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Human Rights - Joint Statutory Committee Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011 Bills introduced 5-28 February 2013 Legislative Instruments registered with the Federal Register of Legislative Instruments 5 January-15 February 2013 Report, March 2013


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Parliamentary Joint Committee

on Human Rights

Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011

Bills introduced 5 - 28 February 2013

Legislative Instruments registered with the

Federal Register of Legislative Instruments

5 January - 15 February 2013

Third Report of 2013

March 2013

ii

© Commonwealth of Australia 2013

ISBN 978-1-74229-777-4

This document was prepared by the Parliamentary Joint Committee on Human Rights and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

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Membership of the committee Members

Mr Harry Jenkins MP, Chair Scullin, Victoria, ALP

Mr Ken Wyatt AM MP, Deputy Chair Hasluck, Western Australia, LP Mr Graham Perrett MP Moreton, Queensland, ALP

Senator Anne Ruston South Australia, LP

Senator Dean Smith Western Australia, LP

Senator the Hon. Ursula Stephens New South Wales, ALP

Mr Dan Tehan MP Wannon, Victoria, LP

Senator Matt Thistlethwaite New South Wales, ALP

Senator Penny Wright South Australia, AG

Mr Tony Zappia MP Makin, South Australia, ALP

Functions of the committee The Committee has the following functions: a) to examine Bills for Acts, and legislative instruments, that come before either House of the Parliament for compatibility with human rights, and to report to

both Houses of the Parliament on that issue; b) to examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue; c) to inquire into any matter relating to human rights which is referred to it by the

Attorney-General, and to report to both Houses of the Parliament on that matter.

Committee secretariat PO Box 6100

Ms Jeanette Radcliffe, Secretary Parliament House

Ms Renuka Thilagaratnam, Principal Research Officer Canberra ACT 2600 Ms Anita Coles, Principal Research Officer Ph: 02 6277 3823

Mr Glenn Ryall, Senior Research Officer Fax: 02 6277 5767

External Legal Adviser Professor Andrew Byrnes

E-mail: human.rights@aph.gov.au Internet: http://www.aph.gov.au/joint_humanrights/

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Abbreviations

Abbreviation Definition

CAT

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

CERD Convention on the Elimination of all forms of Racial Discrimination

CEDAW Convention on the Elimination of Discrimination against Women

CRC Convention on the Rights of the Child

CRPD Convention on the Rights of Persons with Disabilities

FRLI Federal Register of Legislative Instruments

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

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Executive Summary

This report provides the Parliamentary Joint Committee on Human Rights' view on the compatibility with human rights (as defined in the Human Rights (Parliamentary Scrutiny) Act 2011) of bills introduced into the Parliament during the period 5 to 28 February 2013 and legislative instruments registered with the Federal Register of Legislative Instruments (FRLI) during the period 5 January to 15 February 2013. The report also provides the committee's comments on a number of responses to comments made in previous committee reports.

Bills introduced 5 to 28 February 2013

The committee considered 29 bills all but one of which were introduced with a statement of compatibility. Twelve of the bills considered do not require further scrutiny as they do not appear to give rise to human rights concerns. The committee has identified 17 bills that it considers require further examination and for which it will seek further information.

Instruments registered between 5 January 2013 and 15 February 2013

The committee considered 300 legislative instruments. The full list of instruments scrutinised by the committee can be found in Appendix 1.

The majority of these instruments do not appear to raise any human rights concerns and have statements of compatibility that are adequate. The committee will seek further information in relation to four instruments before forming a view about their compatibility. The committee has deferred consideration of two instruments.1

The remaining 83 instruments do not appear to raise any human rights concerns but have statements of compatibility that do not fully meet the committee's expectations. The committee proposes to write to the relevant Ministers in a purely advisory capacity to provide guidance on preparing statements of compatibility.

Ministerial responses

The committee considered 16 ministerial responses to comments made in various previous reports. The committee has concluded its examination of seven bills and intruments and has decided to seek further clarification in relation to two bills2.

1 Social Security (Administration) - Queensland Commission (Family Responsibilities Commission) Specification 2012,p 93, and Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2012, p. 94.

2 Customs Amendment (Miscellaneous Measures) Bill 2012, p. 125, and the Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures) Bill 2012, p 153.

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

The committee has suggested modifications to the explanatory memorandum in its comments on one bill3 and has suggested the inclusion of safeguards for two bills.4 The committee regrets that two bills had long been passed by the Parliament before the committee received the Minister's response.5

The committee has decided to defer its consideration of responses in relation to five bills and instruments to enable closer examination of the issues in light of the information provided in the response.

Issues arising

A number of the bills considered by the committee in this report have led it to reflect on some fundamental principles with regard to the role of this committee in the scrutiny of legislation.

Human rights scrutiny of appropriation bills

In commenting on the two appropriation bills considered in this report,6 the committee has noted that it does not anticipate it will generally be necessary for it to make substantive comments on such bills. Nonetheless, the committee has set out its expectation that the incorporation of human rights considerations in the underlying budgetary processes, where appropriate, would provide the most practical approach to ensuring that human rights are taken into account in the development of policy and legislation. The committee has stated that it would find it helpful if the statements of compatibility that accompany appropriation bills identified any proposed cuts in expenditure which may amount to retrogression or limitations on human rights.

Human rights scrutiny of principal acts

The committee has noted a tendency for proponents of legislation to suggest that, where an amending bill incorporates by reference the provisions of an existing Act, such amendments do not raise any human rights concerns by virtue of this reference to existing legislation.

In this report, the committee sets out its expectation that in such circumstances the statement of compatibility should include an analysis of the human rights implications and compatibility of the provisions of the existing or parent Act as they

3 Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012, p 95.

4 Australian Sports Anti-Doping Authority Amendment Bill 2013, p. 113, and Treasury Legislation Amendment (Unclaimed Money and Other Measures) Bill 2013, p 176.

5 Tax Laws Amendment (2012 Measures No. 4) Bill 2012, p. 168, and Tax Laws Amendment (2012 Measures No. 5) Bill 2012, p. 172.

6 Appropriation Bill (No.3) 2012-2013 and Appropriation Bill (No. 4) 2012-2013, p 65.

are applied or extended by the amendment.7 The committee expects that this practice will be adopted even where the parent Act commenced operation before the commencement of the Human Rights (Parliamentary Scrutiny) Act 2011 (the Act).

This approach is consistent with the committee's functions under the Act in two respects. First, the operation of amendments have to be analysed in terms of their legal effect and practical impact, which can only be done by reviewing their operation in the statutory framework of which they form part. Second, such a review contributes to the committee's performance of its mandate 'to examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue'.8

Human rights scrutiny of national co-operative or uniform schemes of legislation

The committee has taken the opportunity provided by the Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2013, to set out its concerns regarding areas of activity regulated under national schemes of legislation resulting from intergovernmental agreements. While the minor amendments proposed by this bill do not give rise to any human rights concerns, the committee considers that the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 gives rise to human rights concerns. The committee has noted the challenges for human rights scrutiny posed by national co-operative schemes of legislation and has stated its view that the issue of compatibility with human rights should be an integral part of the development of any national scheme.

The committee has determined that I should draw attention to each of these issues in my tabling statement.

Mr Harry Jenkins MP Chair

7 Refer to comments on the Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2013, p. 29, and Royal Commissions Amendment Bill 2013, p. 42.

8 Human Rights (Parliamentary Scrutiny) Act 2011 (the Act), section 7(b).

Part 1

Bills introduced 5 - 28 February 2013

Page 1

Bills requiring further information to determine human rights compatibility

Broadcasting Legislation Amendment (Digital Dividend) Bill 2013 Introduced into the House of Representatives on 13 February 2013 Portfolio: Broadband, Communications and the Digital Economy

Summary of committee view

1.1 The committee considers that making available additional avenues for the provision of datacasting services generally promotes enjoyment of the rights of persons to seek, receive and impart information and ideas as guaranteed by article 19 of the International Covenant on Civil and Political Rights (ICCPR).

1.2 The committee seeks clarification as to why different types of broadcasters are being treated differently, with one type of broadcaster requiring a licence to broadcast while others can operate without a licence, and seeks clarification as to what effect, if any, this may have on the rights of persons to receive information and ideas.

Overview

1.3 This bill seeks to gives effect to the government’s decision to make available additional broadcasting spectrum, which is to be cleared of all existing services by 31 December 2014. An auction for the use of the spectrum is anticipated to be held in April 2013. The Australian Communications and Media Authority (ACMA) may agree that successful bidders can commence services in particular geographic areas prior to the spectrum being redesignated out of the broadcasting services bands (BSBs).

1.4 The bill seeks to amend the Broadcasting Services Act 1992 and the Radiocommunications Act 1992 in relation to the datacasting licensing regime. Presently, all datacasting service providers must hold datacasting licences, but in order to facilitate the early commencement of some services in the new spectrum, the bill will permit certain users to provide datacasting services in the new spectrum without holding a licence. It does this by limiting the scope of datacasting regulation so that only 'designated datacasting services' - generally only commercial and national broadcasters - will be required to hold a datacasting licence.

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Compatibility with human rights

1.5 The bill is accompanied by a self-contained statement of compatibility which notes that the bill engages and promotes the right to freedom of expression. Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, which includes the 'freedom to seek, receive and impart information and ideas of all kinds'.

1.6 The statement of compatibility begins by noting that the 'measures in the Bill have no impact on any natural persons in the capacity of licensee; only qualified companies are eligible to hold datacasting licences'.1 The committee notes that while the human rights guaranteed by the ICCPR are enjoyed by natural persons alone (and not by corporations), in certain circumstances the rights of natural persons (such as shareholders) may also be affected by the regulation of corporations, and so engage rights under human rights treaties.2

Freedom of expression

1.7 The statement of compatibility states that the bill promotes freedom of expression, and the rights of people to receive and impart information of all kinds through different media, by increasing the potential range of datacasting services available to the public. This analysis is consistent with the positive obligations of the

State in relation to promoting the freedom to seek, receive and impart ideas and information under international human rights law. The UN Human Rights Committee has noted the importance of encouraging a diverse range of media to ensure the provision of a wide range of information:

As a means to protect the rights of media users, including members of ethnic and linguistic minorities, to receive a wide range of information and ideas, States parties should take particular care to encourage an independent and diverse media.

States parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There is now a global

1 Statement of compatibility, p 1.

2 Note, corporations may also enjoy rights, including freedom of speech, under the Australian Constitution and the common law. While those sources of rights are not listed in the committee’s statutory mandate, they may be relevant to the interpretation and application of the rights contained in the seven treaties specifically listed in the Human Rights (Parliamentary Scrutiny) Act 2011. In this context it is relevant that a number of the human rights treaties explicitly provide that the inclusion of rights in the treaty and the level of protection afforded by it is not intended to prejudice more extensive protection of those rights under national law or other international instruments: see, eg, ICCPR, article 5(2); ICESCR, article 5(2).

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network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto.3

Limitation on the right to receive information from certain providers of datacasting services

1.8 The effect of the bill is to permit particular providers of datacasting services to provide services in specific geographical areas without the need to hold a licence, but to require other broadcasters to hold a licence to provide the same services. The effect of proposed new section 2A of Schedule 6 to the Broadcasting Services Act 1992 would be that commercial television and radio broadcasters, national broadcasters or a service 'of a kind specified in an instrument', would continue to have to hold a licence to deliver datacasting services, but other services would not.

1.9 Establishing a system whereby one class of broadcasters can broadcast without a licence, whereas another class require a licence to do the same activity, may have an impact on the right of persons in those areas to receive information and ideas. If a broadcaster decides not to continue broadcasting because of the need for a licence (e.g. they can no longer compete with non-licence holders) this could restrict the rights of viewers or listeners to receive information and ideas. Neither the explanatory memorandum nor the statement of compatibility explain what the objective of the different treatment is, or why the different treatment of datacasters is necessary to achieve that objective. The committee considers that more information is needed to determine if this amendment could have the effect of limiting the rights of person to receive information and ideas.

1.10 In addition, the bill enables the Minister to (by instrument) designate other services or persons, who would then be unable to provide datacasting services without a licence.4

1.11 Any limitation on the access of users of datacasting services to information and ideas, must satisfy the requirements set out in article 19(3) of the ICCPR:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

3 See the Human Rights Committee’s General Comment No 34 (2011) on article 19 of the ICCPR, paras 14-15.

4 See proposed new clause 2A of Schedule 6 to the Broadcasting Services Act 1992.

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(b) For the protection of national security or of public order (ordre public), or of public health or morals.

1.12 The requirement that a limit be ‘provided by law’ means not only that there be a statute, subordinate legislation or common law rule which permits the restriction, but also that the law satisfy the ‘quality of law’ test. This includes the requirement that the law identify with sufficient precision the circumstances under which the right will be restricted.

1.13 In this case, the bill provides that datacasting services provided by a commercial television or radio broadcasting licensee or a national broadcaster will be subject to a licensing requirement: these terms are defined in the legislation. However, the bill also provides that the Minister may designate other services or persons and thus prevent them from providing these services without a licence (datacasting services ‘of a kind specified’ by the Minister). It is not clear from the bill, the explanatory memorandum or the statement of compatibility what criteria the Minister will apply in making such a determination. The explanatory memorandum simply provides that this will give the Minister 'the flexibility to expand the scope of the datacasting regime if the circumstances warrant'.5 This restriction might therefore not satisfy the ‘quality of law’ test.

1.14 The committee considers that making available the provision of additional avenues for datacasting services generally promotes enjoyment of the rights of persons to seek, receive and impart information and ideas guaranteed by article 19 of the ICCPR.

1.15 The committee intends to write to the Minister to seek clarification as to why different types of broadcasters are being treated differently, and what effect, if any, this may have on the rights of persons to receive information and ideas.

1.16 The committee also intends to request further information from the Minister about what criteria the Minister will employ in deciding to designate datacasting services under proposed new clause 2A(2) of Schedule 6 to the Broadcasting Services Act 1992.

5 Explanatory memorandum, p 7.

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Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 Introduced into the Senate on 26 February 2013 By: Senator Xenophon

Summary of committee view

1.17 The committee considers that the bill appears to limit the right to freedom of expression, the right to privacy, and possibly freedom of association, but that these limitations are aimed at the legitimate objective of seeking to protect children. However, the committee seeks clarification as to why it is necessary (in addition to the offence of misrepresenting one's age with the intent of committing an offence) to have a separate offence of misrepresenting one's age to encourage a child to meet the defendant with no intention to commit an offence

1.18 The committee seeks further clarification as to whether imposing an evidential burden on the defendant under proposed section 474.41(2) is compatible with the right to be presumed innocent.

Overview

1.19 This bill seeks to amend the Criminal Code Act 1995 to make it a criminal offence for a person over 18 years of age to intentionally misrepresent his or her age in online communications with a person they reasonably believe to be under 18 years of age:

(a) for the purpose of encouraging the recipient to physically meet with the sender (or any other person); or

(b) with the intention of committing an offence.

Compatibility with human rights

1.20 The bill is accompanied by a self-contained statement of compatibility that addresses a number of the human rights engaged by the bill. The statement refers to the criminal procedure rights guaranteed by article 14 of the International Covenant on Civil and Political Rights (ICCPR) (in particular the right to be presumed innocent), the right to privacy guaranteed by article 17 of the ICCPR, and the rights of the child guaranteed by article 23 of the ICCPR and various provisions of the Convention on the Rights of the Child.

1.21 In addition to those rights, the bill also engages the rights to freedom of expression (article 19, ICCPR) and possibly also freedom of association (article 21, ICCPR).

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1.22 The statement of compatibility states:

The Bill creates a specific offence aimed at protecting minors from adults who deliberately misrepresent their age for the purpose of arranging a physical meeting or committing another offence. The Bill aims to address situations where adults pretend to be close to the age of a minor with whom they are communicating, so that the minor is more open to communications with that adult. This is a technique known to be used by adults seeking to physically harm minors, where minors have been deceived and become victims of violence and abuse.6

1.23 Insofar as it criminalises specific actions by which a person seeks to make contact with another person, the bill involves a limitation on the exercise of a person’s freedom of expression guaranteed by article 19 of the ICCPR, the right not to have one’s privacy unlawfully or arbitrarily interfered with guaranteed by article 17 of the ICCPR, and possibly also the freedom of association guaranteed by article 22 of the ICCPR.

1.24 Under each of these guarantees, limitations are permissible if they are adopted in pursuit of a legitimate objective, are rationally related to achieving that objective and are a reasonable and proportionate means of pursuing that goal.

1.25 The bill provides that it will be an offence if a person over 18 misrepresents his or her age in online communications either (a) for the purpose of encouraging the recipient to physically meet with the sender (or any other person); or (b) with the intention of committing an offence. It is not a requirement that the

misrepresentation be made to encourage the person to meet with the adult and that this be done with the intention of committing an offence. It would thus be an offence for an 18-year old to represent that he was 17 in order to encourage a 17-year old girl to meet him; or indeed if he misrepresented himself as 21 for the same purpose, in either case without any intention to commit an offence.

1.26 While the two offences would capture the types of serious cases the bill targets, the current formulation may be over-inclusive.

1.27 The committee considers that the bill appears to limit the right to freedom of expression, the right to privacy, and possibly freedom of association, but the committee is of the view that these limitations are permissible as they are aimed at the legitimate objective of seeking to protect children.

1.28 However, the committee intends to write to Senator Xenophon to seek clarification as to why it is necessary (in addition to the offence of misrepresenting one's age with the intent of committing an offence) to have a separate offence of

6 Statement of compatibility, p 5.

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misrepresenting one's age to encourage a child to physically meet the defendant, where there is no intention to commit an offence.

Right to privacy and access to records of online communications

1.29 The statement of compatibility refers to the possibility that a person’s privacy may be encroached on by law enforcement authorities gaining access to the person’s online communication records for the purpose of investigating or prosecuting an alleged offence. The statement notes that this would engage article 17 of the ICCPR but that such information ‘is subject to existing protections and can only be accessed when it is suspected an offence has been committed. This is in line with established legal protections, and as such is considered a permissible limitation.’

1.30 The statement of compatibility does not refer to specific powers to intercept or gain access to online communications which might be applicable. Without this information the committee notes that it is not possible to assess whether any limitations on the right to privacy provided for in other legislation can be concluded to be a reasonable and proportionate restriction on the enjoyment of that right.

Right to be presumed innocent

1.31 Proposed new section 474.14(2) and section 474.42(1) impose an evidential burden on the defendant in a prosecution for an offence under the proposed new section 474.40. This engages the right to be presumed innocent under article 14 of the ICCPR. The statement of compatibility does not explicitly justify this provision. While proposed new section 474.42(1) relates to the defendant's own belief (which can be said to be peculiarly within the defendant's knowledge), section 474.41(2), which requires evidence to be adduced to contradict evidence that the online recipient was represented to be under 18 years of age, will not necessarily be within the defendant's own knowledge. As such, it may be inappropriate to impose an evidential burden on the defendant in this manner.

1.32 The committee intends to write to Senator Xenophon to seek further clarification as to how imposing an evidential burden on the defendant under proposed section 474.41(2) is compatible with the right to be presumed innocent under article 14 of the ICCPR.

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Customs Amendment (Anti-Dumping Commission) Bill 2013 Introduced into the House of Representatives on 6 February 2013 Portfolio: Home Affairs

Summary of committee view

1.33 The committee seeks clarification as to whether the relevant existing powers in Part XVB of the Customs Act 1901, which are to be conferred on the proposed new Commissioner of the Anti-Dumping Commission, are compatible with human rights.

1.34 The committee seeks clarification as to whether provisions which give the Minister the power to terminate the appointment of a part-time Commissioner, if of the opinion that the Commissioner's outside work may conflict with the Commissioner's duties, are compatible with the right to work and the right to a fair hearing.

Overview

1.35 This bill seeks to amend the Customs Act 1901 to establish a new Anti-Dumping Commission and Commissioner within the Australian Customs and Border Protection Services. The bill gives the Commissioner of the Anti-Dumping Commission all of the powers currently available under the Customs Act 1901, particularly Part XVB which deals with the taking of anti-dumping measures. It sets out procedures for the appointment of the Commissioner, the Commissioner's terms and conditions, methods for termination of the appointment of the Commissioner etc. The bill also amends a number of other Acts7 to make reference to the new Commissioner.

Compatibility with human rights

1.36 The bill is accompanied by a self-contained statement of compatibility. The statement notes:

The Bill does not raise any human rights issues. No new powers, functions or duties will be imposed on the Commission or the Commissioner by this legislation. Instead, existing legislative powers contained in Part XVB of the Customs Act 1901 will be transferred from the CEO to the Commissioner.8

1.37 The purpose of the bill is to establish the Anti-Dumping Commission within the Australian Customs and Border Protection Service. The Commission will consist

7 Customs Administration Act 1985; Criminal Code Act 1995; Law Enforcement Integrity Commissioner Act 2006.

8 Statement of compatibility, p 3.

Page 9

of the Anti-Dumping Commissioner and staff assisting the Commissioner (to be made available by the CEO of Customs). The Commissioner is to be given the existing powers and functions of the CEO of Customs which relate to anti-dumping matters. These are contained in Part XVB of the Customs Act 1901.

1.38 In general terms the purpose of Part XVB of the Customs Act 1901 is to establish the framework for:

the taking of anti-dumping measures in respect of goods whose importation into Australia involves a dumping or countervailable subsidisation of those goods that injures, or threatens to injure, Australian industry. Those measures might consist of the publication of a dumping duty notice or a countervailing duty notice or the acceptance of an

undertaking on conditions that make it unnecessary to publish such a notice.9

Powers in existing legislation

1.39 The committee notes, as it has previously, that where an amending Act incorporates by reference the provisions of an existing enactment or introduces a new office-holder into the scheme of an Act who is to exercise powers under that Act, the statement of compatibility should include an analysis of the human rights implications and compatibility of the provisions of that enactment as they are applied or extended by the amendment. This is so, even where the Act being amended or incorporated by reference commenced operation before the commencement of the Human Rights (Parliamentary Scrutiny) Act 2011.

1.40 In this case the statement of compatibility should have provided an analysis of the existing powers in Part XVB of the Customs Act 1901 insofar as these are to be conferred on the new Commissioner of the Anti-Dumping Commission which is to be established by the bill.

1.41 For example, if a notice is published, that may lead to the imposition of the liability to pay a special customs duty on the importation of those goods into Australia. These existing provisions in the Customs Act 1901 may engage the right to a fair hearing under article 14 of the International Covenant on Civil and Political Rights (ICCPR) insofar as the imposition of a special customs duty is concerned.

1.42 The committee intends to write to the Minister to seek clarification as to whether the relevant existing powers in Part XVB of the Customs Act 1901 are compatible with human rights.

9 Customs Act 1901, s 269SM (1).

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Right not to be subject to arbitrary or unlawful interference with privacy

1.43 Proposed new section 269SML requires the Commissioner to give written notice to the Minister disclosing 'all interests, pecuniary or otherwise, that the Commissioner has or acquires and that conflict or could conflict with the proper performance of the Commissioner’s functions.'

1.44 This requirement appears to engage the right to privacy under article 17 of the ICCPR, but the committee considers that, as the duty of disclosure is limited to disclosure of interests relating to the proper performance of the duties of the office, it appears to be a reasonable and proportionate limit of the enjoyment of the right to privacy.

Right to work

1.45 Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides that everyone has the right to work, including the 'opportunity to gain his living by work which he freely chooses or accepts'. Proposed new subsection 269SMM(1) provides that if a Commissioner is employed on a full-time basis, 'he or she must not engage in paid employment outside the duties of his or her office without the Minister’s approval.' Proposed new subsection 269SMM(2) provides that if the Commissioner is appointed on a part-time basis, he or she must not engage in any paid employment that 'in the Minister's opinion, conflicts or may conflict with the proper performance of his or her duties'. Proposed new subparagraphs 269SMO(2)(d) and (e) provide that the Commissioner's appointment may be terminated by the Minister if the Commissioner, appointed on a full time basis, engages in work without approval, or, if appointed on a part-time basis, engages in paid employment that in the Minister's opinion conflicts with the proper performance of duties.

1.46 The committee considers that proposed new subsection 269SMM(2) and subparagraph 269SMO(2)(e), which allow a part-time Commissioner's appointment to be terminated if he or she engages in paid employment that may conflict with the proper performance of his or her duties engages the right to work. Under the provisions as currently drafted there is no requirement for the part-time Commissioner to seek the Minister's approval for paid work, so it is not clear that the part-time Commissioner will know what the Minister's opinion is of the work he or she is undertaking. This would enable the Minister to terminate the appointment of a part-time Commissioner on the basis of other work the Commissioner is undertaking, despite the Commissioner not being aware (as it rests solely on the Minister's opinion) that this outside work was considered objectionable. There is nothing in the bill that provides for merits review of the Minister's decision to terminate the appointment, which would appear to engage article 14(1) of the ICCPR, the right to a fair hearing.

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1.47 The committee considers that proposed new subsection 269SMM(1) and subparagraph 269SMO(2)(d) appear to limit the right to work, but in the context of the bill which creates the office of Commissioner as a full-time position, this restriction can be viewed as a reasonable and proportionate limitation on that right.

1.48 The committee intends to write to the Minister to seek clarification as to whether proposed new subsection 269SMM(2) and subparagraph 269SMO(2)(e) are compatible with the right to work and the right to a fair hearing, as it gives the Minister the power to terminate the appointment of a part-time Commissioner on the basis of the Minister's opinion which may, or may not, have been known to the Commissioner prior to termination of the appointment.

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Export Market Development Grants Amendment Bill 2013 Introduced into the House of Representatives on 13 February 2013 Portfolio: Trade

Summary of committee view

1.49 The committee seeks further information regarding the criteria for determining whether a person is a fit and proper person under proposed new section 79A of the Export Market Development Grants Act 1997 and the compatibility of these measures with the right to privacy and the right to a fair hearing.

Overview

1.50 This bill seeks to align the Export Market Development Grants (EMDG) scheme rules to concentrate the scheme more heavily on East Asian, emerging and frontier markets, in line with Austrade's greater emphasis on these markets, and help achieve savings of $25 million per year. The bill removes the limit on administrative expenditure from the legislation and introduces a power for the Minister to set the limit on administrative expenditure by a determination. It also contains technical and simplification measures.

