Footnotes
Executive Summary
[1] Extradition (Convention
for the Suppression of Acts of Nuclear Terrorism) Regulation 2012, pp 149-160
[2] Third Report of 2013, pp
xii-xiii, p. 29 and p. 42
[3] Extradition (Convention
for the Suppression of Acts of Nuclear Terrorism) Regulation 2012, Extradition
(Cybercrime) Regulation 2013 and Extradition (Piracy against Ships in Asia)
Regulation 2013, pp 149-160 and Mutual Assistance in Criminal Matters
(Cybercrime) Regulation 2013, pp 167-171
- Bills requiring further information to determine human rights compatibility
[1] Statement of
compatibility, p. 3.
[2] Statement of
compatibility, p. 2.
Australia Council (Consequential and Transitional Provisions) Bill 2013
[1] Item 14 of the bill read together
with section 3 of schedule 2 of the Commonwealth Authorities and Companies
Act 1997.
[2] Item
14(3) of the bill.
[3] See
for example, PJCHR, First Report of 2013, paras 1.269 to 1.278.
[4] In
determining whether the imposition of a penalty for particular conduct involves
determination of a ‘criminal charge’, international jurisprudence has
identified the following factors to be taken into account: the classification
of the act in domestic law, the nature of the offence, the purpose of the
penalty, and the nature and the severity of the penalty. Classification as
‘civil’ under Australian law is not determinative. Where a prohibition is
general in application, where the penalty is punitive and intended to deter
(rather than award compensation for loss), and any financial penalty is
significant, it may well be classified as involving a criminal charge and
penalty for the purposes of article 14 of the ICCPR.
[5] Item 14(2)(b).
Corporations Amendment (Simple Corporate Bonds and Other Measures) Bill 2013
[1] Schedule 2, item 1,
subsections 923C(1) and 923C(4)(a)(i).
[2] Schedule 2, item 1,
subsection 923C(4)(a)(iii). The meaning of the phrase 'like import' is not
defined in the bill but the explanatory memorandum explains that:
[3] Schedule
2, item 1, subsection 923C(4)(a)(ii).
[4] Schedule
2, item 1, subsection 923C(2).
[5] Schedule 2, item 1,
subsection 923C(3). The penalty for individuals who contravene the requirement
will be 10 penalty units per day or part day for each day the offence is
committed. The penalty for corporations will be 50 penalty units per day or
part day for each day the offence is committed.
[6] These
are: (a) for respect of the rights or reputations of others; or (b) for the
protection of national security, public order, or public health or morals.
[7] Corporations Act 2001, sections 1308(4) and 1309(2).
[8] Corporations Act 2001, sections 1308(4) and 1309(2).
[9] Schedule
1, items 52 and 53.
Corporations and Financial Sector Legislation Amendment Bill 2013
[1] The Corporations Act
2001 (the Corporations Act), the Payment Systems and Netting Act 1998,
the Mutual Assistance in Business Regulation Act 1992, the Australian
Securities and Investments Commission Act 2001, the Reserve Bank Act
1959, the Clean Energy Regulator Act 2011 and the Carbon
Credits (Carbon Farming Initiative) Act 2011
[2] Explanatory memorandum, p
3.
[3] Statement of
compatibility, para 2.3, p. 32.
[4] Statement of
compatibility, paras 2.4-2.5.
[5] Explanatory memorandum,
paras 1.30-1.32.
[6] See item 31 of Schedule 1,
Part 5, proposed new subsection 79A(5).
[7] Explanatory memorandum,
para 1.33-1.34.
[8] Clause 41. See explanatory
memorandum, para 1.39.
[9]
See, eg, in relation to
insider trading, the judgment of the Hong Kong Court of Final Appeal in Koon
Wing Yee v Insider Dealing Tribunal [2008] HKCFA 22, (2008)
11 HKCFAR 170 (judgment
of Hong Kong’s highest court delivered by Sir Anthony Mason NPJ, he former
Chief Justice of the High Court of Australia.
