as a law of the Commonwealth, to the extent that it operates as such a law;
"Commission" means the Human Rights and Equal Opportunity Commission
established by the Human Rights and Equal Opportunity Commission Act 1985;
"Covenant" means the International Covenant on Civil and Political
Rights, a copy of the English text of which is set out in the Schedule,
as that International Covenant applies in relation to Australia;
"enactment" means a Commonwealth enactment, a State enactment or
Territory enactment;
"Federal Court" means the Federal Court of Australia;
"infringe" includes abrogate and abridge;
"instrument" includes a rule, regulation or by-law;
"instrumentality", in relation to a State, includes
- (a)
- a person holding or performing the duties of an office established by
or under an enactment of that State;
- (b)
- a person employed in the public service of that State; and
- (c)
- a person employed by a body established for a purpose of that State
by or under an enactment of that State;
"law" means a law of the Commonwealth, a law of a Territory or
a law of a State;
"law of a State" means any law in force in a State, including a
rule of the common law but not including a law of the Commonwealth;
"law of a Territory" means any law in force in a Territory, including
a rule of the common law but not including a law of the Commonwealth;
"law of the Commonwealth" means
- (a)
- a Commonwealth enactment;
- (b)
- any other law (other than a rule of the common law) in force throughout
Australia; and
- (c)
- any rule of the common law as it has effect in relation to or for the
purposes of the operation of a Commonwealth enactment or a law referred
to in paragraph (b);
"member" means a member of the Commission;
"member of the staff assisting the Commission" means a member of
the staff referred to in section 43 of the Human Rights and Equal Opportunity
Commission Act 1985;
"Minister" means
- (a)
- in relation to a Statea Minister of the Crown of the State; and
- (b)
- in relation to the Northern Territorya Minister of that Territory;
"Northern Territory enactment" means an enactment of the Northern
Territory within the meaning of the Northern Territory (Self-Government)
Act 1978 or an instrument made under such an enactment;
"Parliament", in relation to the Northern Territory, means the
Legislative Assembly of the Northern Territory;
"practice" means a practice engaged in
- (a)
- by or on behalf of the Commonwealth, a State or a Territory; or
- (b)
- by or on behalf of an authority of the Commonwealth, of a State or of
a Territory,
being a practice engaged in
- (c)
- in relation to an Australian citizenwithin or outside Australia;
or
- (d)
- in any other casewithin Australia;
"prescribed person" means
- (a)
- a member;
- (b)
- a member of the staff assisting the Commission;
- (c)
- if an arrangement in force under section 45 provides for a State or
an instrumentality of a State to perform functions of the Commission referred
to in paragraph 25 (a) an instrumentality of that State referred
to in the arrangement; or
- (d)
- a person included in a class of persons declared by the regulations
to be prescribed persons for the purposes of this Act;
"proposed enactment" means
- (a)
- a proposed law introduced into the Parliament of the Commonwealth or
the legislature of a Territory;
- (b)
- a proposed law prepared on behalf of
- (i)
- the Government of the Commonwealth or the Administration of a
Territory;
- (ii)
- a Minister of State of the Commonwealth; or
- (iii)
- a body established by law that has the function of recommending
proposed laws of the Commonwealth or of a Territory;
- (c)
- a proposed State enactment; or
- (d)
- an instrument proposed to be made under a Commonwealth enactment or
under a Territory enactment;
"proposed State enactment" means
- (a)
- a proposed law introduced into the Parliament of a State;
- (b)
- a proposed law prepared on behalf of
- (i)
- the Government of a State;
- (ii)
- a Minister of the State; or
- (iii)
- a body established by law that has the function of recommending
proposed laws of a State; or
- (c)
- an instrument proposed to be made under a State enactment;
"responsible Minister" means
- (a)
- in relation to a Commonwealth enactment, a Territory enactment or a
proposed enactment (other than a proposed State enactment)the Minister
of State of the Commonwealth responsible for the administration of the
matter to which the enactment or proposed enactment relates;
- (b)
- in relation to a State enactment or a proposed State enactmentthe
Minister of the State responsible for the administration of the matter
to which the enactment or proposed enactment relates;
- (c)
- in relation to an act done or practice engaged in by or on behalf of
the Commonwealth or a Territory or by or on behalf of an authority of
the Commonwealth or of a Territorythe Minister of State of the Commonwealth
responsible for the administration of the matter in connection with which
the act was done or the practice was engaged in; and
- (d)
- in relation to an act done or practice engaged in by or on behalf of
a State or by or on behalf of an authority of a Statethe Minister
of the State responsible for the administration of the matter in connection
with which the act was done or the practice was engaged in;
"State" includes the Northern Territory;
"State enactment" means a State Act or an instrument made under
a State Act and includes a Northern Territory enactment;
"suit" includes any action or original proceeding between parties;
"Territory" does not include the Northern Territory;
"Territory Act" means an Act passed by a legislature of a Territory
and duly assented to;
"Territory enactment" means
- (a)
- a Territory Act;
- (b)
- an Ordinance of a Territory;
- (c)
- an instrument made under such an Act or Ordinance;
- (d)
- any other legislation or rule of the common law applied as a law of
a Territory, to the extent that it operates as such a law; and
- (e)
- an instrument made under legislation referred to in paragraph (d).
(2) In this Act, a reference to the Governor of a State shall, in
relation to the Northern Territory, be construed as a reference to the Administrator
of the Northern Territory.
(3) In this Act
- (a)
- a reference to, or to the doing of, an act includes a reference to a
refusal or failure to do an act; and
- (b)
- a reference, in relation to the doing of an act or the engaging in of
a practice, to the person who did the act or engaged in the practice shall,
in the case of an act done or practice engaged in by an unincorporated
body of persons, be read as a reference to that body.
(4) Subject to sub-section (5), a law shall, for the purposes of this
Act, be taken to be in conflict with the Bill of Rights if it
- (a)
- infringes, or authorises the infringement of, a right or freedom set
out in the Bill of Rights; or
- (b)
- makes, or authorises the making of, a provision that, according to the
Bill of Rights, is not to be made by any law.
(5) Where a law
- (a)
- promotes, enhances or secures a right or freedom set out in the Bill
of Rights, but infringes, or authorises the infringement of, another right
or freedom set out in the Bill of Rights; or
- (b)
- promotes, enhances or secures for a person a right or freedom set out
in the Bill of Rights, but, in relation to another person, infringes,
or authorises the infringement of, a right or freedom set out in the Bill
of Rights,
it is the intention of the Parliament that the law shall not be determined
to be in conflict with the Bill of Rights unless such a determination would
further the objects of this Act, and in particular the paramount objectives
referred to in paragraph 3 (d), to a greater extent than a determination that
the law is not in conflict with the Bill of Rights.
(6) A reference in this Act to a right or freedom set out in the Bill
of Rights is a reference to such a right or freedom limited only as permitted
by Article 3 of the Bill of Rights.
(7) A reference in this Act to the date on which an enactment other
than this Act came into force shall, in the case of an enactment different
provisions of which came into force on different dates, be read as a reference
to the date on which the provision concerned came into force.
(8) For the purposes of this Act, an Act shall be taken to have been
enacted at the time when it receives the Royal Assent.
(9) A reference in this Act to prejudice to the security, defence
or international relations of Australia includes a reference to any such prejudice
that might result from the divulging of information or matters communicated
in confidence by or on behalf of the government of a foreign country, an authority
of a government of a foreign country or an international organisation to the
Government of the Commonwealth, to an authority of the Commonwealth or to
a person receiving the communication on behalf of the Commonwealth or of an
authority of the Commonwealth.
Interpretation of Bill of Rights
5. For the purposes of the interpretation of the Bill of Rights, each
Article of the Bill of Rights shall be taken to be a section of this Act.
Extent to which Act binds the Crown
6. (1) This Act binds the Crown in right of the Commonwealth and of
Norfolk Island.
(2) Part V, and any other provisions of this Act in their application
in relation to that Part, bind the Crown in right of each State.
(3) Nothing in this Act renders the Crown in right of the Commonwealth,
of a State or of Norfolk Island liable to be prosecuted for an offence.
Extension to external Territories
7. This Act extends to every external Territory.
PART IITHE AUSTRALIAN BILL OF RIGHTS
Australian Bill of Rights
8. The Australian Bill of Rights is as follows:
AUSTRALIAN BILL OF RIGHTS
Division 1General
Article 1
Entitlement to rights and freedoms without distinction
1. Every person is entitled to equality before the law and to the human rights
and fundamental freedoms set out in this Bill of Rights, irrespective of distinctions
such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
2. Men and women have the equal right to the enjoyment of the human rights
and fundamental freedoms set out in this Bill of Rights.
Article 2
Effect of Bill of Rights on existing rights and freedoms
A right or freedom existing under, or recognised by, any other law shall
not be taken to have been diminished or derogated from by reason only that
the right or freedom is not set out in this Bill of Rights.
Article 3
Permissible limitations
1. The rights and freedoms set out in this Bill of Rights are subject only
to such reasonable limitations prescribed by law as can be demonstrably justified
in a free and democratic society.
2. A right or freedom set out in this Bill of Rights shall not be limited
by any law to any greater extent than is permitted by the International Covenant
on Civil and Political Rights.
Division 2Non-discrimination
Article 4
Equal protection of the law
1. Every person has the right without any discrimination to the equal protection
of the law.
2. Nothing in this Bill of Rights affects the operation of any earlier or
later law by reason only of the fact that the law discriminates in favour
of a class of persons for the purpose of redressing any disabilities particularly
suffered by that class or arising from discrimination against that class.
Article 5
Rights of minority groups
Persons who belong to an ethnic, religious or linguistic minority have the
right, in community with other members of their own group, to enjoy their
own culture, to profess and practise their own religion, or to use their own
language.
Division 3Fundamental Political
Rights
Article 6
Right of participation in public life
Every Australian citizen has the right and shall have the opportunity
- (a)
- to take part in the conduct of public affairs, directly or through freely
chosen representatives;
- (b)
- to vote and to be elected at genuine periodic elections, which shall
be by universal and equal suffrage and by secret ballot, guaranteeing
the free expression of the will of the electors; and
- (c)
- to have access on general terms of equality to public employment.
Article 7
Freedom of expression
Every person has the right to freedom of expression, including the freedom
of the press and other media of communication, and the freedom to seek, receive
and impart ideas or information of any kind in any form, without interference
and regardless of frontiers.
Article 8
Freedom of thought and conscience
Every person has the right to freedom of thought and conscience, including
the right to hold opinions without interference.
Article 9
Freedom to have or adopt a religion or belief
Every person has the right to have or adopt a religion or belief of that
person's choice without coercion of any kind, and to manifest that religion
or belief in worship, observance, practice and teaching, whether individually
or in community with others and whether in public or in private.
Article 10
Right of peaceful assembly
Every person has the right of peaceful assembly.
Article 11
Freedom of association
Every person has the right to freedom of association with others, including
the right to form and join trade unions for the protection of that person's
interests.
Division 4Privacy and Family
Rights
Article 12
Right to protection from arbitrary interference
1. Every person has the right to
- (a)
- protection of privacy, family, home and correspondence from arbitrary
or unlawful interference; and
- (b)
- protection from unlawful attacks on honour and reputation.
2. For the purpose of giving effect to the right referred to in paragraph
1 and without limiting the nature and extent of that right, a search or seizure
is unlawful unless
- (a)
- made pursuant to a warrant issued by a judge, magistrate or justice
of the peace upon reasonable grounds, supported by oath or affirmation,
particularly describing the purpose of the search, who or what is to be
searched and what is to be seized;
- (b)
- made pursuant to a law authorising search or seizure where search or
seizure as so authorised is a necessary element in the proper administration
or enforcement of revenue, customs or quarantine laws or the reasonable
regulation of an activity carried on pursuant to a licence, permit or
similar authority granted under a law;
- (c)
- made pursuant to a law authorising search or seizure where search or
seizure as so authorised is necessary to protect life or public safety;
- (d)
- made pursuant to a law authorising search or seizure where there is
a compelling need for immediate action; or
- (e)
- in the case of a searchit is established that the search was made
with free and voluntary consent and after the giving of a warning as to
the consequences of the giving of consent to the search.