Compatibility with human rights

1.51 The bill is not accompanied by a self-contained statement of compatibility. Instead, a brief paragraph is included in the explanatory memorandum, which asserts that the bill 'does not raise any human rights issues' and is therefore 'compatible with human rights'.10

1.52 However, one of the amendments proposed by the bill to the Export Market Development Grants Act 1997 is intended to ‘prevent the payment of grants to applicants engaging an EMDG consultant assessed to not be a fit and proper person’.11

1.53 At present, section 87AA of the Export Developments Grants Act 1997 provides that, where the CEO of Austrade has formed the opinion that a person, or an associate of a person, is not a fit and proper person to receive a grant, the grant shall not be payable. Further, where a submitted export development grant application has been prepared by a consultant who has been ‘disqualified’ as a result of a conviction for one of the criminal offences referred to in section 78 of the Export Developments Grants Act 1997, the application is taken not to have been submitted,

10 Explanatory memorandum, p 2.

11 Explanatory memorandum, p 2.

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the applicant is informed of this, and given the opportunity to submit a fresh application.12

1.54 However, there is no such provision where an application is prepared by a consultant who is not a ‘fit and proper person’. The bill amends the law to provide that ‘where a claim is prepared by an EMDG consultant deemed to be not a “fit and proper” person, the claim is taken not to have been made and the applicant is invited to make a fresh application.’13 The bill proposes to insert a new Division 2A in Part 7 of the Act (new sections 79A to 79C). Under new section 79A where the CEO ‘forms the opinion, in accordance with [the] guidelines … that the export market development grants consultant is not a fit and proper person …the application is taken for the purposes of this Act (other than this Division) not to have been made.’ The applicant is to be informed of this and to be given the opportunity to make a fresh application.14 The Minister for Trade and Competitiveness must make guidelines, to be complied with by the CEO of Austrade in forming an opinion, as to whether an EMDG consultant is a fit and proper person.15

1.55 Some indication as to the type of criteria that may be adopted can be derived from the existing Export Market Development Grants (Associate and Fit and Proper Person) Guidelines 2004, made pursuant to paragraph 101(1)(bb) of the Act. These guidelines must be complied with by the CEO of Austrade in forming an opinion whether a person or any such associate of the person is a fit and proper person to receive a grant. Under the Guidelines, the matters to which the CEO of Austrade must have regard include:

• whether the person or associate has been convicted of an offence

under Australian law or a law of a foreign country, other than a spent conviction;16 and

• whether:

17

• a civil penalty or an administrative sanction has been imposed on

the person or associate under Australian law or a law of a foreign country;

• the person or associate is involved in proceedings which may

result in a civil penalty or administrative sanction being imposed

12 Export Developments Grants Act 1997, section 75.

13 Explanatory memorandum, item 10.

14 Proposed new sections 79B and 79C.

15 Proposed new section 101(1)(bc.

16 Guidelines, clause 3.2.

17 Guidelines, clause 3.3.

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on the person or associate under Australian law or a law of a foreign country;

• the person or associate has been the subject of a comment or

assessment, by a court, a statutory or private tribunal, a body responsible for the regulation of an industry or profession that Austrade is satisfied is critical of the person or associate; or

• the person or associate is the subject of other proceedings, under

Australian law or a law of a foreign country, before a court, a statutory or private tribunal or a body responsible for the regulation of an industry or profession in which a comment or assessment critical of the person or associate may be made.

1.56 The CEO of Austrade must also have regard to whether the person or associate has been under insolvency administration,18 has been an officer of or in control of a business that has failed,19 and to any other matter it considers ‘relevant to the personal, commercial, financial or professional status or reputation of the person or associate’.20

1.57 While no details have been provided of the guidelines that will be adopted in the context of the proposed new ‘fit and proper person’ test, it seems likely that they will touch on some or all of the matters referred to in the existing Guidelines. This would give rise to a number of human rights issues.

Right to be free from unlawful or arbitrary interference with one’s privacy and reputation

1.58 Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. [emphasis added]

2. Everyone has the right to the protection of the law against such interference or attacks.

1.59 This right includes protection of the professional and business reputation of a person. The article is understood as meaning that the law must provide protection against attacks on a person’s reputation (for example, through the law of defamation), as well as requiring that any law which permits encroachments on a

18 Guidelines, clause 3.4.

19 Guidelines, clause 3.5.

20 Guidelines, clause 3.6.

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person’s reputation must not only have been adopted in accordance with the regular domestic law-making process, but must also be non-arbitrary. In other words, laws which permit a person’s reputation to be damaged must pursue a legitimate aim, must be necessary to achieve that objective, and must be a proportionate measure, which includes the provision of adequate procedural safeguards such as review rights.

1.60 A finding that a person is not a ‘fit and proper’ person to be involved in the process of preparing an application for a government grant is a finding that is likely to have an adverse impact on a person’s business reputation. This is the case even if the number of people who are aware of the finding is relatively small. Given the existence of an encroachment on the right to reputation, the onus is on the government to identify why the provisions are a necessary and proportionate measure to achieve a legitimate objective (including details of any less intrusive measures that were considered and the procedural and other safeguards that apply in making such a determination).

1.61 Before forming a view on the bill’s compatibility with human rights, the committee intends to write to the Minister for Trade and Competitiveness to ask for the following information:

• an indication of the criteria which are to be applied in the determination of

whether a person is a fit and proper person under the proposed new section 79A of the Export Market Development Grants Act 1997; and

• details of the justification for the provisions relating to the determination

that a person is not a ‘fit and proper person’, in particular how the provisions are a necessary and proportionate measure to achieve a legitimate objective (including details of any less intrusive measures that were considered and the procedural and other safeguards that apply in making such a determination).

1.62 The committee notes that the new Guidelines required to be made under proposed new paragraph 101(1)(bc) are legislative instruments that fall within section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011, and should be accompanied by a full statement of compatibility addressing any further issues to which the Guidelines may give rise.

1.63 The committee also draws the Minister’s attention to the committee's Practice Note 1, which is available on the committee’s website, and the committee's expectation for all bills to be accompanied by a self-contained statement of compatibility.

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Fair Work (Registered Organisations) Amendment (Towards Transparency) Bill 2013 Introduced into the House of Representatives on 11 February 2013 By: Mr Abbott MP

Summary of committee view

1.64 As this bill is identical in terms to the bill introduced into the Senate by Senator Abetz on 27 November 2012, the committee refers to its comments in its First Report of 2013 in relation to that bill.

Overview

1.65 This bill seeks to amend the Fair Work (Registered Organisations) Act 2009 to increase financial transparency and accountability by aligning the relevant obligations of registered organisations (including trade unions) to those that apply to corporations under the Corporations Act 2001, in particular:

• requiring full reports to be lodged with Fair Work Australia;

• making it an offence for officers who do not act in good faith or who misuse

their position;

• increasing penalties for existing offences; and

• making it a criminal offence for an organisation, branch, officer or employee

not to comply with an applicable court order.

Compatibility with human rights

1.66 This bill is identical to the Fair Work (Registered Organisations) Amendment (Towards Transparency) Bill 2012 introduced into the Senate by Senator Abetz on 27 November 2012. The committee's comments on that bill were set out in its First Report of 2013.21

1.67 The explanatory memorandum contains a free-standing statement of compatibility, which states that the bill ‘does not engage any of the applicable rights or freedoms as listed in the Human Rights (Parliamentary Scrutiny) Act 2011’ and is therefore ‘compatible with human rights as it does not raise any human rights issues.’

1.68 As noted in the committee's previous comments on the identical bill introduced by Senator Abetz, insofar as the bill proposes to regulate certain trade

21 See PJCHR, First Report of 2013, p 83.

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unions by imposing duties on union officials and providing that certain conduct constitutes a criminal offence, it engages the right of trade unions in article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

1.69 The committee intends to write to the Leader of the Opposition to draw to his attention the comments raised in relation to the identical bill introduced by Senator Abetz as set out in its First Report of 2013.

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Family Assistance and Other Legislation Amendment Bill 2013 Introduced into the House of Representatives on 13 February 2013 Portfolio: Families, Housing, Community Services and Indigenous Affairs

Summary of committee view

1.70 The committee seeks clarification as to whether the reduction in the baby bonus is likely to have a negative impact on less well-off families and if so, the basis for considering that the reduction is a justifiable limitation of the right to social security in article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Overview

1.71 This bill implements the government’s changes to the baby bonus announced in the 2012-13 Mid-Year Economic and Fiscal Outlook. These changes are intended to maintain support for new parents with the upfront costs of having a baby, while ensuring the family payments system is sustainable into the future.

1.72 Specifically, the amount of baby bonus for any second and subsequent children who come into a family from 1 July 2013 will be reduced from $5,000 to $3,000. However, the baby bonus will continue to be paid at the rate of $5,000 for a family’s first child.

1.73 The bill also makes amendments to ensure family tax benefits are continued until the end of the calendar year that a child finishes school, and extends the qualification for the double orphan pension.

Compatibility with human rights

1.74 The bill is accompanied by self-contained statements of compatibility, each of which addresses the human rights implications of the amendments proposed by the separate schedules to the bill.

1.75 The statements identify a number of rights which are said to be promoted by the bill, in particular the right to social security guaranteed by article 9 of the ICESCR and the rights of children to social security provided for in article 26 of the Convention on the Rights of the Child (CRC). The statement of compatibility also refers to the right to health in article 12 of the ICESCR, as well as to article 20 of the CRC which provides for special protection and assistance to children who are temporarily or permanently deprived of their family environment.

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1.76 In general, the amendments proposed by the bill expand access to benefits, either by making them available to persons to whom they were not previously available, by extending the periods of eligibility for access to benefits by ‘customers’, or by allowing the payment of certain benefits to be brought forward.

Retrogressive measure

1.77 However, in one respect the bill proposes what might be viewed as a retrogressive measure or a limitation, namely insofar as it proposes to reduce the baby bonus from $5,000 to $3,000 for a second or later child (with some exceptions, such as multiple births). The statement of compatibility justifies this in the following terms:

The purpose of the amendments to baby bonus is to maintain support for new parents with the upfront costs of having a baby, while ensuring the family payments system is sustainable into the future. The amendments recognise that families do not face the same upfront costs for a second or later child as they do for their first child, with the more expensive items usually already purchased.22

1.78 The explanatory memorandum further explains:

The saving from this measure will support the future sustainability of the family payments system, which continues to deliver substantial assistance for low and middle-income families - including through paid parental leave, dad and partner pay, the schoolkids bonus and family tax benefit and child care payments.23

1.79 The explanatory memorandum notes that the changes to the baby bonus scheme are estimated to save $505.9 million over four years from 2012-13 to 2015-16.24

1.80 The statement of compatibility does not provide any empirical data to support the claim that the expenses incurred with the arrival of a second or later child will be significantly less than the costs of a first child, making only a general claim to this effect. Further, the baby bonus payment is means-tested, and the reduction of the payment in relation to second and subsequent children may have a more severe effect on those families who are less well-off than on other families whose income is closer to the cut-off amount for eligibility for the payment. It does not appear from the explanatory memorandum or statement of compatibility that any attention was given to the differential impact of the changes on less well-off

22 Statement of compatibility, p 1. 23 Explanatory memorandum, p 1. 24 Explanatory memorandum, p 2.

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families in deciding on the amount of the reduction or the across the board implementation of the change.

1.81 The committee notes that the reduction in the baby bonus was taken with the goal of making available resources to support the payment of other social security payments. However, the committee would have found it helpful to be provided with empirical data to support claims about the impact of the reduction in the baby bonus on families, in particular the impact on less well-off families.

1.82 The committee intends to write to the Minister for Families, Housing, Community Services and Indigenous Affairs to seek clarification as to whether the reduction in the baby bonus is likely to have a negative impact on less well-off families and if so, the basis for considering that the reduction is a justifiable limitation on the right to social security in article 9 of the ICESCR.

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Higher Education Support Amendment (Asian Century) Bill 2013 Introduced into the House of Representatives on 14 February 2013 Portfolio: Tertiary Education, Skills, Science and Research

Summary of committee view

1.83 The committee seeks an explanation as to why the bill treats students studying in different overseas countries differently and seeks clarification as how such differential treatment can be seen to be reasonable and objective.

Overview

1.84 This bill seeks to amend the Higher Education Support Act 2003 to expand eligibility to OS-HELP (a loan program to assist eligible students to pay expenses associated with undertaking overseas study as part of their higher education) and provide incentives for university students to undertake part of their course of study in Asia.

1.85 In particular, the bill expands eligibility by applying it to postgraduate students, reducing the amount of study load needed on completion of the study outside Australia and removes the requirement that the student be enrolled at certain universities (allowing students to be eligible when undertaking activities such as clinical placements and internships).

1.86 The bill increases the maximum OS-HELP loan amount for students studying in Asia to $7,500, which is $1,250 more than studies in non-Asian destinations,25 and provides a supplementary loan of up to $1,000 for students undertaking intensive study in an Asian language in preparation for overseas study in Asia. The bill makes no such provision in relation to students undertaking the study of other foreign languages prior to going overseas to undertake studies for which OS-HELP loans are available.

Compatibility with human rights

1.87 The bill is accompanied by a self-contained statement of compatibility. The statement focuses on the bill’s engagement with the right to education, but does not address equality and non-discrimination issues to which the bill gives rise.

25 Proposed new section 121-5 (1) of the Higher Education Support Act 2003, to be inserted by clause 15 of the bill.

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1.88 The statement of compatibility notes that the bill promotes enjoyment of the right to education contained in article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR):

By expanding eligibility for the OS-HELP scheme and increasing assistance for students undertaking part of their course of study overseas, the Bill will provide further incentive for undertaking higher education overseas, particularly in Asia. This will enhance Australian students’ access to education, including the kind of education students can receive as the Bill will allow students to undertake clinical placements and internships overseas.26

1.89 The statement also notes that ‘the maximum loan amounts for OS-HELP are capped having regard to reasonable, proportionate and necessary constraints on public spending.’27

1.90 Article 13 of ICESCR (the right to education) provides in part:

The States Parties to the present Covenant recognize the right of everyone to education [and] recognize that, with a view to achieving the full realization of this right:

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education …

Equality and non-discrimination

1.91 This bill draws a distinction between students who wish to undertake study in ‘Asia’ and those who wish to undertake study overseas in countries which are not in Asia. Those wishing to study in Asia may borrow $1,250 more than students wishing to study elsewhere and may also receive an additional $1,000 to support Asian language study in Australia as preparation for their period of study overseas.

1.92 The bill does not contain any definition of ‘Asia’ or ‘Asian language’, and none is contained in the Higher Education Support Act 2003. The bill contemplates that guidelines may be made specifying ‘whether overseas study undertaken at a particular place is undertaken in Asia.’28 There are a number of possible understandings of the term. For example, in the government’s Australia in the Asian Century White Paper (2012), the Glossary refers to a number of different

26 Statement of compatibility, p 4.

27 Ibid, p 5.

28 Proposed new section 121-5 (2) of the Higher Education Support Act 2003, to be inserted by clause 15 of the bill.

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understandings of Asia. Some references to Asia are limited to the countries of South Asia, the ASEAN area, and East Asia; others include some Central Asian countries; others include a number of countries in the Middle East; and one grouping even includes New Zealand.29 In contrast, the White Paper identifies for certain purposes ‘priority Asian languages’, which it identifies as Chinese (Mandarin), Hindi, Indonesian and Japanese.30

1.93 The differential treatment of those students studying in ‘Asia’ and those studying elsewhere overseas appears to engage article 2(2) of the ICESCR which provides:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (emphasis added)

1.94 The UN Committee on Economic, Social and Cultural Rights has stated in its General Comment No 20 (2009) that under the ICESCR:

[D]iscrimination constitutes any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights.31

1.95 The Committee has also indicated the nature of the analysis required under the ICECSR in deciding whether any differential treatment is discriminatory:

Differential treatment based on prohibited grounds will be viewed as discriminatory unless the justification for differentiation is reasonable and objective. This will include an assessment as to whether the aim and effects of the measures or omissions are legitimate, compatible with the nature of the Covenant rights and solely for the purpose of promoting the general welfare in a democratic society. In addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realized and the measures or omissions and their effects. A failure to remove differential treatment on the basis of a lack of available resources is not an objective and reasonable justification unless every effort has been made to use all resources that are at the State party’s disposition in

29 Australian Government, Australia in the Asian Century - White Paper, October 2012, p 290-291.

30 Ibid, p 16.

31 CESCR, General Comment No 20, para 7.

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an effort to address and eliminate the discrimination, as a matter of priority.32

1.96 The different groups of students, depending on where they undertake study, arguably fall within the category of ‘other status’ under article 2(2) of the ICESCR.33 The differential treatment of two groups whose members are apparently in the same situation may therefore amount to discrimination in the enjoyment of the right to education guaranteed by article 13. Even though the government may not be obliged to provide access to loans or other financial support for students to prepare for or undertake overseas study, once it does so, it cannot discriminate between different categories of students in providing access to these benefits unless the justification for differentiation is reasonable and objective.

1.97 The statement of compatibility states that the purpose of the differential treatment is to provide additional incentives 'for undertaking higher education overseas, particularly in Asia'.34 However, the importance of this goal and justification as to why support for students studying in other overseas countries is not articulated.35

1.98 The committee appreciates that against the background of the Australia in the Asian Century White Paper, an important purpose of the bill is to encourage engagement with Asia by providing preferential support for overseas study in Asia. However, the committee’s analysis of the bill would have been facilitated by a clearer articulation of the bill's specific goals and connection between these goals and the approach taken in the bill. This would have assisted with an assessment of whether the differential treatment of the various groups of students studying overseas is discriminatory or not.

1.99 The committee intends to write to ask the Minister to explain why students studying in different overseas countries are to be treated differently and to ask for a justification as to how such differential treatment can be seen to be reasonable and objective.

32 Ibid, para 13.

33 See the general discussion in CESCR, General Comment No 20, paras 27-35 (the categories discussed there are not exhaustive of the category of ‘other status’).

34 Statement of compatibility, p 4.

35 The White Paper also notes that Australia’s engagement with certain Latin American countries is a matter of potential significance to the national interest and there will be further inquiries to determine whether there are benefits in Australia’s joining the Pacific Alliance within which ‘Australia could form a connecting rod between open trading countries of Latin America and the markets of Asia that might facilitate an open trade agreement.’ Facility in and familiarity with the principal languages of Latin America would appear to be important to the performance of any such role.

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Higher Education Support Amendment (Further Streamlining and Other Measures) Bill 2013 Introduced into the House of Representatives on 14 February 2013 Portfolio: Tertiary Education, Skills, Science and Research

Summary of committee view

1.100 The committee seeks further clarification as to how students enrolled with education providers who have their approval revoked will be protected and seeks further details of the types of information that might be sought from tertiary education regulators by the Minister and what safeguards are in place, to protect the right to privacy.

Overview

1.101 This bill seeks to amend the Higher Education Support Act 2003 to implement recommendations arising from the Post Implementation Review of the VET FEE-HELP Scheme Final Report September 2011. In particular, the bill:

• requires the Minister to revoke a body's approval as a higher education

or vocational, education and training (VET) provider on specified grounds, including if:

• the body is no longer registered;

• a winding up order has been made against the body;

• enables an educational provider's approval to be amended to take

account of a change in the business entity name;

• enables the Minister to give a compliance notice to a higher education

or VET provider if satisfied that the provider may not be complying with relevant legislation, guidelines or conditions. Failure to comply with a notice is a breach of a quality and accountability requirement which may lead to suspension or revocation of the provider's approval;

• updates the calculation of the Higher Education Loan Program (HELP)

repayment thresholds to take account of the new biannual publication schedule of average weekly earnings data; and

• enhances the ability of the Minister to seek information from the

relevant tertiary regulator in relation to a higher education or VET provider for the purposes of administering or enforcing compliance with relevant legislation, guidelines or conditions.

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Compatibility with human rights

1.102 The bill is accompanied by a self-contained statement of compatibility which identifies the two rights principally engaged by the bill; the right to education and the right to privacy.

Right to education

1.103 The statement of compatibility notes that the bill promotes the right to education guaranteed by article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as it improves procedures for ensuring that higher education and VET providers continue to provide education that corresponds to recognised standards. In particular, the statement provides that the bill enables the government 'to identify and respond to low quality providers in a timely manner, thereby safeguarding continued access to high quality education from higher education providers and VET providers.’36 To this extent the bill may be regarded as contributing to the fulfilment of the obligation under article 12(2)(c) and (d) of the ICECSR to promote continued access to higher education and technical and vocational education.

1.104 The bill includes a power to revoke a provider’s registration. This could have an adverse impact on students enrolled in programs offered by that provider, which may result in the student not being able to continue their studies at that institution. The statement of compatibility notes:

In circumstances where a provider’s approval is revoked, to ensure the provider’s students can continue their course of education without interruption, the provider’s existing students will be protected by tuition assurance requirements outlined in the Act. Under tuition assurance, students will be placed in a comparable course, or provided with a refund of any upfront tuition fees they may have paid.37

1.105 However, the statement of compatibility does not refer to the specific provisions of the Higher Education Support Act 2003 which would bring this result about. It appears that the relevant provisions include section 36-24A(2) of that Act. The committee considers it important to ensure that the impact on the educational opportunities of students enrolled in programs with providers that are subject to compliance action or whose registration is revoked be minimised as far as possible. Although the statement of compatibility states in general terms that this will occur, it does not explain in detail how the provisions of the Higher Education Support Act 2003 as amended by the bill would bring about this result.

36 Statement of compatibility, p 2.

37 Statement of compatibility, p 2.

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1.106 The committee intends to write to the Minister to seek clarification as to how students enrolled with providers who have their approval revoked will be protected (including how the refund of tuition fees will be ensured when a winding-up order has been made against a provider which has led to the revocation of its approval as a higher education or VET provider).

Protection against arbitrary interference with privacy

1.107 The statement of compatibility also notes that the bill engages article 17 of the International Covenant on Civil and Political Rights (ICCPR). It states:

The Bill protects against arbitrary interference of privacy by ensuring that information able to be disclosed and used under the Act is for specified purposes only. In particular, this measure allows the Minister to seek information from the relevant tertiary education regulators for the limited purposes of administering and enforcing providers’ compliance with the Act, the regulations, the guidelines and any conditions imposed on a provider’s approval. These amendments will enable the Government to make more timely and accurate assessments of a provider’s compliance status, thereby safeguarding the continued education of students who have undertaken courses of education with providers approved under the Act.

The permitted uses of information able to be sought from the relevant tertiary education regulators will improve decision-making around provider application and administrative compliance for FEE-HELP and VET FEE-HELP.38

1.108 However, the statement of compatibility does not provide any detail as to which provisions of the bill it is referring to and what information it relates to. The committee assumes this refers to the amendments in Schedule 5 to the bill which introduce a new section 182-1 into the Higher Education Support Act 2003 to allow the Minister to seek information relating to a higher education or VET provider from the regulator for the purposes of administering or enforcing compliance with the Act, guidelines or a condition imposed on the provider. The explanatory memorandum states that these amendments amalgamate eight existing provisions into one, and simply states that it allows the Minister to 'seek information relating to a higher education or VET provider'.39

1.109 The committee assumes that the type of information that might be sought might include details about student progress, complaints made by students and other similar matters.

38 Statement of compatibility, p 2.

39 Explanatory memorandum, Notes on clauses, Schedule 5.

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1.110 The committee intends to write to the Minister to seek further details of the types of information that might be sought under the amended legislation which would be covered by article 17 of the ICCPR, and what safeguards are in place, whether under the Higher Education Support Act 2003 or other relevant legislation, to protect the right to privacy.

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Marine Safety (Domestic Commercial Vessel) National Law Amendment Bill 2013 Introduced into the House of Representatives on 6 February 2013 Portfolio: Infrastructure and Transport

Summary of committee view

1.111 This bill was introduced on 6 February 2013 into the House of

Representatives, and passed both Houses of Parliament on 28 February 2013. As the bill has now progressed through both houses the committee has taken the opportunity to make a number of broader comments on the primary legislation this bill seeks to amend and to look at national cooperative schemes more broadly.

1.112 The committee considers that the technical amendments proposed by the bill do not of themselves give rise directly to human rights concerns.

1.113 However, the committee considers that the amendments relate to provisions in the principal Act which give rise to human rights concerns and which were not the subject of a compatibility assessment by the committee when the Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 was introduced into the Parliament.

Overview

1.114 This bill seeks to amend the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 to correct a drafting error to substitute the ‘National Regulator’ for ‘the Commonwealth’. This is intended to ensure that the Australian Maritime Safety Authority, as the national regulator, is able to reimburse the states and the Northern Territory with amounts collected for infringement notices (instead of the revenue from the infringement notices being received by the Commonwealth as currently drafted).40

Compatibility with human rights

1.115 The bill is accompanied by a brief statement of compatibility which states that the amendments do not engage any human rights and the bill is therefore compatible with human rights.

40 Statement of compatibility, p 2.

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Review of the principal Act for compatibility with human rights

1.116 The principal Act, the Marine Safety (Domestic Commercial Vessel) National Law Act 2012, was introduced into the Parliament on 24 May 2012. That Act, and the related Marine Safety (Domestic Commercial Vessel) National Law (Consequential Amendments) Act 2012 received royal assent on 12 August 2012.

1.117 The explanatory memorandum to the principal Act noted:

This Bill represents the third and final component of the maritime reform package. As a key component of the National System for commercial vessel safety that will commence on 1 January 2013, this Bill introduces a new National Law for the regulation of domestic commercial vessel safety and establishes a National Marine Safety Regulator (the National Regulator). The policy basis for the National Law derives from the Council of Australian Governments (COAG) Inter-Governmental Agreement (IGA) on Commercial Vessel Safety Reforms, signed on 19 August 2011. The IGA also determined that the Australian Maritime Safety Authority (AMSA) will be the National Regulator.

1.118 The explanatory memorandum also noted:

This Bill has been developed with the State and Territory jurisdictions to implement the decision of COAG on 19 August 2011 to create a single National Law to regulate the safety of all commercial vessel operations in Australian waters and to establish a single National Regulator for commercial vessel safety from 1 January 2013.

Extensive consultation has been undertaken on the development of the Bill with the states and territories, including through the Standing Council on Transport and Infrastructure (SCOTI), the Transport and Infrastructure Senior Officials Committee (TISOC), the Maritime Agencies Forum, the National Marine Safety Committee, seven workshops with jurisdiction officials and numerous discussions and correspondence with State and Territory agency contacts.

1.119 It also noted that there had been extensive consultation with industry.

1.120 The Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 included a statement of compatibility in the explanatory memorandum to the bill41 which addressed a number of relevant rights issues. However, as the bill was introduced before the committee had commenced its work of examining bills,42 it did

41 Marine Safety (Domestic Commercial Vessel) National Law Bill 2012, Explanatory memorandum, pp 7-9.

42 The committee only began its work of examining bills introduced from 18 June 2012.

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not have the opportunity to comment on the provisions of the bill (which is now the principal Act).

1.121 While the minor amendments proposed by this bill do not give rise to any human rights concerns, the committee considers it appropriate to take this opportunity to review aspects of the principal Act. The committee has taken the view that the introduction of amendments to an Act that has not been the subject of review by the committee may be an appropriate occasion to review the compatibility of the principal Act with human rights. In this regard the committee recalls that one of the functions conferred on it is ‘to examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue’, in addition to its functions of examining bills and legislative instruments and any matters referred to it by the Attorney-General.43

1.122 In this case the committee considers that the Marine Safety (Domestic Commercial Vessel) National Law Bill 2012 gives rise to human rights concerns on two levels: (a) the adequacy of the procedures for ensuring human rights compatibility assessments in the negotiation and adoption of cooperative or uniform national schemes and implementing legislation; and (b) specific provisions of the Act which may encroach on rights and which were not adequately justified in the explanatory memorandum or statement of compatibility.