Court Security Bill 2013
[1] See articles 14 (access to
justice), 9 (liberty), 12 (freedom of movement), 14 (presumption of innocence),
17 (privacy), 27(right to culture) of the International Covenant on Civil and
Political Rights and article 15 (right to culture) of the International
Covenant on Economic, Social and Cultural Rights.
[2] Clause 28(3)(b)(i).
[3] Explanatory memorandum, pp
27-28.
[4] Including the Family Court
of Australia and the Family Court of Western Australia.
[5] Clause 41 of the Court
Security Bill 2013.
[6] Clause 46 of the Court
Security Bill 2013.
[7] Clause 43 of the Court
Security Bill 2013.
[8] Clause 42(3) of the Court
Security Bill 2013.
[9] Clause 43(1)(b) of the
Court Security Bill 2013.
[10] Clause 44 of the Court
Security Bill 2013.
[11] Statement of compatibility
to the Court Security Bill, p. 9.
[12] Attorney-General's
Department, A Guide to Framing Commonwealth Offences, Infringement Notices
and Enforcement Powers, September 2011 edition, p. 50.
[13] See Schedule 1, item 1.
[14] Statement of compatibility
to the Court Security (Consequential Amendments) Bill, p.3.
Customs Amendment (Prohibition of Certain Coal Exports) Bill 2013
[1] UN Committee on Economic,
Social and Cultural Rights, General Comment No. 18 (2005), paras 4 and 31.
[2] UN Committee on Economic,
Social and Cultural Rights, General Comment No. 15 (2002), para 3.
[3] UN Committee on Economic,
Social and Cultural Rights, General Comment No. 15 (2002), para 8.
Customs and AusCheck Legislation Amendment (Organised Crime and Other Measures) Bill 2013
[1] Statement of
compatibility, p. 7.
[2] See proposed new section
102F of the Customs Act 1901, in Schedule 1, Part 2 of the bill.
[3] Statement of
compatibility, p. 8.
[4] Statement of
compatibility, p 7.
[5] Statement of
compatibility, p 11.
[6] Statement of
compatibility, p 14.
[7] Statement of
compatibility, p 10.
[8] Statement of
compatibility, p 10.
[9] Statement of
compatibility, p 14.
[10] Contained in article 26 of
the ICCPR and article 2(2) of the ICECSR in conjunction with article 6 of the
ICECSR.
[11] Statement of compatibility,
pp 7-87.
[12] Statement of compatibility,
p 8.
[13] As defined in subsection
35(1) of the Australian Security Intelligence Organisation Act 1979.
[14] Auscheck Act 2007,
sections 5 and 8.
[15] Proposed new paragraph 8(3)
of the Auscheck Act 2007 , Schedule 2, Part 1 of the bill.
[16] See proposed new subsection
4(3) of the Auscheck Act 2007, Schedule 2, Part 1 of the bill.
[17] Statement of compatibility,
p 9.
[18] Statement of compatibility,
p 9.
[19] Statement of compatibility,
p 9.
[20] Statement of compatibility,
p 9.
[21] See new section 10(3)(b) of
the Auscheck Act 2007, in Schedule 2, Part 1, item 21 of the bill.
[22] Statement of compatibility,
p 12.
[23] Statement of compatibility,
p. 12.
[24] In the form of a new 136(2A)
of the Australian Securities and Investments Commission Act 2001,
proposed to be inserted by the Corporations and Financial Sector Legislation
Amendment Bill 2013.
Health Insurance Amendment (Medicare Funding for Certain Types of Abortion) Bill 2013
[1]
The committee notes
that current international human rights law (including the Convention on the
Rights of the Child) does not recognise a foetus as a person or individual who
is the holder of human rights under the principal UN human rights treaties.
[2] Statement of
compatibility, p. 1.
[3]
See the Committee’s
concluding comments on China, UN Doc. CEDAW/C/CHN/CO/6,
paras 17-18 and 21 (2006), and India, UN Doc CEDAW/C/IND/CO/3, paras 38-39
(2007).
