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]
For more information regarding the committee's previous comments see Parliamentary
Joint Committee on Human Rights, Thirty-fourth Report of the 44th Parliament
(23 February 2016) 29.
[3]
For more information regarding the committee's previous comments see Parliamentary
Joint Committee on Human Rights, Thirty-second Report of the 44th Parliament
(1 December 2015) 64.
[4]
For more information regarding the committee's previous comments see Parliamentary
Joint Committee on Human Rights, Thirty-second Report of the 44th Parliament
(1 December 2015) 64.
[5]
See Parliamentary Joint Committee on Human Rights, Thirty-fourth
Report of the 44th Parliament (23 February 2016) 4.
[6]
See Parliamentary Joint Committee on Human Rights, Thirty-fourth
Report of the 44th Parliament (23 February 2016) 3.
[7] 'The
expression 'public order (ordre public)'...may be defined as the sum of
rules which ensure the functioning of society or the set of fundamental
principles on which society is founded. Respect for human rights is part of
public order (ordre public)': Siracusa Principles on the Limitation and
Derogation Provisions in the International Covenant on Civil and Political
Rights U.N. Doc. E/CN.4/1985/4, Annex (1985), clause 22.
[8]
See, generally, Human Rights Committee, General comment No 34
(Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, paras 21-36
(2011).
[9]
Explanatory memorandum (EM), statement of compatibility (SOC) [4].
[10]
EM, SOC [4].
[11]
Human Rights Committee, General comment No 34 (Article 19: Freedoms
of opinion and expression), CCPR/C/GC/34, para 38 (2011).
[12]
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.
[13]
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.
[14] Subsection
7A(3).
[15]
Statement of compatibility (SOC) 2-3.
[16]
Explanatory statement, statement of compatibility [1].
[17]
Attorney-General's Department, A Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers (September 2011) 27,
available at https://www.ag.gov.au/Publications/Documents/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers/A%20Guide%20to%20Framing%20Cth%20Offences.pdf.
[18] Royal
Commissions Act 1902 (Cth) (RC Act), section 6D(5).
[19] RC Act,
sections 3 and 6B.
[20] RC Act,
section 6A.
[21]
Explanatory memorandum (EM), statement of compatibility (SOC) [3].
[22]
A derivative use immunity prevents the use of material that has been
compulsorily disclosed to 'set in train a process which may lead to
incrimination or my lead to the discovery of real evidence of an incriminating
character.' See Rank Film Distributors Ltd and Others v Video Information
centre and Others [1982] AC 380 per Lord Wilberforce at 443.
[23]
Attorney-General's Department, A Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers (September 2011) 27,
available at https://www.ag.gov.au/Publications/Documents/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers/A%20Guide%20to%20Framing%20Cth%20Offences.pdf.
[24]
RC Act, section 6A.
[25] RC Act,
sections 3 and 6B.
[26] RC Act,
section 6A.
[27]
EM, SOC [4].
[28]
Parliamentary Joint Committee on Human Rights, Fourteenth Report of
the 44th Parliament (28 October 2014) 70-92.
[29]
See explanatory statement (ES), Attachment B 5-9.
[30]
See above footnote 1.
[31] Parliamentary
Joint Committee on Human Rights, Twenty-fourth Report of the 44th Parliament
(24 June 2015) 20-24.
[32]
See Parliamentary Joint Committee on Human Rights, Fourteenth
Report of the 44th Parliament (28 October 2014) 70-92.
[33]
ES, Attachment B 9.
[34]
See clause 8570 of Schedule 8 to the Migration Regulations 1994.
[35]
See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for
Immigration and Border Protection, to the Hon Philip Ruddock MP (received 20
July 2015) 2-3.
[36]
See UN Human Rights Committee, General Comment 27: Freedom of movement
(1999) paragraphs [8] to [10].
Chapter 2 - Concluded matters
[1]
See amendments in item 6 of the bill to paragraph 36(1)(a) of the
Citizenship Act.
[2] Parliamentary
Joint Committee on Human Rights, Twenty-fifth Report of the 44th Parliament
(11 August 2015) 4-46.
[3] Section
72.3 of the Criminal Code.
[4] Section
101.1 of the Criminal Code.
[5] Section
101.2 of the Criminal Code.
[6] Section
102.2 of the Criminal Code.
[7] Section
102.4 of the Criminal Code.
[8] Section
103.1 of the Criminal Code.
[9] Section
103.2 of the Criminal Code.
[10]
Section 119.1 and 119.4 of the Criminal Code.
[11]
Section 119.2 of the Criminal Code.
[12]
Subsections 119.4(3) and (4) of the Criminal Code.
[13]
Subsection 119.4(5) of the Criminal Code.
[14]
Section 119.5 of the Criminal Code.
[15]
Section 119.7 of the Criminal Code.
