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).

[3]        See the committee's Short Guide to Human Rights and Guide to Human Rights, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance_Notes_and_Resources

[4]        See Guidance Note 1 – Drafting Statements of Compatibility, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance_Notes_and_Resources

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: Social Services and Other Legislation Amendment (Supporting Retirement Incomes) Bill 2018; Defence Determination, Conditions of Service Amendment (Flexible Service Determination) Determination 2018 (No. 40) [F2018L01553]; Health Insurance (Extended Medicare Safety Net) Amendment Determination 2019 [F2018L01502]; Migration Amendment (Pathway to Permanent Residence for Retirees) Regulations 2018 [F2018L01472]; and National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2018 [F2018L01547].

[4]        Parliamentary Joint Committee on Human Rights, Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, Twenty-fifth Report of the 44th Parliament (11 August 2015) pp. 4-46; Thirty-Sixth Report of the 44th Parliament (16 March 2016) pp. 27-84. The amended Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 passed both Houses of Parliament on 3 December 2015 and received Royal Assent on 11 December 2015.

[5]        The minister must consider public interest matters before making a determination to revoke a person's citizenship including: the severity of the conduct that was the basis of the conviction or convictions and the sentence or sentences; the degree of threat posed by the person to the Australian community; the age of the person; if the person is aged under 18—the best interests of the child as a primary consideration; the person's connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person; Australia's international relations; and any other matters of public interest. 

[6]        Subdivision A of Division 72 of the Criminal Code.

[7]        Subdivision B of Division 80, section 80.1 of the Criminal Code.

[8]        Subdivision B of Division 80, section 80.1AA of the Criminal Code.

[9]        Subdivision B of Division 80, section 80.AC of the Criminal Code.

[10]        Part 5.3, section 101.1 of the Criminal Code.

[11]        Section 101.2 of the Criminal Code.

[12]        Section 101.4 of the Criminal Code

[13]      Section 101.5 of the Criminal Code.

[14]      Section 101.6 of the Criminal Code.

[15]      Section 102.2 of the Criminal Code.

[16]      Section 102.3 of the Criminal Code.

[17]      Section 102.4 of the Criminal Code.

[18]      Section 102.5 of the Criminal Code.

[19]      Section 102.6 of the Criminal Code.

[20]      Section 102.7 of the Criminal Code.

[21]      Section 102.8 of the Criminal Code.

[22]      Section 103.1 of the Criminal Code.

[23]      Section 103.2 of the Criminal Code.

[24]      Part 5.5, section 119.1 of the Criminal Code. See, also, Crimes (Foreign Incursions and Recruitment) Act 1978 sections 6-7 (repealed).

[25]      Part 5.5, section 119.1 of the Criminal Code. See, also, Crimes (Foreign Incursions and Recruitment) Act 1978 sections 6-7 (repealed).

[26]      Part 5.5, section 119.2 of the Criminal Code.

[27]      Part 5.5, section 119.5 of the Criminal Code.

[28]      Part 5.5, section 119.6 of the Criminal Code.

[29]      Part 5.5, section 119.7 of the Criminal Code.

[30]      Crimes (Foreign Incursions and Recruitment) Act 1978 sections 6-7 (repealed).

[31]      Division 82 of the Criminal Code.

[32]      Division 82.9 of the Criminal Code.

[33]      Division 91 of the Criminal Code.

[34]      Division 92 of the Criminal Code.

[35]      See, proposed section 35A(1); Statement of Compatibility (SOC) p. 16..

[36]      Article 12 of the International Covenant on Civil and Political Rights (ICCPR).

[37]      Article 17 of the ICCPR.

[38]      Articles 17 and 23 of the ICCPR and article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[39]      Article 25 of the ICCPR.

[40]      Article 9 of the ICCPR.

[41]      Articles 6 and 7 of the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

[42]      Article 26 of the ICCPR.

[43]      Article 14 of the ICCPR.

[44]      Article 15 of the ICCPR.

[45]      Article 14(7) of the ICCPR.

[46]      Convention on the Rights of the Child (CRC).

[47]      For example, the right to work; the right to social security; the right to an adequate standard of living; the right to health; the right to education.

[48]      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).

[49]      Statement of compatibility (SOC), p. 10.

[50]      See section 35 of the Migration Act 1958 (Migration Act).

[51]      SOC, p. 10.

[52]      Migration Act, section 501(7)(c).

[53]      SOC, p. 10.

[54]      Migration Act, section 189, 198.

[55]      Migration Act, section 189, 198.

[56]      Migration Act, section 501E. While section 501E(2) provides that a person is not prevented from making an application for a protection visa, that section also notes that the person may be prevented from applying for a protection visa because of section 48A of the Migration Act. Section 48A provides that a non-citizen who, while in the migration zone, has made an application for a protection visa and that visa has been refused or cancelled, may not make a further application for a protection visa while the person is in the migration zone.

[57]      Winata v Australia, UN Human Rights Committee Communication No.930/2000 (26 July 2001) [7.3].

[58]      SOC, p. 10.

[59]      SOC, pp. 7-8.

[60]      See, ICCPR article 12(3).

[61]      SOC, p. 10.

[62]      Migration Act, section 189, 198.

[63]      UN Human Rights Committee, General Comment 35: Liberty and security of person (2014) [18]. See, also, C v Australia (900/1999) UN Human Rights Committee (13 November 2002) [8.2]; Bakhtiyari et al. v. Australia (1069/2002) UN Human Rights Committee (6 November 2003) [9.3]; D and E v. Australia (1050/2002) UN Human Rights Committee (9 August 2006) [7.2]; Shafiq v. Australia (1324/2004) UN Human Rights Committee (13 November 2006) [7.3]; Shams et al. v. Australia, (1255/2004) UN Human Rights Committee (11 September 2007) [7.2]; F.J. et al. v. Australia (2233/2013) UN Human Rights Committee (2 May 2016) [10.4].

[64]      See, Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) pp. 34-44; Report 4 of 2018 (8 May 2018) pp. 88-90.