Ensuring human rights compatibility in the context of national cooperative or uniform scheme

1.123 A number of areas of activity are regulated under national schemes resulting from intergovernmental agreements. The legislative form which these schemes take varies: in some cases the legislation of one jurisdiction is adopted by the legislatures of other jurisdictions; in others, each jurisdiction may commit itself to enacting a uniform law in terms agreed at the intergovernmental level; and there are other variants. Sometimes these arrangements involve the agreement of the parties that changes to the template law will be automatically adopted in the various jurisdictions.

1.124 These types of arrangements give rise to legislative scrutiny concerns, as there may be no formal agreement or procedure in place to ensure that cooperative national schemes and implementing legislation are scrutinised for human rights compatibility during their development and before they are finalised at the intergovernmental level. Following the conclusion of an intergovernmental agreement there may be a very limited, or no, possibility for a legislature which has the function of assessing human rights compatibility to do so at a time when such consideration may influence the final content of the legislation. While it may be

43 See section 7 of the Human Rights (Parliamentary Scrutiny) Act 2011.

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assumed that officials from jurisdictions with specific rights scrutiny bodies would raise these issues during negotiations (as may others), it does not appear there is any generally agreed formal requirement that any measures or legislation adopted as a result of intergovernmental agreements comply with human rights.

1.125 In addition, agreed national legislation or subsequent amendments adopted pursuant to the arrangements may not be subject to the regular human rights scrutiny processes of the various legislatures. In any event, by that stage there may be limited opportunities for an individual legislature to amend the terms of the law as applied in its jurisdiction to address human rights concerns, without undermining the object of harmonisation or the terms of the intergovernmental agreement.

1.126 This concern is not a new one: scrutiny committees of various Parliaments drew attention to it some time ago. In 1996, representatives of the scrutiny committees of legislatures throughout Australia explored the issue in depth in a position paper.44 In the Foreword to that paper the chairs of the ACT and NSW scrutiny committees put the position in these terms:

Effective parliamentary scrutiny has been threatened because of the rise of national schemes of legislation which emerge from such bodies as the Council of Australian Governments (COAG) and various Ministerial Councils. Expressed at its simplest level, such councils agree to uniform legislation, usually in closed session, and then proceed through the participating Ministers to sponsor Bills through individual Parliaments, often with the message that the Bills cannot be amended for fear of destroying their uniform nature.45

1.127 This issue has been raised again following the adoption of statutory human rights Acts in the Australian Capital Territory and Victoria, and the commencement of the Human Rights (Parliamentary Scrutiny) Act 2011. The issue has been addressed by the Scrutiny of Acts and Regulations Committee of the Victorian Parliament, which has raised concerns about the extent to which scrutiny of bills under the Victorian Charter of Human Rights and Responsibilities Act 2006 may be limited or effectively excluded in the case of cooperative national schemes.46

44 Scrutiny of National Schemes of Legislation: Position Paper by the Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia (1996), www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=scrutiny/nats chem/index.htm

45 Ibid, Foreword, p 6.

46 See, eg, Scrutiny of Acts and Regulations Committee, Water Legislation Amendment (Water Infrastructure Charges) Bill 2011 (Alert Digest No 12 of 2011) [2011] VicSARCAD 66 (25 October 2011) and Practice Note No 3 (26 July 2010).

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1.128 In the case of the Intergovernmental Agreement (IGA) which underpins the present bill,47 it does not appear from the IGA, the Discussion Paper on the subject,48 or the Report of the Consultation on that paper49 that the question of compatibility with human rights was an integral part of the design of the legislation. The statement of compatibility states that so far as the criminal offences included in the bill are concerned:

The National Law Bill has been drafted consistently with the principles stipulated in The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) developed by the Criminal Justice Division of the Attorney-General‘s Department.50

1.129 The committee has previously noted that while compliance with this Guide is good practice, it does not of itself necessarily establish compatibility: ultimately an individual assessment of each provision in its particular context will normally be required in order to reach a conclusion on compatibility.

1.130 The committee considers that the issue of compatibility with human rights should be an integral part of the development of any national scheme. Draft legislation prepared under such schemes should be accompanied by a human rights analysis, both during intergovernmental negotiations and during any public consultations that are undertaken. The committee also considers it appropriate that, where any amendments to a scheme or uniform legislation are adopted by intergovernmental agreement, this be done only after a human rights compatibility analysis has been prepared and considered by decision makers. This is consistent with Australia's obligations under international law. These obligations require the Commonwealth government, as well as the states and territories as part of the federal system, to ensure that obligations under human rights treaties are fulfilled throughout the country and by all levels of government.

1.131 The committee intends to write to the Minister for Infrastructure and Transport, together with the Prime Minister, to request information on whether existing procedures or agreements relating to the negotiation of intergovernmental

47 Intergovernmental Agreement on Commercial Vessel Safety Reform, 2011, http://www.coag.gov.au/node/53

48 Discussion Paper, Marine Safety (Domestic Commercial Vessel) National Law Bill 2012, December 2011, http://www.nationalsystem.amsa.gov.au/documents/Discussion_Paper_National_Law_Bill_2 012.pdf

49 Marine Safety (Domestic Commercial Vessel) National Law Bill - Consultation Feedback Report, May 2012, http://www.nationalsystem.amsa.gov.au/documents/National_Law_Bill_Consultation_Feedb ack_Report.pdf

50 Statement of compatibility, p 7.

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agreements ensure that compatibility with human rights is an integral and explicit part of the design of such schemes and implementing legislation. To the extent that such procedures or agreements do not currently exist, the committee urges the government to ensure that human rights compatibility is an integral and explicit part of the development of all national cooperative schemes and their implementation.

Specific provisions which give rise to human rights issues

Enforcement powers - right to privacy

1.132 The statement of compatibility to the 2012 bill noted:

Part 6 of the National Law Bill contains provisions on enforcement powers that enable Marine Safety Inspectors (inspectors) appointed by the National Regulator (the Australian Maritime Safety Authority) to detain, board, inspect and search domestic commercial vessels; and gather information and seize things in relation to domestic commercial vessel safety regulation and compliance.

1.133 The National Law Bill has been drafted consistently with the principles stipulated in The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) developed by the Criminal Justice Division of the Attorney-General‘s Department.

1.134 The statement of compatibility dealt with a number of enforcement powers that may involve encroachments on the right to privacy (article 17 of the International Covenant on Civil and Political Rights (ICCPR)) and maintained that any limitation on the enjoyment of that right were reasonable and proportionate measures for the pursuit of legitimate objectives.

1.135 The statement of compatibility did not address the issue of the compatibility of a number of strict liability offences created by the bill. However, there is an analysis of these issues elsewhere in the explanatory memorandum.51

1.136 The committee recognises that the statement of compatibility in question was prepared before the committee had indicated its requirements for statements of compatibility. As the committee has subsequently indicated in its Practice Note 1, a statement of compatibility should be self-contained, and should include a discussion of issues such as the appropriateness of strict liability offences, the appropriate level of penalties and reverse onus provisions.

1.137 The creation of the various strict liability offences is justified in general terms. The explanatory memorandum also discusses in general terms the

51 Explanatory memorandum, p 12.

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appropriateness of the level of penalties and the imposition of burdens of proof on the defendant. None of these issues are discussed with explicit reference to the relevant rights contained in the ICCPR, in particular article 14 (right to a fair hearing). The committee notes that in order for it to carry out an assessment of compatibility with human rights for specific offences, levels of penalties and reverse burden provisions, the statement of compatibility should provide an individualised analysis of each provision in light of the relevant treaty standards.

1.138 In addition to these issues, there are a number of human rights issues to which the Act gives rise which were not addressed in the explanatory memorandum.

Right not to be subject to unlawful or arbitrary interference with one’s reputation/ right to freedom of expression

1.139 Section 158 of the principal Act provides that ‘if a court finds a person (the offender) guilty of an offence against this Law, whether or not the court convicts the offender of the offence’, the court may make an adverse publicity order. The court may make an order either on its own initiative or on the application of the person prosecuting the offence. The order may require the offender:

(a) to take either or both of the following actions within the period specified in the order:

(i) to publicise, in the way specified in the order, the offence, its consequences, the penalty imposed and any other related matter;

(ii) to notify a specified person or specified class of persons, in the way specified in the order, of the offence, its consequences, the penalty imposed and any other related matter; and

(b) to give the National Regulator, within 7 days after the end of the period specified in the order, evidence that the action or actions were taken by the offender in accordance with the order.

1.140 An order may be made in addition to any other penalty imposed or any other action that may be taken in relation to the offence.

1.141 The explanatory memorandum explains the provision as follows:

Adverse publicity orders are part of the suite of compliance and enforcement tools available to the National Regulator. They involve the publication of an offender‘s conviction and other relevant facts (such as the consequences of the offence), to either a specific group of people or to the general public. Adverse publicity can be effective in ensuring compliance with the National Law because corporations generally view their reputation as a valuable asset. This approach to enforcement and compliance has been adopted in several Australian jurisdictions and is a feature of Work Health & Safety Act 2010 (Section 236), the Competition

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and Consumer Act 2010 (Section 86D) and the Victorian Marine Safety Bill 2010 (Section 173).

1.142 Neither the explanatory memorandum nor the statement of compatibility addresses the human rights issues to which the section gives rise. The section appears to operate both in relation to natural persons and corporate entities, and encroaches on the right of a person not to have his or her reputation unlawfully or arbitrarily interfered with, which is guaranteed under article 17 of the ICCPR. The reference to the existence of similar provisions in existing legislation is not determinative of compatibility; the purpose of the Human Rights (Parliamentary Scrutiny) Act 2011 is to ensure that established practices are reviewed in the light of applicable human rights standards.

1.143 In addition, it cannot be assumed that if a provision is compatible with human rights in the context of one piece of legislation, a substantially similar provision will necessarily be compatible in another statutory context. Where a statutory provision imposes a limit on the enjoyment of a human right, the permissibility of that limitation (its rational connection to the goal, reasonableness and proportionality) must be assessed in the context of the specific purpose of the legislation concerned and the context in which it operates.52

1.144 The requirement that the offender publicise the fact of their being found guilty or convicted of an offence also engages the right of a person to freedom of expression guaranteed by article 19 of the ICCPR. This right includes the freedom not to speak and to protection against from being compelled by a public authority to make particular statements.

1.145 In order to justify limitations on the enjoyment of the rights guaranteed by articles 17 and article 19, it is necessary for the government to clearly identify a legitimate objective for which the measures are being adopted and demonstrate that it is a necessary and proportionate means of achieving it. This also requires considering less restrictive alternatives, and should include reference to whether less restrictive alternatives were considered and why they were not adopted.

1.146 The committee intends to write to the Minister to seek clarification on the question of whether the power to make adverse publicity orders conferred by section 158 of the Marine Safety (Domestic Commercial Vessels) Act 2012 is consistent with the right not to have one’s reputation subject to unlawful attack as guaranteed by article 17 of the ICCPR and freedom of expression guaranteed by article 19(2) of the ICCPR.

52 See also the committee’s comments on the application of standard provisions to new contexts in relation to the Regulatory Powers (Standard Provisions) Bill 2012: PJCHR, First Report of 2013, pp 52-53.

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Migration Amendment (Reinstatement of Temporary Protection Visas) Bill 2013 Introduced into the House of Representatives on 11 February 2013 By: Mr Morrison MP

Migration Amendment (Reinstatement of Temporary Protection Visas) Bill 2013 [No.2] Introduced into the Senate on 28 February 2013 By: Senator Cash

Summary of committee view

1.147 The committee seeks clarification on how the bills are compatible with the right to family life; the right to freedom of movement; the right to health; the right to social security and an adequate standard of living; the rights of children as guaranteed by the Convention on the Rights of the Child; and the guarantee of the non-discriminatory enjoyment of these rights.

Overview

1.148 These two bills (which are in identical terms) seek to amend the Migration Act 1958 to introduce two new categories of protection visas:

• Temporary Protection (Offshore Entry Visa): this visa may be granted to

a person recognised to be a refugee, where Australia is the first country the person could seek protection from. The visa would be valid for no longer than three years, and a permanent visa could not be granted

unless the Minister personally considered it to be in the public interest to grant a permanent visa;

• Temporary Protection (Secondary Movement Offshore Entry Visa): this

visa may be granted to a person recognised to be a refugee, where the person could have sought protection from another country but did not do so. The visa would be valid for no longer than three years and a person on such a visa would never be entitled to a permanent visa.

1.149 Under both types of visas, family reunion would not be permitted and the visa holder would not be able to leave and re-enter Australia while holding such a visa. The holder of the visa would be entitled to engage in work and access social security benefits, but social security benefits would only be available if the visa holder participated in 'a mutual obligation program', to be prescribed by regulations.

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Compatibility with human rights

1.150 The bills are accompanied by self-contained statements of compatibility, which state in general terms that the bills are consistent with human rights as they enhance the human rights of those fleeing persecution by facilitating the provision of temporary safe haven (through a temporary protection visa (TPV)). However, the net effect of the bills would appear to reduce the rights that such persons presently enjoy rather than enhance them. This lesser level of protection is justified in the statements of compatibility on the grounds that this level of protection is nonetheless consistent with Australia’s obligations as a party to the 1951 Refugee Convention and 1967 Protocol to that Convention.

1.151 The committee has concerns whether the proposed reintroduction of temporary protection visas as proposed by the bills is fully consistent with Australia's obligations under the Refugees Convention and Protocol. In this report the committee focuses on the issues of compatibility with the human rights explicitly guaranteed by the seven human rights treaties listed in the Human Rights (Parliamentary Scrutiny) Act 2011. However, it notes that the provisions of the Refugee Convention and Protocol may be relevant to the interpretation of the guarantees contained in those treaties.

Right to family life

1.152 Under the provisions proposed by the bills, a temporary protection visa would be subject to a number of conditions, including that 'family reunion is not permitted under the visa'.53 This can be contrasted with the right to family reunion provided for under other categories of visas granted to refugees and humanitarian entrants. Articles 17 and 23 of the International Covenant on Civil and Political Rights (ICCPR), article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and articles 8 and 10 of the Convention on the Rights of the Child (among other provisions) guarantee various aspects of the right to family life.

1.153 If limitations on enjoyment of the right to a family life are to be imposed, any such limitation must be shown to be a reasonable and proportionate restriction which is rationally adapted to achieving a legitimate objective. In the context of the Convention on the Rights of the Child, it must also be shown that the best interests of the child are ‘a primary consideration’. The right to enjoy such rights must also be guaranteed equally to all without discrimination, under articles 2(1) and 26 of the ICCPR and article 2(2) of the ICESCR. The guarantee of non-discriminatory enjoyment requires the demonstration of an objective and reasonable basis for any differential treatment of similarly situated persons, in this case between different categories of refugees to whom Australia owes protection obligations.

53 See proposed new section 76D(1)(c) and 76H(1)(c).

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1.154 A general policy denying the possibility of family reunion raises issues about reasonableness and proportionality and consistency with the obligation to make the best interests of the child a primary consideration.

Liberty of movement and non-discrimination

1.155 The bills provide that a person granted a TPV will not be permitted to leave and re-enter Australia while holding the visa. Article 12(2) and (3) of the ICCPR provides:

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

1.156 Although the right in article 12(2) may not independently guarantee a person who is not a citizen or permanent resident the right to leave and then return to Australia, a person holding a TPV is entitled to non-discriminatory treatment in the enjoyment of the right to leave Australia. Under article 2(1) of the ICCPR, Australia has undertaken to ‘ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ The status of being a TPV-holder would fall within the term ‘other status’ in article 2(1) (and also in article 26) of the ICCPR.54

1.157 International human rights law requires that different treatment of people in similar situations be justified by objective and reasonable criteria; it must be a reasonable and proportionate measure that rationally pursues an objective that is legitimate under the ICCPR. Permitting other recognised refugees (for example those who arrived with a visa before seeking asylum) or other visa holders to leave and return to Australia while denying this right to TPV holders raises issues of discrimination on the ground of ‘other status’.

Right to social security

1.158 Proposed new sections 76D(2) and 76H(2) provide that the regulations may prescribe that TPV holders must participate in a mutual obligations program in order

54 To the extent that there is different treatment of this category of refugees compared to others similarly situated in relation to economic, social and cultural rights, the corresponding guarantee of non-discrimination in the enjoyment of those rights contained in article 2(2) of the International Covenant on Economic, Social and Cultural Rights would also apply.

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to access social security benefits, which would be specified in regulations. No details are given of the nature of the program envisaged, nor are any reasons offered for the restriction on the right of access to social security by these means. In imposing such restrictions, the bill engages the right to social security and the right to an adequate standard of living as guaranteed by articles 9 and 11 of the ICESCR. The bill also engages article 2(2) of the ICESCR, which guarantees the non-discriminatory enjoyment of those rights, and may also engage article 26 of the Convention on the Rights of the Child, which guarantees children the right to social security.

1.159 While article 4 of the ICESCR permits reasonable limitations on the enjoyment of the rights in articles 9 and 11, any limitations must not be discriminatory as between classes of similarly situated asylum-seekers to whom Australia owes protection obligations. In assessing the legitimacy of any restrictions or differential treatment relating to the right to social security, Australia’s obligations under article 24 of the Refugee Convention are relevant. Article 24 adopts as its starting point equality of treatment in relation to social security. The statement of compatibility offers no justification for the limitations and differential treatment proposed by the bill.

Right to health

1.160 The bills also engage the right to the highest attainable standard of health guaranteed by article 12 of the ICESCR and article 24 of the Convention on the Rights of the Child. Under the previous TPV regime, commentators and studies indicated that the uncertainty involved in living under a TPV regime, especially when combined with conditions preventing family reunion and the impossibility of visiting family living outside Australia, may have significantly adverse effects on the mental health of TPV holders and their families.

1.161 The bills may also engage article 39 of the Convention on the Rights of the Child, which provides that Australia ‘take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts.’

1.162 The statements of compatibility make no reference to these issues, and contain no justification for the potential limitations on the enjoyment of the right to health (which includes the right to mental health).

1.163 The committee intends to write to Mr Morrison MP and Senator Cash to ask them to clarify how the bills are compatible with the following rights:

(a) the right to family life;

(b) the right to freedom of movement;

(c) the right to health;

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(d) the right to social security and an adequate standard of living;

(e) the rights of children as guaranteed by the Convention on the Rights of the Child; and

(f) the guarantee of the non-discriminatory enjoyment of these rights.

1.164 The committee expects that in relation to each right an explanation will be provided that sets out:

• whether the limitation on the right is aimed at achieving a legitimate

objective;

• whether the limitation on the right is rationally connected to

achieving that objective; and

• whether the limitation on the right is reasonable and proportionate to

achieving the objective, and whether any less restrictive alternatives could achieve that objective.

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Royal Commissions Amendment Bill 2013 Introduced into the House of Representatives on 13 February 2013 Portfolio: Prime Minister

Summary of committee view

1.165 The committee seeks clarification regarding:

(a) the compatibility of the contempt powers in section 6O of the Royal Commissions Act 1902 with the right to a fair hearing in article 14 of the International Covenant on Civil and Political Rights (ICCPR); and

(b) the compatibility of the arrest powers in section 6B of the Royal Commissions Act 1902 with the prohibition against arbitrary detention in article 9(1) of the ICCPR.

Overview

1.166 This bill proposes a number of amendments to the Royal Commissions Act 1902 in order to facilitate the work of the Royal Commission into Institutional Reponses to Child Sexual Abuse (the Commission). This Royal Commission was established by Letters Patent issued by the Governor-General on 11 January 201355 and has been enjoined ‘to inquire into institutional responses to allegations and incidents of child sexual abuse and related matters’, detailed further in the Letters Patent. The Letters Patent specifically refer to the fact that Australia has undertaken ‘international obligations to take all appropriate legislative, administrative, social and educational measures to protect children from sexual abuse and other forms of abuse, including measures for the prevention, identification, reporting, referral, investigation, treatment and follow up of incidents of child abuse’. This language is drawn in part from article 19 of the Convention on the Rights of the Child.

1.167 The bill proposes two main amendments to the Royal Commissions Act 1902. The first is to permit the President or Chair of a multi-member Royal Commission to appoint one member of the Commission to hold a hearing at which evidence may be taken on oath or affirmation. This is not possible under the current Act - a quorum of the Commission is required to hold such a hearing. This change would apply to all multi-member Royal Commissions, including the current Commission.

1.168 The second amendment is intended to support the work of the present Commission and to reflect the sensitive nature of the testimony and information that will be provided by persons appearing before the Commission in relation to their

55 Letters Patent for the Royal Commission into Institutional Responses to Child Sexual Abuse, S No 12 of 2013, 11 January 2013, http://www.comlaw.gov.au/Details/C2013G00083/Download

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experiences of abuse. The bill will permit evidence to be given in ‘private sessions’ ‘to facilitate the Commission’s receipt of information from persons directly or indirectly affected by child sexual abuse in a manner less formal than a hearing’:56

The proposed measures will facilitate persons directly or indirectly affected by child sexual abuse and related matters in institutional contexts to present their account to a Commissioner in a setting that is less formal than a hearing.57

Compatibility with human rights

1.169 The bill is accompanied by a self-contained statement of compatibility that states that the bill engages the right to privacy in article 17 of the International Covenant on Civil and Political Rights (ICCPR) and the right to freedom of expression in article 19 of the ICCPR. The statement contends that the bill does not engage the fair trial and fair hearing rights in article 14 of the ICCPR because 'a Royal Commission is not a court or tribunal and cannot adjudicate on a person's guilt or liability'.58

1.170 To these should also be added a number of rights contained in the Convention on the Rights of the Child which guarantee the protection of children from sexual and other forms of abuse and imposes an obligation on the State to take appropriate steps to prevent, investigate, and punish such acts, as well as to provide support for those who have been subjected to such abuse. The establishment of the Commission is such a step.

1.171 A significant shortcoming of the statement of compatibility is that it does not address a number of human rights issues to which the principal Act, the Royal Commissions Act 1902, gives rise and which may arise if the Commission draws upon some of the powers conferred by that Act.

Right to privacy

1.172 The statement of compatibility notes that the bill:

will promote the right to privacy by enabling persons who wish to give information to the Royal Commission into Institutional Responses to Child Sexual information to the Royal Commission into Institutional Responses to Child Sexual Abuse to do so voluntarily in a private session that will not be open to the public. This is considered appropriate given the deeply personal and distressing nature of people’s experiences of child sexual abuse. The purpose of receiving the information is to assist the lawful

56 Statement of compatibility, p 2.

57 Explanatory memorandum, p 1.

58 Statement of compatibility, p 3.

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purposes of the Royal Commission’s inquiry. Information relating to a natural person could only be used in a report of the Royal Commission if the information is also given as evidence to the Commission or under a summons, requirement or notice under section 2 (proposed paragraph 6OD(3)(a)) or if it is de-identified (proposed paragraph 6OD(3)(b)).59

Right to freedom of expression and to receive and impart information and ideas

1.173 The statement of compatibility notes that the bill will limit article 19 of the ICCPR (right to freedom of expression and to receive and impart information and ideas) ‘by restricting who may attend private sessions and limiting the use and disclosure of information obtained at a private session’.60 This restriction will take the form of making it an offence to use or disclose information obtained at a private session, subject to certain exceptions relating to the purposes of the Commission or where the information is de-identified when used in a report of the Commission. ‘These amendments are considered appropriate given the deeply personal and distressing nature of people’s experiences of child sexual abuse. The offence will serve to protect the privacy of participants. As the information obtained at a private session will not be given on oath or affirmation these measures will also serve to protect the reputations of other people’.61

Other rights engaged by the provisions of the Royal Commissions Act 1902 but not referred to in the statement of compatibility

1.174 In its February 2010 report,62 the Australian Law Reform Commission (ALRC) published the results of its review of the Royal Commissions Act 1902. The ALRC made recommendations for amendments to the Act, including to a number of provisions which it considered give rise to human rights concerns. According to the ALRC website, the report has not yet been implemented.63

1.175 The committee notes that where an amending Act incorporates by reference the provisions of an existing enactment, the statement of compatibility should include an analysis of the human rights implications and compatibility of the provisions of that enactment as they are applied or extended by the amendment.

59 Statement of compatibility, p 3.

60 Statement of compatibility, p 3.

61 Statement of compatibility, p 3. 62 Australian Law Reform Commission, Making Inquiries: A New Statutory Framework (ALRC Report 111). The New Zealand Law Commission has also recently explored a number of the same issues in the context of the New Zealand law and practice relating to royal commissions

and official inquiries.

63 ALRC, ‘Royal Commissions and official inquiries’, http://www.alrc.gov.au/inquiries/royal-commissions-and-official-inquiries.

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This is so, even where the Act being amended or incorporated by reference commenced operation before the commencement of the Human Rights (Parliamentary Scrutiny) Act 2011. This approach is consistent with the committee’s functions under the Act insofar as the operation of amendments have to be analysed in terms of their legal effect and practical impact, which can only be done by reviewing their operation in the statutory framework of which they form part. Further, such a review contributes to the committee’s performance of its mandate ‘to examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue’.64

1.176 In this case the statement of compatibility should have provided an analysis of the powers in the Royal Commissions Act 1902 which are to be exercisable in the context of the Royal Commission. Among the provisions which give rise to concerns on human rights grounds - and which in the absence of the amendments recommended by the ALRC are applicable to the proceedings of the Royal Commission into Institutional Reponses to Child Sexual Abuse - are:

• the right to a fair hearing before an independent and impartial tribunal under article 14(1) of the ICCPR in relation to the powers of a Royal Commission to punish for contempt in the face of the Commission; and

• the right not to be subject to arbitrary arrest or detention guaranteed by article 9(1) of the ICCPR in relation to the power of a Royal Commission to issue a warrant for the arrest of a person who has been summoned to appear before a Commission as a witness but fails to appear.

Contempt powers: right to a fair hearing before an independent and impartial tribunal

1.177 Section 6O(2) of the Royal Commissions Act 1902 purports to confer on certain Royal Commissioners the same powers as a judge sitting in court to determine certain forms of contempt. 65 Such Commissioners ‘have all the powers of a Justice of the High Court sitting in open Court in relation to a contempt committed in face of the Court’, with the maximum punishment limited to $200 or 3 months

64 Human Rights (Parliamentary Scrutiny) Act 2011, section 7(b).

65 Section 6O(1) provides:

(1) Any person who intentionally insults or disturbs a Royal Commission, or interrupts the proceedings of a Royal Commission, or uses any insulting language towards a Royal Commission, or by writing or speech uses words false and defamatory of a Royal Commission, or is in any manner guilty of any intentional contempt of a Royal Commission, shall be guilty of an offence.

Penalty: Two hundred dollars, or imprisonment for three months.

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imprisonment.66 These powers include the power of the judge/Commissioner to formulate, hear and determine any charge of contempt and to impose a penalty if the person is found guilty.