[16] Section
33AA(4).
[17] Section
33AA(20), (22).
[18] Parliamentary
Joint Committee on Intelligence and Security, Advisory Report on the Australian
Citizenship Amendment (Allegiance to Australia) Bill 2015 (September 2015) 179,
paragraph [9.3].
[19]
Article 12 of the International Covenant on Civil and Political Rights
(ICCPR).
[20]
Article 17 of the ICCPR.
[21]
Articles 17 and 23 of the ICCPR and article 10 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR).
[22]
Article 25 of the ICCPR.
[23]
Article 9 of the ICCPR.
[24]
Articles 6 and 7 of the ICCPR and the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
[25]
Article 26 of the ICCPR.
[26]
Article 14 of the ICCPR.
[27]
Article 15 of the ICCPR.
[28]
Article 14(7) of the ICCPR.
[29]
Convention on the Rights of the Child (CRC).
[30]
For example, full access to a range of benefits, such as social
security, health care, education and work rights, may only be available to
citizens (or those holding permanent residency visas) and loss of citizenship,
and a consequential loss of a right to full residence in Australia, would constitute
a limitation on the ex-citizen's economic, social and cultural rights.
[31]
Articles 6, 7 and 8 of the ICESCR.
[32]
Article 9 of the ICESCR.
[33]
Article 11 of the ICESCR.
[34]
Article 12 of the ICESCR.
[35]
Article 13 and 14 of the ICESCR and article 28 of the CRC.
[36]
Explanatory memorandum (EM), Attachment A 29.
[37]
See Second Reading Speech, the Hon Peter Dutton MP, Minister for
Immigration and Border Protection (24 June 2015).
[38]
See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for
Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14
January 2016) 3-6.
[39] Revised
explanatory memorandum (Revised EM), Attachment A 55.
[40]
See Second Reading Speech, the Hon Peter Dutton MP, Minister for
Immigration and Border Protection (24 June 2015).
[41] Revised
EM, Attachment A 52.
[42] The
original bill simply provided that the minister has the power to exempt a
person if he or she considered it 'in the public interest' to do so: see
Original bill, proposed section 33AA(7), 35A(6).
[43] Citizenship
Act, section 33AA(15), (20), 35A(10).
[44] Citizenship
Act, section 33AA(22), 35A(11).
[45]
EM, Attachment A 29.
[46]
EM, Attachment A 29.
[47]
See proposed section 35A of the bill which provides that citizenship
ceases if a person is convicted of an offence against section 29 of the Crimes
Act, which makes it an offence to damage property belonging to the
Commonwealth.
[48]
Revised EM, Attachment A 55.
[49]
UN Human Rights Committee, General Comment 27, Freedom of Movement
(1999) [21].
[50]
Genovese v Malta, European Court of Human Rights, Application no.
5314/09 (11 November 2011). This is based on article 8 of the
European Convention on Human Rights which is in substantially similar terms to
article 17 of the ICCPR.
[51]
UK Joint Committee on Human Rights, Legislative Scrutiny: Immigration
Bill (second report), Twelfth Report of Session 2013-14 (26 February
2014) available at: http://www.publications.parliament.uk/pa/jt201314/jtselect/jtrights/142/142.pdf.
[52]
Immigration Bill, European Convention on Human Rights, Supplementary
Memorandum by the Home Office (January 2014) [12], available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/276660/Deprivation_ECHR_memo.pdf.
[53]
EM, Attachment A 33-34.
[54]
Revised EM, Attachment A 56.
[55]
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.
[56]
UN Human Rights Committee, General Comment 18, Non-discrimination (1989).
[57]
Althammer v Austria HRC 998/01, [10.2].
[58]
EM, Attachment A 32.
[59]
Althammer v Austria HRC 998/01, [10.2].
[60]
EM, Attachment A 32.
[61] Niamh
Lenagh-Maguire and Kim Rubenstein, 'More or Less Secure?
Nationality questions, deportation and dual nationality' in Edwards and van
Waas (eds) Nationality and Statelessness under International Law
(Cambridge 2014).
[62] CAT,
article 3(1); 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.
[63] 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.
[64] 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.
[65]
For example, see A v Australia (Human Rights Committee Communication
No. 560/1993) and C v Australia (Human Rights Committee Communication
No. 900/1999). See also F.K.A.G et al v Australia (Human Rights
Committee Communication No. 2094/2011) and M.M.M et al v Australia (Human
Rights Committee Communication No. 2136/2012).
[66] For
further analysis see the committee's analysis in this report in relation to the
Migration and Maritime Powers Amendment Bill (No. 1) 2015.
[67]
See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for
Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14
January 2016) 6.
[68]
See section 35 of the Migration Act 1958.
[69] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 14 January 2016) 6.
[70] Revised
EM, Attachment A 53.
