Membership of the committee

[1]          These are the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the Convention on the Elimination of Discrimination against Women (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child (CRC); and the Convention on the Rights of Persons with Disabilities (CRPD).

Chapter 1 - New and continuing matters

[1]          See Appendix 1 for a list of legislation in respect of which the committee has deferred its consideration. The committee generally takes an exceptions-based approach to its substantive examination of legislation.

[2]          The committee examines legislative instruments received in the relevant period, as listed in the Journals of the Senate. 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.

[3]          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.

[4]          Subject to the requirement that the respective state legislation meets the requirements in section 35 of the Telecommunications (Interception and Access) Act 1979 (TIA Act).

[5]          'Communication' is defined in section 5 of the TIA Act as 'conversation and a message, and any part of a conversation or message, whether: (a) in the form of: (i) speech, music or other sounds; (ii) data; (iii) text; (iv) visual images, whether or not animated; or (v) signals; or (b) in any other form or in any combination of forms.' See also, TIA Act section 46.

[6]          See section 107H of the TIA Act.

[7]          See section 109 of the TIA Act.

[8]          'Telecommunications data' refers to metadata rather than information that is the content or substance of a communication: see section 172 of the TIA Act.

[9]          Explanatory memorandum (EM), statement of compatibility (SOC) 9.

[10]          EM, SOC 11.

[11]          That is, the interception of live communications.

[12]          See, Parliamentary Joint Committee on Human Rights, Twentieth Report of the 44th Parliament (18 March 2015) at [1.161].

[13]        Parliamentary Joint Committee on Human Rights, Fifteenth Report of the 44th Parliament (November 2014) at [1.44] to [1.49].

[14]        See, Parliamentary Joint Committee on Human Rights, Twentieth Report of the 44th Parliament (18 March 2015); and Fifteenth Report of the 44th Parliament (14 November 2014) [1.44] to [1.49].

[15]        Parliamentary Joint Committee on Human Rights, Thirty-first Report of the 44th Parliament (24 November 2015) 44.

[16]        Parliamentary Joint Committee on Human Rights, Sixth Report of 2013 (15 May 2013) 189‑191; and Thirty-first Report of the 44th Parliament (24 November 2015) 37‑44.

[17]        EM, SOC 13.

[18]          Explanatory memorandum (EM) 11.

[19]          EM 5.

[20]          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. The non-refoulement obligations under the CAT and the ICCPR are known as 'complementary protection' as they are protection obligations available both to refugees and to people who are not covered by article 33 of the Convention relating to the Status of Refugees.

[21]          Section 338 of the Migration Act 1958 defines a 'Part 5 - reviewable decision'. See also section 336M for a general overview of reviewable decisions under the Act.

[22]          See the committee's previous comments in relation to these rights: Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 198; Second Report of the 44th Parliament (11 February 2014), paragraphs [1.89] to [1.99]; and Fourth Report of the 44th Parliament (18 March 2014) paragraphs [3.55] to [3.66] (both relating to the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013).

[23]          Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 202-204; and Nineteenth Report of the 44th Parliament (3 March 2015) 17‑20.

[24]          EM, statement of compatibility (SOC) 48-49.

[25]          Pursuant to articles 2, 16 and 26 of the ICCPR. The rights to equality and non-discrimination are also protected by articles 1, 2, 4 and 5 of the Convention on the Elimination of All Forms of Racial Discrimination.

[26]          EM, SOC 50.

[27]        EM, SOC 51.

[28]        EM, SOC 51.

[29]        EM, SOC 50.

[30]        EM, SOC 51.

[31]        EM, SOC 51.

[32]          Regional processing countries include Republic of Nauru (Nauru) or Papua New Guinea (PNG) where off-shore immigration detention centres operate.