1.178 The ALRC questioned whether the notion of contempt was appropriate to ‘bodies established by the executive arm of government’, arguing that:

The law of contempt was developed to protect the administration of justice, and is not directly applicable to public inquiries. Applying the concept of contempt to Royal Commissions and other public inquiries confuses the role and functions of the judiciary with the role and functions of public inquiries, which are established by the executive.67

1.179 The ALRC also noted that the conferral of the power to punish for contempt may be constitutionally flawed because it appears to confer the judicial power of the Commonwealth on a body which is not a ‘court’ within the meaning of Chapter III of the Constitution.68

1.180 The Commission also noted that the provision may violate the right to a fair hearing before an independent and impartial court or tribunal guaranteed by article 14(1) of the ICCPR.69 Proceedings for contempt in the face of the court carrying the possibility of a sentence of imprisonment have been viewed as involving the determination of a ‘criminal charge’ under human rights law.70 Under the common law, legislation and rules of court in Australia and other common law jurisdictions, the courts have developed a range of protections to ensure that the consideration of a charge of contempt of court observes basic principles of fairness,71 though it is not clear that even the adoption of these would satisfy international requirements of independence and impartiality in all circumstances.72 For example, the European Court of Human Rights has held that, in certain circumstances, the determination of guilt and imposition of sentence by the same judge who was presiding at the time of the alleged contempt, is inconsistent with the requirement of objective impartiality

66 Royal Commissions Act 1902, section 6O(2).

67 ALRC, Making Inquiries: A New Statutory Framework, paras 20.86.

68 Ibid, paras 20.51-20.53.

69 Ibid, paras 20.54-20.55.

70 See, eg, Kyprianou v Cyprus (2007) 44 EHRR 27 (App No 73797/01) (Grand Chamber decision).

71 See Law Reform Commission of Western Australia, Discussion Paper 1 on Report on the Law of Contempt (2003) 7-8.

72 See also the discussion of continuing concerns, even taking into account the qualifications on summary procedures brought about by case law and legislative regulation, Law Reform Commission of Western Australia, Report on Review of the Law of Contempt, Project No 93, June 2003, 71-72.

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under article 6(1) of the European Convention on Human Rights73 (which provides a similar guarantee to article 14(1) of the ICCPR).74

1.181 The ALRC recommended repeal of section 6O75 and its replacement by a provision that would have made it an offence ‘to cause substantial disruption to the proceedings of a Royal Commission or Official Inquiry, with the intention to disrupt the proceedings, or recklessness as to whether the conduct would have that result’.76

Right not to be subject to arbitrary deprivation of liberty

1.182 Section 6B(1) of the Royal Commissions Act 1902 provides that the President or Chair of a Royal Commission may issue a warrant for the arrest of a person, if the person has been served with a summons to attend the Commission as a witness but fails to attend the Commission in answer to the summons. However, as the ALRC pointed out, when a Royal Commission wishes to enter, search and seize relevant material, it must apply to a court to obtain such a warrant.77

1.183 Article 9(1) of the ICCPR provides:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

1.184 The concept of ‘arbitrariness’ includes notions of reasonableness and proportionality; the extent of safeguards against abuse is part of the overall assessment. The ALRC commented in relation to this provision:

Given the potential for the rights and liberties of individuals to be adversely affected by arrest powers, it is appropriate that these be subject to certain limits and safeguards. The ALRC recommends, therefore, that the power in s 6B of the Royal Commissions Act should be redrafted in the recommended Inquiries Act. Royal Commissions should be required to apply to a judge to issue a warrant for

73 Article 6(1) provides ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …’.

74 Kyprianou v Cyprus (2007) 44 EHRR 27 (App No 73797/01) (Grand Chamber decision), paras [125] to [128].

75 ALRC, Making Inquiries: A New Statutory Framework, Recommendation 20-5.

76 ALRC, Making Inquiries: A New Statutory Framework, Recommendation 20-4.

77 Royal Commissions Act 1902, section 4.

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the apprehension and immediate delivery of a person to a police officer or judicial officer.78

1.185 Before forming a view on the compatibility of the bill with human rights, the committee intends to write to the Prime Minister to seek further information on the following issues:

• the compatibility of the contempt powers in section 6O of the Royal

Commissions Act 1902 with the right to a fair hearing in article 14 of the ICCPR, including whether consideration has been given to amending the provision along the lines suggested by the ALRC; and

• the compatibility of the arrest powers in section 6B of the Royal

Commissions Act 1902 with the prohibition against arbitrary detention in article 9(1) of the ICCPR, including whether consideration has been given to requiring a judge to issue a warrant for the arrest of a person who has been

summoned to appear before the Commission and fails to do so.

1.186 The committee requests the Prime Minister provide it with information about the stage at which the government’s consideration of the ALRC’s recommendations contained in its 2010 report Making Inquiries: A New Statutory Framework has reached, in particular those recommendations relating to the human rights concerns identified by the ALRC.

78 ALRC, Making Inquiries: A New Statutory Framework, para 11.48. See also Recommendation 11-3.

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Small Business Commissioner Bill 2013 Introduced into the Senate on 25 February 2013 By: Senator Whish-Wilson

Summary of committee view

1.187 The committee seeks clarification as to whether clause 13 is intended to compel a person to provide information or to produce a document even if to do so might tend to incriminate them or expose them to a penalty.

1.188 The committee is satisfied that while the bill engages the right to work and the right to privacy, any limitation on those rights appears to be reasonable and proportionate.

Overview

1.189 This bill seeks to establish the Office of the Small Business Commissioner. It provides for the appointment, functions and powers of the new Commissioner and includes an annual reporting requirement and a power to make regulations.

Compatibility with human rights

1.190 The bill is accompanied by a self-contained statement of compatibility, which states that the bill 'does not engage any of the applicable rights or freedoms' and is therefore 'compatible with human rights as it does not raise any human rights issues.' However, the bill appears to engage a number of rights, including the right not to incriminate oneself, the right to work and the right not to be subject to arbitrary interference with privacy.79

Right not to incriminate oneself

1.191 Clause 13 of the bill seeks to provide the new Small Business Commissioner with the power to issue a notice to a person to provide information, produce documents or to attend at a specified place to answer questions, when the Commissioner has reason to believe that a person is capable of giving information or producing documents relevant to a matter that is being inquired into by the Commissioner.

1.192 Subclause 13(6) makes it an offence for a person not to comply with a notice to attend to give information to the Commissioner. The bill provides that failure to

79 See articles 14 and 17 of the International Covenant on Civil and Political Rights and article 6 of the International Covenant on Economic, Social and Cultural Rights.

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comply is a strict liability offence,80 yet it will not be an offence if the person has a reasonable excuse for failing to comply with the notice.81 Subclause 13(9) also provides:

A person is not liable to any penalty under the provisions of any law of the Commonwealth or of a Territory by reason only of the person having given information, produced a document or answered a question when required to do so under this section.

1.193 The committee is unclear whether the intended effect of the provisions requiring a person to provide information or documents or answer questions is to abrogate the privilege against self-incrimination.82 If so, it is unclear whether subclause (9) provides for a use immunity (so that any information, documents or answers obtained as a direct consequence of the notice is not admissible in evidence against the person in other proceedings) and if so, whether it excludes a derivate use

immunity (allowing the information, documents or answers to be indirectly used to look for evidence against the person). It is also not clear if subclause 13(9) applies to information or documents provided under subclause 13(1), given there is no consequences of not complying with a notice to produce information or documents under this subclause,83 and so it is unclear whether a person could be said to be 'required' to provide such information.

1.194 The committee intends to write to Senator Whish-Wilson to seek clarification whether the intended effect of the bill is to compel a person to provide information or to produce a document even if to do so might tend to incriminate oneself or expose the person to a penalty. The committee notes that in general the right not to incriminate oneself will require at least explicit protection against the use of information or documents or answers produced under compulsion in criminal proceedings or proceedings leading to the imposition of a penalty against that person.

Right to work

1.195 Article 6 of the International Covenant on Economic, Social and Cultural Rights provides that everyone has the right to work, including the 'opportunity to gain his living by work which he freely chooses or accepts'. Clause 18 of the bill

80 See subclause 13(7).

81 See subclause 13(8).

82 Article 14(3)(g) of the International Covenant on Civil and Political Rights (ICCPR) provides that a person charged with a criminal offence is not to be 'compelled to testify against himself or to confess guilt'.

83 As the offence provision in subclause 13(6) only applies to a failure to comply with a notice issued under subclause 13(3), not notices issued under subclauses 13(1).

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provides that ‘[t]he Commissioner must not engage in paid employment outside the duties of his or her office without the Minister’s approval.’ Clause 22(2)(d) provides that the Governor-General must terminate the appointment of the Commissioner if the Commissioner engages, except with the Minister’s approval, in paid employment outside the duties of his or her office.

1.196 The committee considers that clauses 18 and 22(2)(d) appear to limit the right to work, but in the context of the bill which creates the office of Commissioner as a full-time position, this restriction can be viewed as a reasonable and proportionate limitation on that right.

Right to privacy

1.197 Clause 24 of the bill requires a person appointed as Commissioner to disclose 'all interests, pecuniary or otherwise, that the Small Business Commissioner has or acquires and that conflict, or could conflict, with the proper performance of the Commissioner’s functions.’

1.198 This requirement appears to engage the right to privacy under article 17 of the ICCPR, but the committee considers that, as the duty of disclosure is limited to disclosure of interests relating to the proper performance of the duties of the office, it appears to be a reasonable and proportionate limitation of the enjoyment of the right to privacy.

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Social Security Legislation Amendment (Caring for People on Newstart) Bill 2013 Introduced into the Senate on 7 February 2013 By: Senator Siewert

Summary of committee view

1.199 The committee seeks clarification as to the basis for differentiating between different groups of Newstart and Youth Allowance recipients and whether this differential treatment is aimed at a legitimate objective and is justifiable as reasonable, necessary and proportionate to that objective.

Overview

1.200 This bill seeks to amend the Social Security Act 1991 to:

• introduce a Newstart Supplement payment of $100 per fortnight

payable to a person who qualifies for the Newstart Allowance and who is single, has a partner who is separated from them by illness, or a partnered couple where one of the partners is in jail;

• increase, by $100 a fortnight, the maximum basic rate for independent

long term income support student recipients of Youth Allowance; and

• provide for the same indexation arrangements for certain pensions and

allowances.

1.201 Payments under this bill would be dependent on an appropriation by the Parliament for the purposes of the bill.

Compatibility with human rights

1.202 The bill is accompanied by a self-contained statement of compatibility, which notes that the bill engages the right to social security guaranteed by article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The statement notes that the bill will promote the right to social security by increasing the amount of financial support for certain recipients of Newstart and Youth Allowance, and providing for more appropriate indexation for other social security basic payment rates.

1.203 These features of the bill may also been seen as contributing to the enjoyment of the right to an adequate standard of living guaranteed by article 11 of the ICESCR.

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Equality and non-discrimination

1.204 The proposed increases only apply to persons who are single or who are separated from a partner. This raises the issue of equality and non-discrimination in the enjoyment of the rights guaranteed by articles 9 and 11 of the ICESCR; articles 2(1) of the ICESCR and article 26 of the International Covenant on Civil and Political Rights (ICCPR) which guarantee equality and non-discrimination in the enjoyment of human rights.

1.205 These distinctions involve differential treatment of groups (single persons, and particular subgroups of couples) on the ground of their ‘status’. Such treatment must be demonstrated to have an objective and reasonable justification to be consistent with the rights to equality and non-discrimination. The statement of compatibility does not explicitly state why these groups are selected for the increased payments over other groups.

1.206 The committee notes that the bill provides for differential treatment of different groups of Newstart and Youth Allowance recipients. It would assist the committee in its assessment of the compatibility of the bill with human rights if the justification for the differential treatment were clearly articulated in the statement of compatibility. The committee intends to write to Senator Siewart to seek further clarification of this matter.

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Tax and Superannuation Laws Amendment (2013 Measures No. 1) Bill 2013 Introduced into the House of Representatives on 13 February 2013 Portfolio: Treasury

Summary of committee view

1.207 The committee seeks clarification as to whether the penalties imposed by this bill may be characterised as criminal for the purposes of articles 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR).

Overview

1.208 This bill amends various tax laws to implement a range of changes to Australia's tax laws:

• Schedule 1 amends the income tax and superannuation law to ensure that

income tax is generally not payable on the interest paid by the

Commonwealth on unclaimed money from 1 July 2013;

• Schedule 2 amends the Fringe Benefits Tax Assessment Act 1986 to align the

special rules for calculating airline transport fringe benefits with the general provisions dealing with in-house property fringe benefits and in-house residual fringe benefits;

• Schedule 3 amends the income tax treatment of Commonwealth payments to

irrigators under the Sustainable Rural Water Use and Infrastructure Program (SRWUIP). Participants will be allowed to choose to make payments they derive under the program free of income tax (including capital gains tax), with expenditure relating to the infrastructure improvements required under the program being non-deductible;

• Schedule 4 amends the Superannuation Industry (Supervision) Act 1993 to

prescribe requirements for acquisitions and disposals of certain assets between self-managed superannuation funds (SMSFs) and related parties. These requirements ensure that these transactions are conducted with transparency and are not used to circumvent the requirements of the superannuation law;

• Schedules 5 and 6 amend the income tax law to allow corporate tax entities

that have paid tax in the past, but are now in a tax loss position, to carry their loss back to those past years to obtain a refund of some of the tax they previously paid; and

• Schedule 7 makes a number of miscellaneous amendments to rectify technical

and machinery problems in the taxation laws.

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Compatibility with human rights

1.209 The bill is accompanied by a self-contained statement of compatibility for each schedule. The statements for schedules 1-2, 4 and 5-7 conclude that the relevant amendments do not raise any human rights issues. The statement for schedule 3 states that the related amendments promote the right to health.

1.210 However, a number of amendments proposed by Schedules 4 and 7 give rise to human rights concerns.

Civil penalty regime as involving the imposition of a criminal penalty

Schedule 4

1.211 Schedule 4 of the bill proposes to insert a number of new sections in the Superannuation Industry (Supervision) Act 1993 which create new civil penalty provisions.84 In each case the proposed new section provides that the enforcement of the civil penalty provision is to take place in accordance with the provisions of Part 21 of the Superannuation Industry (Supervision) Act 1993.

1.212 The committee has previously raised concerns about the human rights compatibility of certain aspects of the civil penalty regime contained in Part 21 of the Superannuation Industry (Supervision) Act 1993. This was in the context of the committee’s consideration of the Superannuation Legislation Amendment (Reducing Illegal Early Release and Other Measures) Bill 2012.85

1.213 These concerns were that such penalties could be classified as ‘criminal’ penalties under human rights law, and that this would potentially give rise to inconsistency with the guarantees contained in article 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR). Of particular concern were the application of the rules of procedure and evidence applicable in civil proceedings to civil penalty proceedings (if these were held to be ‘criminal’), and the possibility that a person could be subjected to both a criminal conviction and a civil penalty in relation to the same conduct (violating the guarantee that a person cannot be subject to a criminal penalty twice for the same offence).

1.214 The committee has not yet received a reply from the Treasurer in relation to the concerns it expressed in relation to Part 21 of the Superannuation Industry (Supervision) Act 1993.

84 In particular, proposed new sections 66A, 66B and 66C.

85 See PJCHR, First Report of 2013, paras 1.269 to 1.278.

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Schedule 7

1.215 Similar issues arise from the amendments proposed in Schedule 7 to extend the operation of the provisions of Division 284 of schedule 1 to the Tax Administration Act 1953. Division 284 deals with the administrative penalties that may be imposed under that Act for the making of false or misleading statements and other actions. The bill will extend those provisions to cover such statements relating to the ‘petroleum resource rent tax law’.86

1.216 The committee has raised concerns in this report about these provisions in its discussion of the Tax Laws Amendment (Countering Tax Avoidance and Multinational Profit Shifting) Bill 2013.87 Those concerns relate to the possible characterisation of some administrative penalties as ‘criminal’ for the purposes of human rights law, and the possible incompatibility of those provisions with article 14 (fair trial guarantees) and article 15 (non-retrospectivity of criminal penalties) of the ICCPR if they were so characterised.

1.217 The committee intends to write to the Treasurer to seek clarification as to whether the penalties imposed by this bill may be characterised as criminal for the purposes of articles 14 and 15 of the ICCPR. In this respect, the committee draws the Treasurer's attention to:

• its earlier comments in relation to Part 21 of the Superannuation

Industry (Supervision) Act 1993 and their application to the amendments proposed by schedule 4 to the bill; and

• its comments in relation to the provisions of the Tax Laws

Amendment (Countering Tax Avoidance and Multinational Profit Shifting) Bill 2013, relating to the possible characterisation of administrative penalties under the Tax Administration Act 1953 as ‘criminal’ and the consequences of such a characterisation for compatibility of the provisions with articles 14 and 15 of the ICCPR.

86 The Division already applies to the mineral resources rent tax, as a result of the Mineral Resources Rent Tax Act 2012.

87 See paras 1.220 -1.228 below.

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Tax Laws Amendment (Countering Tax Avoidance and Multinational Profit Shifting) Bill 2013 Introduced into the House of Representatives on 13 February 2013 Portfolio: Treasury

Summary of committee view

1.218 The committee seeks clarification as to whether the penalties imposed by this bill and any other penalties to which a person may be liable between 16 November 2012 and the commencement of this legislation may be characterised as criminal for the purposes of articles 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR).

Overview

1.219 This bill amends various income tax laws with the aim of protecting the integrity and sustainability of the tax system:

• Schedule 1 introduces amendments to remedy identified deficiencies in

the operation of income tax general anti-avoidance provisions in the Income Tax Assessment Act 1936. The amendments apply retrospectively.

• Schedule 2 introduces amendments to modernise Australia’s domestic

transfer pricing rules, including the application of the arm’s length principle in transfer pricing rules aligning with international transfer pricing standards.

Compatibility with human rights

1.220 This bill is accompanied by self-contained statements of compatibility in relation to each of the two schedules to the bill.88 In each case the statement of compatibility concludes that the relevant schedule does not engage any human rights.

Possible retrospective application of ‘criminal’ penalties (article 15, ICCPR)

1.221 Schedule 1 makes changes to the general anti-avoidance provisions of the Part IVA of the Income Tax Assessment Act 1936 in order to respond to a number of recent court cases. The statement of compatibility notes:

88 Explanatory memorandum, paras 1.131-1.137 (Schedule 1); Explanatory memorandum, paras 7.22-7.29 (Schedule 2).

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1.132 Part IVA is the income tax law’s general anti-avoidance rule that operates to protect the integrity of the tax law from contrived or artificial arrangements designed to obtain a tax advantage. …

1.135 The amendments apply from 16 November 2012; that is, from a date before the amendments become law. 16 November 2012 was the date on which a draft of the amendments was released for public comment. Applying it from that date is necessary to ensure that taxpayers are not able to benefit from artificial or contrived tax avoidance schemes entered into in the period between that date and the date of Royal Assent. Application from that date does not affect the operation of any criminal law.

1.222 Neither the explanatory memorandum nor the statement of compatibility explain whether the amendments to the anti-avoidance provisions expose persons from 16 November 2012 to the possibility of liability not just for additional tax but to administrative penalties or other penalties as well. As noted below, even though penalties may be described as ‘administrative’ under Australian law, this is not determinative of the question of whether they may nonetheless be ‘criminal’ penalties for the purposes of articles 14 and 15 of the ICCPR. If they are so classified and the effect of the amendments is to impose ‘criminal’ liability for actions between 16 November 2013 and the commencement of the bill, issues under article 15 of the ICCPR (prohibition of retrospective criminal penalties) may arise, as well as possibly under article 14 of the ICCPR (right to a fair hearing).

1.223 Schedule 2 to the bill makes amendments to the Income Tax Assessment Act 1997 and the Taxation Administration Act 1953 which are designed to modernise the transfer pricing rules contained in Australia’s domestic rules. Schedule 2 to the bill makes amendments to the Taxation Administration Act 1953 by inserting new sections in Division 284 of that Act, which deals with the imposition of penalties. Proposed new section 284-145(2B) provides for the imposition of administrative penalties where the Commissioner adjusts a person’s tax assessment and, as a result, the person is liable to pay an additional amount of income tax or withholding tax. The explanatory memorandum summarises the changes:

6.8 The relevant actions of the Commissioner are the amendment of an assessment in an income year in respect of a liability to additional income tax, or the serving of one or more notices that additional withholding tax is payable. [Schedule 2, item 3, subparagraphs 284-145(2B)(a)(i) and (ii) in Schedule 1 to the TAA 1953]

6.9 As such, if the Commissioner determines that a taxpayer has not correctly self-assessed their tax position under Subdivision 815-B or 815-C and amends an assessment or issues a notice in respect of withholding tax, the taxpayer is liable to an administrative penalty.

1.224 Proposed new section 284-60 sets out in a complex provision the amount of the penalty that may be imposed; this ranges from 10% to 50% of the scheme shortfall amount. The ‘scheme shortfall amount’ for a scheme to which

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subsection 284-145(2B) applies is defined as ‘the total amount of additional income tax and withholding tax you are liable to pay as mentioned in that subsection.’89 In other words, the administrative penalty that may be imposed ranges from 10% to 50% of the additional tax, and is payable in addition to that tax. The highest level of penalty is applicable in cases in which the sole or dominant purpose of the arrangement in question has been to obtain particular benefits (transfer pricing benefits).

1.225 This gives rise to the issue of whether the imposition of such a penalty, even though described as an ‘administrative penalty’ for the purposes of Australian taxation legislation, is nonetheless ‘criminal’ for the purposes of the ICCPR.

1.226 The committee has previously noted that international human rights jurisprudence has established that in deciding whether a penalty is ‘criminal’ for the purposes of article 14 and 15 of the ICCPR the following factors are to be taken into account: the classification of the act in domestic law, the nature of the offence, the purpose of the penalty, and the nature and the severity of the penalty. Classification as ‘civil’ under Australian law is not determinative. Where a prohibition is general in application, where the penalty is punitive and intended to deter (rather than award compensation for loss), and any financial penalty is significant, it may well be classified as involving a criminal charge and penalty for the purposes of article 14 of the ICCPR.

1.227 These principles have been applied in the context of taxation legislation. International human rights bodies have held that penalties imposed for failures to pay the proper tax may constitute ‘criminal’ penalties for the purposes of fair trial guarantees and non-retrospectivity guarantees.90 Where a penalty or surcharge is imposed by general legal provisions applying to taxpayers generally, and is not intended as pecuniary compensation for damage but as a punishment to deter reoffending, this has been enough to qualify a penalty or surcharge as ‘criminal’, even if the amount of the penalty or surcharge is not substantial. 91

1.228 Before forming a view on the compatibility of the bill with human rights, the committee intends to write to the Treasurer to seek clarification of:

• the nature of any additional penalties to which a person may become

liable during the period from 16 November 2012 and the

89 Proposed new sections 284-150 (4).

90 Jussila v Finland (2006) 45 EHRR 900 (European Court of Human Rights); Janosevic v Sweden (Application no. 34619/97), European Court of Human Rights, judgment of 23 July 2002. See also Green Island Promotions Ltd v Revenue & Customs [2011] UKFTT 696 (TC) (2 November 2011).

91 Jussila v Finland (2006) 45 EHRR 900, para 38 (European Court of Human Rights).

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commencement of the legislation as a result of the amendments proposed by Schedule 1 to the bill; and

• whether the penalties that may be imposed as a result of the

amendments proposed by Schedules 1 and 2 be may be characterised as ‘criminal’ for the purposes of articles 14 and 15 of the ICCPR.

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Therapeutic Goods Amendment (Pharmaceutical Transparency) Bill 2013 Introduced into the Senate on 28 February 2013 By: Senator Di Natale

Summary of committee view

1.229 The committee seeks clarification on the potential impact of the bill on the right to freedom of expression (including the right to seek and receive information of a commercial nature) and freedom of association

Overview

1.230 This bill seeks to amend the Therapeutic Goods Act 1989 to create new civil penalty provisions to prohibit pharmaceutical companies from offering certain inducements or payments to medical practitioners. It also requires pharmaceutical companies to report each year about any payments or inducements made to medical practitioners (failure to do so will also be subject to a civil penalty). The civil penalties provide for a maximum penalty of 600 or 1,200 penalty units, or $102,000 or $204,000, that could apply to corporations.

Compatibility with human rights

1.231 The bill is accompanied by a self-contained statement of compatibility. The statement makes no reference to any specific human rights and maintains:

This Bill does not negatively impact on any human rights. Although it places some small constraints on how pharmaceutical companies may compensate doctors, most interactions continue to be allowed under new transparency rules and there are no restrictions on the actions of individuals. These restrictions do not conflict with any of the rights enumerated in the applicable treaties.

1.232 The bill is aimed at addressing the possibility that pharmaceutical companies may exert undue influence on doctors in their choice of prescription medicines. The explanatory memorandum explains that the bill will replace a voluntary industry code with ‘legislation that sets more stringent restrictions on the interactions between pharmaceutical companies and physicians that minimises the opportunity to provide inducements and thereby unduly influence prescribing behaviours.’92

1.233 The bill forbids payment for doctors to travel or attend education seminars and scientific conferences domestically and overseas paid for by pharmaceutical

92 Explanatory memorandum, p 2.

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companies, bans the sponsorship of educational meetings intended for Australian doctors outside Australia, limits gifts and overly lavish hospitality, and requires full reporting of any fees paid to prescribers outside the company.

Right to health

1.234 There are a number of human rights that are potentially engaged by the bill. The purpose of the bill can be seen as broadly promoting the right of persons to the highest attainable standard of physical and mental health guaranteed by article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) by ensuring that medicines are prescribed solely on the basis of their efficacy and the choice of appropriate medicines is not influenced by extraneous matters or incentives offered by pharmaceutical companies to doctors.

Freedom of expression and freedom of association

1.235 The guarantee of freedom of expression, including the freedom to seek and receive information (as well as to impart it), guaranteed by article 19 of the International Covenant on Civil and Political Rights (ICCPR), applies to commercial information as well as to other forms of information. While corporations as such do not enjoy rights directly under the ICCPR, the freedom of doctors to receive information may be restricted by the bill. Freedom of association guaranteed by article 22 of the ICCPR, which also extends to commercial association for commercial purposes, may also be engaged.

1.236 Restrictions on the right to receive information are permissible under article 19 of the ICCPR, but only if they are:

provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

1.237 Restrictions on the enjoyment of freedom of association are also permissible if similarly restricted.

1.238 In order to justify restriction on either of these rights, it must be shown that not only does the measure pursue a legitimate goal but that it is a measure rationally related to the achievement of the goal and is a reasonable and proportionate measure overall.

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1.239 The committee intends to write to Senator Di Natale to seek clarification on the potential impact of the bill on the right to freedom of expression (including the right to seek and receive information of a commercial nature) and freedom of association.

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Bills unlikely to raise human rights incompatibility

Appropriation Bill (No. 3) 2012-2013

Appropriation Bill (No. 4) 2012-2013 Introduced into the House of Representatives on 7 February 2013 Portfolio: Finance and Deregulation

1.1 These bills appropriate additional money out of the Consolidated Revenue Fund for the ordinary annual services of the government.

Compatibility with human rights

1.2 Both bills are accompanied by self-contained statements of compatibility which state:

1 The Bill seeks to appropriate money for the ordinary annual services of the Government.

2 The Bill does not engage any of the applicable rights or freedoms outlined in the Human Rights (Parliamentary Scrutiny) Act 2011.

3 The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 as it does not raise any human rights issues.

1.3 The committee notes that general appropriations bills present particular challenges for the preparation of statements of compatibility, since they appropriate money for expenditure across a range of departments and for a variety of programs, many of which are broadly defined.