[71]
Most recently, see Thirty-Fourth Report of the 44th
Parliament (23 February 2016) 34-37.
[72]
EM 31.
[73]
For example, an individual maybe denied consular assistance at an
Australian embassy on the basis that they are no longer a citizen because they
have travelled to Mosul which a declared area.
[74]
See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for
Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14
January 2016) 8.
[75] See section 33AA(11) and section 35(6) of the Citizenship Act.
[76]
See UN Human Rights Committee, General Comment 32 [15].
[78]
See, Rebecca Kingston, 'The Unmaking of Citizens:
Banishment and the Modern Citizenship Regime in France', (2005) 9 Citizenship
Studies23. Macklin, Audrey and Rainer Baubock, 'The Return of
Banishment: Do the New Denationalisation Policies Weaken Citizenship?'
(February 2015), Robert Schuman Centre for Advanced Studies Research Paper No.
RSCAS 2015/14. Barry, Christian and Luara Ferracioli, 'Can Withdrawing
Citizenship Be Justified?', Political Studies (forthcoming), accessed at
http://philpapers.org/archive/BARCWC-3.pdf.
[79]
See EM 30 which acknowledges that the measures may ultimately result in
the expulsion of the former Australian citizen.
[80]
See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for
Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14
January 2016) 8-9.
[81]
See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for
Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14
January 2016) 8.
[82] Section
33AA(12).
[83]
See the terms of references to the Parliamentary Joint Committee on
Intelligence and Security, Inquiry into the Australian Citizenship Amendment
(Allegiance to Australia) Bill 2015, available at: http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Citizenship_Bill/Terms_of_Reference.
[84]
See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for
Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14
January 2016) 9.
[85] Parliamentary
Joint Committee on Intelligence and Security, Advisory report on the
Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (4
September 2015) 128, Recommendation 10.
[86] Tom
Bingham, The Rule of Law (2011) 74.
[87] Revised
EM, Attachment A 58.
[88] ICCPR,
article 15(2).
[89] Mohamed
Shahabuddeen, 'Does the Principle of Legality Stand in the way of Progressive
Development of Law?' (2004) 2 Journal of International Criminal Justice 1007,
1011.
[90] Polyukhovich
v Commonwealth (1991) 172 CLR 501.
[91] Revised EM
42.
[92] Revised
EM, Attachment A 58.
[93] Revised EM, Attachment A, 48.
[94] Revised EM, Attachment A 50.
[95]
Article 3(1).
[96]
EM 33.
[97]
See Appendix 1, Letter from the Hon Peter Dutton MP, Minister for
Immigration and Border Protection, to the Hon Philip Ruddock MP (received 14 January
2016) 11.
[98] Committee
on the Rights of the Children, General comment No. 14 (2013) on the right of
the child to have his or her best interests taken as a primary consideration
(art. 3, para. 1) [40].
[99] Citizenship
Act, section 33AA(15), (20), 35A(10).
[100] Citizenship
Act, section 33AA(22), 35A(11).
[101]
Article 24(3) of the ICCPR.
[102]
EM 34.
[103]
Professor Jaap Doek,'The CRC and the Right to Acquire and to Preserve a
Nationality' Refugee Survey Quarterly 25(3), 26.
[104]
EM 34.
[105] See
Parliamentary Joint Committee on Human Rights, Thirteenth Report of the
44th Parliament (1 October 2014) 6-13; and Parliamentary Joint
Committee on Human Rights, Sixteenth Report of the 44th Parliament (25
November 2014) 33-60.
[106]
See Parliamentary Joint Committee on Human Rights, Fourteenth
Report of the 44th Parliament (28 October 2014) 3-69; Parliamentary
Joint Committee on Human Rights, Nineteenth Report of the 44th Parliament (3
March 2015) 56-100; and Parliamentary Joint Committee on Human Rights, Thirtieth
Report of the 44th Parliament (10 November 2015) 82‑101.
[107]
Parliamentary Joint Committee on Human Rights, Sixteenth Report of
the 44th Parliament (25 November 2014) 7-21; and Parliamentary Joint
Committee on Human Rights, Twenty‑second Report of the 44th Parliament
(13 May 2015) 129-162.
[108] Parliamentary
Joint Committee on Human Rights, Thirty-second Report of the 44th Parliament
(1 December 2015) 3-37.
[109]
See Parliamentary Joint Committee on Human Rights, Fourteenth
Report of the 44th Parliament (October 2014) 3.
[110]
See Parliamentary Joint Committee on Human Rights, Sixteenth Report
of the 44th Parliament (November 2014) 7.
[111]
Articles 2, 16 and 26,
International Covenant on Civil and Political Rights (ICCPR). Related
provisions are also contained in the International Convention on the
Elimination of All Forms of Racial Discrimination (CERD), 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
(CRC) and article 27 of the Convention on the Rights of Persons with
Disabilities (CRPD).
