Membership of the committee
[1]
The human rights committee secretariat is staffed by parliamentary
officers drawn from the Department of the Senate Legislative Scrutiny Unit (LSU),
which usually includes two Principal Research Officers with specialised
expertise in international human rights law. LSU officers, including the
Committee Secretary, regularly work across multiple scrutiny committee secretariats.
[2]
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]
A 'foreign stakeholder' is a foreign person who has a company interest
in an Australian media company of 2.5% or more: proposed section 74C. 'Foreign
person' has the same meaning as under the Foreign Acquisitions and Takeovers
Act 1975 and includes, relevantly, an individual not ordinarily resident in
Australia.
[5]
'Company interest' is defined in the bill using the definition in
section 6 of the Broadcasting Services Act 1992 and means, in relation
to a person who has a shareholding interest, a voting interest, a dividend
interest or a winding-up interest in a company, the percentage of that interest
or, if the person has two or more of those interests, whichever of those
interests has the greater percentage.
[6]
Proposed section 74E of the bill. If the ACMA is satisfied that the
disclosure of the information could reasonably be expected to prejudice
materially the commercial interests of a person, the Register must not set out
that particular information: section 74E(2).
[7]
'Designated information' means, relevantly, the person's date of birth
and the country in which the person is ordinarily resident: proposed section
74B.
[8]
Proposed section 74F and 74H. See also proposed section 74J, which
introduces a transitional provision for disclosure for foreign stakeholders who
are required to register at the commencement of this Division of the bill.
[9]
Proposed section 74K(1) and (2).
[10]
Statement of Compatibility (SOC), p. 20.
[11]
SOC, p. 18.
[12] Hasan
and Chaush v Bulgaria ECHR 30985/96 (26 October 2000) [84]
[13]
Proposed section 74G(2) of the bill.
[14]
Proposed sections 74F(4), 74G(3), 74H(4), 74J(4) and 74K(5) of the bill.
[15]
SOC, p. 20.
[16] See,
Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th
Parliament (16 March 2016) p. 11; Thirty-Seventh Report of the 44th
Parliament (19 April 2016); Report 9 of 2016 (22 November 2016) p.
56; Report 7 of 2017 (8 August 2017) p. 21 (which examined the United
Nations (Sanctions – Democratic People's Republic of Korea) (Documents)
Instrument 2017 that is amended by the current instrument); Report 11 of
2017 (17 October 2017) pp. 46-48.
[17] 2008
DPRK regulations section 5.
[18] See
2008 DPRK sanctions regulations section 5.
[19] Compare,
Charter of the United Nations (Sanctions – Democratic People's Republic of
Korea) (Documents) Instrument 2017 [F2017L00539].
[20] See
2008 DPRK sanctions regulations section 5(1)(c).
[21] 2008
DPRK regulations section 5.
[22] Parliamentary
Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017) p. 21.
[23] See,
Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the
44th Parliament (16 March 2016) p. 12.
[24] United
Nations Human Rights Committee, General Comment No. 35: Article 9 (Liberty
and Security of persons), (16 December 2014) [22].
[25] Statement
of compatibility, p. 1.
[26] Proposed
section 287(1). 'Political purpose' is defined in subsection 287(1) to mean:
(a) the public expression by any means of views on a political party, a
candidate in an election or a member of the House of Representatives or the
Senate; (b) the public expression by any means of views on an issue that is, or
is likely to be, before electors in an election (whether or not a writ has been
issued for the election); (c) the communicating of any electoral matter (not
being matter referred to in paragraph (a) or (b)) for which particulars are
required to be notified under section 321D; (d) the broadcast of political
matter (not being matter referred to in paragraph (c)) in relation to which
particulars are required to be announced under subclause 4(2) of Schedule 2 to
the Broadcasting Services Act 1992; (e) the carrying out of an opinion
poll, or other research, relating to an election or the voting intentions of
electors; except if: (f) the sole or predominant purpose of the expression of
the views, or the communication, broadcast or research, is the reporting of
news, the presenting of current affairs or any editorial content in news media;
or (g) the expression of the views, or the communication, broadcast or
research, is solely for genuine satirical, academic or artistic purposes.
[27]
Section 287F of the bill. An entity must register as a political
campaigner if their political campaigner in the current financial year is
$50,000 or more, and their political expenditure during the previous financial
year was at least 50 per cent of their allowable amount.
[28]
The 'disclosure threshold' is defined in section 287(1) of the bill to
be $13,200.
[29]
Section 287G(1).
[30]
Except a registered political party or a State branch of a registered
political party: section 287H(1) of the bill.
[31]
Section 287H(1).
[32]
Proposed section 287N of the bill.
[33]
Proposed section 287N(5)-(7).
[34]
Proposed section 287Q.
[35]
Statement of Compatibility (SOC) [4].
[36]
SOC [6].
[37]
SOC [4].
[38]
Article 25 of the ICCPR; UN Human Rights Council, General Comment
No.25: Article 25, Right to participate in public affairs, voting rights and
the right of equal access to public service (1996) para [1],[5]-[6].
[39]
SOC [4].
[40]
SOC [4], [8].
[41]
SOC [5].
[42]
SOC [5].
[43]
Section 287(1) of the bill.
[44]
Proposed section 287.
[45]
Explanatory Memorandum (EM), [39].