[4] UN Economic, Social and
Cultural Rights Committee, General Comment No. 14, (2000), para 8.
[5] UN Economic, Social and
Cultural Rights Committee, General Comment No. 14, (2000), para 12(b)(iii).
[6] See explanatory memorandum
at p. 1.
[7] Explanatory memorandum, p.
1.
[8] See UN Economic, Social
and Cultural Rights Committee, General Comment No. 19, (2008), para 2.
[9] UN Economic, Social and
Cultural Rights Committee, General Comment No. 19, (2008), para 13.
Military Justice (Interim Measures) Amendment Bill 2013
[1] [2009] HCA 29.
[2] A bill to establish an
Australian Military Court in conformity with Chapter III of the Constitution is
currently before the Parliament. The Military Court of Australia Bill 2012 was
introduced into Parliament on 21 June 2012. As that bill is still being
considered by the Parliament, it has necessitated the introduction of this
current bill to again extend the existing interim measures.
[3] UN HRC, General Comment No
32, para 19.
[4] UN HRC, General Comment No
32, para 22.
[5] UN HRC, General Comment No
32, paras 19-20 (2007).
Native Title Amendment Bill 2012
[1] Western Australia v
Ward (2002) 213 CLR 1.
[2] Explanatory statement, p.
20.
[3] Statement of
compatibility, p. 5.
[4] Statement of
compatibility, p. 4.
[5] See, for example, the submission by
the National Congress of Australia's First Peoples, Submission 24, p.
10, to the House Standing Committee on Aboriginal and Torres Strait Islander
Affairs.
[6] Mr Kym Duggan, AGD, Committee
Hansard, 6 March 2013, p. 34, as quoted in the Senate Legal and Constitutional
Affairs Legislation Committee report on Native Title Amendment Bill 2012, March
2013, p. 20.
[7] Western Australia v
Taylor (1996) 134 FLR 211 at 224-5.
[8] Senate Legal and
Constitutional Affairs Legislation Committee report on Native Title Amendment
Bill 2012, March 2013, recommendation 1 at para 3.91, p.37.
[9] See House Standing
Committee on Aboriginal and Torres Strait Islander Affairs, Advisory Report:
Native Title Amendment Bill 2012, Coalition Minority Report, p. 52.
[10] Statement of compatibility,
p. 4.
[11] Proposed new subsection
24CH(5) of the bill.
[12] Senate Legal and
Constitutional Affairs Legislation Committee report on Native Title Amendment
Bill 2012, March 2013, recommendation 2 at paras 3.2-3.3, p.37.
[13] Current section 24CK of the Native
Title Act 1993.
[14] See Senate Legal and
Constitutional Affairs Legislation Committee report on Native Title Amendment
Bill 2012, March 2013, pp 32-33.
[15] United Nations Special
Rapporteur on the Rights of Indigenous Peoples, Report on the situation of
indigenous peoples in Australia A/HRC/15/37/Add.4 (1 June 2010), p.8 para
26.
[16] Statement of compatibility,
p. 5
[17] United Nations Special
Rapporteur on the Rights of Indigenous Peoples, Report on the situation of
indigenous peoples in Australia A/HRC/15/37/Add.4 (1 June 2010), p. 9 para
29.
Public Interest Disclosure Bill 2013
[1] Clause 10.
[2] See clauses 19 and 20.
[3] Clause 25.
[4] Clause 26, Table 2, Item
2, Column 3.
[5] Clause 29.
[6] The committee has
addressed a number of the human rights issues relating to whistleblower
legislation in its consideration of the Public Interest Disclosure
(Whistleblower Protection) Bill 2012: see PJCHR, Seventh Report of 2012,
paras 1.122 to 1.131.
[7] Freedom of expression: article 19 of
the International Covenant on Civil and Political Rights (ICCPR); right to
privacy: article 17 of the ICCPR; right to work and just and favourable
conditions: articles 6(1), 7 and 8(1)(a) of the International Covenant on
Economic, Social and Cultural Rights (ICESCR).