1.4 The committee has noted that both the promotion of the enjoyment of human rights and the possibility of encroachments on them may come about through the adoption of legislative frameworks and the allocation of funds necessary to give effect to that policy.1 From that perspective appropriation bills may have an impact on the implementation of human rights obligations and potential violations. Accordingly, the appropriation of funds to permit the implementation of legislation that gives rise to human rights compatibility issues may also be viewed as giving rise to human rights concerns, as this facilitates the taking of actions which may involve the failure by Australia to fulfil its obligations under the treaties listed in the Human Rights (Parliamentary Scrutiny) Act 2011.

1 PJCHR, Seventh Report of 2012, pp 6-8.

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1.5 In some cases, both within general appropriation Acts and with specific appropriation Acts, it is possible to identify the particular legislative framework or program which is being funded. For example, with the Appropriation Bill (No. 3) 2012-2013, one proposed appropriation of funds for the Resources, Energy and Tourism Portfolio is to support the work of the National Offshore Petroleum Safety and Environmental Management Authority,2 at least part of which will support the enforcement of powers and functions considered by the committee in its consideration of the Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures) Bill 2012. In most cases of this sort, where the legislation postdates the commencement of the Human Rights (Parliamentary Scrutiny) Act 2011, the committee will have commented on the substantive legislation, the implementation of which the funds are being appropriated.

1.6 Furthermore, in the case of specific appropriation bills, in which identified sums of money are allocated to implementing legislation that gives rise to human rights concerns, the committee may consider it appropriate to draw attention to that fact.3

1.7 The committee notes that it does not anticipate it will generally be necessary for it to make substantive comments on appropriation bills, especially in cases in which it has considered the substantive legislation for the implementation of which funds are being appropriated. Nonetheless, the committee considers that there may be cases in which the committee considers it appropriate to comment on such bills. These might include specific appropriation bills or specific

appropriations where there is an evident and substantial link to the carrying out of policy or programs under legislation that gives rise to human rights concerns and where the issues have not been adequately addressed in its examination of the substantive legislation or there has not been an opportunity for such examination.

1.8 The committee, however, notes that appropriation bills are highly technical in nature and it is likely to be difficult for the committee to identify particular human rights concerns in the time available. The committee would therefore find it helpful if the statements of compatibility accompanying these bills identified any proposed cuts in expenditure which may amount to retrogression or limitations on human rights, in particular economic, social and cultural rights.

1.9 The committee intends to write to the Minister for Finance and Deregulation to seek clarification as to the basis for the assertion in the statement of compatibility that the appropriation bills do not engage any human rights and

2 Schedule 1, p 61 of the bill.

3 See for example, PJCHR, Seventh Report of 2012, pp 6-8.

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whether the underlying budgetary processes leading to these appropriations incorporated any explicit human rights assessment.

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Australian Capital Territory (Self-Government) Amendment Bill 2013 Introduced into the House of Representatives on 13 February 2013 Portfolio: Regional Australia, Local Government, Arts and Sport

1.10 This bill seeks to amend the Australian Capital Territory (Self-Government) Act 1988 to grant the Australian Capital Territory Legislative Assembly the power to determine the size of the Assembly. At present, changes to the size of the Assembly require a resolution of the Assembly followed by the adoption by the Commonwealth of regulations. The bill provides that any enactment made by the Assembly for the purpose of determining the size of the Assembly will require the approval of a two-thirds majority of the total number of members of the Assembly to come into effect.

1.11 The bill is intended to give the ACT Assembly the power to independently determine and amend its own numbers and remove the Commonwealth's role in the process.

Compatibility with human rights

1.12 The bill is accompanied by a self-contained statement of compatibility which states that the bill ‘does not engage any of the applicable rights or freedoms and is compatible with human rights as it does not raise any human rights issues.’

1.13 However, the bill may be seen as promoting the enjoyment of rights relating to democratic governance contained in article 25 of the International Covenant on Civil and Political Rights (ICCPR). Article 25 guarantees the right of citizens to participate in the political and public life process, including thorough elections.4

1.14 As the explanatory memorandum states, the bill itself does not change the size of the ACT Legislative Assembly. Rather, it 'removes the Commonwealth’s role in the process of amending the size of the Assembly, and provides the Assembly with the power to independently fulfil this function'. In doing so, the bill acknowledges the capacity of the Assembly to run its own affairs by granting it increased legislative autonomy, consistent with the success of its self-governance.

4 See General Comment No 25 of the UN Human Rights Committee in relation to article 25 guarantees: 'Citizens may participate directly by taking part in popular assemblies which have the power to make decisions about local issues or about the affairs of a particular community and in bodies established to represent citizens in consultation with government.' (para 6).

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1.15 Devolving power to a Territory legislature to determine its own size can be viewed as an enhancement of the power of the Territory community to regulate its own affairs.

Rights of Indigenous peoples/right to self-determination

1.16 The bill follows a number of inquiries into or reviews of the Australian Capital Territory (Self-Government) Act 1988. These included the review conducted by the Standing Committee on Administration and Procedure of the ACT Legislative Assembly, which reported in 2012.5 That committee recommended that ‘a preamble be included in the Self-Government Act which outlines the Act’s purpose and includes … a formal recognition of the traditional custodians of the land, after consultation with the local Indigenous community.’ This recommendation has not been taken up in the bill. This may be contrasted with the recent recognition of the position of Australia’s Indigenous peoples in the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012.

1.17 The committee notes that this bill could have taken the opportunity to promote the rights of Indigenous self-determination by including a preamble to the Australian Capital Territory (Self-Government) Act 1988 to recognise the traditional custodians of the land as recommended by the ACT Standing Committee.

1.18 The committee considers that this bill does not appear to give rise to human rights concerns.

5 Standing Committee on Administration and Procedure, Review of the Australian Capital Territory (Self-Government Act 1988 (Cwlth), August 2012, Report 5.

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Aviation Laws Amendment (Australian Ownership and Operation) Bill 2013 Introduced into the House of Representatives on 11 February 2013 By: Mr Katter MP

1.19 This bill seeks to amend the Air Navigation Act 1920 and the Civil Aviation Act 1988 to provide that Australian international airline licences, and authorisations for the operation of domestic flights in Australia, must only be granted to an

Australian operator. An Australian operator is defined as one:

• that is at least 51 per cent owned by Australian citizens or residents;

• that conducts at least 80 per cent of its aircraft maintenance in

Australia; and

• whose aircrew are domiciled in Australia.

Compatibility with human rights

1.20 The bill is accompanied by a statement of compatibility which reproduces the template provided by the Attorney-General's Department without making specific reference to the bill. The statement concludes by stating that the bill is compatible with human rights.

Right to equal protection of the law and to non-discrimination

1.21 In distinguishing between operators on the basis of the nationality of the airline's owners and where the aircrew are domiciled, the bill would appear to engage the right to non-discrimination under article 26 of the International Covenant on Civil and Political Rights (ICCPR). Article 26 provides a guarantee of equal protection of the law and protection against discrimination. In distinguishing between operators in such a way might be viewed as discriminatory unless it can be shown that the differential treatment is based on objective and reasonable criteria that pursue a legitimate objective. However, no justification is offered in the statement of compatibility.

1.22 The committee considers that this bill does not appear to give rise to significant human rights concerns.

1.23 The committee intends to write to Mr Katter, noting that the statement of compatibility fails to identify specific rights which may be promoted or limited by the bill and that it is a requirement of the Human Rights (Parliamentary Scrutiny) Act 2011 that substantive statements of compatibility be supplied even in cases where the effect of the proposed legislation is to promote rather than limit the enjoyment of a relevant right.

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Completion of Kakadu National Park (Koongarra Project Area Repeal) Bill 2013 Introduced into the House of Representatives on 6 February 2013 Portfolio: Sustainability, Environment, Water, Population and Communities

1.24 This bill seeks to repeal in its entirety the Koongarra Project Area Act 1981. This Act enables the Koongarra area, which is surrounded by the Kakadu National Park, to be excluded from the boundaries of the national park to accommodate future mining prospects. The relevant section of the 1981 Act that would bring the Act relevantly into force has never been proclaimed.

Compatibility with human rights

1.25 The self-contained statement of compatibility states that the bill does not engage any applicable rights or freedoms and so is compatible with human rights.

1.26 The effect of the bill is to include within the boundaries of the Kakadu National Park the Koongarra Project Area. The statement of compatibility notes that this area ‘was excluded from the boundaries of the Kakadu National Park when it was proclaimed in 1979. This exclusion was made to accommodate the prospect of future mining activity. Since that time, a number of parties have pursued the development of mining at Koongarra but no mining tenements have been granted.’ It notes that ‘[t]he Australian Government committed at the 2010 federal election to protect Koongarra as part of Kakadu in line with the express views of the traditional owner.’

1.27 Although not mentioned in the explanatory memorandum or the statement of compatibility, in June 2011 the World Heritage Committee of UNESCO, on nomination by the Australian government, included the Koongarra Project Area on the World Heritage Register as part of the Kakadu National Park listing under the UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage.6 Documentation before the World Heritage Committee noted that:

The Koongarra area is Aboriginal land. … The Koongarra area includes the Nourlangie rock art sites. This and the Ubirr rock art site, 50 kilometres to the north-east, are the two major foci of rock art in the Park.

1.28 The committee notes that, by providing for the inclusion of the Koongara area in the Kakadu National Park and removing the possibility of mining, in accordance with the wishes of the traditional owner, the bill will contribute to the

6 UNESCO World Heritage Committee, Decision (Mixed Properties - Examination of minor boundary modifications - Kakadu National Park (Australia)), 35COM 8B.49, Thirty-fifth session, Paris, UNESCO Headquarters, 19-29 June 2011, WHC-11/35.COM/20, 244-245 (2011).

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promotion and enjoyment of the rights of the traditional owner. This promotes the rights of Indigenous peoples to self-determination and to participate in culture, and rights of non-Indigenous people to benefit from culture.7

1.29 The committee considers that this bill does not appear to give rise to human rights concerns.

7 See article 1 of the International Covenant on Civil and Political Rights (ICCPR) and article 1 of International Covenant on Economic, Social and Cultural Rights (ICESCR), and article 27 of ICCPR and article 15 of ICESCR.

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Dairy Industry (Drinking Milk) Bill 2013 Introduced into the House of Representatives on 11 February 2013 By: Mr Katter MP

1.30 This bill seeks to:

• establish a register of dairy representative bodies from particular

regions and states and a national dairy representative body;

• require Fair Work Australia to determine a modern award for dairy

farmers, with the objective of providing a fair minimum return for dairy farmers on their labour and investment in producing milk, with terms including a minimum price for milk (or a mechanism for calculating this);

• modify the Fair Work Act 2009 to enable an agreement between dairy

farmers and a processor to be effected as an enterprise agreement; and

• infer that a valid collective bargaining notice has been provided for the

purposes of the Competition and Consumer Act 2010 when the dairy representative for a region, or collection of regions, is in negotiations with processors on the sale of drinking milk.

Compatibility with human rights

1.31 The statement of compatibility accompanying the bill reproduces the template provided by the Attorney-General's Department without making specific reference to the bill or to specific rights that might be affected by the bill. The statement concludes by stating that the bill is compatible with human rights.

Right to freedom of association

1.32 In providing for the registration of dairy representative bodies, chosen by dairy farmers, Part 2 of the bill may be said to promote the right to freedom of association. Article 22 of the International Covenant on Civil and Political Rights provides that everyone has the right to freedom of association with others, which protects the right of all persons to form and join an association.

Right to just and favourable conditions of work/Right to an adequate standard of living

1.33 By ensuring that farmers receive a minimum price for their milk, the bill might be viewed as promoting the right under article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) of a person to ‘the enjoyment of just and favourable conditions of work, which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

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(ii) A decent living for themselves and their families …

The bill might also be viewed as contributing to the realisation of the right to an adequate standard of living guaranteed by article 11 of the ICESCR.

1.34 The committee considers that this bill does not appear to give rise to human rights concerns.

1.35 The committee intends to write to Mr Katter, noting that the statement of compatibility fails to identify specific rights which may be promoted or limited by the bill and that it is a requirement of the Human Rights (Parliamentary Scrutiny) Act 2011 that substantive statements of compatibility be supplied even in cases where the effect of the proposed legislation is to promote rather than limit the enjoyment of a relevant right.

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Environment Protection and Biodiversity Conservation Amendment (Moratorium on Aquifer Drilling Connected with Coal Seam Gas Extraction) Bill 2013

Introduced into the House of Representatives on 11 February 2013 By: Mr Katter MP

1.36 This bill seeks to amend the Environment Protection and Biodiversity Conservation Act 1999 to make it an offence for a person to drill through or into an acquifer for the purposes of coal seam gas extraction. The offence will only be valid for two years following commencement of the relevant clause. The amendment is stated to not apply if the action is taken to facilitate safer coal mining. The penalty that may be imposed in relation to the offence is $200,000 for an individual and $2 million for a body corporate

Compatibility with human rights

1.37 The bill is accompanied by a statement of compatibly which reproduces the template provided by the Attorney-General's Department without making specific reference to the bill or to specific rights that might be affected by the bill. The statement concludes by stating that the bill is compatible with human rights.

Right to respect for one’s home/right to health/right to water

1.38 A number of concerns have been expressed about the consequences of coal seam gas mining and its impact on surrounding locations and water supplies. The bill might be seen as promoting the right of persons not to have their homes unlawfully or arbitrarily interfered with under article 17 of the International Covenant on Civil and Political Rights. International human rights law has accepted that this right can provide some protection against pollution that affects a person’s quiet enjoyment of their home and also extends to any damage to residential property caused by subsidence that might result from such mining.

1.39 To the extent that this bill seeks to address concerns about pollution, it might also be viewed as contributing to the attainment of the right of persons to the highest attainable standard of health guaranteed by article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). To the extent that it seeks to avoid contamination of water supplies, the bill might also be viewed as contributing to the fulfilment of the right to an adequate standard of living (including the right to water) guaranteed by article 11 of the ICESCR.

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1.40 The committee considers that this bill does not appear to give rise to human rights concerns.

1.41 The committee intends to write to Mr Katter, noting that the statement of compatibility fails to identify specific rights which may be promoted or limited by the bill and that it is a requirement of the Human Rights (Parliamentary Scrutiny) Act 2011 that substantive statements of compatibility be supplied even in cases where the effect of the proposed legislation is to promote rather than limit the enjoyment of a relevant right.

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Export Finance and Insurance Corporation Amendment (Finance) Bill 2013 Introduced into the House of Representatives on 13 February 2013 Portfolio: Trade and Competitiveness

1.42 This bill seeks to make changes to the financial arrangements in Part 8 of the Export Finance and Insurance Corporation Act 1991 to:

• authorise the payment of a one-off dividend to the Commonwealth;

• confer power on the Minister to direct the Export Finance and Insurance

Corporation (EFIC) to pay a special dividend; and

• create a new power for the Minister to prescribe an increase in EFIC’s

callable capital should it be necessary to help EFIC meet its future prudential requirements.

1.43 Proposed new section 55A requires the EFIC to pay the Commonwealth a one-off dividend of $200 million before 30 June 2013. The explanatory memorandum states that this is in line with a 2012-13 Budget Measure, and that ‘the payment of special dividends from EFIC’s surplus capital is supported by the 2012 Productivity Commission Inquiry Report into EFIC, which found that EFIC retains capital well above its minimum requirements and that this surplus capital has an opportunity cost that is borne by the taxpayer.’8

Compatibility with human rights

1.44 A statement of compatibility was not provided for this bill and there is no reference to any consideration of human rights issues in the explanatory memorandum.

1.45 The committee considers that this bill does not appear to give rise to any human rights concerns.

1.46 The committee intends to write to the Minister for Trade and Competitiveness to draw his attention to the requirement under the Human Rights (Parliamentary Scrutiny) Act 2011 for all bills to be accompanied by a statement of compatibility even where the conclusion is that the bill does not engage or limit any human rights. The purpose of requiring a statement of compatibility is to ensure that a review of any potential human rights concerns has been carried out before the bill is introduced into the Parliament and at the stage the relevant policy is being developed.

8 Explanatory memorandum, p 2.

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Fair Work Amendment (Arbitration) Bill 2013 Introduced into the House of Representatives on 11 February 2013 By: Mr Katter MP

1.47 This bill seeks to amend the Fair Work Act 2009 to remove provisions that prevent the Fair Work Commission (except with express authorisation) from arbitrating certain disputes, to give the Commission the power to deal with a dispute as it considers appropriate.

Compatibility with human rights

1.48 The bill is accompanied by a statement of compatibly which reproduces the template provided by the Attorney-General's Department without making specific reference to the bill or to specific rights that might be affected by the bill. The statement concludes by stating that the bill is compatible with human rights.

Right to work

1.49 The bill might be viewed as promoting the enjoyment of just and favourable conditions of work guaranteed by article 7 of the International Covenant on Economic, Social and Cultural Rights by expanding the range of options available to Fair Work Australia to settle work-related disputes. However, a fuller understanding of the potential impact of the bill and any human rights concerns to which it gives rises, requires an analysis of how the proposed powers interact with the existing powers and practice of Fair Work Australia. The statement of compatibility does not undertake this analysis.

1.50 The committee considers that this bill does not appear to give rise to human rights concerns.

1.51 The committee intends to write to Mr Katter, noting that the statement of compatibility fails to identify specific rights which may be promoted or limited by the bill and that it is a requirement of the Human Rights (Parliamentary Scrutiny) Act 2011 that substantive statements of compatibility be supplied even in cases where the effect of the proposed legislation is to promote rather than limit the enjoyment of a relevant right.

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Marriage Equality Amendment Bill 2013 Introduced into the Senate on 25 February 2013 By: Senator Hanson-Young

1.52 This bill seeks to amend the Marriage Act 1961 to define marriage as a union of two people (regardless of gender); to clarify that ministers of religion are not bound to solemnise marriage by any other law; to remove the prohibition of the recognition of same sex marriages solemnised in a foreign country; and to include a regulation-making power so that consequential amendments can be made to other Acts.

Compatibility with human rights

1.53 The bill is accompanied by a self-contained statement of compatibility. The statement notes that the bill 'does not negatively engage any of the applicable rights or freedoms' and positively engages with the rights contained in article 23 of the International Covenant on Civil and Political Rights (ICCPR) (the right of men and women of marriageable age to marry), article 26 of the ICCPR (equal protection of the law), and article 12 of the International Covenant on Economic, Social and Cultural Rights (right to the highest attainable standard of health).

1.54 Similar bills have been the subject of a number of recent Parliamentary inquiries, including inquiries by House of Representatives Standing Committee on Social Policy and Legal Affairs (which did not make recommendations on the substance of the bills it considered)9 and the Senate Legal and Constitutional Affairs Legislation Committee (which did make such recommendations).10 The Senate Committee report comprised a majority report and a dissenting minority report. The provisions of the bill are consistent with the recommendations of the majority report.

1.55 Many of the human rights issues involved have been explored in depth by these and earlier reports; the discussion below seeks to highlight the major issues.

Same-sex marriage and international human rights law

1.56 International human rights jurisprudence and practice has not, to date, unequivocally found that the right of men and women of marriageable age to marry

9 House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory Report on the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012, 18 June 2012.

10 Senate Legal and Constitutional Affairs Legislation Committee, Report on the Marriage Equality Amendment Bill 2010, 25 June 2012.

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and found a family, the right to privacy and family life or the right to equality, obliges states to provide for the possibility of marriage between persons of the same sex. At the same time, human rights law does not present any barriers to providing for same-sex marriage, and commentators have argued that the case law and practice on this issue is evolving towards recognition of an obligation to permit such marriage. Providing for same-sex marriage may be seen as consistent with the promotion of the right to equality as well as other human rights.

1.57 Human rights jurisprudence has continued to expand its protection of same-sex couples against discrimination, so that it is now broadly accepted under the ICCPR and similar instruments that same-sex couples are generally entitled to be treated equally to unmarried opposite-sex couples.11 This means that in many respects same-sex couples will also be entitled to identical treatment with married opposite-sex couples. A significant number of jurisdictions comparable to Australia have provided for marriage between persons of the same sex.

Right of men and women of marriageable age to marry

1.58 The statement of compatibility states that the bill ‘enhances the right of men and women of marriageable age to marry by extending the right of marriage to all people regardless of whether they wish to marry a same-sex or a different-sex partner.’ While the international case law has not yet gone so far as to accept that the guarantee requires the recognition of same-sex marriage,12 some of the authorities are not recent and there appears to be a trend towards reviewing the case law in the light of the broader guarantees of equality and non-discrimination contained in the various human rights treaties. The position is, as the Australian Human Rights Commission (among others) has noted, that these authorities 'do not prevent the recognition of same-sex marriage, they merely conclude that the ICCPR does not impose a positive obligation on states to do so.'13

Right to freedom of religion and belief

1.59 The bill also has the potential to engage the right to religious freedom guaranteed by article 18 of the ICCPR, if an authorised marriage celebrant were

11 See, eg, Young v Australia, UN Human Rights Committee, Communication No. 941/2000 (2003); X v Austria, App no 19010/07, European Court of Human Rights, Grand Chamber, 19 February 2013; Atala v Chile, Inter-American Court of Human Rights, 24 February 2012.

12 See, eg, Joslin v New Zealand, UN Human Rights Committee, Communication No 902/1999 (2002), and Schalk and Kopf v Austria, App no 30141/04, European Court of Human Rights, 24 June 2010. The issues are discussed in detail in Senate Legal and Constitutional Affairs Legislation Committee, Report on the Marriage Equality Amendment Bill 2010, 25 June 2012. Majority report, paras 2.12 to 2.33 and Dissenting report, paras 1.63 to 1.72.

13 Australian Human Rights Commission, Position Paper on Marriage Equality (2012), p 3.

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obliged to carry out a marriage ceremony for a same-sex couple when to do so may be inconsistent with the celebrant’s religious beliefs. Currently, section 47(a) of the Marriage Act 1961 provides that nothing in that Act imposes an obligation on an authorised celebrant who is a minister of religion, to solemnise any marriage. The bill (clause 8 of the schedule) provides that, to avoid doubt, the amendments made by this bill do not limit the effect of section 47 of the Marriage Act 1961. The bill does not address the situation of authorised celebrants who are not ministers of religion whose religious beliefs might be inconsistent with their solemnising a marriage of a same-sex couple.14

Right to health

1.60 The statement of compatibility states that the bill enhances the right of everyone to the enjoyment of the highest attainable standard of physical and mental health:

It is the clear advice of Australia’s top psychological experts that, for those same-sex couples who do wish to marry, the continued discrimination against them in existing marriage laws is a source of great mental anguish and sometimes mental ill-health. By removing the discrimination from the law, this Bill reduces in part the overall discrimination and alienation suffered by gay and lesbian people which may give rise, in some people particularly young people, to an improvement in physical and mental health.

Equal protection of the law - recognition of overseas same-sex marriages

1.61 At present, section 88EA of the Marriage Act 1961 provides that:

A union solemnised in a foreign country between:

(a) a man and another man; or

(b) a woman and another woman;

must not be recognised as a marriage in Australia.

1.62 The bill proposes the repeal of section 88EA,15 thus providing for the recognition in Australia of marriages between same-sex couples which have been validly entered into overseas in a jurisdiction in which same-sex marriages are lawful. To the extent that the differential treatment of the recognition in Australia of same-sex and opposite-sex couples solemnised overseas may be considered

14 See the discussion of this point in House of Representatives Standing Committee on Social Policy and Legal Affairs, Advisory Report on the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012, 18 June 2012, paras 4.56 to 4.59.

15 Schedule, clause 6 of the bill.

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discriminatory, the bill would promote enjoyment of the right to equal protection of the law guaranteed by article 26 of the ICCPR.

1.63 The committee considers that the bill does not give rise to issues of incompatibility with human rights.

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Minerals Resource Rent Tax Amendment (Protecting Revenue) Bill 2013 Introduced into the House of Representatives on 11 February 2013 By: Mr Bandt MP

1.64 This bill seeks to amend the Minerals Resource Rent Tax Act 2012 to provide that a mining royalty modification should be disregarded for the purposes of working out the amount of a royalty credit. The intention of this amendment is to protect the revenue generated from the Minerals Resource Rent Tax from being eroded by state governments increasing royalties.16 This bill proposes to amend the Minerals Resource Rent Tax Act 2012 to clarify that it was the intention of the principal Act that companies subject to the minerals resource rent tax may claim a credit for royalty payments made to State governments only at the level which applied as of 1 July 2011, and that subsequent increases in royalties not be taken into account for this purpose.

Compatibility with human rights

1.65 The bill is accompanied by a self-contained statement of compatibility which states that the bill does not engage any of the applicable human rights and freedoms, and is therefore compatible with human rights.

1.66 To the extent that the bill seeks to ‘clarify’ the intention of the principal Act and that ‘clarification’ is not the meaning that would be attributed to the Act on ordinary principles of statutory interpretation, it may give rise to issues of retrospectivity in the imposition of liability for tax and of liability to related penalties and offences.

1.67 However, the statement notes that the bill would affect only bodies corporate and that therefore the human rights in the relevant treaties (which are enjoyed by natural persons) do not apply. It is generally considered to be the position that the UN human rights treaties confer rights only on natural persons; however, it has been accepted that there might be circumstances in which the regulation of corporations may have an indirect impact on the rights of natural persons that would engage the treaties.

1.68 The committee considers that this bill does not appear to give rise to human rights concerns.

16 See explanatory memorandum to the bill.

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Superannuation Legislation Amendment (Reform of Self Managed Superannuation Funds Supervisory Levy Arrangements) Bill 2013

Introduced into the House of Representatives on 13 February 2013 Portfolio: Treasury

1.69 This bill introduces reforms to the self-managed superannuation fund (SMSF) supervisory levy arrangements. The purpose is to ensure timely collection of the levy and a higher level of cost recovery in relation to the Australian Taxation Office’s costs of regulating the sector are fully recovered.

1.70 Specifically, the bill increases the maximum levy payable by a trustee of a SMSF for a year of income from $200 to $300 from the 2013-14 income year onwards. It also provides that the regulations may specify when the SMSF levy is due and payable so that the amount may be levied and collected in the same income year.

Compatibility with human rights

1.71 The bill is accompanied by a self-contained statement of compatibility, which concludes that the bill does not engage any human rights.17

1.72 The area of superannuation, including self-managed superannuation funds, is likely to engage the right to an adequate standard of living in article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the right

to social security in article 9 of the ICECSR. The impact on the enjoyment of those rights by the imposition of the increased levy and changing the timing for its payment appears minimal.

1.73 The committee considers that this bill does not appear to give rise to any human rights concerns.

17 Statement of compatibility, para 1.32

Part 2

Legislative instruments registered with FRLI 5 January - 15 February 2013

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Consideration of legislative instruments 2.1 The committee has considered 300 legislative instruments registered with the Federal Register of Legislative Instruments (FRLI) between 5 January and 15 February 2013. The full list of instruments scrutinised by the committee can be found in Appendix 1.

2.2 211 instruments do not appear to raise any human rights concerns and are accompanied by statements of compatibility that are adequate.