[46]
EM, [61].
[47]
See also, in relation to the freedom of association for human rights
defenders, Report of the Special Rapporteur on the situation of human rights
defenders (A/64/226) (2009).
[48]
It is also noted that proposed section 287N of the bill gives a broad
power to the electoral commissioner to determine, by legislative instrument,
additional information to be published on the register. This is accompanied by
a safeguard, namely that the legislative instrument is subject to mandatory
consultation with the Privacy Commissioner. The committee will consider the
human rights compatibility of any legislative instrument enacted pursuant to
section 287N, and the sufficiency of the safeguards, once it is received.
[49]
Section 287G(3) and (4).
[50]
Section 287H(3) and (4).
[51]
EM, p. 19.
[52]
SOC [16].
[53]
Section 302D excludes political campaigners who are registered charities
under the Australian Charities and Not-for-Profits Commission Act 2012 or
registered organisations under the Fair Work (Registered Organisations) Act
2009: see section 302D(g).
[54]
Section 287AA of the bill.
[55]
Section 302D(2) and (3)
[56]
Section 302E(2)(b).
[57]
Section 302E(4) and (5).
[58]
Section 302F.
[59]
Section 302G(1)(d). The effect of this is that a fundraiser can solicit
foreign gifts for registered organisations or registered charities but can only
use them subject to the requirements in section 302E: see EM [175].
[60]
Section 302G(2).
[61]
Section 302J.
[62]
Section 302H.
[63]
Section 302K(2) and (3).
[64]
A person obtains 'appropriate donor information' where a statutory
declaration is obtained from the donor declaring the person is an allowable
donor, unless the regulations provide otherwise: section 302P(1)(a) and (2). The
regulations may also determine information that must be sought from the donor
in order to establish other forms of appropriate donor information: section
302P(1)(b).
[65]
Section 302L(2) and(3).
[66]
SOC [4].
[67]
See Parti Nationaliste Basque – Organisation Régionale D'Iparralde v
France, no.71251/01, ECHR 2007-II, [45]-[47].
[68]
SOC [14].
[69]
See sections 302L and 302P.
[70]
Report of the Special Rapporteur on the rights of freedom of peaceful
assembly and of association (A/HRC/20/27) (2012) [67]-[68].
[71]
Report of the Special Rapporteur on the rights of freedom of peaceful
assembly and of association (A/HRC/20/27) (2012) [70].
[72]
Section 287(1) of the bill.
[73]
See the note at the end of proposed section 309(2) and (3) and section
314AEB(1).
[74]
See proposed section 314AB(1).
[75]
SOC, [10].
[76]
SOC, [10]-[11].
[77]
SOC, [11].
[78] See,
Item 3; Statement of compatibility (SOC), p. 10.
[79]
See proposed section 44D of the Enhancing Online
Safety Act 2015.
[80]
See proposed section 44E of the Enhancing Online
Safety Act 2015.
[81] See
proposed section 44F of the Enhancing Online Safety Act 2015.
[82] See
proposed section 44K of the Enhancing Online Safety Act 2015.
[83] SOC,
p. 10.
[84] SOC,
p. 9.
[85] SOC,
p. 10.
[86] SOC,
p. 10.
[87] Some
criminal process rights may be subject to permissible limitations where they
pursue a legitimate objective, are rationally connected to that objective and
are a proportionate means of achieving that objective. However, other criminal
process rights are absolute and cannot be subject to permissible limitations.
[88]
Foreign principal is defined in section 10 of the bill to mean: (a) a
foreign government; (b) a foreign public enterprise; (c) a foreign political
organisation; (d) a foreign business; (e) an individual who is neither an
Australian citizen nor a permanent Australian resident.
[89]
For Parliamentary lobbying, section 21 only applies to foreign
principals who are a foreign public enterprise, foreign political organisation,
foreign businesses, or individuals. Where the foreign principal is a foreign
government, the activity is registrable if it is parliamentary lobbying in
Australia whether or not the purpose is political or governmental influence:
section 20 of the bill. 'Parliamentary lobbying' is defined in section 10 of
the bill to mean lobbying a member of parliament or a person employed under
section 13 or 20 of the Members of Parliament (Staff) Act 1984.
[90]
'General political lobbying' is defined in section 10 to mean lobbying
any one or more of the following: (a) a Commonwealth public official; (b) a
Department, agency or authority of the Commonwealth; (c) a registered political
party; (d) a candidate in a federal election; other than lobbying that is
Parliamentary lobbying.
[91]
Section 13 of the bill provides that a person undertakes
'communications activity' if the person communicates or distributes information
or material.
[92]
For donor activity, section 21 only applies to foreign principals who
are a foreign government, foreign public enterprise, or a foreign political
organisation.
[93]
Section 21 of the bill.
[94]
See sections 22 and 23 of the bill.
[95]
The requirement does not apply where the foreign principal is an
individual, the activity is not registrable in relation to the foreign principal
under another provision of the division, and the person is not exempt: section
22(b).
[96]
'Recent Minister or member of Parliament' is defined in proposed
section 10 to mean a person who was (but is no longer) a Minister or a member
of the Parliament at any time in the previous 3 years: section 10.
