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Footnotes

Footnotes

[1]          Absolute rights are: the right not to be subjected to torture, cruel, inhuman or degrading treatment; the right not to be subjected to slavery; the right not to be imprisoned for inability to fulfil a contract; the right not to be subject to retrospective criminal laws; the right to recognition as a person before the law.

Chapter 1 - New and continuing matters

[1]          See Parliament of Australia website, 'Journals of the Senate', http://www.aph.gov.au/Parliamentary_Business/Chamber_documents/Senate_chamber_documents/Journals_of_the_Senate.

[2]          See Parliamentary Joint Committee on Human Rights, Twenty-eighth Report of the 44th Parliament (17 September 2015) 15-38.

[3]          See Parliamentary Joint Committee on Human Rights, Twenty-first Report of the 44th Parliament (24 March 2015); and Parliamentary Joint Committee on Human Rights, Twenty‑third Report of the 44th Parliament (18 June 2015).

[4]          Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (11 February 2014) 31-35.

[5]          Parliamentary Joint Committee on Human Rights, Fourth Report of the 44th Parliament (18 March 2014) 39-40.

[6]          Appendix 2; See Parliamentary Joint Committee on Human Rights, Guidance Note 2 – Offence provisions, civil penalties and human rights (December 2014) http://www.aph.gov.au/~/media/Committees/Senate/committee/humanrights_ctte/guidance_notes/guidance_note_2/guidance_note_2.pdf?la=en.

[7]          Appendix 2; See Parliamentary Joint Committee on Human Rights, Guidance Note 1 - Drafting Statements of Compatibility (December 2014) http://www.aph.gov.au/~/media/Committees/Senate/committee/humanrights_ctte/guidance_notes/guidance_note_2/guidance_note_2.pdf.

[8]          Explanatory memorandum (EM), Statement of Compatibility (SoC) 4.

[9]          Parliamentary Joint Committee on Human Rights, Fourth Report of the 44th Parliament (18 March 2014) 40.

[10]          Gómez Casafranca v Peru, Communication No 981/2001, UN Doc. CCPR/C/78/D/981/2001.

[11]          EM, SoC 5.

[12]          EM, SoC 5.

[13]          Explanatory Memorandum, paragraph 46.

[14]          Appendix 2; See Parliamentary Joint Committee on Human Rights, Guidance Note 2 – Offence provisions, civil penalties and human rights (December 2014) http://www.aph.gov.au/~/media/Committees/Senate/committee/humanrights_ctte/guidance_notes/guidance_note_2/guidance_note_2.pdf?la=en.

[15]          Appendix 2; See Parliamentary Joint Committee on Human Rights, Guidance Note 1 - Drafting Statements of Compatibility (December 2014) http://www.aph.gov.au/~/media/Committees/Senate/committee/humanrights_ctte/guidance_notes/guidance_note_2/guidance_note_2.pdf.

[16]          Current thresholds for concession card holders and recipients of FTB A is $638.40 and for singles and families is $2 000.

[17]          The proposed new threshold for concession card holders is $400; for singles is $700; for families is $1 000 and for recipients of FTB A is $700.

[18]          Explanatory Memorandum (EM), Statement of Compatibility (SoC) 9.

[19]          EM, SoC 9.

[20]          EM, SoC 9-10.

[21]          See section 36(2)(aa) of the Migration Act 1958.

[22]          Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), article 3(1); International Covenant on Civil and Political Rights (ICCPR), 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.

[23]          See Refugee Convention, article 33. The non-refoulement obligations under the CAT and ICCPR are known as 'complementary protection' as they are protection obligations available both to refugees and to people who are not covered by the Refugee Convention, and so are 'complementary' to the Refugee Convention.

[24]          ICCPR, article 2. See Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (February 2014), Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013, 45, and Fourth Report of the 44th Parliament (March 2014), Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013, 513.

[25]          Explanatory Memorandum (EM), Statement of Compatibility (SoC), paragraph [21].

[26]          See Alan v Switzerland, Merits, Communication No 21/1995, UN Doc CAT/C/16/D/21/1995, UN Doc A/51/44, Annex V, 68, IHRL 3781 (UNCAT 1996), Sadiq Shek Elmi v. Australia, Communication No. 120/1998, U.N. Doc. CAT/C/22/D/120/1998 (1999) and Manfred Nowak (Former UN Special Rapporteur on Torture) An Analysis of the various legal issues under Article 3 CAT (available from http://www.hklawacademy.org/downloads/cat1/d2am/ProfessorManfredNowakAnAnalysisoftheVariousLegalIssuesundeArticle3.pdf). In contrast see  H.M.H.I. (name withheld) v. Australia, Communication No. 177/2001, U.N. Doc. A/57/44 at 166 (2002).

[27]          See James C. Hathaway and Michelle Foster, Global Consultations on international protection, June 2003, available at: http://www.refworld.org/docid/470a33b70.html.

[28]          EM, SoC, paragraph [20].

