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 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 registered in the relevant period, as listed on the Federal Register of Legislation. See, https://www.legislation.gov.au/.

[3]          These are: Australian Education Amendment (2017 Measures No. 2) Regulations 2017 [F2017L01501]; Criminal Code Amendment (High Risk Terrorist Offenders) Regulations 2017 [F2017L01490]; Crimes (Overseas) (Declared Foreign Countries) Amendment Regulations 2017 [F2017L01520]; Federal Financial Relations (National Partnership Payments) Determination No. 124 (September 2017) [F2017L01505]; Federal Financial Relations (National Partnership Payments) Determination No. 125 (October 2017) [F2017L01509]; Federal Financial Relations (National Partnership Payments) Determination No. 126 (October 2017) [F2017L01510]; Federal Financial Relations (National Partnership Payments) Determination No. 127 (November 2017) [F2017L01539];  Federal Financial Relations (National Partnership Payments) Determination No. 123 (August 2017) [F2017L01143]; Federal Financial Relations (National Partnership Payments) Determination No. 122 (July 2017) [F2017L01148]; Legislation (Deferral of Sunsetting—Privacy Guidelines for the Medicare Benefits and Pharmaceutical Benefits Programs) Certificate 2017 [F2017L01719]; National Security Information (Criminal and Civil Proceedings) Amendment Regulations 2017 [F2017L01660]; and Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures No. 2) Bill 2018.

[4]          'Requesting officer' is defined under subsection 75.10(2) of the instrument, and means the head of an eligible agency, or a member of an eligible agency who is a Senior Executive Service (SES) employee or equivalent, or who holds the rank of superintendent or higher.

[5]          'Eligible agency' is defined under subsection 75.10(1) of the instrument, and means the Australian Crime Commission, the Australian Federal Policy, the Immigration Department, the NSW Crime Commission or the police force or service of a State or the Northern Territory.

[6]          'Serious offence' is defined under subsection 75.10(3) of the instrument, and means an offence against a Commonwealth, State or Territory law, punishable on indictment by imprisonment for 2 or more years, or an offence against a law of a foreign country constituted by conduct that, if it had occurred in Australia, would constitute a serious offence.

[7]          AML/CTF Act section 6.

[8]          AML/CTF Act section 5, definition of reporting entity.

[9]          International Covenant on Civil and Political Rights (ICCPR) article 14(2)-14(7).

[10]        See, Ramanauskas v Lithuania, European Court of Human Rights (ECHR) Application No. 74420/01, 5 February 2008, [55]. The ECHR has consistently held that entrapment violates article 6 of the European Convention on Human Rights, which is equivalent to article 14 of the ICCPR.

[11]        See, Khudobin v Russia, ECHR Application No. 59696/00, 26 October 2006; Baltins v Latvia, ECHR Application No. 25282/07, 8 January 2013; Ramanauskas v Lithuania, ECHR Application No. 74420/01, 5 February 2008, [55].

[12]        Statement of compatibility (SOC), p. 5.

[13]        Explanatory statement (ES), p. 1.

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

[15]          Statement of compatibility (SOC), pp. 11-12.

[16]          SOC, p. 10.

[17]          SOC, p. 10.

[18]          SOC, p. 12

[19]          See T, R (on the application of) v Greater Manchester Chief Constable & Ors [2013] EWCA Civ 25 (29 January 2013). The UK Supreme Court in that case held the relevant legislation to be incompatible with article 8 of the European Convention on Human Rights. See also the decision of Bell J in the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267 (22 May 2013).

[20]          SOC, p. 11.

[21]          SOC, p. 12.

[22]          See proposed sections 85ZZGI, 85ZZGJ and 85ZZGK and 85ZZGL.

[23]        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.

[24]        See e.g. Althammer v Austria, Human Rights Committee, 8 August 2003, [10.2].

[25]        See Thlimmenos v Greece, ECHR Application No. 34369/97 (6 April 2000).

[26]        See also the Australian Human Rights Commission Act 1986 (Cth) which considers discrimination in employment on the basis of criminal record as part of Australia's obligations under International Labour Organisation Convention 111, the Discrimination (Employment and Occupation) Convention 1958, which prohibits discrimination in employment. See Australian Human Rights Commission, 'On the Record: Discrimination in Employment on the basis of Criminal Record under the AHRC Act' (2012).

[27]        Althammer v Austria HRC 998/01, [10.2].

[28]          The 'secretary' is the Secretary of the Department of the minister who will administer the Export Control Act 2017 if the bill passes the parliament and receives Royal Assent: Explanatory memorandum (EM) p. 6.

[29]          See, for example, sections (a) sections 112, 117, 123, 127 and 138 (decisions in relation to registered establishments); (b) sections 151, 156, 165, 171 and 179 (decisions in relation to 8 approved arrangements); (c) sections 191, 196, 201, 205 and 212 (decisions in relation to export licences).

[30]          The legislation is the bill; the Biosecurity Act 2015; another Act prescribed by the rules; the Criminal Code or the Crimes Act 1914 to the extend it relates to the Biosecurity Act 2015 or another Act prescribed by the rules: see section 372(2) of the rules.

[31]          'Associate' is defined in section 13 of the bill as including (a) a person who is or was a consultant, adviser, partner, representative on retainer, employer or employee of: (i) the first person; or (ii) any corporation of which the first person is an officer or employee or in which the first person holds shares; (b) a spouse, de facto partner, child, parent, grandparent, grandchild, sibling, aunt, uncle, niece, nephew or cousin of the first person; (c) a child, parent, grandparent, grandchild, sibling, aunt, uncle, niece, nephew or cousin of a spouse or de facto partner of the first person; (d) any other person not mentioned in paragraph (a), (b) or (c) who is or was: directly or indirectly concerned in; or in a position to control or influence the conduct of; a business or undertaking of: the first person; or a corporation of which the first person is an officer or employee, or in which the first person holds shares; (e) a corporation: of which the first person, or any of the other persons mentioned in paragraphs (a), (b), (c) and (d), is an officer or employee; or in which the first person, or any of those other persons, holds shares; (f) if the first person is a body corporate—another body corporate that is a related body corporate (within the meaning of the Corporations Act 2001) of the first person.

[32]          Subsection 373(3).

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

[34]          Article 22 of the International Covenant on Civil and Political Rights.

[35]          Statement of compatibility (SOC), p. 451.

[36]          SOC, p. 451.

[37]        SOC, pp. 454-455.

[38]          See the committee's comments in Parliamentary Joint Committee on Human Rights, First report of 2013 (6 February 2013) pp. 111-112; see also Sixth report of 2013 (15 May 2013) p. 149; Tenth report of 2013 (26 June 2013) p. 56; Twenty-second report of the 44^th Parliament (13 May 2015) pp. 108-110; Report 4 of 2017 (9 May 2017) pp. 70-73.

[39]          Parliamentary Joint Committee on Human Rights, Tenth report of 2013 (26 June 2013) p. 56; Twenty-second report of the 44^th Parliament (13 May 2015) pp. 108-110; Report 4 of 2017 (9 May 2017) pp. 70-73.

[40]          'Extradition country' is defined in section 5 of the Extradition Act to mean, relevantly '(a) any country (other than New Zealand) that is declared by the regulations to be an extradition country.'

[41]          It is noted that it is difficult to assess the compatibility of the Extradition Act for human rights in the absence of a foundational human rights compatibility assessment.  Therefore, the rights listed are not intended to be comprehensive and there may be other human rights engaged and limited by the Extradition Act.

[42]          Statement of Compatibility (SOC) p. 4.

[43]          See, also, Committee against Torture, General Comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of article 22, advanced unedited version (9 February 2018) [26].

[44]          UN Human Rights Committee, General Comment No.20: Article 7 (Prohibition of Torture, or other Cruel, Inhuman or Degrading Treatment of Punishment) (1992) [9].

[45]          SOC, p. 7.

[46]          See, for example, Parliamentary Joint Committee on Human Rights, Tenth Report of 2013 (June 2013) p. 58.

[47]        Judge v Canada (929/1998), Human Rights Committee, 13 August 2003, [10.4]; Kwok v Australia (1442/05) Human Rights Committee, 23 November 2009, [9.4],[9.7].

[48]        See El Salvador's Depository Notification to the Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty (8 April 2014) available https://treaties.un.org/doc/Publication/CN/2014/CN.201.2014-Eng.pdf .  See also Article 2(2) of the Second Optional Protocol to the International Covenant on Civil and Political Rights.

[49]        SOC, p. 7.

[50]        SOC, p. 7.

[51]        SOC, p. 7.

[52]        Parliamentary Joint Committee on Human Rights, Sixth report of 2013 (15 May 2013) p. 154.

[53]        Alzery v Sweden (1416/2005) Human Rights Committee, 10 November 2006, [11.5]

[54]        See, Al Nashiri v Poland, European Court of Human Rights (24 July 2014), [562]-[569]; Othman (Abu Qatada) v United Kingdom, European Court of Human Rights (17 January 2012), [252]-[262]; R v Special Adjudicator ex parte Ullah [2004] 2 AC 323, per Lord Steyn at [41]; Soering v United Kingdom European Court of Human Rights (7 July 1989) [113].

[55]        It is acknowledged that in 2007 the UN Working Group on Arbitrary Detention noted the reluctance of states to extend the application of the prohibition of refoulement to articles 9 and 14.  However the Working Group continued by stating that 'to remove a person to a State where there is a genuine risk that the person will be detained without legal basis, or without charges over a prolonged time, or tried before a court that manifestly follows orders from the executive branch, cannot be considered compatible with the obligation in article 2 of the International Covenant on Civil and Political Rights, which requires that States parties respect and ensure the Covenant rights for all persons in their territory and under their control': see Report of the Working Group on Arbitrary Detention to the Human Rights Council, 9 January 2007, UN Doc. A/HRC/4/40, [44]-[49].

[56]        Model Treaty on Extradition, adopted by General Assembly resolution 45/116 as amended by General Assembly resolution 52/88, available at: https://www.unodc.org/pdf/model_treaty_extradition.pdf.

[57]        Parliamentary Joint Committee on Human Rights, Sixth report of 2013 (15 May 2013) pp. 154-155; Tenth Report of 2013 (June 2013) pp. 60-61.

[58]        SOC, p. 8.

[59]        Extradition Act section 7(e).

[60]        SOC, p. 8.

[61]        Joint Standing Committee on Treaties, Report 40, Extradition – a review of Australia's law and policy, August 2001, [3.77].

