Footnotes

Executive Summary

[1]          Social Security (Administration) – Queensland Commission (Family Responsibilities Commission) Specification 2012,p 93, and Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2012, p. 94.

[2]          Customs Amendment (Miscellaneous Measures) Bill 2012, p. 125, and the Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures) Bill 2012, p 153.

[3]          Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012, p 95.

[4]          Australian Sports Anti-Doping Authority Amendment Bill 2013, p. 113, and Treasury Legislation Amendment (Unclaimed Money and Other Measures) Bill 2013, p 176.

[5]          Tax Laws Amendment (2012 Measures No. 4) Bill 2012, p. 168, and Tax Laws Amendment (2012 Measures No. 5) Bill 2012, p. 172.

[6]          Appropriation Bill (No.3) 2012-2013 and Appropriation Bill (No. 4) 2012-2013, p 65.

[7]          Refer to comments on the Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2013, p. 29, and Royal Commissions Amendment Bill 2013, p. 42.

[8]          Human Rights (Parliamentary Scrutiny) Act 2011 (the Act), section 7(b).

  - Broadcasting Legislation Amendment (Digital Dividend) Bill 2013

[1]          Statement of compatibility, p 1.

[2]          Note, corporations may also enjoy rights, including freedom of speech, under the Australian Constitution and the common law. While those sources of rights are not listed in the committee’s statutory mandate, they may be relevant to the interpretation and application of the rights contained in the seven treaties specifically listed in the Human Rights (Parliamentary Scrutiny) Act 2011. In this context it is relevant that a number of the human rights treaties explicitly provide that the inclusion of rights in the treaty and the level of protection afforded by it is not intended to prejudice more extensive protection of those rights under national law or other international instruments: see, eg, ICCPR, article 5(2); ICESCR, article 5(2).

[3]          See the Human Rights Committee’s General Comment No 34 (2011) on article 19 of the ICCPR, paras 14-15.

[4]          See proposed new clause 2A of Schedule 6 to the Broadcasting Services Act 1992.

[5]          Explanatory memorandum, p 7.

Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013

[1]          Statement of compatibility, p 5.

[1]          Customs Administration Act 1985; Criminal Code Act 1995; Law Enforcement Integrity Commissioner Act 2006.

[2]          Statement of compatibility, p 3.

[3]          Customs Act 1901, s 269SM (1).

Export Market Development Grants Amendment Bill 2013

[1]          Explanatory memorandum, p 2.

[2]          Explanatory memorandum, p 2.

[3]          Export Developments Grants Act 1997, section 75.

[4]          Explanatory memorandum, item 10.

[5]          Proposed new sections 79B and 79C.

[6]          Proposed new section 101(1)(bc.

[7]          Guidelines, clause 3.2.

[8]          Guidelines, clause 3.3.

[9]          Guidelines, clause 3.4.

[10]        Guidelines, clause 3.5.

[11]        Guidelines, clause 3.6.

Fair Work (Registered Organisations) Amendment (Towards Transparency) Bill 2013

[1]          See PJCHR, First Report of 2013, p 83.

Family Assistance and Other Legislation Amendment Bill 2013

[1]          Statement of compatibility, p 1.

[2]          Explanatory memorandum, p 1.

[3]          Explanatory memorandum, p 2.

Higher Education Support Amendment (Asian Century) Bill 2013

[1]          Proposed new section 121-5 (1) of the Higher Education Support Act 2003, to be inserted by clause 15 of the bill.

[2]          Statement of compatibility, p 4.

[3]          Ibid, p 5.

[4]          Proposed new section 121-5 (2) of the Higher Education Support Act 2003, to be inserted by clause 15 of the bill.

[5]          Australian Government, Australia in the Asian Century – White Paper, October 2012, p 290-291.

[6]          Ibid, p 16.

[7]          CESCR, General Comment No 20, para 7.

[8]          Ibid, para 13.

[9]          See the general discussion in CESCR, General Comment No 20, paras 27-35 (the categories discussed there are not exhaustive of the category of ‘other status’).

[10]        Statement of compatibility, p 4.

[11]        The White Paper also notes that Australia’s engagement with certain Latin American countries is a matter of potential significance to the national interest and there will be further inquiries to determine whether there are benefits in Australia’s joining the Pacific Alliance within which ‘Australia could form a connecting rod between open trading countries of Latin America and the markets of Asia that might facilitate an open trade agreement.’ Facility in and familiarity with the principal languages of Latin America would appear to be important to the performance of any such role.

Higher Education Support Amendment (Further Streamlining and Other Measures) Bill 2013

[1]          Statement of compatibility, p 2.

[2]          Statement of compatibility, p 2.

[3]          Statement of compatibility, p 2.

[4]          Explanatory memorandum, Notes on clauses, Schedule 5.

Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2013

[1]          Statement of compatibility, p 2.

[2]          Marine Safety (Domestic Commercial Vessel) National Law Bill 2012, Explanatory memorandum, pp 7-9.

[3]          The committee only began its work of examining bills introduced from 18 June 2012.

[4]          See section 7 of the Human Rights (Parliamentary Scrutiny) Act 2011.