Article 13
Right to marry and to found a family
Recognising that the family is the natural and fundamental group unit of
society and is entitled to protection by society and the State
- (a)
- every man and woman of marriageable age has the right to marry a person
of the opposite sex and to found a family; and
- (b)
- no marriage shall be entered into without the free and full consent
of the intending spouses.
Article 14
Rights of the child
Recognising that every child has the right to such measures of protection
as are required by the child's age
- (a)
- every child is entitled to the fundamental rights and freedoms set out
in this Bill of Rights to the greatest extent compatible with the age
of the individual child;
- (b)
- every child shall be registered immediately after birth and shall have
a name;
- (c)
- every child has the right to acquire a nationality; and
- (d)
- the liberty of parents and legal guardians to ensure the religious and
moral education of their children in conformity with their own convictions
is to be respected.
Division 5Freedom of Movement
Article 15
Rights of persons in Australia
1. Every person lawfully in Australia has the right to freedom of movement
and choice of residence.
2. A person who is lawfully in Australia but is not an Australian citizen
shall not be required to leave Australia except on such grounds and in accordance
with such procedures as are established by law.
Article 16
Right to enter Australia
Every Australian citizen has the right to enter Australia.
Article 17
Right to leave Australia
Every person has the right to leave Australia.
Division 6Life, Liberty and Criminal
Process
Article 18
Right to life
Every human being has the inherent right to life and no person shall be arbitrarily
deprived of life.
Article 19
Liberty and security of person
1. Every person has the right to liberty and security of person.
2. No law shall authorise the arbitrary arrest, detention or imprisonment
of any person.
3. No person shall be deprived of liberty except on such grounds, and in
accordance with such procedures, as are established by law.
4. No person shall be imprisoned merely on the ground of inability to fulfil
a contractual obligation.
Article 20
Slavery and servitude
No person shall be held in slavery or servitude or be required to perform
forced or compulsory labour.
Article 21
Right to be informed of reasons for arrest and of charges
Any person who is arrested shall be informed at the time of the arrest of
the reasons for the arrest, and shall be informed promptly and in detail of
any charges in a language which that person understands.
Article 22
Right to consult with lawyer and to remain silent
Any person detained in custody has the right to remain silent and the right
to consult with a lawyer.
Article 23
Hearings, release and trial
1. Any person arrested or detained on a criminal charge shall be brought
promptly before a judge, magistrate or justice of the peace.
2. No person awaiting trial shall be unreasonably deprived of the right to
release on giving a guarantee to appear for trial.
3. Any person arrested or detained on a criminal charge has the right to
be tried within a reasonable time.
Article 24
Right to test lawfulness of detention
Any person deprived of liberty has the right to take proceedings before a
court for the determination of the lawfulness of the detention and to be released
if the court finds that the detention is not lawful.
Article 25
Presumption of innocence
Any person charged with a criminal offence shall be presumed innocent until
proved guilty according to law.
Article 26
Right to fair hearing
In the determination of any criminal charge, or of any rights or obligations
in a suit at law, every person has the right to a fair and public hearing
by a competent, independent and impartial tribunal.
Article 27
Rights of the accused relating to trial
Every person who is charged with a criminal offence has the right
- (a)
- to be informed of the right to obtain legal assistance;
- (b)
- to communicate with a lawyer;
- (c)
- to receive legal assistance without cost if the interests of justice
so require and the person lacks sufficient means to pay for the assistance;
- (d)
- to have adequate time and facilities to prepare a defence;
- (e)
- to be present at any trial relating to the offence and to present a
defence;
- (f)
- to examine the witnesses against the person;
- (g)
- to obtain the attendance of, and to examine, witnesses for the person;
- (h)
- to have the free assistance of an interpreter if the person cannot understand
or speak the language used in court;
- (i)
- not to be compelled to testify or confess guilt; and
- (j)
- in the case of a child, to be dealt with in a manner which takes account
of the child's age.
Article 28
No retrospective criminal offences or penalties
1. No person shall be convicted of any criminal offence on account of any
act or omission which did not constitute a criminal offence at the time when
it occurred.
2. No person convicted of any criminal offence shall be liable to a heavier
penalty than was applicable at the time the offence was committed.
Article 29
Right of review of conviction and sentence
Every person convicted of a criminal offence has the right to have the conviction
or sentence reviewed by a higher tribunal according to law.
Article 30
No trial or punishment for same offence
No person finally convicted or acquitted of a criminal offence shall be tried
or punished again for the same offence or for substantially the same offence
arising out of the same facts.
Article 31
Rights when deprived of liberty
1. Every person deprived of liberty has the right to be treated with humanity
and with respect for the inherent dignity of the human person.
2. So far as is practicable
- (a)
- accused persons shall be segregated from convicted persons, and shall
be treated in a manner appropriate to their status as unconvicted persons;
- (b)
- accused children shall be segregated from accused adults; and
- (c)
- convicted children shall be segregated from convicted adults, and shall
be treated in a manner appropriate to their age and legal status.
Article 32
No torture or inhuman treatment and no experimentation without consent
1. No person shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.
2. No person shall be subjected to medical or scientific experimentation
without that person's free consent.
PART IIIOPERATION OF BILL OF RIGHTS
Operation of Bill of Rights
9. (1) The Bill of Rights
- (a)
- has the effect given to it by the following sections of this Part;
- (b)
- subject to the effect that it has as mentioned in paragraph (a), applies
as a law of the Commonwealth in relation to matters arising under laws
of the Commonwealth, whether enacted, made, applied or commencing to have
force or effect before or after the commencement of this section; and
- (c)
- subject to the effect that it has as mentioned in paragraph (a), applies
as a law of the Territory concerned in relation to matters arising under
laws of a Territory, whether enacted, made, applied or commencing to have
force or effect before or after the commencement of this section,
but, except as provided by sub-section (2), does not have any other operation.
(2) For the purposes of Part V, it is hereby declared that the rights
and freedoms set out in the Bill of Rights apply in relation to acts and practices.
(3) The rights and freedoms set out in the Bill of Rights do not apply
for the benefit of bodies politic or corporate.
Interpretation of legislation
10. (1) Notwithstanding anything in any other law relating to the
construction or interpretation of legislation, in the interpretation of
- (a)
- a provision of a Commonwealth enactment; or
- (b)
- a provision of a Territory enactment,
a construction of the provision that would result in the enactment not being
in conflict with the Bill of Rights, or that would further the objects of
this Act, shall be preferred to any other construction.
(2) Without limiting the generality of sub-section (1), in the interpretation
of
- (a)
- an Act that authorises the making of an instrument (including a Territory
enactment but not including a Northern Territory enactment); or
- (b)
- a Territory enactment that authorises the making of an instrument,
a construction that would result in the Act or Territory enactment not authorising
the making of an instrument that would be in conflict with the Bill of Rights
shall be preferred to any other construction.
(3) If, but for this sub-section, this section would have the effect
that an instrument made under an Act, or under a Territory enactment, before
the enactment of this Act would be invalid, this section shall not be taken
to have that effect until section 11 comes into operation.
Inconsistent prior Commonwealth Acts deemed to he repealed, &c.
11. Where an Act that was enacted before the enactment of this Act
is, in whole or in part, in conflict with the Bill of Rights
- (a)
- that Act shall, to the extent that it is so in conflict, be deemed to
be repealed by this Act; and
- (b)
- any instrument (including a Territory enactment) made under that Act,
to the extent that the power to make that instrument derived from that
Act in so far as that Act is so deemed to be repealed, ceases to operate.
Operation of later Commonwealth Acts
12. (1) This section applies to every Act enacted after the enactment
of this Act that is, in whole or in part, in conflict with the Bill of Rights.
(2) Where an Act to which this section applies provides, by express
words of plain intendment, that its provisions, to the extent to which they
are in conflict with the Bill of Rights, are to prevail over the Bill of Rights,
then
- (a)
- subject to sub-section (3), that Act operates as so provided; and
- (b)
- the Bill of Rights, to the extent only that that Act is in conflict
with it, and for so long only as that Act is in conflict with it, does
not have any operation in relation to that Act,
but nothing in this sub-section affects any other operation of the Bill of
Rights under this Act.
(3) Where a provision of an Act in relation to which sub-section (2)
applies is in conflict with the Bill of Rights by reason that it authorises
- (a)
- the making of an instrument that infringes, or authorises the infringement
of, a right or freedom set out in the Bill of Rights; or
- (b)
- the making of an instrument containing a provision that, according to
the Bill of Rights, is not to be made by any law,
sub-section (2) has effect in relation to the operation of the first-mentioned
provision but does not have effect in relation to an instrument made pursuant
to that provision.
(4) Where an Act to which this section applies does not provide, by
express words of plain intendment, that its provisions, to the extent to which
they are in conflict with the Bill of Rights, are to prevail over the Bill
of Rights, then
- (a)
- that Act, to the extent only that it is in conflict with the Bill of
Rights, and for so long only as it is in conflict with the Bill of Rights,
does not have any operation; and
- (b)
- any instrument (including a Territory enactment) made under that Act,
to the extent that the power to make that instrument is derived from that
Act in so far as that Act does not have any operation, does not have any
operation.
Operation of certain subordinate instruments
13. (1) In this section, "relevant instrument" means an
instrument (including a Territory enactment but not including a Northern Territory
enactment) that
- (a)
- is made under an Act after the enactment of this Act; and
- (b)
- is, in whole or in part, in conflict with the Bill of Rights.
(2) Where
- (a)
- an Act to which section 12 applies contains a provision authorising
the making of instruments that are in conflict with the Bill of Rights;
- (b)
- by virtue of section 12, that provision operates notwithstanding that
it is in conflict with the Bill of Rights; and
- (c)
- that provision provides, by express words of plain intendment, that
such instruments, to the extent to which they are in conflict with the
Bill of Rights, are to prevail over the Bill of Rights,
then
- (d)
- a relevant instrument made pursuant to that provision operates notwithstanding
that the instrument is in conflict with the Bill of Rights; and
- (e)
- the Bill of Rights, to the extent only that the instrument is in conflict
with it, and for so long only as the instrument is in conflict with it,
ceases to operate in relation to the circumstances dealt with by that
instrument,
but nothing in this sub-section affects any other operation of the Bill of
Rights under this Act.
Enactments deemed to be in force in certain cases
14. (1) The purpose of this section is to provide that
- (a)
- where a court makes a finding one effect of which is that a Commonwealth
enactment or a Territory enactment has not been in force during a period
preceding the date of the findingany grave public inconvenience
or hardship that might follow that finding may be avoided by treating
that enactment as having been in force during that period; and
- (b)
- where a court makes a finding one effect of which is that a Commonwealth
enactment or a Territory enactment will not be in force after the making
of the findingany grave public inconvenience or hardship that might
follow that finding may be avoided by treating the enactment as being
in force for a period that is sufficient to enable the legislature or
other body that made the enactment to take appropriate legislative measures.
(2) Where
- (a)
- a court finds that an Act is, in whole or in part, in conflict with
the Bill of Rights;
- (b)
- the Act
- (i)
- by virtue of section 11, is, to the extent that it is in conflict
with the Bill of Rights, to be deemed to have been repealed by this
Act; or
- (ii)
- by virtue of sub-section 12 (4), does not, to the extent that
it is in conflict with the Bill of Rights, have any operation; and
- (c)
- the court is satisfied that grave public inconvenience or hardship would
be caused by the operation of section 11 or sub-section 12 (4), as the
case may be, unless sub-section (4) of this section were to apply to that
Act,
the court may, unless a court has already made a declaration under this sub-section
in relation to the conflict, make a declaration that it is satisfied as mentioned
in paragraph (c) and, where such a declaration is made, sub-section (4) of
this section applies to the Act to the extent that the Act has been so found
to be in conflict with the Bill of Rights.