[97]
'Recent holder of a senior Commonwealth position' is defined in section
10 to mean a person who held a senior Commonwealth position at any time in the
18 months before the time, and is not at the time a Minister, member of the
Parliament or a holder of a senior Commonwealth position. 'Senior Commonwealth
position' covers positions at the agency head and deputy agency head levels.
[98]
The requirement does not apply where the foreign principal is an
individual, the activity is registrable in relation to the foreign principal
under another provision of the division, and the person is exempt: section 23.
[99]
Section 24 of the bill.
[100]
Section 25 of the bill.
[101]
Section 26 of the bill.
[102]
Section 27 of the bill.
[103]
Section 28 of the bill.
[104]
Section 29 of the bill.
[105]
Section 30 of the bill.
[106]
Section 57 of the bill.
[107]
Section 43(1)(c) of the bill.
[108]
Section 6 of the Charges Bill.
[109]
Statement of Compatibility (SOC) [62] and [72].
[110]
SOC [62].
[111]
SOC [64]. In the United States, the registration requirements under the
US Foreign Agents Registration Act have been found to be compatible with
the First Amendment (freedom of expression) on the basis it promotes the freedom
of expression: "Resting on the fundamental constitutional principle that
our people, adequately informed, may be trusted to distinguish between the true
and the false, the bill is intended to label information of foreign origin so
that hearers and readers may not be deceived by the belief that the information
comes from a disinterested source. Such legislation implements rather than
detracts from the prized freedoms guaranteed by the First Amendment. No
strained interpretation should frustrate its essential purpose": Attorney-General
of the United States of America v The Irish People Inc., 684 F.2d 928
(1982) (United States Court of Appeals, District of Columbia Circuit) [71]; see
also Meese v Keene, 481 U.S. 465 (1987) (United States Supreme Court) 481-483
("By compelling some disclosure of information and permitting more, the
Act's approach recognizes that the best remedy for misleading or inaccurate
speech contained within materials subject to the Act is fair, truthful, and
accurate speech").
[112]
SOC [71]-[73].
[113]
Article 25 of the ICCPR; UN Human Rights Council, General Comment
No.25: Article 25, Right to participate in public affairs, voting rights and
the right of equal access to public service (1996) [1],[5]-[6].
[114]
SOC [81].
[115]
SOC [55].
[116]
SOC [21], [85].
[117]
UN Human Rights Committee, General Comment No. 34: Article 19,
Freedom of Opinion and Expression (2011), [3]. See also Parti
Nationaliste Basque – Organisation Régionale D'Iparralde v France, no.71251/01,
ECHR 2007-II, [43]-[44], where the European Court of Human Rights accepted that
prohibiting foreign States and foreign legal entities from funding national
political parties pursued the legitimate aim of protecting institutional order;
Attorney-General of the United States of America v The Irish People Inc., 684
F.2d 928 (1982) (United States Court of Appeals, District of Columbia Circuit);
Meese v Keene, 481 U.S. 465 (1987) (United States Supreme Court).
[118]
Primrose Riordan, 'Universities alarmed new treason laws could target
academics', http://www.theaustralian.com.au/higher-education/universities-alarmed-new-treason-laws-could-target-academics/news-story/af896886be03dd1c9517536e4cd70be1
(15 December 2017)
[119]
See section 11(1)(e) of the bill.
[120]
See section 12(1)(b) of the bill.
[121]
Section 10 of the bill.
[122]
Section 6 of the Charges Bill.
[123]
See section 57 of the bill.
[124]
Explanatory Memorandum, [303].
[125]
See UN Human Rights Council, Report of the Special Rapporteur on the
rights to freedom of peaceful assembly and of association, A/HRC.20/27 (21
May 2012) [64]-[65].
[126]
See proposed section 28 of the bill. Section 28 only applies if the
foreign principal is a foreign business or an individual, and does not apply in
relation to activities that are registrable in relation to a foreign principal
for recent cabinet ministers or recent Ministers, members of Parliament and
other holders of senior Commonwealth positions: section 28(2). See also the
exemptions listed in sections 24,25,26,27 and 29.
[127]
See the United States' Foreign Agents Registration Act, 22 USC 611-621, section
613(e).
[128]
SOC [58].
[129]
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'.
[130]
Althammer v Austria, Human Rights Committee Communication no.
998/01 [10.2].
[131] UN
Committee on the Elimination of Racial Discrimination, General
Recommendation 30: Discrimination against non-citizens (2004).
[132]
Section 10 of the bill.
[133] Parliamentary
Joint Committee on Human Rights, Twenty-ninth Report of the 44th Parliament
(13 October 2015) pp. 9-24 and Thirty-second report of the 44th Parliament
(1 December 2015) pp. 64-86.
[134] Under
the My Health Records Act 2012, 'healthcare recipient' is defined as 'an
individual who has received, receives, or may receive, healthcare'.
[135] The
three-month period will begin on a date to be specified by the minister. See,
explanatory statement (ES) pp. 4-5.
[136] ES,
p. 5.
