Footnotes

Chapter 1 – New and continuing matters - Asset Recycling Fund Bill 2014

[1]        Asset Recycling Fund Bill 2014, explanatory memorandum (EM), p. 6; and Asset Recycling Fund (Consequential Amendments) Bill 2014, EM, p. 5.

Australian Education Amendment (School Funding Guarantee) Bill 2014

[1]        Explanatory memorandum, p. 2.

Australian National Preventive Health Agency (Abolition) Bill 2014

[1]        International Covenant on Economic Social and Cultural Rights, article 12.

[2]        Explanatory memorandum, p. 1.

Corporations Amendment (Simple Corporate Bonds and Other Measures) Bill 2014

[1]        Explanatory memorandum, p. 30.

Customs Tariff Amendment (Product Stewardship for Oil) Bill 2014

[1]        Explanatory memorandum, p. 7.

Energy Efficiency Opportunities (Repeal) Bill 2014

[1]          Explanatory memorandum, p. 2.

Environment Protection and Biodiversity Conservation Amendment (Alpine Grazing) Bill 2014

[1]        Explanatory memorandum, p 4.

Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014

[1]        Explanatory memorandum (EM), p. 4.

Environment Protection and Biodiversity Conservation Amendment (Cost Recovery) Bill 2014

[1]        Explanatory memorandum (EM), p. 3.

Fair Work Amendment Bill 2014

[1]        See Professor Emeritus Ron McCallum AO, The Hon Michael Moore and Dr John Edwards, Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation (June 2012).

[2]        Senate Education and Employment Legislation Committee, Fair Work Amendment Bill 2014 [Provisions] (5 June 2014).

[3]        Article 5(b) of the CEDAW Convention further provides that ‘States parties shall take all appropriate measures...(b) to ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.’

[4]        Explanatory memorandum, p 3, para 12.

[5]        Explanatory memorandum , Regulatory Impact Statement, p xxxv

[6]        Statement of compatibility, p lii.

[7]        Explanatory memorandum , Regulatory Impact Statement, p xxxv.

[8]        Statement of compatibility, p liii.

[9]        FWA, s 144(1) (awards) and 202(1) (agreements).

[10]      FWA, s 144(4)(c) and 203(4).

[11]      These matters are: arrangements about when work is performed; overtime rates; penalty rates; allowances; and  leave loading.

[12]      In its Recommendation 10 the Review Panel proposed that an employer should be required to notify the FWO in writing of any IFA entered into at the time it is made, as this ‘would enable the FWO to investigate, as and when required at its absolute discretion, whether the opportunity afforded by the FW Act to make these arrangements was being abused by a particular employer or employers in a particular industry.’ See Fair Work Review p 109.

[13]      International Labour Organisation, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO (5th ed 2006), paras 1102-1111.

[14]      Greenfields agreements, are enterprise agreements made before any employees have been engaged at a new enterprise, and are often used in large-scale projects in the construction, administrative and support services, manufacturing and mining industries.

[15]      These include the employer (or appointed representative) and an employee organisation that is entitled to represent one or more of the employees who will be covered by the agreement and with which the employer agrees to bargain: see proposed new section 177.

[16]      Statement of compatibility , p lxiii.

[17]      Statement of compatibility , p lxiii.

[18]      Review of the FW Act, pp 172-173.

[19]      Statement of compatibility , p lxiii.

[20]      Statement of compatibility , p lxiii.

[21]      Statement of compatibility , p lxiii.

Health Insurance Amendment (Extended Medicare Safety Net) Bill 2014

[1]        Explanatory memorandum (EM), p. 5.

[2]        International Covenant on Civil and Political Rights, articles 2, 12 and 16.

[3]        EM, 4.

Health Workforce Australia (Abolition) Bill 2014

[1]        Explanatory memorandum (EM), p. 2.

[2]        International Covenant on Economic Social and Cultural Rights, article 12.

[3]        EM, p. 1.

Migration Amendment (Ending the Nation's Shame) Bill 2014

[1]        Explanatory memorandum (EM), [p. 1].

Migration Legislation Amendment Bill (No.1) 2014

[1]        Explanatory memorandum (EM), p. 2.