[65]      The bill, by extending the citizenship removal power to the offence of 'associating with a terrorist organisation', also raises additional questions in this context.

[66]      See, Parliamentary Joint Committee on Human Rights, National Security Legislation Amendment (Espionage and Foreign Interference) Bill, Report 3 of 2018, (27 March 2018) pp. 244-260.

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

[68]      SOC, p. 10.

[69]      Migration Act, section 501(3A).

[70]      SOC, p. 10.

[71]      Migration Act, section 198.

[72]      Migration Act, section 501E. While section 501E(2) provides that a person is not prevented from making an application for a protection visa, that section also notes that the person may be prevented from applying for a protection visa because of section 48A of the Migration Act. Section 48A provides that a non-citizen who, while in the migration zone, has made an application for a protection visa and that visa has been refused or cancelled, may not make a further application for a protection visa while the person is in the migration zone.

[73]      Parliamentary Joint Committee on Human Rights, Thirty-Sixth Report of the 44^th Parliament (16 March 2016) pp. 195–217. See also Nineteenth Report of the 44^th Parliament (3 March 2015) pp. 13-28. The committee has also considered that measures introduced by the Migration Amendment (Validation of Decisions) Bill 2017, which retrospectively validated visa cancellation and refusal decisions that had been made in reliance on confidential information protected by a former provision of the Migration Act that had been found to be invalid by the High Court, was likely to be incompatible with a number of human rights: see Report 11 of 2017 (17 October 2017) pp. 92-116; Report 10 of 2017 (12 September 2017) pp. 5-26; Report 8 of 2017 (15 August 2017) pp. 32-43. See, also, Report 12 of 2018 (27 November 2018) pp. 2-22.

[74]      See the committee's analysis of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 in Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44^th Parliament (October 2014) pp. 77-78.

[75]      ICCPR, article 2 (the right to an effective remedy). See, for example, Singh v Canada, UN Committee against Torture Communication No.319/2007 (30 May 2011) [8.8]-[8.9]; Alzery v Sweden, UN Human Rights Committee Communication No. 1416/2005 (20 November 2006) [11.8]. See, also, Parliamentary Joint Committee on Human Rights, Report 11 of 2018 (16 October 2018) pp. 82-98; Report 2 of 2017 (21 March 2017) pp. 10-17; Report 4 of 2017 (9 May 2017) pp. 99-111.

[76]      Alzery v Sweden, UN Human Rights Committee Communication No.1416/2005(20 November 2006) [11.8].

[77]      Only decisions of a delegate of the minister to cancel a person's visa under section 501 may be subject to merits review by the Administrative Appeals Tribunal (AAT): see section 500(1)(b) of the Migration Act. Decisions for which merits review is not available include decisions of the minister personally exercising the visa refusal or cancellation power under section 501, and also decisions of the minister personally to set aside a decision by a delegate or the AAT not to exercise the power to refuse or cancel a person’s visa and to substitute it with their own decision to refuse or to cancel the visa: section 501A of the Migration Act. Merits review is also unavailable where the minister exercises the power to set aside a decision of a delegate to refuse to cancel a person's visa and substitute it with their own refusal or cancellation under section 501B.

[78]      Citizenship Act, section 52.

[79]      See, most recently, in relation to the Migration Amendment (Strengthening the Character Test) Bill 2018, Parliamentary Joint Committee on Human Rights, Report 12 of 2018 (27 November 2018) pp. 2-22. See, also, Parliamentary Joint Committee on Human Rights, Report 11 of 2018 (16 October 2018) pp. 84-90; Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 196-202; Report 12 of 2017 (28 November 2017) p. 92 and Report 8 of 2018 (21 August 2018) pp. 25-28.

[80]      See, for example, Parliamentary Joint Committee on Human Rights, Report 11 of 2018 (16 October 2018) pp. 84- 90. See also Singh v Canada, UN Committee against Torture Communication No.319/2007 (30 May 2011) [8.8]-[8.9].

[81]      The prohibition against retrospective criminal law is absolute and may never be subject to permissible limitations.

[82]      SOC, p. 12.

[83]      SOC, p. 14.

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

[86]      See, Rebecca Kingston, 'The Unmaking of Citizens: Banishment and the Modern Citizenship Regime in France', (2005) 9 Citizenship Studies23. Macklin, Audrey and Rainer Baubock, ‘The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship?’ (February 2015), Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2015/14.

[87]      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'.

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

[89]      D.H. and Others v the Czech Republic, European Court of Human Rights, Application no. 57325/00 (13 November 2007) [49]; Hoogendijk v. the Netherlands, European Court of Human Rights, Application no. 58641/00 (6 January 2005).

[90]      SOC, p. 15.

[91]      Article 3(1).

[92]      Under international law all people aged under 18 years are defined as children.

[93]      SOC, p. 15.

[94]      SOC, p. 15.

[95]      UN Committee on the Rights of the Child, General comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration (29 May 2013).

[96]      SOC, p. 16.

[97]      United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), http://www.un.org/documents/ga/res/40/a40r033.htm; Australian Institute of Criminology, The Age of Criminal Responsibility,  https://aic.gov.au/publications/cfi/cfi106.

[98]      CRC, article 40. See, also, UN Committee on the Rights of the Child, General Comment 10: children's rights in juvenile justice (2007) [10].

[99]        Proposed section 170(1)(d). A definition of 'mandatory question' would be inserted by item 6 of the bill. The definition would include questions to which the answer is 'Yes' or 'No', or (if applicable) 'Unknown' or 'N/A'.

[100]        Proposed section 181A.

[101]        See proposed Form DB, in particular questions 1 to 9.

[102]        Statement of compatibility (SOC), p. 11.

[103]        SOC, p. 12.

[104]        SOC, p. 14.

[105]        SOC, p. 14.

[106]        SOC, p. 12.