2.3 83 instruments do not appear to raise any human rights concerns but are accompanied by statements of compatibility that do not fully meet the committee's expectations. As the instruments in question do not appear to raise human rights compatibility concerns, the committee has written to the relevant Ministers in a purely advisory capacity providing guidance on the preparation of statements of compatibility. The committee hopes that this approach will assist in the preparation of future statements of compatibility that conform more closely to the committee's expectations.

2.4 The committee is seeking further information from the relevant Minister on the following instruments before forming a view about their compatibility with human rights:

• Marine Order 95 (Marine pollution prevention - garbage) 2013

• National Vocational Education and Training Regulator (Charges)

Determination 2012 (No. 1)

• Native Title (Assistance from Attorney-General) Guideline 2012

• Student Assistance (Education Institutions and Courses) Amendment

Determination 2012 (No. 1)

2.5 The committee has deferred its consideration of the following instruments to allow closer consideration of their impact on human rights:

• Social Security (Administration) - Queensland Commission (Family

Responsibilities Commission) Specification 2012

• Work Health and Safety Act 2011 (application to Defence activities and

Defence members) Declaration 2012

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

The committee has sought further information in relation to the following legislative instruments Marine Order 95 (Marine pollution prevention - garbage) 2013 FRLI ID: F2013L00059 Portfolio: Infrastructure and Transport

Summary of committee view

2.7 The committee seeks clarification as to whether requiring a ship to be detained on the written order of a surveyor is compatible with the right to privacy, and whether the strict liability offence of failing to comply with an order is compatible with the presumption of innocence.

Overview

2.8 This instrument prescribes matters necessary to give effect to revised Annex V of MARPOL (the International Convention for the Prevention of Pollution from Ships 1973). MARPOL is the main international convention covering prevention of pollution of the marine environment by ships from operational or accidental causes.

2.9 The instrument:

(a) prescribes matters in relation to the discharge of cargo residues, cleaning agents and additives and animal carcasses at sea and sets out garbage management plans for ships; and

(b) sets out arrangements for Port State control on operational requirements in relation to the prevention of pollution by garbage from ships.

Compatibility with human rights

2.10 The statement of compatibility included with the explanatory statement states '[t]his instrument does not engage any of the applicable rights or freedoms' and is therefore compatible with human rights.

2.11 The instrument, in setting out Port State control on ships, allows a surveyor to inspect a ship in an Australian port1 and may detain a ship in order to carry out

1 Clause 14.

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that inspection.2 The inspection can take place where the surveyor 'has reasonable grounds to think that the master or crew of the ship is not familiar with essential shipboard procedures for the prevention of pollution by garbage'.3 The master of a ship given an order in writing that the surveyor intends to inspect the ship, must comply with the order.4 This obligation on the master is a 'penal provision' which means it is an offence to fail to comply subject to 50 penalty units (or $8,500).5 This is defined in the Protection of the Sea (Prevention of Pollution from Ships) (Orders) Regulations 1994 as a strict liability offence.

2.12 Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence. Interference with the workplace has been held to engage the right to privacy, so any limitation on this right - for example, by requiring a ship to be detained and inspected - needs to be for a legitimate purpose and be reasonable and proportionate to achieving that purpose.

2.13 Article 14(2) of the ICCPR provides that everyone charged with a criminal offence has the 'right to be presumed innocent until proved guilty according to law.' As strict liability offences allow for the imposition of criminal liability without the need to prove fault, strict liability offences directly engage and limit the presumption of innocence in article 14(2) of the ICCPR. The committee notes that strict liability offences will not necessarily violate the presumption of innocence so long as they pursue a legitimate aim and are reasonable, necessary and proportionate to that aim.

2.14 The committee is of the view that it is a legitimate objective to seek to regulate ships for the prevention of pollution of the sea. However, the committee intends to write to the Minister for Infrastructure and Transport to seek clarification as to whether requiring a ship to be detained on the written order of a surveyor is compatible with the right to privacy, and whether the strict liability offence of failing to comply with an order is compatible with the presumption of innocence.

2 Clause 15(1).

3 Clause 14.

4 Clause 15(3).

5 See section 6 of the definition of 'penal provision' which states that a penal provision 'means a penal provision for section 4 of the Protection of the Sea (Prevention of Pollution from Ships) (Orders) Regulations 1994. Regulation 4 provides that a person must not fail to comply with an order, subject to 50 penalty units, and this offence 'is an offence of strict liability'.

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

National Vocational Education and Training Regulator (Charges) Determination 2012 (No. 1) FRLI ID: F2012L02582 Portfolio: Tertiary Education, Skills, Science and Research

Summary of committee view

2.15 The committee seeks clarification in relation to the possible impact that the imposition of charges on registered training organisations may have on fair trial and fair hearing rights.

Overview

2.16 This instrument sets out the formula that will enable the Australian Skills Quality Authority (ASQA) to charge registered training organisations (RTOs) for compliance audits and the investigation of substantiated complaints conducted by ASQA.

Compatibility with human rights

2.17 The statement of compatibility acknowledges that the instrument engages the right to education contained in article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It states that 'charging for substantiated complaints will provide additional encouragement for RTOs to comply with the requirements of the National Vocational Education and Training Regulator Act 2011'. It is also suggested that 'this will assist ASQA to undertake its regulatory functions in the vocational education and training (VET) sector, ensuring improved quality and greater integrity in the VET system and will therefore protect students' rights to education'. The statement of compatibility concludes:

To the extent that the right to education is engaged, it is reasonable, necessary and proportionate for the Instrument to set a formula that should act as a deterrent to the poor quality provision of vocational training.

2.18 The imposition of charges as provided for in the instrument, particularly where they are intended to have a deterrent effect, may constitute the imposition of a penalty. As such, the instrument may engage the fair trial and fair hearing rights contained in article 14 of the International Covenant on Civil and Political Rights (ICCPR).

2.19 The committee seeks clarification from the Minister for Tertiary Education, Skills, Science and Research in relation to the possible impact that the imposition of charges on RTOs may have on fair trial and fair hearing rights. In particular, the committee seeks information about:

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

• whether imposing a charge on a RTO for the conduct of a compliance

audit or the investigation of a substantiated complaint is discretionary;

• if it is discretionary, what processes or guidelines will be utilised to

determine how that discretion will be exercised; and

• any review processes that may be available to RTOs that have been

charged for a compliance audit or the investigation of a substantiated complaint.

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Native Title (Assistance from Attorney-General) Guideline 2012 F2012L02564

Portfolio: Attorney-General

Summary of committee view

2.20 The committee seeks clarification as to the possible impact changes to the guidelines for providing financial assistance may have on fair trial and fair hearing rights.

Overview

2.21 This instrument sets out new guidelines that are to be applied in authorising the provision of financial assistance to respondents under s 213A of the Native Title Act 1993. Under the new arrangements, financial assistance for most native title respondents will now be limited to disbursements only. Funds for legal representation costs will now only be available in exceptional circumstances. These exceptional circumstances are where:

• new or novel questions of law directly related to an applicant's

interests are considered; or

• a court requires an applicant's participation beyond participation in

standard procedural processes.

Compatibility with human rights

2.22 The statement of compatibility states that the regulation does not engage any of the applicable rights or freedoms.

2.23 However, by limiting legal assistance to native title respondents the new guidelines may engage the fair trial and fair hearing rights contained in article 14 of the International Covenant on Civil and Political Rights.

2.24 The committee seeks clarification from the Attorney-General in relation to the differences between the new guidelines and the previous version of the guidelines, and the possible impact these changes may have on fair trial and fair hearing rights.

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Student Assistance (Education Institutions and Courses) Amendment Determination 2012 (No. 1) F2012L02588 Portfolio: Tertiary Education, Skills, Science and Research

Summary of committee view

2.25 The committee seeks clarification of the possible impact that the removal of the three courses from the list of 'tertiary courses' may have on the right to education and the right to social security.

Overview

2.26 This instrument amends the list of Masters courses provided by higher education providers that are classified as 'tertiary courses' for the purposes of the Student Assistance Act 1973 (the Act). The determination of courses as 'tertiary courses' for the purposes of the Act allows people studying those courses to qualify for certain income support payments under social security law, such as Austudy and Youth Allowance (provided they meet the other eligibility criteria for those payments).

2.27 The instrument lists 35 new courses, replaces the name of four courses, and removes three existing courses from the list of 'tertiary courses'. The three courses removed from the list are:

• Master of Nursing (Nurse Practitioner), Griffith University;

• Master of Teaching (Professional Practice) - Secondary, Griffith

University;

• Master of Teaching (Professional Practice) - Primary, Griffith University.

2.28 These three courses were removed at the request of the education provider as the provider considered that the courses are no longer eligible for approval.

Compatibility with human rights

2.29 The statement of compatibility acknowledges that the instrument engages the right to education contained in article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and concludes that the 'instrument is compatible with human rights as it may enable students to access education.'

2.30 However, by removing three courses from the list of 'tertiary courses' for the purpose of the Act, the instrument may limit the right to education contained in article 13 of ICESCR and the right to social security contained in article 9 of ICESCR.

2.31 The committee seeks clarification from the Minister for Tertiary Education, Skills, Science and Research in relation to the possible impact that the removal of the three courses from the list of 'tertiary courses' may have on the right to

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education and the right to social security. In addition, the committee seeks information as to why it is considered that the three courses are 'no longer eligible for approval'.

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

The committee has deferred its consideration of the following legislative instruments Social Security (Administration) - Queensland Commission (Family Responsibilities Commission) Specification 2012 F2012L02581 Portfolio: Families, Community Services and Indigenous Affairs

Overview

2.32 Under the Cape York Welfare Reform Trial a person can be subject to income management under s 123UF of the Social Security (Administration) Act 1999 after a decision by the 'Queensland Commission'. This instrument ensures that the Family Responsibilities Commission (FRC) continues to be specified for the purposes of the definition of the 'Queensland Commission' beyond 1 January 2013.

2.33 The underlying purpose of the instrument is to allow income management to continue in Cape York for a further 12 months (until 1 January 2014).

2.34 The committee has decided to examine this instrument as part of its examination of the Stronger Futures package of legislation.

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2012 F2012L02503 Portfolio: Defence

Overview

2.35 This instrument declares that specified provisions of the Work Health and Safety Act 2011 (the Act) do not apply, or apply subject to modifications and adaptations, in relation to Defence activities and Australian Defence Force members.

2.36 In particular, the instrument declares that the following sections of the Act do not apply to Australian Defence Force warlike and non-warlike operational deployments:

• Section 38 - Incident notification;

• Section 39 - Site preservation.

2.37 Further, the instrument declares that the following sections of the Act do not apply to Australian Defence Force members:

• Sections 47-49 - Consultation with workers;

• Sections 50-79 - Health and safety representatives and work groups;

• Sections 84-89 - Right to cease or direct cessation of unsafe work.

2.38 The committee has decided to defer consideration of this legislative instrument to enable it to examine the instrument in more detail before forming a view on its compatibility with human rights.

Part 3

Responses to the committee's comments on bills and legislative instruments

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Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 Introduced into the House of Representatives on 28 November 2012; before Senate Portfolio: Families, Housing, Community Services and Indigenous Affairs PJCHR comments: Report 1/13, tabled on 6 February 2013 Ministerial response dated: 21 February 2013

Summary of committee view

3.1 The committee thanks the Minister for her response.

3.2 The committee considers that the Minister’s response has adequately addressed its concerns and notes that it would be helpful for this information to be included in the explanatory memorandum.

Background

3.3 The bill sets out Parliament's commitment to achieving recognition of Aboriginal and Torres Strait Islander peoples in the Constitution. It provides that a review must take place within 12 months after the Act's commencement to consider the readiness of the public to support a referendum to amend the Constitution to recognise Aboriginal and Torres Strait Islander peoples.

3.4 The committee considered that the bill appeared to be consistent with the promotion of the rights of Aboriginal and Torres Strait Islander peoples, but sought further information as to why the issue of a constitutional prohibition of racial discrimination had not been included in the scope of the review proposed by the bill.

3.5 The Minister's response is attached.

Committee’s response

3.6 The committee thanks the Minister for confirming that the issue of a constitutional prohibition of racial discrimination falls within the scope of the future review by virtue of proposed section 4(2)(b)(i) of the bill, which provides that the review must take into account the work of the Expert Panel on the recognition of Aboriginal and Torres Strait Islander peoples in the Constitution. The Expert Panel recommended the inclusion of a prohibition against discrimination on the grounds of race, colour or ethnic or national origin in the Constitution.

3.7 The committee notes that the statement in the explanatory memorandum that the bill ‘does not reflect the Expert Panel’s recommendation for a constitutional prohibition of racial discrimination’ could be viewed as misleading and suggests that it would be helpful to clarify this issue in the explanatory memorandum.

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Agricultural and Veterinary Chemicals Legislation Amendment Bill 2012 Introduced into the House of Representatives on 28 November 2012; before Reps Portfolio: Agriculture, Fisheries and Forestry PJCHR comments: Report 1/13, tabled on 6 February 2013 Ministerial response dated: 27 February 2013

Summary of committee view

3.1 The committee thanks the Minister his response. The committee notes that it would have been useful for this information to have been included in the statement of compatibility.

3.2 The committee has decided to defer finalising its views on the human rights compatibility of the bill to enable closer examination of the issues in light of the information provided in the Minister’s response.

Background

3.3 This bill proposes reforms to the system of regulation of agricultural and veterinary chemicals, to improve the efficiency of the current regulatory arrangements and provide greater certainty that chemicals approved for use in Australia are safe.

3.4 The committee sought further information from the Minister about the compatibility of monitoring and investigatory powers in the bill with the right to privacy in article 17 of the International Covenant on Civil and Political Rights (ICCPR) and whether provisions imposing a civil penalty and reverse onus offences are consistent with the fair trial rights in article 14 of the ICCPR.

3.5 The Minister's response is attached.

Committee’s response

3.6 The committee is considering the Minister's response and intends to publish its views on the bill's compatibility with human rights in a future report.

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Australian Education Bill 2012 Introduced into the House of Representatives on 28 November 2012; before Reps Portfolio: Education, Employment and Workplace Relations PJCHR comments: Report 1/13, tabled on 6 February 2013 Ministerial response dated: 22 February 2013

Summary of committee view

3.1 The committee thanks the Minister for his response.

3.2 The committee is satisfied that this bill is unlikely to give rise to any human rights concerns and makes no further comment on this bill. The committee hopes that active consideration will be given to the issue of rights in work when developing the details of the National Plan for School Improvement.

Background

3.3 This bill is framework legislation that sets out the Commonwealth’s commitment to work with state, territory and non-government authorities to undertake schooling reform, but it does not in itself create any legally binding rights or duties.

3.4 The committee sought clarification from the Minister of the potential impact of the reform directions referred to in the bill on the right of teachers to just and favourable conditions of work, which is guaranteed in article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). In particular, it sought clarification of whether the commitment in clause 7 of the bill to ‘rigorous professional standards’ and to the improvement of teacher performance over time to be improved over time, which would presumably require teachers to undertake additional training and evaluation and the achievement of which would be influenced by available time and resources, might have an impact on the right to just and favourable conditions of work.

3.5 The Minister's response is attached.

Committee’s response

3.6 In light of the information provided and noting that the bill does not create any legally binding rights or duties, the committee is satisfied that the bill does not directly impact on the right of teachers to just and favourable conditions of work.

3.7 The committee notes the Minister’s assurance that any future amendments to the bill will highlight the issue of work-related rights should they be engaged in the final agreed arrangements with state and territory and non-government educational authorities.

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Australian Sports Anti-Doping Authority Amendment Bill 2013 Introduced into the Senate on 6 February 2013; before Senate Portfolio: Sport PJCHR comments: Report 2/13 , tabled on 13 February 2013 Ministerial response dated: 27 February 2013

Summary of committee view

3.1 The committee thanks the Minister for her detailed response.

3.2 The committee remains concerned that subjecting a person to a penalty for failing to comply with a disclosure notice, without allowing for any exceptions, may interfere with the right to respect for family life. The committee suggests that consideration be given to allowing family members to raise an objection to complying with a disclosure notice if to do so may cause harm to the person or their family relationship, rather than being immediately subject to a civil penalty order.

3.3 The committee has decided to defer finalising its views on the fair trial implications of the civil penalty provisions in the bill to enable closer examination of the issues in light of the information provided.

3.4 The committee notes the Minister's responses in relation to freedom of association and freedom of expression which adequately addresses the committee's concerns and makes no further comments on those aspects of the bill.

Background

3.5 This bill seeks to amend the Australian Sports Anti-Doping Authority Act 2006 to strengthen the Australian Sports Anti-Doping Authority's (ASADA) investigation functions and to enhance information sharing arrangements with other government agencies. In particular, it provides the Chief Executive Officer (CEO) of ASADA the power to issue a disclosure notice compelling persons of interest to assist ASADA's investigations. Failure to comply with the notice subjects the person to a civil penalty. It also introduces a number of provisions relating to the enforcement of the civil penalty.

3.6 The committee sought clarification and further information from the Minister as to:

• whether the minimum guarantees in criminal proceedings apply to the

bill's new civil penalty provisions and, if so, whether the new provisions allowing criminal proceedings to commence regardless of whether a

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civil penalty order has been made for the same conduct, are consistent with the right not to be tried or punished twice for the same offence;

• the application of the bill's provisions on the right not to incriminate

oneself;

• whether provisions compelling any person, including the family

member of an athlete, to answer questions or produce information or documents, engages the right not to be subject to arbitrary or unlawful interference with the family; and

• whether restrictions on members of the Australian Sports Drug Medical

Advisory Committee on whom they may liaise with, and what discussions they may contribute to, are consistent with the rights to freedom of expression and freedom of association

3.7 The Minister's response is attached.

Committee’s response

3.8 The committee notes the Minister's comments that a disclosure notice requiring a person to give information can only be issued when the person issuing it 'reasonably believes' that a person has information that may be relevant to the administration of the national anti-doping scheme. However, the committee remains concerned that applying this obligation without exception may interfere with the right to respect for family life as family members could be subject to a civil penalty for failing to provide information or documents in relation to their spouse, partner, parent or child.

3.9 As the bill engages and limits the right to a family life, the key issue is whether the limitation is reasonable, necessary and proportionate to achieve a legitimate objective. The committee accepts that the provisions pursue the legitimate aim of investigating potential breaches of anti-doping rules. However, the committee considers that the provisions, in not allowing a person to object to a disclosure notice on the basis that the information sought relates to a family member, do not appear to be proportionate to the aim sought to be achieved, and therefore may not accord with the right to a family life.

3.10 The committee suggests that consideration be given to allowing family members to raise an objection to complying with a disclosure notice if to do so may cause harm to the person or their family relationship, rather than being immediately subject to a civil penalty order.

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Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 Introduced into the House of Representatives on 28 November 2012; before Senate Portfolio: Justice PJCHR comments: Report 1/13, tabled on 6 February 2013 Ministerial response dated: 22 February 2013

Summary of committee view

3.1 The committee thanks the Minister his response.

3.2 The committee has decided to defer finalising its views on the fair trial implications of the bill to enable closer examination of the issues in light of the information provided in the Minister’s response.

Background

3.3 This bill makes amendments to the Proceeds of Crime Act 2002 relating to the tracing, restraint and confiscation of proceeds of crime, including 'unexplained wealth'. Among other things, the bill will extend limitations on the use of proceeds to pay for legal expenses in certain proceedings under the Proceeds of Crime Act 2002 to unexplained wealth proceedings.

3.4 The statement of compatibility noted that proceedings under the Proceeds of Crime Act 2002 are civil proceedings heard by courts in accordance with civil procedures.

3.5 The committee sought further information from the Minister as to why restraint, use and confiscation of 'unexplained wealth' should not be viewed as involving a criminal penalty for the purposes of the International Covenant on Civil and Political Rights (ICCPR). The committee also sought clarification as to whether there are less restrictive means available to regulate the use of proceeds for legal expenses.

3.6 The Minister's response is attached.

Committee’s response

3.7 The committee is considering the Minister's response and intends to publish its views on the bill's compatibility with human rights in a future report.

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Customs Amendment (Miscellaneous Measures) Bill 2012 Introduced into the House of Representatives on 28 November 2012; before Senate Portfolio: Home Affairs PJCHR comments: Report 1/13, tabled on 6 February 2013 Ministerial response dated: 28 February 2013

Summary of committee view

3.1 The committee thanks the Minister for his response but notes that the response appears to be based on a misunderstanding of the nature and scope of the presumption of innocence in article 14(2) of the International Covenant on Civil and Political Rights (ICCPR), and appears to misunderstand the criminal context of strict liability offences.

3.2 The committee notes that the response does not address the key information sought with regard to whether the strict liability offence in the bill is justifiable - that is whether it aimed at a legitimate objective and is reasonable, necessary and proportionate to that objective. Without this information the committee is unable to assess whether the bill is compatible with human rights. The committee urgently seeks the Minister’s advice on this issue so that it can finalise its consideration of this bill.

Background

3.3 The bill amends the Customs Act 1901 to introduce a new strict liability offence with a penalty of 1,000 penalty units for bringing into Australia a new category of goods known as 'restricted goods'. Regulations will prescribe what will be prohibited.

3.4 The statement of compatibility stated that the bill creates ‘a new offence with a civil penalty’ that indirectly engaged the presumption of innocence in article 14(2) of the ICCPR because it was a ‘civil penalty regime [that] subjects a person to a high penalty and is intended to be punitive or deterrent in nature’.

3.5 The committee noted that strict liability offences directly engage the presumption of innocence and sought clarification from the Minister as to whether the offence was compatible with the presumption to innocence under article 14(2) of the ICCPR.

3.6 The Minister's response is attached.

Committee’s response

3.7 As strict liability offences allow for the imposition of criminal liability without the need to prove fault, the committee reiterates its view that the strict liability offence in the bill directly engages and limits the presumption of innocence in article 14(2) of the ICCPR.

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3.8 The committee notes that strict liability offences will not necessarily violate the presumption of innocence so long as they pursue a legitimate aim and are reasonable, necessary and proportionate to that aim. As the Minister’s response does not provide this information, the committee is unable to assess whether the proposed strict liability offence in the bill is consistent with article 14(2) of the ICCPR.

3.9 The committee refers the Minister to the Attorney-General’s Department’s Guide to Framing Commonwealth Offences for a description of the differences between criminal and civil penalties.

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Extradition (Convention for the Suppression of Acts of Nuclear Terrorism) Regulation 2012 F2012L02434 Portfolio: Attorney-General PJCHR comments: Report 1/13, tabled on 6 February 2013 Ministerial response dated: 6 February 2013 (received 1 March 2013)

Summary of committee view

3.1 The committee thanks the Minister for his detailed response. The committee has decided to defer its consideration of this matter until a future report.

Background

3.2 This instrument applies the Extradition Act 1988 to all countries who are party to the International Convention for the Suppression of Acts of Nuclear Terrorism (ICSNT). It does so by ensuring that the definition of an 'extradition country' in the Extradition Act is taken as including a country for which the ICSNT is in force.

3.3 The statement of compatibility stated that the instrument 'does not engage any of the applicable rights or freedoms' and that the existing extradition regime 'contains a number of human rights safeguards that appropriately balance Australia's need to comply with our international obligations while ensuring that the rights of individuals are protected'.

3.4 The committee was of the view that it was not clear from the statement of compatibility how the existing extradition arrangements are considered to be compatible with human rights. The committee said that in order for it to be satisfied that the instrument is compatible with human rights it is necessary to understand how the Extradition Act 1988 complies with human rights.

3.5 The Minister's response sets out information on the human rights protections contained in Australia's extradition regime.

1.2 The Minister's response is attached.

Committee’s response

3.6 In a future report the committee will be considering instruments registered from 16 February 2013, which will include consideration of the Extradition (Cybercrime) Regulation 2013 [F2013L00214] registered on 18 February 2013.

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3.7 As the issues in this instrument are substantially the same as the Extradition (Cybercrime) Regulation 2013 the committee has decided to defer its consideration of this matter until a future report.

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Health Insurance (Dental Services) Amendment Determination 2012 (No. 1) FRLI ID: F2012L01837 Tabled in the House of Representatives and the Senate on 10 September 2012 Portfolio: Health and Aging PJCHR comments: Report 7/12, tabled on 28 November 2013 Ministerial response dated: 5 February 2013

Summary of committee view

3.1 The committee thanks the Minister for her response.

3.2 In light of the information provided, the committee considers that the closure of the Medicare Chronic Disease Dental Scheme is likely to be compatible with human rights. The committee however highlights the importance of establishing appropriate monitoring mechanisms to ensure that the replacement schemes, once fully operational, do indeed provide for the essential treatment needs of patients suffering from complex chronic illnesses.

Background

3.3 This determination amends the Health Insurance (Dental Services) Determination 2007 to enable a staged cessation to the payment of Medicare benefits for services available to people with chronic conditions and complex care needs whose oral health is impacting on their general health (also known as the Medicare Chronic Disease Dental Scheme or CDDS).

3.4 The statement of compatibility acknowledged that the closure of the CDDS could be considered to limit the right to health in article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the right to social security in article 9 of ICESCR. The statement argued that the changes were nevertheless compatible with these rights because:

- the closure of the CDDS is necessary to enable limited resources to be redirected to dental programs that more effectively target those most in financial need; and

- the provision for the staged closure of the CDDS allows current patients to continue treatment over a transition period, thereby mitigating any adverse impact on a person’s existing reliance on the payment of Medicare benefits under the CDDS. It is also suggested that affected individuals will be able to access alternative means of support through state and territory public dental services, or Commonwealth funded rebates for private health insurance covering dental treatment.

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3.5 To assist its consideration of the human rights compatibility of the instrument, the committee sought further information from the Minister for Health on the transitional arrangements and coverage of the replacement schemes.

3.6 The Minister's response is attached.

Committee’s response

3.7 The committee has previously stated that:

The closure of the CDDS is likely to be considered as either retrogressive or a limitation on the rights to health and social security because they remove existing entitlements. It is therefore necessary for the government to demonstrate that the measures in question pursue a legitimate objective and have a reasonable relationship of proportionality between the means employed and the objective sought to be realised. In short, to be compatible with human rights, the closure of the CDDS must be (i) aimed at achieving a legitimate objective; and be (ii) rationally connected and proportionate to that objective.

3.8 In light of the information provided, the committee accepts that the closure of the CDDS is aimed at a legitimate objective, namely, redirecting funds to dental programs that more effectively target those most in financial need. The committee also accepts that once fully operational the National Partnership Agreement (NPA) for Treating More Public Dental Patients replacement scheme would appear to adequately cover the vast majority of existing CDDS patients. In particular, the committee notes the Minister's estimate that just under 80% of the CCDS patients will be eligible for treatment under the NPA.

3.9 This would appear to broadly accord with the figures noted by Coalition Senators in additional comments to the Report of the Senate Community Affairs Legislation Committee Inquiry into the Dental Benefits Amendment Bill 2012 (October 2012), that some 80 per cent of patients accessing the CDDS were health care card holders. The Coalition Senators had expressed concern that the closure of the CDDS would leave these patients unable to access the dental care required to assist them with the management of complex chronic illnesses.