[29]          See, for example, Human Rights Committee, General Comment 27, Freedom of movement (Art.12), U.N. Doc CCPR/C/21/Rev.1/Add.9 (1999).

[30]        EM, SOC, paragraph [31].

[31]        See HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31; RT (Zimbabwe) and others v Secretary of State for the Home Department [2012] UKSC 38; CJEU judgment in C-199/12, C200/12 and C201/12, X, Y and Z, 7 November 2013; CJEU – C-71/11 and C-99/11 Germany v Y and Z, 5 September 2012; Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 at [40]-[41] per McHugh and Kirby JJ.

[32]        Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 at [40] per McHugh and Kirby JJ.

[33]        EM, SoC, paragraph [57].

[34]        Agiza v. Sweden, Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003 (2005) [13.7].

[35]        Josu Arkauz Arana v. France, CAT/C/23/D/63/1997, (CAT), 5 June 2000.

[36]        Mohammed Alzery v. Sweden, Communication No. 1416/2005, U.N. Doc. CCPR/C/88/D/1416/2005 (2006)) [11.8].

[37]        Australia is a party to this treaty and has voluntarily accepted obligations under it. Article 31 of that treaty provides that treaties are to be interpreted in good faith, according to ordinary meaning, in context, in light of object and purpose. Subsequent practice in the application and interpretation of the treaties is to be taken together with context in the interpretation of treaty provisions. The views of human rights treaty monitoring bodies may be considered an important form of subsequent practice for the interpretation of Australia's treaty obligations. More generally, statements by human rights treaty monitoring bodies are generally seen as authoritative and persuasive for the interpretation of international human rights law.

[38]          Explanatory Memorandum (EM), Attachment A [43].

[39]          EM, Attachment A [43].

[40]          UN Human Rights Committee, F.K.A.G. et al. v Australia, CCPR/C/108/D/2094/2011 (2013).

[41]          Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), article 3(1); International Covenant on Civil and Political Rights (ICCPR), 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.

[42]          See Refugee Convention, article 33. The non-refoulement obligations under the CAT and ICCPR are known as 'complementary protection' as they are protection obligations available both to refugees and to people who are not covered by the Refugee Convention, and so are 'complementary' to the Refugee Convention.

[43]          ICCPR, article 2. See Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (February 2014), Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013, 45, and Fourth Report of the 44th Parliament (March 2014), Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013, 513.

[44]          EM, Attachment A [43].

[45]          EM, Attachment A [44].

[46]          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.

[47]        Agiza v. Sweden, Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003 (2005) [13.7].

[48]        Josu Arkauz Arana v. France, CAT/C/23/D/63/1997, (CAT), 5 June 2000.

[49]        Mohammed Alzery v. Sweden, Communication No. 1416/2005, U.N. Doc. CCPR/C/88/D/1416/2005 (2006)) [11.8].

[50]        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 (2 February 2015), paras 1.89 to 1.99. See also Fourth Report of the 44th Parliament (18 March 2014) paras 3.55 to 3.66 (both relating to the Migration Amendment (regaining Control Over Australia’s Protection Obligations) Bill 2013).

[51]        Article 3(1).

[52]        Appendix 2; See Parliamentary Joint Committee on Human Rights, Guidance Note 1 - Drafting Statements of Compatibility (December 2014) http://www.aph.gov.au/~/media/Committees/Senate/committee/humanrights_ctte/guidance_notes/guidance_note_1/guidance_note_1.pdf.

[53]        See Attorney-General's Department, Template 2: Statement of compatibility for a bill or legislative instrument that raises human rights issues at http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSector/Pages/Statementofcompatibilitytemplates.aspx.

[54]        EM 14.

[55]        See Parliamentary Joint Committee on Human Rights, Nineteenth Report of the 44th Parliament (3 March 2015) 13-28.

[56]        Item 8, Schedule 2.

[57]        Item 9, Schedule 2.

[58]        Item 18, Schedule 2.

[59]        Item 19, Schedule 2.

[60]        Item 20, Schedule 2.

[61]        EM, Attachment A [43].

[62]        EM, Attachment A [48].

[63]        EM, Attachment A [49].

[64]        EM, Attachment A [48].

[65]        EM, Attachment A [50].

[66]        EM, Attachment A [50].

[67]        Views: Nystrom v. Australia Communications No 1557/2007, 102nd sess, UN Doc CCPR/C/102/D/1557/2007 (18 July 2011) (‘Nystrom’). This was subsequently affirmed by the HRC in Warsame, UN Doc CCPR/C/102/D/1959/2010.

[68]        Australia is a party to this treaty and has voluntarily accepted obligations under it. Article 31 of that treaty provides that treaties are to be interpreted in good faith, according to ordinary meaning, in context, in light of object and purpose. Subsequent practice in the application and interpretation of the treaties is to be taken together with context in the interpretation of treaty provisions. The views of human rights treaty monitoring bodies may be considered an important form of subsequent practice for the interpretation of Australia's treaty obligations. More generally, statements by human rights treaty monitoring bodies are generally seen as authoritative and persuasive for the interpretation of international human rights law.