[107]        The citizenship eligibility requirements in section 44 of the Constitution engage and limit the right to take part in public affairs, and also engage and may limit the right to equality and non-discrimination (on the basis of nationality). This may raise additional human rights concerns or questions.

[108]      SOC, p. 12.

[109]      Section 353 of the Commonwealth Electoral Act 1918.

[110]      SOC, p. 12.

[111]      SOC, p. 12.

[112]      SOC, p. 12. See also proposed sections 170B(3), (5) and (6).

[113]      SOC, pp. 12-13.

[114]        See section 6(5) and Schedule 2 of the IS Act. The provision of a weapon, or training in the use of a weapon or in self-defence techniques must be in accordance with Ministerial approval: section 1(1)(c) of Schedule 2 of the IS Act. For the use of a weapon or self-defence techniques, guidelines must have been issued by the Director-General of ASIS and the weapon or techniques must be used in accordance with those guidelines: section 1(2) of Schedule 2 of the IS Act.

[115]        See new section 1(1)(b)(iiia) and section 1(1A)(iv) of Schedule 2 of the IS Act.

[116]        'Security' is defined by reference to sections 4(a) and (aa) of the Australian Security Intelligence Organisation Act 1979 to mean the protection of, and of the people of, the Commonwealth and the several States and Territories from espionage; sabotage; politically motivated violence; promotion of communal violence; attacks on Australia’s defence system; or acts of foreign interference; whether directed from, or committed within, Australia or not; and the protection of Australia’s territorial and border integrity from serious threats.

[117]        Section 2 of Schedule 3 sets out the requirements for guidelines issued by the Director-General of ASIS relating to the use or threat of use of force. Section 2 requires that a copy of the guidelines must be provided to the Inspector-General of Intelligence and Security, and that the Inspector-General of Intelligence and Security must brief the Parliamentary Joint Committee on Intelligence and Security (PJCIS) on the content and the effect of the guidelines if so requested by the Committee or if the guidelines change.

[118]        Section 1(2) of Schedule 3 to the IS Act.

[119]        Section 1(1) of Schedule 3 to the IS Act.

[120]        Section 1(3)(b) and (4)(a) of Schedule 3 to the IS Act.

[121]        Section 1(4)(b) of Schedule 3 to the IS Act.

[122]        United Nations Human Rights Committee, General Comment No.27: Article 12 (Freedom of Movement), CCPR/C/21/Rev.1/Add.9 (2 November 1999) [7]; see also United Nations Human Rights Council, Report of the Working Group on Arbitrary Detention, A/HRC/22.44 (22 December 2012) [55] and [57]; Foka v Turkey, European Court of Human Rights Application No.28940/95, Judgment (24 June 2008) [78]; Gillan and Quinton v United Kingdom, European Court of Human Rights Application No.4158/05, Judgment (12 January 2010) [54]-[57]; Austin v United Kingdom, European Court of Human Rights Application Nos. 39692/09, 40713/09 and 41008/09, Grand Chamber, (15 March 2012) [57]; Gahramanov v Azerbaijan, European Court of Human Rights Application No.26291/06, Judgment (15 October 2013) [38]-[45].

[123]      United Nations Human Rights Committee, General Comment No.31: The nature of the general legal obligation imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13 (26 May 2004) [10]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Reports 136 [107]-[111].

[124]      Statement of Compatibility (SOC), [25].

[125]      SOC, [24].

[126]      SOC, [26]-[27].

[127]      SOC, [18].

[128]      SOC, [33]-[44].

[129]      Section 1(2) of Schedule 3 to the IS Act.

[130]      SOC, [23].

[131]        Explanatory Statement, p. 8.

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

[133]        SOC, p. 2.

[134]        SOC, p. 5.

[135]        SOC, p. 5.

[136]        SOC, p. 4.

[137]        APP 9; APP 6.2(b).

[138]        APP 6.2(e).

[139]        SOC, pp. 3 and 5.

[140]        Parliamentary Joint Committee on Human Rights, Twenty-Fifth Report of the 44^th Parliament (11 August 2015) pp. 81-93.

[141]        Section 5A of the Migration Act: 'personal identifier' means any of the following: (a) fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies); (b) a measurement of a person's height and weight; (c) a photograph or other image of a person's face and shoulders; (d) an audio or a video recording of a person (other than a video recording under section 261AJ); (e) an iris scan; (f) a person's signature; (g) any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914 .

[142]        Proposed subsection 46(2B) of the bill.

[143]        Statement of Compatibility (SOC), p. 11.

[144]        SOC, p. 14.

[145]        SOC, p. 13.

[146]        SOC, p. 14.

[147]        SOC, p. 14.

[148]        Parliamentary Joint Committee on Human Rights, Twenty-Fifth Report of the 44^th Parliament (11 August 2015) pp. 82-86.

[149]      APP 9; APP 6.2(b).

[150]      APP; 6.2(e).

[151]      SOC, p. 18.

[152]      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'.

[153]      Althammer v Austria, Human Rights Committee Communication no. 998/01 [10.2].

[154]      SOC, p. 15.

[155]      SOC, p. 15.

[156]      SOC, p. 17.

[157]      SOC, p. 17.

[158]        See, for example, section 1064 of the Social Security Act 1991: Rate of age, disability support, wife pensions and carer payment (people who are not blind).

[159]        'Defined benefit income stream' is defined in section 9(1F) of the Social Security Act 1991, and refers mainly to income streams arising out of superannuation funds.

[160]        Section 1120 of the Social Security Act 1991.

[161]        For example, section 7(2) of the 2018 Determination provides that, for an income stream that is indexed by reference to movements in salary, the indexation factor is taken to be a rate of at least 4 per cent but less than 5 per cent.

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

[163]        Statement of compatibility, p. 5.

[164]        See proposed sections 56(4); 57(4); 57A(4); 58(4) of the bill.

[165]        See proposed sections 60 and 61 of the bill.

[166]        See, for example, sections 18 and 19 of the Regulatory Powers (Standard Provisions) Act 2014.