3.10 The committee also notes the Minister's assurance that CDDS patients will have access to treatment during the transitional period through various avenues, including state and territory public health dental services based on clinical need.

3.11 The committee therefore considers that any limitations on the rights to health and social security arising from the closure of the CDDS are likely to be justifiable as reasonable, necessary and proportionate to a legitimate objective.

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Migration Legislation Amendment Regulation 2012 (No. 5) FRLI ID: F2012L02236 Tabled in the House of Representatives and the Senate on 26 November 2012 Portfolio: Immigration and Citizenship

Migration Regulations 1994 - Specification under schedule 4, part 1, Public Interest Criterion 4021 - Class of Passports - November 2012

FRLI ID: F2012L02241 Tabled in the House of Representatives and the Senate on 26 November 2012 Portfolio: Immigration and Citizenship PJCHR comments: Report 1/13, tabled on 6 February 2013 Ministerial response received: 4 March 2013

Summary of committee view

3.1 The committee thanks the Minister for his response, notes that article 26 of the International Covenant on Civil and Political Rights (ICCPR) is engaged by these instruments but having considered the Minister's explanation makes no further comment on these instruments.

Background

3.2 The Migration Legislation Amendment Regulation 2012 (No. 5) amends the Migration Regulations 1994 and the Australian Citizenship Regulations 2007. Most relevantly, it introduces a Public Interest Criterion (PIC 4021) requiring applicants to present a valid travel document at time of visa grant. To satisfy PIC 4021 the visa applicant must either:

(a) ... hold a valid passport that:

(i) was issued to the applicant by an official source; and

(ii) is in the form issued by the official source; and

(iii) is not in a class of passports specified by the Minister in an instrument in writing for this clause; or

(b) [it must be found that] it would be unreasonable to require the applicant to hold a passport.

3.3 This requirement applies to a large number of visa categories under the Migration Regulations, however it is not clear from the explanatory statement which visa categories PIC 4021 applies to (and whether it applies to protection or humanitarian visas).

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3.4 The Specification by the Minister for Immigration and Citizenship under Schedule 4, Part 1, Public Interest Criterion 4021 of the Migration Regulations 1994, prescribes the types of passports and travel documents that will not be considered to be valid for the purposes of meeting PIC 4021. The purpose of the instrument is stated as being 'to prevent non-citizens, holding unacceptable travel documents, being granted a visa'.

3.5 The Specification prescribes two types of passports or travel documents as those that will not be valid:

(a) passports or documents having certain characteristics (including documents that have been damaged so that it is not possible to confirm conclusively the holder's identity); and

(b) 33 specified travel documents, including those from particular countries (such as Somalia) or specific types of travel documents (for example, a Democratic Republic of the Congo diplomatic and service 32-page passport bearing particular words).

3.6 The committee had sought further clarification from the Minister for Immigration and Citizenship on the potential rights impacts of these instruments and the classes of visas to which new Public Interest Criterion 4021 applies

3.7 The Minister's response is attached.

Committee’s response

3.8 The committee considers that treating people who hold certain classes of passports differently does engage the right to non-discrimination under article 26 of the International Covenant on Civil and Political Rights, but notes that in light of the Minister's explanation it considers there is an objective and reasonable basis for the differential treatment.

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National Gambling Reform Bill 2012 Introduced into the House of Representatives on 1 November 2012; passed both Houses on 29 November 2012 Portfolio: Families, Housing, Community Services and Indigenous Affairs PJCHR comments: Report 7/12, tabled on 28 November 2013 Ministerial response dated: 5 February 2013 (received on 27 February 2013)

Summary of committee view

3.1 The committee thanks the Minister for her response.

3.2 In light of the information provided, the committee is satisfied its concerns have been adequately addressed. The committee notes that it would have been useful for the relevant information to have been included in the statement of compatibility.

3.3 The committee notes that this bill has been passed by the Parliament.

Background

3.4 This bill sets out extensive new regulatory arrangements intended to address problem gambling through the introduction of a system of voluntary pre-commitment and related measures, including monitoring and enforcement measures underpinning the operation of the scheme.

3.5 The committee sought clarification from the Minister as to whether the monitoring and enforcement powers in the bill were consistent with human rights, in particular, whether the powers to require a person to provide information, to answer questions and to produce documents were consistent with the right not to incriminate oneself in article 14(3)(g) of the International Covenant on Civil and Political Rights (ICCPR) and rights to privacy in article 17 of the ICCPR.

3.6 The Minister's response is attached.

Committee’s response

3.7 In light of the information provided, the committee is satisfied that the powers to require a person to provide information are likely to be consistent with the right not to incriminate oneself in article 14(3)(g) of the ICCPR and the right to privacy in article 17 of the ICCPR. The committee, however, notes that while the monitoring and enforcement powers in this bill may be consistent with other Commonwealth regulatory regimes, this is not in itself a justification for compatibility with Australia's human rights obligations.

3.8 The committee thanks the Minister for noting that the bill also engages the right to a fair hearing in article 14(1) of the ICCPR and explaining how the infringement notice scheme in the bill is consistent with that right.

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3.9 The committee notes that the bill has already been passed by the Parliament.

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Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures) Bill 2012 Introduced into the House of Representatives on 28 November 2012; passed both Houses on 28 February 2013 Portfolio: Resources and Energy PJCHR comments: Report 1/13, tabled on 6 February 2013 Ministerial response dated: 28 February 2013

Summary of committee view

3.1 The committee thanks the Minister for his response.

3.2 The committee has decided to defer finalising its views on the fair trial implications of the civil penalty provisions in the bill to enable closer examination of the issues in light of the information provided.

3.3 The committee notes that the Minister's response did not address the issue of whether the reverse onus offences in the bill are compatible with human rights and requests that the Minister provide this information to the committee at his earliest convenience to enable the committee to finalise its overall assessment of this bill.

Background

3.4 This bill amends the Offshore Petroleum and Greenhouse Gas Storage Act 2006 to strengthen the regulatory regime of that Act. In particular, the bill responds to the June 2010 Report of the Montara Commission of Inquiry, which followed a blowout in 2009 at the Montara Wellhead Platform off the northern coast of Western Australia.

3.5 The committee sought further information from the Minister about the compatibility of the reverse onus offences and civil penalty provisions in the bill with the fair trial rights in article 14 of the International Covenant on Civil and Political Rights (ICCPR).

3.6 The Minister's response is attached.

Committee’s response

3.7 The committee notes that it is considering the Minister's response and intends to publish its views on the bill's compatibility with human rights in a future report.

3.8 The committee notes that the response did not contain any information that addressed the committee's concerns with regard to the reverse onus offences in the bill.

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3.9 The committee notes that the bill has already been passed by the Parliament.

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Protection of Cultural Objects on Loan Bill 2012 Introduced into the House of Representatives on 28 November 2012; passed both Houses on 28 February 2013 Portfolio: Regional Australia, Local Government, Arts and Sport PJCHR comments: Report 1/13, tabled on 6 February 2013 Ministerial response dated: 19 February 2013

Summary of committee view

3.1 The committee thanks the Minister for his detailed response and notes that it would have been useful for this information to have been included in the statement of compatibility.

3.2 The committee has decided to defer finalising its views on the human rights compatibility of the bill to enable closer examination of the issues in light of the information provided in the Minister’s response, and has sought further information to assist it in making its decision.

3.3 The committee notes that the bill has already been passed by the Parliament.

Background

3.4 This bill provides that where cultural objects are in Australia on temporary loan from overseas, certain legal proceedings cannot be brought against those objects. This includes protection against legal actions to recover property that may have been unlawfully obtained by the overseas lender, to seize property that may have been the subject of an order before an overseas court, or enforcement proceedings to seize the property in satisfaction of a debt or other liability.

3.5 The committee noted that excluding the jurisdiction of Australian courts represented a significant restriction on the right to access to justice under article 14 of the International Covenant on Civil and Political Rights (ICCPR) and sought clarification from the Minister as to why less restrictive approaches had not been adopted. The committee also asked how these measures were consistent with Australia's obligations under other international conventions relating to the return of cultural objects.

3.6 The Minister's response is attached.

Committee’s response

3.7 The committee notes that it is considering the Minister's response and intends to publish its views on the bill's compatibility with human rights in a future report.

3.8 The Minister argues that this legislation pursues a legitimate objective because it seeks to overcome 'the difficulties that Australia's major cultural

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institutions are experiencing in securing loans of cultural objects from overseas'. To support this argument, the Minister says that 'significant recent exhibitions have been affected by the absence of legislation with loans denied late in the process of developing exhibitions and in other cases loans only proceeding as a result of intensive negotiations to appease lender concerns'. The Minister however notes that 'the ability to release details about those loans is limited by the commercial-in-confidence nature of the loan negotiations and diplomatic sensitivities'.

3.9 The committee intends to write to the Minister for Regional Australia, Local Government, Arts and Sport to request to review this information on a confidential basis so that it can satisfy itself that these measures are evidence-based.

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Tax Laws Amendment (2012 Measures No. 4) Bill 2012 Introduced into the House of Representatives on 28 June 2012; passed both Houses on 19 September 2012 Portfolio: Treasury PJCHR comments: Report 1/12, tabled on 22 August 2012 Ministerial response dated: 25 January 2013

Summary of committee view

3.1 The committee thanks the Treasurer for his response but notes that it does not adequately address the committee’s concerns. On the basis of the information provided, the committee is unable to conclude that the differential treatment applied in the transitional rules of the bill is compatible with human rights.

3.2 The committee notes that the bill has already been passed by the Parliament and regrets that the Treasurer did not respond to the committee's concerns more fully and in a timelier manner.

Background

3.3 The bill introduces changes to the concessional tax treatment of living-away-from-home allowances and includes transitional arrangements which provide for the different treatment of taxpayers based on their residency status. Temporary and foreign residents will be subject to more stringent conditions during the transitional period than permanent residents. Specifically, temporary and foreign residents will be required to maintain a home in Australia to be able to access the tax concession during the transitional period. Permanent residents, on the other hand, will be not be subject to this requirement during the transitional period. Both sets of residents will be required to maintain a home in Australia to access the tax concession after the transitional period is over.

3.4 The committee sought further information from the Treasurer regarding the basis for the differentiated treatment of taxpayers in the transitional rules to assist its consideration of whether these measures are consistent with the right to non-discrimination in article 26 of the International Covenant on Civil and Political Rights (ICCPR).

3.5 The Treasurer's response is attached.

Committee’s response

3.6 The committee notes that the Treasurer’s response does not appear to provide the information the committee had sought in relation to the justification for subjecting different categories of taxpayers to different rules under the transitional arrangements in the bill. Instead, the response appears to explain the background and effect of the bill and reiterates the assertion made in the statement of

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compatibility that the differential treatment in the transitional rules is consistent with Australia's international tax treaty obligations.

3.7 The committee notes that the transitional arrangements in the bill draw distinctions between groups of people on the basis of their residential status and therefore engages the right to equal protection of the law and non-discrimination on the ground of ‘other status’ contained in article 26 of the ICCPR. While such distinctions may be common in taxation laws, they nevertheless have to be shown to be based on objective criteria and have a reasonable justification to be compatible with the human rights guarantee of equality and non-discrimination. In other words, the differential treatment must be aimed at a legitimate objective and have a rational and proportionate connection to that objective.

3.8 In this instance, the Treasurer’s response appears to suggest that the differential treatment is justified because:

…the reforms support the Government’s objective of ensuring that the [tax concession] can’t be misused or exploited, by limiting the tax concession to people who are bearing additional costs because they have to maintain a home in Australia that they are living away from for work purposes.

3.9 It is not clear if the Treasurer is referring to the objective of the differential treatment during the transitional period or to the overall changes to the living-away-from-home allowance scheme (or both). In any event, the explanation does not address the key issue as to why it is considered reasonable to restrict the requirement to maintain a home in Australia to only temporary and foreign residents during the transitional period. If the objective is to ensure the integrity of the tax concession (which the committee considers is a legitimate objective), on what basis is it considered justifiable to quarantine permanent residents from the requirement to maintain a home in Australia during the transition period, but not temporary and foreign residents? In the absence of this information, the committee is unable to assess whether the transitional measures bear a rational and proportionate connection to the legitimate objective of ensuring the integrity of the tax concession. The committee is therefore unable to conclude that the differential treatment applied in the transitional rules of the bill is compatible with the right to equality and non-discrimination in article 26 of the ICCPR.

3.10 The committee notes that the bill has already been passed by the Parliament.

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Tax Laws Amendment (2012 Measures No. 5) Bill 2012 Introduced into the House of Representatives on 19 September 2012; passed both Houses on 22 November 2012 Portfolio: Treasury PJCHR comments: Report 5/12, tabled on 15 October 2012 Ministerial response dated: 5 February 2013

Summary of committee view

3.1 The committee thanks the Assistant Treasurer for his response. In light of this further information, the committee considers that its concerns with regard to the compatibility of the amendments in Schedule 2 of the bill with human rights have been adequately addressed. The committee notes that it would have been useful for this information to have been included in the statement of compatibility.

3.2 The committee notes that the bill has already been passed by Parliament and regrets that the committee's concerns were not addressed in a timelier manner.

Background

3.3 This bill introduces changes to various taxation laws, including:

• amending the Income Tax Assessment Act 1997 to phase out the

mature age worker tax offset from 1 July 2012 for taxpayers born on or after 1 July 1957 (Schedule 2); and

• providing powers for Australian Tax Office and Customs officers to

enter premises occupied by persons who are required to keep records under the gaseous fuels record keeping provisions in the Excise Act 1901 for the purpose of monitoring compliance with the Act (Schedule 3).

3.4 The committee sought further information on the following matters to assist its consideration of the human rights compatibility of the bill:

• whether any differential treatment resulting from the measures in

Schedule 2 of the bill was consistent with the right to equality and non-discrimination in article 26 of International Covenant on Civil and Political Rights (ICCPR); and

• whether the monitoring powers in Schedule 3 of the bill were

compatible with the right to privacy in article 17 of ICCPR.

3.5 The Assistant Treasurer's response is attached.

Committee’s response

3.6 The committee notes that, in light of the justification provided by the Assistant Treasurer, any differential treatment arising from the phasing-out of the

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mature age worker tax offset is likely to be compatible with the right to equality and non-discrimination in article 26 of the ICCPR.

3.7 The committee notes that the bill has already been passed by the Parliament.

3.8 The committee notes that Schedule 3 of the bill (relating to the provision of monitoring powers for ATO and Customs officers) was removed prior to passage of the bill and welcomes the Assistant's Treasurer's assurance that the committee's concerns with regard to the compatibility of these powers with the right to privacy in article 17 of the ICCPR will be taken into account when and if these amendments are reintroduced at a later date.

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Treasury Legislation Amendment (Unclaimed Money and Other Measures) Bill 2012 Introduced into the House of Representatives on 28 October 2012; passed both Houses on 29 November 2012 Portfolio: Treasury PJCHR comments: Report 7/12, tabled on 28 November 2013 Ministerial response dated: 27 February 2013

Summary of committee view

3.1 The committee thanks the Treasurer for his response and notes that the bill has already been passed by the Parliament.

3.2 The committee considers that the reduction in the period of time before funds must be transferred to the Australian Tax Office (ATO) is likely to serve a legitimate objective, namely to protect personal funds from being eroded by fees and charges. The committee however remains concerned that the absence of adequate privacy safeguards in the procedures for searching for unclaimed moneys may be incompatible with article 17 of the International Covenant on Civil and Political Rights (ICCPR). The committee suggests that the Treasurer explore options with ASIC to ensure that appropriate privacy barriers are applied to the online databases for searching for unclaimed moneys.

Background

3.3 This bill reduces the period of time for which a person may leave particular types of personal financial accounts without activity before sums standing to the credit of the accounts are required to be paid to the ATO (subject to being reclaimed, with interest, by the owner of the funds). The sums eligible to be transferred include amounts of up to $2,000 (up from $200); examples of the reduction of time are from seven years to three years for bank accounts, and from three years to one year for superannuation accounts.

3.4 The statement of compatibility accompanying the bill stated that the bill did not engage any human rights.

3.5 In Report 7/12, the committee noted that the bill engaged the right to privacy in article 17 of the ICCPR and sought clarification from the Treasurer on:

(a) the basis for determining that the significant reduction in the time which must elapse before funds are required to be transferred is a proportionate means of achieving the objectives pursued by the bill; and

(b) whether the procedures for identifying lost or unclaimed funds and seeking their return, in particular the availability of personal

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information online, engage the right to privacy of individual account holders and whether the procedures involve a permissible limitation on the enjoyment of that right.

3.6 The Treasurer’s response is attached.

Committee’s response

3.7 The committee does not accept the Treasurer’s arguments that these measures do not engage the right to privacy as they appear to be based on a misunderstanding of the scope of the right to privacy in article 17 of the ICCPR.

3.8 The committee reiterates its view that a person’s operation of a personal financial account falls with the area of the person’s private life, guaranteed by article 17 of the ICCPR, because it relates to the person’s personal property. Accordingly, a person’s right to privacy is engaged by an externally imposed requirement that balances in an account owned by them be transferred to the ATO after a specified (and now reduced) period of time.

3.9 The committee accepts that the bill has not introduced any specific changes to the publication requirements for unclaimed moneys. However, the bill expands the scope of the current scheme and will operate in the context of the existing framework, which includes unrestricted public access to an online database for unclaimed moneys. As the committee has previously noted, any person may search under any name and if there is a record under that the name, the database will display the full name of the account holder, the amount in the account, the address of the person or the institution, and the name of the institution at which the account was held. An understanding of the privacy implications of these existing processes is therefore relevant to an assessment of the compatibility of the bill with human rights. The committee has consistently taken the view that its starting point is whether the legislation could be applied in ways which would breach human rights.

3.10 Given that the bill engages and limits the right to privacy, the key issue is whether the limitation is reasonable, necessary and proportionate to a legitimate objective. The committee considers that the objective of preserving a person’s funds from being eroded by fees and charges is a legitimate objective. The removal of funds to the ATO after a shorter period of time and the requirement to pay interest on balances would have the effect of preserving balances.

3.11 The committee is however concerned that the lack of privacy safeguards in the procedures for identifying unclaimed funds, in particular the availability of detailed personal information online risks being incompatible with article 17 of the ICCPR. The committee notes that the fact that the publication requirement is ‘a long standing feature of Australia’s unclaimed moneys regime’ is not in itself an argument for compatibility with Australia’s international human rights obligations. It is not apparent to the committee as to why it is necessary to make such detailed personal information freely available to anyone who chooses to use the database. In

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comparison, persons who are searching for lost superannuation funds must first register and provide their TFN before personal information is released to them.

3.12 The committee notes that the bill has already been passed by the Parliament.

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Social Security and Other Legislation Amendment (Income Support Bonus) Bill 2012 Introduced into the House of Representatives on 29 November 2012; passed both Houses on 25 February 2013 Portfolio: Education, Employment and Workplace Relations PJCHR comments: Report 1/13, tabled on 6 February 2013 Ministerial response dated: 22 February 2013

Summary of committee view

3.1 The committee thanks the Minister for his response. The committee notes that the bill has been passed by the Parliament.

Background

3.2 This bill provides for a new income support bonus to be paid to recipients of nine types of social support, including Newstart Allowance. Under these amendments, persons receiving no more than the basic amount of the Pension Supplement will be eligible to receive a tax-free, non means tested payment twice a year.

3.3 The committee noted that the income support bonus would promote the enjoyment of the right to social security in article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the right to an adequate standard of living in article 11 of the ICESCR. The committee however sought clarification from the Minister as to whether the total income available to the recipients of the bonus is sufficient to satisfy minimum essential levels of social security and the minimum requirements of the right to an adequate standard of living in Australia, and the basis on which on which the government makes that assessment.

3.4 The Minister's response is attached.

Committee’s response

3.5 The committee thanks the Minister for providing information about the type of schemes and payments that are available to recipients of the income support bonus and will draw on this information when finalising its report on the Social

Security Legislation Amendment (Fair Incentives to Work) Act 2012.

3.6 While this information is useful, the committee however notes that the Minister's response does not appear to address the specific questions that the committee had raised, namely:

• whether the combined benefits and payments available to the

recipients of the bonus is sufficient to satisfy minimum essential levels of social security and the minimum requirements of the right to an adequate standard of living in Australia; and

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• the basis on which on which the government makes that assessment.

3.7 The committee notes that the bill has already been passed by the Parliament.

Appendix 1

Full list of Legislative Instruments registered with FRLI 5 January - 15 February 2013

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Legend: C - Comments made; D - Deferred consideration; * - Advisory Letter

Instrument Name FRLI ID

2013 Eastern Tuna and Billfish Fishery Total Allowable Commercial Catch Determination F2013L00131 -

A New Tax System (Goods and Services Tax) Amendment Regulation 2013 (No. 1) F2013L00200 -

A New Tax System (Goods and Services Tax) Amendment Regulation 2013 (No. 2) F2013L00202 -

AASB 2012-10 - Amendments to Australian Accounting Standards - Transition Guidance and Other Amendments - December 2012 F2013L00080 *

AASB 2012-11 - Amendments to Australian Accounting Standards - Reduced Disclosure Requirements and Other Amendments - December 2012 F2013L00075 *

AASB 2012-9 - Amendment to AASB 1048 arising from the Withdrawal of Australian Interpretation 1039 - January 2013 F2013L00073 *

AD/A320/96 Amdt 2 - Alternate Braking System Check F2013L00182 -

AD/CESSNA 400/119 - Airframe Life Limitation F2013L00104 -

AD/LYC/105 Amdt 2 - Oil Filter Converter Plate Gasket F2013L00175 -

Amendment - List of Specimens Taken to be suitable for Live Import (03/01/2013) F2013L00105 *

Amendment - List of Specimens Taken to be Suitable for Live Import (30/01/2013) F2013L00181 *

Amendment of List of Exempt Native Specimens - Northern Territory Spanish Mackerel Fishery (25/01/2013) F2013L00152 *

Amendment of List of Exempt Native Specimens - Pandanus spiralis (18/12/2012) F2013L00107 *

Amendment of List of Exempt Native Specimens - Western Australian Marine Aquarium Fish Managed Fishery (21/12/2012) (deletion) F2013L00008 *

Amendment of List of Exempt Native Specimens - Western Australian Marine Aquarium Fish Managed Fishery (21/12/2012) (inclusion) F2013L00007 *

Amendment of List of Exempt Native Specimens - Western Australian West Coast Rock Lobster Managed Fishery (22/01/2013) F2013L00089 *

Amendment of List of Exempt Native Specimens - Western Australian Western Rock Lobster Fishery (22/01/2013) F2013L00090 *

Amendment of List of Exempt Native Specimens - Western Australian Shark Bay Prawn Managed Fishery (28/01/2013) (deletion) F2013L00129 *

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Amendment of List of Exempt Native Specimens - Western Australian Shark Bay Prawn Managed Fishery (28/01/2013) (inclusion) F2013L00128 *

Amendment of List of Exempt Native Specimens - Western Australian Shark Bay Scallop Managed Fishery (28/01/2013) (deletion) F2013L00127 *

Amendment of List of Exempt Native Specimens - Western Australian Shark Bay Scallop Managed Fishery (28/01/2013) (inclusion) F2013L00126 *

Amendment of List of Exempt Native Specimens - Western Australian Exmouth Gulf Prawn Managed Fishery (04/02/2013) F2013L00171 *

ASIC Class Order [CO 12/1687] F2012L02497 *

ASIC Class Order [CO 12/1712] F2012L02579 *

ASIC Class Order [CO 13/18] F2013L00043 *

ASIC Class Order [CO 13/19] F2013L00044 *

ASIC Class Rule Waiver [CW 12/1710] F2012L02499 *

Australia New Zealand Food Standards Code - Standard 1.2.11 - Country of Origin Labelling (Australia only) F2013L00051 -

Australia New Zealand Food Standards Code - Standard 1.2.7 - Nutrition, Health and Related Claims F2013L00054 -

Australia New Zealand Food Standards Code - Standard 1.4.2 - Maximum Residue Limits Amendment Instrument No. APVMA 12, 2012 F2012L02525 -

Australia New Zealand Food Standards Code - Standard 1.4.2 - Maximum Residue Limits Amendment Instrument No. APVMA 1, 2013 F2013L00048 -

Australian Prudential Regulation Authority (confidentiality) determination No. 26 of 2012 F2012L02526 *

Australian Prudential Regulation Authority (confidentiality) determination No. 27 of 2012 F2012L02528 *

Australian Prudential Regulation Authority (confidentiality) determination No. 28 of 2012 F2012L02536 *

Australian Prudential Regulation Authority (confidentiality) determination No. 29 of 2012 F2012L02538 *

Australian Prudential Regulation Authority (confidentiality) determination No. 1 of 2013 F2013L00115 *

Australian Radiofrequency Spectrum Plan 2013 F2012L02523 -

Australian Research Council Act 2001 - Australian Laureate Fellowships - Funding Rules for funding commencing in 2013 F2012L02524 -

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Australian Research Council Act 2001 - Discovery Early Career Researcher Award Funding Rules for funding commencing in 2014 F2013L00184 -

Australian Research Council Act 2001 - Discovery Projects - Funding Rules for funding commencing in 2014 F2013L00009 -

Australian Research Council Act 2001 - Future Fellowships - Funding Rules for funding commencing in 2013 F2012L02529 -

Broadcasting Services (Digital-Only Local Market Areas for the Remote Central and Eastern Australia TV1, Remote Central and Eastern Australia TV2, Remote and Regional WA TV1 and Western Zone TV1 Licence Areas) Determination (No. 1) 2013

F2013L00056 -

Broadcasting Services (Events) Notice (No. 1) 2010 (Amendment No. 15 of 2012) F2013L00002 -

Building Code 2013 F2013L00130 -

Carbon Credits (Carbon Farming Initiative) (Capture and Combustion of Methane in Landfill Gas from Legacy Waste: Upgrade projects) Methodology Determination 2012 F2012L02583 -

Carbon Credits (Carbon Farming Initiative) (Destruction of Methane from Piggeries using Engineered Biodigesters) Methodology Determination 2013 F2013L00124 -

Carbon Credits (Carbon Farming Initiative) (Destruction of Methane Generated from Dairy Manure in Covered Anaerobic Ponds) Methodology Determination 2012 F2012L02571 -

Carbon Credits (Carbon Farming Initiative) (Diversion of Legacy Waste to an Alternative Waste Treatment Facility) Methodology Determination 2013 F2013L00161 *

Carbon Credits (Carbon Farming Initiative) (Human Induced Regeneration of a Permanent Even-Aged Native Forest) Methodology Determination 2013 F2013L00162 *

Carbon Credits (Carbon Farming Initiative) (Reforestation and Afforestation) Methodology Determination 2013 F2013L00123 *

CASA 14/13 - Instructions - GNSS as primary means of navigation for NDB and VOR (overlay) approach - Qantas Airways Limited F2013L00157 -

CASA ADCX 001/13 - Revocation of Airworthiness Directives F2013L00063 -

CASA ADCX 002/13 - Revocation of Airworthiness Directives F2013L00106 -

CASA ADCX 025/12 - Revocation of Airworthiness Directives F2013L00005 -

CASA EX01/13 - Exemption - recency requirements for night flying (Alliance Airlines Pty Limited) F2013L00114 -