[137] According
to the Department of Health Website, the information stored on My Health Record
can include: 'Clinical documents about your health – added by healthcare
providers including: Shared Health Summary; Hospital discharge summaries;
Pathology and diagnostic imaging reports; Prescribed and dispensed medication;
Specialist and referral documents; Medicare and PBS information stored by the
Department of Human Services, Medicare and RPBS information stored by the
Department of Veterans’ Affairs; Organ Donor decisions; Immunisations that are
included in the Australian Immunisation Register. This may include childhood
immunisations and other immunisations given to you by a healthcare provider;
Personal health notes written by you or an authorised representative including:
Contact numbers and emergency contact details; Current medications; Allergy
information and any previous adverse reactions; Indigenous status; Veteran or
ADF status; living will or advance care planning documents". Department of
Health, My Health Record, https://myhealthrecord.gov.au/internet/mhr/publishing.nsf/Content/find-out-more?OpenDocument&cat=Managing%20your%20My%20Health%20Record
[138] ES,
statement of compatibility (SOC), p. 8.
[139] ES,
SOC, p. 8.
[140] ES,
SOC, p. 10.
[141] Health
Legislation Amendment (eHealth) Bill 2015, explanatory memorandum, p. 95.
[142] ES,
SOC, p. 9.
[143] Siggins
Miller Consultants, Evaluation of the Participation Trials for the My Health
Record: Final Report (November 2016) p. vii.
[144] ES,
SOC, pp. 9-10.
[145] The
explanatory statement states that individuals aged 14 years or older will be
able to opt themselves out. Persons with parental or legal authority for
another person may also opt out that other person. See ES, p. 5.
[146]
See proposed section 80A in Schedule 1, item 3 and proposed section
73A in Schedule 2, item 3 of the bill.
[147]
'On-air talent contract' refers to a contract between the ABC or SBS
and an individual under which the individual performs services for the ABC or
SBS including appearing on a television program or speaking or performing on a
radio program: proposed section 80A(3) in Schedule 1, item 3 and proposed
section 73A(3) in Schedule 2, item 3 of the bill.
[148]
See proposed section 80A(1)(b) in Schedule 1, item 3 and proposed
section 73A(1)(b) in Schedule 2, item 3 of the bill.
[149]
Statement of Compatibility (SOC), p. 6.
[150]
SOC, p. 6.
[151]
See Rechnungshof v Österreichischer Rundfunk and others, Court
of Justice of the European Union C-465/00, C-138/01, C-139/01, 20 May 2003, [85],
where the Court of Justice of the European Union noted in a case concerning
public disclosure of salaries that 'in a democratic society, taxpayers and
public opinion generally have the right to be kept informed of the use of
public revenues, in particular as regards the expenditure on staff. Such
information....may make a contribution to the public debate on a question of
general interest, and thus serves the public interest'. See also, the United
Kingdom Information Commissioner's Office, Freedom of Information Act
Decision Notice (26 September 2011), relating to disclosure of
salary details of senior managers at the BBC: 'taxpayers will have a natural,
and legitimate, interest in knowing how a publicly funded organisation
allocates its funding' ([27]).
[152]
See Rechnungshof v Österreichischer Rundfunk and others, Court
of Justice of the European Union C-465/00, C-138/01, C-139/01, 20 May 2003, [73]-[75];
Information Commissioner's Office, Freedom of Information Act 2000 Decision
Notice: British Broadcasting Corporation (26 September 2011), available at:
https://ico.org.uk/media/action-weve-taken/decision-notices/2011/648762/fs_50363389.pdf,
[25].
[153]
SOC, pp. 6-7.
[154] Parliamentary
Service Determination 2013 [F2013L00448] (2013 Determination).
[155] See,
Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9
November 2016) pp. 12‑15; Report 10 of 2016 (30 November 2016) pp.
13-16; Report 1 of 2017 (16 February 2017) pp. 20-23.
[156] Australian
Public Service Commissioner's Directions 2013 [F2013L00448] (APS 2013
Directions) reported in Parliamentary Joint Committee on Human Rights, Sixth
Report of 2013 (15 May 2013) pp. 133‑134; Eighteenth Report of the
44th Parliament (10 February 2015) pp. 65-67; and Twenty-first
Report of the 44th Parliament (24 March 2015) pp. 25‑28.
[157] Parliamentary
Joint Committee on Human Rights, Twenty-first Report of the 44th Parliament (24
March 2015) pp. 25-28.
[158] Parliamentary
Joint Committee on Human Rights, Twenty-first Report of the 44th Parliament (24
March 2015) pp. 25-28.
[159] Parliamentary
Joint Committee on Human Rights, Report 8 of 2016 (9 November 2016)
pp. 12‑15.
[160] See
section 34(1)(e).
[161] Parliamentary
Joint Committee on Human Rights, Report 10 of 2016 (30 November 2016)
p. 16.
[162] Parliamentary
Joint Committee on Human Rights, Report 8 of 2017 (8 August 2017) p. 40.
[163] Parliamentary
Joint Committee on Human Rights, Report 8 of 2017 (8 August 2017) p. 40.
[164] Parliamentary
Joint Committee on Human Rights, First Report of the 44th Parliament
(10 December 2013) pp. 157-159.
[165] Parliamentary
Service Amendment (Notification of Decisions and Other Measures) Determination
2016 [F2016L01649].
[166] Parliamentary
Joint Committee on Human Rights, Report 1 of 2017 (16 February 2017)
pp. 20-23.
[167] Parliamentary
Joint Committee on Human Rights, Report 1 of 2017 (16 February 2017) p. 110.