[167]        See, for example, sections 48 and 49 of the Regulatory Powers (Standard Provisions) Act 2014.

[168]        Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018) pp. 34-44; Report 3 of 2018 (27 March 2018) pp. 189-206.

[169]        See, Parliamentary Joint Committee on Human Rights, Report 1 of 2018 (6 February 2018) pp. 34-44; Report 3 of 2018 (27 March 2018) pp.192-203.

[170]        At the time of the committee's consideration of the FITS Bill, 'on behalf of' a foreign principal was defined in section 11 to mean undertaking activity: (a) under the arrangement with the foreign principal; or (b) in the service of the foreign principal; or (c) on the order or at the request of the foreign principal; or (d) under the control or direction of the foreign principal; or (e) with the funding or supervision by the foreign principal; or (f) in collaboration with the foreign principal.

[171]        At the time of the committee's consideration of the FITS Bill, 'foreign principal' was 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.

[172]        At the time of the committee's consideration of the FITS Bill, section 12 provided that a person would undertake an activity for the purpose of political or governmental influence if (1)....a purpose of the activity (whether or not there are other purposes) is to influence, directly or indirectly, any aspect (including the outcome) of any one or more of the following: (a) a process in relation to a federal election or a designated vote; (b) a process in relation to a federal government decision; (c) proceedings of a House of the Parliament; (d) a process in relation to a registered political party; (e) a process in relation to a member of the Parliament who is not a member of a registered political party; (f) a process in relation to a candidate in a federal election who is not endorsed by a registered political party.

[173]        Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) p. 203.

[174]        Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 203-206.

[175]        Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 197-203.

[176]        Foreign Influence Transparency Scheme Act 2018, section 12.

[177]      Foreign Influence Transparency Scheme Act 2018, sections 24-30.

[178]      In particular, the narrower scope of the scheme means that the measures may be compatible with freedom of expression, freedom of association, the right to take part in the conduct of public affairs and the right to equality and non-discrimination.

[179]      See the amendments to section 43(1)(b) of Foreign Influence Transparency Scheme Act 2018 and section 43 of the Foreign Influence Transparency Scheme Act 2018.

[180]      Statement of Compatibility (SOC) p.5.

[181]      Parliamentary Joint Committee on Human Rights, Report 3 of 2018 (27 March 2018) pp. 197.

[182]        Proposed section 30(2).

[183]        Proposed section 30(3).

[184]        Proposed sections 31 and 34.

[185]        Proposed section 5 defines 'constitutional trade and commerce' as trade or commerce between Australia and places outside Australia, trade or commerce among the states, or trade or commerce within a territory, between a state and a territory or between two territories.

[186]        Proposed sections 38(3) and (4).

[187]        Proposed sections 40(3) and (4).

[188]        Cha'are Shalom Ve Tsedek v France, European Court of Human Rights Application no. 27417/95 (2000).

[189]        Statement of compatibility (SOC), p. 10. 

[190]        SOC, p. 10.

[191]      SOC, p. 10. See also proposed section 9.

[192]      Proposed section 50.

[193]      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 or residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.

[194]      Athammer v Austria, Communication No. 998/2001, CCPR/C/78/D/998/2001 (2003) [10.2].

[195]      D.H. and Others v the Czech Republic, European Court of Human Rights Application no. 57325/00 (2007); Hoogendijk v the Netherland, European Court of Human Rights Application no. 58641/00 (2005).

[196]      SOC, p. 10.

[197]      See, for example, sections 18 and 19 of the Regulatory Powers, Standard Provisions Act 2014.

[198]      See, for example, sections 48 and 49 of the Regulatory Powers, Standard Provisions Act 2014.

[199]      SOC, p. 10.

[200]        Section 7(4) of the bill defines 'immigrations sanctions' as regulations that provide that an application by the person under the Migration Act 1958 for the visa is not a valid application; or permit the Minister administering the Migration Act 1958 to cancel a visa held by a person under the Act.

[201]        Section 7(4) of the bill defines 'financial or trade sanctions' as regulations that restrict or prevent uses of, dealings with, or the making available of, assets owned, held or controlled by the person; or restrict or prevent the supply, sale, transfer, import or export of goods or services by the person or to the person.

[202]        'Foreign person' is defined in section 4 of the Foreign Acquisitions and Takeovers Act 1975 to mean, relevantly, an individual not ordinarily resident in Australia. Section 5 of that Act provides that an individual who is not an Australian citizen is 'ordinarily resident' in Australia at a particular time if and only if: (a) the individual has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time; and (b) at that time: (i) the individual is in Australia and the individual’s continued presence in Australia is not subject to any limitation as to time imposed by law; or (ii) the individual is not in Australia but, immediately before the individual’s most recent departure from Australia, the individual’s continued presence in Australia was not subject to any limitation as to time imposed by law.

[203]        Section 7(2) of the bill.

[204]        Statement of Compatibility (SOC), p.1.

[205]        See, for example, the report of the United Kingdom Joint Committee on Human Rights, which supported the inclusion of a 'Magnitsky clause' as part of its inquiry into the Sanctions and Anti-Money Laundering Bill: United Kingdom Joint Committee on Human Rights, Legislative Scrutiny: The Sanctions and Anti-Money Laundering Bill (28 February 2018) [18]; United Kingdom House of Commons Library, Magnitsky Legislation Briefing Paper (6 July 2018). See also, for example, Canada: Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law), SC 2017, c.21.

[206]        See section 4 of the Foreign Acquisitions and Takeovers Act 1975. The explanatory memorandum to the bill explains that the bill is intended to apply to persons or entities engaged in commercial dealings, trades or using assets within Australia: See explanatory memorandum (EM) to the bill, p.1.