[112]
Article 9, ICCPR.
[113]
Article 12, ICCPR.
[114]
Article 14, ICCPR.
[115]
Article 17, ICCPR, and article 16, CRC.
[116]
Article 19, ICCPR and articles 13 and 14, CRC.
[117]
Article 22, ICCPR.
[118]
Articles 23 and 24, ICCPR.
[119]
Article 7, ICCPR, and the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT).
[120]
Article 6, International Covenant on Economic, Social and Cultural
Rights (ICESCR).
[121]
Article 9 and 11, ICESCR.
[122]
Article 3, CRC.
[123]
See Parliamentary Joint Committee on Human Rights, Fourteenth Report
of the 44th Parliament (October 2014) 3.
[124]
For example, see Independent National Security Legislation Monitor, Declassified
Annual Report (20 December 2012) 30.
[125]
Recommendation 37, Australian Government, Council of Australian
Governments Review of Counter-Terrorism Legislation (2013).
[126]
See Appendix 1, Letter from Senator the Hon George Brandis,
Attorney-General, to the Hon Philip Ruddock MP (received 25 February 2016) 3.
[127]
Report 14, 16, 19 and 22.
[128]
Independent National Security Legislation Monitor, Declassified
Annual Report (20 December 2012) 30.
[129]
Lodhi v R [2006] NSWCCA 121 per Spigelman CJ at [66].
[130]
Independent National Security Legislation Monitor, Declassified
Annual Report (20th December 2012) 30.
[131]
The Hon Roger Gyles AO QC, Control order safeguards – (INSLM Report)
Special Advocates and the Courter Terrorism Legislation Amendment Bill (No1)
2015 (January 2016) 3.
[132]
EM 16.
[133]
EM 15.
[134]
See United Nations Human Rights Committee, General Comment No. 35
Article 9 (Liberty and Security of person), UN Doc CCPR/C/GC/35, 1-2.
[135]
Secretary of State for the Home Department v JJ & Others
[2007] UKHL 45; Secretary of State for the Home Department v E & Another
[2007] UKHL 47; Secretary of State for the Department v MB & AF
[2007] UKHL 46; Guzzardi v Italy, Application 7367/76, Decision of
11 June 1980.
[136]
AP v Secretary of State for the Home Department [2010] UKSC 24.
See also Guzzardi v Italy, Application 7367/76, Decision of 11 June
1980.
[137] Publicly
available on the PJCIS website:
http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security
[138]
See Appendix 1, Letter from Senator the Hon George Brandis, Attorney-General,
to the Hon Philip Ruddock MP (received 25 February 2016) 3-6.
[139] UN
Committee on the Rights of the Child, General Comment 14, (2013), UN Doc.
CRC/C/GC/14, [37]- [39]
[140]
United Nations Human Rights Committee, General Comment No. 35 Article
9 (Liberty and Security of person), UN Doc CCPR/C/GC/35, 1-2 [Footnotes
omitted].
[141]
Secretary of State for the Home Department v JJ & Others
[2007] UKHL 45; Secretary of State for the Home Department v E & Another
[2007] UKHL 47; Secretary of State for the Department v MB & AF
[2007] UKHL 46; Guzzardi v Italy, Application 7367/76, Decision of
11 June 1980.
[142]
AP v Secretary of State for the Home Department [2010] UKSC 24.
See also Guzzardi v Italy, Application 7367/76, Decision of 11 June
1980.
[143]
AP v Secretary of State for the Home Department [2010] UKSC 24.
[144]
See item 46 of Schedule 2 to the bill, proposed new section 104.28AA(4).
[145]
See Appendix 1, Letter from Senator the Hon George Brandis,
Attorney-General, to the Hon Philip Ruddock MP (received 25 February 2016) 6-7.
[146]
EM, SOC 17.
[147]
The Hon Roger Gyles AO QC, Control order safeguards – (INSLM Report)
Special Advocates and the Courter Terrorism Legislation Amendment Bill (No1)
2015, January 2016, 3.
[148]
See subsection 105.4(4) of the Criminal Code Act 1995 (Criminal
Code). There is also the power for a PDO to be issued if a terrorist act has
occurred within the last 28 days and it is reasonably necessary to detain a
person to preserve evidence (subsection 105.4(6)).
[149]
See subsection 105.4(5) of the Criminal Code.
[150]
EM, SOC 22.
[151]
See Appendix 1, Letter from Senator the Hon George Brandis,
Attorney-General, to the Hon Philip Ruddock MP (received 25 February 2016) 7-8.
[152]
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); and Twenty-second Report of the 44th Parliament (13 May
2015).
[153]
Council of Australian Governments Review of Counter-Terrorism
Legislation (2013) 70 and recommendation 39.
[154] Independent
National Security Legislation Monitor, Declassified annual report (20 December 2012)
45.