[62]        Section 19(5), Extradition Act.

[63]        Section 21A(4), Extradition Act.

[64]        Joint Standing Committee on Treaties, Report 40, Extradition – a review of Australia's law and policy, August 2001, [3.77]. The Joint Standing Committee also noted at that time that there were persuasive grounds for Australia to consider increasing its evidentiary requirements from the default 'no evidence' model: [3.80].

[65]        See sections 15(6), 18(3), 19(9A), 21(2B), 21(6)(f)(iv), 32(3), 35(6)(g)(iv), 49C(3).

[66]        This is particularly the case if the proposed amendments to the Extradition Act in Schedule 3 of the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016 come into effect. Those amendments would provide that where a person has been released on bail and a temporary surrender warrant for the extradition of the person has been issued, the magistrate, judge or relevant court must order that the person be committed to prison to await surrender under the warrant. The committee has previously concluded in relation to this proposed amendment that there was a risk the measure is not a proportionate limitation on the right to liberty, as the measure may not be the least rights restrictive measure in each individual case in circumstances where it obliges a court to commit a person awaiting transfer to prison regardless of their individual risk: see Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) p. 98. As at 26 March 2018, this bill is before the Senate.

[67]        This is the default period provided by section 17(2)(a) of the Extradition Act.

[68]        Section 6 of the El Salvador Regulations.

[69]        SOC, p. 9.

[70]        Parliamentary Joint Committee on Human Rights, Sixth report of 2013 (15 May 2013) 156-157; Report 4 of 2017 (9 May 2017) pp. 95-97.

[71]        Griffiths v Australia (193/2010), UN Human Rights Committee, 21 October 2014, [7.3].

[72]        Griffiths v Australia (193/2010), UN Human Rights Committee, 21 October 2014, [7.2]; see also, C v Australia (90/1999), UN Human Rights Committee, 28 October 2002, [8.2].

[73]        Griffiths v Australia (193/2010), UN Human Rights Committee, 21 October 2014, [7.2].

[74]        Griffiths v Australia (193/2010), UN Human Rights Committee, 21 October 2014, [7.5].

[75]        See 'Griffiths v Australia (1973/2010) – Australian Government response' available at Attorney-General's Department 'Human Rights Communications' website at https://www.ag.gov.au/RightsAndProtections/HumanRights/Pages/Humanrightscommunications.aspx.

[76]        SOC, p. 9.

[77]        SOC, p. 9.

[78]        Statement of Compatibility to the Extradition Legislation Amendment (2017 Measure No.1) Regulations, p. [6].

[79]        See section 8 of the Extradition (Commonwealth Countries) Regulations 2010.

[80]        See section 9 of the Extradition (Commonwealth Countries) Regulations 2010.

[81]        Under the Extradition Act, there is an extradition objection in relation to an extradition offence if the offence is a 'political offence' in relation to the extradition country: Section 7(a), Extradition Act.

[82]        Statement of Compatibility to the Extradition Legislation Amendment (2017 Measure No.1) Regulations, page [5]-[6].

[83]          Parliamentary Joint Committee on Human Rights, Twelfth Report of the 44^th Parliament (24 September 2014) pp. 8-13; Eighteenth Report of the 44^th Parliament (10 February 2015) pp. 43-64; Twenty-second Report of the 44^th Parliament (13 May 2015) pp. 163-174; Report 5 of 2017 (14 June 2017) pp. 22‑30 and Report 7 of 2017 (8 August 2017) pp. 41-60.

[84]          Parliamentary Joint Committee on Human Rights, Report 5 of 2017 (14 June 2017) pp. 22‑30 and Report 7 of 2017 (8 August 2017) pp. 41-60.

[85]          Higher Education Support Legislation Amendment (Student Loan Sustainability) Bill 2018.

[86]          Statement of compatibility (SOC) p. 4; Schedule 1, item 2.

[87]          Schedule 1, item 2.

[88]          See schedule 3 of the 2017 bill.

[89]          Explanatory Memorandum (EM) p. 1.

[90]          See, UN Committee on Economic, Social and Cultural Rights, General Comment 13: the Right to education (8 December 1999) [44]-[45].

[91]          See, for example, UN Committee on Economic, Social and Cultural Rights, General Comment 13: the Right to education (8 December 1999) [44]-[45].

[92]        For example, the UN Committee on Economic, Social and Cultural Rights raised concerns about access to education in relation to the operation of the student loans scheme in the United Kingdom which shares similar elements to the Australian HELP scheme: UN Committee on Economic, Social and Cultural Rights , Concluding observations on the United Kingdom of Great Britain and Northern Ireland, E/C.12/1/Add.79 (5 June 2002) [22]; UN Committee on Economic, Social and Cultural Rights, Concluding observations on the United Kingdom of Great Britain and Northern Ireland, E/C.12/GBR/CO/5 (12 July 2009) [44]; UNESCR, Concluding observations on the United Kingdom of Great Britain and Northern Ireland, E/C.12/GBR/CO/6 (14 July 2016) [65]-[66].

[93]        SOC, p. 5.

[94]        SOC, p. 4.

[95]        Article 1 of CEDAW defines 'discrimination against women' as 'any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field'.

[96]        The prohibited grounds are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status: ICCPR articles 2 and 26; ICESCR article 2(2); UN Human Rights Committee, General Comment 18, Non-discrimination (10 November 1989) [1]. 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: See, for example, Schmitz-de-Jon v Netherlands, UN Human Rights Committee 855/99 (2001); Gueye v France UN Human Rights Committee 196/85 (1989); Danning v Netherlands, UN Human Rights Committee 180/84 (1990); Lindgren et al v Sweden UN Human Rights Committee 298-9/88 (1990) Young v Australia, UN Human Rights Committee 941/00 (2003); UN Human Rights Committee, Concluding observations on Ireland, A/55/40 (2000) [422]-[451].  See, also, UN Committee on Economic, Social and Cultural Rights, General Comment 20,  Non-discrimination in economic, social and cultural rights, E/C.12/GC/20 (2 July 2009) [28]-[35].

[97]        UN Human Rights Committee, General Comment 18, Non-discrimination (1989) [7].

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

[99]        See, for example, the UN Committee on Economic, Social and Cultural Rights, General Comment 20,  Non-discrimination in economic, social and cultural rights, E/C.12/GC/20 (2 July 2009) [28]-[35].

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

[101]        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).

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

[103]        SOC, p. 6.

[104]        See, SOC to the 2017 bill, p. 10.

[105]        UN Committee on Economic, Social and Cultural Rights, Concluding observations on the fifth periodic report of Australia, E/C.12/AUS/CO/5 (11 July 2017) [22].

[106]        Parliamentary Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017) pp. 41-60.

[107]        FEE-HELP is a loan scheme that assists eligible fee paying students to pay all or part of their tuition fees. It is for domestic undergraduate and postgraduate students who do not have a Commonwealth supported place.

[108]        VET Student Loans commenced on 1 January 2017, replacing the VET FEE-HELP scheme, which ceased for new students on 31 December 2016.

[109]        The VET Student Loans program is an income contingent loan offered by the Australian Government that helps eligible students pay for some vocational education and training (VET) diploma level or above courses.

[110]        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. HECS-HELP is a loan scheme for eligible students enrolled in Commonwealth supported places to pay their student contribution amounts.

[111]        Explanatory memorandum (EM), p. 22.

[112]        SOC, p. 6.

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

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

[115]        SOC, p. 6.

[116]        SOC, p. 6.

[117]        See, Study Assist, Commonwealth Supported places, http://studyassist.gov.au/sites/studyassist/helppayingmyfees/csps/pages/commonwealth-supported-places.

[118]        A student who completed a four year undergraduate Bachelor of Arts degree with honours as a Commonwealth supported student at, for example, Macquarie University might graduate with a HECS-HELP debt of approximately $43,016. If the student decided to undertake a graduate law degree such as a Juris Doctor as a full-fee paying student at, for example, the University of Melbourne the cost of this three year program would be approximately $124,385. These two programs of study would push the student over the proposed total lifetime HELP-loan limit: see, Melbourne University JD, Fees and Scholarships, http://law.unimelb.edu.au/study/jd#fees-and-scholarships; Macquarie University, Courses, Bachelor of Arts, https://courses.mq.edu.au/2018/domestic/undergraduate/bachelor-of-arts.       

[119]          Parliamentary Joint Committee on Human Rights, Report 9 of 2017 (5 September 2017)
pp. 25-27; Report 11 of 2017 (17 October 2017) pp. 84-91.

[120]          Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) p. 91.

[121]          Identity Matching Bill section 14.

[122]          Identity Matching Bill, Explanatory Memorandum (IMB, EM) p. 2.

[123]          IMB, EM, p. 2.

[124]          Identity Matching Bill sections 3 and 17, 18; EM, p. 2-3. Under subsection 17(2) 'identification information' may be collected, used or disclosed for the following purposes: (a) providing or developing an identity-matching service for identity and community protection activities, being an activity for: (i) preventing and detecting identity fraud; (ii) preventing, detecting, investigating or prosecuting a federal, state or territory offence or starting or conducting proceedings for proceeds of crime; (iii) investigating or gathering intelligence relevant to national security; (iv) checking the background of a person  with access to an asset, facility or person associated with government or protecting a person with a legally assumed identity or under witness protection; (v) promoting community safety, including identifying a person suffering or at risk of suffering physical harm (including missing or deceased persons or those affected by disaster) and a person reasonably believed to be involved in a significant risk to public health or safety; (vi) promoting road safety, including the integrity of driver licensing systems; and (vii) verifying the identity of an individual; (b) developing, operating or maintaining the NDLFRS; or (c) protecting the identities of persons who have legally assumed identities or are under witness protection.

[125]          Identity Matching Bill, section 5.

[126]          IMB, EM, p. 4.

[127]          Identity Matching Bill, Statement of Compatibility (IMB, SOC) p. 40.

[128]        Parliamentary Joint Committee on Human Rights, Report 9 of 2017 (5 September 2017) 25-27; Report 11 of 2017 (17 October 2017) p. 84-91. See, also, for example, Peck v United Kingdom (2003) 36 EHRR 41.

[129]        IMB, SOC, p. 44.

[130]        IMB, SOC, p. 45-56.

[131]        SOC, p. 44.

[132]        See, SOC, p. 44.

[133]        Identity Matching Bill subsection 8(2).

[134]        Identity Matching Bill subsection 10(2).