(3) Where
- (a)
- a court finds that a Territory Act or an Ordinance of a Territory is,
in whole or in part, in conflict with the Bill of Rights;
- (b)
- sub-section 13 (2) does not apply to preserve the operation of the Territory
Act or the Ordinance; and
- (c)
- the court is satisfied that grave public inconvenience or hardship would
be caused by the Territory Act or the Ordinance having been inoperative
unless sub-section (4) of this section were to apply to that Territory
Act or Ordinance,
the court may, unless a court has already made a declaration under this sub-section
in relation to the conflict, make a declaration that it is satisfied as mentioned
in paragraph (c) and, where such a declaration is made, sub-section (4) of
this section applies to the Territory Act or the Ordinance to the extent that
it has been so found to be in conflict with the Bill of Rights.
(4) Where
- (a)
- by virtue of sub-section (2) or (3), this sub-section applies to an
enactment to the extent that the enactment has been found in accordance
with the sub-section concerned to be in conflict with the Bill of Rights;
and
- (b)
- if this Act had not been enacted, the enactment would have been in
force during the period that is the relevant period in relation to the
enactment,
the enactment, to the extent that this sub-section applies to it, shall,
for all purposes except the purposes of the proceedings in which the declaration
in relation to the enactment was made under sub-section (2) or (3), be deemed
to have been in force during that period.
(5) For the purposes of sub-section (4)
"relevant period", in relation to an enactment in respect of which
a declaration has been made under sub-section (2) or (3), means the period
commencing at the time that is the relevant time in relation to the enactment
and ending on the day on which the declaration was made;
"relevant time", in relation to an enactment, means
- (a)
- in the case of an enactment that came into force before the commencement
of this sectionthe commencement of this section; and
- (b)
- in any other casethe time when the enactment came into force.
(6) Where
- (a)
- by virtue of sub-section (4), an enactment is, to the extent that that
sub-section applies to it, deemed to have been in force for certain purposes
during a particular period; and
- (b)
- if this Act had not been enacted, an instrument made under the enactment,
to the extent that sub-section (4) applies to the enactment, would have
been in force during that period or a part of that period,
the instrument shall, for all purposes except the purposes of the proceedings
in which the declaration in relation to the enactment was made under sub-section
(2) or (3), be deemed to have been in force during that period or that part
of that period, as the case may be.
(7) Where a court makes a declaration under sub-section (2) or (3)
in relation to an enactment that the court has found to be in conflict with
the Bill of Rights, the court may, if it is satisfied that grave public inconvenience
or hardship would be caused unless sub-section (8) were to apply to that enactment,
make a declaration to that effect and, where such a declaration is made, sub-section
(8) applies to that enactment to the extent that it has been so found to be
in conflict with the Bill of Rights.
(8) An enactment to which this sub-section applies, to the extent
that this sub-section applies to it, shall, for all purposes except the purposes
of the proceedings in which the declaration in relation to the enactment was
made under sub-section (7), be deemed to be in force until
- (a)
- it is repealed or amended; or
- (b)
- the period of 3 months commencing when the declaration is made expires,
whichever happens first.
(9) Where
- (a)
- by virtue of sub-section (8) an enactment is, to the extent that that
sub-section applies to it, deemed to be in force for certain purposes
during a particular period; and
- (b)
- if this Act had not been enacted, an instrument made under the enactment,
to the extent that sub-section (8) applies to the enactment, would be
in force during that period or a part of that period,
the instrument shall, for all purposes except the purposes of the proceedings
in which the declaration in relation to the enactment was made under sub-section
(7), be deemed to be in force during that period or that part of that period,
as the case may be.
Operation of Territory laws that further objects of Covenant
15. Notwithstanding anything in this Part, this Act is not intended
to exclude or limit the operation of a law of a Territory that furthers the
objects of the Covenant and is capable of operating concurrently with this
Act.
Powers of courts in criminal proceedings
16. (1) Where, in proceedings against a person for a criminal offence,
the court is satisfied that evidence tendered to the court was obtained in
a manner that infringed a right or freedom of that person set out in Article
12 or Division 6 of the Bill of Rights, the court shall refuse to admit that
evidence in the proceedings unless it is satisfied that
- (a)
- admission of the evidence would substantially benefit the public interest
in the administration of criminal justice; and
- (b)
- that benefit would outweigh any prejudice to the rights and freedoms
of any person, including the defendant, that has occurred or is likely
to occur as a result of the infringement or the admission of the evidence.
(2) Where, in proceedings against a person for a criminal offence,
the court is satisfied that a right or freedom of that person set out in Article
12 or Division 6 of the Bill of Rights has been infringed, the court may,
subject to sub-section (1), make such order as it considers appropriate and
just in all the circumstances to ensure that the administration of justice
is not brought into disrepute by reason of that infringement.
(3) In this section, "proceedings" means proceedings
- (a)
- before a court in the exercise of federal jurisdiction;
- (b)
- before a court of the Northern Territory in the exercise of jurisdiction
which, if the court were a court of a State, would be federal jurisdiction;
or
- (c)
- before a court of a Territory.
No rights of action or criminal liability under Bill of Rights
17. (1) Nothing in the Bill of Rights confers on a person any right
of action in respect of the doing of an act that infringes a right or freedom
set out in the Bill of Rights.
(2) Nothing in this Act renders any person liable to any criminal
proceedings in respect of the doing of an act that infringes a right or freedom
set out in the Bill of Rights.
PART IVREMOVAL OF CAUSES AND INTERVENTION
Removal to the Federal Court
18. (1) Any cause or part of a cause involving a matter arising under
the Bill of Rights that is at any time pending in
- (a)
- a federal court, other than the High Court or the Full Court of the
Federal Court; or
- (b)
- a court of a State or Territory,
being a cause or part of a cause that is before the court in the exercise
of review jurisdiction, may, at any stage of the proceedings before final
judgment, be removed into the Full Court of the Federal Court under an order
of the Federal Court, which may, upon application of a party for sufficient
cause shown, be made on such terms as the Federal Court thinks fit, and shall
be made as of course upon application by or on behalf of the Attorney-General.
(2) The reference in sub-section (1) to review jurisdiction shall
be construed as a reference to
- (a)
- appellate jurisdiction; or
- (b)
- jurisdiction to review a decision of a court, tribunal or person by
way of
- (i)
- the grant of an injunction;
- (ii)
- the grant of a prerogative or statutory writ or the making of
any order of the same nature or having the same effect as, or of
a similar nature or having a similar effect to, any such writ; or
- (iii)
- the making of a declaratory order.
(3) Subject to the Constitution, jurisdiction to hear and determine
a matter to which a cause or part of a cause removed into the Federal Court
by an order under sub-section (1) relates, to the extent that that jurisdiction
is not otherwise conferred on the Federal Court, is conferred on the Federal
Court by this section.
(4) Where an order for removal is made under sub-section (1), the
proceedings in the cause and such documents, if any, relating to the cause
as are filed of record in the court in which the cause was pending, or, if
part only of a cause is removed, a certified copy of a record of those proceedings
and a certified copy of those documents, shall be transmitted by the Registrar
or other proper officer of that court to a Registry of the Federal Court.
(5) Nothing in this section affects the operation of Part VII of the
Judiciary Act 1903.
Proceedings after removal
19. Where a cause or part of a cause is removed into the Federal Court
under section 18, further proceedings in that cause or part of a cause shall
be as directed by the Federal Court.
Remittal of causes
20. (1) Where a cause or part of a cause is removed into the Federal
Court under section 18, the Federal Court may, at any stage of the proceedings,
remit the whole or a part of that cause or part of a cause to the court from
which it was removed, with such directions to that court as the Federal Court
thinks fit.
(2) Where it appears to the Federal Court that the Federal Court does
not have jurisdiction, whether by virtue of sub-section 18 (3) or otherwise,
in a cause or part of a cause that has been removed into the Federal Court
under section 18, the Federal Court shall proceed no further in the cause
or part of a cause but shall remit it to the court from which it was removed.
Effect of interlocutory orders, &c., before removal of cause
21. Where a cause is removed in whole or in part into the Federal
Court from another court
- (a)
- every order relating to the custody or preservation of any property
the subject matter of the cause that has been made before the removal
remains in force until it is discharged or varied by the Federal Court;
- (b)
- any attachment or sequestration of the goods or estate of a defendant
had in the cause before the removal holds the goods or estate so attached
or sequestered to answer the final judgment of the Federal Court in the
same manner as by law they would have been held to answer the final judgment
of the court in which the cause was commenced;
- (c)
- all undertakings or security given by any party in the cause before
the removal remain valid and effectual; and
- (d)
- all injunctions, orders and other proceedings granted, made or taken
in the cause before the removal remain in full force and effect until
the Federal Court otherwise orders.
Defence in causes removed to Federal Court
22. Where a cause is removed in whole or in part from any court into
the Federal Court, the defendant may set up by way of defence any matter that
he might have set up if the cause had been commenced in the Federal Court,
notwithstanding that the court from which the cause was removed did not have
jurisdiction to entertain the matter of defence or could not entertain it
in the same cause.
Intervention by Attorney-General
23. (1) The Attorney-General may, on behalf of the Commonwealth, intervene
in proceedings before the High Court or any other federal court or any court
of a State or Territory, being proceedings that relate to a matter arising
under the Bill of Rights.
(2) Where the Attorney-General intervenes in proceedings in a court
under this section, the court may, in the proceedings, make such order as
to costs against the Commonwealth as the court thinks fit.
(3) The right of the Attorney-General under this section to intervene
in proceedings before a court is in addition to, and not in derogation of,
any right of the Attorney-General under any other Act to intervene in those
proceedings.
Notice to Attorney-General
24. (1) Where a cause pending
- (a)
- in the High Court; or
- (b)
- in another federal court, or in a court of a State or Territory, being
a cause that is before the court in the exercise of review jurisdiction,
involves a matter arising under the Bill of Rights, it is the duty of the
court not to proceed in the cause unless and until the court is satisfied
that notice of the cause specifying the nature of the matter has been given
to the Attorney-General and a reasonable time has elapsed since the giving
of the notice for consideration by the Attorney-General of the question of
intervention in the proceedings.
(2) Where a cause pending in a federal court (other than the High
Court), or in a court of a State or Territory, not being a cause that is before
the court in the exercise of review jurisdiction, involves a matter arising
under the Bill of Rights, the court may, if it thinks fit, decide not to proceed
in the cause unless and until the court is satisfied that notice of the cause
specifying the nature of the matter has been given to the Attorney-General
and a reasonable time has elapsed since the giving of the notice for consideration
by the Attorney-General of the question of intervention in the proceedings.
(3) A reference in sub-section (1) or (2) to review jurisdiction shall
be construed as a reference to
- (a)
- appellate jurisdiction; or
- (b)
- jurisdiction to review a decision of a court, tribunal or person by
way of
- (i)
- the grant of an injunction;
- (ii)
- the grant of a prerogative or statutory writ or the making of
any order of the same nature or having the same effect as, or of
a similar nature or having a similar effect to, any such writ; or
- (iii)
- the making of a declaratory order.
(4) For the purposes of sub-section (1) or (2), a court in which a
cause referred to in that sub-section is pending
- (a)
- may adjourn the proceedings in the cause for such time as it thinks
necessary and may make such order as to costs in relation to such an adjournment
as it thinks fit; and
- (b)
- may direct a party to give notice in accordance with that sub-section.
(5) For the purposes of sub-section (1) or (2), a notice in respect
of a cause
- (a)
- shall be taken to have been given to the Attorney-General if steps have
been taken that, in the opinion of the court, could reasonably be expected
to cause the matters to be notified to be brought to the attention of
the Attorney-General; and
- (b)
- is not required to be given to the Attorney-General if the Attorney-General
is a party to the cause.