[69]        See Right to enter one's country, Commission on Human Rights, 5th Session (1949), Commission on Human Rights, 6th Session (1950), on Human Rights, 8th Session (1952) 261 in Marc J. Bossuyt, Guide to the "Travaux Préparatoires" of the International Covenant on Civil and Political Rights (1987) 261.

[70]        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.

[71]        UN Human Rights Committee, General Comment 18, Non-discrimination (1989).

[72]        Althammer v Austria HRC 998/01, [10.2].

[73]        Australian Institute of Health and Welfare, The mental health of prison entrants in Australia, Bulletin 104, June 2012, available from http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=10737422198&libID=10737422198.

[74]        EM, Attachment A [55].

[75]        EM, Attachment A [55].

[76]        UN Committee on the Rights of Persons with Disabilities, General comment No. 1: Article 12: Equal recognition before the law (2014), paragraph 15.

[77]          Parliamentary Joint Committee on Human Rights, Ninth Report of the 44th Parliament (15 July 2014) 83-99; and Parliamentary Joint Committee on Human Rights, Twelfth Report of the 44th Parliament (24 September 2014) 67-83.

[78]          Explanatory Memorandum (EM), Statement of Compatibility (SoC) 3.

[79]          Appendix 2; See Parliamentary Joint Committee on Human Rights, Guidance Note 1 - Drafting Statements of Compatibility (December 2014) http://www.aph.gov.au/~/media/Committees/Senate/committee/humanrights_ctte/guidance_notes/guidance_note_1/guidance_note_1.pdf.

[80]          See Attorney-General's Department, Template 2: Statement of compatibility for a bill or legislative instrument that raises human rights issues at http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSector/Pages/Statementofcompatibilitytemplates.aspx.

[81]          EM, SoC, 4.

[82]          EM, SoC, 4.

[83]          ABS, Household Income and Wealth, Australia, 2013-14, 4 September 2015, available from http://www.abs.gov.au/AUSSTATS/abs@.nsf/Latestproducts/6523.0Explanatory%20Notes12013-14?opendocument&tabname=Notes&prodno=6523.0&issue=2013-14&num=&view=

[84]          Appendix 2; See Parliamentary Joint Committee on Human Rights, Guidance Note 1 - Drafting Statements of Compatibility (December 2014) http://www.aph.gov.au/~/media/Committees/Senate/committee/humanrights_ctte/guidance_notes/guidance_note_1/guidance_note_1.pdf.

[85]          See Attorney-General's Department, Template 2: Statement of compatibility for a bill or legislative instrument that raises human rights issues at http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSector/Pages/Statementofcompatibilitytemplates.aspx.

[86]        EM, SoC 5.

[87]        EM, SoC 5.

[88]          Explanatory Statement (ES) 3.

[89]          ES 3.

[90]          S and Marper v UK, ECtHR, 4 December 2008, paras 72 and 73.

[91]          Related provisions relating to such rights for specific groups are also contained in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), articles 11 and 14(2)(e) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), article 32 of the Convention on the Rights of the Child and article 27 of the Convention on the Rights of Persons with Disabilities (CRPD).

[92]          Explanatory Statement (ES) 2.

[93]          Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (October 2014) 70-92.

[94]          Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), article 3(1); International Covenant on Civil and Political Rights (ICCPR), 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.

[95]          See Refugee Convention, article 33. The non-refoulement obligations under the CAT and ICCPR are known as 'complementary protection' as they are protection obligations available both to refugees and to people who are not covered by the Refugee Convention, and so are 'complementary' to the Refugee Convention.

[96]          ICCPR, article 2. See Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (February 2014), Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013, 45, and Fourth Report of the 44th Parliament (March 2014), Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013, 513.

[97]          EM, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (RALC Act), Attachment A 9.

[98]          ES 6.

[99]          UNHCR, 'UNHCR concerned about confirmation of TPV system by High Court' (20 November 2006) http://www.unhcr.org.au/pdfs/TPVHighCourt.pdf (accessed 14 October 2014).

[100]          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 (2 February 2015) paras 1.89 to 1.99. See also Fourth Report of the 44th Parliament(18 March 2014) paras 3.55 to 3.66 (both relating to the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill 2013).

[101]          EM RALC Act, Attachment A 9.

[102]        EM RALC Act, Attachment A 17.

[103]        See, for example, Greg Marston, Temporary Protection Permanent Uncertainty (RMIT University 2003) 3. http://dpl/Books/2003/RMIT_TemporaryProtection.pdf (accessed 14 October 2014); Australia Human Rights Commission, A last resort? - Summary Guide: Temporary Protection Visas, https://www.humanrights.gov.au/publications/last-resort-summary-guide-temporary-protection-visas (accessed 14 October 2014).

[104]        Article 3(1).

[105]        UN Committee on the Rights of Children, General Comment 14 on the right of the child to have his or her best interest taken as primary consideration, CRC/C/GC/14 (2013).

[106]        EM RALC Bill, Attachment A 12.

