The committee has deferred its consideration of the following legislative
instruments
Autonomous Sanctions (Designated Persons
and Entities and Declared Persons – Iran) Amendment List 2013 (No. 1)
FRLI:
F2013L01312
Portfolio: Foreign
Affairs
Tabled: House of
Representatives and Senate, 12 November 2013
Autonomous Sanctions Amendment
Regulation 2013 (No. 1)
FRLI: F2013L01447
Portfolio: Foreign
Affairs
Tabled: House of
Representatives and Senate, 12 November 2013
Summary of committee concerns
2.1
The committee reiterates the comments of its predecessor committee in
relation to the Autonomous Sanctions regime and has deferred consideration of
these instruments in greater detail until it has received the government's
response to its request that a review of the sanctions regime be undertaken.
Overview
2.2
The predecessor to this committee (the former committee) discussed the
autonomous sanctions regime in its Sixth and Tenth reports of
2013.[188]
2.3
The Autonomous Sanctions (Designated Persons and Entities and Declared Persons
- Iran) List 2012 sets out a list of persons and entities proscribed by the
Minister under the Regulations. The Autonomous Sanctions (Designated Persons
and Entities and Declared Persons – Iran) Amendment List 2013 (No. 1) gives
effect to the Minister for Foreign Affairs' announcement on 10 January 2013,
relating to increased sanctions on Iran.[189]
The new sanctions include financial and travel restrictions on additional
individuals and entities active in Iran's oil and gas and financial sectors or
related to Iran's weapons of mass destruction proliferation activities.
2.4
The statement of compatibility states that the 'new sanctions include
financial and travel restrictions on additional individuals and entities active
in Iran’s oil and gas and financial sectors or related to Iran’s weapons of
mass destruction proliferation activities.'[190]
The Minister's announcement appears to be foreshadowing amendments to the
regulations which provide that certain goods and services are sanctioned
without authorisation from the Minister.[191]
2.5
The Autonomous Sanctions Amendment Regulation 2013 (No.1) places
additional sanctions on Iran as announced by the former Minister for Foreign
Affairs on 10 January 2013. The regulation expands the scope of existing
measures targeted at trade and investment with Iran to include restrictions on
trade in new categories of goods to be specified in separate instruments. The
regulation amends the sanction laws in Part 3 of the Principal Regulations to
provide that an offence of strict liability applies where relevant conduct is
not authorised by the Minister in the form of a permit.
Compatibility with human rights
2.6
The statement of compatibility accompanying the Autonomous Sanctions
(Designated Persons and Entities and Declared Persons – Iran) Amendment List
2013 (No.1) states that the objective of the instrument is to increase pressure
on Iran to comply with its nuclear non-proliferation obligations and with
United Nations Security Council resolutions and to engage in serious
negotiations on its nuclear program. The statement concludes that the
instrument is compatible with human rights.
2.7
The statement does not identify the human rights engaged by the
instrument, but states that a person or entity subject to designation or
declaration under the Regulations may apply to the Minister for revocation of
that decision and that such decisions are judicially reviewable and explains
the effect of designation on the person or entity's ability to access their
assets.
2.8
In its consideration of the autonomous sanctions regime in its Sixth
Report of 2013 and Tenth Report of 2013, the former committee noted
that:
The effect of designation (which can apply to a person both
in and outside Australia) is that the person's assets (including money held in
bank accounts) are frozen and can only be made available to them if the
Minister grants a permit. A permit will only allow funds to be made available
for basic expenses (such as foodstuffs, rent, medicines and taxes), or where a
payment is legally or contractually required to be made. In addition,
designation under this regime will have flow-on effects so that the Minister
for Immigration and Citizenship will deny the issue of a new visa or cancel an
existing visa issued to a designated person.[192]
2.9
The statement of compatibility accompanying the Autonomous Sanctions
Amendment Regulation 2013 (No.1) states that the objective of the regulation is
to give effect to the Minister's 10 January announcement. The statement notes
that the regulation engages the right to be presumed innocent as the regulation
makes provision for a strict liability offence to apply to relevant conduct
that is not in accordance with a permit.
2.10
The former committee noted the complexity of this policy area and the
need for careful consideration of competing interests. The former committee
also noted the Minister's preparedness to discuss the broader concerns about
human rights compatibility to which autonomous sanctions regimes give rise and
wrote to the Minister asking whether the Department of Foreign Affairs and
Trade might conduct a comprehensive review of the sanctions regime in light of
Australia's international human rights obligations and report back to the
committee in the 44th Parliament. In his response, the former
Minister stated that he had instructed the Department of Foreign Affairs and
Trade to carefully consider the committee's recommendation.
2.11
The committee notes that these instruments appear to raise similar human
rights concerns to the previously discussed instruments and that the former
committee's comments, especially in relation to the autonomous sanctions regime
as a whole, appear to remain valid.
2.12 The committee intends to write to the Minister for Foreign
Affairs to draw her attention to the former committee's consideration of these
matters and its request for a review of the human rights compatibility of the
sanctions regime and to request advice on the progress on this matter. The
committee intends to defer more detailed consideration of these instruments
until it has received the Minister's response.