[155]
Independent National Security Legislation Monitor, Declassified
annual report (20 December 2012) 52-53.
[157]
Section 101.6 of the Criminal Code make its offence to do 'any act in
preparation for, or planning a terrorist act.
[158]
Lodhi v R [2006] NSWCCA 121 per Spigelman CJ at [66].
[159]
Parliamentary Joint Committee on Intelligence and Security, Advisory
report on the Counter‑Terrorism Legislation Amendment Bill (No.1) 2015
(15 February 2016) xviii.
[160]
EM 12.
[161]
See Appendix 1, Letter from Senator the Hon George Brandis,
Attorney-General, to the Hon Philip Ruddock MP (received 25 February 2016)
8-10.
[162] Independent
National Security Legislation Monitor, Control Order Safeguards (INSLM)
Report Special Advocates and the Counter-Terrorism Legislation Amendment Bill
(No 1) 2015 (2016) 3.
[163] Independent
National Security Legislation Monitor, Control Order Safeguards (INSLM)
Report Special Advocates and the Counter-Terrorism Legislation Amendment Bill
(No 1) 2015 (2016) 3.
[164] Pfennig
v The Queen (1995) 182 CLR 461, 485; HML v The Queen (2008) 235 CLR
334.
[165] Evidence
Act 1995 (Cth) ss 97, 101. See also Evidence Act 1995 (NSW); Evidence
Act 2008 (Vic); Evidence Act 2001 (Tas); Evidence Act 2011
(ACT); and Evidence (National Uniform Legislation) Act 2011 (NT).
[166]
See item 53 of Schedule 9 (proposed new section 299) and item 39 of
Schedule 10 (proposed new section 65B).
[167]
See item 53 of Schedule 9 (proposed new section 299) and item 39 of
Schedule 10 (proposed new section 65B).
[168]
(1978) 141 CLR 54.
[169]
Section 138 of the Evidence Act 1995 (Cth).
[170]
Sees 63 of the TIA Act and s 45 of the SD Act.
[171] Brandstetter
v Austria, Application No: 11170/84; 12876/87; 13468/87, Strasbourg
judgment 28 August 1991 §§41-69.
[172]
H. v Belgium, Application No: 8950/80, Strasbourg judgment 30
November 1987 §§49-55.
[173]
See Appendix 1, Letter from Senator the Hon George Brandis,
Attorney-General, to the Hon Philip Ruddock MP (received 25 February 2016)
11-12.
[174]
See item 19 of Schedule 15 to the bill, proposed new subsection 38J(2).
[175]
See item 19 of Schedule 15 to the bill, proposed new subsection 38J(3).
[176]
See item 19 of Schedule 15 to the bill, proposed new subsection 38J(4).
[177]
See item 19 of Schedule 15 to the bill, proposed new subsection 38J(1).
[178]
See section 38I of the National Security Information (Criminal and Civil
Proceedings) Act 2004 (the NSI Act).
[179]
See item 12 of Schedule 15 to the bill.
[180]
See item 15 of Schedule 15 to the bill.
[181]
EM, SOC 24.
[182]
See Appendix 1, Letter from Senator the Hon George Brandis,
Attorney-General, to the Hon Philip Ruddock MP (received 25 February 2016)
12-14.
[183]
See Part 3A of the NSI Act.
[184]
See section 7 of the NSI Act which states that 'information' means that
which is defined in the section 90.1 of the Criminal Code.
[185]
See section 104.5(2A) of the Criminal Code.
[186]
See subsections 104.12A(2) and (3) of the Criminal Code.
[187]
Independent National Security Legislation Monitor, Control Order
Safeguards (INSLM) Report Special Advocates and the Counter-Terrorism
Legislation Amendment Bill (No 1) 2015 (2016) 4.
[188]
See A and Others v the United Kingdom, European Court of Human
Rights, Application no. 3455/05, 19 February 2009, 205.
[189]
See A and Others v the United Kingdom, European Court of Human
Rights, Application no. 3455/05, 19 February 2009, 220. See also the recent
judgment of Sher and Others v the United Kingdom, European Court of Human
Rights, Application no. 520/11, 20 October 2015, which states, at 149, that
'the authorities must disclose adequate information to enable the applicant to
know the nature of the allegations against him and have the opportunity to lead
evidence to refute them. They must also ensure that the applicant or his legal
advisers are able effectively to participate in court proceedings concerning
continued detention'.
[190]
See Secretary of State for the Home
Department v AF (No.3) [2009] UKHL 28 per Lord Hope
at paragraph 87 and per Lord Scott at paragraph 96.
[191]
Parliamentary Joint Committee on Intelligence and Security, Advisory
report on the Counter‑Terrorism Legislation Amendment Bill (No.1) 2015
(15 February 2016) xiv-xv.