[107]        See Subclass 785-Temporary Protection visa, which as a result of 785.611 is subject to condition 8570, see Schedules 2 and 8 to the Migration Regulations 1994.

[108]        See UN Human Rights Committee, General Comment 27: Freedom of movement (1999), paras [8] to [10].

[109]          See section 46 of the Radiocommunications Act 1992 which provides that a person must not operate a radiocommunications device other than as authorised by a class licence. There are then penalties for breach of the class licence, including, if the device is a radiocommunications transmitter, imprisonment for up to two years or 1,500 penalty units, and if it is not a transmitter, 20 penalty units.

[110]          See, generally, Human Rights Committee, General comment No 34 (Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, paras 21-36 (2011).

[111]          Explanatory Statement (ES), Statement of Compatibility (SoC) 6-7.

[112]          ES, SoC 6.

[113]          ES, SoC 7.

[114]          See definition of 'carriage service' in section 7 of the Telecommunications Act 1997.

[115]          See UN Human Rights Committee, General comment No 34 (Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, para 11.

[116]          Handyside v United Kingdom (1976) 1 EHRR 737.

[117]          See UN Human Rights Committee, General comment No 34 (Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, para 35.

[118]          Absolute rights are: the right not to be subjected to torture, cruel, inhuman or degrading treatment; the right not to be subjected to slavery; the right not to be imprisoned for inability to fulfil a contract; the right not to be subject to retrospective criminal laws; and the right to recognition as a person before the law.

[119]          Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) 3.

[120]          Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) 3.

[121]          UN Committee on the Elimination of Racial Discrimination, Consideration of reports submitted by States parties under article 9 of the convention, Australia, CERD/C/AUS/CO/14 (14 April 2005); Committee on the Elimination of Racial Discrimination, Consideration of reports submitted by States parties under article 9 of the convention, Australia, CERD/C/AUS/CO/15-17 (13 September 2010).

[122]          UN Committee on the Elimination of Racial Discrimination, Consideration of reports submitted by States parties under article 9 of the convention, Australia, CERD/C/AUS/CO/15-17 (13 September 2010).

[123]          See Appendix 1, Letter from Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (dated 17 September 2015) 1-6.

[124]          See Appendix 1, Letter from Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (dated 17 September 2015) 7-9.

[125]          See Appendix 1, Letter from Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (dated 17 September 2015) 9-10.

[126]          See Appendix 1, Letter from Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (dated 17 September 2015) 10-11.

[127]        See Appendix 1, Letter from Senator the Hon George Brandis, Attorney-General, to the Hon Philip Ruddock MP (dated 17 September 2015) 11.

[128]          Federal Financial Relations (National Partnership payments) Determination No. 87 (December 2014); Federal Financial Relations (National Partnership payments) Determination No. 88 (January 2015); Federal Financial Relations (National Partnership payments) Determination No. 89 (February 2015); Federal Financial Relations (National Partnership payments) Determination No. 90 (March 2015); Federal Financial Relations (National Partnership payments) Determination No. 91 (April 2015); Federal Financial Relations (National Partnership payments) Determination No. 92 (May 2015); Federal Financial Relations (National Partnership payments) Determination No. 93 (June 2015).

[129]          Parliamentary Joint Committee on Human Rights, Twenty-eighth Report of the 44th Parliament (17 September 2015) 10-14.

[130]          See Parliamentary Joint Committee on Human Rights, Third Report of 2013 (13 March 2013); Parliamentary Joint Committee on Human Rights, Seventh Report of 2013 (5 June 2013); Parliamentary Joint Committee on Human Rights, Third Report of the 44th Parliament (4 March 2014); and Parliamentary Joint Committee on Human Rights, Eighth Report of the 44th Parliament (24 June 2014).

[131]          Article 26 of the ICCPR and the Convention on the Rights of Persons with Disabilities.

[132]          Convention on the Rights of the Child (CRC).

[133]          Articles 6, 7 and 8 of the ICESCR.

[134]          Article 9 of the ICESCR.

[135]          Article 11 of the ICESCR.

[136]          Article 12 of the ICESCR.

[137]        Article 13 and 14 of the ICESCR and article 28 of the CRC.

[138]        Determination 1, EM 2 and Determination 2, EM 2.

[139]        Appendix 1, Letter from the Hon Scott Morrison MP, Treasurer, to the Hon Philip Ruddock MP (dated 14 October 2015) 1-2.

[140]        See Parliamentary Joint Committee on Human Rights, Third Report of 2013 (13 March 2013); Parliamentary Joint Committee on Human Rights, Seventh Report of 2013 (5 June 2013);  Parliamentary Joint Committee on Human Rights, Third Report of the 44th Parliament (4 March 2014); and Parliamentary Joint Committee on Human Rights, Eighth Report of the 44th Parliament (24 June 2014).

[141]        Appendix 1, Letter from the Hon Scott Morrison MP, Treasurer, to the Hon Philip Ruddock MP (dated 14 October 2015) 2-3.

