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]

[1]        This section can be cited as: Parliamentary Joint Committee on Human Rights, New and continuing matters, Report 4 of 2019; [2019] AUPJCHR 64.

[2]        The committee examines all legislative instruments registered in the relevant period, as listed on the Federal Register of Legislation. To identify all of the legislative instruments scrutinised by the committee during this period, select 'legislative instruments' as the relevant type of legislation, select the event as 'assent/making', and input the relevant registration date range in the Federal Register of Legislation’s advanced search function, available at: https://www.legislation.gov.au/AdvancedSearch.

[3]        See, Parliamentary Joint Committee on Human Rights, Report 3 of 2019 (30 July 2019) p. 23.

[4]        This section can be cited as: Parliamentary Joint Committee on Human Rights, Response required,  Report 4 of 2019; [2019] AUPJCHR 65.

[5]        This entry can be cited as: Parliamentary Joint Committee on Human Rights, Migration Amendment (Repairing Medical Transfers) Bill 2019, Report 4 of 2019; [2019] AUPJCHR 65.

[6]        As amended by the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019.

[7]        Nauru and Papua New Guinea are 'regional processing countries' for the purpose of the Migration Act 1958.

[8]        Migration Act 1958, section 198E.

[9]        Except in cases of children under 18 years of age: Migration Act 1958, sections 198D.

[10]        Migration Act 1958, sections 198D; 198E (3), (3A), (4).

[11]        Migration Act 1958, section 198F.

[12]        Schedule 1.

[13]      Schedule 1, items 3-8.

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

[15]      International Covenant on Civil and Political Rights, article 2 (the right to an effective remedy).

[16]      See, Parliamentary Joint Committee on Human Rights, Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation: Ninth Report of 2013 (19 June 2013).

[17]      UN Committee Against Torture, Concluding observations on the combined fourth and fifth periodic reports of Australia, CAT/C/AUS/CO/4-5 (2014) [17]. See, also, UN Committee on Economic, Social and Cultural Rights, Concluding observations on the fifth periodic report of Australia, E/C.12/AUS/CO (2017) [17].

[18]      UN Human Rights Council, 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, A/HRC/35/25/Add.3 (2017) [77]–[79],[82] and [118].

[19]      UN Human Rights Council, 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, A/HRC/35/25/Add.3 (2017) [80].

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

[21]      See, for example, 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 44th Parliament (October 2014) pp. 77-78. The UN Human Rights Committee in its Concluding observations on Australia recommended '[r]epealing section 197(c) of the Migration Act 1958 and introducing a legal obligation to ensure that the removal of an individual must always be consistent with the State party's non-refoulement obligations': CCPR/C/AUS/CO/6 (2017), [34].  See, also, Parliamentary Joint Committee on Human Rights, Report 1 of 2019 (12 February 2019) 
pp.14-17; Report 12 of 2018 (27 November 2018) pp. 2-22; 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. 

[22]      In relation to the requirement for independent, effective and impartial review, see Agiza v Sweden, UN Committee against Torture Communication No.233/2003 (2005) [13.7]; Singh v Canada, UN Committee against Torture Communication No.319/2007 (2011) [8.8]-[8.9]; Josu Arkauz Arana v France, UN Committee against Torture Communication No.63/1997 (2000); Alzery v Sweden, UN Human Rights Committee Communication No.1416/2005 (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.

[23]      The measure may also engage and may limit the right to humane treatment in detention, the rights of children and the rights to protection of family. It is noted that this analysis does not address the rights of children noting that the Prime Minister announced that '[e]very asylum seeker child has now been removed from Nauru or has had their claim processed and has a clear path off the island': Prime Minister, Media Release (3 February 2019). https://www.pm.gov.au/media/asylum-seeker-children-nauru. Further the SOC p. 12 notes that '[n]o children have been transferred to Australia under section 198C of the Migration Act.'

[24]      International Covenant on Economic, Social and Cultural Rights, article 12(1).

[25]      See, Parliamentary Joint Committee on Human Rights, Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation: Ninth Report of 2013 (19 June 2013) p. 83.

[26]      UN Committee on Economic, Social and Cultural Rights, Concluding observations on the fifth periodic report of Australia, E/C.12/AUS/CO (2017) [17].

[27]      UN Committee on Economic, Social and Cultural Rights, Concluding observations on the fifth periodic report of Australia, E/C.12/AUS/CO (2017) [17].

[28]      UN Human Rights Council, 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, A/HRC/35/25/Add.3 (2017) [73] and [77].

[29]      SOC, p. 9.