(6) The Attorney-General may authorise the payment by the Commonwealth
to a party of an amount in respect of costs arising out of the adjournment
of a cause by reason of this section.
(7) Nothing in sub-section (1) prevents a court from proceeding without
delay to hear and determine proceedings, so far as they relate to the grant
of urgent relief of an interlocutory nature, where the court thinks it necessary
in the interests of justice to do so.
PART VFUNCTIONS OF HUMAN RIGHTS AND
EQUAL OPPORTUNITY COMMISSION
Functions of Human Rights and Equal Opportunity Commission
25. In addition to the functions of the Commission under the Human
Rights and Equal Opportunity Commission Act 1985, the Commission has the
following functions:
- (a)
- to inquire into any act or practice that may infringe a right or freedom
set out in the Bill of Rights, and
- (i)
- where the Commission considers it appropriate to do soto
endeavour, by conciliation, to effect a settlement of the matters
that gave rise to the inquiry; and
- (ii)
- where the Commission is of the opinion that the act or practice
infringes a right or freedom set out in the Bill of Rights, and
the Commission has not considered it appropriate to endeavour to
effect a settlement of the matters that gave rise to the inquiry
or has endeavoured without success to effect such a settlementto
report to the Minister in relation to the inquiry;
- (b)
- to promote an understanding and acceptance in Australia of the rights
and freedoms set out in the Bill of Rights and of the objects of this
Act, and to promote the protection of those rights and freedoms in Australia;
- (c)
- to undertake research and educational programs, and other programs,
on behalf of the Commonwealth for the purpose of promoting the rights
and freedoms set out in the Bill of Rights and the objects of this Act;
- (d)
- to examine enactments and, when requested by the Minister, proposed
enactments for the purpose of ascertaining whether the enactments or proposed
enactments are, or would be, in conflict with the Bill of Rights, and
to report to the Minister the results of any such examination;
- (e)
- on its own initiative or when requested by the Minister, to report to
the Minister as to the enactments that should be made by the Parliament,
or action that should be taken by the Commonwealth, on matters relating
to the rights and freedoms set out in the Bill of Rights;
- (f)
- to do anything incidental or conducive to the performance of any of
the preceding functions.
Complaints
26. (1) Where a complaint in writing is made to the Commission that
a person has done an act, or engaged in a practice, that infringes a right
or freedom set out in the Bill of Rights, the Commission shall, subject to
section 27, inquire into the act or practice and, unless the Commission does
not consider it appropriate to do so, endeavour to effect a settlement of
the matter to which the act or practice relates.
(2) Where it appears to a prescribed person that
- (a)
- a person wishes to make a complaint to the effect that another person
has done an act, or engaged in a practice, that infringes a right or freedom
set out in the Bill of Rights; and
- (b)
- that person requires assistance to formulate the complaint or to reduce
it to writing,
it is the duty of the prescribed person to take reasonable steps to provide
appropriate assistance to that person.
(3) A person who is detained in custody (in this sub-section and sub-section
(4) referred to as the "detainee") is entitled
- (a)
- upon making a request to the person (in this sub-section and sub-section
(4) referred to as the "custodian") in whose custody the detainee
is detained, or to any other person (in this sub-section and sub-section
(4) referred to as a "custodial officer") performing duties
in connection with the detention
- (i)
- to be provided with facilities for preparing a complaint in writing
under this Part, for giving in writing to the Commission, after
the complaint has been made, any other relevant information and
for enclosing the complaint or the other information (if any) in
a sealed envelope; and
- (ii)
- to have sent to the Commission, without undue delay, a sealed
envelope delivered by the detainee to the custodian or to a custodial
officer and addressed to the Commission; and
- (b)
- to have delivered to the detainee, without undue delay, any sealed envelope,
addressed to the detainee and sent by the Commission, that comes into
the possession or under the control of the custodian or of a custodial
officer.
(4) Where a sealed envelope addressed to the Commission is delivered
by the detainee to the custodian or to a custodial officer for sending to
the Commission, or a sealed envelope addressed to the detainee and sent by
the Commission comes into the possession or under the control of the custodian
or of a custodial officer, neither the custodian nor any custodial officer
is entitled to open the envelope or to inspect any document enclosed in the
envelope.
(5) For the purposes of sub-sections (3) and (4), the Commission may
make arrangements with the appropriate authority of a State or Territory for
the identification and delivery of sealed envelopes sent by the Commission
to persons detained in custody in that State or Territory.
Performance of functions of Commission in relation to Bill of Rights
27. (1) Subject to sub-section (2), the Commission shall perform the
functions referred to in paragraph 25 (a)
- (a)
- when the Commission is requested to do so by the Minister;
- (b)
- subject to this section, when a complaint is made to the Commission
under section 26; or
- (c)
- when it appears to the Commission to be desirable to do so.
(2) The Commission shall not commence to
- (a)
- inquire into an act done or practice engaged in by or on behalf of a
State or an authority of a State; or
- (b)
- examine a State enactment,
unless the Minister has, after taking into account such matters as the Minister
in his or her discretion considers appropriate, consented to the holding of
the inquiry or the making of the examination.
(3) Before commencing to inquire, under this Act, into an act or practice,
the Commission shall inform the person who appears to the Commission to be
the responsible Minister in relation to the act or practice that the Commission
proposes to inquire into the act or practice.
(4) The Commission may decide not to inquire into an act or practice,
or, if the Commission has commenced to inquire into an act or practice, may
decide not to continue to inquire into the act or practice, if
- (a)
- the Commission is satisfied that the act or practice does not infringe
a right or freedom set out in the Bill of Rights;
- (b)
- the Commission is of the opinion that the person whose rights or freedoms
under the Bill of Rights are alleged to have been infringed does not desire,
or that none of the persons whose rights or freedoms under the Bill of
Rights are alleged to have been infringed desires, that the inquiry be
held or continued; or
- (c)
- in a case where a complaint has been made to the Commission in relation
to the act or practice
- (i)
- the complaint was made more than 12 months after the act was done
or more than 12 months after the last occasion when an act was done
pursuant to the practice;
- (ii)
- the Commission is of the opinion that the complaint was frivolous,
vexatious, misconceived or lacking in substance;
- (iii)
- where some other remedy has been sought in relation to the subject
matter of the complaintthe Commission is of the opinion that
the subject matter of the complaint has been adequately dealt with;
- (iv)
- the Commission is of the opinion that some other more appropriate
remedy in relation to the subject matter of the complaint is reasonably
available to the complainant;
- (v)
- where the subject matter of the complaint has already been dealt
with by the Commission or by another statutory authoritythe
Commission is of the opinion that the subject matter of the complaint
has been adequately dealt with; or
- (vi)
- the Commission is of the opinion that the subject matter of the
complaint could be more effectively or conveniently dealt with by
another statutory authority.
(5) Where
- (a)
- a complaint has been made to the Commission in relation to an act or
practice; and
- (b)
- the subject matter of the complaint has been or is the subject matter
of an investigation by the Ombudsman under the Complaints (Australian
Federal Police) Act 1981,
the Commission shall not inquire into the act or practice unless the Ombudsman
and the Commission are both of the opinion that, having regard to all the
circumstances, it would be appropriate for the Commission to do so.
(6) The Commission shall, before the expiration of the period of 2
months commencing when a complaint is made to the Commission in respect of
an act or practice, decide whether or not to inquire into the act or practice.
(7) Where the Commission decides not to inquire into, or not to continue
to inquire into, an act or practice in respect of which a complaint was made
to the Commission, the Commission shall forthwith give notice in writing to
the complainant or each of the complainants of that decision and of the reasons
for that decision.
Powers and duties of Commission
28. (1) The Commission has power to do all things that are necessary
or convenient to be done for or in connection with the performance of its
functions under this Act.
(2) The Commission may at any time report to the Minister on any matter
arising in the course of the performance of its functions under this Act and
shall report to the Minister on such a matter if requested by the Minister
to do so.
Form of examinations or inquiries to he at discretion of Commission, &c.
29. (1) For the purpose of the performance of its functions under
this Act, the Commission may make an examination or hold an inquiry in such
manner as it thinks fit and, in informing itself in the course of an examination
or inquiry, is not bound by the rules of evidence.
(2) Where the Commission considers that the preservation of the anonymity
of a person
- (a)
- who has made a complaint to the Commission under this Act; or
- (b)
- who
- (i)
- has furnished or proposes to furnish information;
- (ii)
- has produced or proposes to produce a document;
- (iii)
- has given or proposes to give evidence; or
- (iv)
- has made or proposes to make a submission,
to the Commission or to a prescribed person in connection with, or for
the purposes of, the performance of the functions of the Commission under
this Act,
is necessary to protect the security of employment, the privacy, or any right
or freedom set out in the Bill of Rights, of the person, the Commission may
give directions prohibiting the disclosure of the identity of the person.
(3) The Commission may direct that
- (a)
- any evidence given before the Commission or any information given to
the Commission; or
- (b)
- the contents of any document produced to the Commission,
shall not be published, or shall not be published except in such manner,
and to such persons, as the Commission specifies.
(4) Where the Commission has given a direction under sub-section (3)
in relation to the publication of any evidence or information or of the contents
of a document, the direction does not prevent a person from communicating
to another person a matter contained in the evidence, information or document
if the first-mentioned person has knowledge of the matter otherwise than by
reason of the evidence or information having been given or the document having
been produced to the Commission.
(5) In deciding whether or not to give a direction under sub-section
(3), the Commission shall have regard to the need to prevent such of the following
as are relevant to the circumstances:
- (a)
- prejudice to the security, defence or international relations of Australia;
- (b)
- prejudice to relations between the Commonwealth Government and the Government
of a State or between the Government of a State and the Government of
another State;
- (c)
- the disclosure of deliberations or decisions of the Cabinet, or of a
Committee of the Cabinet, of the Commonwealth or of a State;
- (d)
- the disclosure of deliberations or advice of the Federal Executive Council
or the Executive Council of a State;
- (e)
- the disclosure, or the ascertaining by a person, of the existence or
identity of a confidential source of information in relation to the enforcement
of the criminal law;
- (f)
- the endangering of the life or physical safety of any person;
- (g)
- prejudice to the proper enforcement of the law or the protection of
public safety;
- (h)
- the disclosure of information the disclosure of which is prohibited,
absolutely or subject to qualifications, by or under another enactment;
- (j)
- the unreasonable disclosure of the personal affairs of any person;
- (k)
- the unreasonable disclosure of confidential commercial information.
(6) In having regard to the matters mentioned in paragraphs (5) (a)
to (k), inclusive, the Commission shall try to achieve an appropriate balance
between the need to have regard to those matters and the desirability of ensuring
that interested persons are sufficiently informed of the results of the Commission's
examination or inquiry.
(7) A person shall not contravene a direction given by the Commission
under sub-section (2) or (3) that is applicable to the person.
Penalty:
- (a)
- in the case of a natural person$1,000; or
- (b)
- in the case of a body corporate$5,000.
Nature of settlements
30. The Commission shall, in endeavouring to effect a settlement of
a matter relating to the infringement, or an alleged infringement, of a right
or freedom set out in the Bill of Rights, have regard to the need to ensure
that any settlement of the matter reflects a recognition of that right or
freedom and of the need to protect that right or freedom.
Power to obtain information and documents
31. (1) Where the Commission has reason to believe that a person is
capable of giving information or producing documents relevant to a matter
under examination or inquiry under this Act, a member may, by notice in writing
served on that person, require that person at such place, and within such
period or on such date and at such time, as are specified in the notice
- (a)
- to give to the Commission or to a prescribed person, by writing signed
by that person or, in the case of a body corporate, on behalf of the body
corporate, any such information; or
- (b)
- to produce to the Commission or to a prescribed person any such documents.