[142]          See, for example, the committee's analysis of annual appropriation bills, such as in Parliamentary Joint Committee on Human Rights, Twentieth Report of the 44th Parliament (18 March 2015) 5-9.

[143]          See articles 27 and 19 of the ICCPR.

[144]          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.

[145]          UN Human Rights Committee, General Comment 18, Non-discrimination (1989).

[146]          Althammer v Austria HRC 998/01, [10.2].

[147]          See UN Human Rights Committee, Toonen v Australia, Communication No. 488/1992 (1992) and UN Human Rights Committee, Young v Australia, Communication No. 941/2000 (2003).

[148]          See Joslin v New Zealand, UN Human Rights Committee, Communication No. 902/1999 (2002) at paragraph 8.3: 'In light of the scope of the right to marry under article 23, paragraph 2, of the Covenant, the Committee cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has violated the rights of the authors under articles 16, 17, 23, paragraphs 1 and 2, or 26 of the Covenant'.

[149]          See UN Human Rights Committee, General Comment No. 18: Non-discrimination (1989), paragraph 13.

[150]          See European Court of Human Rights, Schalk and Kopf v Austria, Application No 30141/04, (2010) paragraphs [99]; European Court of Human Rights, Oliari v Italy, Application Nos 18766/11 and 36030/11 (2015), paragraph [165]; see also Obergefell v Hodges, Director, Ohio Department of Health, Supreme Court of the United States 576 US (2015).

[151]          See European Court of Human Rights, D.H. and Others v the Czech Republic, Application No. 57325/00, paragraph [175] (emphasis added).

[152]        See European Court of Human Rights, Oliari v Italy, Application Nos 18766/11 and 36030/11 (2015), paragraph [165].

[153]        European Court of Human Rights, Burden v the United Kingdom, Application No. 13378/05 (2008), paragraph [62].

[154]        Marriage Act 1961, section 47(b). The Marriage Act defines a 'minister of religion' as 'a person recognised by a religious body or a religious organisation as having authority to solemnise marriages in accordance with the rites or customs of the body or organisation'. Once a religious body recognises a person as having authority to solemnise marriages in accordance with their rights and customs, section 47 of that Act gives the minister of religion a right not to solemnise any marriage, on any basis, without the need to give reasons. As a matter of statutory interpretation it is not relevant whether the religious body or organisation to which the minister of religion is attached allows for same-sex marriage, because the exception in the Marriage Act applies to the minister of religion personally. Of course, if the religious body or organisation does not recognise that person to have authority to solemnise marriages they would not be considered to be a minister of religion – in which case they would need to be registered as a civil celebrant in order to legally solemnise a marriage.

[155]        Explanatory Memorandum (EM), Statement of Compatibility (SoC) 2.

[156]        United Nations Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion, (1993) paragraph [8].

[157]        Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs, CCT60/04; CCT10/05 [2005] ZACC 19 [97].

[158]        Barbeau v British Columbia (A-G) 2003 BCCA 251.

[159]        Halpern v Canada (A-G) [2003] 65 OR (3d) 161 (CA) [53].

[160]        Eweida & Ors v United Kingdom [2013] ECHR 37.

[161]        London Borough Council v Ladele [2009] EWCA Civ 1357; [2010] ICR 532.

[162]        EM, SoC 2.

[163]        UN Committee on Economic, Social and Cultural Rights, General Comment No 19: The Right to Social Security (2008).

[164]        European Court of Human Rights, Schalk and Kopf v Austria, Application No 30141/04, (2010) paragraphs [93]–[94].

[165]        UN Committee on the Rights of the Child, Report on the Fifth Session, 5th sess, UN Doc CRC/C/24 (8 March 1994) Annex 5 (‘Role of the Family in the Promotion of the Rights of the Child’). See also UN Committee on the Rights of the Child, General Comment No 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child (2003).

[166]        UN Committee on the Rights of the Child, General Comment No 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child (2003). Privacy, family life and home life are protected by art 16 of the CRC, as well as by art 17(1) of the ICCPR, which states that: ‘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’.

[167]        UN Committee on the Rights of the Child, Report on the Twenty-eighth Session, 28th sess, UN Doc CRC/C/111 (28 November 2001) [558].

[168]        UN Human Rights Committee, Roger Judge v Canada, Communication No 829/1998 (5 August 2002) paragraph [10.3]. See also European Court of Human Rights, Oliari v Italy, Application Nos 18766/11 and 36030/11 (2015).

[169]        Jens M. Scherpe, 'The Legal Recognition of Same-Sex Couples in Europe and the Role of the European Court of Human Rights' The Equal Rights Review, 10 (2013), 83.

[170]        Article 3(1) of the Convention on the Rights of the Child (CRC).

[171]        EM, SoC 3.

[172]        EM, SoC 3.

[173]        See article 2 of the CRC which states that all rights should be ensured to children without discrimination of any kind, irrespective of the child's or parent's social origin or birth. See also article 26 of the International Covenant on Civil and Political Rights which requires state parties to guarantee equal protection against discrimination on any ground, including social origin, birth or other status.