Charter of the United Nations (Sanctions
– Democratic People's Republic of Korea) Amendment Regulation 2013 (No 1)
FRLI: F2013L01384
Portfolio: Foreign
Affairs
Tabled: House of
Representatives and Senate, 12 November 2013
Summary of committee concerns
2.13
The committee intends to write to the Minister for Foreign Affairs to
seek clarification as to how the instrument is compatible with human rights, in
particular the right to a fair trial and a fair hearing and the right to
privacy. The committee intends to draw the Minister's attention to the
consideration of sanctions regimes by the committee in the 43rd
Parliament and its request for a review of the human rights compatibility of
the sanctions regime.
Overview
2.14
This instrument amends the Charter of the United Nations (Sanctions –
Democratic People's Republic of Korea) Regulations 2008 to give effect to
decisions made by the United Nations Security Council (UNSC) amending sanctions
in relation to the Democratic People's Republic of Korea. The instrument
expands the scope and effect of the sanctions targeted at individuals and
entities listed by the United Nations Security Council, and extends the
existing sanctions to include additional supplies and services.
Compatibility with human rights
2.15
The instrument is accompanied by a short statement of compatibility that
states that it is compatible with human rights.
2.16
In the 43rd Parliament, the predecessor to this committee
(the former committee) noted that sanctions regimes may raise significant human
rights considerations, including the right to a fair trial and a fair hearing
and the right to privacy.[193]
Noting the complexity of this policy area, the committee wrote to the then
Minister for Foreign Affairs asking whether his department might conduct a
comprehensive review of sanctions regimes in light of Australia's international
human rights obligations and report back to the committee in the 44th
Parliament. In his response, the former Minister stated that he had instructed
the Department of Foreign Affairs and Trade to carefully consider the
committee's recommendation.
2.17
The committee notes that this instrument appears to raise similar human
rights concerns to the previously discussed instruments and that the former
committee's comments appear to remain valid.
2.18 The committee intends to write to the Minister for Foreign
Affairs to draw her attention to the former committee's consideration of these
matters and its request for a review of the human rights compatibility of the
sanctions regime and to request advice on the progress on this matter. The
committee intends to defer more detailed consideration of this instrument until
it has received the Minister's response.
Extradition (Vietnam) Regulation 2013
FRLI:
F2013L01473
Portfolio: Attorney-General
Tabled: House of
Representatives and Senate, 12 November 2013
Summary of committee concerns
2.19
The committee has deferred its consideration of this regulation while it
considers human rights concerns raised by its predecessor committee in relation
to the Extradition Act 1988 and related legislation.
Overview
2.20
This regulation brings into effect the Treaty between Australia and
the Socialist Republic of Vietnam on Extradition (the Treaty). It does so
by ensuring that the definition of an 'extradition country' in the Extradition
Act 1988 is taken as including Vietnam.
Compatibility with human rights
Statement of compatibility
2.21
The regulation is accompanied by a statement of compatibility that
states that the instrument does not impact on Australia meeting its human
rights obligations. The statement notes that extradition can engage a range of
human rights, including the right to a fair hearing, the right to liberty, the
right to life and the prohibition on torture and cruel, inhuman or degrading treatment
or punishment and rights to equality and discrimination. The statement states
that Australia's extradition regime contains a number of human rights
safeguards to ensure that Australia meets both international criminal justice
obligations and human rights obligations.
2.22
In its consideration of extradition instruments in the 43rd
Parliament, the predecessor to this committee (the former committee) noted the
importance of Australia having in place the necessary tools to meet its
international criminal justice and cooperation obligations together with its
human rights obligations.[194]
However, the former committee stated that it considered the Extradition Act
1988 to raise serious human rights concerns.[195]
The committee's Tenth Report of 2013 sets out the nature of these
concerns in detail. These include the extent to which executive discretion can
be characterised as a human rights safeguard, the extent to which access to
judicial review is sufficient to render an executive discretion a safeguard and
concerns in relation to fair hearing rights, the right to liberty and the right
to privacy.
2.23
The former committee considered that there may be benefit in a full
review of the human rights compatibility of the Extradition Act and related
legislation and suggested that in the 44th Parliament, the
Parliamentary Joint Committee on Human Rights may wish to determine whether to
undertake such a review.
2.24 The committee intends to defer its detailed consideration of this
regulation while it gives close consideration to the concerns raised by the
former committee and to its suggestion that a full review of the Act and
related legislation be undertaken.
Social Security (Administration)
(Recognised State/Territory Authority - NT Alcohol Mandatory Treatment
Tribunal) Determination 2013
FRLI: F2013L01949
Portfolio: Social
Services
Tabled: House of
Representatives, 21November 2013 and Senate, 2 December 2013
Summary of committee concerns
2.25
The committee has deferred its consideration of this instrument, while
it considers the former committee's recommendation that a 12-month review to
evaluate the latest evidence in order to test the continuing necessity for the
Stronger Futures measures be undertaken in the 44th Parliament.