(2) Where
- (a)
- a person is required by a notice under sub-section (1) to give information
or produce a document to the Commission or to a prescribed person; and
- (b)
- the information or document originated with, or has been received from,
an intelligence agency,
the person shall forthwith notify that agency of the making of the requirement.
(3) A reference in sub-section (2) to an intelligence agency is a
reference to the Australian Secret Intelligence Service, the Australian Security
Intelligence Organization, the Office of National Assessments, or the Defence
Signals Directorate or the Joint Intelligence Organisation of the Department
of Defence.
(4) Where documents are produced to the Commission in accordance with
a requirement under sub-section (1), the Commission
- (a)
- may take possession of, and may make copies of, or take extracts from,
the documents;
- (b)
- may retain possession of the documents for such period as is necessary
for the purposes of the examination or inquiry to which the documents
relate; and
- (c)
- during that period shall permit a person who would be entitled to inspect
any one or more of the documents if they were not in the possession of
the Commission to inspect at all reasonable times such of the documents
as that person would be so entitled to inspect.
(5) Where the Commission has reason to believe that a person is capable
of giving information relevant to an inquiry under this Act, a member may,
by notice in writing served on the person, require the person to attend before
the member, on such date and at such time and place as are specified in the
notice, to answer questions relevant to the inquiry.
(6) A person who attends at a place pursuant to a requirement made
of the person under sub-section (1) or (5) is entitled to be paid by the Commonwealth
a reasonable sum for the person's attendance at that place.
(7) A person shall not be required under this section
- (a)
- to give any information that the first-mentioned person acquired by
reason of that person's holding or having held an office, or being or
having been employed, under or for the purposes of a law of the Commonwealth
relating to taxation; or
- (b)
- to produce a document that was furnished or obtained under or for the
purposes of such a law,
unless
- (c)
- the requirement is made for the purposes of an inquiry that is being
held by the Commission as a result of
- (i)
- a complaint made to the Commission under section 26; or
- (ii)
- a request made to the Commission by the Minister;
- (d)
- in a case to which sub-paragraph (c) (i) appliesthe information
or document does not reveal the identity of any person to whose affairs
the information or document relates other than the person who made the
complaint; and
- (e)
- in a case to which sub-paragraph (c) (ii) appliesthe information
or document does not reveal the identity of any person to whose affairs
the information or document relates other than a person to whom the request
relates.
Power to examine witnesses
32. (1) A member may administer an oath or affirmation to a person
required to attend before the member pursuant to section 31 and may examine
the person on oath or affirmation.
(2) The oath or affirmation to be taken or made by a person for the
purposes of this section is an oath or affirmation that the evidence the person
will give will be true.
Directions to persons to attend compulsory conference
33. (1) For the purpose of inquiring into an act or practice, and
endeavouring to effect, by conciliation, a settlement of the matters that
gave rise to the inquiry, the Commission may, by notice in writing, direct
the persons referred to in sub-section (3) to attend, at a time and place
specified in the notice, a conference presided over by a prescribed person.
(2) A person who, after having been given a direction under sub-section
(1) to attend a conference, without reasonable excuse
- (a)
- fails to attend as required by the direction; or
- (b)
- fails to attend and report from day to day unless excused, or released
from further attendance, by the person presiding at the conference,
is guilty of an offence punishable on conviction
- (c)
- in the case of a natural personby a fine not exceeding $1,000
or imprisonment for a period not exceeding 3 months; or
- (d)
- in the case of a body corporateby a fine not exceeding $5,000.
(3) Directions under sub-section (1) to attend a conference in relation
to an act or practice shall be given to
- (a)
- where a complaint was made to the Commission in relation to that act
or practicethe complainant, or each of the complainants, as the
case requires;
- (b)
- the person who is, or each of the persons who are, alleged to have done
the act or engaged in the practice; and
- (c)
- any other person who, in the opinion of the Commission, is likely to
be able to provide information relevant to the inquiry or whose presence
at the conference is, in the opinion of the Commission, likely to be conducive
to the settlement of the matters that gave rise to the inquiry.
(4) A person who has been given a direction under sub-section (1)
to attend a conference is entitled to be paid by the Commonwealth a reasonable
sum for the person's attendance at the conference.
(5) The Commission may, in a notice given to a person under sub-section
(1), require the person to produce such documents at the conference as are
specified in the notice.
Compulsory conference
34. (1) The person presiding at a conference held under this Part
may require a person attending the conference to produce a document.
(2) A conference under this Part shall be held in private and, subject
to this Act, shall be conducted in such manner as the person presiding at
the conference thinks fit.
(3) A body of persons, whether corporate or unincorporate, that is
directed under section 33 to attend a conference shall be deemed to attend
if a member, officer or employee of that body attends on behalf of that body.
(4) Except with the consent of the person presiding at a conference
under this Part
- (a)
- a natural person is not entitled to be represented at the conference
by another person; and
- (b)
- a body of persons, whether corporate or unincorporate, is not entitled
to be represented at the conference by a person other than a member, officer
or employee of that body.
Failure to comply with requirement
35. (1) A person served with a notice under sub-section 31 (5) shall
not, without reasonable excuse, refuse or fail to comply with the notice.
Penalty:
- (a)
- in the case of a natural person$1,000; or
- (b)
- in the case of a body corporate$5,000.
(2) A person who, without reasonable excuse, refuses or fails
- (a)
- to be sworn or to make an affirmation; or
- (b)
- to furnish information, answer a question or produce a document,
when so required under this Act is guilty of an offence punishable on conviction
- (c)
- in the case of a natural personby a fine not exceeding $1,000
or imprisonment for a period not exceeding 3 months; or
- (d)
- in the case of a body corporateby a fine not exceeding $5,000.
Disclosure of information or contents of documents
36. (1) Where the Attorney-General furnishes to the Commission a certificate
certifying that the giving to the Commission or to a prescribed person of
information concerning a specified matter (including the giving of information
in answer to a question) or the production to the Commission or to a prescribed
person of the contents of a specified document would be contrary to the public
interest
- (a)
- by reason that it would prejudice the security, defence or international
relations of Australia;
- (b)
- by reason that it would involve the disclosure of communications between
a Minister of the Commonwealth and a Minister of a State, being a disclosure
that would prejudice relations between the Commonwealth Government and
the Government of a State;
- (c)
- by reason that it would involve the disclosure of deliberations or decisions
of the Cabinet or of a Committee of the Cabinet;
- (d)
- by reason that it would involve the disclosure of deliberations or advice
of the Executive Council;
- (e)
- by reason that it would prejudice the conduct of an investigation or
inquiry into crime or criminal activity that is currently being pursued
or would prejudice the fair trial of any person;
- (f)
- by reason that it would disclose, or enable a person to ascertain, the
existence or identity of a confidential source of information in relation
to the enforcement of the criminal law;
- (g)
- by reason that it would prejudice the effectiveness of the operational
methods or investigative practices or techniques of agencies responsible
for the enforcement of the criminal law; or
- (h)
- by reason that it would endanger the life or physical safety of any
person,
neither the Commission nor a prescribed person is entitled, pursuant to this
Act, to require a person to give any information concerning the matter or
to produce the document.
(2) Without limiting the operation of sub-section (1), where the Attorney-General
furnishes to the Commission a certificate certifying that the giving to the
Commission or to a prescribed person of information as to the existence or
non-existence of information concerning a specified matter (including the
giving of information in answer to a question) or as to the existence or non-existence
of any one or more documents required to be produced to the Commission or
to a prescribed person would be contrary to the public interest
- (a)
- by reason that it would prejudice the security, defence or international
relations of Australia; or
- (b)
- by reason that it would prejudice the proper performance of the functions
of the National Crime Authority,
neither the Commission nor a prescribed person is entitled, pursuant to this
Act, to require a person to give any information as to the existence or non-existence
of information concerning that matter or as to the existence or non-existence
of that document or those documents.
(3) Where the Attorney-General of a State furnishes to the Commission
a certificate certifying that the giving to the Commission or to a prescribed
person of information concerning a specified matter (including the giving
of information in answer to a question) or the production to the Commission
or to a prescribed person of the contents of a specified document would be
contrary to the public interest
- (a)
- by reason that it would involve the disclosure of communications between
a Minister of the State and a Minister of the Commonwealth or of another
State, being a disclosure that would prejudice relations between the Government
of the first-mentioned State and the Commonwealth Government or the Government
of another State;
- (b)
- by reason that it would involve the disclosure of deliberations or decisions
of the Cabinet, or of a Committee of the Cabinet, of the State;
- (c)
- by reason that it would involve the disclosure of deliberations or advice
of the Executive Council of the State;
- (d)
- by reason that it would prejudice the conduct of an investigation or
inquiry into crime or criminal activity that is currently being pursued
or would prejudice the fair trial of any person;
- (e)
- by reason that it would disclose, or enable a person to ascertain, the
existence or identity of a confidential source of information in relation
to the enforcement of the criminal law;
- (f)
- by reason that it would prejudice the effectiveness of the operational
methods or investigative practices or techniques of agencies responsible
for the enforcement of the criminal law; or
- (g)
- by reason that it would endanger the life or physical safety of any
person,
neither the Commission nor a prescribed person is entitled, pursuant to this
Act, to require a person to give any information concerning the matter or
to produce the document.
(4) Notwithstanding the provisions of any law, a person is not excused
- (a)
- from giving any information, or producing a document, when required
to do so pursuant to this Act; or
- (b)
- from answering a question that the person is required to answer by a
member before whom the person is attending in compliance with a notice
served on the person under sub-section 31 (5),
on the ground that
- (c)
- the giving of the information, the production of the document or the
answering of the question
- (i)
- would disclose legal advice furnished to a Minister, to a person
or body that acts on behalf of the Commonwealth, or to an authority
of the Commonwealth;
- (ii)
- would contravene the provisions of any other Act or would be contrary
to the public interest; or
- (iii)
- might make the person liable to a penalty; or
- (d)
- the information, the production of the document or the answer to the
question might tend to incriminate the person,
but the information, the giving of the information, the production of the
document, the answer to the question or the answering of the question is not
admissible in evidence against the person in proceedings other than proceedings
for an offence against section 37.
(5) A person is not liable to any penalty under the provisions of
any other law by reason of
- (a)
- giving information or producing a document when required to do so pursuant
to this Act; or
- (b)
- answering a question that the person is required to answer by a member
before whom the person is attending in compliance with a notice served
on the person under sub-section 31 (5).
(6) Sub-section (4) does not apply where the offence in respect of
which information, the production of a document or the answer to a question
might tend to incriminate a person is an offence with which the person has
been charged and the charge has not been finally dealt with by a court or
otherwise disposed of.
False or misleading information
37. A person shall not give information or make a statement to the
Commission or to any other person exercising powers or performing functions
under this Act, knowing that the information or statement is false or misleading
in a material particular.
Penalty:
- (a)
- in the case of a natural person$2,500 or imprisonment for 3 months;
or
- (b)
- in the case of a body corporate$10,000.
Obstructing or hindering Commission
38. A person who insults, hinders, obstructs, molests or interferes
with
- (a)
- a member participating in an inquiry or examination under this Part;
or
- (b)
- a prescribed person, while that person is holding an inquiry or carrying
out an investigation under this Part,
is guilty of an offence punishable on conviction by a fine not exceeding
- (c)
- in the case of a natural person$1,000; or
- (d)
- in the case of a body corporate$5,000.
Commission to give opportunity for making of submissions
39. Where it appears to the Commission as a result of an inquiry into
an act or practice that the act or practice infringes a right or freedom set
out in the Bill of Rights, the Commission shall not furnish a report to the
Minister in relation to the act or practice until it has given a reasonable
opportunity to
- (a)
- the person, or each of the persons, who did the act or engaged in the
practice; and
- (b)
- the Minister who appears to the Commission to be the responsible Minister
in relation to the act or practice, or a person nominated by that Minister
for the purpose,
to do, at the option of the person concerned, either or both of the following:
- (c)
- to appear before the Commission, whether in person or by a representative,
and make oral submissions in relation to the act or practice;
- (d)
- to make written submissions to the Commission in relation to the act
or practice.