[33]          See proposed section 5(1) of the Migration Act 1958 (Migration Act) which defines members of the 'regional processing cohort' as 'unauthorised maritime arrivals' (UMAs) and 'transitory persons' who were taken to a regional processing country after 19 July 2013. UMA is defined in section 5AA(a) of the Migration Act and includes asylum seekers who arrived in the migration zone by boat. A 'transitory person' is defined in section 5(1) of the Migration Act and includes a person who attempted to enter Australia by boat but may have been taken directly to a regional processing country without first having been taken to Australia under Part 3 of the Maritime Powers Act 2013.

[34]          See proposed sections 46A(2)(2AB)-(2AC), 46B(2)(2AA)-(2AB) and proposed section 46A(8) of the Migration Act.

[35]          See explanatory memorandum (EM) 21; 24.

[36]          See Universal Declaration of Human Rights article 14.

[37]          See, Migration Act sections 501 and 501E; Migration Regulations 1994, schedule 5.

[38]          Article 31(1) provides 'The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence'.

[39]          The prohibited grounds of discrimination or 'protected attributes' include 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.

[40]          Althammer v Austria HRC 998/01 [10.2]. See above, for a list of 'personal attributes'.

[41]        See, Elibritt Karlsen, Australia's offshore processing of asylum seekers in Nauru and PNG: A Quick Guide to statistics and resources (30 June 2016) http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1516/Quick_Guides/Offshore#_Nationalities_of_asylum (last accessed 14 November 2016).

[42]        See, D.H. and Others v the Czech Republic ECHR Application no. 57325/00 (13 November 2007) 49; Hoogendijk v. the Netherlands ECHR, Application no. 58641/00 (6 January 2005).

[43]        See, for example, Althammer v Austria HRC 998/01 [10.2].

[44]        EM 24.

[45]        See A Zimmerman (ed) The 1951 Convention relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press, Oxford, 2011), article 31.

[46]        EM, statement of compatibility 24.

[47]        Article 3(1).

[48]        EM 23.

[49]        EM 24.

[50]        EM 23.

[51]        See proposed section 46A(2).

[52]        See, Hasan and Chaush v Bulgaria ECHR 30985/96 (26 October 2000) [84].

[53]          Pursuant to Schedule 1, item 5, paragraph 16CA(1)(a).

[54]          At Schedule 1, item 5, paragraphs 16D(1)(c), 16E(1)(c) and (e) and 16F(1)(c).

[55]          Explanatory memorandum (EM), statement of compatibility (SOC) 9.

[56]          Proposed section 16F proscribes conduct to which a civil penalty applies, but this does not engage the prohibition on retrospective criminal law.

[57]          EM, SOC 9.

[58]          See Schedule 1, item 5, proposed section 16D.

[59]          See Schedule 1, item 5, proposed section 16E.

[60]          See Schedule 1, item 5, proposed section 16G.

[61]          See Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, [30].

[62]        EM, SOC 6.

[63]        EM, SOC 8.

[64]        EM, SOC 8.

[65]          See Parliamentary Joint Committee on Human Rights, Sixth report of 2013 (15 May 2013) 58‑64.

[66]          See explanatory statement (ES) 1.

[67]          ES, statement of compatibility (SOC) 5.

[68]          See Sex Discrimination Amendment (Exemptions) Regulation 2015 [F2015L01151], ES 1.

[69]          ES, SOC 5.

[70]          See Parliamentary Joint Committee on Human Rights, Third Report of 2013 (13 March 2013) 65; Seventh Report of 2013 (5 June 2013) 21; Third Report of the 44th Parliament (March 2014) 3; Eighth Report of the 44th Parliament (June 2014) 5, 31; Twentieth Report of the 44th Parliament (18 March 2015) 5; Twenty-third Report of the 44th Parliament (18 June 2015) 13; Thirty-fourth Report of the 44th Parliament (23 February 2016) 2.

[71]          Parliamentary Joint Committee on Human Rights, Seventh Report of 2013 (5 June 2013) 21; and Eighth Report of the 44th Parliament (18 June 2014) 32.

