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]          See Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 17.

[5]          Schedule 5, item 14, proposed new section 981J.

[6]          Schedule 5, item 14, proposed new subsection 981K(3).

[7]          See Schedule 5, item 14, proposed new subsection 981M(1) in conjunction with existing section 1317E of the Corporations Act 2001.

[8]          Explanatory memorandum (EM) 134.

[9]          EM 81.

[10]          EM 81.

[11]          Namely, if an infringement notice is issued to the person for an alleged contravention of subsection 674(2) or 675(2); and the infringement notice is not withdrawn under section 1317DAI – see: subsection 1317P(2).

[12]          Although the legislation does not expressly note this, as is the common practice where legislation imposes a legal burden on a defendant, see for example subsection 3UC(3) of the Crimes Act 1914.

[13]          Explanatory statement (ES) 20.

[14]          Appendix 2; see Parliamentary Joint Committee on Human Rights, Guidance Note 2 – Offence provisions, civil penalties and human rights (December 2014).

[15]          Appendix 2; see Parliamentary Joint Committee on Human Rights, Guidance Note 1 – Drafting Statements of Compatibility (December 2014).

[16]          Subject to certain exclusions, as set out at subsection 64(2).

[17]          Subsection 64(1). For example, paragraph 64(1)(a) provides that 'a reference to a driver of a motor vehicle on a road in the Territory included a reference to a person operating a vessel in Territory waters'.

[18]          For a discussion of the rights engaged and limited by the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (ACT Act), see: ACT Human Rights Commission, Submission to the Review of the Road Transport (Alcohol and Drugs) Act 1977 (25 July 2008); and Human Rights and Discrimination Commissioner, Submission to Discussion Paper: Drug Driving in the Territory: an overview of issues and options (6 May 2010).

[19]          See sections 11 and 13D of the ACT Act.

[20]          ES, statement of compatibility (SOC) 3-4.

[21]        ES, SOC 4.

[22]        ES, SOC 4. The statement does quote the UN Human Rights Committee, which states that 'sometimes deprivation of liberty is justified, for example, in the enforcement of criminal laws' – see: UN Human Rights Committee, General Comment 35: Article 9, Right to Liberty and Security of Person (16 December 2014) [10]. 

[23]        ACT Human Rights Commission, Submission to the Review of the Road Transport (Alcohol and Drugs) Act 1977 (25 July 2008) 3.

[24]        ES, SOC 5.

[25]        Sections 12, 13A, 13B, 13E and 15, of the ACT Act.

[26]        Section 16, of the ACT Act.

[27]        Section 22C, ACT Act.

[28]        Section 22C, ACT Act.

[29]        Sections 10A and 13CA of the ACT Act.

[30]        Section 18C.

[31]        ES, SOC 5.

[32]        ES, SOC 5.

[33]        ES, SOC 5.

[34]        ACT Human Rights Commission, Submission to the Review of the Road Transport (Alcohol and Drugs) Act 1977 (25 July 2008) 5.

[35]        Pursuant to section 22C of the ACT Act.

[36]        ACT Human Rights Commission, Submission to the Review of the Road Transport (Alcohol and Drugs) Act 1977 (25 July 2008) 5: namely, the potential use of samples in other criminal proceedings, and subsequent charges arising as a result of a test, which detracts from the harm minimisation approach to drug treatment and rehabilitation.

[37]        Set out at section 87.

[38]        Made pursuant to section 118.

[39]        The power to require the master of the vessel to answer questions are set out at section 86.

[40]        ES, SOC 4.

[41]        ES, SOC 4.

[42]        ES, SOC 5.

[43]        Set out in subsection 83(1).

[44]        See paragraphs 83(1)(a) and (d) and 86(1)(a).

[45]        ES, SOC 4.

[46]          Schedule 4, subregulation 1.12(2).

[47]          As defined at schedule 4, subregulation 1.12(3).

[48]          Schedule 4, subregulation 1.12(4).

[49]          See, for example, UN Human Rights Committee, General Comment 16: Article 17 (Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation) 1988 at [5] which stated that the term 'family' should 'be given a broad interpretation to include all those comprising the family as understood in the society of the State Party concerned'. See also UN Human Rights Committee, General Comment 19: Article 23 (The Family), 1990 at [2].

[50]          The previous definition of member of the same family unit will continue to apply to these visa classes – see: explanatory statement (ES), statement of compatibility (SOC) 11.

[51]          ES, SOC 12.

[52]          ES, SOC 12.

[53]          Appendix 4; see Parliamentary Joint Committee on Human Rights, Guidance Note 1—Drafting Statements of Compatibility (December 2014).