Complainant to be notified of results of inquiries
40. (1) Where
- (a)
- a complaint is made to the Commission in relation to an act or practice;
and
- (b)
- after an inquiry into the act or practice, the Commission finds that
- (i)
- the existence of the act or practice has not been established;
or
- (ii)
- the act or practice does not infringe a right or freedom set out
in the Bill of Rights,
the Commission shall give to the complainant a notice setting out its findings
and the reasons for those findings.
(2) In setting out findings and reasons in a notice to be given under
sub-section (1) the Commission may exclude any matter if the Commission considers
it desirable to do so having regard to any of the matters mentioned in sub-section
29 (5) and to the obligations of the Commission under sub-section 29 (6).
Reports to contain recommendations
41. (1) Where, after an examination of an enactment or proposed enactment,
the Commission finds that the enactment is, or the proposed enactment would
be, in conflict with the Bill of Rights, the Commission shall
- (a)
- include in its report to the Minister relating to the results of the
examination any recommendations by the Commission for amendment of the
enactment or proposed enactment to ensure that the enactment is not, or
the proposed enactment would not be, in conflict with the Bill of Rights;
and
- (b)
- furnish a copy of the report referred to in sub-section (1) to the Minister
who appears to the Commission to be the responsible Minister in relation
to that enactment or proposed enactment.
(2) Where, after an inquiry into an act done or practice engaged in
by a person
- (a)
- the Commission finds that the act or practice infringes a right or freedom
set out in the Bill of Rights; and
- (b)
- the Commission
- (i)
- has not considered it appropriate to endeavour to effect a settlement
of the matters that gave rise to the inquiry; or
- (ii)
- has endeavoured without success to effect such a settlement,
the Commission
- (c)
- shall prepare a report setting out its findings and the reasons for
those findings;
- (d)
- may include in the report any recommendations by the Commission for
the purpose of preventing a repetition of the act or a continuation of
the practice;
- (e)
- may include in the report a recommendation by the Commission for either
or both of the following:
- (i)
- the payment of compensation to, or in respect of, a person who
has suffered loss or damage as a result of the act or practice;
- (ii)
- the taking of other action to remedy or reduce loss or damage
suffered by a person as a result of the act or practice;
- (f)
- shall furnish a copy of the report to the Minister and to the Minister
who appears to the Commission to be the responsible Minister in relation
to the act or practice; and
- (g)
- where a complaint was made to the Commission in relation to the act
or practice
- (i)
- if the complaint was made by a person affected by the act or practiceshall
furnish a copy of the report to that person; or
- (ii)
- in any other casemay furnish a copy of the report to the
person who made the complaint.
(3) Where, at the expiration of 60 days after a copy of a report relating
to an act or practice was furnished to the Minister who appeared to the Commission
to be the responsible Minister in relation to the act or practice, the Commission
- (a)
- is still of the opinion that the act or practice infringes a right or
freedom set out in the Bill of Rights; and
- (b)
- is not satisfied that reasonable steps have been taken to prevent a
repetition of the act or a continuation of the practice,
the Commission shall
- (c)
- prepare a further report incorporating the first-mentioned report and
any document that the Commission has received, in response to the first-mentioned
report, from that Minister or from any person on behalf of that Minister,
and stating
- (i)
- whether, to the knowledge of the Commission, any action has been
or is being taken as a result of the findings set out in the first-mentioned
report and, if so, the nature of that action; and
- (ii)
- why the Commission is not satisfied that reasonable steps have
been taken to prevent a repetition of the act or a continuation
of the practice; and
- (d)
- furnish to the Minister a copy of the further report.
(4) In setting out findings and reasons in a report to be prepared
for the purposes of sub-section (2) or (3), the Commission may exclude any
matter if the Commission considers it desirable to do so having regard to
any of the matters mentioned in sub-section 29 (5) and to the obligations
of the Commission under sub-section 29 (6).
(5) Where, under sub-section (4), the Commission excludes any matter
from a report, the Commission shall prepare a report setting out the excluded
matter and its reasons for excluding the matter and shall furnish the report
to the Minister.
Reports to be tabled in the Parliament
42. (1) Subject to this section, the Minister shall cause a copy of
every report furnished to the Minister by the Commission under paragraph 25
(d) or (e) or sub-section 41 (3) to be laid before each House of the Parliament
within 15 sitting days of that House after the report is received by the Minister.
(2) Where the Commission furnishes to the Minister under paragraph
25 (d) or (e) or sub-section 41 (3) a report that relates to
- (a)
- a State enactment, or proposed State enactment; or
- (b)
- an act done or practice engaged in
- (i)
- by or on behalf of a State; or
- (ii)
- by or on behalf of an authority of a State,
the Minister shall forthwith furnish a copy of the report to the Attorney-General
of that State.
(3) The Minister
- (a)
- shall not cause a copy of a report of the kind referred to in sub-section
(2) to be laid before either House of the Parliament until
- (i)
- the expiration of 30 days after a copy of the report was furnished
to the Attorney-General of the State concerned under sub-section
(2); or
- (ii)
- the Minister receives from the Attorney-General of the State concerned
a statement relating to the enactment, act or practice to which
the report related,
whichever happens first;
- (b)
- shall cause a copy of the report to be laid before each House of the
Parliament within 15 sitting days after the happening of the first of
the events referred to in sub-paragraphs (a) (i) and (ii); and
- (c)
- if the event referred to in sub-paragraph (a) (ii) is the first to happen,
or if, before the report is laid before either House of the Parliament
pursuant to paragraph (b), the Minister receives from the Attorney-General
concerned a statement of the kind referred to in sub-paragraph (a) (ii)shall
cause a copy of the statement to be attached to each copy of the report
that is laid before a House of the Parliament pursuant to paragraph (b).
Delegation
43. (1) The Commission may, either generally or as otherwise provided
by the instrument of delegation, by writing under its common seal, delegate
to a prescribed person all or any of the powers conferred on the Commission
under this Act, other than this power of delegation.
(2) A member may, for the purposes of a particular inquiry or for
the purposes of inquiries included in a class of inquiries, either generally
or as otherwise provided by the instrument of delegation, by writing signed
by the member, delegate to another prescribed person all or any of the powers
conferred under this Act on members for the purposes of inquiries under this
Act, other than this power of delegation.
(3) A power delegated by the Commission under sub-section (1), or
by a member under sub-section (2), when exercised by the delegate, shall,
for the purposes of this Act, be deemed to have been exercised by the Commission
or by the member, as the case may be.
(4) A delegation under this section by the Commission, or by a member,
does not prevent the exercise of a power by the Commission, or by the member,
as the case may be.
Non-disclosure of private information
44. (1) A person who is, or has at any time been, a member of the
Commission or a member of the staff assisting the Commission or is, or has
at any time been, authorised to perform or exercise any function or power
of the Commission or any function or power on behalf of the Commission, being
a function or power conferred on the Commission under this Act, shall not,
either directly or indirectly, except in the performance of a duty under or
in connection with this Act or in the performance or exercise of such a function
or power
- (a)
- make a record of, or divulge or communicate to any person, any information
relating to the affairs of another person acquired by the first-mentioned
person by reason of that person's office or employment under or for the
purposes of this Act or by reason of that person being or having been
so authorised;
- (b)
- make use of any such information as is mentioned in paragraph (a); or
- (c)
- produce to any person a document relating to the affairs of another
person furnished for the purposes of this Act.
Penalty: $5,000 or imprisonment for one year, or both.
(2) A person who is, or has at any time been, a member of the Commission
or a member of the staff assisting the Commission or is, or has at any time
been, authorised to perform or exercise any function or power of the Commission
or any function or power on behalf of the Commission, being a function or
power conferred on the Commission under this Act, shall not be required
- (a)
- to divulge or communicate to a court any information relating to the
affairs of another person acquired by the first-mentioned person by reason
of that person's office or employment under or for the purposes of this
Act or by reason of that person being or having been so authorised; or
- (b)
- to produce in a court a document relating to the affairs of another
person of which the first-mentioned person has custody, or to which that
person has access, by reason of that person's office or employment under
or for the purposes of this Act or by reason of that person being or having
been so authorised,
except where it is necessary to do so for the purposes of this Act.
(3) Nothing in this section prohibits a person from
- (a)
- divulging or communicating information, or producing a document, to
an authority of a State in accordance with an arrangement in force under
section 45; or
- (b)
- divulging or communicating information, or producing a document, that
is, or is included in a class of information that is or class of documents
that are, required or permitted by an Act to be divulged, communicated
or produced, as the case may be.
(4) In this section
"court" includes any tribunal, authority or person having power
to require the production of documents or the answering of questions;
"produce" includes permit access to.
Arrangements with the States
45. (1) The Minister may make an arrangement with a Minister of a
State for or in relation to the performance or exercise, by that State or
by a State instrumentality, on behalf of the Commonwealth, of
- (a)
- functions and powers of the Commission, and of members, under this Act
relating to inquiries into acts or practices that may infringe a right
or freedom set out in the Bill of Rights; or
- (b)
- functions and powers of the Commission under this Act relating to enactments
or proposed enactments of that State.
(2) An arrangement under this section may contain such incidental
or supplementary provisions as the Minister and the Minister of the State
with whom the arrangement is made think necessary.
(3) The Minister may arrange with the Minister of a State with whom
an arrangement is in force under this section for the variation or revocation
of the arrangement.
(4) An arrangement under this section, or the variation or revocation
of such an arrangement, shall be in writing and a copy of each instrument
by which an arrangement under this section has been made, varied or revoked
shall be published in the Gazette.
Protection from civil actions
46. (1) The Commission or a prescribed person is not liable to an
action or other proceeding for damages for or in relation to an act done or
omitted to be done in good faith in performance or purported performance of
any function, or in exercise or purported exercise of any power, conferred
on the Commission by this Act.
(2) Where
- (a)
- a complaint has been made to the Commission under this Act; or
- (b)
- a submission has been made, a document or information has been furnished,
or evidence has been given, to the Commission or to a prescribed person
in connection with, or for the purposes of, the performance of the functions
of the Commission under this Act,
a person is not liable to a suit in respect of loss, damage or injury of
any kind suffered by another person by reason only that the complaint or submission
was made, the document or information was furnished or the evidence was given.
PART VISEVERABILITY
Operation of Act
47. If this Act exceeds the powers of the Parliament by reason of
the inclusion in the Bill of Rights of a particular provision or particular
provisions, this Act is intended to operate as if that provision, or those
provisions, as the case may be, were omitted from the Bill of Rights.
Operation of Part III
48. (1) The provisions of Part III, other than section 14, are intended
to operate whether or not that section is, in whole or in part, within the
powers of the Parliament.
(2) If sub-sections 14 (2) to (6), inclusive, are within the powers
of the Parliament, those sub-sections are intended to operate whether or not
sub-sections 14 (7) to (9), inclusive, are within the powers of the Parliament.
(3) If
- (a)
- sub-section 14 (4) or (6) is not within the powers of the Parliament
by reason of the inclusion of the words "except the purposes of the
proceedings in which the declaration in relation to the enactment was
made under sub-section (2) or (3)"; and
- (b)
- that sub-section would, but for the inclusion of those words, be within
the powers of the Parliament,
that sub-section is intended to operate as if those words were omitted from
it.
(4) If
- (a)
- sub-section 14 (8) or (9) is not within the powers of the Parliament
by reason of the inclusion of the words "except the purposes of the
proceedings in which the declaration in relation to the enactment was
made under sub-section (7)"; and
- (b)
- that sub-section would, but for the inclusion of those words, be within
the powers of the Parliament,
that sub-section is intended to operate as if those words were omitted from
it.
