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]          The committee originally considered the Building and Construction Industry (Improving Productivity) Bill 2013 and Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 in Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (11 February 2014) 1-30; Tenth Report of the 44th Parliament (26 August 2014) 43‑77; and Fourteenth Report of the 44th Parliament (28 October 2014) 106-113. These bills were then reintroduced as the Building and Construction Industry (Improving Productivity) Bill 2013 [No. 2] and the Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 [No. 2]; see Thirty-fourth Report of the 44th Parliament (23 February 2016) 2. The bills were reintroduced to the Senate on 31 August 2016, following the commencement of the 45^th Parliament; see Report 7 of 2016 (11 October 2016) 62-63. See also, International Labour Organization, Committee of Experts on the Application of Conventions and Recommendations, Direct Request, adopted 2016, published 106th ILC session (2017) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) – Australia.

[5]          See, article 22 of the ICCPR and article 8 of the ICESCR.

[6]          The Freedom of Association and Protection of the Right to Organize (ILO Convention No. 87) is expressly referred to in the ICCPR and the ICESCR.

[7]          ILO General Survey by the Committee of Experts on the Application of Conventions and Recommendations on Freedom of Association and Collective Bargaining (1994), [248]. See, also, ILO Committee of Experts on the Application of Conventions and Recommendations, Individual Observation concerning Right to Organise and Collective Bargaining Convention, 1949 (No. 98) Australia (ratification: 1973), ILO Doc 062009AUS098 (2009).

[8]          '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.

[9]          See ICCPR article 22.

[10]          See ILO Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) 182 (citing ILO Freedom of Association Committee 308th Report, Case No. 1897, [473]).

[11]          ILO Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth Edition (2006) 182 (citing ILO Freedom of Association Committee 330th Report, Case No. 2194, [791]; and 335th Report, Case No. 2293, [1237]).

[12]          Code for the Tendering and Performance of Building Work 2016, Explanatory Statement (ES), statement of compatibility (SOC) 6.

[13]        ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), Direct Request - adopted 2016, published 106th ILC session (2017), Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Australia http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:3299912,102544,Australia,2016 (last accessed 10 May 2017).

[14]        ILO's Committee on Freedom of Association (CFA Committee), Report in which the committee requests to be kept informed of development - Report No 338, November 2005 Case No 2326 (Australia) - Complaint date: 10 March 2004 http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2908523 (last accessed 10 May 2017).

[15]        UN Committee on Economic, Social and Cultural Rights, Concluding Observations, Australia, E/C.12/AUS/CO/4 (12 June 2009).

[16]        See, for example, Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (11 February 2014) 1-30; Tenth Report of the 44th Parliament (26 August 2014) 55-56; Report 7 of 2016 (11 October 2016) 21-24, 62-63; Report 8 of 2016 (9 November 2016) 62 – 64.

[17]        ICCPR, article 19(2).

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

[19]        See, ILO, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth revised edition (2006) [154]-[173]. 

[20]        ES, SOC 8.

[21]        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.

[22]        See, ILO, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth revised edition (2006) [161] – [163]. 

[23]        See, ILO, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth revised edition (2006) [365] – [367]. 

[24]        See, ILO, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth revised edition (2006) [161] – [163]. 

[25]        ES, SOC 8.

[26]        ES 3.

[27]        ES, SOC 8.

[28]        See ICCPR article 22.

[29]        See ICESCR article 8, ICCPR article 22.

[30]        See, ILO, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth revised edition (2006) [161] – [163]. 

[31]          Proposed section 321D includes a table specifying what authorisations are required for different forms of communications about an 'electoral matter'.

[32]          See proposed section 321D(b)-(c).

[33]          See proposed section 110A.

[34]          ICCPR, article 19(2).

[35]          Schedule 1, proposed section 321D (5).

[36]          Explanatory Memorandum (EM) 7.

[37]          EM 7.

[38]          EM 25.

[39]          Guidance Note 2 – see Appendix 4.