[174]        Fathers are not mentioned in the Convention and mothers are only referred to in the context of pre and postnatal care.

[175]        See the Preamble to the CRC.

[176]        See articles 7 and 9 of the CRC.

[177]        UN Committee on the Rights of the Child, General comment No. 14: on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), (2013) paragraph [19].

[178]        UN Committee on the Rights of the Child, General comment No. 14: on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), (2013) paragraph [20].

[179]        See Lixia Qu and Ruth Weston, Australian Institute of Family Studies, Occasional Paper No. 46: Parental marital status and children's wellbeing, 2012.

[180]        Christopher Ramos, Naomi G Goldberg and M V Lee Badgett, The Effects of Marriage Equality in Massachusetts: A Survey of the Experience and Impact of Marriage on Same-sex Couples (Williams Institute) 10.

[181]        Note that studies or evidence relating to children's wellbeing in same-sex parented families are not relevant in this instance as the bill relates to the legal recognition of marriage, and not to the ability of same-sex couples to be parents.

Chapter 2 - Concluded matters

[1]          Parliamentary Joint Committee on Human Rights, Twenty-seventh Report of the 44th Parliament (17 September 2015) 8-15.

[2]          Related provisions relating to such rights for specific groups are also contained in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), articles 11 and 14(2)(e) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), article 32 of the Convention on the Rights of the Child and article 27 of the Convention on the Rights of Persons with Disabilities (CRPD).

[3]          Explanatory Memorandum (EM), Statement of Compatibility (SOC) 5.

[4]          Australian Bureau of Statistics 2015, Average Weekly Earnings, Australia, May 2015, Cat. No. 6302.0, released 13 August 2015. 

[5]          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.

[6]          UN Human Rights Committee, General Comment 18, Non-discrimination (1989).

[7]          Althammer v Austria HRC 998/01, [10.2].

[8]          Australian Bureau of Statistics 2015, Labour Force, Australia, Detailed, Quarterly, May 2015, Cat. No. 6291.0.55.003, released 18 June 2015.

[9]          Australian Bureau of Statistics 2014, Employee Earnings and Hours, Australia, May 2014, Cat. No. 6306.0, released 22 January 2015.

[10]        Productivity Commission, Workplace Relations Framework, Draft Report, August 2015, p. 315 based on Australian Bureau of Statistics 2014, Microdata: Employee Earnings and Hours, Australia, May 2014, Cat. No. 6306/0/55/001, released 11 June 2015.

[11]        See Appendix 1, Letter from Senator David Leyonhjelm, to the Hon Philip Ruddock MP (dated 19 October 2015) 1-2.

[12]          Parliamentary Joint Committee on Human Rights, Fifteenth Report of the 44th Parliament (14 November 2014) 10-22.

[13]          Parliamentary Joint Committee on Human Rights, Twentieth Report of the 44th Parliament (18 March 2015) 39-74.

[14]          Appendix 1, Letter from Senator the Hon. George Brandis, Attorney-General, to the Hon Philip Ruddock MP (dated 17 September 2015) 1-4.

[15]          See also the Attorney-General's response to Recommendation 38 of the Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (27 February 2015) at: http://www.attorneygeneral.gov.au/Mediareleases/Pages/2015/FirstQuarter/Government-Response-To-Committee-Report-On-The-Telecommunications-Interception-And-Access-Amendment-Data-Retention-Bill.aspx.

[16]          See sections 164 and 167 of the A New Tax System (Family Assistance) (Administration) Act 1999; sections 204 and 207 of the Social Security (Administration) Act 1999; sections 353 and 354 of the Student Assistance Act 1973; and sections 129 to 132 of the Paid Parental Leave Act 2010.

[17]          Section 168 of the A New Tax System (Family Assistance) (Administration) Act 1999; section 208 of the Social Security (Administration) Act 1999; section 355 of the Student Assistance Act 1973 and section 128 of the Paid Parental Leave Act 2010.

[18]          Parliamentary Joint Committee on Human Rights, Twenty-eighth Report of the 44th Parliament (17 September 2015) 3-9.

[19]          See section 7 of the Family Assistance (Public Interest Certificate Guidelines) Determination 2015; section 7 of the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015; section 7 of the Student Assistance (Public Interest Certificate Guidelines) Determination 2015; and section 4 of the Paid Parental Leave Rules 2010.

[20]          Note, there are more purposes in the individual Determinations, and not all purposes are included in each Determination. See Part 2 of the Family Assistance (Public Interest Certificate Guidelines) Determination 2015; Part 2 of the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015; Part 2 of the Student Assistance (Public Interest Certificate Guidelines) Determination 2015; and Division 4.1.2 of Part 4-1 of the Paid Parental Leave Rules 2010 as amended by the Paid Parental Leave Amendment Rules 2015.

[21]          The Family Assistance (Public Interest Certificate Guidelines) Determination 2015, the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 and the Student Assistance (Public Interest Certificate Guidelines) Determination 2015, but not the Paid Parental Leave Amendment Rules 2015.