[2]        Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 3(1); International Covenant on Civil and Political Rights, articles 6(1) and 7; and Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty.

[3]        The non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and International Covenant on Civil and Political Rights are known as 'complementary protection' as they are protection obligations in addition to those under the Refugee Convention.

[4]        International Covenant on Civil and Political Rights, article 2.

[5]        EM, p. 6.

[6]        EM, p. 8.

[7]        EM, p. 8.

[8]        EM, pp 8-9.

[9]        EM, p. 9.

[10]      EM, p. 9.

[11]      EM, pp. 14-15.

[12]      EM, p. 15.

[13]      See Agiza v. Sweden, Communication No. 233/2003, UN Doc. CAT/C/34/D/233/2003 (2005), para 13.7. See also Arkauz Arana v. France, Communication No. 63/1997, CAT/C/23/D/63/1997 (2000), paras 11.5 and 12 and comments on the initial report of Djibouti (CAT/C/DJI/1) (2011), A/67/44, p 38, para 56(14), see also: Concluding Observations of the Human Rights Committee, Portugal, UN Doc. CCPR/CO/78/PRT (2003), at para 12.

[14]      EM, p. 15.

[15]      The requirements for the effective discharge of Australia's non-refoulement obligations were set out in more detail in Second Report of the 44th Parliament, paras 1.89 – 1.99. See also  Fourth Report of the 44th Parliament, paras 3.55-3.66 ( both relating to the Migration Amendment (regaining Control Over Australia’s Protection Obligations) Bill 2013).

[16]      EM, p. 16.

[17]      Migration Legislation Amendment Bill (No.1) 2014, Item 2, Schedule 2.

[18]      EM, p. 18.

[19]      Article 3(1).

[20]      EM, p. 12.

[21]      EM, p. 12.

[22]      Article 9, CRC.

[23]      EM, p. 13.

[24]      Committee on the Rights of Persons with Disabilities,  General Comment No 1 (2014);            Article 12: Equal recognition before the law (CRPD/C/GC/1, adopted 11 April 2014) p. 6.

[25]      See also article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), articles 1, 2, 4 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), article 2 of the Convention on the Rights of the Child (CRC), articles 2, 3, 4 and 15 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and articles 3, 4, 5 and 12 of the Convention on the Rights of Persons with Disabilities (CRPD).

[26]      The prohibited grounds are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation.

[27]      EM, p. 14.

[28]      Subsection 250(2) of the Migration Act provides that a non-citizen may be detained in immigration detention if they are a non-citizen who has travelled or was brought to the migration zone, and is believed by an authorised officer on reasonable grounds to have been on board a vessel (not being an aircraft) when it was used in connection with the commission of an offence against a law in the whole or any part of Australia.

[29]      EM, p. 19.

[30]      EM, p. 20.

[31]      The right to humane treatment in detention is guaranteed under article 7 of ICCPR and article 16 of CAT, which provides that all people deprived of their liberty must be treated with humanity and dignity. This right is linked to the prohibition against torture, cruel, inhuman or degrading treatment.

[32]      EM, p. 5.

[33]      EM, p. 8.

[34]      EM, p. 10.

[35]      The hearing rule relates to the right of an applicant to comment on certain adverse information. See EM, p. 3.

[36]      EM, p. 21.

[37]      EM, p. 23.

Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Amendment Bill 2014

[1]        Explanatory memorandum (EM), p.4.

Offshore Petroleum and Greenhouse Gas Storage (Regulatory Powers and Other Measures) Amendment Bill 2014

[1]        Explanatory memorandum (EM), p. 7.

Public Governance, Performance and Accountability Amendment Bill 2014

[1]        Explanatory memorandum (EM), p. 2.

Recognition of Foreign Marriages Bill 2014

[1]        Explanatory memorandum (EM), [p. 2].

Student Identifiers Bill 2014

[1]        See Parliamentary Joint Committee on Human Rights, Sixth Report of 2013 (May 2013), 'Student Identifiers Bill 2013', p. 65; and First Report of 44^th Parliament, 'Student Identifiers Bill 2013', p. 203.

[2]        Explanatory memorandum (EM), p. 5.

[3]        EM, p. 5.

[4]        EM, p. 61.

[5]        EM, p. 8.