(5) Nothing in this section is intended to limit the application of
section 15A of the Acts Interpretation Act 1901 in relation to this
Act or in relation to the Bill of Rights.
PART VIIMISCELLANEOUS
Assistance in proceedings involving Bill of Rights
49. (1) A person who has invoked the provisions of the Bill of Rights
in any legal proceeding may apply to the Attorney-General for the provision
of assistance under this section in respect of the proceeding.
(2) Where an application is made by a person under sub-section (1)
and the Attorney-General is satisfied that
- (a)
- it would involve hardship to that person to refuse the application;
and
- (b)
- in all the circumstances, having particular regard to the public interest
in having important questions as to the operation of the Bill of Rights
determined by the courts, it is reasonable that the application be granted,
the Attorney-General may authorise the provision by the Commonwealth to that
person, either unconditionally or subject to such conditions as the Attorney-General
determines, of such legal or financial assistance in respect of the proceeding
as the Attorney-General determines.
Regulations
50. The Governor-General may make regulations, not inconsistent with
this Act, prescribing matters
- (a)
- required or permitted by this Act to be prescribed; or
- (b)
- necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
SCHEDULE
Section 4
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
The States Parties to the present Covenant,
Considering that, in accordance with the principles
proclaimed in the Charter of the United Nations, recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the world,
Recognizing that these rights derive from the inherent
dignity of the human person,
Recognizing that, in accordance with the Universal
Declaration of Human Rights, the ideal of free human beings enjoying civil
and political freedom and freedom from fear and want can only be achieved
if conditions are created whereby everyone may enjoy his civil and political
rights, as well as his economic, social and cultural rights,
Considering the obligation of States under the Charter
of the United Nations to promote universal respect for, and observance of,
human rights and freedoms,
Realizing that the individual, having duties to other
individuals and to the community to which he belongs, is under a responsibility
to strive for the promotion and observance of the rights recognized in the
present Covenant,
Agree upon the following articles:
PART I
Article 1
1. All peoples have the right of self-determination. By virtue
of that right they freely determine their political status and freely pursue
their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of
their natural wealth and resources without prejudice to any obligations arising
out of international economic co-operation, based upon the principle of mutual
benefit, and international law. In no case may a people be deprived of its
own means of subsistence.
3. The States Parties to the present Covenant, including
those having responsibility for the administration of Non-Self-Governing and
Trust Territories, shall promote the realization of the right of self-determination,
and shall respect that right, in conformity with the provisions of the Charter
of the United Nations.
PART II
Article 2
1. Each State Party to the present Covenant undertakes to
respect and to ensure to all individuals within its territory and subject
to its jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative
or other measures, each State Party to the present Covenant undertakes to
take the necessary steps, in accordance with its constitutional processes
and with the provisions of the present Covenant, to adopt such legislative
or other measures as may be necessary to give effect to the rights recognized
in the present Covenant.
3. Each State Party to the present Covenant undertakes:
- (a)
- To ensure that any person whose rights or freedoms as
herein recognized are violated shall have an effective remedy, notwithstanding
that the violation has been committed by persons acting in an official
capacity;
- (b)
- To ensure that any person claiming such a remedy shall
have his right thereto determined by competent judicial, administrative
or legislative authorities, or by any other competent authority provided
for by the legal system of the State, and to develop the possibilities
of judicial remedy;
- (c)
- To ensure that the competent authorities shall enforce
such remedies when granted.
Article 3
The States Parties to the present Covenant undertake to ensure
the equal right of men and women to the enjoyment of all civil and political
rights set forth in the present Covenant.
Article 4
1. In time of public emergency which threatens the life of
the nation and the existence of which is officially proclaimed, the States
Parties to the present Covenant may take measures derogating from their obligations
under the present Covenant to the extent strictly required by the exigencies
of the situation, provided that such measures are not inconsistent with their
other obligations under international law and do not involve discrimination
solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs 1 and
2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself
of the right of derogation shall immediately inform the other States Parties
to the present Covenant, through the intermediary of the Secretary-General
of the United Nations, of the provisions from which it has derogated and of
the reasons by which it was actuated. A further communication shall be made,
through the same intermediary, on the date on which it terminates such derogation.
Article 5
1. Nothing in the present Covenant may be interpreted as
implying for any State, group or person any right to engage in any activity
or perform any act aimed at the destruction of any of the rights and freedoms
recognized herein or at their limitation to a greater extent than is provided
for in the present Covenant.
2. There shall be no restriction upon or derogation from
any of the fundamental human rights recognized or existing in any State Party
to the present Covenant pursuant to law, conventions, regulations or custom
on the pretext that the present Covenant does not recognize such rights or
that it recognizes them to a lesser extent.
PART III
Article 6
1. Every human being has the inherent right to life. This
right shall be protected by law. No one shall be arbitrarily deprived of his
life.
2. In countries which have not abolished the death penalty,
sentence of death may be imposed only for the most serious crimes in accordance
with the law in force at the time of the commission of the crime and not contrary
to the provisions of the present Covenant and to the Convention on the Prevention
and Punishment of the Crime of Genocide. This penalty can only be carried
out pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide,
it is understood that nothing in this article shall authorize any State Party
to the present Covenant to derogate in any way from any obligation assumed
under the provisions of the Convention on the Prevention and Punishment of
the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek
pardon or commutation of the sentence. Amnesty, pardon or commutation of the
sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed
by persons below eighteen years of age and shall not be carried out on pregnant
women.
6. Nothing in this article shall be invoked to delay or to
prevent the abolition of capital punishment by any State Party to the present
Covenant.
Article 7
No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment. In particular, no one shall be subjected
without his free consent to medical or scientific experimentation.
Article 8
1. No one shall be held in slavery; slavery and the slave-trade
in all their forms shall be prohibited.
2. No one shall be held in servitude.
3.
- (a)
- No one shall be required to perform forced or compulsory
labour;
- (b)
- Paragraph 3(a) shall not be held to preclude, in countries
where imprisonment with hard labour may be imposed as a punishment for
a crime, the performance of hard labour in pursuance of a sentence to
such punishment by a competent court;
- (c)
- For the purpose of this paragraph the term "forced
or compulsory labour" shall not include:
- (i)
- Any work or service, not referred to in sub-paragraph
(b), normally required of a person who is under detention in consequence
of a lawful order of a court, or of a person during conditional
release from such detention;
- (ii)
- Any service of a military character and, in countries
where conscientious objection is recognized, any national service
required by law of conscientious objectors;
- (iii)
- Any service exacted in cases of emergency or calamity
threatening the life or well-being of the community;
- (iv)
- Any work or service which forms part of normal
civil obligations.
Article 9
1. Everyone has the right to liberty and security of person.
No one shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time
of arrest, of the reasons for his arrest and shall be promptly informed of
any charges against him.
3. Anyone arrested or detained on a criminal charge shall
be brought promptly before a judge or other officer authorized by law to exercise
judicial power and shall be entitled to trial within a reasonable time or
to release. It shall not be the general rule that persons awaiting trial shall
be detained in custody, but release may be subject to guarantees to appear
for trial, at any other stage of the judicial proceedings, and, should occasion
arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings before a court, in order that that court
may decide without delay on the lawfulness of his detention and order his
release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention
shall have an enforceable right to compensation.
Article 10
1. All persons deprived of their liberty shall be treated
with humanity and with respect for the inherent dignity of the human person.
2.
- (a)
- Accused persons shall, save in exceptional circumstances,
be segregated from convicted persons and shall be subject to separate
treatment appropriate to their status as unconvicted persons;
- (b)
- Accused juvenile persons shall be separated from adults
and brought as speedily as possible for adjudication.
3. The penitentiary system shall comprise treatment of prisoners
the essential aim of which shall be their reformation and social rehabilitation.
Juvenile offenders shall be segregated from adults and be accorded treatment
appropriate to their age and legal status.
Article 11
No one shall be imprisoned merely on the ground of inability
to fulfil a contractual obligation.
Article 12
1. Everyone lawfully within the territory of a State shall,
within that territory, have the right to liberty of movement and freedom to
choose his residence.
2. Everyone shall be free to leave any country, including
his own.
3. The above-mentioned rights shall not be subject to any
restrictions except those which are provided by law, are necessary to protect
national security, public order (ordre public), public health or morals
or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter
his own country.
Article 13
An alien lawfully in the territory of a State Party to the
present Covenant may be expelled therefrom only in pursuance of a decision
reached in accordance with law and shall, except where compelling reasons
of national security otherwise require, be allowed to submit the reasons against
his expulsion and to have his case reviewed by, and be represented for the
purpose before, the competent authority or a person or persons especially
designated by the competent authority.
Article 14
1. All persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him, or of his rights
and obligations in a suit at law, everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal established
by law. The Press and the public may be excluded from all or part of a trial
for reasons of morals, public order (ordre public) or national security
in a democratic society, or when the interest of the private lives of the
parties so requires, or to the extent strictly necessary in the opinion of
the court in special circumstances where publicity would prejudice the interests
of justice; but any judgement rendered in a criminal case or in a suit at
law shall be made public except where the interest of juvenile persons otherwise
requires or the proceedings concern matrimonial disputes or the guardianship
of children.
2. Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty according to law.
3. In the determination of any criminal charge against him,
everyone shall be entitled to the following minimum guarantees, in full equality:
- (a)
- To be informed promptly and in detail in a language
which he understands of the nature and cause of the charge against him;
- (b)
- To have adequate time and facilities for the preparation
of his defence and to communicate with counsel of his own choosing;
- (c)
- To be tried without undue delay;
- (d)
- To be tried in his presence, and to defend himself in
person or through legal assistance of his own choosing; to be informed,
if he does not have legal assistance, of this right; and to have legal
assistance assigned to him, in any case where the interests of justice
so require, and without payment by him in any such case if he does not
have sufficient means to pay for it;
- (e)
- To examine, or have examined, the witnesses against
him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him;
- (f)
- To have the free assistance of an interpreter if he
cannot understand or speak the language used in court;
- (g)
- Not to be compelled to testify against himself or to
confess guilt.
4. In the case of juvenile persons, the procedure shall be
such as will take account of their age and the desirability of promoting their
rehabilitation.
5. Everyone convicted of a crime shall have the right to
his conviction and sentence being reviewed by a higher tribunal according
to law.
6. When a person has by a final decision been convicted of
a criminal offence and when subsequently his conviction has been reversed
or he has been pardoned on the ground that a new or newly discovered fact
shows conclusively that there has been a miscarriage of justice, the person
who has suffered punishment as a result of such conviction shall be compensated
according to law, unless it is proved that the non-disclosure of the unknown
fact in time is wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for
an offence for which he has already been finally convicted or acquitted in
accordance with the law and penal procedure of each country.
Article 15
1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a criminal offence,
under national or international law, at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at the
time when the criminal offence was committed. If, subsequent to the commission
of the offence, provision is made by law for the imposition of a lighter penalty,
the offender shall benefit thereby.
2. Nothing in this article shall prejudice the trial and
punishment of any person for any act or omission which, at the time when it
was committed, was criminal according to the general principles of law recognized
by the community of nations.
Article 16
Everyone shall have the right to recognition everywhere as
a person before the law.
Article 17
1. No one shall be subjected to arbitrary or unlawful interference
with his privacy, family, home or correspondence, nor to unlawful attacks
on his honour and reputation.
2. Everyone has the right to the protection of the law against
such interference or attacks.
Article 18
1. Everyone shall have the right to freedom of thought, conscience
and religion. This right shall include freedom to have or to adopt a religion
or belief of his choice, and freedom, either individually or in community
with others and in public or private, to manifest his religion or belief in
worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair
his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject
only to such limitations as are prescribed by law and are necessary to protect
public safety, order, health or morals or the fundamental rights and freedoms
of others.
4. The States Parties to the present Covenant undertake to
have respect for the liberty of parents and, when applicable, legal guardians
to ensure the religious and moral education of their children in conformity
with their own convictions.