[54]          See Attorney-General's Department, Template 2: Statement of compatibility for a bill or legislative instrument that raises human rights issues at https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/Documents/Template2.pdf.

[55]          Amended by the Narcotic Drugs Amendment Act 2016 to introduce the new framework.

[56]          See: new subregulation 18(1), prescribed pursuant to subsection 10F(1) of the Act.

[57]          See: new subregulation 18(2), prescribed pursuant to subsection 10F(2) of the Act. A 'drug related offence' is defined at regulation 4.

[58]          Pursuant to article 2(1) of the International Covenant on Economic, Social and Cultural Rights.

[59]          Appendix 4; see Parliamentary Joint Committee on Human Rights, Guidance Note 1—Drafting Statements of Compatibility (December 2014).

[60]          See Attorney-General's Department, Template 2: Statement of compatibility for a bill or legislative instrument that raises human rights issues at https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/Documents/Template2.pdf.

[61]          Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 12‑15.

[62]          Parliamentary Joint Committee on Human Rights, Sixth Report of 2013 (15 May 2013) 133‑134.

[63]          Parliamentary Joint Committee on Human Rights, Eighteenth Report of the 44th Parliament (10 February 2015) 65-67; and Twenty-first Report of the 44th Parliament (24 March 2015) 25‑28.

[64]          Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 12‑15.

[65]          At paragraph 34(1)(e).

[66]          Parliamentary Joint Committee on Human Rights, Report 10 of 2016 (30 November 2016) 13‑16.

[67]          Parliamentary Joint Committee on Human Rights, Report 10 of 2016 (30 November 2016) 16.

[68]          Parliamentary Joint Committee on Human Rights, First Report of the 44th Parliament (10 December 2013) 157-159.  

[69]          Parliamentary Joint Committee on Human Rights, First Report of the 44th Parliament (10 December 2013) 157-159.

[70]        Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 14.

[71]        Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 14.

[72]        Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 14.

[73]        Parliamentary Joint Committee on Human Rights, Report 10 of 2016 (30 November 2016) 13‑16.

[74]          Defined in regulation 6.01 of the Aviation Transport Security Regulations 2005 as a person or agency that is authorised to issue ASICs; or that is a transitional issuing body.

[75]          Such as the issuing body's name, or ABN, CAN or ARBN.

[76]          Defined in regulation 6.07B of the Maritime Transport and Offshore Facilities Security Regulations 2003 as a person or body that is authorised to issue MSICs; or that is a transitional issuing body.

[77]          Explanatory statement, statement of compatibility 4.

[78]          Schedule 1, item 1, proposed subsection 134B(1). Consequential amendments are also made to subsection 141(1) in respect to the meaning of 'reviewable decision'.

[79]          Namely, if the party does not make an application under section 134 for a change of logo within 1 month of the date of the notice; or it makes such an application, but the application is refused – see: Schedule 1, item 1, proposed subsection 134B(2). The bill also inserts proposed paragraph 137(1)(caa) to give effect to this new section.

[80]          UN Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression (2011) paragraph [12].

[81]          UN Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression (2011) paragraph [11].

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

[83]          Pursuant to existing section 134A of the Act.

[84]          EM, SOC [7].

[85]          EM, SOC [6].

[86]          EM, SOC [10].

[87]        EM, SOC [11].

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

[89]          Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) 2-8.

[90]          This is set out in the committee's Guidance Note 2 – see Appendix 4.

[91]          Parliamentary Joint Committee on Human Rights, 31st Report of the 44th Parliament (24 November 2015) 37-44 at 43-44.

[92]          Parliamentary Joint Committee on Human Rights, Thirty-first Report of the 44th Parliament (24 November 2015) 44. It also comes to this conclusion in respect of the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016 in Chapter 2 of this report.

Chapter 2 - Concluded matters

[1]          Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) 2-8.

[2]          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).

[3]          See section 109 of the TIA Act.

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

[5]          In the context of its consideration of the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (which amended the TIA Act) – see: Parliamentary Joint Committee on Human Rights, Twentieth Report of the 44th Parliament (18 March 2015) 39-74.

[6]          Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) 4-5.

[7]          Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) 5.

[8]          Which would enable it to access the content of private communications via warrant under chapter 2 and chapter 3 of the TIA Act.

[9]          Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) 5.

[10]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) 5.

[11]        Parliamentary Joint Committee on Human Rights, Twentieth Report of the 44th Parliament (18 March 2015) Appendix 1 Australian Government response to the 15th report of the Parliamentary Joint Committee on Human Rights to the 44th Parliament, Telecommunications (Interception and Access) Amendment (Data Retention) Bill 8-10.