[8] Clause 26(3)(a)(iii).
[9] Clause 26(3)(c).
[10] Clause 26(3).
[11] Clause 26, Table, Item 2,
Column 3, para (h). This restriction also operates in relation to an emergency
disclose: Table, Item 3, Column 3, para (f).
[12] Clause 26, Table, Item 2,
Column 3, para (i). Intelligence agency is defined to mean the Australian
Secret Intelligence Service, the Australian Security Intelligence Organisation,
the Defence Imagery and Geospatial Organisation, the Defence Intelligence
Organisation, the Defence Signals Directorate, or the Office of National
Assessments (clause 8).
[13] Clause 41.
[14] Clause 41(1)(a).
[15] Clause 41(1)(c).
[16] Clause 33.
[17] Explanatory memorandum, p
18.
[18] Clause 65(2).
Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013
[1] Joint Media Release by the
Attorney-General and Minister for Finance and Deregulation, ‘New
anti-discrimination laws to cover sexual orientation, gender identity and
intersex status’, 20 March 2013.
[2] See
submission no 595, Parliamentary Joint Committee on
Human Right
[3] Statement
of compatibility, p. 5.
[4] Statement of compatibility
p. 5.
[5] Sex
Discrimination Act 1984, sections 37 and 38.
[6] Explanatory
memorandum, p. 20, para 71.
[7] Submission
No 130, Attorney-General's
Department, Supplementary Submission (PDF
85KB) to the Senate Legal and Constitutional Affairs
Committee’s inquiry in the exposure draft Human Rights and Anti-Discrimination
Bill.
[8] Sex
Discrimination Act 1984, section 39.
[9] Sex
Discrimination Act 1984, section 42.
[10] Item
60, Schedule 1, new section 43A.
[11] Statement of compatibility,
pp 6-7.
Student Identifiers Bill 2013
[1] Explanatory memorandum, p.
11.
[2] Statement of
compatibility, p 5.
[3] See clause 53(1) of the
bill.
[4] Clause 53(3) of the bill.
[5] Statement of
compatibility, p 5.
[6] Statement of
compatibility, pp. 5-6.
[7] Statement of
compatibility, p. 6.
[8] Statement of
compatibility, p. 6.
[9] Statement of
compatibility, p. 6.
[10] See in particular statement
of compatibility, pp 7-8.
[11] As set out in Division 4 of
Part 2 of the bill.
Tax and Superannuation Laws Amendment (2013 Measures No. 2) Bill 2013
[1] Amends the Income Tax Assessment Act 1997.
[2] Amends the Income Tax Assessment Act 1997, Tax
Laws Amendment (2011 Measures No. 1) Act 2011 and Tax Laws Amendment (2012
Measures No. 1) Act 2012.
[3] Amends the A New Tax System (Goods and Services
Tax) Act 1999.
[4] Amends the Income Tax Assessment Act 1997. The income tax law allows income
tax deductions for taxpayers who make gifts of $2 or more to entities which are
defined or prescribed as a deductible gift recipient.
[5] Amends the Superannuation Industry
(Supervision) Act 1993.
[6] Amends the Superannuation (Government
Co-contribution for Low Income Earners) Act 2003.
[7] Amends the Income Tax Assessment Act 1936 and Income Tax Assessment Act
1997.
[8] Amends the Income Tax Assessment Act 1997 and Tax Laws Amendment (Taxation
of Financial Arrangements) Act 2009.
[9] Statement of
compatibility, page 20, para 1.45.
[10] Statement of compatibility, pages 20-21, paras 1.53-1.54.
[11] See
explanatory memorandum, paras 2.2 – 2.9.
[12] Explanatory memorandum, page
40, para 5.12.
[13] Statement of compatibility, p. 49, paras 5.55 and 5.58.
[14] Statement of
compatibility, p. 49, para 5.60.
[15] Statement of compatibility, p. 49, para 5.58.
[16] Schedule 5, item 4,
subsection 108A(5) of the Superannuation Industry (Supervision) Act 1993.