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

[73]          Parliamentary Joint Committee on Human Rights, Twenty-third Report of the 44th Parliament (18 June 2015) 17.

[74]          Explanatory statement (ES), statement of compatibility (SOC) 4.

[75]          ES, SOC 4.

[76]          ES, SOC 4.

[77]          See UN Office of the High Commissioner for Human Rights, Manual on Human Rights Monitoring, at http://www.ohchr.org/Documents/Publications/Chapter20-48pp.pdf.

[78]          For example, from 1983 to 2013 a Women's Budget Statement was prepared by the Australian Government which set out the impact of budget measures on women and also gender equality.

[79]        See, for example, Diane Elson, Budgeting for Women's Rights: Monitoring Government Budgets for Compliance with CEDAW, (Unifem 2006) http://www.unicef.org/spanish/socialpolicy/files/Budgeting_for_Womens_Rights.pdf; UN Practitioners' Portal on Human Rights Approaches to Programming, Budgeting Human Rights http://hrbaportal.org/archives/tools/budgeting-human-rights; Rory O'Connell, Aoife Nolan, Colin Harvey, Mira Dutschke, Eoin Rooney, Applying an International Human Rights Framework to State Budget Allocations: Rights and Resources (Routledge 2014).

[80]          See Criminal Code Act 1995 sections 268.70-72.

[81]          Explanatory memorandum (EM), statement of compatibility (SOC) 3.

[82]          EM, SOC 4-5.

[83]          See, for example, Pearson v United Kingdom [2011] ECHR 2319 (13 December 2011); Philip Alston, Report on Extrajudicial, Summary or Arbitrary Executions (2006) E/CN.4/2006/53 [36].

[84]          The Geneva Conventions contain obligations to investigate and prosecute alleged grave breaches of the Conventions, including the wilful killing of protected persons (articles 49 and 50 of Geneva Convention I; articles 50-51 of Geneva Convention II; articles 129 and 130 of Geneva Convention III; articles 146 and 147 of Geneva Convention IV).

[85]          See, Al-Saadoon & Ors Secretary of State for Defence [2015] EWHC; Smith v The Ministry of Defence [2013] UKSC 41 (19 June 2013); Al-Jedda v United Kingdom [2011] ECHR 1092 (7 July 2011); Al-Skeini & Ors v United Kingdom [2011] ECHR 1093 (7 July 2011).

[86]          EM, SOC 4.

[87]          See Philip Alston, Study on targeted killings (2010) A/HRC/14/24/Add.6, 10; Legality of the Threat or Use of Nuclear Weapons (1996) (Advisory Opinion) ICJ rep. 226, [25]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) (Advisory Opinion) I.C.J. Rep. [106]; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (2005) I.C.J. Rep., [216].

[88]          See also Parliamentary Joint Committee on Human Rights, Twenty-second report of the 44th Parliament (13 May 2015) 141 (in respect of Counter-Terrorism Legislation Amendment Bill (No. 1) 2014).

[89]        International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009) 27.

[90]        EM, SOC 8.

[91]        Additional Protocol I, article 51(3); article 50(1) (defining civilian); articles 13(3) and 51(3); Geneva Conventions III and IV, article 3; Additional Protocol II, articles 4 and 13(3).

[92]        See minister's second reading speech 2-3, referring to ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009).

[93]        See Emily Crawford and Alison Pert, International Humanitarian Law (2015) 40-41.

[94]        Philip Alston, Study on targeted killings (2010) A/HRC/14/24/Add.6, 19-20; see also ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009) 31-36.

[95]          This may be because the bill does not engage or promotes human rights, and/or permissibly limits human rights.

Chapter 2 - Concluded matters

[1]          See list contained in Parliamentary Joint Committee on Human Rights, Twenty-eighth Report of the 44th Parliament (17 September 2015). See also, Thirty-third Report of the 44th Parliament (2 February 2016). Previous instruments examined include, for example, Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Zimbabwe) Amendment List 2013 [F2013L00477]; Charter of the United Nations Legislation Amendment Regulation 2013 (No. 1) [F2013L00791]; Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2013 (No. 1) [F2013L00789]; Charter of the United Nations (Sanctions – the Taliban) Regulation 2013 [F2013L00787]; and Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Zimbabwe) Amendment List 2013 (No. 2) [F2013L00857].