[40]        Specific guarantees of the right to a fair trial in the determination of a criminal charge guaranteed by article 14(1) of the ICCPR are set out in article 14(2) to (7). These include the presumption of innocence (article 14(2)) and minimum guarantees in criminal proceedings, such as the right not to incriminate oneself (article 14(3)(g)), the right not to be tried and punished twice for an offence (article 14(7)) and a guarantee against retrospective criminal laws (article 15(1)).

[41]        EM 7.

[42]        Schedule 2, item 2, proposed section 150.1(4).

[43]          Parliamentary Joint Committee on Human Rights, Twelfth Report of the 44^th Parliament (24 September 2014) 8-13; Eighteenth Report of the 44^th Parliament (10 February 2015) 43-64; Twenty-second Report of the 44^th Parliament

[44]          A commonwealth supported student place is part subsidised by the Australian government through the government paying part of the fees for the place directly to the university. Students are also required to contribute towards the study and pay the remainder of the fee called the 'student contribution amount' for each unit they are enrolled in at the higher education institution.

[45]          See, UN Committee on Economic, Social and Cultural Rights, General Comment 13: the Right to education (8 December 1999).

[46]          SOC 3.

[47]          See, UN Committee on Economic, Social and Cultural Rights, General Comment 13: the Right to education (8 December 1999) [45].

[48]          SOC 8.

[49]          An enabling course is a course of instruction that enables a person to undertake a course leading to a higher education award (sometimes referred to as a bridging course).

[50]          Item 3, new section 36-10(2)(b); EM 45.

[51]          Item 3, new section 36-10(2)(b); EM 45.

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

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

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

[55]        EM 45.

[56]        EM 45.

[57]        See, Australian Bureau of Statistics (ABS), Employee Earnings and Hours (May 2016) http://www.abs.gov.au/ausstats/abs@.nsf/0/27641437D6780D1FCA2568A9001393DF?Opendocument; ABS, Gender indicators, Australia (August 2016) http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4125.0~August%202016~Main%20Features~Economic%20Security~6151; Workplace Gender Equality Agency,  Gender pay gap statistics (March 2016)  https://www.wgea.gov.au/sites/default/files/Gender_Pay_Gap_Factsheet.pdf (last accessed 24 May 2017). 

[58]        See, for example, Senate Standing Committee on Education and Employment, The Future of HECS (28 October 2014) 52.

[59]        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).

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

[61]        SOC 10.

[62]          The trials were initially extended to a period of twelve months in two instruments: Social Security (Administration) (Trial Area - Ceduna and Surrounding Region) Amendment Determination (No. 2) 2016 [F2016L01424] and Social Security (Administration) (Trial Area – East Kimberley) Amendment Determination 2016 [F2016L01599]. See Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016) 53.

[63]          See Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament (24 November 2015) 21-36.

[64]          See Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016) 58‑61.

[65]          See Social Security Legislation Amendment (Debit Card Trial) Bill 2015, explanatory memorandum 4; Social Security (Administration) (Trial - Declinable Transactions) Amendment Determination (No. 2) 2016 [F2016L01248], explanatory statement 6.

[66]          See Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament (24 November 2015) 21-36; 2016 Review of Stronger Futures measures (16 March 2016) 61; and Report 7 of 2016 (11 October 2016) 58-61.

[67]          Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament (24 November 2015) 27.

[68]          Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament (24 November 2015) 21-36; 2016 Review of Stronger Futures measures (16 March 2016) 61; and Report 7 of 2016 (11 October 2016) 42.

[69]          Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) 3-6.

[70]          Explanatory memorandum (EM) 8.

[71]          EM 8.

[72]          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 (4 March 2014) 3; Eighth report of the 44th Parliament (24 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; and Thirty-fourth report of the 44th Parliament (23 February 2016) Report 2 of 2017 (21 March 2017)  44-46.

[73]          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.

[74]          Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) 30‑33.

[75]          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).

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

[77]          Appropriation Bill (No. 1) 2017-2018: explanatory memorandum (EM), statement of compatibility (SOC) 3. Appropriation Bill (No. 2) 2017-2018: EM, SOC 4.

[78]          Bill No. 3, EM, SOC 3; Bill No. 4, EM, SOC 4.