[135]        See, Privacy Act, section 6.

[136]        APP 9; APP 6.2(b).

[137]        APP; 6.2(e).

[138]        See, Identity Matching Bill section 5.

[139]        See, S and Marper v United Kingdom, European Court of Human Rights Application Nos.30562/04 and 30566/04 (2008) [119]. See, also, for example, NK v Netherlands, UN Human Rights Committee, CCPR/C/120/D/2326/2013 (27 November 2017).

[140]        See, S and Marper v United Kingdom, European Court of Human Rights Application Nos.30562/04 and 30566/04 (2008) [127].

[141]        Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 (21 May 2009).

[142]        Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 (21 May 2009) at [89] and [97].

[143]        Secretary of State for the Home Department v Watson MP & Ors [2018] EWCA Civ 70 (30 January 2018) applying the Court of Justice of the European Union decision in Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for the Home Department v Watson and Others [2016] EUECJ C-203/15; see also Digital Rights Ireland Limited v Minister for Communications, Marine and Natural Resources & Others and Seitlinger and Others [2014] EUECJ C-293/12. See, also, for example, the committee's consideration of the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 in its Fiftieth Report of the 44^th Parliament (14 November 2014) pp. 10-22.

[144]        See proposed subsection 46(d) of the Passports Act.

[145]        See proposed section 56A of the Passports Act.

[146]        Statement of compatibility (SOC) to the Passport Amendment Bill, p 4.

[147]        SOC, Passport Amendment Bill, p. 4.

[148]        SOC, Passport Amendment Bill, p. 5.

[149]        SOC, Passport Amendment Bill, p. 5.

[150]          'AUSTRAC information' is defined in section 5 of the AMLCT ACT as meaning eligible collected information (or a compilation or analysis of such information) and 'eligible collected information' is defined as information obtained by the AUSTRAC CEO under that Act or any other Commonwealth, State or Territory law or information obtained from a government body or certain authorised officers, and includes financial transaction report information as obtained under the Financial Transaction Reports Act 1988.

[151]          The matters in respect of which the Director-General is to be satisfied are (a) the foreign intelligence agency has given appropriate undertakings for: (i) protecting the confidentiality of the information; and (ii) controlling the use that will be made of it; and (iii) ensuring that the information will be used only for the purpose for which it is communicated to the foreign country; and (b) it is appropriate, in all the circumstances of the case, to do so.

[152]          Human Rights Committee, Concluding observations on the fifth periodic report of Australia, CCPR/C/AUS/CO/5, 7 May 2009, [20].

[153]          Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 4(2); UN Human Rights Committee, General Comment 20: Article 7 (1992) UN Doc HRI/GEN/1, [3].

[154]          Item 29, proposed section 38A.

[155]          Item 29, proposed section 38A(4).

[156]          Related provisions relating to such rights for specific groups are also contained in article 5(i) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), articles 11 and 14(2)(e) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), article 32 of the Convention on the Rights of the Child (CRC) and article 27 of the Convention on the Rights of Persons with Disabilities (CRPD).

[157]          See, UN Committee on Economic, Social and Cultural Rights, General Comment No. 23: on the right to just and favourable conditions of work (article 7 of the International Covenant on Economic, Social and Cultural Rights) (26 April 2016) pp. 3 and 7.

[158]          Statement of compatibility (SOC) p. 7.

[159]          Under section 5 of the Human Rights (Parliamentary Scrutiny) Act 2011, the certificate is not required to be accompanied by a statement of compatibility because it is exempt from disallowance. The committee nevertheless scrutinises exempt instruments because section 7 of the same Act requires it to examine all instruments for compatibility with human rights.

[160]          Under section 50 of the Legislation Act 2003 (Legislation Act), all legislative instruments registered on the Federal Register of Legislation after 1 January 2005 are repealed on the first 1 April or 1 October that falls on or after their tenth anniversary of registration. Instruments made before 1 January 2005 (when the sunsetting regime was introduced) sunset on a staggered basis, in accordance with the schedule in subsection 50(2). Section 51 of the Legislation Act provides that the Attorney-General may defer the sunsetting of a legislative instrument by up to 12 months, subject to certain conditions.

[161]          See footnote 1 above.

[162]          'State' is defined in section 4 of the ACC Act to include the Australian Capital Territory and the Northern Territory.

[163]          In 2016 the Australian Crime Commission and CrimTrac were merged to form the Australian Criminal Intelligence Commission (ACIC). Pursuant to subsection 7(1A) of the ACC Act and section 3A of the Regulations, the ACIC is the body which now exercises the powers and functions of the ACC under the ACC Act and Regulations.

[164]          Under section 4 of the ACC Act, 'relevant criminal activity' is defined as 'any circumstances implying, or any allegations, that a relevant crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory'. 'Relevant crime' means serious and organised crime, or indigenous violence or child abuse.

[165]          See, Ramanauskas v Lithuania, European Court of Human Rights (ECHR) Application No. 74420/01, 5 February 2008, [55]. The ECHR has consistently held that entrapment violates article 6 of the European Convention on Human Rights, which is equivalent to article 14 of the ICCPR.

[166]          Section 4 of the NSW Act defines a 'controlled operation' as an operation conducted for the purpose of obtaining evidence of criminal activity or corrupt conduct, arresting any person involved in criminal activity or corrupt conduct, frustrating criminal activity or corrupt conduct, or carrying out an activity reasonably necessary to facilitate one of the above purposes; and involving a controlled activity.

[167]          Section 7 of the NSW Act provides that controlled operations must not be authorised where they would involve inducing or encouraging a person to engage in criminal activity or corrupt conduct that they would not otherwise be expected to engage in; engaging in conduct likely to seriously endanger the health or safety of any person or result in serious loss or damage to property; or the commission of a sexual offence.

[168]        Schedule 3 also prescribes powers relating to surveillance devices under the Surveillance Devices Act 1999 (Victoria), Surveillance Devices Act 1998 (Western Australia) and Surveillance Devices Act [2007] (Northern Territory).

[169]        Section 59AA of the ACC Act provides for the disclosure of information in the ACIC's possession by its CEO. Subsection 59AA(1B) provides that where that information is national policing information, the CEO must obtain the approval of the board before disclosing it, except to specified bodies, including bodies prescribed by the regulations.

[170]        Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016)
pp. 30-32; Report 8 of 2016 (9 November 2016) pp. 72-74. The Australian Crime Commission Amendment (National Policing Information) Regulation 2016 [F2016L00712], and the Australian Crime Commission Amendment (National Policing Information) Regulation 2016 which were examined in those reports introduced the provisions relating to national policing information into the ACC regulations.

[171]          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.

[172]          See, e.g., Althammer v Austria, Human Rights Committee, 8 August 2003, [10.2].

[173]          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).

[174]          Statement of compatibility (SOC), p. 8.

[175]          Althammer v Austria HRC 998/01, [10.2].

[176]          SOC, p. 8.

[177]          C N Kendall, 2014 Independent Review of the Office of the Migration Agents Registration Authority: Final Report (September 2014), p. 142.

[178]          See, for example, Flinders University, English language requirements,
http://www.flinders.edu.au/international-students/study-at-flinders/entry--and-english-requirements/english-language-requirements.cfm; Australian National University, English language admission requirements for students,
https://policies.anu.edu.au/ppl/document/ANUP_000408.

[179]          SOC, p. 8.

[180]        See, for example, Australian National University, English language admission requirements for students, https://policies.anu.edu.au/ppl/document/ANUP_000408.

[181]          Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016) pp. 2-11; Report 8 of 2016 (9 November 2016) pp. 57-61; Report 2 of 2017 (21 March 2017) pp. 41-43; Report 4 of 2017 (9 May 2017) pp. 149-154.

[182]          Explanatory memorandum (EM), p. 1.

[183]          See, International Covenant on Economic, Social and Cultural Rights (ICESCR) article 9; United Nations Committee on Economic, Social and Cultural Rights, General Comment 19: the right to social security,  E/C.12/GC/19 (4 February 2008).

[184]          See, ICESCR, article 11.

[185]          See, ICESCR, article 2.

[186]          Statement of compatibility (SOC), p. 29.

[187]          UN Committee on Economic, Social and Cultural Rights, General Comment 3: the nature of state party obligations, E/1991/23 (14 December 1990) [9].

[188]          SOC, p. 30.

[189]          SOC, p. 30.

[190]        The Australian government on ratification of CEDAW in 1983 made a statement and reservation that: 'The Government of Australia advises that it is not at present in a position to take the measures required by Article 11(2)(b) to introduce maternity leave with pay or with comparable social benefits throughout Australia.' This statement and reservation has not been withdrawn. However, after the Commonwealth introduced the Paid Parental Leave scheme in 2011, the Australian Government committed to establishing a systematic process for the regular review of Australia's reservations to international human rights treaties: See, Attorney-General's Department, Right to Maternity Leave https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuidanceSheets/Pages/Righttomaternityleave.aspx.

[191]        UN Committee on Economic, Social and Cultural Rights, General Comment 16, The equal right of men and women to the enjoyment of all economic, social and cultural rights (2005). See also, article 3 of ICESCR.

[192]        SOC, p. 31.

[193]        Article 1 of CEDAW defines 'discrimination against women' as 'any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field'. 

[194]        The prohibited grounds are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status: ICCPR articles 2 and 26; ICESCR article 2(2); UN Human Rights Committee, General Comment 18, Non-discrimination (10 November1989) [1]. 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.  

[195]        UN Human Rights Committee, General Comment 18, Non-discrimination (1989) [7].

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

[197]        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).

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

[199]        SOC, p. 36.

[200]          'Electronic sales suppression tools' are defined in proposed section 8WAB of the bill to mean a device, software, program or other thing, a part of any such thing, or a combination of any such things or parts, that meets the following conditions: (a)  it is capable of falsifying, manipulating, hiding, obfuscating, destroying, or preventing the creation of, a record that: (i)  an entity is required by a taxation law to keep or make; and (ii)  is, or would be, created by a system that is or includes an electronic point of sale system; (b)  a reasonable person would conclude that one of its principal functions is to falsify, manipulate, hide, obfuscate, destroy, or prevent the creation of, such records.

[201]          See sections 8WAC and 8WAD of the bill.

[202]          Section 8WAE of the bill.

[203]          See sections 8WAE(4), 8WAD(3), 8WAE(2) of the bill.

[204]          Statement of Compatibility (SOC), [1.109].

[205]          SOC, [1.104].

