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of subsection 674(2) or 675(2); and the infringement notice is not withdrawn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'.