[192]
Parliamentary Joint Committee on Human Rights, Second Report of the
44th Parliament (11 February 2014) 31-35.
[193] Parliamentary
Joint Committee on Human Rights, Fourth Report of the 44th Parliament
(18 March 2014) 39-40.
[194] Parliamentary
Joint Committee on Human Rights, Thirtieth Report of the 44th Parliament
(10 November 2015) 4-10.
[195]
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.
[196]
See Appendix 1, Letter from the Senator the Hon George Brandis,
Attorney-General, to the Hon Philip Ruddock MP (dated and received 11 February
2016) 1-2.
[197]
See Appendix 1, Letter from the Senator the Hon George Brandis, Attorney-General,
to the Hon Philip Ruddock MP (dated and received 11 February 2016) 1-2.
[198] Arrest
Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium)
(Judgment) [2002] ICJ Rep 3, 76-7.
[199]
Explanatory memorandum (EM), statement of compatibility (SOC) 4.
[200]
Parliamentary Joint Committee on Human Rights, Fourth Report of the
44th Parliament (18 March 2014) 40.
[201]
See Appendix 1, Letter from the Senator the Hon George Brandis,
Attorney-General, to the Hon Philip Ruddock MP (dated and received 11 February
2016) 3.
[202]
EM, SOC 5.
[203]
See Appendix 1, Letter from the Senator the Hon George Brandis,
Attorney-General, to the Hon Philip Ruddock MP (dated and received 11 February
2016) 4.
[204] Parliamentary
Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament
(28 October 2014) 70-92.
[205] 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; Article 31 of the Refugee Convention.
[206] Article
9 of the ICCPR.
[207] Article
7 of the ICCPR.
[208] Article
12 of the ICCPR.
[209] Article
14 of the ICCPR.
[210] Articles
3 and 10 of the Convention on the Rights of the Child (CRC).
[211] Australia
acceded to the 1951 Convention Relating to the Status of Refugees on 17 January
1954, and acceded to its 1967 Protocol on 13 December 1973.
[212] See, for
example, Explanatory Memorandum (EM), Attachment A, 22.
[213] See EM,
Attachment A, 6, 28.
[214] See EM,
Attachment A, 6, 28.
[215] CAT,
article 3(1); 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.
[216] See
Refugee Convention, article 33. 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 the
Refugee Convention, and so are 'complementary' to the Refugee Convention.
[217] ICCPR,
article 2. See Parliamentary Joint Committee on Human Rights, Second Report
of the 44th Parliament (11 February 2014), Migration Amendment (Regaining
Control over Australia's Protection Obligations) Bill 2013, 45, and Fourth
Report of the 44th Parliament (18 March 2014), Migration Amendment (Regaining
Control over Australia's Protection Obligations) Bill 2013, 513.
[218] EM, Attachment
A, 6.
[219] ICCPR,
article 2. See Parliamentary Joint Committee on Human Rights, Second Report
of the 44th Parliament (11 February 2014) 45, 49-51; Fourth Report of
the 44th Parliament (18 March 2014) 51, 55-57.
[220] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 21-23.
[221]
ICCPR, article 2. See Parliamentary Joint Committee on Human Rights, Second
Report of the 44th Parliament (11 February 2014), Migration Amendment
(Regaining Control over Australia's Protection Obligations) Bill 2013, 45, and Fourth
Report of the 44th Parliament (18 March 2014), Migration Amendment
(Regaining Control over Australia's Protection Obligations) Bill 2013, 513.
[222]
Agiza v. Sweden, Communication No. 233/2003, U.N. Doc.
CAT/C/34/D/233/2003 (2005) [13.7], emphasis added.
[223]
Josu Arkauz Arana v. France, CAT/C/23/D/63/1997, (CAT), 5 June
2000.
[224] Mohammed
Alzery v. Sweden, Communication No. 1416/2005, U.N. Doc. CCPR/C/88/D/1416/2005
(2006)) [11.8], emphasis added.
[225]
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.
[226] Articles
26, 27 31(1) of the Vienna Convention on the Law of Treaties (VCLT).
[227] Article
27 3 of the VCLT.
[228] EM,
Attachment A, 29.
[229] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 31.
[230] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 31.
[231] Article
3(1) of the CAT; Articles 6(1) and 7 of the ICCPR; Article 31 of the Refugee
Convention.
[232] Article
12(1) of the International Covenant on Economic Social and Cultural Rights
(ICESCR).
[233] Articles
17 and 23 of the ICCPR; articles 3 and 10 of the CRC.
[234] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 24.
[235] EM,
Attachment A, 9.
[236] UNHCR,
'UNHCR concerned about confirmation of TPV system by High Court'
(20 November 2006) http://www.unhcr.org.au/pdfs/TPVHighCourt.pdf.
[237] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 24.