[22]          See Appendix 1, Letter from the Hon Christian Porter MP, Minister for Social Services, to the Hon Philip Ruddock MP (received 19 October 2015) 1-3.

[23]          The Family Assistance (Public Interest Certificate Guidelines) Determination 2015, the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 and the Student Assistance (Public Interest Certificate Guidelines) Determination 2015, but not the Paid Parental Leave Amendment Rules 2015.

[24]          Article 16 of the CRC.

[25]        Article 3(1) of the CRC.

[26]        The Family Assistance (Public Interest Certificate Guidelines) Determination 2015, the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 and the Student Assistance (Public Interest Certificate Guidelines) Determination 2015.

[27]        See paragraphs 18(1)(b) and (2)(d) of the Family Assistance (Public Interest Certificate Guidelines) Determination 2015; paragraphs 20(1)(b) and 20(2)(d) of the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 and paragraphs 21(1)(b) and 21(2)(d) of the Student Assistance (Public Interest Certificate Guidelines) Determination 2015.

[28]        See Appendix 1, Letter from the Hon Christian Porter MP, Minister for Social Services, to the Hon Philip Ruddock MP (received 19 October 2015) 4.

Dissenting report by Coalition Senators on the Marriage Legislation Amendment Bill 2015

[1]          Human Rights Committee, Decision Communication No. 902.1999, 75th sess, (Joselin et. al v New Zealand), 8.2-9.

[2]          Fifth session (1949), sixth session (1950), eighth session (1952), tenth session A/2929, Chap. VI, 179.

[3]          At paragraph 13.

[4]          Oliari and Others v Italy (European Court of Human Rights, Fourth Section, Application nos. 18766/11 and 36030/11, 21 July 2015).

[5]          Schalk and Kopf v Austria (European Court of Human Rights, First Section, Application No 30141/04, 22 November 2010), 105.

[6]          Above n 4, 165; Ibid, 99.

[7]          International Covenant on Civil and Political Rights Article 18.

[8]          ICCPR Article 4(2).

[9]          Convention on the Rights of the Child Article 3(1)

[10]        See generally, Articles 7 and 9; also Article 17 ICCPR.

[11]        Marriage Act 1961 (Cth) s 5(1).

[12]        Human Rights Committee, Decision Communication No. 902.1999, 75th sess, (Joselin et. al v New Zealand).

[13]        Ibid, 8.2-9.

[14]        Harris, D., Joseph, S, The International Covenant on Civil and Political Rights and United Kingdom Law, Oxford, Oxford University Press, 1995, 507.

[15]        United Nations Covenant on Civil and Political Rights: CCPR Commentary (Engel, Kehl, 1993) 407.

[16]        Fifth session (1949), sixth session (1950), eighth session (1952), tenth session A/2929, Chap. VI, 179.

[17]        Oliari and Others v Italy (European Court of Human Rights, Fourth Section, Application nos. 18766/11 and 36030/11, 21 July 2015), 55.

[18]        Schalk and Kopf v Austria (European Court of Human Rights, First Section, Application No 30141/04, 22 November 2010), 105.

[19]        Ibid, 46.

[21]        Oliari and Others v Italy (European Court of Human Rights, Fourth Section, Application nos. 18766/11 and 36030/11, 21 July 2015), 191.

[22]        D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007-IV); See also Burden v. the United Kingdom ([GC], no. 13378/05, ECHR 2008).

[23]        Schalk and Kopf v Austria (European Court of Human Rights, First Section, Application No 30141/04, 22 November 2010), 101.

[25]        Anne Twomey, 'Same-Sex Marriage and Constitutional Interpretation' (2014) 88(9) Australian Law Journal 613, 613-4.

[26]        Professors Patrick Parkinson and Nicholas Aroney in 'The Territory of Marriage: Constitutional Law, Marriage Law and Family Policy in the ACT Same Sex Marriage Case' (2014) 28(2) Australian Journal of Family Law 160, have argued that the Constitutional law principles of ‘connotation’ and ‘denotation’ might be applied to shed light on the question. A connotation is the essence of a concept, whereas a denotation is the class of objects which at any time are designated by a word, and which may vary over time. In that article, they advance alternative arguments based on existing judicial authority in support of the proposition that the connotation of the definition of marriage includes persons of the opposite sex. They argue:

‘If a committed contradictor had been available to scrutinise these propositions, these inconsistencies in reasoning might have been avoided. None of the States chose to intervene in the case, even though, as it transpired, the Court made a very significant determination about the scope of the Commonwealth’s power to legislate with respect to marriage. If a State Solicitor-General had the opportunity to question the wide view of Commonwealth power that was in issue, the reasoning of the Court, if not the result, might have been very different. Thus, for example, much reliance was placed on the observation of Higgins J in the Union Label Case, that the constitutional conception of marriage cannot be tied to the state of the law at any particular time, for otherwise the power to make law will become illusory. Reasoning in this way draws attention to only one side of the argument, however, the side that pushes in the direction of expanded Commonwealth legislative power. But Higgins J in that case also drew attention to the other side of the argument: the Commonwealth cannot be allowed to proclaim simply anything to be a marriage, for that would render the specificity of the Commonwealth’s enumerated legislative powers similarly illusory. The Commonwealth, he pointed out, cannot be allowed to have power under the Constitution to enact what he called a “sham” law which deems some other entirely different subject matter to be a “trade mark” as a pretext to regulating it.’