[5]          Scrutiny of National Schemes of Legislation: Position Paper by the Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia (1996), http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Bills/Related_Publications/index

[6]          Ibid, Foreword, p 6.

[7]          See, eg, Scrutiny of Acts and Regulations Committee, Water Legislation Amendment (Water Infrastructure Charges) Bill 2011 (Alert Digest No 12 of 2011) [2011] VicSARCAD 66 (25 October 2011) and Practice Note No 3 (26 July 2010).

[8]          Intergovernmental Agreement on Commercial Vessel Safety Reform, 2011, http://www.coag.gov.au/node/53

[9]          Discussion Paper, Marine Safety (Domestic Commercial Vessel) National Law Bill 2012, December 2011, http://www.nationalsystem.amsa.gov.au/documents/Discussion_Paper_National_Law_Bill_2012.pdf

[10]        Marine Safety (Domestic Commercial Vessel) National Law Bill - Consultation Feedback Report, May 2012, http://www.nationalsystem.amsa.gov.au/documents/National_Law_Bill_Consultation_Feedback_Report.pdf

[11]        Statement of compatibility, p 7.

[12]        Explanatory memorandum, p 12.

[13]        See also the committee’s comments on the application of standard provisions to new contexts in relation to the Regulatory Powers (Standard Provisions) Bill 2012: PJCHR, First Report of 2013, pp 52-53.

Migration Amendment (Reinstatement of Temporary Protection Visas) Bill 2013

[1]          See proposed new section 76D(1)(c) and 76H(1)(c).

[2]          To the extent that there is different treatment of this category of refugees compared to others similarly situated in relation to economic, social and cultural rights, the corresponding guarantee of non-discrimination in the enjoyment of those rights contained in article 2(2) of the International Covenant on Economic, Social and Cultural Rights would also apply.

Royal Commissions Amendment Bill 2013

[1]          Letters Patent for the Royal Commission into Institutional Responses to Child Sexual Abuse, S No 12 of 2013, 11 January 2013, http://www.comlaw.gov.au/Details/C2013G00083/Download

[2]          Statement of compatibility, p 2.

[3]          Explanatory memorandum, p 1.

[4]          Statement of compatibility, p 3.

[5]          Statement of compatibility, p 3.

[6]          Statement of compatibility, p 3.

[7]          Statement of compatibility, p 3.

[8]          Australian Law Reform Commission, Making Inquiries: A New Statutory Framework (ALRC Report 111). The New Zealand Law Commission has also recently explored a number of the same issues in the context of the New Zealand law and practice relating to royal commissions and official inquiries.

[9]          ALRC, ‘Royal Commissions and official inquiries’, http://www.alrc.gov.au/inquiries/royal-commissions-and-official-inquiries.

[10]        Human Rights (Parliamentary Scrutiny) Act 2011, section 7(b).

[11]       Section 6O(1) provides:

(1) Any person who intentionally insults or disturbs a Royal Commission, or interrupts the proceedings of a Royal Commission, or uses any insulting language towards a Royal Commission, or by writing or speech uses words false and defamatory of a Royal Commission, or is in any manner guilty of any intentional contempt of a Royal Commission, shall be guilty of an offence.

Penalty: Two hundred dollars, or imprisonment for three months.

[12]        Royal Commissions Act 1902, section 6O(2).

[13]        ALRC, Making Inquiries: A New Statutory Framework, paras 20.86.

[14]        Ibid, paras 20.51-20.53.

[15]        Ibid, paras 20.54-20.55.

[16]        See, eg, Kyprianou v Cyprus (2007) 44 EHRR 27 (App No 73797/01) (Grand Chamber decision).

[17]        See Law Reform Commission of Western Australia, Discussion Paper 1 on Report on the Law of Contempt (2003) 7-8.

[18]        See also the discussion of continuing concerns, even taking into account the qualifications on summary procedures brought about by case law and legislative regulation, Law Reform Commission of Western Australia, Report on Review of the Law of Contempt, Project No 93, June 2003, 71-72.

[19]        Article 6(1) provides ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...’.

[20]        Kyprianou v Cyprus (2007) 44 EHRR 27 (App No 73797/01) (Grand Chamber decision), paras [125] to [128].

[21]        ALRC, Making Inquiries: A New Statutory Framework, Recommendation 20-5.

[22]        ALRC, Making Inquiries: A New Statutory Framework, Recommendation 20-4.

[23]        Royal Commissions Act 1902, section 4.

[24]        ALRC, Making Inquiries: A New Statutory Framework, para 11.48. See also Recommendation 11-3.

Small Business Commissioner Bill 2013

[1]          See articles 14 and 17 of the International Covenant on Civil and Political Rights and article 6 of the International Covenant on Economic, Social and Cultural Rights.

[2]          See subclause 13(7).

[3]          See subclause 13(8).

[4]          Article 14(3)(g) of the International Covenant on Civil and Political Rights (ICCPR) provides that a person charged with a criminal offence is not to be 'compelled to testify against himself or to confess guilt'.