[207]        See, most recently, Parliamentary Joint Committee on Human Rights, Report 6 of 2018 (26 June 2018) pp 104-131. See also Report 4 of 2018 (8 May 2018) pp. 64-83; Report 3 of 2018 (26 March 2018) pp. 82-96; Report 9 of 2016 (22 November 2016) pp. 41-55; Thirty-third report of the 44^th Parliament (2 February 2016) pp. 17-25; Twenty-eighth report of the 44^th Parliament (17 September 2015) pp. 15-38; Tenth Report of 2013 (26 June 2013) pp. 13-19; Sixth Report of 2013 (15 May 2013) pp. 135-137.

[208]        See, most recently, Parliamentary Joint Committee on Human Rights, Report 6 of 2018 (26 June 2018) p. 108.

[209]      See section 7(4) of the bill.

[210]      Parliamentary Joint Committee on Human Rights, Report 6 of 2018 (26 June 2018) p. 109. This aspect of the proposed immigration sanctions also engages the right to freedom of movement: Parliamentary Joint Committee on Human Rights, Report 6 of 2018 (26 June 2018) p. 109.

[211]      Australia's obligations in relation to non-refoulement are absolute and may not be subject to any limitations.

[212]      SOC, p.1.

[213]      Parliamentary Joint Committee on Human Rights, Report 6 of 2018 (26 June 2018) pp. 104-131.

[214]      See the discussion of the human rights implications of expressing legal discretion of the executive in overly broad terms in Hasan and Chaush v Bulgaria, European Court of Human Rights Application no. 30985/96 (26 October 2000) [84].

[215]        The Marriage Act currently grants a minister of religion of a recognised denomination discretion as to whether or not to solemnise a marriage on religious grounds where this is in accordance with their religious doctrines, tenets and beliefs; where necessary to avoid injury to the religious susceptibilities of adherents of that religion; or where the minister's religious beliefs do not allow the minister to solemnise the marriage: section 47 of the Marriage Act. Similar protections are available to those who are religious celebrants.

[216]        Item 3, proposed section 47AA of the Marriage Act.

[217]        The SDA currently provides an exemption to a body established for religious purposes, for any other act or practice, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

[218]        Item 10, proposed section 38A of the SDA.

[219]        The International Covenant on Economic, Social and Cultural Rights (ICESCR) also prohibits discrimination in relation to rights set out that treaty. Additionally, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) further describes the content of non-discrimination obligations, including the specific elements that state parties are required to take into account to ensure the rights to equality for women.

[220]        Statement of compatibility (SOC) p. 4.

[221]        See, Parliamentary Joint Committee on Human Rights, Marriage Amendment (Definition and Religious Freedoms) Bill 2017, Report 13 of 2017 (5 December 2017) pp. 19-37; Marriage Legislation Amendment Bill 2016; Marriage Legislation Amendment Bill 2016 [No.2], Freedom to Marry Bill, Report 8 of 2016 (9 November 2016) pp. 33-44; Marriage Legislation Amendment Bill 2015, Thirtieth Report of the 44th Parliament (10 November 2015) pp.112‑124.

[222]        Parliamentary Joint Committee on Human Rights, Marriage Amendment (Definition and Religious Freedoms) Bill 2017, Report 13 of 2017 (5 December 2017) pp. 19-37.

[223]        Parliamentary Joint Committee on Human Rights, Freedom to Marry Bill, Report 8 of 2016 (9 November 2016) pp. 33-34. See, also, Parliamentary Joint Committee on Human Rights, Marriage Amendment (Definition and Religious Freedoms) Bill 2017, Report 13 of 2017 (5 December 2017) pp. 34-35.

Chapter 2 - Concluded matters

[1]        See https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports

[2]        Parliamentary Joint Committee on Human Rights, Report 12 of 2018 (27 November 2018) pp. 2-22.

[3]        The minister's response is available in full on the committee's scrutiny reports page: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[4]        Section 501(6)(aaa) of the bill. Some of these powers to cancel a person's visa may be exercised by a delegate of the minister: see section 501(1) and 501(2).

[5]        Section 501(7AA)(a)(i)-(iv) of the bill. 'Weapon' is defined to include a thing made or adapted for use for inflicting bodily injury, and a thing where the person who has the thing intends or threatens to use the thing, or intends that the thing be used, to inflict bodily injury: section 501(7AB) of the bill.

[6]        Section 501(7AA)(a)(v)-(viii) of the bill.

[7]        Section 501(7AA)(b)(i)-(iii) of the bill, in relation to offences against a law in force in Australia. For offences against the law in force in a foreign country, an offence will be considered a designated offence if it were assumed that the act or omission that formed the basis of the offence occurred in the Australian Capital Territory (ACT) and the act or omission would also have been an offence against a law in force in the ACT and the offence, if committed in the ACT, would have been punishable by life imprisonment, imprisonment for a fixed term of not less than two years or a maximum term of not less than two years: section 501(7AA)(c).

[8]        See, for example, Migration Act, section 501(6)(a) and (c).

[9]        Migration Act, section 501(7).

[10]      Migration Act, section 198.

[11]      Migration Act, section 501E. While section 501E(2) provides that a person is not prevented from making an application for a protection visa, that section also notes that the person may be prevented from applying for a protection visa because of section 48A of the Migration Act. Section 48A provides that a non-citizen who, while in the migration zone, has made an application for a protection visa and that visa has been refused or cancelled, may not make a further application for a protection visa while the person is in the migration zone.

[12]      See the committee's analysis of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 in Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44^th Parliament (October 2014) pp. 77-78.

[13]      ICCPR, article 2 (the right to an effective remedy). See, for example, Singh v Canada, UN Committee against Torture Communication No.319/2007 (30 May 2011) [8.8]-[8.9]; Alzery v Sweden, UN Human Rights Committee Communication No. 1416/2005 (20 November 2006) [11.8]. See, also, Parliamentary Joint Committee on Human Rights, Report 11 of 2018 (16 October 2018) pp. 82-98; Report 2 of 2017 (21 March 2017) pp. 10-17; Report 4 of 2017 (9 May 2017) pp. 99-111

[14]      See, for example, Parliamentary Joint Committee on Human Rights, Report 11 of 2018 (16 October 2018) pp. 84-90. See also Singh v Canada, UN Committee against Torture Communication No.319/2007 (30 May 2011) [8.8]-[8.9].