[17] Explanatory
memorandum, p. 42, para 5.24.
[18] Explanatory
memorandum, p. 52, paras 6.8 - 6.9.
[19] A
child-housekeeper offset relates to a child who is a person’s full-time
housekeeper (regardless of their age).
[20] Explanatory
memorandum, p. 60, paras 7.19 - 7.20.
[21] Explanatory
memorandum, p. 61, para 7.25.
[22] Statement
of compatibility, p.72, para 7.81.
[23] Statement
of compatibility, p. 72, para 7.83.
[24] Statement
of compatibility, p.72, para 7.76.
[25] Statement
of compatibility, p.72, para 7.80.
Therapeutic Goods Amendment (2013 Measures No. 1) Bill 2013
[1] Statement of
compatibility, p. 4.
[2] Statement of
compatibility, pp 4-5.
[3] Statement of
compatibility, p 5.
[4] Contained in proposed new subsection
9G(2) of the Act.
[5] Proposed new paragraph
9G(2)(d).
[6] Explanatory memorandum, pp
45-47.
[7] Proposed new subsection
9G(4).
[8] Explanatory memorandum, pp
45-47.
[9] Explanatory memorandum, p
46.
Veterans' Affairs Legislation Amendment (Military Compensation Review and Other Measures) Bill 2013
[1] See article 9 (right to
social security) and article 12 (right to health) of the International Covenant
on Economic, Social and Cultural Rights; the Convention on the Rights of
Persons with Disabilities; and article 17 (right to privacy) of the
International Covenant on Civil and Political Rights.
[2] Explanatory memorandum, p.
8.
[3] Statement of compatibility
contained within the explanatory memorandum, p. 71.
[4] Statement of compatibility
contained within the explanatory memorandum, p. 78.
[5] Explanatory memorandum, p.
47.
[6] Statement of compatibility
contained within the explanatory memorandum, p. 79.
[7] Gerhardy v Brown [1985] HCA 11 (1985) 159 CLR 70. - Bills unlikely to raise human rights incompatibility
[1] As guaranteed by article 1 of the
International Covenant on Civil and Political Rights (ICCPR) (the right is also
guaranteed by article 1 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR)).
[2] The right to equality and
non-discrimination is said to be guaranteed by article 2 of the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and
article 26 of the ICCPR (to which may be added article 2(1) of the ICCPR and
article 2(2) of the ICESCR), and the right to enjoy and benefit from culture is
said to be recognised in article 27 of the ICCPR (to which may be added article
15(a) of the ICESCR).
[3] Delivered in the House of
Representatives on 21 March 2013.
[4] Statement of compatibility
p 2.
[5] Statement of compatibility, p 2
(citing UN Committee on the Elimination of Racial Discrimination, General
Recommendation No 32 on the Meaning and Scope of Special Measures in the
International Convention on the Elimination of All Forms of Racial Discrimination
(2009), para 11).
[6] 'Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.'
[7] Gerhardy v Brown [1985] HCA 11 (1985) 159 CLR 70.
[8] The assumption of the court in Gerhardy
v Brown that if rights conferred on traditional Aboriginal owners of land
to exclude non-Indigenous persons from their land were not characterised as a
‘special measure’, then the legislation would have been racially discriminatory
under the RDA and the ICERD, has been criticised by commentators, see Wojciech Sadurski, ‘Gerhardy
v. Brown v. The Concept of Discrimination: Reflections on the Landmark
Case that Wasn't’ (1986) 11 Sydney Law Review 5 and Jonathan Hunyor, ‘Is
it time to re-think special measures under the Racial Discrimination Act? The
case of the Northern Territory Intervention’ (2009) 14(2) Australian Journal
of Human Rights 39.
[9] See CERD, General
Recommendation, para 8 (2009).
[10] CERD, General Recommendation
No 32, para 15 (2009) (emphasis added, footnotes omitted).
Australia Council Bill 2013
[1] See
statement of compatibility, page 4.