[30]      See, Parliamentary Joint Committee on Human Rights, Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation: Ninth Report of 2013 (19 June 2013) p. 43. See, also, Legal and Constitutional Affairs References Committee, Incident at the Manus Island Detention Centre from 16 February to 18 February 2014 (11 December 2014) pp. 131–142.

[31]      UN Committee Against Torture, Concluding observations on the combined fourth and fifth periodic reports of Australia, CAT/C/AUS/CO/4-5 (2014) [17]. See, also, UN Committee on Economic, Social and Cultural Rights, Concluding observations on the fifth periodic report of Australia, E/C.12/AUS/CO (2017) [17].

[32]      UN Human Rights Committee, Concluding observations on the sixth periodic report of Australia, CCPR/C/AUS/CO/6 (2017) [35].

[33]      UN Human Rights Council, 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, A/HRC/35/25/Add.3 (2017) [73].

[34]      SOC, p. 13.

[35]      SOC, p. 13.

[36]      Section 198B of the Migration Act provides that 'an officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia'.

[37]      For a discussion of the Commonwealth's duty of care relating to offshore medical transfers under section 198B, see Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483. By contrast for a discussion of the new medical transfer provisions that this bill proposes to repeal see, CEU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1050.

[38]      The committee's consideration of the compatibility of a measure which limits a right is assisted if the response explicitly addresses the limitation criteria set out in the committee's Guidance Note 1, pp. 2-3.

[39]        This section can be cited as: Parliamentary Joint Committee on Human Rights, Advice only, Report 4 of 2019; [2019] AUPJCHR 66.

[40]        The committee notes that it initially drew a number of human rights concerns to the attention of the Parliament in relation to the Counter-Terrorism Legislation Amendment Bill 2019 in its Report 2 of 2019. It also requested the Attorney-General’s advice in relation to a number of human rights. The statement of compatibility to the present bill sets out further detail in response to the committee’s Report 2 of 2019 and, as such, the committee is not seeking the Attorney-General’s response on this bill.

[41]        This entry can be cited as: Parliamentary Joint Committee on Human Rights, Appropriation Bill (No. 1) 2019-2020, Appropriation Bill (No. 2) 2019-2020, Appropriation (Parliamentary Departments) Bill (No. 1) 2019-2020, Report 4 of 2019; [2019] AUPJCHR 67.

[42]        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 44^th Parliament (4 March 2014) p. 3; Eighth Report of the 44^th Parliament (24 June 2014) pp. 5 and 31; Twentieth Report of the 44^th Parliament (18 March 2015) p. 5; Twenty-third Report of the 44^th Parliament (18 June 2015) p. 13; Thirty-fourth Report of the 44^th Parliament (23 February 2016) p. 2; Report 2 of 2017 (21 March 2017) p. 44; Report 5 of 2017 (14 June 2017) p. 42; Report 3 of 2018 (27 March 2018) p. 97; Report 5 of 2018 (19 June 2018) pp. 49-52; Report 2 of 2019 (2 April 2019) pp. 106-111.

[43]        During the 44^th Parliament, the Minister for Finance invited the committee to meet with departmental officials about this issue, see Parliamentary Joint Committee on Human Rights, Eighth Report of the 44^th Parliament (June 2014) pp. 5-7, 33. In its Report 5 of 2018 the committee recommended that departmental officials meet with the committee secretariat on behalf of the committee to develop workable approaches to statements of compatibility for appropriations bills and sought the advice of the minister as to this course of action. Departmental officials met with the committee secretariat on 30 October 2018, see Parliamentary Joint Committee on Human Rights, Report 2 of 2019 (2 April 2019) pp. 106 -111.

[44]        Parliamentary Joint Committee on Human Rights, Report 2 of 2019 (2 April 2019) pp. 106 -111.

[45]        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.

[46]        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 44^th Parliament (4 March 2014); and Eighth Report of the 44th Parliament (24 June 2014), Report 5 of 2017 (14 June 2017) p. 42.

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

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

[49]        Appropriation Bill (No. 1) 2019-2020, Explanatory Memorandum (EM), Statement of compatibility (SOC) p. 4 (Bill No. 1, SOC); Appropriation Bill (No. 2) 2019-2020, EM, SOC p. 4 (Bill No. 2, SOC); Appropriation (Parliamentary Departments) Bill (No. 1) 2019-2020, EM, SOC p. 4 (Parliamentary Bill, SOC). Such statements are broadly similar to the SOCs which accompanied previous appropriations bills: see, for example, Appropriation Bill (No. 4) 2018 2019 (Bill No. 4): EM, SOC, p. 4; Appropriation Bill (No. 3) 2018-2019: EM, SOC, p. 4 (Bill No. 3); Appropriation (Parliamentary Departments) Bill (No. 2) 2018-2019 (Parliamentary Departments): EM, SOC, p. 4.