[206]              Autonomous Sanctions (Designated Persons and Entities – Democratic People’s Republic of Korea) Amendment List 2017 (No. 2) [F2017L01063]; Autonomous Sanctions (Designated Persons and Entities – Democratic People's Republic of Korea) Amendment List 2017 (No.3) [F2017L01592]; Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Syria) List 2017 [F2017L01080]; Autonomous Sanctions (Designated Persons and Entities – Democratic People's Republic of Korea) Continuing Effect Declaration 2018 [F2018L00049]; Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Zimbabwe) Continuing Effect Declaration 2018 [F2018L00108]; Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Iran) Continuing Effect Declaration 2018 [F2018L00102]; Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Libya) Continuing Effect Declaration and Revocation Instrument 2018 [F2018L00101]; Autonomous Sanctions (Designated and Declared Persons – Former Federal Republic of Yugoslavia) Continuing Effect Declaration and Revocation Instrument 2018 [F2018L00099]; Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Syria) Continuing Effect Declaration and Revocation Instrument 2018 [F2018L00100].

[207]          See footnote 1.

[208]          See, Parliamentary Joint Committee on Human Rights, Sixth report of 2013 (15 May 2013) pp. 135-137; and Tenth report of 2013 (26 June 2013) pp. 13-19; Twenty-eighth report of the 44th Parliament (17 September 2015) pp. 15-38; and Thirty-third report of the 44th Parliament (2 February 2016) pp. 17-25.

[209]          Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) pp. 41-55.

[210]          Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 53; see also Report 10 of 2017 (12 September 2017) pp. 27-31.

[211]          Section 10(2) of the Autonomous Sanctions Act 2011.

[212]          Section 6 of the Autonomous Sanctions Regulations 2011.

[213]          Section 14 of the Autonomous Sanctions Regulations 2011.

[214]          See section 18 of the Autonomous Sanctions Regulations 2011.

[215]        See section 20 of the Autonomous Sanctions Regulations 2011.

[216]        See subsection 20(3)(b) of the Autonomous Sanctions Regulations 2011.

[217]        See the Department of Foreign Affairs and Trade, 'Consolidated List', available at: http://dfat.gov.au/international-relations/security/sanctions/pages/consolidated-list.aspx.

[218]        See further below and Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 45.

[219]        See Migration Regulations 1994, section 2.43(1)(aa) and section 116(1)(g) of the Migration Act 1958.

[220]        The minister may grant a permit for the payment of such expenses (including foodstuffs, rent or mortgage, medicines or medical treatment, public utility charges, insurance, taxes, legal fees and reasonable professional fees): Section 18 and 20 of the Autonomous Sanctions Regulations 2011.  However, the minister must not grant a permit unless the minister is satisfied that it would be in the national interest to grant the permit and is satisfied about any circumstance or matter required by the regulations to be considered for a particular kind of permit: section 18(3) of the Autonomous Sanctions Regulations 2011.

[221]        UN Human Rights Committee, General Comment No.27: Article 12 (Freedom of Movement) (1999). See also Nystrom v Australia (1557/2007), UN Human Rights Committee, 1 September 2011.

[222]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 44.

[223]        See the examples in the committee's previous analysis at paragraph [1.114] of the Twenty-Eighth report of the 44^th Parliament  and section 6 of the Autonomous Sanctions Regulations 2011

[224]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 46. 

[225]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) pp. 46-47; and Twenty-eighth Report of the 44th Parliament (17 September 2015) [1.116] to [1.123].

[226]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 47.

[227]        See, http://dfat.gov.au/international-relations/security/sanctions/pages/consolidated-list.aspx; Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) pp. 48-49.

[228]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 49.

[229]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 49.

[230]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 49.

[231]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 50.

[232]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 50.

[233]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 50.

[234]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 51.

[235]        See further below.

[236]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016) p. 48.

[237]        Al-Dulimi and Montana Management Inc. v Switzerland, ECHR (Application no. 5809/08) (21 June 2016).

[238]        See section 26 of Terrorist Asset-Freezing etc. Act 2010 (UK) (TAFA 2010).

[239]        See section 30 of TAFA 2010.

[240]        See David Anderson QC, Independent Reviewer of Terrorism Legislation, Third Report on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Review Period: Year to 16 September 2013) (December 2013) para 1.3.

[241]        See section 4 of TAFA 2010; David Anderson QC, Independent Reviewer of Terrorism Legislation, First Report on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Review Period: December 2010 to September 2011) (December 2011) [6.5]; and Third Report on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Review Period: Year to 16 September 2013) (December 2013) [3.4].

[242]        See subs 16(3) of TAFA 2010.

[243]        David Anderson QC, Independent Reviewer of Terrorism Legislation, Third Report on the Operation of the Terrorist Asset-Freezing etc. Act 2010 (Review Period: Year to 16 September 2013) (December 2013) [3.2].

[244]        See, Committee against Torture, General Comment No.4 (2017) on the implementation of article 3 in the context of article 22 (9 February 2018).

[245]        See, Migration Regulations 1994, section 2.43(1)(aa) and section 116(1)(g) of the Migration Act 1958.

[246]        See, for example, Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44^th Parliament (October 2014) pp. 76-77; Report 11 of 2017 (17 October 2017) pp. 108-111.

[247]        See further section 8(3) of the Human Rights (Parliamentary Scrutiny) Act 2011.

[248]        Parliamentary Joint Committee on Human Rights, Report 9 of 2016 (22 November 2016)
pp. 53-54.

[249]          See, Parliamentary Joint Committee on Human Rights, Third report of 2013 (13 March 2013) p. 65; Seventh report of 2013 (5 June 2013) p. 21; Third report of the 44th Parliament (4 March 2014) p. 3; Eighth report of the 44th Parliament (24 June 2014) p. 5 and p. 31; Twentieth report of the 44th Parliament (18 March 2015) p. 5; Twenty-third report of the 44th Parliament (18 June 2015) p. 13;Thirty-fourth report of the 44th Parliament (23 February 2016) p. 2; Report 2 of 2017 (21 March 2017) p.44; Report 5 of 2017 (14 June 2017) p. 42.

[250]          Parliamentary Joint Committee on Human Rights, Seventh report of 2013 (5 June 2013) p. 21; and Eighth report of the 44th Parliament (18 June 2014) p. 32.

[251]          See, for example, Parliamentary Joint Committee on Human Rights, Eighth Report of the 44th Parliament (June 2014) pp. 5-7, 33.

[252]          Parliamentary Joint Committee on Human Rights, Report 5 of 2017 (14 June 2017) p. 42.

[253]          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).

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

[255]          Appropriation Bill (No. 3) 2017-2018: explanatory memorandum (EM), statement of compatibility (SOC), p. 4; Appropriation Bill (No. 4) 2017-2018: EM, SOC, p. 4.

[256]          Bill No. 3, EM, SOC, p. 4; Bill No. 4, EM, SOC, p. 4.

[257]          Bill No. 3, EM, SOC, p. 4; Bill No. 4, EM, SOC, p. 4.

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

[259]        See, UN Office of the High Commissioner for Human Rights, Manual on Human Rights Monitoring, http://www.ohchr.org/Documents/Publications/Chapter20-48pp.pdf; Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[260]        There are a range of international resources to assist in the preparation of human rights compatibility assessments of budgets: See, for example, Diane Elson, Budgeting for Women's Rights: Monitoring Government Budgets for Compliance with CEDAW, (Unifem, 2006) https://www.internationalbudget.org/wp-content/uploads/Budgeting-for-Women%E2%80%99s-Rights-Monitoring-Government-Budgets-for-Compliance-with-CEDAW.pdf; UN Practitioners' Portal on Human Rights Approaches to Programming, Budgeting Human Rights, http://hrbaportal.org/archives/tools/budgeting-human-rights; Rory O'Connell, Aoife Nolan, Colin Harvey, Mira Dutschke, Eoin Rooney, Applying an International Human Rights Framework to State Budget Allocations: Rights and Resources (Routledge, 2014).

[261]          Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017) pp. 2-31, Report 10 of 2017 (12 September 2017) pp. 35-53.

[262]          Parliamentary Joint Committee on Human Rights, Eighteenth Report of the 44th Parliament (10 February 2015) 4-30; Twenty-fourth Report of the 44th Parliament (23 June 2015)
pp. 25-73.

[263]          The 2017 bill was discharged from the Senate Notice Paper on 18 October 2017.

[264]          Item 8, proposed subsection 3(1).

[265]          Item 43, proposed subsection 21(2)(fa).

[266]          Item 113, proposed section 34AA.

[267]          Item 26, proposed paragraph 16(2)(c).

[268]          Item 20, proposed subsections 12(8) and 12(9).

[269]          Currently, under the Citizenship Act, section 12, a child born in Australia automatically becomes an Australian citizen at 10 years of age if the child has been ordinarily resident in Australia throughout the 10 years since their date of birth. The 2018 bill proposes to withhold citizenship to those who would otherwise be entitled to it under this provision for reasons including: one or both of the child's parents were foreign diplomats; the child was effectively present in Australia as an unlawful non-citizen; or one or both of the child's parents came to Australia before the child was born, did not hold a substantive visa at the time of the child's birth and was an unlawful non-citizen at any time prior to the child's birth. See item 20.

[270]        Item 126, proposed subsection 52(4).

[271]        Item 127, proposed section 52A.

[272]        Item 103, proposed subsection 30(8).

[273]        Item 56, proposed subsection 22(1A).

[274]        See, Citizenship Act, subsection 22(1)(c).

[275]        See, Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017)
pp. 12-22.

[276]        See, Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017)
pp. 22-24.

[277]        See, Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017)
pp. 24-25.

[278]        See, Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017)
pp. 25-27.

[279]        See, Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017)
pp. 27-28.

[280]        See, Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017)
pp. 28-29.

[281]        See, Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017)
pp. 29-31.

[282]        Parliamentary Joint Committee on Human Rights, Report 10 of 2017 (12 September 2017)
pp. 35-53.

[283]        Parliamentary Joint Committee on Human Rights, Report 10 of 2017 (12 September 2017)
p. 49.

[284]        Parliamentary Joint Committee on Human Rights, Report 10 of 2017 (12 September 2017)
p. 53.

[285]          A public health debt is a debt relating to public health or aged care services that has been reported to the Department of Immigration and Border Protection as outstanding by a Commonwealth, State or Territory health authority under an agreement between the authority and the Department: see the proposed definition in regulation 1.03

[286]          Statement of Compatibility (SOC), p. 6.