[15]      Parliamentary Joint Committee on Human Rights, Report 12 of 2018 (27 November 2018) pp. 4-7 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_12_of_2018.

[16]      NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [6] (Allsop CJ and Katzmann J).

[17]      Direction No.65: Visa Refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA [10.1], available at:https://archive.homeaffairs.gov.au/visas/Documents/ministerial-direction-65.pdf.

[18]      Direction No.65: Visa Refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, [10.1], available at: https://archive.homeaffairs.gov.au/visas/Documents/ministerial-direction-65.pdf.  

[19]      See Migration Act, sections 195A and 197AB. See also, NKWF v Minister for Immigration and Border Protection [2018] FCA 409, [30].

[20]      Several Federal Court decisions have concluded that this is the effect of section 197C: DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; NKWF v Minister for Immigration and Border Protection [2018] FCA 409; AQM18 v Minister for Immigration and Border Protection [2018] FCA 944; FRH18 v Minister for Home Affairs [2018] FCA 1769.

[21]      See section 48A and Direction No.65: Visa Refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, [10.1], available at: https://archive.homeaffairs.gov.au/visas/Documents/ministerial-direction-65.pdf. 

[22]      Migration Act, section 197C(2).

[23]      The minister's power to cancel or refuse a visa on character grounds extends to persons on protection visas: see Note 1 to section 501 of the Migration Act which states that "Visa is defined by section 5 and includes, but is not limited to, a protection visa".

[24]      Only decisions of a delegate of the minister to cancel a person's visa under section 501 may be subject to merits review by the Administrative Appeals Tribunal: see section 500(1)(b) of the Migration Act. Decisions for which merits review is not available include decisions of the minister personally exercising the visa refusal or cancellation power under section 501, and also decisions of the minister personally to set aside a decision by a delegate or the AAT not to exercise the power to refuse or cancel a person’s visa and to substitute it with their own decision to refuse or to cancel the visa: section 501A of the Migration Act. Merits review is also unavailable where the minister exercises the power to set aside a decision of a delegate to refuse to cancel a person's visa and substitute it with their own refusal or cancellation under section 501B.

[25]      See, most recently, in relation to the Migration (Validation of Port Appointment) Bill 2018 in Parliamentary Joint Committee on Human Rights, Report 11 of 2018 (16 October 2018) pp. 84-90. See also Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 196-202; Report 12 of 2017 (28 November 2017) p. 92 and Report 8 of 2018 (21 August 2018) pp. 25-28.

[26]      See Agiza v Sweden, Committee against Torture Communication No.233/2003 (24 May 2005) [13.7]; Josu Arkauz Arana v France, Committee against Torture Communication No.63/1997 (5 June 2000); Alzery v Sweden, Human Rights Committee Communication No.1416/2005 (20 November 2006) [11.8]. For an analysis of this jurisprudence, see Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 182-183.

[27]      Alzery v Sweden, Human Rights Committee Communication No.1416/2005 (20 November 2006) [11.8].

[28]      Singh v Canada, UN Committee against Torture Communication No.319/2007 (30 May 2011) [8.8].

[29]      Singh v Canada, UN Committee against Torture Communication No.319/2007 (30 May 2011) [8.8]–[8.9].

[30]      ICCPR, article 9.

[31]      Migration Act, section 189.

[32]      Parliamentary Joint Committee on Human Rights, Report 12 of 2018 (27 November 2018) pp 7-12 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_12_of_2018.

[33]      See SOC, p.10. Section 501(6)(c) of the Migration Act  allows for consideration of refusal or cancellation of a visa based on a person's past and present criminal or general conduct'.

[34]      For example, the Penalties and Sentences Act 1992 (Qld) provides that one of the purposes for sentencing an offender include protecting the community from the offender (section 9(1)), and that for violent offences or offences that resulted in physical harm a court must have regard to the risk of physical harm to any members of the community if a custodial sentence were not imposed and the need to protect any members of the community from that risk (section 9(3)(a)-(b)).

[35]      Migration Act, section 195A(2),(4),(5).

[36]      Migration Act, sections 197AB, 197AC(1).

[37]      Parliamentary Joint Committee on Human Rights, Thirty-Sixth Report of the 44^th Parliament (16 March 2016) pp. 202-205.

[38]      Migration Act, section 196(1).

[39]      Migration Act, section 196(4).

[40]      MGC v Australia, UN Human Rights Committee Communication No.1875/2009 (7 May 2015) [11.6].

[41]      UN Human Rights Committee, General Comment No. 32: The right to equality before courts and tribunals and to a fair trial (2007) [17], [62].

[42]      The UN Human Rights Committee has held that immigration and deportation proceedings are excluded from the ambit of article 14. See, for example, Omo-Amenaghawon v Denmark, UN Human Rights Committee Communication No. 2288/2013 (23 July 2015) [6.4]; Chadzjian et al. v Netherlands, UN Human Rights Committee Communication No.1494/2006 (22 July 2008) [8.4]; and PK v Canada, UN Human Rights Committee Communication No. 1234/2003 (20 March 2007) [7.4]-[7.5].

[43]      UN Human Rights Committee, General Comment No. 15: The position of aliens under the covenant (1986) [10].

[44]      Parliamentary Joint Committee on Human Rights, Report 12 of 2018 (27 November 2018) pp. 12-16 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_12_of_2018.

[45]      Migration Act, section 501(5).

[46]      Migration Act, section 501C(3).

[47]      Migration Act, section 501C(4)(b). This is in contrast to the mandatory cancellation power under the Migration Act where the person is also not afforded natural justice at the time of cancellation, but the minister may revoke the cancellation decision if satisfied the person passes the character test or alternatively on a broader discretionary basis of there being 'another reason why the original decision should be revoked': Migration Act, section 501CA(4)(b).