Article 19
1. Everyone shall have the right to hold opinions without
interference.
2. Everyone shall have the right to freedom of expression;
this right shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or
in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2
of this article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be such
as are provided by law and are necessary:
- (a)
- For respect of the rights or reputations of others;
- (b)
- For the protection of national security or of public
order (ordre public), or of public health or morals.
Article 20
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence shall be prohibited
by law.
Article 21
The right of peaceful assembly shall be recognized. No restrictions
may be placed on the exercise of this right other than those imposed in conformity
with the law and which are necessary in a democratic society in the interests
of national security or public safety, public order (ordre public),
the protection of public health or morals or the protection of the rights
and freedoms of others.
Article 22
1. Everyone shall have the right to freedom of association
with others, including the right to form and join trade unions for the protection
of his interests.
2. No restrictions may be placed on the exercise of this
right other than those which are prescribed by law and which are necessary
in a democratic society in the interests of national security or public safety,
public order (ordre public), the protection of public health or morals
or the protection of the rights and freedoms of others. This article shall
not prevent the imposition of lawful restrictions on members of the armed
forces and of the police in their exercise of this right.
3. Nothing in this article shall authorize States Parties
to the International Labour Organisation Convention of 1948 concerning Freedom
of Association and Protection of the Right to Organize to take legislative
measures which would prejudice, or to apply the law in such a manner as to
prejudice, the guarantees provided for in that Convention.
Article 23
1. The family is the natural and fundamental group unit of
society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry
and to found a family shall be recognized.
3. No marriage shall be entered into without the free and
full consent of the intending spouses.
4. States Parties to the present Covenant shall take appropriate
steps to ensure equality of rights and responsibilities of spouses as to marriage,
during marriage and at its dissolution. In the case of dissolution, provision
shall be made for the necessary protection of any children.
Article 24
1. Every child shall have, without any discrimination as
to race, colour, sex, language, religion, national or social origin, property
or birth, the right to such measures of protection as are required by his
status as a minor, on the part of his family, society and the State.
2. Every child shall be registered immediately after birth
and shall have a name.
3. Every child has the right to acquire a nationality.
Article 25
Every citizen shall have the right and the opportunity, without
any of the distinctions mentioned in article 2 and without unreasonable restrictions:
- (a)
- To take part in the conduct of public affairs, directly
or through freely chosen representatives;
- (b)
- To vote and to be elected at genuine periodic elections
which shall be by universal and equal suffrage and shall be held by secret
ballot, guaranteeing the free expression of the will of the electors;
- (c)
- To have access, on general terms of equality, to public
service in his country.
Article 26
All persons are equal before the law and are entitled without
any discrimination to the equal protection of the law. In this respect, the
law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.
Article 27
In those States in which ethnic, religious or linguistic
minorities exist, persons belonging to such minorities shall not be denied
the right, in community with the other members of their group, to enjoy their
own culture, to profess and practise their own religion, or to use their own
language.
PART IV
Article 28
1. There shall be established a Human Rights Committee (hereafter
referred to in the present Covenant as the Committee). It shall consist of
eighteen members and shall carry out the functions hereinafter provided.
2. The Committee shall be composed of nationals of the States
Parties to the present Covenant who shall be persons of high moral character
and recognized competence in the field of human rights, consideration being
given to the usefulness of the participation of some persons having legal
experience.
3. The members of the Committee shall be elected and shall
serve in their personal capacity.
Article 29
1. The members of the Committee shall be elected by secret
ballot from a list of persons possessing the qualifications prescribed in
article 28 and nominated for the purpose by the States Parties to the present
Covenant.
2. Each State Party to the present Covenant may nominate
not more than two persons. These persons shall be nationals of the nominating
State.
3. A person shall be eligible for renomination.
Article 30
1. The initial election shall be held no later than six months
after the date of the entry into force of the present Covenant.
2. At least four months before the date of each election
to the Committee, other than an election to fill a vacancy declared in accordance
with article 34, the Secretary-General of the United Nations shall address
a written invitation to the States Parties to the present Covenant to submit
their nominations for membership of the Committee within three months.
3. The Secretary-General of the United Nations shall prepare
a list in alphabetical order of all the persons thus nominated, with an indication
of the States Parties which have nominated them, and shall submit it to the
States Parties to the present Covenant no later than one month before the
date of each election.
4. Elections of the members of the Committee shall be held
at a meeting of the States Parties to the present Covenant convened by the
Secretary-General of the United Nations at the Headquarters of the United
Nations. At that meeting, for which two thirds of the States Parties to the
present Covenant shall constitute a quorum, the persons elected to the Committee
shall be those nominees who obtain the largest number of votes and an absolute
majority of the votes of the representatives of States Parties present and
voting.
Article 31
1. The Committee may not include more than one national of
the same State.
2. In the election of the Committee, consideration shall
be given to equitable geographical distribution of membership and to the representation
of the different forms of civilization and of the principal legal systems.
Article 32
1. The members of the Committee shall be elected for a term
of four years. They shall be eligible for re-election if renominated. However,
the terms of nine of the members elected at the first election shall expire
at the end of two years; immediately after the first election, the names of
these nine members shall be chosen by lot by the Chairman of the meeting referred
to in article 30, paragraph 4.
2. Elections at the expiry of office shall be held in accordance
with the preceding articles of this part of the present Covenant.
Article 33
1. If, in the unanimous opinion of the other members, a member
of the Committee has ceased to carry out his functions for any cause other
than absence of a temporary character, the Chairman of the Committee shall
notify the Secretary-General of the United Nations, who shall then declare
the seat of that member to be vacant.
2. In the event of the death or the resignation of a member
of the Committee, the Chairman shall immediately notify the Secretary-General
of the United Nations, who shall declare the seat vacant from the date of
death or the date on which the resignation takes effect.
Article 34
1. When a vacancy is declared in accordance with article
33 and if the term of office of the member to be replaced does not expire
within six months of the declaration of the vacancy, the Secretary-General
of the United Nations shall notify each of the States Parties to the present
Covenant, which may within two months submit nominations in accordance with
article 29 for the purpose of filling the vacancy.
2. The Secretary-General of the United Nations shall prepare
a list in alphabetical order of the persons thus nominated and shall submit
it to the States Parties to the present Covenant. The election to fill the
vacancy shall then take place in accordance with the relevant provisions of
this part of the present Covenant.
3. A member of the Committee elected to fill a vacancy declared
in accordance with article 33 shall hold office for the remainder of the term
of the member who vacated the seat on the Committee under the provisions of
that article.
Article 35
The members of the Committee shall, with the approval of
the General Assembly of the United Nations, receive emoluments from United
Nations resources on such terms and conditions as the General Assembly may
decide, having regard to the importance of the Committee's responsibilities.
Article 36
The Secretary-General of the United Nations shall provide
the necessary staff and facilities for the effective performance of the functions
of the Committee under the present Covenant.
Article 37
1. The Secretary-General of the United Nations shall convene
the initial meeting of the Committee at the Headquarters of the United Nations.
2. After its initial meeting, the Committee shall meet at
such times as shall be provided in its rules of procedure.
3. The Committee shall normally meet at the Headquarters
of the United Nations or at the United Nations Office at Geneva.
Article 38
Every member of the Committee shall, before taking up his
duties, make a solemn declaration in open committee that he will perform his
functions impartially and conscientiously.
Article 39
1. The Committee shall elect its officers for a term of two
years. They may be re-elected.
2. The Committee shall establish its own rules of procedure,
but these rules shall provide, inter alia, that:
- (a)
- Twelve members shall constitute a quorum;
- (b)
- Decisions of the Committee shall be made by a majority
vote of the members present.
Article 40
1. The States Parties to the present Covenant undertake to
submit reports on the measures they have adopted which give effect to the
rights recognized herein and on the progress made in the enjoyment of those
rights:
- (a)
- Within one year of the entry into force of the present
Covenant for the States Parties concerned;
- (b)
- Thereafter whenever the Committee so requests.
2. All reports shall be submitted to the Secretary-General
of the United Nations, who shall transmit them to the Committee for consideration.
Reports shall indicate the factors and difficulties, if any, affecting the
implementation of the present Covenant.
3. The Secretary-General of the United Nations may, after
consultation with the Committee, transmit to the specialized agencies concerned
copies of such parts of the reports as may fall within their field of competence.
4. The Committee shall study the reports submitted by the
States Parties to the present Covenant. It shall transmit its reports, and
such general comments as it may consider appropriate, to the States Parties.
The Committee may also transmit to the Economic and Social Council these comments
along with the copies of the reports it has received from States Parties to
the present Covenant.
5. The States Parties to the present Covenant may submit
to the Committee observations on any comments that may be made in accordance
with paragraph 4 of this article.
Article 41
1. A State Party to the present Covenant may at any time
declare under this article that it recognizes the competence of the Committee
to receive and consider communications to the effect that a State Party claims
that another State Party is not fulfilling its obligations under the present
Covenant. Communications under this article may be received and considered
only if submitted by a State Party which has made a declaration recognizing
in regard to itself the competence of the Committee. No communications shall
be received by the Committee if it concerns a State Party which has not made
such a declaration. Communications received under this article shall be dealt
with in accordance with the following procedure:
- (a)
- If a State Party to the present Covenant considers that
another State Party is not giving effect to the provisions of the present
Covenant, it may, by written communication, bring the matter to the attention
of that State Party. Within three months after the receipt of the communication,
the receiving State shall afford the State which sent the communication
an explanation or any other statement in writing clarifying the matter
which should include, to the extent possible and pertinent, reference
to domestic procedures and remedies taken, pending, or available in the
matter.
- (b)
- If the matter is not adjusted to the satisfaction of
both States Parties concerned within six months after the receipt by the
receiving State of the initial communication, either State shall have
the right to refer the matter to the Committee, by notice given to the
Committee and to the other State.
- (c)
- The Committee shall deal with a matter referred to it
only after it has ascertained that all available domestic remedies have
been invoked and exhausted in the matter, in conformity with the generally
recognized principles of international law. This shall not be the rule
where the application of the remedies is unreasonably prolonged.
- (d)
- The Committee shall hold closed meetings when examining
communications under this article.
- (e)
- Subject to the provisions of sub-paragraph (c), the
Committee shall make available its good offices to the States Parties
concerned with a view to a friendly solution of the matter on the basis
of respect for human rights and fundamental freedoms as recognized in
the present Covenant.
- (f)
- In any matter referred to it, the Committee may call
upon the States Parties concerned, referred to in sub-paragraph (b), to
supply any relevant information.
- (g)
- The States Parties concerned, referred to in sub-paragraph
(b), shall have the right to be represented when the matter is being considered
in the Committee and to make submissions orally and/or in writing.
- (h)
- The Committee shall, within twelve months after the
date of receipt of notice under sub-paragraph (b), submit a report:
- (i)
- If a solution within the terms of sub-paragraph
(e) is reached, the Committee shall confine its report to a brief
statement of the facts and of the solution reached;
- (ii)
- If a solution within the terms of sub-paragraph
(e) is not reached, the Committee shall confine its report to a
brief statement of the facts; the written submissions and record
of the oral submissions made by the States Parties concerned shall
be attached to the report.
In every matter, the report shall be communicated to the States Parties
concerned.
2. The provisions of this article shall come into force when
ten States Parties to the present Covenant have made declarations under paragraph
1 of this article.
Such declarations shall be deposited by the States Parties
with the Secretary-General of the United Nations, who shall transmit copies
thereof to the other States Parties. A declaration may be withdrawn at any
time by notification to the Secretary-General. Such a withdrawal shall not
prejudice the consideration of any matter which is the subject of a communication
already transmitted under this article; no further communication by any State
Party shall be received after the notification of withdrawal of the declaration
has been received by the Secretary-General, unless the State Party concerned
has made a new declaration.
Article 42
1.