[238] See
Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th
Parliament (28 October 2014) 77 - 78: Section 198 of the Migration Act sets
out the circumstances in which the mandatory removal of an 'unlawful non-citizen'
is authorised. New section 197C(1) of the Migration Act provides that it is
irrelevant whether Australia has non refoulement obligations in respect of such
a removal. The statement of compatibility for the Migration and Maritime Powers
Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 states
that the purpose of this amendment is to ensure that removal powers are not
'constrained by assessments of Australia's non-refoulement obligations'.
36 UN Committee on Economic, Social and Cultural
Rights (CESCR), General Comment 14 on the right to the highest attainable
standard of health, E/C.12/2000/4 (2000).
37 EM, Attachment A, 9.
38 EM, Attachment A, 17.
39 See, for example, Greg Marston,
Temporary Protection Permanent Uncertainty (RMIT University 2003) 3. http://dpl/Books/2003/RMIT_TemporaryProtection.pdf;
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.
[243] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 24-25.
40 Article 3(1).
41 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).
42 EM, Attachment A 12.
[247] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 25.
[248] EM,
Attachment A, 19.
[249] EM,
Attachment A, 19.
[250] 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; Article 31
of the Refugee Convention.
[251] Article
14 of the ICCPR.
[252] Articles
3 and 10 of the Convention on the Rights of the Child (CRC).
[253] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 26-28.
[254] EM,
Attachment A 19.
[255] EM,
Attachment A 19.
[256] EM 133.
[257] 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) [11.5], [12] and comments on the initial report of
Djibouti (CAT/C/DJI/1) (2011), A/67/44, 38, para 56(14), see also: Concluding
Observations of the Human Rights Committee, Portugal, UN Doc. CCPR/CO/78/PRT
(2003) [12].
[258] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 28-30.
[259]
Agiza v. Sweden, Communication No. 233/2003, U.N. Doc.
CAT/C/34/D/233/2003 (2005) [13.7].
[260]
Josu Arkauz Arana v. France, CAT/C/23/D/63/1997, (CAT), 5 June
2000.
[261] Mohammed
Alzery v. Sweden, Communication No. 1416/2005, U.N. Doc. CCPR/C/88/D/1416/2005
(2006)) [11.8].
[262]
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.
[263] EM, Attachment
A, 19.
[264] EM,
Attachment A, 21.
[265]
EM, Attachment A, 19 - 21.
[266] EM 8.
[267] International
Covenant on Civil and Political Rights, article 2. See Parliamentary Joint
Committee on Human Rights, Second Report of the 44th Parliament (11
February 2014) 45, at 49‑51, paragraphs [1.188] to [1.199] (committee
comments on Migration Amendment (Regaining Control over Australia's Protection
Obligations) Bill 2013), and Fourth Report of the 44th Parliament (18
March 2014) 51, at 55-57, paragraphs [3.41] to [3.47] (comments on minister's
response to committee views on Migration Amendment (Regaining Control over
Australia's Protection Obligations) Bill 2013).
[268] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 30.
[269] Article
3(1) of the CRC.
[270] Article
24(3) of the ICCPR.
[271] Article 1
of the Convention on the Reduction of Statelessness 1961.
[272] Parliamentary
Joint Committee on Human Rights, Ninth Report of 2013: Migration Legislation
Amendment (Regional Processing and Other Measures) Act 2012 and related
legislation (June 2013).
[273] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 32.
[274] See
Senate Standing Committees on Legal and Constitutional Affairs, Incident at
the Manus Island Detention Centre from 16 February to 18 February 2014 (11
December 2014). See also submissions to the Senate Select Committee on the
Recent Allegations relating to Conditions and Circumstances at the Regional
Processing Centre in Nauru, from the Office of the United Nations High
Commissioner for Refugees (UNHCR) and Save the Children Australia, at:
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regional_processing_Nauru/Regional_processing_Nauru/Submissions.
[275] EM,
Attachment A, 31.
[276] EM,
Attachment A, 32.
[277] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 16 April 2015) 34.
[278] Parliamentary
Joint Committee on Human Rights, Nineteenth Report of the 44th Parliament
(3 March 2015) 13-28.
[279] 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.
[280] See
Refugee Convention, article 33. 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 available both
to refugees and to people who are not covered by the Refugee Convention, and so
are 'complementary' to the Refugee Convention.
[281] International
Covenant on Civil and Political Rights, 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 201, 513.
[282] A
person may apply for a protection visa or a Removal Pending Bridging Visa.
However, the visa is temporary and applies so long as the minister is satisfied
that the person's removal is not reasonable practicable. In addition, if the
visa that was cancelled was a protection visa, the person will be prevented
from applying for another protection visa unless the minister exercises a
personable, non-compellable power to do so. A person is also not entitled to
apply for a Removal Pending Bridging Visa—the minister may invite the person to
apply for the visa and this is a personal, non-compellable power.