[168] Parliamentary
Joint Committee on Human Rights, Report 2 of 2017 (16 February 2017) p. 23.
[169] See
section 39(1)(e).
[170] Statement
of compatibility, Attachment B.
[171] See,
Parliamentary Joint Committee on Human Rights, Report 8 of 2016 (9
November 2016)
p. 14; Report 1 of 2017 (16 February 2017) pp. 22-23.
[172] Parliamentary
Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 16-24.
[173] Statement
of Compatibility (SOC), p. xi.
[174] See,
article 22 of the ICCPR and articles7, 8 of the ICESCR.
[175] 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.
[176] ILO,
General Survey by the Committee of Experts on the Application of Conventions
and Recommendations on Freedom of Association and Collective Bargaining
(1994) [248];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). See, also, ILO Committee of Experts on the Application of Conventions
and Recommendations (CEACR),Direct Request (CEACR) - adopted 2016, published
106th International Labour Conference (ILC) session (2017) Right to Organise
and Collective Bargaining Convention, 1949 (No. 98) - Australia (Ratification:
1973) http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID:3299912;
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.
[177] See
ICCPR article 22.
[178] 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]).
[179] 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]).
[180] See,
for example, 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.
[181] 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.
[182] SOC,
p. xi.
[183] SOC,
p. x.
[184] SOC,
p. xi.
[185] See,
article 22 of the ICCPR and article 8 of the ICESCR. 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.
[186] See
ILO Convention N.87 article 3.
[187] SOC,
p. x.
[188] SOC,
p. x.
[189] SOC,
p. x.
[190] SOC,
p. x.
[191] SOC,
p. x.
[192] See,
Schedule 4, item 355, proposed section 355A of the Fair Work Act.
[193] See,
UN Committee on Economic Social and Cultural Rights (UNCESCR), Concluding
Observations on Australia, E/C.12/AUS/CO/5 (23 June 2017) [29]-30]: 'The Committee is also concerned that the right to strike remains
constrained in the State party (art. 8).The Committee recommends that the State
party bring its legislation on trade union rights into line with article 8 of
the Covenant and with the provisions of the relevant International Labour
Organization (ILO) Conventions (nos. 87 and 98), particularly by removing
penalties, including six months of incarceration, for industrial action, or the
secret ballot requirements for workers who wish to take industrial action'.
See, also, ILO CEACR, Observation Concerning Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87), Australia,
103rd ILC session, 2013; ILO CEACR, Observation Concerning Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No.
87), Australia, 101st ILC session, 2013; ILO CEACR, Observation
Concerning Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), Australia, 99th ILC session, 2009; ILO CEACR, Individual
Observation Concerning the Right to Organise and Collective Bargain Convention,
1949, (No. 98), Australia, 99th session, 2009. See also, UNCESCR, Concluding
Observations on Australia, E/C.12/AUS/CO/4 (12 June 2009) p. 5.
[194] SOC,
p. xi.
[195] See,
UN Committee on Economic Social and Cultural Rights (UNCESCR), Concluding
Observations on Australia, E/C.12/AUS/CO/5 (23 June 2017) [29]-30]: 'The Committee is also concerned that the right to strike remains
constrained in the State party (art. 8).The Committee recommends that the State
party bring its legislation on trade union rights into line with article 8 of
the Covenant and with the provisions of the relevant International Labour
Organization (ILO) Conventions (nos. 87 and 98), particularly by removing
penalties, including six months of incarceration, for industrial action, or the
secret ballot requirements for workers who wish to take industrial action'.
See, also, ILO CEACR, Observation Concerning Freedom of Association and Protection
of the Right to Organise Convention, 1948 (No. 87), Australia, 103rd ILC
session, 2013; ILO CEACR, Observation Concerning Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87), Australia,
101st ILC session, 2013; ILO CEACR, Observation Concerning
Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87), Australia, 99th ILC session, 2009; ILO CEACR, Individual
Observation Concerning the Right to Organise and Collective Bargain Convention,
1949, (No. 98), Australia, 99th session, 2009. See also, UNCESCR, Concluding
Observations on Australia, E/C.12/AUS/CO/4 (12 June 2009) p. 5.
Chapter 2 - Concluded matters
[1] Parliamentary
Joint Committee on Human Rights, Report 12 of 2017 (28
November 2017)
pp. 6-9.
[2]
Section 8(1)(c) of the ABC Act.
[3] See Human
Rights Committee, General comment No 34 (Article 19: Freedoms of opinion and
expression), CCPR/C/GC/34, [16] (2011).
[4] See,
generally, Human Rights Committee, General comment No 34 (Article 19:
Freedoms of opinion and expression), CCPR/C/GC/34 (2011) [21-36].
[5]
Statement of Compatibility (SOC), p. 5.
[6]
SOC, p. 5.
[7]
ABC Editorial Policies, Editorial Guidance Note: Impartiality
(2014) https://edpols.abc.net.au/guidance/impartiality/.
[8]
ABC Editorial Policies, Editorial Guidance Note: Impartiality
(2014) https://edpols.abc.net.au/guidance/impartiality/.
[9]
ABC Editorial Policies, Editorial Guidance Note: Impartiality
(2014) https://edpols.abc.net.au/guidance/impartiality/.
[10]
SOC, p. 5.
[11]
SOC, p. 5.