[287]          UN Economic, Social and Cultural Rights Committee, General Comment No. 14: The Right to the Highest Attainable Standard of Health (2000), [12].

[288]          UN Economic, Social and Cultural Rights Committee, General Comment No. 14: The Right to the Highest Attainable Standard of Health (2000), [12], [18], [43]; see also Article 2(2) of the International Covenant on Economic, Social and Cultural Rights.

[289]          UN Economic, Social and Cultural Rights Committee, General Comment No. 19: The Right to Social Security (2008), [13].

[290]          SOC, p. 6. The statement of compatibility notes that some temporary visa holders are eligible for Medicare through a Reciprocal Health Care Arrangement (RHCA) and some temporary visa holders are provided with Medicare eligibility (for example, protection visa holders). 

[291]          SOC, p. 9.

[292]          SOC, p. 6.

[293]          SOC, p. 8.

[294]        Item 112 of Schedule 2 of the amendment regulations.

[295]        See clause 8303 in Schedule 8 of the Migration Regulations 1994.

[296]        A BVE is a temporary visa that is ordinarily granted to 'unlawful non-citizens' to enable them to lawfully live in the community while their immigration status is finalised or while they make arrangements to leave Australia: Parliamentary Joint Committee on Human Rights, Second Report of the 44^th Parliament (February 2014) pp. 107-108.

[297]        'Behaviour related grounds' were defined as grounds where visa applicants had their previous visa cancelled under section 116 of the Migration Act because they had been assessed as a risk to public health, safety or the good order of the community or an individual or because they engaged in criminal conduct.

[298]        SOC, p. 20.

[299]        Human Rights Committee, General Comment 35: Liberty and security of person (2014), [11]-[12]

[300]        See sections 189 and 198 of the Migration Act 1958 (Cth).

[301]        Statement of Compatibility (SOC), p. 14.

[302]        SOC, pp. 13-14.

[303]        SOC, p. 16.

[304]        SOC, p. 19.

[305]        SOC, p. 12.

[306]        SOC, p. 12.

[307]        SOC, p. 12.

[308]        Section 116(1)(e) allows the Minister to cancel a visa if satisfied that '(e)  the presence of its holder in Australia is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community; or (ii) the health or safety of an individual or individuals'. Section 501 sets out circumstances in which the minister or their delegate may cancel a visa on character grounds, including where a person has a substantial criminal record.

[309]        SOC, p. 18.

[310]        SOC, p. 18.

[311]        SOC, p. 14.

[312]        See, recently, Human Rights Council Working Group on Arbitrary Detention, Opinions adopted by the Working Group on Arbitrary Detention at its seventy-ninth session: Opinion No.42/2017 (22 September 2017), [30].

[313]        See, for example, C v Australia (900/1999) Human Rights Committee, 13 November 2002, [8.2]; Bakhtiyari et al. v. Australia (1069/2002) Human Rights Committee,  6 November 2003, [9.3]; D and E v. Australia (1050/2002) Human Rights Committee,  9 August 2006, [7.2];  Shafiq v. Australia (1324/2004) Human Rights Committee, 13 November 2006, [7.3]; Shams et al. v. Australia, (1255/2004) Human Rights Committee, 11 September 2007, [7.2]; F.J. et al. v. Australia (2233/2013) Human Rights Committee, 2 May 2016, [10.4]. 

[314]        See Human Rights Council Working Group on Arbitrary Detention, Opinions adopted by the Working Group on Arbitrary Detention at its eightieth session: Opinion No.71/2017, A/HRC/WGAD/2017/71 (21 December 2017), [3], [49].

[315]        Leghaei v Australia (1937/2010) Human Rights Committee, 26 March 2015.

[316]        Winata v Australia (9030/2000) Human Rights Committee, 26 July 2001, [7.3].

[317]        See Leghaei v Australia (1937/2010) Human Rights Committee, 26 March 2015; Winata v Australia (9030/2000) Human Rights Committee, 26 July 2001.

[318]        SOC, pp. 15, 17, and 20.

[319]        See, Committee against Torture, General Comment No.4 (2017) on the implementation of article 3 in the context of article 22 (9 February 2018).

[320]        SOC, p. 14.

[321]        See, for example, Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44^th Parliament (October 2014) 76-77; Report 11 of 2017 (17 October 2017) pp. 108-111.

[322]        UN Human Rights Committee, General Comment No.27: Article 12 (Freedom of Movement) (1999). See also Nystrom v Australia (1557/2007), UN Human Rights Committee, 1 September 2011.

[323]        See Leghaei v Australia (1937/2010) Human Rights Committee, 26 March 2015; Winata v Australia (9030/2000) Human Rights Committee, 26 July 2001.

[324]        SOC, p. 23.

[325]        SOC, p. 24.

[326]        SOC, pp. 23-24.

[327]        SOC, p. 24.

[328]        SOC, p. 24.

[329]          Under section 5 of the Human Rights (Parliamentary Scrutiny) Act 2011, the determinations are not required to be accompanied by statements of compatibility because they are exempt from disallowance. The committee nevertheless scrutinises exempt instruments because section 7 of the same Act requires it to examine all instruments for compatibility with human rights.

[330]          See Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44^th Parliament (28 October 2014) pp. 70-92; Twenty-fourth Report of the 44th Parliament (23 June 2015) pp. 20-24; Thirty-Sixth Report of the 44^th Parliament (16 March 2016) pp. 19-25, pp. 149-194; Report 7 of 2016 (11 October 2016) pp. 108-112.

[331]          Parliamentary Joint Committee on Human Rights, Thirty-Sixth Report of the 44^th Parliament (16 March 2016) pp. 19-25, pp. 149-194.  See also Fourteenth Report of the 44^th Parliament (28 October 2014) pp. 80-85.  The committee also raised concerns in relation to TPVs more broadly in relation to the right to health, the right to protection of the family and the rights of the child.

[332]          See Parliamentary Joint Committee on Human Rights, Thirty-Sixth Report of the 44^th Parliament (16 March 2016) pp. 163-167 in relation to TPVs and Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016) 109 in relation to SHEVs.

[333]          See UN Human Rights Committee, General Comment 27: Freedom of movement (1999)
[8]-[10].

[334]          See Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016)
pp. 108-110.

[335]          See Parliamentary Joint Committee on Human Rights, Report 7 of 2016 (11 October 2016)
pp. 108-111.

[336]          UN Human Rights Committee, General Comment 27: Freedom of movement (1999) [4].

[337]          See UN Human Rights Committee, General Comment 27: Freedom of movement (1999) [4].

[338]        See section 5 of the Human Rights (Parliamentary Scrutiny) Act 2011.

[339]        See section 7 of the Human Rights (Parliamentary Scrutiny) Act 2011.

[340]        As per the committee's Guidance Note 1: Drafting statements of compatibility: 'the committee considers statements of compatibility as essential to the examination of human rights in the legislative process', p. 3.

[341]          Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017) pp. 46-77; Report 11 of 2017 (17 October 2017) pp. 138-203.

[342]          See Explanatory Memorandum (EM) p. 5.

[343]          See EM, p. 5.

[344]          This aspect of the measure is subject to the passage of the Welfare Reform Bill.

[345]          Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) pp. 160-167

[346]          It is noted that the EM to the Drug Trial Testing Bill includes the discussion of the privacy implications of the bill that was included in the Minister's response to the committee in relation to Schedule 12 of the Welfare Reform Bill: see page 11 of the EM. As noted, this information allowed the committee to conclude that some aspects of the bill relating to the retention and disclosure of drug test results were accompanied by adequate safeguards.

[347]          See Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) pp. 152-160.

[348]          See proposed section 123UFAA(1C).   

[349]          See Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017) pp. 46-77.

[350]        Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017)
pp. 156-157.

[351]        Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017)
pp. 156-157.

[352]        See proposed section 123UFAA(1C).   

[353]        See proposed section 123UFAA(1D).

[354]        Where a person's drug use rises to that of dependence or addiction, the person has a disability which is not only considered an 'other status' for the purpose of the International Covenant on Civil and Political Rights but is also protected from discrimination under the Convention on the Rights of Persons with Disabilities: see Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) p. 167.

[355]        Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017)
pp. 167-169.

[356]        Statement of Compatibility to the Drug Testing Trial Bill, p. 6.

[357]        Statement of Compatibility to the Drug Testing Trial Bill, p. 7.

[358]        This was an issue raised by the committee in Report 11 of 2017 (17 October 2017) p. 168.

[359]          Parliamentary Joint Committee on Human Rights, Law Enforcement Integrity Legislation Amendment Bill 2012, Fifth Report of 2012 (October 2012) pp. 12-21; Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, Fifteenth Report of the 44th Parliament (14 November 2014) pp. 10-22; Twentieth report of the 44th Parliament (18 March 2015) pp. 39-74; and Thirtieth report of the 44th Parliament (10 November 2015) pp. 133-139; the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, Thirty-second report of the 44th Parliament (1 December 2015) pp. 3-37 and Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 85-136; the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016, Report 9 of 2016 (22 November 2016) pp. 2-8 and Report 1 of 2017 (16 February 2017) pp. 35-44; the Telecommunications (Interception and Access – Law Enforcement Conduct Commission of New South Wales) Declaration 2017 [F2017L00533], Report 7 of 2017 (8 August 2017) pp. 30-33; the Investigation and Prosecution Measures Bill 2017, Report 12 of 2017 (28 November 2017) pp. 84-88; and the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, Report 2 of 2018 (13 February 2018) pp. 2-36.

[360]          See, for example, Parliamentary Joint Committee on Human Rights, Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016, Report 9 of 2017 (22 November 2016) pp. 2-8 and the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, Report 2 of 2018 (13 February 2018) pp. 2-36.

[361]          Explanatory statement (ES), [5].

[362]          'Communication' is defined in section 5 of the TIA Act as including: 'conversation and a message, and any part of a conversation or message, whether: (a) in the form of: (i) speech, music or other sounds; (ii) data; (iii) text; (iv) visual images, whether or not animated; or (v) signals; or (b) in any other form or in any combination of forms'.

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

[364]          That is, the interception of live communications.

[365]          See, Division 4C, Part 4-1, Chapter 4 of the TIA Act.

[366]          ES, statement of compatibility (SOC), [30].

[367]          See, Parliamentary Joint Committee on Human Rights, Telecommunications (Interception and Access - Law Enforcement Conduct Commission of New South Wales) Declaration 2017 [F2017L00533], Report 7 of 2017(8 August 2017) pp. 30-33 and Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016, Report 1 of 2017 (16 February 2017) pp. 35-44.