[283]
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 available both to refugees and to people who
are not covered by the Refugee Convention, and so are 'complementary' to the
Refugee Convention.
[284]
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, 38,
para 56(14), see also: Concluding Observations of the Human Rights Committee,
Portugal, UN Doc. CCPR/CO/78/PRT (2003), at para 12.
[285]
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 (11 February 2014), paragraphs [1.89] to [1.99]. See
also 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).
[286] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 29 April 2015) 2.
[287]
Agiza v. Sweden, Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003
(2005) [13.7].
[288]
Josu Arkauz Arana v. France, CAT/C/23/D/63/1997, (CAT), 5 June
2000.
[289] Mohammed
Alzery v. Sweden, Communication No. 1416/2005, U.N. Doc. CCPR/C/88/D/1416/2005
(2006)) [11.8].
[290]
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.
[291]
For example, see A v Australia (Human Rights Committee Communication
No. 560/1993) and C v Australia (Human Rights Committee Communication
No. 900/1999). See also F.K.A.G et al v Australia (Human Rights
Committee Communication No. 2094/2011) and M.M.M et al v Australia (Human
Rights Committee Communication No. 2136/2012).
[292]
EM, Attachment A, 6.
[293] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 29 April 2015) 3.
[294]
UN Human Rights Committee, F.K.A.G. et al. v Australia, CCPR/C/108/D/2094/2011
(2013).
[295] Any
statutory right of review would need to ensure the appropriate protection of
national security sources as provided for in the National Security
Information (Criminal and Civil Proceedings) Act 2004.
[296]
See Nystrom v Australia (Human Rights Committee, Communication
No. 1557/07).
[297] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 29 April 2015) 4.
[298] Views:
Communications No 1557/2007, 102nd sess, UN Doc CCPR/C/102/D/1557/2007 (18 July
2011) ('Nystrom').
[299]
Warsame, UN Doc CCPR/C/102/D/1959/2010.
[300]
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.
[301]
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.
[302] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 29 April 2015) 4-5.
[303]
'The expression 'public order (ordre public) 'may be defined as
the sum of rules which ensure the functioning of society or the set of
fundamental principles on which society is founded. Respect for human rights is
part of public order (ordre public)': Siracusa Principles on the
Limitation and Derogation Provisions in the International Covenant on Civil and
Political Rights U.N. Doc. E/CN.4/1985/4, Annex (1985), clause 22.
[304]
See, generally, Human Rights Committee, General comment No 34
(Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, paras 21-36
(2011).
[305] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 29 April 2015) 5-6.
[306]
EM, Attachment A, 12.
[307]
See item 25 of the bill (new subsection 501L(5)).
[308] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 29 April 2015) 6.
[309] Parliamentary
Joint Committee on Human Rights, Twenty-first Report of the 44th Parliament
(24 March 2015) 12-19.
[310]
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.
[311] See
Refugee Convention, article 33. 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 available both
to refugees and to people who are not covered by the Refugee Convention, and so
are 'complementary' to the Refugee Convention.
[312]
International Covenant on Civil and Political Rights, 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 201, 513.
[313]
See clause 866.225 of the Migration Regulations 1994.
[314]
See item 3 of Schedule 3, proposed new regulation 2.03AA.
[315]
Explanatory statement (ES), Attachment A, 6.
[316] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 8 May 2015) 2-3.
[317]
ES, Attachment A, 9.
[318] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 8 May 2015) 3-4.
[319]
UN Human Rights Committee, F.K.A.G. et al. v Australia,
CCPR/C/108/D/2094/2011 (2013).
[320] Any
statutory right of review would need to ensure the appropriate protection of
national security sources as provided for in the National Security Information
(Criminal and Civil Proceedings) Act 2004.
[321]
Nystrom v Australia (Human Rights Committee, Communication No.
1557/07).
[322] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 8 May 2015) 5.
[323]
Warsame, UN Doc CCPR/C/102/D/1959/2010.
[324]
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.
[325]
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.
[326]
ES, Attachment A, 7.
[327] See
Appendix 1, Letter from the Hon Peter Dutton MP, Minister for Immigration and
Border Protection, to the Hon Philip Ruddock MP (received 8 May 2015) 5-6.
[328] Parliamentary
Joint Committee on Human Rights, Thirty-third Report of the 44th Parliament
(2 February 2016) 7-12.
[329]
Explanatory memorandum (EM) 4.
[330]
EM ii.
[331]
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.
[332]
UN Human Rights Committee, General Comment 18, Non-discrimination (1989).
[333]
Althammer v Austria HRC 998/01, [10.2].
[334]
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.
[335]
See Appendix 1, Letter from the Hon Nigel Scullion, Minister for
Indigenous Affairs, to the Hon Philip Ruddock MP (received 23 February 2016)
1-2 and Attachment A.