[2] Statement
of compatibility, page 4.
[3] Proposed
section 4 of the bill.
Aviation Transport Security Amendment (Inbound Cargo Security Enhancement) Bill 2013
[1] Statement of
compatibility, p. 2.
[2] Attorney-General's
Department, A Guide to Framing Commonwealth Offences, Infringement Notices
and Enforcement Powers, September 2011 edition, p. 23.
[3] See the definition of
'aircraft operator' and 'aviation industry participant' in section 9 of the Aviation
Transport Security Act 2004.
[4] Statement of
compatibility, p. 3.
Environment Protection and Biodiversity Conservation Amendment (Great Barrier Reef) Bill 2013
[1] The World Heritage
Committee is responsible for implementing the UNESCO Convention Concerning the
Protection of the World Cultural and Natural Heritage, to which Australia is a
party. It examines reports on the state of conservation of inscribed properties
and asks States Parties to take action when properties are not being properly
managed. It also decides on the inscription or deletion of properties on the
List of World Heritage in Danger.
[2] The committee notes that
the references to the relevant UNESCO decision in the explanatory memorandum
erroneously refer to 'Decision 36 COM 7B.B' instead of 'Decision 36 COM
7B.8': http://whc.unesco.org/en/decisions/4657/
Fair Work Amendment Bill 2013
[1] Explanatory memorandum, p.
2.
[2] Statement of
compatibility, p. 4.
Indigenous Education (Targeted Assistance) Amendment Bill 2013
[1] Article 13 of the International Covenant
on Economic, Social and Cultural Rights (ICESCR), also covered by article 28 of
the Convention on the Rights of the Child.
[2] Statement of
compatibility, p 5.
[3] Adequate standard of living is
contained in article 11 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR) and article 27 of the Convention on the Rights of the
Child (CRC); the right to health is contained in article 12 of the ICESCR and
article 24 of the CRC.
[4] CERD, General
Recommendation No 32, para 8 (2009).
[5] CERD, General
Recommendation No 32, paras 14-15 (2009).
[6] Gerhardy v Brown (1985)
159 CLR 70, 133 (Brennan J). See also CERD, General Recommendation No 32, para
16 (2009).
[7] Statement of
compatibility, p 5.
[8] Statement of
compatibility, p 5.
Marriage Amendment (Celebrant Administration and Fees) Bill 2013
[1] The right to freedom of religion is
contained in article 18 of the International Covenant on Civil and Political
Rights (ICCPR) and the right to equality and non-discrimination (including
non-discrimination in the enjoyment of the right to freedom of religion) is
contained in article 2(1) and 26 of the ICCPR.
[2] Statement of
compatibility, p 6.
National Measurement Amendment Bill 2013
[1] Articles 12, 9, 17 and 14 of
the International Covenant on Civil and Political Rights.
Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures No. 2) Bill 2013
[1] Right
to work: article 7 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR); right to privacy: article 17 of the International
Covenant on Civil and Political Rights (ICCPR); fair hearing/minimum criminal
guarantees: article 14 of the ICCPR.
[2] Statement of
compatibility, p 6.
[3] Statement of
compatibility, p 6.
[4] Statement of compatibility, p 7.
[5] Statement of
compatibility, p 7.
[6] Statement of
compatibility, p. 9.
[7] Statement of
compatibility, pp 9-10.
[8] That is, the CEO of NOPSEMA or the
Secretary of the relevant Department.
Referendum (Machinery Provisions) Amendment Bill 2013
[1] UN Human Rights Committee,
General Comment No. 25: The right to participate in public affairs, voting
rights and the right of equal access to public service, (1996), para 6.
-
[1] Extradition (Convention
for the Suppression of Acts of Nuclear Terrorism) Regulation 2012 pp149-160
The committee has sought further information in relation to the following legislative instruments - Australian Charities and Not-for-profits Commission Amendment Regulation 2013 (No. 1)
[1] See Part 4-2, Division 100
of the Act.
Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Zimbabwe) Amendment List 2013
[1] Autonomous Sanctions
Act 2011, section 10.
[2] Autonomous Sanctions
Regulations 2011, regulation 6, item 8.
[3] See Migration
Regulations 1994, Public Interest Criterion 4003(c) and regulation
2.43(1)(aa).
Customs (Drug and Alcohol Testing) Regulation 2013
[1] See PJCHR, Fifth Report
of 2012, pp 12-21; Response from the Minister for Home Affairs on the bill
and the committee's response to this, Seventh Report of 2012, p. 44 and
Appendix 1 and First Report of 2013, pp 138-147.
[2] Statement of
compatibility, p. 3.
[3] See the definition of
'body sample' in section 3 of the Customs Administration Act 1985.
[4] See letter from the Hon
Jason Clare MP, Minister for Home Affairs, to Mr Harry Jenkins, dated 22
February 2013, set out in the PJCHR, Third Report of 2013, p. 121-124 (at p. 2
of the letter).
[5] S and Marper v UK,
ECtHR, 4 December 2008, paras 72 and 73.
[6] S and Marper v UK,
ECtHR, 4 December 2008, para 71.
[7] PJCHR, Fifth report of
2012, p 17.
[8] See letter from the Hon
Jason Clare MP, Minister for Home Affairs, to the PJCHR,
29 October 2012, pp 3-4, published in Appendix 1 to the PJCHR Seventh
Report of 2012.
[9] See subsections 10(6) and
16(2).
[10] See section 16G of the Customs
Administration Act 1985.
[11] See section 16G of the Customs
Administration Act 1985.
[12] See definition of
'prohibited drug' in section 3 of the Customs Administration Act 1985 as
amended by the Law Enforcement Integrity Legislation Amendment Act 2012.
[13] PJCHR, Fifth Report of
2012, p. 17.
[14] PJCHR, First Report of
2013, p.138.
Extradition (Convention for the Suppression of Acts of Nuclear Terrorism) Regulation 2012
[1] Statement of Compatibility
to the Extradition (Cybercrime) Regulation 2013, p. 1.
[2] See PJCHR First Report
of 2013, pp 111-112.
[3] See PJCHR Third Report
of 2013, pp 128-132.
[4] See letter from the
Attorney-General to the Chair of the committee, 26 February 2013, as set out
in full at: PJCHR Third Report of 2013, pp 128-132, at p.132.
[5] UN Human Rights Committee,
General Comment No. 20 (1992), para 9.
[6] UN Human Rights
Committee, General Comment No. 31 (2004), para 12.
[7] See Case of Othman (Abu Qatada) v
United Kingdom, European Court of Human Rights, 17/01/2012, paras 258-262
(and the cases cited therein, including Soering v United Kingdom (1989) 11 EHRR 439).
[8] See letter from the Hon
Jason Clare MP, Minister for Home Affairs, to Mr Harry Jenkins MP, dated 22
February 2013, set out in the PJCHR, Third Report of 2013, p. 121-124
(at p. 2 of the letter).
[9] See R v Special Adjudicator ex parte
Ullah [2004] 2 AC
323, per Lord Steyn at [41].
[10] See subsection 19(5) of the Extradition
Act 1988.
[11] See subsection 21A(4) of the
Extradition Act 1988.
[12] Joint Standing Committee on
Treaties, Report 40, Extradition – a review of Australia's law and policy,
August 2001, at para 3.77.
[13] Joint Standing Committee on
Treaties, Report 40, Extradition – a review of Australia's law and policy,
August 2001, at para 3.80.
[14] See sections 15(6), 18(3)
and 19(9A), 21(2B), 21(6)(f)(iv), 32(3), 35(6)(g)(iv), 49C(3).
[15] House of Representatives
Standing Committee Social Policy and Legal Affairs, Advisory report:
Extradition and Mutual Assistance in Criminal Matters Legislation Amendment
Bill 2011, September 2011, at 2.61. That committee recommended 'that the
Australian Government give consideration to removing the presumption against
bail which operates in the Extradition Act 1988 by allowing individuals
to be granted bail only in special circumstances' (see recommendation 2).