[368]        Parliamentary Joint Committee on Human Rights, Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, Fifteenth Report of the 44^th Parliament (November 2014) pp. 10-22; Twentieth report of the 44th Parliament (18 March 2015) pp. 39-74 and Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016, Report 1 of 2017 (16 February 2017) p. 36.

[369]        See, for example, Parliamentary Joint Committee on Human Rights, National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, Report 2 of 2018 (13 February 2018) pp. 2-36; Telecommunications (Interception and Access – Law Enforcement Conduct Commission of New South Wales) Declaration 2017 [F2017L00533], Report 7 of 2017 (8 August 2017) p. 33; Investigation and Prosecution Measures Bill 2017, Report 12 of 2017 (28 November 2017) p. 88.

[370]        Eligible persons are defined in the Act as the Director-General of Security; Deputy Director‑General of Security; an ASIO employee or an ASIO affiliate under certain conditions. See, subsection 175(2) and subsection 176(2) in Division 3, Part 4-1 of Chapter 4 of the TIA Act.

[371]        See, Division 4C of Part 4-1 of Chapter 4 of the TIA Act.

[372]        See subparagraph 180L(b), subdivision B, division 4C of the TIA Act.

[373]        See subparagraphs 180L(2)(b)(v) and 180T(2)(b)(v), subdivision B of division 4C of the TIA Act.

[374]        EM, SOC, [37].

[375]        Parliamentary Joint Committee on Human Rights, Thirty-second report of the 44th Parliament (1 December 2015) pp. 44-48 and Thirty-fifth report of the 44th Parliament (25 February 2016) pp. 18-26.

[376]        Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

[377]        Article 19, ICCPR.

[378]        Article 2, ICCPR.

[379]        Article 14, ICCPR.

[380]        EM, SOC, [34].

[381]        EM, SOC, [40]-[41].

[382]        EM, SOC, [36].

[383]        Parliamentary Joint Committee on Human Rights, Thirty-fifth report of the 44th Parliament (25 February 2016), pp. 23-24.

[384]        Parliamentary Joint Committee on Human Rights, Thirty-fifth report of the 44th Parliament (25 February 2016), pp. 24-25.

Chapter 2 - Concluded matters

[1]          Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018) pp. 2-6.

[2]          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.

[3]          '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.

[4]          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).

[5]          'Designated information' means, relevantly, the person's date of birth and the country in which the person is ordinarily resident: proposed section 74B.

[6]          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. 

[7]          Proposed section 74K(1) and (2).

[8]          Statement of Compatibility (SOC), p. 20.

[9]          SOC, p. 18.

[10]        See proposed sections 74F(2), 74H(2), 74J(2), and74K(2).

[11]        Hasan and Chaush v Bulgaria ECHR 30985/96 (26 October 2000) [84]

[12]        APP 9; APP 6.2(b).

[13]        See sections 74F(3), 74H(3), 74J(3) and 74K(4).

[14]        Proposed section 74G(2) of the bill.

[15]        See the Explanatory Memorandum, Table 1.

[16]        Proposed sections 74F(4), 74G(3), 74H(4), 74J(4) and 74K(5) of the bill.

[17]        The second step in assessing whether the civil penalties are 'criminal' under international human rights law is to look at the nature and purpose of the penalties.  Civil penalty provisions are more likely to be considered 'criminal' in nature if they are intended to punish or deter, irrespective of their severity, and if they apply to the public in general.

[18]        SOC, p. 20.

[19]        The third step in assessing whether the penalties are 'criminal' under international human rights law is to look at their severity. In assessing whether a pecuniary penalty is sufficiently severe to amount to a 'criminal' penalty, the maximum amount of the pecuniary penalty that may be imposed under the civil provision in context is relevant.

[20]        See Explanatory Memorandum, page 20 and 37 (Table 1).

[21]        Sections 74F(5), 74G(4), 74H(5), 74J(5), 74K(6)

[22]        Explanatory Memorandum, pp. 20 and 37 (Table 1).

[23]          Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018),
pp. 7-10.

[24]          See, Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44^th Parliament (16 March 2016) p. 11; 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.

[25]          2008 DPRK regulations section 5.

[26]          See, 2008 DPRK sanctions regulations section 5.

[27]          Compare, Charter of the United Nations (Sanctions – Democratic People's Republic of Korea) (Documents) Instrument 2017 [F2017L00539].

[28]          See, 2008 DPRK sanctions regulations section 5(1)(c).

[29]          See, also, Charter of the United Nations Act 1945 section 2B.

[30]          UN Charter Act section 27.

[31]          UN Charter Act section 27.

[32]        2008 DPRK regulations section 5.

[33]        Parliamentary Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017) p. 21.

[34]        See, Parliamentary Joint Committee on Human Rights, Thirty-sixth Report of the 44th Parliament (16 March 2016), p. 12.

[35]        United Nations Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of persons), (16 December 2014), [22].

[36]        Statement of compatibility, p. 1.

[37]          Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018)
pp. 11-29.

[38]          Section 287F of the bill. A person or entity must also register as a political campaigner if their political expenditure 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. Allowable amount is defined in proposed subsection 287(1) to mean any amount received by the person or entity, or to which the entity has access, during the financial year except any gifts received from another person or entity that is not an allowable donor and any loan to which the person or entity has access.

[39]          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.

[40]          The 'disclosure threshold' is defined in section 287(1) of the bill to be $13,500. 

[41]          Section 287G(1).

[42]          Except a registered political party or a State branch of a registered political party: section 287H(1) of the bill.

[43]          Section 287H(1).

[44]          Proposed section 287N of the bill.

[45]          Proposed section 287N(5)-(7).

[46]        Proposed section 287Q.

[47]        Statement of Compatibility (SOC) [4].

[48]        SOC [6]. 

[49]        SOC [4].

[50]        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] and [5]-[6].

[51]        SOC [4].

[52]        SOC [4], [8].

[53]        SOC [5].

[54]        SOC [5].

[55]        Section 287(1) of the bill.

[56]        Proposed section 287.

[57]        Explanatory Memorandum (EM), [39].

[58]        EM, [61].

[59]        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).

[60]        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.

[61]        As discussed above, proposed section 287F of the bill requires the amount of political expenditure by or with the authority of the person or entity during that or any one of the previous financial ears is $100,000 or more.   A person or entity must also register as a political campaigner if their political expenditure 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.

[62]        Section 287G(3) and (4).

[63]        Section 287H(3) and (4).

[64]        EM, p. 19.

[65]        SOC [16].

[66]        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).

[67]        Section 287AA of the bill.

[68]        Section 302D(2) and (3)

[69]        Section 302E(2)(b).

[70]        Section 302E(4) and (5).

[71]        Section 302F.

[72]        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].

[73]        Section 302G(2).

[74]        Section 302J.

[75]        Section 302H.

[76]        Section 302K(2) and (3).

[77]        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).

[78]        Section 302L(2) and(3).

[79]        SOC [4].

[80]        See Parti Nationaliste Basque – Organisation Régionale D'Iparralde v France, no.71251/01, ECHR 2007-II, [45]-[47].

[81]        SOC [14].

[82]        See sections 302L and 302P.

[83]        Report of the Special Rapporteur on the rights of freedom of peaceful assembly and of association (A/HRC/20/27) (2012) [67]-[68].

[84]        Report of the Special Rapporteur on the rights of freedom of peaceful assembly and of association (A/HRC/20/27) (2012) [70].

[85]        Section 287(1) of the bill.

[86]        See also section 302F, 302L and 302K.

[87]        See also section 302H.

[88]        Sections 302D, 302D(1)(a)(ii), 302F, 302K and 302L.

[89]        See the note at the end of proposed section 309(2) and (3) and section 314AEB(1).

[90]        See proposed section 314AB(1).

[91]        SOC, [10].

[92]        SOC, [10]-[11].

[93]          Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018) pp 30‑33.

[94]          See, Item 3; Statement of compatibility (SOC), p. 10. 

[95]          See proposed section 44D of the Enhancing Online Safety Act 2015.

[96]          See proposed section 44E of the Enhancing Online Safety Act 2015.

[97]          See proposed section 44F of the Enhancing Online Safety Act 2015. 

[98]          See proposed section 44K of the Enhancing Online Safety Act 2015.

[99]          SOC, p. 10.

[100]          SOC, p. 9.

[101]          SOC, p. 10.

[102]        SOC, p. 10.

[103]        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. 

[104]          Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018)
pp. 34-44.

[105]          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.

[106]          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.

[107]          '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.

[108]          Section 13 of the bill provides that a person undertakes 'communications activity' if the person communicates or distributes information or material.

[109]          For donor activity, section 21 only applies to foreign principals who are a foreign government, foreign public enterprise, or a foreign political organisation.

[110]          Section 21 of the bill. 

[111]          See sections 22 and 23 of the bill.

[112]          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).

[113]        '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.

[114]        '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.

[115]        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.

[116]        Section 24 of the bill.

[117]        Section 25 of the bill.

[118]        Section 26 of the bill.

[119]        Section 27 of the bill.

[120]        Section 28 of the bill.

[121]        Section 29 of the bill.

[122]        Section 30 of the bill.

[123]        Section 57 of the bill.

[124]        Section 43(1)(c) of the bill.

[125]        Section 6 of the Charges Bill.

[126]        Statement of Compatibility (SOC) [62] and [72].

[127]        SOC [62].

[128]        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").

[129]        SOC [71]-[73].

[130]        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].

[131]        SOC [81].

[132]        SOC [55].

[133]        SOC [21], [85].

[134]        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).

[135]        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)

[136]        This would appear to be a 'communications activity' within the definition of section 13 of the bill.

[137]        See section 11(1)(e) of the bill.

[138]        See section 12(1)(b) of the bill.

[139]        Section 10 of the bill.

[140]        Section 6 of the Charges Bill.

[141]        See section 57 of the bill.

[142]        Explanatory Memorandum, [303].

[143]        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].

[144]        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.

[145]        See the United States' Foreign Agents Registration Act, 22 USC 611-621, section 613(e).

[146]        SOC [58].

[147]        Proposed section 13 of the bill. It is noted that there is an exception to this section for broadcasters and carriage service providers in section 13(3), and that publishers of periodicals do not undertake communications activity only because the publisher publishes the information (proposed section 13(4).

[148]        See proposed section 10 of the bill.