[12]
Section 8(1)(c) of the ABC Act.
[13]
Parliamentary Joint Committee on Human Rights, Report 13 of 2017 (5
December 2017)
pp. 17-18.
[14] 'Personal
Information' as defined in section 6(1) of the Privacy Act means information or
an opinion about an identified individual, or an individual who is reasonably
identifiable: (a) whether the information or opinion is true or not; and (b)
whether the information or opinion is recorded in a material form or not.
[15]
Clause 55(1)(b) of the instrument.
[16]
For example an agency may disclose personal information or a
government related identifier of an individual where its use or disclosure is
required or authorised by or under an Australian Law: Australian Privacy
Principles 6.2(b) and 9.
[17] Parliamentary
Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 10-15.
[18]
See item 2 of the Bill. Proposed section 124(1)(gc) goes on to note
several exceptions to this regulation-making power in relation to certain
inquiries, namely inquiries conducted by the Defence Force Remuneration
Tribunal under Part IIIA of the Act; or the Inspector-General ADF under Part
VIIIB; or the Defence Honours and Awards Appeals Tribunal under Part VIIIC.
[19]
See sections 124(2A) and 124(2C) of the Defence Act.
[20]
UN Human Rights Council, General Comment No.32: Article 14, Right
to equality before courts and tribunals and to fair trial (2006) [22].
[21]
See, Defence (Inquiry) Regulations 1985. See also Parliamentary
Joint Committee on Human Rights, Twenty-Third Report of the 44th
Parliament (18 June 2015) pp. 18-21.
[22]
See also, Parliamentary Joint Committee on Human Rights, Twenty-Third
Report of the 44th Parliament (18 June 2015) pp. 18-21.
[23]
See, Parliamentary Joint Committee on Human Rights, Twenty-Third
Report of the 44th Parliament (18 June 2015) p. 21.
[24]
See, for example, Human Rights Committee, Freedom of movement
(Art.12), UN DocCCPR/C/21/Rev.1/Add.9, General Comment No.27, Pinkney v Canada
HRC Communication No. 27/1977, UN Doc CCPR/C/14/D/27/1977; Hasan and Chaush
v Bulgaria ECHR 30985/96 (26 October 2000) [84].
[25]
UN Human Rights Council, General Comment No.32: Article 14, Right
to equality before courts and tribunals and to fair trial (2006) [22].
[26]
Within defence aviation areas, buildings and objects can be regulated
for the purposes of removing and reducing hazards to defence aviation.
[27]
See for example sections 18 and 19 of the Regulatory Powers (Standard
Provisions) Act 2014.
[28]
Section 32(2) of the Regulatory Powers (Standard Provisions) Act 2014.
[29]
See proposed section 117AE(2)(b) of the bill.
[30]
See proposed section 117AG(1) of the bill.
[31]
SOC [6].
[32]
Proposed section 117AG(2) of the bill.
[33]
See proposed section 117AF(3) of the bill.
[34]
SOC [6].
[35] Parliamentary
Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 25-30.
[36]
An Insurance Act and Life Insurance Act 'statutory manager' is either
the Australian Prudential Regulation Authority (APRA) or an administrator
appointed by APRA to control a body corporate's business: see Schedule 2, item
58, proposed section 62ZOA(8) to the Insurance Act; see Schedule 3, item 52,
proposed section 179AA(8) to the Life Insurance Act.
[37]
Schedule 2, item 58, proposed section 62ZOD(2) to the Insurance Act;
Schedule 3, item 52, proposed section 179AD(2) to the Life Insurance Act.
[38]
Schedule 2, item 58, proposed section 62ZOD(3) to the Insurance Act;
Schedule 3, item 52, proposed section 179AD(3) to the Life Insurance Act.
[39]
Schedule 2, item 58, proposed section 62ZOD(4) to the Insurance Act;
Schedule 3, item 52, proposed section 179AD(4) to the Life Insurance Act.
[40]
Schedule 2, item 58, proposed section 62ZOD(5) to the Insurance Act;
Schedule 3, item 52, proposed section 179AD(5) to the Life Insurance Act.
[41]
The statement of compatibility also addresses the privilege against
self-incrimination in relation to the new information gathering powers to allow
APRA to obtain information from current and past officers of an insurer and a
life insurance entity that is under statutory management: see Statement of
Compatibility (SOC), 224-225. The provisions relating to APRA's powers to
obtain information include a use and a derivative use immunity provision and
therefore do not raise human rights concerns: Schedule 2, item 58, proposed
section 62ZOI(5) and (6) of the Insurance Act 1973; Schedule 3, item 52,
proposed section 179AI(5) and (6) of the Life Insurance Act 1995.
[42]
SOC, pp. 224-225.
[43]
See, Schedule 2, item 58, proposed section 62ZOD(5) to the Insurance
Act; Schedule 3, item 52, proposed section 179AD(5) to the Life Insurance Act.
[44]
Schedule 2, item 58, proposed section 62ZOI(5) and (6) of the Insurance
Act 1973; Schedule 3, item 52, proposed section 179AI(5) and (6) of the Life
Insurance Act 1995.
[45]
Schedule 4, item 92, proposed section 42 of the Transfer Act.
[46]
SOC, p. 226.
[47]
SOC, p. 227.
[48]
APP 9; APP 6.2(b).