[12]        Parliamentary Joint Committee on Human Rights, Twentieth Report of the 44th Parliament (18 March 2015) 58.

[13]        See Appendix 3, letter from the Hon Michael Keenan MP, Minister for Justice, to the Hon Ian Goodenough MP (received 4 January 2017) 2.

[14]        Parliamentary Joint Committee on Human Rights, Twentieth Report of the 44th Parliament (18 March 2015) 59.

[15]        Parliamentary Joint Committee on Human Rights, Twentieth Report of the 44th Parliament (18 March 2015) 59.

[16]        Parliamentary Joint Committee on Human Rights, Twentieth Report of the 44th Parliament (18 March 2015) 65-71.

[17]        See Appendix 3, letter from the Hon Michael Keenan MP, Minister for Justice, to the Hon Ian Goodenough MP (received 4 January 2017) 3.

[18]        See Appendix 3, letter from the Hon Michael Keenan MP, Minister for Justice, to the Hon Ian Goodenough MP (received 4 January 2017) 4.

[19]        See Appendix 3, letter from the Hon Michael Keenan MP, Minister for Justice, to the Hon Ian Goodenough MP (received 4 January 2017) 4.

[20]        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.

[21]        Pursuant to article 14(2) of the International Covenant on Civil and Political Rights (ICCPR).

[22]        Contrary to article 14(7) of the ICCPR.

[23]        See generally, article 14 of the ICCPR.

[24]        [2016] WASC 5.

[25]        See Parliamentary Joint Committee on Human Rights, Guidance Note 2 (December 2014) at Appendix 4.

[26]        Parliamentary Joint Committee on Human Rights, 31st Report of the 44th Parliament (24 November 2015) 37-44 at 43-44.

[27]        Explanatory memorandum, statement of compatibility 13.

[28]        See Appendix 3, letter from the Hon Michael Keenan MP, Minister for Justice, to the Hon Ian Goodenough MP (received 4 January 2017) 5.

[29]          Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 6-8.

[30]          Pursuant to Schedule 1, item 3, proposed section 26WL in respect of an 'eligible data breach', as defined by section 26WE.

[31]          As set out in the explanatory memorandum (EM), statement of compatibility (SOC) 60-63. The exceptions address remedial action by the entity; circumstances where another entity notifies an agency of the data breach; where notification would prejudice the activities of a law enforcement body; where the Australian Information Commissioner makes a declaration for an exception; where disclosure would be inconsistent with other laws of the Commonwealth; and notification under both the bill and the My Health Records Act 2012.

[32]          Earlier expressed to the committee in the context of the committee's consideration of the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (TIA bill).

[33]          See Parliamentary Joint Committee of Human Rights, Fifteenth Report of the 44th Parliament (14 November 2014) 10-22; Twentieth Report of the 44th Parliament (18 March 2015) 39-74; and Thirtieth report of the 44th Parliament (10 November 2015) 138. The TIA bill amended the Telecommunications (Interception and Access) Act 1979 to introduce a mandatory data retention scheme. It passed both Houses of Parliament on 26 March 2015 and received Royal Assent on 13 April 2015.

[34]          Parliamentary Joint Committee of Human Rights, Thirtieth report of the 44th Parliament (10 November 2015) 139.

[35]          See Parliamentary Joint Committee on Human Rights, Twentieth report of the 44th Parliament (18 March 2015) 39-74 at 73.

[36]             Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) 27‑29.

[37]             The amendments to the Sex Discrimination Act 1984 that introduced these new protections were made by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

[38]             The Attorney-General identified that section 23 of the Human Reproductive Technology Act (WA) has the effect of prohibiting male same-sex couples, and potentially transgender persons or persons of intersex status, from accessing IVF procedures-including for the purpose of a surrogacy arrangement; and that section 19 of the Surrogacy Act (WA) has the effect of prohibiting male same-sex couples, and potentially transgender persons or persons of intersex status, from seeking a parentage order for a child born under a surrogacy arrangement.

Appendix 1 - Deferred legislation

[1]          See Parliamentary Joint Committee on Human Rights, Report 10 of 2016 (30 November 2016) 17.

[2]          See Parliamentary Joint Committee on Human Rights, Report 10 of 2016 (30 November 2016) 17.

[3]          See Parliamentary Joint Committee on Human Rights, Report 10 of 2016 (30 November 2016) 17.

[4]          See Parliamentary Joint Committee on Human Rights, Report 10 of 2016 (30 November 2016) 17.

[5]          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'.