[79]          Bill No. 3, EM, SOC 3; Bill No. 4, EM, SOC 4.

[80]          Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) 30‑33.

[81]          See Social Security (Administration) Act 1999, Part 3B. Income management currently applies in the Perth Metropolitan, Peel and Kimberley regions, Laverton, Kiwirrkurra and Ngaanyatjarra Lands in Western Australia; Anangu Pitjantjatjara Yankunytjatjara Lands, Ceduna, Playford and Greater Adelaide in South Australia; Cape York, Rockhampton, Livingstone and Logan in Queensland; Bankstown in New South Wales; Greater Shepparton in Victoria; and in the Northern Territory.  See also Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 37-38.

[82]          See, further, Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 39, available at: http://www.aph.gov.au/Parliamentary_
Business/Committees/Joint/Human_Rights/Committee_Inquiries/strongerfutures2. 

[83]          See Parliamentary Joint Committee on Human Rights, Eleventh Report of 2013: Stronger Futures in the Northern Territory Act 2012 and related legislation (27 June 2013) and 2016 Review of Stronger Futures measures (16 March 2016).

[84]          Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 61.

[85]          The Cape York Welfare Reform package applies to the communities of Aurukun, Coen, Hope Vale, and Mossman Gorge. In 2016, income management under these measures was also extended to the community of Doomadgee.

[86]          See Family Responsibilities Commission Act 2008 (Qld), section 4.

[87]          See Social Security (Administration) Act 1999, section 123UF.

[88]          See, Family Responsibilities Commission, FRC Processes at: http://www.frcq.org.au/?q=cont
ent/frc-processes. Referrals are made by agency notice from the relevant departments. Agency notices are received by the Queensland Commission in the following circumstances:

• The Department of Education and Training (DET) must submit a School Attendance Notice to the Commission if a child is absent for three full, or part days of a school term without reasonable excuse, or submit a School Enrolment Notice where a child of compulsory school age is not enrolled to attend school.

• The Department of Communities, Child Safety and Disability Services must submit a Child Safety and Welfare Notice where the Chief Executive becomes aware of an allegation of harm or risk to a child.

• The Department of Justice and Attorney-General must submit a Court Offence Notice if a person is convicted of an offence.

• The Department of Housing and Public Works or the provider of social housing must submit a Tenancy Breach Notice if the tenant has breached their social housing tenancy agreement.

[89]          Explanatory memorandum (EM) 3.

[90]        Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 43-63.

[91]        Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 42.

[92]        Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) 52.

Chapter 2 - Concluded matters

[1]         Parliamentary Joint Committee on Human Rights, 2 Report of 2017 (21 March 2017) 33-40.

[2]          See Parliamentary Joint Committee on Human Rights, Ninth report of the 44th Parliament (15 July 2014) 118-120; Twelfth report of the 44th Parliament (24 September 2014) 50-54; and Sixteenth report of the 44th Parliament (25 November 2014) 29-32.

[3]          See Parliamentary Joint Committee on Human Rights, Sixteenth report of the 44th Parliament (25 November 2014) 29. Three members of the committee issued a dissenting report in relation to the conclusion that the measure was incompatible with human rights: see Sixteenth report of the 44th Parliament (25 November 2014) 61: Dissenting report by Senator Matthew Canavan, Mr David Gillespie MP and Mr Ken Wyatt MP.

[4]          See International Covenant on Civil and Political Rights (ICCPR) article 17; UN Human Rights Committee, General Comment No. 16: Article 17 (Right to Privacy) The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988.

[5]          Explanatory statement (ES) 5-6. 

[6]          ES 6.

[7]          ES 7.

[8]          See, for example, Department of Foreign Affairs and Trade, Confirming your Australian Citizenship at: https://www.passports.gov.au/passportsexplained/theapplicationprocess/eligibilityoverview/Pages/confirmingcitizenship.aspx.

[9]          NSW Registry of Births Deaths and Marriages, Information to apply to alter the register to record a change of sex at:
http://www.bdm.nsw.gov.au/Documents/apply-for-record-a-change-of-sex.pdf.