[49] Parliamentary
Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 31-33.
[50]
See item 24 of the Regulations, amendment to Schedule 1 (items 16590
and 16591).
[51]
See item 9 of the Regulations, amendment to Schedule 1 (item 16407).
[52] Parliamentary
Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 34-42.
[53]
Item 6 of the bill; Explanatory Memorandum (EM) [19].
[54]
Item 13 of the bill; EM [22].
[55]
Item 12 of the bill.
[56]
EM [37].
[57]
Article 14(2) of the ICCPR.
[58]
Article 14(3)(g) of the ICCPR.
[59]
Article 15(1) of the ICCPR.
[60]
Parliamentary Joint Committee on Human Rights, Thirty-First Report
of the 44th Parliament (24 November 2015) pp. 43-44; Twenty-Sixth
Report of the 44th Parliament Report 1 of 2017 (16
February 2017); Report 2 of 2017 (21 March 2017) p. 6; Report 4 of
2017 (9 May 2017) pp.
92-93.
[61]
Section 49 of the POC Act.
[62]
Sections 51 and 80 of the POC Act.
[63]
Section 49(2)(a) of the POC Act.
[64]
Parliamentary Joint Committee on Human Rights, Thirty-First Report of
the 44th Parliament (24 November 2015) p. 43.
[65]
Parliamentary Joint Committee on Human Rights, Thirty-First Report of
the 44th Parliament (24 November 2015) pp. 43-44; Twenty-Sixth
Report of the 44th Parliament Report 1 of 2017 (16
February 2017); Report 2 of 2017 (21 March 2017) p. 6; Report 4 of
2017 (9 May 2017) pp.
92-93.
[66]
See, in this respect, the report of the United Kingdom Parliamentary
Joint Committee on Human Rights, Joint Committee on Human Rights Third
Report (26 November 2001), [40]-[41] where similar concerns were raised in
relation to the UK Proceeds of Crime Bill.
[67]
Statement of Compatibility (SOC) [21]-[23]. See section 315 of the POC
Act which relevantly provides that '[p]roceedings on an application order or a
confiscation order are not criminal proceedings', that the rules of
construction applicable only in criminal law do not apply, and that rules of
evidence applicable in civil proceedings do apply.
[68]
Parliamentary Joint Committee on Human Rights, Guidance Note 2:
Offence provisions, civil penalties and human rights (December 2014) p. 3.
[69]
SOC [15].
[70]
See R v Green [1983] 9 CRR 78; Johnston v British Columbia [1987]
27 CRR 206.
[71]
SOC [27].
[72]
The amendments were introduced following several court cases where
doubts had been raised as to whether it was possible to consider the origins of
payments made on property in order to determine whether the property could be
forfeited: see Commissioner of Australian Federal Police v Huang [2016]
WASC 5; Commissioner of Australian Federal Police v Hart & Ors [2016]
QCA 215
[73]
Section 24 of the POC Act.
[74]
Sections 17(4) and 19(3) of the POC Act, and also sections 47(4), 48(2)
and 49(4).
[75]
Section 330(4) of the Act.
[76]
Sections 77 and 94A.
[77]
Section 80 of the POC Act.
[78]
Section 48(1)(c) of the POC Act.
[79]
'Unexplained wealth' refers to an amount that is the difference between
a person's total wealth and the wealth shown to have been derived lawfully: see
section 179E(2) of the Act.
[80]
See section 179E(1) of the POC Act.
[81]
See proposed amendment to section 179E(1) of the POC Act.
[82]
See proposed amendment to section 179E(3) of the POC Act.
[83]
See, Parliamentary Joint Committee on Human Rights, First Report of
2013, p. 27; Third Report of 2013, p. 120; Sixth Report of 2013, p.
189; Fourth Report of the 44th Parliament (March 2014) p. 1; Ninth
Report of the 44th Parliament (July 2014), p. 133.
[84]
See, Parliamentary Joint Committee on Human Rights, Fourth Report of
the 44th Parliament (March 2014) p. 6.
[85]
The amendments apply after the commencement in relation to property
derived or realised after commencement, from the commission of an offence
occurring before or after that commencement: see item 14(1).
[86]
Parliamentary Joint Committee on Human Rights, Guidance Note 2:
Offence provisions, civil penalties and human rights (December 2014) p. 3.
[87] Parliamentary
Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 43-52.
[88]
See proposed section 124QB of the Social Security (Administration)
Act 1999, which defines 'divertible welfare payment' as a social security
payment or a payment under the ABSTUDY scheme that is payable to a particular
person and is not '(i) an Australian Victim of Terrorism Overseas Payment; or
(ii) a Disaster Recovery Allowance; or (iii) a student start-up loan; or (iv)
an ABSTUDY student start-up loan under the Student Assistance Act 1973;
or (v) of a kind determined in an instrument [made by the Minister]'.
[89]
See proposed section 124QF(3) to the Social Security
(Administration) Act 1999 and proposed section 67D(3) to the A New Tax
System (Family Assistance) (Administration) Act 1999.
[90]
Proposed section 124QF(1) to the Social Security (Administration)
Act 1999 and proposed section 67D(1) to the A New Tax System (Family
Assistance) (Administration) Act 1999.
[91]
Proposed section 124QD to the Social Security (Administration) Act
1999.