[48]      Roach v Minister for Immigration and Border Protection [2016] FCA 750 at [11], [91]-[93] ('The right to make representations in support of revocation pursuant to an invitation under s 501C(3) therefore ameliorates only in part the lack of procedural fairness afforded at the initial stage of the decision-making process set out in s 501(3). Representations made by the non-citizen at the revocation stage can bear only on the question of whether or not she or he passes the character test'). See also Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177 [50]-[51]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 [59].

[49]      Migration Act, section 501(3)(d).

[50]      See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

[51]      UN Human Rights Committee, General Comment No.15: The position of aliens under the covenant (1986) [10].

[52]      Migration Regulations 1994, regulation 2.52(7); Migration Act, section 501C(1).

[53]      See ICCPR, articles 17 and 23; ICESCR, article 10(1); and the Convention on the Rights of the Child, article 16(1).

[54]      Winata v Australia, UN Human Rights Committee Communication No.930/2000 (26 July 2001) [7.3].

[55]      SOC, p.13.

[56]      Parliamentary Joint Committee on Human Rights, Report 12 of 2018 (27 November 2018) pp.16-18 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_12_of_2018.

[57]      See for example, Direction No.65: Visa Refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, [9], available at: https://archive.homeaffairs.gov.au/visas/Documents/ministerial-direction-65.pdf.

[58]      UN Committee on the Rights of the Child, General comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration, CRC/C/GC/14 (29 May 2013); see also IAM v Denmark, Committee on the Rights of the Child Communication No.3/2016 (8 March 2018) [11.8].

[59]      See Parliamentary Joint Committee on Human Rights, Report 6 of 2018 (26 June 2018) pp. 61-62.

[60]      Nystrom v Australia, UN Human Rights Committee Communication No.1557/2007 (1 September 2011).

[61]      Nystrom v Australia, UN Human Rights Committee Communication No.1557/2007 (1 September 2011) [7.4].

[62]      Parliamentary Joint Committee on Human Rights, Thirty-Sixth Report of the 44^th Parliament (16 March 2016) p. 206. See also Nineteenth Report of the 44^th Parliament (3 March 2015) p. 20.

[63]      Parliamentary Joint Committee on Human Rights, Report 12 of 2018 (27 November 2018) pp. 18-20 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_12_of_2018.

[64]      'personal identifier' is defined in section 5A to mean any of the following (including any of the following in digital form): (a) fingerprints or handprints of a person (including those taken using paper and ink or digital live scanning technologies); (b) a measurement of a person’s height and weight; (c) a photograph or other image of a person’s face and shoulders; (d) an audio or a video recording of a person (other than a video recording under section 261AJ); (e) an iris scan; (f) a person’s signature; (g) any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.

[65]      Migration Act, sections 5A(3) and 257A.

[66]      Migration Act, section 336E.

[67]      Section 5C(1)(aa),(3)-[4] of the bill.

[68]      Parliamentary Joint Committee on Human Rights, Report 12 of 2018 (27 November 2018) pp. 20-22 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_12_of_2018.

[69]        Parliamentary Joint Committee on Human Rights, Report 13 of 2018 (4 December 2018) pp. 2-6 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_13_of_2018.

[70]        The minister's response is available in full on the committee's scrutiny reports page: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports

[71]        Privacy Rules, sections 7 and 8.

[72]        Privacy Rules, section 8(3).

[73]        Privacy Rules, section 11(1)(b).

[74]        Privacy Rules, section 9(1).

[75]        Section 11(2) of the Privacy Rules states that 'old information' may be relinked for the purpose of taking action on an unresolved compensation matter; taking action on an investigation or prosecution; taking action for recovery of a debt; determining entitlement on a late lodged claim or finalising the processing of a claim; determining entitlement for a related service rendered more than five years after the service which is the subject of the old information; fulfilling a request for that information from the individual concerned or from a person acting on behalf of that individual; or lawfully disclosing identified information in accordance with the secrecy provisions of relevant legislation and this instrument.

[76]        Sections 8(9) and 14(1) of the Privacy Rules state that the Department of Human Services may only disclose claims information provided such disclosures do not include personal identification components, except: where it is necessary to clarify which information relates to a particular individual; for the purpose of disclosing personal information in a specific case or circumstances expressly authorised or required under law; or where it is directly connected to the Department of Health assisting the Chief Executive of Medicare to perform his or her health provider compliance functions in accordance with the Privacy Rules.

[77]        Privacy Rules, section 12.

[78]      Parliamentary Joint Committee on Human Rights, Report 13 of 2018 (4 December 2018) pp. 4-6 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_13_of_2018.

[79]      Statement of Compatibility, p. 13: The safeguards identified were holding claims information collected under the MBP and the PBP in separate databases; linking information only for specified purposes and for limited periods of time; specifying agencies' obligations concerning the retention, de-identification and destruction of claims information; and the inclusion of rules to enhance the accountability of agencies.

[80]        Parliamentary Joint Committee on Human Rights, Report 13 of 2018 (4 December 2018) pp. 7-9.

[81]        The minister's response is available in full on the committee's scrutiny reports page at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[82]        Section 167F(1).

[83]        Section 167F(2).

[84]        Parliamentary Joint Committee on Human Rights, Report 13 of 2018 (4 December 2018) pp. 7-9 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_13_of_2018.

[85]        Parliamentary Joint Committee on Human Rights, Report 10 of 2018 (18 September 2018) pp. 4-19.

[86]        Parliamentary Joint Committee on Human Rights, Report 12 of 2018 (27 November 2018) pp. 23-38.

[87]        Parliamentary Joint Committee on Human Rights, Report 12 of 2018 (27 November 2018) p. 38.

[88]        The committee also concluded its examination of the compatibility of an inability to access subsidised jobs for six months with the right to work.