Overview
2.26
This instrument determines that the NT Alcohol Mandatory Treatment
Tribunal[196]
is a recognised State/Territory authority for the purposes of Part 3B of the Social
Security (Administration) Act 1999. Part 3B of the Act sets out the
various situations in which a person is subject to income management, including
if among other things, an officer or employee of a recognised State/Territory
authority has given the Secretary a written notice requiring that a person be
subject to income management.
2.27
The instrument also revokes the Social Security (Administration)
(Recognised State/Territory Authority – NT Alcohol and Drugs Tribunal)
Determination 2012 that recognised the NT Alcohol and Other Drugs Tribunal,
which preceded the NT Alcohol Mandatory Treatment Tribunal.
Compatibility with human rights
Statement of compatibility
2.28
The instrument is accompanied by a statement of compatibility that
states that it is compatible with a range of rights, including the right to
self-determination;[197]
the right to to equal protection of the law and non-discrimination on the basis
of race or ethnic origin;[198]
the right to social security,[199]
the right to an adequate standard of living;[200]
and the rights of children.[201]
Committee view on compatibility
2.29
In its Eleventh Report of 2013 the predecessor to this committee
(the former committee) considered the Stronger Futures in the Northern
Territory Act 2012 and related legislation. The former committee wrote to
the Minister on 26 June 2013 inviting a response to the report. The committee
notes that a Ministerial response has not yet been received.
2.30
The former committee concluded its report by noting the importance of
continuing close evaluation of measures within the legislation. The former
committee considered that the PJCHR could usefully perform an ongoing oversight
role in this regard and recommended that in the 44th Parliament the
committee should undertake a 12-month review to evaluate the latest evidence in
order to test the continuing necessity for the Stronger Futures measures.
2.31 The committee intends to defer its detailed consideration of this
regulation, while it considers the former committee's recommendation.
Stronger Futures in the Northern
Territory Regulation 2013
FRLI: F2013L01442
Portfolio:
Prime Minister and Cabinet
Tabled: House of
Representatives and Senate, 12 November 2013
Summary of committee concerns
2.32
The committee has deferred its consideration of this regulation, while
it considers the former committee's recommendation that a 12-month review to
evaluate the latest evidence in order to test the continuing necessity for the
Stronger Futures measures be undertaken in the 44th Parliament.
Overview
2.33
This regulation modifies the Associations Act (NT) to enable community
living area landowners to grant leases and licences in community living areas
in respect of land uses and developments that are currently permitted under the
Northern Territory Planning Scheme and to enable such grants for a term of 10
years or less without requiring consent from the relevant Northern Territory
Minister.
2.34
The regulation is made under Part 3 of the Stronger Futures in the
Northern Territory Act 2012, which provides for measures to be taken to
facilitate the granting of individual rights and interests in town camps and
community living areas in the Northern Territory with the aim of promoting
economic development in town camps and community living areas. These measures
are described as special measures for the purposes of the Racial
Discrimination Act 1975. The regulation follows the release of a Discussion
paper on Community Living Areas land reform in the Northern Territory in March 2013
and is substantially the same as an exposure draft regulation released in
conjunction with that discussion paper.
Compatibility with human rights
Statement of compatibility
2.35
The statement of compatibility accompanying the regulation states that
the regulation is compatible with human rights. The statement notes the
criteria for 'special measures' under the International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD):
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 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.[202]
2.36
The statement concludes that the regulation is consistent with these
criteria as:
-
It is being made for the sole purpose of securing adequate
advancement for residents of Aboriginal community living areas and is a first
step in securing land tenure in community living areas;
-
The measure will cease once the special measure objective is
achieved; however, the amendments to the Associations Act (NT) will
remain in force to ensure that the objectives of the special measure are
achieved and to ensure that rights, titles and interests in community living
areas are not adversely affected when the Stronger Futures in the Northern
Territory Act 2012 (the Act) sunsets; and
-
The Act provides for an independent review to assess the
effectiveness of the special measures within 4 years of the Act's commencement
and for the review report to be published and tabled in Parliament.
Committee view on compatibility
2.37
In its Eleventh Report of 2013 the predecessor to this committee
(the former committee) considered the Stronger Futures in the Northern
Territory Act 2012 and related legislation. While the former committee's
report did not deal specifically with land reform measures, it did consider whether
various legislative measures under the Stronger Futures package should be
classified as 'special measures'.
2.38
The former committee wrote to the Minister on 26 June 2013inviting a
response to the report. The committee notes that a Ministerial response has not
yet been received.
2.39
The former committee concluded its report by noting the importance of
continuing close evaluation of measures within the legislation. The former
committee considered that the PJCHR could usefully perform an ongoing oversight
role in this regard and recommended that in the 44th Parliament the
committee should undertake a 12-month review to evaluate the latest evidence in
order to test the continuing necessity for the Stronger Futures measures.
2.40 The committee intends to defer its detailed consideration of this
regulation, while it considers the former committee's recommendation.
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