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, Schedule 11, item 4.  Currently, 1 penalty unit is $180 but is due to increase to $210 as of 1 July 2017.

[5]          Statement of compatibility (SOC) 160.

[6]          Harper, Anderson, McCluskey and O'Bryan, Competition Policy Review, Final Report, March 2015, 71 (emphasis added).

[7]          A 'derivative use' immunity provides that self-incriminatory information or documents provided by a person cannot be used to investigate unlawful conduct by that person but can be used to investigate third parties.

[8]          SOC 160-161.

[9]          SOC 151-152.

[10]          See ILO, Committee of Experts on the Application of Conventions and Recommendations (CEACR) - adopted 2013, published 103rd ILC session (2014); Observation (CEACR) - adopted 2011, published 101st ILC session (2012), Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) – Australia.

[11]          Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) 17-27.

[12]          See proposed section 539(2).

[13]          See proposed section 539(2). As of 1 July 2017, a penalty unit will increase to $210 so that 600 penalty units would be $126,000.

[14]          The range of existing civil penalty provisions to which the 'serious contravention' provision would apply include: for an employer contravening national employment standards (section 44 of the Fair Work Act); for a person contravening a term of a modern award (section 45 of the Fair Work Act); for a person contravening a term of an enterprise agreement (section 50 of the Fair Work Act); for a person contravening a workplace determination (section 280 of the Fair Work Act); for an employer contravening a national minimum wage order (section 293 of the Fair Work Act); for an employer contravening a term of an equal remuneration order (section 305 of the Fair Work Act); for an employer failing to comply with requirements regarding the method and frequency of payments (section 323 of the Fair Work Act); for an employer requiring an employee to unreasonably spend any part of an amount payable in relation to the performance of work (section 325 of the Fair Work Act); for an employer to fail to comply with obligations with respect to annual earnings (section 328 of the Fair Work Act); for an employer failing to comply with requirements to make and keep certain employee records; (section 535 of the Fair Work Act); for an employer failing to comply with requirements with respect to payslips (section 536 of the Fair Work Act).

[15]          See Fair Work Act section 539.

[16]          See proposed sections 712B(1); 717(1); 718A(1).

[17]          Specific guarantees of the right to a fair trial in the determination of a criminal charge guaranteed by article 14(1) 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)).

[18]          Guidance Note 2 – see Appendix 4.

[19]          Explanatory memorandum (EM), Statement of compatibility (SOC) 3.

[20]        EM, SOC 3-4.

[21]        As of 1 July 2017, a penalty unit will increase to $210 so that 600 penalty units would be $126,000.

[22]        EM, SOC 5.

[23]        See EM i; EM, SOC 5.

[24]        EM i.

[25]        See item 8; see also section 280 of the Fair Work Act.

[26]        See proposed section 712B.

[27]        See proposed section 712B; EM 17.

[28]        See proposed section 713.

[29]        See proposed section 713.

[30]        See proposed section 713(1).

[31]        EM, SOC 6.

[32]        See, for example, Parliamentary Joint Committee on Human Rights, Tenth Report of the 44th Parliament (26 August 2014) 66; Parliamentary Joint Committee on Human Rights, Second Report of the 44th Parliament (11 February 2014) 17. Compare, Parliamentary Joint Committee on Human Rights, Twenty-second Report of the 44th Parliament (13 May 2015) 24‑25.

[33]        EM, SOC 6.

[34]        See Fair Work (Building Industry) Act 2012 section 45 (now repealed).

[35]        See, for example, Parliamentary Joint Committee on Human Rights, Tenth Report of the 44th Parliament (26 August 2014) 66 and Second Report of the 44th Parliament (11 February 2014) 17. Compare, Parliamentary Joint Committee on Human Rights, Twenty-second Report of the 44th Parliament (13 May 2015) 24‑25.

[36]        See International Labour Organization, Committee on Freedom of Association, Case No 2326 (Australia), in which the committee requests to be kept informed of development - Report No 338, November 2005, [454]-[456]; Case No 2326 (Australia), Effect given to the recommendations of the committee and the Governing Body - Report No 353, March 2009, [21]-[24]; Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), General Report and observations concerning particular countries, International Labour Conference, 102nd Session, 2013, p 537 (in the context of the Labour Inspection Convention, 1947 (No 81)).

[37]        See, for example, Parliamentary Joint Committee on Human Rights, Tenth Report of the 44th Parliament (26 August 2014) 66 and Second Report of the 44th Parliament (11 February 2014) 17. Compare, Parliamentary Joint Committee on Human Rights, Twenty-second Report of the 44th Parliament (13 May 2015) 24‑25.