[2]          These are the Autonomous Sanctions (Designated Persons and Entities and Declared Persons ‑ Iran) Amendment List 2016 (No. 1) [F2016L00047]; Autonomous Sanctions (Designated Persons and Entities and Declared Persons - Iran) Amendment List 2016 (No. 2) [F2016L00117]; Autonomous Sanctions (Designated Persons and Entities – Democratic People's Republic of Korea) Amendment List 2016 [F2016L00799]; Autonomous Sanctions (Designated Persons and Entities and Declared Persons - Iran) Amendment List 2016 (No. 3) [F2016L01100]; and Charter of the United Nations (Sanctions—Iran) Regulation 2016 [F2016L01181].

[3]          See subsection 10(2) of the Autonomous Sanctions Act 2011.

[4]          As at 24 August 2016, the countries listed were the Democratic People's Republic of Korea; the former Federal Republic of Yugoslavia; Iran; Libya; Myanmar; Syria; Zimbabwe; and Ukraine (see section 6 of the Autonomous Sanctions Regulations 2011).

[5]          See, in particular, the Charter of the United Nations (Dealing with Assets) Regulations 2008 [F2014C00689].

[6]          See, Charter of the United Nations (Dealing with Assets) Regulations 2008 [F2014C00689] section 20.

[7]          See Department of Foreign Affairs and Trade, 'Consolidated List', available at: http://dfat.gov.au/international-relations/security/sanctions/pages/consolidated-list.aspx.

[8]          See Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014); Sixteenth Report of the 44th Parliament (25 November 2014); Nineteenth Report of the 44th Parliament (3 March 2015); Twenty-second Report of the 44th Parliament (13 May 2015); and Thirty-sixth Report of the 44th Parliament (16 March 2016).

[9]          See Parliamentary Joint Committee on Human Rights, Sixth Report of 2013 (15 May 2013); Seventh Report of 2013 (5 June 2013); and Tenth Report of 2013 (26 June 2013).

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

[11]        Parliamentary Joint Committee on Human Rights, Thirty-third Report of the 44th Parliament (2 February 2016).

[12]        Section 14 of the Autonomous Sanctions Regulations 2011 and section 21 of the Charter of the United Nations Act 1945.

[13]        The right to privacy is impacted by the automatic designation of a person by the UN Security Council, as Australia is bound by the UN Charter to implement UN Security Council decisions. See article 2(2) and article 41 of the Charter of the United Nations 1945. See, discussion of relevant case law at [2.38].

[14]        See examples in the committee's previous analysis at paragraph [1.114] of the Twenty-eighth Report of the 44th Parliament and section 6 of the Autonomous Sanctions Regulations 2011.

[15]        The minister has clarified that reasons are required upon request by a person aggrieved by a designation or declaration, pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977, see discussion at [2.27].

[16]        For example, under the autonomous sanctions regime a person can be designated or declared by the minister on a number of grounds relating to whether the minister is subjectively satisfied the person is or has been involved in certain activities. These include, for example, that a person is a supporter of the former regime of Slobodan Milosevic; is a close associate of the former Qadhafi regime in Libya (or an immediate family member); is providing support to the Syrian regime; is responsible for human rights abuses in Syria; has engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe; or is responsible for, or complicit in, the threat to the sovereignty and territorial integrity of Ukraine.

[17]        See Financial Action Task Force (FATA) Methodology.

[18]        See Parliamentary Joint Committee on Human Rights, Twenty-eighth Report of the 44th Parliament (17 September 2015) [1.116] to [1.123].