[149]        Except where the foreign principal is a foreign government, in which case 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.  Similarly, the obligation on recent Cabinet ministers as well as recent Ministers, members of Parliament and other holders of senior Commonwealth positions to register is not conditioned on the activities being for the purpose of political or governmental influence: see sections 22 and 23. 

[150]        See section 12(1)(a).

[151]        The definition of 'Commonwealth public official' includes a Minister, a Parliamentary Secretary, a member of either House of Parliament, an APS employee, individuals employed by the Commonwealth otherwise than under the Public Service Act 1999, and officers or employees of Commonwealth authorities: see the Dictionary to the Commonwealth Criminal Code.

[152]        See section 142.2 of the Commonwealth Criminal Code.

[153]        'Commonwealth officers' is defined in section 3 of the Crimes Act 1914 (Cth) to mean a person holding officer under, or employed by the Commonwealth including persons appointed or engaged under the Public Service Act 1999.

[154]        See section 70 of the Crimes Act 1914.

[155]        See the United States' Foreign Agents Registration Act, 22 USC 611-621, section 613(e).

[156]        See proposed sections 24,25,27(1)(b),28(1)(b), 29(1)(b).

[157]        APP 9; APP 6.2(b).

[158]        NK v Netherlands, Human Rights Committee Communication No.2326/2013 (10 January 2018) [9.5].

[159]        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'.

[160]        Althammer v Austria, Human Rights Committee Communication no. 998/01 (8 August 2003) [10.2].

[161]        UN Committee on the Elimination of Racial Discrimination, General Recommendation 30: Discrimination against non-citizens (2004).

[162]        Section 10 of the bill.

[163]        The Attorney-General's response also states that the bill may engage the right to equality and non-discrimination 'by distinguishing a certain section of the Australian public and establishing legislative provisions that apply only to that section', namely recent cabinet ministers, ministers, members of parliament and holders of senior Commonwealth positions. The committee does not consider that this would be likely to raise concerns as to the right to equality and non-discrimination under international human rights law.

[164]          Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018) pp. 50-53.

[165]          See proposed section 80A in Schedule 1, item 3 and proposed section 73A in Schedule 2, item 3 of the bill.

[166]          '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.

[167]          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.

[168]          Statement of Compatibility (SOC), p. 6.

[169]          SOC, p. 6.

[170]          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]).

[171]          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].

[172]          SOC, pp. 6-7.

[173]        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].

[174]        See for example Von Hannover v Germany, European Court of Human Rights Application No.59320/2000 (24 September 2004) [69].

[175]        Section 8(3), Australian Broadcasting Corporation Act 1983.

[176]        Section 10, Special Broadcasting Service Act 1991.

[177]        SOC, p. 6.

[178]          Parliamentary Joint Committee on Human Rights, Report 2 of 2018 (13 February 2018)
pp. 2-36.

[179]          Currently, section 70 of the Crimes Act criminalises the disclosure of information by Commonwealth officers, obtained due to their role, in circumstances where they have a duty not to disclose such information. Similarly, section 79 of the Crimes Act also currently criminalises the disclosure of 'official secrets'. The bill proposes to replace these provisions.

[180]          Under proposed subsection 90.1(1) of the Criminal Code  a person 'deals' with information if the person receives or obtains it; collects it; possesses it; makes a record of it; copies it alters it; conceals it; communicates it; publishes it; or makes it available.

[181]          'Commonwealth officer' would be defined broadly to include (a) an APS employee; (b) an individual appointed or employed by the Commonwealth otherwise than under the Public Service Act 1999; (c) a member of the Australian Defence Force; (d) a member or special member of the Australian Federal Police; (e) an officer or employee of a Commonwealth authority; (f) an individual who is a contracted service provider for a Commonwealth contract: Proposed section 121.1 of the Criminal Code.

[182]          Strict liability applies to the element of the offence of whether the information is inherently harmful to the extent the information is security classified information: See, proposed subsection 122.1(4) and (5) of the Criminal Code.

[183]          See, proposed section 121.1 of the Criminal Code.

[184]          See, proposed section 121.1 of the Criminal Code.

[185]          This includes where the information in relation to the offence has a security classification of 'secret' or above; the record containing the information is marked 'for Australian eyes only' or as prescribed by regulation; the offence involves 5 or more records with a security classification; the offence involves the person altering a record to remove its security classification; or at the time the person committed the offence the person held an Australian Government security clearance. Strict liability applies as to whether 5 or more documents had a security classification.

[186]          What is not in the 'public interest' is defined in proposed section 122.5 (7).

[187]        See, Parliamentary Joint Committee on Human Rights, Report 9 of 2017 (5 September 2017) pp. 6-12; Report 11 of 2017 (17 October 2017) pp. 72-83.

[188]        Michel Forst, End of mission statement by United Nations Special Rapporteur on the situation of human rights defenders (Visit to Australia), 18 October 2016 http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20689&LangID=E;  François Crépeau, Report of the Special Rapporteur on the human rights of migrants on his mission to Australia and the regional processing centres in Nauru, Thirty-fifth session, Human Rights Council, A/HRC/35/25/Add.3 (24 April 2017) [86].

[189]        See, generally, Human Rights Committee, General comment No 34 (Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, [21]-[36] (2011). The right to freedom of expression may be subject to limitations that are necessary to protect the rights or reputations of others, national security, public order, or public health or morals.

[190]        Statement of compatibility (SOC) pp. 22-23.

[191]        SOC, p. 22: UN Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression, CCPR/C/GC/34, (12 September 2011) [30].

[192]        Explanatory Memorandum (EM) p. 229.

[193]        See, Australian Government, Information security management guidelines Australian Government security classification system (April 2015) https://www.protectivesecurity.gov.au/informationsecurity/Documents/INFOSECGuidelinesAustralianGovernmentSecurityClassificationSystem.pdf.

[194]        See, proposed section 121.1 of the Criminal Code: 'cause harm to Australia's interests' includes 'interfere with or prejudice the prevention, detection, investigation, prosecution or punishment of: (i) a criminal offence against; or (ii) a contravention of a provision, that is subject to a civil penalty, of: a law of the Commonwealth; or (b) interfere with or prejudice the performance of functions of the Australian Federal Police under: (i) paragraph 8(1)(be) of the Australian Federal Police Act 9 1979 (protective and custodial functions); or (ii) the Proceeds of Crime Act 2002; or (c) harm or prejudice Australia’s international relations in  relation to information that was communicated in confidence: (i) by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country or an international organisation; and (ii) to the Government of the Commonwealth, to an authority of the Commonwealth, or to a person receiving the communication on behalf of the  Commonwealth or an authority of the Commonwealth; or (d) harm or prejudice Australia’s international relations in any other way; or (e) harm or prejudice relations between the Commonwealth and a State or Territory; or (f) harm or prejudice the health or safety of the public or a section of the public.

[195]        Privacy Act 1988 section 68A;

[196]        Broadcasting Services Act 1992 section 135.

[197]        SOC, p. 22.

[198]        David Kaye, Special Rapporteur, Promotion and Protection of the Right to Freedom of Opinion and Expression, 70th sess, UN Doc A/70/361 (8 September 2015) 5 [8]

[199]        Under proposed subsection 90.1(1) of the Criminal Code a  person 'deals' with information if the person receives or obtains it; collects it; possesses it; makes a record of it; copies it; alters it; conceals it; communicates it; publishes it; or makes it available.

[200]        Proposed section 122.5(7) provides that, dealing with or holding information is not in the public interest if (a) dealing with or holding information that would be an offence under section 92 of the Australian Security Intelligence Organisation Act 1979 (publication of identity of ASIO employee or ASIO affiliate); (b) dealing with or holding information that would be an offence under section 41 of the Intelligence Services Act 2001 (publication of identity of staff); (c) dealing with or holding information that would be an offence under section 22, 22A or 22B of the Witness Protection Act 1994 (offences relating to Commonwealth, Territory, State participants); (d) dealing with or holding information that will or is likely to harm or prejudice the health or safety of the public or a section of the public.

[201]        Strict liability applies to the element of the offence of whether the information is inherently harmful to the extent the information is security classified information: See, proposed subsection 122.1(4) and (5) of the Criminal Code.

[202]        Michel Forst, End of mission statement by United Nations Special Rapporteur on the situation of human rights defenders (Visit to Australia), 18 October 2016 http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20689&LangID=E.

[203]        Michel Forst, End of mission statement by United Nations Special Rapporteur on the situation of human rights defenders (Visit to Australia), 18 October 2016 http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20689&LangID=E.

[204]        As set out above, proposed section 122.1 criminalises communication, dealing with or handling 'inherently harmful information.

[205]        See, proposed section 121.1 of the Criminal Code: 'cause harm to Australia's interests' includes 'interfere with or prejudice the prevention, detection, investigation, prosecution or punishment of: (i) a criminal offence against; or (ii) a contravention of a provision, that is subject to a civil penalty, of: a law of the Commonwealth; or (b) interfere with or prejudice the performance of functions of the Australian Federal Police under: (i) paragraph 8(1)(be) of the Australian Federal Police Act 1979 (protective and custodial functions); or (ii) the Proceeds of Crime Act 2002; or (c) harm or prejudice Australia’s international relations in  relation to information that was communicated in confidence: (i) by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country or an international organisation; and (ii) to the Government of the Commonwealth, to an authority of the Commonwealth, or to a person receiving the communication on behalf of the  Commonwealth or an authority of the Commonwealth; or (d) harm or prejudice Australia’s international relations in any other way; or (e) harm or prejudice relations between the Commonwealth and a State or Territory; or (f) harm or prejudice the health or safety of the public or a section of the public.

[206]        Under proposed subsection 90.1(1) of the Criminal Code  a person 'deals' with information if the person receives or obtains it; collects it; possesses it; makes a record of it; copies it; alters it; conceals it; communicates it; publishes it; or makes it available.

[207]        SOC, p. 22: UN Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression, CCPR/C/GC/34, (12 September 2011) [30].

[208]        UN Special Rapporteur on the situation of human rights defenders, Report of the Special Rapporteur on the situation of human rights defenders on his mission to Australia, A/HRC/37/51/Add.3  (28 February 2018) [28].

[209]        Section 29 of the Public Interest Disclosure Act 2013

[210]        UN Special Rapporteur on the situation of human rights defenders, Report of the Special Rapporteur on the situation of human rights defenders on his mission to Australia, A/HRC/37/51/Add.3  (28 February 2018) [28].

[211]        SOC, p. 16.