[38]        See International Labour Organization, Committee on Freedom of Association, Case No 2326 (Australia), Report in which the committee requests to be kept informed of development - Report No 338, November 2005, [454]-[456]; Case No 2326 (Australia), Effect given to the recommendations of the committee and the Governing Body - Report No 353, March 2009, [21]-[24]; Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), General Report and observations concerning particular countries, International Labour Conference, 102nd Session, 2013, 537 (in the context of the Labour Inspection Convention, 1947 (No 81).

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

[40]        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.

[41]        EM 19.

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

[43]        See proposed section 713(3).

[44]        EM 21.

[45]        A 'use' immunity provides that where a person has been required to give incriminating evidence, that evidence cannot be used directly against the person in any civil or criminal proceeding but may be used to obtain further evidence against the person. A 'derivative use' immunity provides that self-incriminatory information or documents provided by a person cannot be used to investigate unlawful conduct by that person but can be used to investigate third parties.

[46]        See, for example, International Labour Organization, Committee on Freedom of Association Report, in which the committee requests to be kept informed of development - Report No 338, November 2005 Case No 2326 (Australia) [453]-[457]; Committee of Experts on the Application of Conventions and Recommendations, CEACR Observation - adopted 2011, published 101st ILC session (2012); Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) – Australia.

Chapter 2 - Concluded matters

[1]          Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) 12-16.

[2]          UN Human Rights Committee, General Comment No 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN.Doc CCPR/C/GC/32 (2007).

[3]          See, Vienna Convention on the Law of Treaties 1969 article 27; Australian Constitution section 51(xxix).

[4]          Guidance Note 2 — See Appendix 4.

[5]          Statement of compatibility (SOC) viii.

[6]          See, SOC viii.

[7]          Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) 28-34.

[8]          See, for example, Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 14; and Thirty-eighth report of the 44th Parliament (3 May 2016) 21. See also, Third report of 2013 (13 March 2013); and Seventh report of 2013 (5 June 2013) 91.

[9]          Explanatory memorandum (EM) 5. See section 6DD.

[10]          A 'derivative use' immunity provides that self-incriminatory information or documents provided by a person cannot be used to investigate unlawful conduct by that person but can be used to investigate third parties.

[11]          See, for example, Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 14; Thirty-eighth report of the 44th Parliament (3 May 2016) 21. See also Third Report of 2013 (13 March 2013) 42; and Seventh Report of 2013 (5 June 2013) 91.

[12]          See Royal Commission into Trade Union Governance and Corruption, Reform of the Royal Commissions Act 1902, (2015), paragraph 27 of Chapter 10, Volume 5 of the Final Report.

[13]          See section 155 of the Competition and Consumer Act 2010.

[14]          See section 63(1) of the Australian Securities and Investments Commission Act 2001.

[15]          See section 63 of the Australian Securities and Investments Commission Act 2001.

[16]        A 'use' immunity provides that where a person has been required to give incriminating evidence, that evidence cannot be used directly against the person in any civil or criminal proceeding but may be used to obtain further evidence against the person. A 'derivative use' immunity provides that self-incriminatory information or documents provided by a person cannot be used to investigate unlawful conduct by that person but can be used to investigate third parties.

[17]        See, for example, Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) 66-69; Thirty-sixth report of the 44th Parliament (16 March 2016) 14; and Thirty-eighth report of the 44th Parliament (3 May 2016) 21. See also, Third report of 2013 (13 March 2013); and Seventh report of 2013 (5 June 2013) 91.

[18]        RC Act section 6A(1).

[19]        EM 5.

[20]        See, for example, Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 14; Thirty-eighth report of the 44th Parliament (3 May 2016) 21. See also Third Report of 2013 (13 March 2013) 42; and Seventh Report of 2013 (5 June 2013) 91.

[21]        RC Act section 6P.

[22]        EM 5.

[23]        See, for example, Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) 14; Thirty-eighth report of the 44th Parliament (3 May 2016) 21. See also, Third Report of 2013 (13 March 2013) 42; and Seventh Report of 2013 (5 June 2013) 91.

[24]        See Australian Law Reform Commission, Making Inquiries: A statutory framework (2009).

[25]        Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) 39-41.

[26]        Explanatory memorandum (EM), statement of compatibility (SOC) 18-19.

[27]        EM, SOC 18.

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'.