[5]          As the offence provision in subclause 13(6) only applies to a failure to comply with a notice issued under subclause 13(3), not notices issued under subclauses 13(1).

Tax and Superannuation Laws Amendment (2013 Measures No. 1) Bill 2013

[1]          In particular, proposed new sections 66A, 66B and 66C.

[2]          See PJCHR, First Report of 2013, paras 1.269 to 1.278.

[3]          The Division already applies to the mineral resources rent tax, as a result of the Mineral Resources Rent Tax Act 2012.

[4]          See paras 1.220 -1.228 below.

Tax Laws Amendment (Countering Tax Avoidance and Multinational Profit Shifting) Bill 2013

[1]             Explanatory memorandum, paras 1.131-1.137 (Schedule 1); Explanatory memorandum, paras 7.22-7.29 (Schedule 2).

[2]          Proposed new sections 284-150 (4).

[3]          Jussila v Finland (2006) 45 EHRR 900 (European Court of Human Rights); Janosevic v Sweden (Application no. 34619/97), European Court of Human Rights, judgment of 23 July 2002. See also Green Island Promotions Ltd v Revenue & Customs [2011] UKFTT 696 (TC) (2 November 2011).

[4]          Jussila v Finland (2006) 45 EHRR 900, para 38 (European Court of Human Rights).

Therapeutic Goods Amendment (Pharmaceutical Transparency) Bill 2013

[1]          Explanatory memorandum, p 2.

Bills unlikely to raise human rights incompatibility

[1]          PJCHR, Seventh Report of 2012, pp 6-8.

[2]          Schedule 1, p 61 of the bill.

[3]          See for example, PJCHR, Seventh Report of 2012, pp 6-8.

Australian Capital Territory (Self-Government) Amendment Bill 2013

[1]          See General Comment No 25 of the UN Human Rights Committee in relation to article 25 guarantees: 'Citizens may participate directly by taking part in popular assemblies which have the power to make decisions about local issues or about the affairs of a particular community and in bodies established to represent citizens in consultation with government.' (para 6).

[2]          Standing Committee on Administration and Procedure, Review of the Australian Capital Territory (Self-Government Act 1988 (Cwlth), August 2012, Report 5.

Completion of Kakadu National Park (Koongarra Project Area Repeal) Bill 2013

[1]          UNESCO World Heritage Committee, Decision (Mixed Properties - Examination of minor boundary modifications - Kakadu National Park (Australia)), 35COM 8B.49, Thirty-fifth session, Paris, UNESCO Headquarters, 19-29 June 2011, WHC-11/35.COM/20, 244-245 (2011).

[2]          See article 1 of the International Covenant on Civil and Political Rights (ICCPR) and article 1 of International Covenant on Economic, Social and Cultural Rights (ICESCR), and article 27 of ICCPR and article 15 of ICESCR.

Export Finance and Insurance Corporation Amendment (Finance) Bill 2013

[1]          Explanatory memorandum, p 2.

Marriage Equality Amendment Bill 2013

[1]          House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory Report on the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012, 18 June 2012.

[2]          Senate Legal and Constitutional Affairs Legislation Committee, Report on the Marriage Equality Amendment Bill 2010, 25 June 2012.

[3]          See, eg, Young v Australia, UN Human Rights Committee, Communication No. 941/2000 (2003); X v Austria, App no 19010/07, European Court of Human Rights, Grand Chamber, 19 February 2013; Atala v Chile, Inter-American Court of Human Rights, 24 February 2012.

[4]          See, eg, Joslin v New Zealand, UN Human Rights Committee, Communication No 902/1999 (2002), and Schalk and Kopf v Austria, App no 30141/04, European Court of Human Rights, 24 June 2010. The issues are discussed in detail in Senate Legal and Constitutional Affairs Legislation Committee, Report on the Marriage Equality Amendment Bill 2010, 25 June 2012. Majority report, paras 2.12 to 2.33 and Dissenting report, paras 1.63 to 1.72.

[5]          Australian Human Rights Commission, Position Paper on Marriage Equality (2012), p 3.

[6]          See the discussion of this point in House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory Report on the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012, 18 June 2012, paras 4.56 to 4.59.

[7]          Schedule, clause 6 of the bill.

Minerals Resource Rent Tax Amendment (Protecting Revenue) Bill 2013

[1]          See explanatory memorandum to the bill.

Superannuation Legislation Amendment (Reform of Self Managed Superannuation Funds Supervisory Levy Arrangements) Bill 2013

[1]          Statement of compatibility, para 1.32

The committee has sought further information in relation to the following legislative instruments - Marine Order 95 (Marine pollution prevention – garbage) 2013

[1]          Clause 14.

[2]          Clause 15(1).

[3]          Clause 14.

[4]          Clause 15(3).

[5]          See section 6 of the definition of 'penal provision' which states that a penal provision 'means a penal provision for section 4 of the Protection of the Sea (Prevention of Pollution from Ships) (Orders) Regulations 1994. Regulation 4 provides that a person must not fail to comply with an order, subject to 50 penalty units, and this offence 'is an offence of strict liability'.