[50]      Bill No. 1, EM, SOC, p. 4; Bill No. 2, EM, SOC, p. 4; Parliamentary Departments, EM, SOC, p. 4.

[51]      Bill No. 1, EM, SOC, p. 4; Bill No. 2, EM, SOC, p. 4; Parliamentary Departments, EM, SOC, p. 4.

[52]      See, Human Rights (Parliamentary Scrutiny) Act 2011, section 8.

[53]      Parliamentary Joint Committee on Human Rights, Report 2 of 2019 (2 April 2019) pp. 106 -111.

[54]      Spending or reduction of spending may have disproportionate impacts on such groups and accordingly may engage the right to equality and non-discrimination.

[55]      Parliamentary Joint Committee on Human Rights, Report 2 of 2019 (2 April 2019) pp. 106 -111.

[56]      There are a range of resources to assist in the preparation of human rights assessments of budgets: see, for example, UN Office of the High Commissioner for Human Rights, Realising Human Rights through Government Budgets (2017) at: https://www.ohchr.org
/Documents/Publications/RealizingHRThroughGovernmentBudgets.pdf; South African Human Rights Commission, Budget Analysis for Advancing Socio-Economic Rights (2016) at: http://spii.org.za/wp-content/uploads/2018/05/2016-SPII-SAHRC-Guide-to-Budget-Analysis-for-Socio-Economic-Rights.pdf; Ann Blyberg and Helena Hofbauer, Article 2 and Governments' Budgets (2014) at: https://www.internationalbudget.org/wp-content/uploads/Article-2-and-Governments-Budgets.pdf; Diane Elson, Budgeting for Women's Rights: Monitoring Government Budgets for Compliance with CEDAW, (UNIFEM, 2006) at: https://www.internationalbudget.org/wp-content/uploads/Budgeting-for-Women%E2%80%99s-Rights-Monitoring-Government-Budgets-for-Compliance-with-CEDAW.pdf; 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).

[57]      As part of its project to improve statements of compatibility, in December 2018 the committee wrote to minister regarding the adequacy of information contained in statements of compatibility which amend the Financial Framework (Supplementary Powers) Regulations 1997 (FF(SP) Regulations) to establish legislative authority for Commonwealth spending on one or more government policies or programs. Following this correspondence, in February 2019, the Minister for Finance, Senator the Hon Mathias Cormann, responded to the committee to advise that the Department of Finance is working with other departments to ensure sufficient information is included in statements of compatibility for legislative instruments which amend the FF(SP) Regulations.

[58]        This entry can be cited as: Parliamentary Joint Committee on Human Rights, Crimes Legislation Amendment (Police Powers at Airports) Bill 2019, Report 3 of 2019; [2019] AUPJCHR 68.

[59]        Parliamentary Joint Committee on Human Rights, Report 11 of 2018 (16 October 2018), pp. 12-15 and Parliamentary Joint Committee on Human Rights, Report 12 of 2018 (27 November 2018), pp. 55-76. The committee previously concluded that the measures appeared to be compatible with the right to liberty and the right to equality and non-discrimination. The committee recommended that the use of the powers be monitored by the government to ensure the exercise of the powers, in practice, is compatible with the right to equality and non-discrimination.

[60]        Schedule 1, item 1, proposed sections 3UP, 3UQ and 3US.

[61]        This includes offences against a law of the Commonwealth or a law of a State having a federal aspect, punishable by imprisonment for 12 months or more.

[62]        Schedule 1, item 1, proposed section 3UN(2).

[63]        See Schedule 1, item 2 of the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018.

[64]        In the Second Reading Speech to the Crimes Legislation Amendment (Police Powers at Airports) Bill 2019, the Minister for Home Affairs noted: 'The amendments incorporated into this bill are also consistent with the views expressed by the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills as part of their inquiries into the bill.'

[65]        This entry can be cited as: Parliamentary Joint Committee on Human Rights, Social Security (Administration) (Trial of Cashless Welfare Arrangements) (Declinable Transactions and Welfare Restricted Bank Account) Determination 2019, Report 4 of 2019; [2019] AUPJCHR 69.

[66]        In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.