[6]        EM, pp 8-9.

[7]        EM, p. 9.

[8]        EM, p. 8.

Tax and Superannuation Laws Amendment (2014 Measures No. 2) Bill 2014

[1]        Explanatory memorandum (EM), Schedule 1, pp 10-11, Schedule 2, p. 40 and Schedule 3, pp 59-60.

Tax and Superannuation Laws Amendment (2014 Measures No. 3) Bill 2014

[1]        Explanatory memorandum (EM), pp 16-17.

Temporary Budget Repair Levy Package

[1]        Explanatory memorandum (EM), p. 26.

Textile, Clothing and Footwear Investment and Innovation Programs Amendment Bill 2014

[1]        Explanatory memorandum, p. [4].

Migration Amendment (2014 Measures No. 1) Regulation 2014 [F2014L00286]

[1]        R v Oakes [1986] 1 S.C.R. 103, 69.

[2]        Statement of compatibility, p. 3.

[3]        Statement of compatibility, p. 6.

[4]        Statement of Compatibility, p. 9.

[5]        Statement of Compatibility, p. 5

[6]        Schedule 1, item 1.

[7]        Statement of compatibility, p. 3.

[8]        Article 3(1).

[9]        Statement of compatibility, p. 2.

[10]      Statement of compatibility, p. 5.

[11]      The compelling reasons criterion are: a) the degree of discrimination to which the applicant is subject in their home country; b) the extent of the applicant’s connection with Australia; c) whether or not there is any other suitable country that can provide for the applicant’s settlement and protection from discrimination; and d) the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant.

[12]      Statement of Compatibility p .8.

[13]      Statement of compatibility, p. 8.

Chapter 2 - Concluded matters

[1]        See Parliamentary Joint Committee on Human Rights, Fourth Report of the 44th Parliament (18 March 2014), p. 125.

[2]        Explanatory memorandum (EM), p. 9.

[3]        See Appendix 2, Letter from the Hon Scott Morrison MP, Minister for Immigration and Border Protection, to Senator Dean Smith, Chair PJCHR, 24 March 2014.

[4]        See also, Parliamentary Joint Committee on Human Rights, Fourth Report of the 44th Parliament, Letter from the Hon Scott Morrison MP, Minister for Immigration and Border Protection, to Senator Dean Smith, Chair PJCHR, 28 February 2014, pp 2-9.

[5]        See Parliamentary Joint Committee on Human Rights, Second Report of the 44^th Parliament, pp 70-76.

[6]        Contrary to articles 9(1), 9(4) and 7 of the International Covenant on Civil and Political Rights.

[7]        Letter from the Hon Scott Morrison MP, Minister for Immigration and Border Protection, to Senator Dean Smith, Chair PJCHR, 24 March 2014, p. 3.

National Disability Insurance Scheme Legislation Amendment Bill 2013 and DisabilityCare Australia Fund Bill 2013 and eleven related bills

[1]        See Appendix 2, Letter from Senator the Hon Mitch Fifield, Assistant Minister for Social Services, to Senator Dean Smith, 19 March 2014, p. 5.

[2]        See article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and articles 2(1), 26 of the International Covenant on Civil and Political Rights (ICCPR) and the Convention of the Rights of Persons with Disabilities (CRPD).

[3]        See Appendix 2, Letter from Senator the Hon Mitch Fifield, Assistant Minister for Social Services, to Senator Dean Smith, 19 March 2014, p. 6.

[4]        See Appendix 2, Letter from Senator the Hon Mitch Fifield, Assistant Minister for Social Services, to Senator Dean Smith, 19 March 2014, pp 7-8.

[5]        International Covenant on Civil and Political Rights, articles 2 and 26; and article 2 of the ICESCR. See also, UN Human rights Committee, General Comment No 15: The position of aliens under the Covenant (1986).

[6]        Convention on the Rights of Persons with Disabilities, article 5.

[7]        See Appendix 2, Letter from Senator the Hon Mitch Fifield, Assistant Minister for Social Services, to Senator Dean Smith, 19 March 2014, p. 9.

Quarantine Charges (Imposition-General) Bill 2014

[1]        See Appendix 2, Letter from The Hon Barnaby Joyce MP, Minister for Agriculture, to Senator Dean Smith, 12 April 2014, pp 1-2.