[212]        See, EM pp. 276-283.

[213]        See explanatory memorandum, p. 88.

[214]        See, Inspector-General of Intelligence and Security, Submission 13, Parliamentary Joint Committee on Intelligence and Security inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 pp. 5-6.

[215]        EM, p. 26.

[216]        EM, p. 26.

[217]        Under proposed subsection 90.1(1) a person deals with information or an article if the person: (a) receives or obtains it; (b) collects it; (c) possesses it; (d) makes a record of it; (e) copies it; (f) alters it; (g) conceals it; (h) communicates it; (i) publishes it; (j) makes it available.

[218]        'Security classification' is to have the meaning prescribed by regulation: Proposed section 90.5.

[219]        Proposed section 90.4 defines 'national security' of Australia or a foreign country as (a) the defence of the country; (b) the protection of the country or any part of it, or the people of the country or any part of it, from defined activities (espionage; sabotage; terrorism; political violence; activities intended and likely to obstruct, hinder or interfere with the performance of the defence force; foreign interference); (c) the protection of the integrity of the country' s territory and borders from serious threats; (d) the carrying out of the country's responsibilities to any other country in relation to the matter mentioned in paragraph (c) or a defined activity; (e) the country's political, military or economic relations with another country or other countries.

[220]        Proposed section 90.2 of the Criminal Code defines 'foreign principal' as: (a) a foreign government principal; (b) a public international organisation (c) a terrorist organisation (d) an entity or organisation owned, directed or controlled by a foreign principal within the meaning of paragraph (b) or (c); (e) an entity or organisation owned, directed or controlled by 2 or more foreign principals.

[221]        Proposed section 91.1 of the Criminal Code. Strict liability applies to the element of whether information has a security classification.

[222]        Proposed section 91.2 of the Criminal Code.

[223]        Proposed section 91.3. Strict liability applies to the element of whether information has a security classification.

[224]        Proposed section 91.8 defines 'espionage' by reference to offences in Division A, sections 91.1, 91.2, 91.3, 91.6.  

[225]        Proposed section 91.8.

[226]        Proposed section 91.11. This section defines 'espionage' by reference to offences in Division A, sections 91.1, 91.2, 91.3, 91.6 and Division B, section 91.8.

[227]        Proposed section 91.12. This section defines 'espionage' by reference to offences in Division A, sections 91.1, 91.2, 91.3, 91.6 and Division B, section 91.8.

[228]        See, proposed sections 91.4, 91.9, 91.13. For example, it is a defence where the person dealt with the information or article in accordance with Commonwealth law; the person acted in accordance with an agreement or arrangement to which the Commonwealth was a party; the information is already public with the authority of the Commonwealth.

[229]        'Security classification' is to have the meaning prescribed by regulation: Proposed 90.5.

[230]        Proposed section 90.4 defines 'national security' of Australia or a foreign country as (a) the defence of the country; (b) the protection of the country or any part of it, or the people of the country or any part of it, from defined activities (espionage; sabotage; terrorism; political violence; activities intended and likely to obstruct, hinder or interfere with the performance of the defence force, foreign interference); (c) the protection of the integrity of the country' s territory and borders from serious threats; (d) the carrying out of the country's responsibilities to any other country in relation to the matter mentioned in paragraph (c) or a defined activity; (e) the country's political, military or economic relations with another country or other countries.

[231]        See proposed section 91.4 of the Criminal Code.

[232]        Proposed section 90.2 of the Criminal Code defines 'foreign principal' as: (a) a foreign government principal; (b) a public international organisation (c) a terrorist organisation (d) an entity or organisation owned, directed or controlled by a foreign principal within the meaning of paragraph (b) or (c); (e) an entity or organisation owned, directed or controlled by 2 or more foreign principals.

[233]        UN Special Rapporteur on the situation of human rights defenders, Report of the Special Rapporteur on the situation of human rights defenders on his mission to Australia, A/HRC/37/51/Add.3  (28 February 2018) [28].

[234]        Proposed section 90.2 of the Criminal Code defines 'foreign principal' as: (a) a foreign government principal; (b) a public international organisation (c) a terrorist organisation (d) an entity or organisation owned, directed or controlled by a foreign principal within the meaning of paragraph (b) or (c); (e) an entity or organisation owned, directed or controlled by 2 or more foreign principals.

[235]        Proposed sections 92.2 (2), 92.3(2).

[236]        Proposed sections 92.3-92.10.

[237]        Proposed sections 92.5, 92.11.

[238]        Proposed section 90.2 of the Criminal Code.

[239]        Proposed section 92.5.

[240]        Proposed section 92.11.

[241]        See, EM, p. 215.

[242]        EM, p. 216.

[243]        See, UN Human Rights Committee, Smantser v Belarus (1178/03); WBE v the Netherlands (432/90); Hill and Hill v Spain (526/93).

[244]        See, In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147 (19 November 2010): the ACT Supreme Court declared that a provision of the Bail Act 1992 (ACT) was inconsistent with the right to liberty under section 18 of the ACT Human Rights Act 2004 which required that a person awaiting trial not be detained in custody as a 'general rule'. Section 9C of the Bail Act required those accused of murder, certain drug offences and ancillary offences, to show 'exceptional circumstances' before having a normal assessment for bail undertaken. 

[245]        SOC, p. 13.

[246]        SOC, p. 13.

[247]        See, Crimes Act 1914 section 15AB.

[248]        SOC, p. 13.

[249]        See, In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147 (19 November 2010).

[250]        See, In the matter of an application for Bail by Isa Islam [2010] ACTSC 147 (19 November 2010).

[251]        See, UN Human Rights Committee, Smantser v Belarus (1178/03); WBE v the Netherlands (432/90); Hill and Hill v Spain (526/93).

[252]        EM, pp. 298-301.

[253]        See TIA Act section 46.

[254]        The committee has considered proposed amendments to the TIA Act on a number of previous occasions: See, Parliamentary Joint Committee on Human Rights, Law Enforcement Integrity Legislation Amendment Bill 2012, Fifth Report of 2012 (October 2012) pp. 21-21; Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, Fifteenth Report of the 44th Parliament (14 November 2014) pp. 10-22; Twentieth report of the 44th Parliament (18 March 2015) pp. 39-74; and Thirtieth report of the 44th Parliament (10 November 2015) pp. 133-139; the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, Thirty-second report of the 44th Parliament (1 December 2015) pp. 3-37 and Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 85-136; the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016, Report 9 of 2016 (22 November 2016) pp. 2-8 and Report 1 of 2017 (16 February 2017) pp. 35-44; and the Telecommunications (Interception and Access - Law Enforcement Conduct Commission of New South Wales) Declaration 2017 [F2017L00533], Report 7 of 2017 (8 August 2017) pp. 30-33.

[255]        See, for example, Parliamentary Joint Committee on Human Rights, Telecommunications (Interception and Access – Law Enforcement Conduct Commission of New South Wales) Declaration 2017 [F2017L00533], Report 7 of 2017 (8 August 2017) p. 33; Investigation and Prosecution Measures Bill 2017, Report 12 of 2017 (28 November 2017) p. 88.

[256]        SOC, p. 19.

[257]        SOC, pp. 19-20.

[258]        See item 3 of part 2 of schedule 5.

[259]        See explanatory memorandum to the bill, p. 303.

[260]        See proposed section 287F of the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 (the electoral funding bill). Additionally, an entity must register as a political campaigner if their political expenditure 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.

[261]        Proposed section 287(1) of the electoral funding bill.

[262]        Proposed section 12(1)(g) in item 4 of schedule 5 of the bill.

[263]        Foreign principal means: (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.

[264]        Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018)
pp. 34-44.

[265]        The right to freedom of expression in Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) includes freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or print, in the form of art, or through any other media of her or his choice.

[266]        The right to freedom of association in Article 22 of the ICCPR protects the right to join with others in a group to pursue common interests. The right prevents States parties from imposing unreasonable and disproportionate restrictions on the right to form associations, including imposing procedures that may effectively prevent or discourage people from forming an association.

[267]        The right to privacy protects against arbitrary and unlawful interferences with an individual's privacy, and recognises that individuals should have an area of autonomous development; a 'private sphere' free from government intervention and excessive unsolicited intervention by others. The right to privacy also includes respect for informational privacy, including the right to control the dissemination of information about one's private life.

[268]        The right to take part in public affairs includes the right of every citizen to take part in the conduct of public affairs by exerting influence through public debate and dialogues with representatives either individually or through bodies established to represent citizens.

[269]        Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018) p. 43.

[270]        Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018) p. 41.

[271]        Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018)
pp. 11-29.

[272]        Statement of compatibility to the foreign influence bill, [21], [85].

[273]        Lobbying is defined in section 10 of the foreign influence bill to include communicating in any way with a person or group of persons for the purpose of influencing any process, decision or outcome, and representing the interests of a person in any process.

[274]        This would constitute acting 'on behalf of' a foreign principal pursuant to section 11 of the foreign influence bill.

[275]        A person undertakes communications activity if the person communicates or distributes information or material. 

[276]        See section 21 of the foreign influence bill.

[277]          Parliamentary Service Amendment (Managing Recruitment Activity and Other Measures) Determination 2017 [F2017L01353] (2017 Determination).

[278]          Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018)
pp. 54-58.

[279]          Parliamentary Service Determination 2013 [F2013L00448] (2013 Determination).

[280]          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; Report 2 of 2017 (21 March 2017) pp 109-110; Parliamentary Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017) pp. 37-40.

[281]          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.

[282]          Other concerns related to the right to equality and non-discrimination and the right to privacy in relation to notification of termination of employment on the ground of physical or mental disability.

[283]          Parliamentary Joint Committee on Human Rights, Twenty-first Report of the 44th Parliament (24 March 2015) pp. 25-28.

[284]          Parliamentary Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017) p. 40.

[285]          Parliamentary Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017) p. 40.

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

[287]        Parliamentary Service Amendment (Notification of Decisions and Other Measures) Determination 2016 [F2016L01649].

[288]        See section 39(1)(e).

[289]        Parliamentary Joint Committee on Human Rights, Report 1 of 2017 (16 February 2017)
pp. 20-23.

[290]        Parliamentary Joint Committee on Human Rights, Report 1 of 2017 (16 February 2017) p. 110.

[291]        Parliamentary Joint Committee on Human Rights, Report 2 of 2017 (16 February 2017) p. 23.

[292]        Statement of compatibility, Attachment B.

[293]        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.

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'.