[67]        It replaces references to 'gift cards, store cards or vouchers' with the term 'cash-like product', which is defined in section 124PQA of the Social Security (Administration) Act 1990 to include gift cards, store cards, vouchers or similar, money orders, postal orders or similar, and digital currency. It also removes a list of businesses in the geographical catchment area of the cashless welfare trial (from which alcohol could be procured or gambling undertaken) as being establishments from which transactions may be declined, as well as declaring that the purchase of online money orders at Australia Post are declinable transactions. The instrument repeals and replaces the Social Security (Administration) (Trial – Declinable Transactions and Welfare Restricted Bank Account) Determination 2018, which this committee has previously considered; see, Parliamentary Joint Committee on Human Rights, Report 8 of 2018 (21 August 2018), pp. 48-52.

[68]        Explanatory Statement, p. 2.

[69]        Social Security (Administration) Act 1990, sections 124PG-124PH.

[70]        Social Security (Administration) Act 1990, sections 124PD and 124PL.

[71]        See, Parliamentary Joint Committee on Human Rights, Report 2 of 2019 (2 April 2019), pp. 146-152; Report 8 of 2018 (21 August 2018), pp. 37-52; Report 6 of 2018 (26 June 2018), pp. 30-43; Report 1 of 2018 (6 February 2018), pp. 134-137; Report 12 of 2017 (28 November 2017), pp. 50-52; Report 11 of 2017 (17 October 2017), pp. 126-137; Report 9 of 2017, pp. 34-40; Report 8 of 2017 (5 September 2017), pp. 122-125; Report 5 of 2017, pp. 31-33; Report 8 of 2016 (14 June 2017), pp. 53-54; Report 7 of 2016 (11 October 2016), pp. 58-61.

[72]        See, for example, Parliamentary Joint Committee on Human Rights, Report 8 of 2018 (21 August 2018) p. 48.

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

[74]      Statement of compatibility, pp. 2-3. The statement of compatibility also states that the trial will not impact on the right to self-determination and will contribute to an adequate standard of living.

[75]      The statement of compatibility to the Social Security (Administration) (Trial – Declinable Transactions and Welfare Restricted Bank Account) Determination 2018 did address the right to equality and non-discrimination.

[76]      See, Parliamentary Joint Committee on Human Rights, Report 8 of 2018 (21 August 2018) p. 48.

[77]      See, Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) pp. 126-137.

[78]      See, Parliamentary Joint Committee on Human Rights, Report 11 of 2017 (17 October 2017) pp. 126-137.

[79]      See, for example, Parliamentary Joint Committee on Human Rights, Report 8 of 2018 (21 August 2018) p. 48.

[80]        This section can be cited as: Parliamentary Joint Committee on Human Rights, Bills and instruments with no committee comment, Report 4 of 2019; [2019] AUPJCHR 70.

[81]        Inclusion in the list is based on an assessment of the bill and relevant information provided in the statement of compatibility accompanying the bill. The committee may have determined not to comment on a bill notwithstanding that the statement of compatibility accompanying the bill may be inadequate. Where the committee considers that a statement of compatibility is inadequate it may write to the relevant minister setting out its concerns, see Parliamentary Joint Committee on Human Rights, Annual Report 2018, pp. 36-37.

[82]        Previously deferred, see Parliamentary Joint Committee on Human Rights, Report 3 of 2019 (30 July 2019) p. 23.

[83]        Previously deferred, see Parliamentary Joint Committee on Human Rights, Report 3 of 2019 (30 July 2019) p. 23. The committee has determined not to comment on this bill as it provides for individuals to apply to exit the cashless debit card trial. However, the committee notes that underlying concerns regarding the human rights implications of the cashless debit card trial and income management remain: see, most recently, pp. 21-24 of this report and Parliamentary Joint Committee on Human Rights, Report 2 of 2019 (2 April 2019) pp. 146-152.

[84]        The committee examines all legislative instruments registered in the relevant period, as listed on the Federal Register of Legislation. To identify all of the legislative instruments scrutinised by the committee during this period, select 'legislative instruments' as the relevant type of legislation, select the event as 'assent/making', and input the relevant registration date range in the Federal Register of Legislation’s advanced search function, available at: https://www.legislation.gov.au/AdvancedSearch.

Appendix 1 - Deferred legislation[1]

[1]        This appendix can be cited as: Parliamentary Joint Committee on Human Rights, Deferred legislation, Report 4 of 2019; [2019] AUPJCHR 71.

[2]        Previously deferred in Parliamentary Joint Committee on Human Rights, Report 3 of 2019 (30 July 2019) p. 23.