[2]        See Appendix 2, Letter from The Hon Barnaby Joyce MP, Minister for Agriculture, to Senator Dean Smith, 12 April 2014, pp 2-3.

[3]        See Appendix 2, Letter from The Hon Barnaby Joyce MP, Minister for Agriculture, to Senator Dean Smith, 12 April 2014, p. 3.

[4]        See Appendix 2, Letter from The Hon Barnaby Joyce MP, Minister for Agriculture, to Senator Dean Smith, 12 April 2014, p. 3.

Migration Act 1958 - Determination of Granting of Protection Class XA Visas in 2013/2014 Financial Year - IMMI 14/026 [F2014L00224]

[1]        Section 85 of the Migration Act 1958 provides that the Minister may determine by instrument in writing the maximum number of the visas of a specified class that may be granted in a specified financial year.

[2]        Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament, 11 February 2014, pp 101-102.

[3]        See Appendix 2, Letter from the Hon Scott Morrison MP, Minister for Immigration and Border Protection to Senator Dean Smith, 15 April 2014, p. 8.

Migration Amendment (Bridging Visas – Code of Behaviour) Regulation 2013 [F2013L02102]

[1]        On 13 May 2014, a notice of motion to disallow the Migration Amendment (Bridging Visas—Code of Behaviour) Regulation 2013 was given. This extended the disallowance period by 15 sitting days to 14 July 2014. See Journals of the Senate, 13 May 2014, p. 769.

[2]        See Appendix 2, Letter from Mr Scott Morrison MP, Minister for Immigration and Border Protection to Senator Dean Smith, 15 April 2014, pp 5-8.

[3]        See the committee's consideration of the Migration Amendment (Subclass 050 and Subclass 051) regulation 2013 [F2013L01218] in this report.

Migration Amendment (Disclosure of Information) Regulation 2013 [F2013L02101]

[1]        See Appendix 2, Letter from Mr Scott Morrison MP, Minister for Immigration and Border Protection to Senator Dean Smith, 15 April 2014, p. 8.

Migration Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013 [F2013L01218]

[1]        See Parliamentary Joint Committee on Human Rights, Fourth Report of the 44th Parliament, Letter from the Hon Scott Morrison MP, Minister for Immigration and Border Protection, to Senator Dean Smith, 20 January 2014, p. 6.

[2]        See Appendix 2, Letter from Mr Scott Morrison MP, Minister for Immigration and Border Protection to Senator Dean Smith, 15 April 2014, pp 4-5.

[3]        See Parliamentary Joint Committee on Human Rights, Fourth Report of the 44th Parliament, Letter from the Hon Scott Morrison MP, Minister for Immigration and Border Protection, to Senator Dean Smith, Chair PJCHR, 20 January 2014, p 5.

Migration Amendment (Temporary Protection Visas) Regulation 2013 [F2013L01811]

[1]        Explanatory statement, Attachment B, p. 2.

[2]        See Parliamentary Joint Committee on Human Rights, Fourth Report of the 44th Parliament, Letter from Letter from the Hon Scott Morrison MP, Minister for Immigration and Border Protection to Senator Dean Smith, 20 January 2014, p. 8.

[3]        Department of Immigration and Border Protection, Illegal maritime arrivals, http://www.immi.gov.au/About/Pages/ima/info.aspx [accessed 11 June 2014].

[5]        See Appendix 2, Letter from the Hon Scott Morrison MP, Minister for Immigration and Border Protection to Senator Dean Smith, 15 April 2014, p. 8.

Migration Amendment Regulation 2013 (No. 4) [F2013L01014]

[1]        Explanatory statement, Attachment C, p. 2.

[2]        See Appendix 2, Letter from the Hon Scott Morrison MP, Minister for Immigration and Border Protection to Senator Dean Smith, 15 April 2014.

Appendix 1: Full list of Legislative Instruments received by the committee between 8 March and 30 May 2014

[1]        The committee has set out its expectations with regard to information that should be provided in statements of compatibility in its Practice Note 1, available at: www.aph.gov.au/joint_humanrights.

[2]        FRLI is found online at www.comlaw.gov.au.