[19]        See, Parliamentary Joint Committee on Human Rights, Twenty-eighth Report of the 44th Parliament (17 September 2015) [1.114.], [1.133]

[20]        As at 2 September 2015, the list of countries from which people have been designated by the UN Security Council are the Central African Republic; Côte d'Ivoire; Democratic People's Republic of Korea; Democratic Republic of the Congo; Eritrea; Iran; Iraq; Lebanon; Liberia; Somalia; South Sudan; Sudan; and Yemen. Also listed are individuals said to be involved with Al-Qaida; the Taliban; and Libyan Arab Jamahiriya, as well as anyone the UN Security Council lists under Resolution 1373. As such these instruments implement Australia's international obligations under the UN Charter with respect to decisions by the UN Security Council.

[21]        See section 15 of the Charter of the United Nations Act 1945, s 20 of the Charter of the United Nations (Dealing with Assets) Regulations 2008 [F2014C00689] and resolution 1373 of the UN Security Council.

[22]        See Department of Foreign Affairs and Trade, 'Consolidated List', available at: http://dfat.gov.au/international-relations/security/sanctions/pages/consolidated-list.aspx.

[23]        See, Hasan and Chaush v Bulgaria (2000) ECHR (Application no. 30985/96) (26 October 2000), [84].

[24]        ECHR (Application no. 5809/08) (21 June 2016).

[25]        Under the UN Charter sanctions regime, a person specifically listed in a UNSC resolution will be subject to designation under Australian law without there being any process under Australian law to challenge that designation. That is, the minister does not have any discretion in these circumstances.

[26]        See section 26 of Terrorist Asset-Freezing etc. Act 2010 (UK) (TAFA 2010).

[27]        See section 30 of TAFA 2010.

[28]        See David Anderson QC, Independent Reviewer of Terrorism Legislation, Third Report on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Review Period: Year to 16 September 2013) (December 2013) para 1.3.

[29]        See section 4 of TAFA 2010; David Anderson QC, Independent Reviewer of Terrorism Legislation, First Report on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Review Period: December 2010 to September 2011) (December 2011) para 6.5; and Third Report on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Review Period: Year to 16 September 2013) (December 2013) para 3.4.

[30]        See subs 16(3) of TAFA 2010.

[31]        David Anderson QC, Independent Reviewer of Terrorism Legislation, Third Report on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Review Period: Year to 16 September 2013) (December 2013) para 3.2.

[32]        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.

[33]          Namely the Charter of the United Nations (Sanctions—Iran) Regulation 2016 [F2016L01181] and the United Nations (Sanctions—Iran) (Export Sanctioned Goods) List Determination 2016 [F2016L01208], which lists the export sanctioned goods as determined by the minister pursuant to subregulation 6(2) of the Regulation.

[34]          See INFCIRC/254/Part 1; referred to in the minister's letter as INFCIRC/254/Rev. 12/Part 1, a 13 November 2013 document, but in the 2016 Iran Sanctions Regulations as 'in force from time to time'. See also INFCIRC/254/Part 2; referred to in the minister's letter as INFCIRC/254/Rev. 9/Part 2, a 13 November 2013 document, but in the 2016 Iran Sanctions Regulations as 'in force from time to time'. See also S/2015/546, a 16 July 2015 UN Security Council document.

[35]          Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011).

[36]          Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 12.

[37]          Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016) 12.

Appendix 1 - Deferred legislation

[1]          See Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 93.

[2]          See Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 93.

[3]          See Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 93.

[4]          See Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 93.

[5]          See Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 93.

[6]          See Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016) 113. For more information on this inquiry, see the inquiry website at: http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia.

Appendix 2

[1]          Parliamentary Joint Committee on Human Rights, Guide to Human Rights (June 2015).

[2]          Parliamentary Joint Committee on Human Rights, Guidance Note 1 (December 2014).

[3]          The prohibited grounds of discrimination 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. The prohibited grounds of discrimination are often described as 'personal attributes'.

[4]           Althammer v Austria HRC 998/01, [10.2]. See above, for a list of 'personal attributes'.