[92]
Explanatory Memorandum (EM) p. 7.
[93]
UN Committee on Economic, Social and Cultural Rights, General
Comment No. 19: The Right to Social Security, UN Doc E/C.12/GC/19 (2008),
[22].
[94]
Article 26 and Article 27 of the Convention on the Rights of the
Child.
[95]
Statement of Compatibility (SOC) p. 2.
[96]
SOC p. 1.
[97]
The UN Special Rapporteur on adequate housing has recently emphasised
the importance of the right to adequate housing and noted that it is a human
right which is interdependent with other human rights, particularly the right
to equality and non-discrimination and the right to life: Report of the
Special Rapporteur on adequate housing as a component of the right to an
adequate standard of living, and on the right to non-discrimination in this
context, A/HRC/34/51, (2017) [11].
[98] Parliamentary
Joint Committee on Human Rights, Guidance Note 1—Drafting Statements of
Compatibility (December 2014).
[99]
SOC, p. 1.
[100]
SOC, pp. 2-3.
[101]
SOC, pp. 2-3.
[102]
Proposed section 124QF(1) to the Social Security (Administration) Act
1999 and proposed section 67D(1) to the A New Tax System (Family
Assistance) (Administration) Act 1999.
[103]
Parliamentary Joint Committee on Human Rights, 2016 Review of
Stronger Futures Measures (16 March 2016) pp. 50-54.
[104]
Parliamentary Joint Committee on Human Rights, 2016 Review of
Stronger Futures Measures (16 March 2016) p. 61.
[105]
See section 124QG.
[106]
Althammer v Austria, HRC 998/01 [10.2].
[107]
Australian Institute of Health and Welfare, Housing Assistance in
Australia 2017 (13 July 2017) https://www.aihw.gov.au/reports/web/web-189/housing-assistance-in-australia-2017/contents/social-housing-tenants-1.
[108]
Australian Institute of Health and Welfare, Housing Assistance in
Australia 2017 (13 July 2017) https://www.aihw.gov.au/reports/web/web-189/housing-assistance-in-australia-2017/contents/social-housing-tenants-1.
[109] 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).
[110]
See section 124PB of the Social Security (Administration) Act 1999.
[111]
Which includes a number of payments, including specified social security
payments and family tax benefits: see section 124PD(1) of the Social Security
(Administration) Act 1999.
[112]
EM, p. 6.
[113]
See Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17
October 2017) pp. 126-137; Report 9 of 2017 (5 September 2017) pp.
34-40; Report 7 of 2016 (11 October 2016) pp. 58-61; Twenty-seventh
report of the 44th Parliament (8 September 2015) pp. 20-29; Thirty-first
report of the 44th Parliament (24 November 2015) pp. 21-36.
[114]
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).
[115]
See also the previous comments of the committee: Parliamentary Joint
Committee on Human Rights, Report 11 of 2017 (17 October 2017) pp.
126-137; Report 9 of 2017 (5 September 2017) pp. 34-40; Report 7 of
2016 (11 October 2016) pp. 58-61; Twenty-seventh report of the 44th
Parliament (8 September 2015) pp. 20-29; Thirty-first report of the 44th
Parliament (24 November 2015) pp. 21-36.
[116]
See, Parliamentary Joint Committee on Human Rights, Thirty-first
report of the 44th Parliament (24 November 2015) pp. 21-36.
[117]
See item 7 of the bill, and page [6] of the explanatory memorandum.
[118]
See Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17
October 2017) pp. 126-137; Report 9 of 2017 (5 September 2017) pp.
34-40; Report 7 of 2016 (11 October 2016) pp. 58-61; Twenty-seventh
report of the 44th Parliament (8 September 2015) pp. 20-29; Thirty-first
report of the 44th Parliament (24 November 2015) pp. 21-36.
[119]
See Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17
October 2017) pp. 126-137; Report 9 of 2017 (5 September 2017) pp.
34-40; Report 7 of 2016 (11 October 2016) pp. 58-61; Twenty-seventh
report of the 44th Parliament (8 September 2015) pp. 20-29; Thirty-first
report of the 44th Parliament (24 November 2015) pp. 21-36.
[120] Parliamentary
Joint Committee on Human Rights, Report 12 of 2017 (28 November 2017)
pp. 53-57.
[121] See
Schedule 2, item 9, sections 61A and 61C. Under the bill, a person is required
to appear before an investigator where the investigator 'reasonably believes or
suspects that a person... can give information relevant to the investigator’s
investigation'. See proposed schedule 2, item 9, section 61C.
[122]
See Schedule 2, item 9, section 61G.
[123]
SOC, p. 79.
[124]
This includes proceedings concerning the falsity of the information
provided. See SOC, p. 79.
[125]
Subsection 61(1) of the Banking Act 1959 also stipulates that
APRA may appoint a person to investigate prudential matters relating to a body
corporate that is an ADI; an authorised non-operating holding company; or a
subsidiary of an ADI or of an authorised non-operating holding company.
[126]
It is noted that the statement of compatibility does acknowledge that
the right to privacy is engaged by another measure in the bill that requires
authorised deposit-taking institutions (ADIs) to provide information to APRA,
including personal information, on persons with senior executive responsibility
within the ADI or its subsidiaries: See SOC p. 80.
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'.