[16] Human Rights Committee, Draft
General comment No 35, 28 January 2013, para 39
[17] Explanatory memorandum to
the Extradition and Mutual Assistance in Criminal Matters Legislation
Amendment Act 2012, at para 2.115.
[18] See article 15 of the
Council of Europe Convention on Cybercrime.
Fees Rules 2013
[1] Section 9 of the Human
Rights (Parliamentary Scrutiny) Act 2011 requires statements only for
legislative instruments within the meaning of section 42 of the Legislative
Instruments Act 2003.
[2] See section 7(a) of the Human
Rights (Parliamentary Scrutiny) Act 2011.
Medical Leave Rules 2013
[1] Section 9 of the Human
Rights (Parliamentary Scrutiny) Act 2011 requires statements only for
legislative instruments within the meaning of section 42 of the Legislative
Instruments Act 2003.
[2] See section 7(a) of the
Human Rights (Parliamentary Scrutiny) Act 2011.
[3] Section
2(1) of the rules define a ‘serious health condition’ to include:
(a) a medical
condition, including any notifiable disease that makes the person unfit to
attend the University or to pursue or study a program or course, that:
(i) is likely to physically
endanger the person or any other person; or
(ii) causes or results in
behaviour that might cause the person to harass to a significant extent any
member of the University; or
(iii) causes or results in
behaviour that might cause severe emotional disturbance to any member of the
University; or
(iv) causes or results in
behaviour that might cause the person to disrupt the provision of academic or
general services to any member of the University; or
(v) is of such a nature that
would prevent the person from successfully completing a program or course that
the person is applying for or in which the person is currently enrolled; or
(b) a disability that,
because of the requirements of a relevant program or course, is likely to physically
endanger the person or any other person; or
(c) an illness or
psychiatric condition that causes or results in behaviour that might cause:
(i) the person to harass to a
significant extent any member of the University; or
(ii) severe emotional
disturbance to any member of the University; or
(iii)
the person to disrupt the provision of academic or general services to any
member of the University.
[4] Section
4 of the Rules.
[5] Section
4.7 of the Rules.
[6] Section
4.8 of the Rules.
[7] Section
5 of the Rules.
[8] Section
6 of the Rules.
[9] Section
8 of the Rules.
[10] Section
13 of the Rules.
Migration Legislation Amendment Regulation 2013 (No. 1)
[1] Schedule 4, Item 2,
Regulation 4.11.
[2] Schedule 4, Item 3,
Subregulation 4.17(4).
[3] Schedule 4, Item 12,
Subregulation 4.35B(2).
[4] Schedule 4, Item 11,
Subregulations 4.35(2) and 4.35(3).
Mutual Assistance in Criminal Matters (Cybercrime) Regulation 2013
[1] Statement of compatibility
pp 1-2.
[2] See subsection 8(1A) of
the Mutual Assistance in Criminal Matters Act 1987.
[3] See subsection 8(1B) of
the Mutual Assistance in Criminal Matters Act 1987.
[4] Note also that Australia
has signed and ratified the Second Optional Protocol to the ICCPR Aiming at the
Abolition of the Death Penalty.
[5] See paragraph 8(1)(ca) of
the Mutual Assistance in Criminal Matters Act 1987.
[6] See paragraph 8(2)(c) of
the Mutual Assistance in Criminal Matters Act 1987.
[7] See subsection 15C(2) of
the Mutual Assistance in Criminal Matters Act 1987.
[8] See section 28A of the Mutual
Assistance in Criminal Matters Act 1987.
[9] See subsection 28A(3) of
the Mutual Assistance in Criminal Matters Act 1987 (emphasis added).
[10] See the definition of
'forensic procedure' in section 3 of the Mutual Assistance in Criminal
Matters Act 1987 and section 23WA of the Crimes Act 1914, together
with the definition of 'intimate forensic procedure' and 'non-intimate forensic
procedure'.
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