[10]        See, for example, Department of Foreign Affairs and Trade, Sex and Gender Diverse Passport Applicants at:
https://www.passports.gov.au/passportsexplained/theapplicationprocess/eligibilityoverview/Pages/changeofsexdoborpob.aspx.

[11]        Attorney General's Department, Australian Government Guidelines on the Recognition of Sex and Gender (July 2013) at:
https://www.ag.gov.au/Publications/Documents/AustralianGovernmentGuidelinesontheRecognitionofSexandGender/AustralianGovernmentGuidelinesontheRecognitionofSexandGender.pdf.

[12]        ES 8. 

[13]        Attorney General's Department, Australian Government Guidelines on the Recognition of Sex and Gender (July 2013) at: https://www.ag.gov.au/Publications/Documents/AustralianGovernmentGuidelinesontheRecognitionofSexandGender/AustralianGovernmentGuidelinesontheRecognitionofSexandGender.pdf 7.

[14]        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'.

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

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

[17]        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).

[18]        See, for example, Hasan and Chaush v Bulgaria ECHR 30985/96 (26 October 2000) [84]; UN Human Rights Committee, General Comment 27, Freedom of movement (Art.12), U.N. Doc CCPR/C/21/Rev.1/Add.9 (1999).

[19]          Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) 7-11.

[20]          If the Crimes Amendment (Penalty Unit) Bill 2017 passes the parliament a penalty unit will increase to $210 so that 100 penalty units would be $21,000.

[21]          Protected worker is defined as being an employee, commission agent or contractor, a person seeking to become an employee, commission agent or contractor, or an officer or employee of a commission agent or contractor. See explanatory memorandum (EM) 32.

[22]          The definition of protected co-worker incorporates relationships where people are working together, even if they are not strictly employed by the same person. See EM 32.

[23]          Guidance Note 2 – see Appendix 4.

[24]          Specific guarantees of the right to a fair trial in the determination of a criminal charge guaranteed by article 14(1) of the ICCPR are set out in article 14(2) to (7). These include the presumption of innocence (article 14(2)) and minimum guarantees in criminal proceedings, such as the right not to incriminate oneself (article 14(3)(g)), the right not to be tried and punished twice for an offence (article 14(7)) and a guarantee against retrospective criminal laws (article 15(1)).

[25]          Statement of compatibility (SOC) 9.

[26]          EM 28.

[27]        Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) 35-38.

[28]        Previously contained in the Social Services Legislation Amendment (Omnibus Savings and Child Care Reform) Bill 2017. See Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) 51.

[29]        Previously contained in the Social Services Legislation Amendment (Omnibus Savings and Child Care Reform) Bill 2017. See Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (21 March 2017) 52.

[30]        Previously contained in the Social Services and Other Legislation Amendment (2014 Budget Measures No. 4) Bill 2014. See Parliamentary Joint Committee on Human Rights, Fourteenth report of the 44th Parliament (28 October 2014) 94-95.

[31]        Previously contained in the Social Services and Other Legislation Amendment (2014 Budget Measures No. 1) Bill 2014. See Parliamentary Joint Committee on Human Rights, Ninth report of the 44th Parliament (15 July 2014) 78-80; and Twelfth report of the 44th Parliament (24 September 2014) 61-62. The measure has since been included in the Social Services and Other Legislation Amendment (2014 Budget Measures No. 4) Bill 2014, Social Services Legislation Amendment (Youth Employment and Other Measures) Bill 2015, Social Services Legislation Amendment (Youth Employment) Bill 2015, Social Services Legislation Amendment (Youth Employment) Bill 2016 and Social Services Legislation Amendment (Omnibus Savings and Child Care Reform) Bill 2017.

[32]        For more information on retrogressive measures see Guidance Note 1 at Appendix 4.

[33]        See Parliamentary Joint Committee on Human Rights, Twelfth report of the 44th Parliament (24 September 2014) 61-62.

[34]        Explanatory memorandum (EM), statement of compatibility (SOC) 26.

[35]        EM, SOC 23.

[36]        EM, SOC 27.

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'.