[89]        The minister's response is available in full on the committee's scrutiny reports page: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[90]        Income support payments made to job seekers have 'participation' requirements or 'activity test' or 'mutual obligation' requirements, which require the job seeker to seek work or participate in some other labour force preparation activity as a condition of payment. Participation requirements include attending participation interviews, signing a participation plan with a compulsory work-focused activity, and undertaking the compulsory work-focused activity: see Department of Social Services, Guide to Social Security (2016) [1.1.P.75]. The CDP supports participants receiving a participation payment in meeting their activity test or participation requirements through Newstart Allowance, Youth Allowance (other), Parenting Payment (subject to participation requirements), Social Benefit (nominated visa holders) and the Disability Support Pension: see Explanatory Memorandum (EM) p. 3[3].

[91]        Social Security (Administration) Act 1999 (Social Security Administration Act), section 42AB. 'Declared program participants' are persons who participate in employment services programs specified in a determination made under section 28C of the Social Security Administration Act: see Division 3A of Part 3 of that Act.

[92]        Social Security Administration Act, section 42AB.

[93]        Social Security (Declared Program Participant) Determination 2018, section 5.

[94]      Social Security Administration Act, section 42B.

[95]      Department of Prime Minister and Cabinet, The Community Development Programme (CDP) (2018) https://www.pmc.gov.au/indigenous-affairs/employment/community-development-programme-cdp.

[96]      Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017) pp. 46-77; Report 11 of 2018 (17 October 2017) pp. 138-203.

[97]      Social Security Administration Act, sections 42AC, 42AF and 42AL.

[98]      Social Security Administration Act, sections 42AD, 42AG and 42AL.

[99]      Social Security Administration Act, sections 42AH and 42AO.

[100]      Social Security Administration Act, sections 42N and 42P(2).

[101]      Social Security Administration Act, section 42S.

[102]      Social Security Administration Act, section 42NC.

[103]      Social Security Administration Act, section 42AP(5).

[104]      See section 27, which seeks to repeal Division 3A of Part 3 of the Social Security Administration Act 1999, which includes section 42NC that allows the Secretary to not impose a non-payment period if it would cause 'severe financial hardship'.

[105]      The bill seeks to insert a new section 42AEA to the Social Security Administration Act to define 'subsidised employment' to mean 'employment in respect of which a subsidy of a kind determined in an instrument [made by the secretary] is payable, or has been paid, by the Commonwealth': section 26.

[106]      See section 25 of the bill.

[107]      Holders of subsidised jobs will not be required to comply with mutual obligation requirements: section 21 of the bill.

[108]      Non-compliance with a mutual obligation may include, for example, failure to attend a job interview or appointment.

[109]      Section 42M(4) of the Social Security Administration Act provides that the minister must, by legislative instrument, determine matters that the secretary must take into account in deciding whether a person persistently failed to comply with his or her obligations in relation to a participation payment.

[110]      Social Security (Administration) (Persistent Non-compliance) (Employment) Determination 2015 (No 1), section 5(1).

[111]      Social Security Administration Act, section 42M(1).

[112]      Social Security Administration Act, section 42M(2).

[113]      Social Security Administration Act, section 42AN(3)(a).

[114]      Social Security Administration Act, section 42AN(3)(b).

[115]      Social Security Administration Act, section 42AP.

[116]      Parliamentary Joint Committee on Human Rights, Report 10 of 2018 (18 September 2018) pp. 6-12 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_10_of_2018.

[117]      Parliamentary Joint Committee on Human Rights, Report 12 of 2018 (27 November 2018) pp. 25-31 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_12_of_2018.

[118]      Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) [2.465]-[2.467]; Report 8 of 2017 (15 August 2017) p. 71 [1.335], [1.346]. See also Parliamentary Joint Committee on Human Rights, Ninth Report of the 44th Parliament, Social Security Legislation Amendment (Stronger Penalties for Serious Failures) Bill 2014 (15 July 2014) pp. 66-70; Thirty-Second Report of the 44th Parliament, Social Security Legislation Amendment (Further Strengthening Job Seeker Compliance) Bill 2015 (1 December 2015) pp. 92-100; Thirty-Third Report of the 44th Parliament, Social Security Legislation Amendment (Community Development Program) Bill 2015 (2 February 2016) pp. 7-12.

[119]      The bill seeks to insert a new section 42AEA to the Social Security Administration Act to define 'subsidised employment' to mean 'employment in respect of which a subsidy of a kind determined in an instrument [made by the secretary] is payable, or has been paid, by the Commonwealth': section 26.

[120]      See section 25 of the bill.

[121]      Social Security Administration Act, sections 42AC and 42AL. Section 12 of the bill creates an exception from the requirement to comply with mutual obligations for subsidised employment holders.

[122]      Social Security Administration Act, section 42AL(3).

[123]      Social Security Administration Act, section 42AM(3)-(4).

[124]      Parliamentary Joint Committee on Human Rights, Report 10 of 2018 (18 September 2018) pp. 12-15 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_10_of_2018.

[125]      Parliamentary Joint Committee on Human Rights, Report 12 of 2018 (27 November 2018) pp. 31-33 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_12_of_2018.

[126]      Althammer v Austria, Communication No 998/01, CCPR/C/78/D/998/2001 (2003) [10.2].

[127]      D.H. and Others v the Czech Republic, European Court of Human Rights Application no. 57325/00 (13 November 2007) [49]; Hoogendijk v. the Netherlands, European Court of Human Rights Application no. 58641/00 (6 January 2005).

[128]      See UN Human Rights Committee, General Comment 18: Non-Discrimination (1989) [13]; Althammer v Austria, Human Rights Committee, Communication No 998/01, CCPR/C/78/D/998/2001 (2003) [10.2].

[129]      Parliamentary Joint Committee on Human Rights, Report 10 of 2018 (18 September 2018) pp. 17-19 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_10_of_2018.

[130]      Parliamentary Joint Committee on Human Rights, Report 12 of 2018 (27 November 2018) pp. 36-38 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2018/Report_12_of_2018.

Appendix 1 - Deferred legislation

[1]        See Parliamentary Joint Committee on Human Rights, Report 13 of 2018 (4 December 2018) pp. 143-144.