[27]        Marriage Act 1961 (Cth) s 5.

[28]        U.N. Doc. E/CN.4/1985/4, Annex (1985).

[29]        Ladele v the London Borough of Islington [2009] EWCA Civ 1357, 84.

[30]        Neil Foster, Freedom of Religion and Balancing Clauses in Discrimination Legislation (June 2015) http://works.bepress.com/cgi/viewcontent.cgi?article=1150&context=neil_foster, cited 18 September 2015. He notes that a more limited exception exists in Tasmania: Anti-Discrimination Act 1998 (Tas) s 52(d).

[31]        Christian Youth Camps Ltd v Cobaw Community Health Services Ltd [2014] VSCA 75.

[32]        Ibid 269.

[33]        Burwell, Secretary of Health and Human Services et al v Hobby Lobby Stores Inc et al, 573 U.S. (10th Cir, 2014).

[34]        Human Rights Committee, General Comment 34 Article 19 Freedoms of opinion and expression, 102nd sess, (12 September 2011). See also communication No. 736/97, Ross v. Canada, Views adopted on 17 July 2006    

[35]        Trinity Western University v British Columbia College of Teachers (2001) 39 CHRR D/357, 2001 SCC 31.

[36]           See communication No. 458/91, Mukong v. Cameroon, Views adopted on 21 July 1994.

[37]        See for example, Human Rights Committee, Decision Communication No. 549.1993, 60th sess, (Hopu v France) and Human Rights Committee, Decision Communication No. 35.1978 ,12th sess, (Amuereddy v Mauritius).

[38]        See the ECHR’s decision applying the same standard in Schalk and Kopf v Austria (European Court of Human Rights, First Section, Application No 30141/04, 22 November 2010) 46.

[39]        Ibid.

[40]        European Convention for the Protection of Human Rights and Fundamental Freedoms Rome, 4.XI. 1950.

[41]        Aronson, Stacey R., and Aletha C. Hutson. 2004. The mother-infant relationship in single, cohabitating, and married families: a case for marriage? Journal of Family Psychology 18 (1): 5-18

[42]        Fomby, Paula, and Andrew J. Cherlin. 2007. Family instability and child well-being. American Sociological Review 72 (April): 181-204.; Cavenagh, Shannon E., and Aletha C. Hutson. 2006. Family instability and children’s early problem behaviour Social Forces 85:551-80.

[43]        Bronte-Tinkew, Jacinta, Kristin A. Moore, and Jennifer Carrano. 2006. The influence of father involvement on youth risk behaviours among adolescents: A comparison of native-born and immigrant families. Social Science Research 35:181-209.; Harper, Cynthia C., and Sara S. McLanahan. 1998. Father absence and youth incarceration. Presented at the American Sociological Association, 1998.

[44]        Sourander et al., 2006. Childhood predictors of male criminality: A prospective population-based follow-up study from age 8 to late adolescence. Journal of the American Academy of Child and Adolescent Psychiatry 45:578-86.

[45]        Bauman, Laurie J., Ellen J. Silver, and Ruth E. K. Stein. 2006. Cumulative social disadvantage and child health. Paediatrics 117: 1321-27.

[46]        Warner, David F., and Mark D. Hayward. 2006. Early-life origins of the race in men’s mortality. Journal of Health and Social Behaviour 47:209-26.

[47]        Pearson, Jennifer, Chandra Muller, and Michelle L. Frisco. 2006. Parental involvement, family structure, and adolescent sexual decision making. Sociological Perspectives 49:67-90.

[48]        Carlson, Marcia J. 2006. Family structure, father involvement, and adolescent outcomes. Journal of Marriage and the Family 68:137-54

[49]        Brown, Susan L. 2006. Family structure transitions and adolescent well-being. Demography 43: 447-61.

[50]        The citations of specific journal articles are only illustrative of a large literature. Some major review sources are McLanahan, Sara, and Gary Sandefur. 1994. Growing Up with a Single Parent Cambridge, MA: Harvard University Press.; Mayer, Susan E. 1997 What Money Can’t Buy: Family Income and Children’s Life Chances. Cambridge, MA: Harvard University Press.; McLanahan, Sara S. 2001. Life without father: What happens to the children? Princeton, NJ: Center for Research on Child Wellbeing.; Aronson and Hutson, 2004; and Hymowitz, Kay S. 2006. Marriage and Caste in America: Separate and Unequal Families in a Post-Marital Age. Chicago: Ivan R. Dee. 

[51]        See for example Johnson v Ireland (1986) 9 EHRR 203 and Keegan v Ireland (1994) 18 EHRR 342.

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