CASA EX02/13 - Exemption - use of ADS-B in aircraft operated by Hi Fly, Lisbon, Portugal F2013L00066 -

CASA EX03/13 - Exemption — recency requirements for night flying F2013L00068 -

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

for F100 aircraft (Network Aviation Pty Ltd)

CASA EX04/13 - Exemption — recency requirements for night flying for Embraer 120 aircraft (Network Aviation Pty Ltd) F2013L00069 -

CASA EX05/13 - Exemption - use of ADS B for the provision of air traffic services F2013L00061 -

CASA EX06/13 - Exemption - for cabin crew member to use passenger seat F2013L00103 -

CASA EX07/13 - Exemption - carriage of cockpit voice recorders and flight data recorders F2013L00137 -

CASA EX08/13 - Exemption - from standard take-off and landing minima - DHL Air Ltd F2013L00145 -

CASA EX09/13 - Exemption - use of ADS-B in aircraft operated Aerolineas Argentinas F2013L00153 -

CASA EX12/13 - Exemption - operations by sport and recreational aircraft in restricted area R979A F2013L00193 -

CASA EX13/13 - Exemption - turns after take-off at Australian International Air Show F2013L00196 -

CASA EX16/13 - Exemption - power-assisted glider at the Australian International Air Show, Avalon F2013L00198 -

CASA EX180/12 - Exemption - maintenance on limited category and experimental aircraft F2013L00096 -

CASA EX190/12 - Exemption - from standard take-off and landing minima - Airasia X SDN. BHD F2013L00033 -

CASA EX191/12 - Exemption - solo flight training using ultralight aeroplanes registered with Recreational Aviation Australia Incorporated at Jandakot Aerodrome F2012L02521 -

CASA EX193/12 - Exemption - operations by paragliders in the Corryong Open and hang-gliders in the Corryong Cup F2012L02520 -

CASA EX194/12 - Exemption - operations by hang-gliders in the Forbes Flatlands Hang Gliding Championships 2012-2013 F2012L02527 *

Civil Aviation Order 20.18 Amendment Instrument 2012 (No. 2) F2012L02556 -

Civil Aviation Order 20.18 Amendment Instrument 2013 (No. 1) F2013L00070 -

Classification Amendment Principles 2013 (No. 1) F2013L00074 -

Coastal Trading (Revitalising Australian Shipping) Act 2012 - Section 11 exemption for cruise vessels F2012L02585 -

Commencement (Agreement between Australia and the Republic of Latvia on Social Security) Instrument 2012 F2012L02589 -

Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Amendment Notice 2012 F2012L02505 -

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Commonwealth Scholarships Guidelines (Research) 2012 F2012L02535 *

Competition and Consumer Act 2010 - Consumer Protection Notice No. 1 of 2013 - Safety Standard: Baby Walkers F2013L00190 -

Competition and Consumer Amendment Regulation 2013 (No. 1) F2013L00187 -

Consumer Goods (Portable Swimming Pools) Safety Standard 2013 F2013L00049 -

Corporations Act 2001 - Determination of Financial Stability Standards F2012L02540 -

Corporations Act 2001 - Revocation of Financial Stability Standards 2012 F2012L02539 -

Currency (Perth Mint) Determination 2013 (No. 1) F2013L00065 -

Currency (Royal Australian Mint) Determination 2012 (No. 6) F2013L00053 -

Currency Legislation (Royal Australian Mint) Amendment Determination 2012 (No. 2) F2013L00058 -

Currency Legislation (Royal Australian Mint) Amendment Determination 2013 (No. 1) F2013L00132 -

Customs Act 1901 - Amendment of Approved Statement Instrument No. 1 of 2013 - Amendment of "Cargo Report (Air)") F2013L00133 *

Customs Act 1901 - Amendment of Approved Statement Instrument No. 2 of 2013 - Amendment of "Self-Assessed Clearance Declaration (Air) (To be Communicated with a Cargo Report) F2013L00134 *

Customs Act 1901 - Amendment of Approved Statement Instrument No. 3 of 2013 - Amendment of "Import Declaration (N10)" F2013L00135 *

Customs Act 1901 - Amendment of Approved Statement Instrument No. 4 of 2013 - Amendment of "Warehouse Declaration (N20)" F2013L00138 *

Customs Act 1901 - Amendment of Approved Statement Instrument No. 5 of 2013 - Amendment of "SAC (Short Form)" F2013L00139 *

Customs Act 1901 - Amendment of Approved Statement Instrument No. 6 of 2013 - Amendment of "Self-Assessed Clearance Declaration (Sea) (To Be Communicated With a Cargo Report)" F2013L00142 *

Customs Amendment Regulation 2013 (No. 1) F2013L00204 -

Data Provision Requirements 2012 F2013L00160 -

Determination to Reduce Appropriations Upon Request (No. 2 of 2012-2013) F2013L00035 -

Direction to the Independent Hospital Pricing Authority on the Performance of its functions (No. 1 of 2012) F2012L02518 -

Disposal of Forfeited Articles Direction 2012 F2013L00108 -

Education Services for Overseas Students (TPS Levies) (Risk Rated Premium and Special Tuition Protection Components) Determination 2012 F2012L02575 -

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Environment Protection and Biodiversity Conservation (Kakadu) Proclamation 2013 F2013L00189 -

Environment Protection and Biodiversity Conservation Act 1999 - Determination of Heritage Themes for Prioritising Nominations for assessment for the National Heritage List for the Assessment Period commencing 1 July 2013

F2013L00001 -

Excise Amendment Regulation 2013 (No. 1) F2013L00199 -

Fair Entitlements Guarantee Regulation 2012 F2012L02474 -

Fair Work (State Declarations - employer not to be a national system employer) Endorsement 2012 (No. 3) F2012L02568 -

Federal Financial Relations (General Purpose Financial Assistance) Determination No. 44 (November 2012) F2012L02531 -

Federal Financial Relations (National Partnership payments) Determination No. 56 (November 2012) F2012L02534 -

Financial Management and Accountability Act 1997 Determination 2012/31 - Section 32 (Transfer of Functions from DIISRTE to ASQA & TEQSA) F2012L02506 -

Financial Sector (Collection of Data) (reporting standard) determination No. 10 of 2012 - ARS 116.0 - Market Risk F2012L02488 *

Financial Sector (Collection of Data) (reporting standard) determination No. 11 of 2012 - ARS 117.0 - Repricing Analysis F2012L02490 *

Financial Sector (Collection of Data) (reporting standard) determination No. 12 of 2012 - ARS 120.0 - Standardised Approach - Securitisation F2012L02489 *

Financial Sector (Collection of Data) (reporting standard) determination No. 13 of 2012 - ARS 120.1 - Internal Ratings-based (IRB) Approach - Securitisation F2012L02491 *

Financial Sector (Collection of Data) (reporting standard) determination No. 8 of 2012 - ARS 112.2 - Standardised Credit Risk - Off-balance Sheet Exposures F2012L02498 *

Financial Sector (Collection of Data) (reporting standard) determination No. 9 of 2012 - ARS 113.4 - Internal Ratings-based (IRB) Approach to Credit Risk - Other Assets, Claims and Exposures F2012L02487 *

Financial Sector (Collection of Data) (reporting standard) determination No. 1 of 2013 - GRS 001 - Reporting Requirements F2013L00076 *

Financial Sector (Collection of Data) (reporting standard) determination No. 2 of 2013 - GRS 110.1 - Prescribed Capital Amount F2013L00077 *

Financial Sector (Collection of Data) (reporting standard) determination No. 17 of 2013 - GRS 310.0 - Income Statement F2013L00078 *

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Financial Sector (Collection of Data) (reporting standard) determination No. 21 of 2013 F2013L00079 *

Financial Sector (Collection of Data) (reporting standard) determination No. 3 of 2013 - GRS 112.0 - Determination of Capital Base F2013L00081 *

Financial Sector (Collection of Data) (reporting standard) determination No. 7 of 2013 - GRS 114.2 - Derivatives Activity F2013L00082 *

Financial Sector (Collection of Data) (reporting standard) determination No. 26 of 2013 - GRS 170.0 (2008) - Concentration Risk Charge; Reporting Standard GRS 900.0 - Transitional Arrangements 2010

F2013L00083 *

Financial Sector (Collection of Data) (reporting standard) determination No. 9 of 2013 - GRS 114.4 - Details of Investment Assets F2013L00091 *

Financial Sector (Collection of Data) (reporting standard) determination No. 27 of 2013 - GRS 110.0_G - Prescribed Capital Amount (Level 2 Insurance Group) F2013L00092 *

Financial Sector (Collection of Data) (reporting standard) determination No. 28 of 2013 - GRS 112.0_G - Determination of Capital Base (Level 2 Insurance Group) F2013L00093 *

Financial Sector (Collection of Data) (reporting standard) determination No. 29 of 2013 - GRS 112.3_G - Related Party Exposures (Level 2 Insurance Group) F2013L00094 *

Financial Sector (Collection of Data) (reporting standard) determination No. 32 of 2013 - GRS 114.3_G - Off-balance Sheet Business (Level 2 Insurance Group) F2013L00095 *

Financial Sector (Collection of Data) (reporting standard) determination No. 10 of 2013 - GRS 115.0 - Outstanding Claims Liabilities - Insurance Risk Charge F2013L00109 *

Financial Sector (Collection of Data) (reporting standard) determination No. 13 of 2013 - GRS 116.1 - Probable Maximum Loss for LMIs F2013L00110 *

Financial Sector (Collection of Data) (reporting standard) determination No. 14 of 2013 - GRS 117.0 - Asset Concentration Risk Charge F2013L00136 *

Financial Sector (Collection of Data) (reporting standard) determination No. 33 of 2013 - GRS 115.0_G - Outstanding Claims Liabilities - Insurance Risk Charge (Level 2 Insurance Group) F2013L00097 *

Financial Sector (Collection of Data) (reporting standard) determination No. 34 of 2013 - GRS 115.1_G - Premiums Liabilities - Insurance Risk Charge (Level 2 Insurance Group) F2013L00098 *

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Financial Sector (Collection of Data) (reporting standard) determination No. 36 of 2013 - GRS 117.0_G - Asset Concentration Risk Charge (Level 2 Insurance Group) F2013L00099 *

Financial Sector (Collection of Data) (reporting standard) determination No. 39 of 2013 - GRS 302.0_G - Statement of Financial Position by Region (Level 2 Insurance Group) F2013L00101 *

Financial Sector (Collection of Data) (reporting standard) determination No. 40 of 2013 - GRS 310.0_G - Income Statement (Level 2 Insurance Group) F2013L00102 *

Financial Sector (Collection of Data) (reporting standard) determination No. 41 of 2013 - GRS 141.0_G (2009) - Listed Equity Holdings and Risk Charge; GRS 301.0_G (2011) - Reinsurance Assets and Risk Charge (Level 2 Insurance Group)

F2013L00119 *

Financial Sector (Collection of Data) (reporting standard) determination No. 42 of 2013 - LRS 001 - Reporting Requirements F2013L00120 *

Financial Sector (Collection of Data) (reporting standard) determination No. 43 of 2013 - LRS 110.1 - Prescribed Capital Amount F2013L00113 *

Financial Sector (Collection of Data) (reporting standard) determination No. 53 of 2013 - LRS 300.0 - Statement of Financial Position F2013L00121 *

Financial Sector (Collection of Data) (reporting standard) determination No. 54 of 2013 - LRS 310.0 - Income Statement F2013L00140 *

Financial Sector (Collection of Data) (reporting standard) determination No. 55 of 2013 - LRS 330.0 - Summary of Revenue and Expenses F2013L00141 *

Financial Sector (Collection of Data) (reporting standard) determination No. 56 of 2013 - LRS 340.0 - Retained Profits F2013L00148 *

Financial Sector (Collection of Data) (reporting standard) determination No. 57 of 2013 - LRS 400.0 - Statement of Policy Liabilities F2013L00111 *

Financial Sector (Collection of Data) (reporting standard) determination No. 58 of 2013 - LRS 420.0 - Assets Backing Policy Liabilities F2013L00122 *

Financial Sector (Collection of Data) (reporting standard) determination No. 59 of 2013 - LRS 430.0 - Sources of Profit F2013L00149 *

Financial Sector (Collection of Data) (reporting standard) determination No. 60 of 2013 - LRS 100.0 - Solvency; LRS 120.0 - Management Capital; LRS 210.0 - Derivatives, Commitments and Off-Balance Sheet Items; LRS 220.0 - Large Exposures; LRS 410.0 - Capital Measurement Statistics; LRS 901 - Transitional Arrangements 2008

F2013L00150 *

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Food Standards (Proposal M1008 - Maximum Residue Limits (2012)) Variation F2013L00047 -

Food Standards (Proposal P1011 - Country of Origin Labelling - Unpackaged Meat Products - Consequential) Variation F2013L00052 -

Food Standards (Proposal P293 - Nutrition, Health & Related Claims - Consequential) Variation F2013L00050 -

Guidelines for the Classification of Films 2012 F2012L02541 -

Health Insurance (Allied Health Services) Amendment Determination 2012 (No. 5) F2012L02493 -

Health Insurance (Diabetes Testing in Aboriginal and Torres Strait Islander Primary Health Care Sites) Amendment Determination 2012 (No. 1) F2012L02513 -

Health Insurance (Diagnostic Imaging Capital Sensitivity) Amendment Determination 2012 (No. 3) F2012L02510 -

Health Insurance (General Medical Services Table) Amendment Regulation 2013 (No. 1) F2013L00201 -

Health Insurance (Midwife and Nurse Practitioner) Amendment Determination 2012 (No. 2) F2012L02507 -

Health Insurance (Pathologist-determinable Services) Amendment Determination 2012 F2012L02532 -

Health Insurance (Professional Services Review - Allied Health and Others) Determination 2012 F2012L02519 -

Higher Education (Maximum Amount for Special Purpose Advances) Specification 2012 F2012L02476 -

Higher Education Provider Approval No. 14 of 2012 F2012L02517 -

Higher Education Support Act 2003 - Amendment No. 1 to the Administration Guidelines 2012 F2013L00180 -

Higher Education Support Act 2003 - List prepared pursuant to Division 41 F2012L02514 -

Higher Education Support Act 2003 - Other Grants Guidelines (Education) 2012 (DIISRTE) - Amendment No. 1 F2012L02587 -

Higher Education Support Act 2003 - VET Guidelines (17/12/2012) F2012L02569 -

Higher Education Support Act 2003 - VET Provider Approval (No. 1 of 2013) F2013L00032 -

Higher Education Support Act 2003 - VET Provider Approval (No. 2 of 2013) F2013L00055 -

Higher Education Support Act 2003 - VET Provider Approval (No. 27 of 2012) F2012L02516 -

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Higher Education Support Act 2003 - VET Provider Approval (No. 28 of 2012) F2012L02557 -

Higher Education Support Act 2003 - VET Provider Approval (No. 3 of 2013) F2013L00064 -

Higher Education Support Act 2003 - VET Provider Approval (No. 4 of 2013) F2013L00143 -

Higher Education Support Act 2003 - VET Provider Approval (No. 5 of 2013) F2013L00144 -

Horticulture Marketing and Research and Development Services Exports Orders Revocation Order 2013 F2013L00028 -

Inclusion of ecological communities in the list of threatened ecological communities under section 181 of the Environment Protection and Biodiversity Conservation Act 1999 - Lowland Grassy Woodland in the South East Corner Bioregion (117) (30/01/2013)

F2013L00192 *

Law Enforcement Integrity Legislation Amendment Commencement Proclamation 2013 F2013L00188 -

Levy Amount Formula Modification Determination 2013 F2013L00158 -

Life Insurance (prudential standard) determination No. 11 of 2012 - Prudential Standard LPS 320 - Actuarial and Related Matters F2012L02496 *

Macquarie Island Toothfish Fishery Fishing Year Determination 2013 F2013L00156 -

Macquarie Island Toothfish Fishery Management Plan Amendment 2012 F2013L00118 -

Marine Order 2 (Australian International Shipping Register) 2012 F2012L02584 *

Marine Order 95 (Marine pollution prevention - garbage) 2013 F2013L00059 C

Medical Indemnity (Run-off Cover Claims and Administration) Amendment Protocol 2013 F2013L00154 -

Migration Regulations 1994 - Specification under item 1224A and paragraph 462.221(c) - Arrangements for Work and Holiday Visa Applicants from Thailand, Iran, Chile, Turkey, United States of America, Malaysia, Indonesia, Bangladesh, Argentina and Uruguay - February 2013

F2013L00174 -

Migration Regulations 1994 - Specification under paragraph 5.36(1A)(a) - Payment of Visa Application Charges and Fees in Foreign Currencies - December 2012(2) F2012L02580 -

Migration Regulations 1994 - Specification under paragraph 5.36(1A)(a) - Payment of Visa Application Charges and Fees in Foreign Currencies Amendment Instrument - January 2013 F2013L00057 -

Migration Regulations 1994 - Specification under paragraph 5.36(1A)(a) - Payment of Visa Application Charges and Fees in Foreign Currencies - February 2013 F2013L00172 -

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Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Migration Regulations 1994 - Specification under paragraphs 200.211(1A)(a) and 201.211(1A)(a) of schedule 2 - Class of Persons - December 2012 F2012L02566 -

Migration Regulations 1994 - Specification under paragraphs 5.36(1)(a) and 5.36(1)(b) - Places and Currencies for Paying of Fees - December 2012(2) F2012L02586 -

Migration Regulations 1994 - Specification under paragraphs 5.36(1)(a) and 5.36(1)(b) - Places and Currencies for Paying of Fees - February 2013 F2013L00173 -

Migration Regulations 1994 - Specification under subparagraph 2.04(3)(b)(ii) and sub-subparagraph 2.08AC(4)(a)(ii)(B) - Specified Place - December 2012 F2012L02578 -

Military Rehabilitation and Compensation Act Education and Training Scheme (Income Support Bonus) Determination 2013 (No. MRCC 10) F2013L00176 -

National Capital Plan - Amendment 75 - Australian Defence Force Academy and Royal Military College Duntroon Master Plan F2013L00036 -

National Health (Concession or entitlement card fee Amendment Determination 2012 (No. 1) (No. PB 112 of 2012) F2012L02500 -

National Health (Efficient Funding of Chemotherapy) Special Arrangement Amendment Instrument 2013 (No. 1) F2013L00046 -

National Health (Highly specialised drugs program for hospitals) Special Arrangement Amendment Instrument 2012 (No. 11) (No. PB 110 of 2012) F2012L02508 -

National Health (Immunisation Program - Designated Vaccines) Variation Determination 2012 (No. 3) F2013L00031 -

National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2012 (No. 9) (No. PB 108 of 2012) F2012L02512 -

National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2013 (No. 1) (No. PB 1 of 2013) F2013L00039 -

National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2013 (No. 2) (No. PB 4 of 2013) F2013L00072 -

National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2013 (No. 3) (No. PB 8 of 2013) F2013L00185 -

National Health (Price and Special Patient Contribution) Amendment Determination 2012 (No. 8) (No. PB 109 of 2012) F2012L02511 -

National Health (Price and Special Patient Contribution) Amendment Determination 2013 (No. 1) (No. PB 2 of 2013) F2013L00040 -

National Health (Supplies of out-patient medication) Determination 2012 (No. PB 105 of 2012) F2012L02504 -

Page 194

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

National Health (Weighted average disclosure price - main disclosure cycle) Determination 2012 (No. PB 107 of 2012) F2012L02554 -

National Health Act 1953 - Amendment determination under paragraph 98C(1)(b) (No. PB 5 of 2013) F2013L00071 -

National Health Act 1953 - Amendment determination under paragraph 98C(1)(b) (No. PB 9 of 2013) F2013L00186 -

National Vocational Education and Training Regulator (Charges) Determination 2012 (No. 1) F2012L02582 C

Native Title (Assistance from Attorney-General) Guideline 2012 F2012L02564 C

Nuclear Non-Proliferation (Safeguards) Amendment Regulation 2012 (No. 1) F2012L02423 -

Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Amendment Regulation 2012 (No. 1) F2012L02494 -

Paid Parental Leave Amendment Rules 2012 (No. 2) F2012L02576 -

Parliamentary Entitlements (Supplement of Capped Entitlements) Determination 2012 (No. 1) F2012L02479 -

Parliamentary Superannuation (Default Fund) Declaration 2012 F2012L02560 -

Payment Systems (Regulation) Act 1998 - Revocation of the Standard on Interchange Fees for the EFTPOS System Designated in Designation No. 2 of 2004 (November 2012) F2013L00037 -

Poisons Standard Amendment No. 5 of 2012 F2012L02515 -

Private Health Insurance (Accreditation) Amendment Rules 2012 (No. 2) F2013L00004 -

Private Health Insurance (Benefit Requirements) Amendment Rules 2012 (No. 10) F2013L00003 -

Private Health Insurance (Benefit Requirements) Amendment Rules 2012 (No. 9) F2012L02502 -

Private Health Insurance (Prostheses) Amendment Rules 2013 (No. 1) F2013L00203 -

Private Health Insurance (Registration) Amendment Rules 2013 F2013L00151 -

Protected Symbols Determination 2013 F2013L00087 -

Public Service Classification Rules Amendment Instrument 2013 (No. 1) F2013L00146 -

Quarantine Service Fees Amendment Determination 2013 (No. 1) F2013L00125 -

Radiocommunications (Compliance Labelling - Electromagnetic Radiation) Amendment Notice 2013 (No. 1) F2013L00086 -

Page 195

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Radiocommunications (Overseas Amateurs Visiting Australia) Class Licence Variation 2012 (No. 1) F2012L02573 -

Radiocommunications (Receiver Licence Tax) Amendment Determination 2012 (No. 3) F2013L00012 -

Radiocommunications (Spectrum Access Charges - 1800 MHz Band) Determination 2012 (No. 1) F2013L00010 -

Radiocommunications (Spectrum Access Charges - 1800 MHz Band) Determination 2012 (No. 2) F2013L00011 -

Radiocommunications (Spectrum Licence Allocation—Combinatorial Clock Auction) Determination 2012 F2012L02548 -

Radiocommunications (Transmitter Licence Tax) Amendment Determination 2012 (No. 5) F2013L00013 -

Radiocommunications (Unacceptable Levels of Interference - 2.5 GHz Band) Determination 2012 F2012L02545 -

Radiocommunications (Unacceptable Levels of Interference - 2.5 GHz Mid-band Gap) Determination 2012 F2012L02553 -

Radiocommunications (Unacceptable Levels of Interference - 700 MHz Band) Determination F2012L02543 -

Radiocommunications (Unacceptable Levels of Interference - 700 MHz Band) Amendment Determination 2013 (No. 1) F2013L00159 -

Radiocommunications Advisory Guidelines (Managing Interference from Transmitters - 2.5 GHz Band) 2012 F2012L02550 -

Radiocommunications Advisory Guidelines (Managing Interference from Transmitters - 2.5 GHz Mid-band Gap) 2012 F2012L02555 -

Radiocommunications Advisory Guidelines (Managing Interference from Transmitters - 700 MHz Band) 2012 F2012L02546 -

Radiocommunications Advisory Guidelines (Managing Interference to Receivers - 2.5 GHz Band) 2012 F2012L02549 -

Radiocommunications Advisory Guidelines (Managing Interference to Receivers - 2.5 GHz Mid-band Gap) 2012 F2012L02558 -

Radiocommunications Advisory Guidelines (Managing Interference to Receivers - 700 MHz Band) 2012 F2012L02544 -

Radiocommunications Devices (Compliance Labelling) Amendment Notice 2013 (No. 1) F2013L00085 -

Radiocommunications Labelling (Electromagnetic Compatibility) Amendment Notice 2013 (No. 1) F2013L00084 -

Radiocommunications Licence Conditions (Amateur Licence) Amendment Determination 2012 (No. 1) F2012L02574 -

Page 196

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Radiocommunications Spectrum Conversion Plan (2.5 GHz Mid-band Gap) 2012 F2012L02542 -

Radiocommunications Spectrum Marketing Plan (2.5 GHz Band) 2012 F2012L02552 -

Radiocommunications Spectrum Marketing Plan (700 MHz Band) 2012 F2012L02547 -

Remuneration Tribunal Determination 2012/24 - Remuneration and Allowances for Holders of Full-Time Public Office F2012L02570 *

Remuneration Tribunal Determination 2012/25 - Remuneration and Allowances for Holders of Public Office F2013L00006 *

Remuneration Tribunal Determination 2013/01 - Remuneration and Allowances for Holders of Public Office F2013L00100 *

Schoolkids Bonus Determination 2012 F2012L02562 -

Social and Community Services Pay Equity Special Account (Additional Program) Specification 2013 F2013L00179 -

Social Security (Administration) - Queensland Commission (Family Responsibilities Commission) Specification 2012 F2012L02581 D

Social Security (Australian Government Disaster Recovery Payment) Determination 2013 (No. 1) F2013L00029 -

Social Security (Australian Government Disaster Recovery Payment) Determination 2013 (No. 2) F2013L00062 -

Social Security (Australian Government Disaster Recovery Payment) Determination 2013 (No. 3) F2013L00112 -

Social Security (Australian Government Disaster Recovery Payment) Amendment Determination 2013 (No. 2) F2013L00147 -

Social Security (Australian Government Disaster Recovery Payment) Amendment Determination 2013 (No. 3) F2013L00163 -

Social Security (Australian Government Disaster Recovery Payment) Determination 2013 (No. 4) F2013L00164 -

Social Security (Australian Government Disaster Recovery Payment) Amendment Determination 2013 (No. 4) F2013L00165 -

Social Security (Australian Government Disaster Recovery Payment) Amendment Determination 2013 (No. 5) F2013L00195 -

Social Security (Australian Government Disaster Recovery Payment) Amendment Determination 2013 (No. 6) F2013L00197 -

Social Security (South Australian 'Individualised Funding') (DEEWR) Determination 2012 (No. 1) F2013L00030 -

Social Security (South Australian 'Individualised Funding') (FaHCSIA) Determination 2013 F2013L00116 -

Page 197

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 1 2013 F2013L00168 -

Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 3 2013 F2013L00166 -

Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 2 2013 F2013L00169 -

Southern and Eastern Scalefish and Shark Fishery (Closures) Direction No. 4 2013 F2013L00170 -

Southern Bluefin Tuna Fishery Verified Count Determination 2012 F2012L02590 -

Standards for NVR Registered Training Organisations 2012 F2013L00167 -

Standards for VET Accredited Courses 2012 F2013L00177 -

Statement of Principles concerning adenocarcinoma of the kidney No. 10 of 2013 F2013L00025 -

Statement of Principles concerning adenocarcinoma of the kidney No. 9 of 2013 F2013L00024 -

Statement of Principles concerning ankylosing spondylitis No. 3 of 2013 F2013L00018 -

Statement of Principles concerning ankylosing spondylitis No. 4 of 2013 F2013L00019 -

Statement of Principles concerning carpal tunnel syndrome No. 7 of 2013 F2013L00022 -

Statement of Principles concerning carpal tunnel syndrome No. 8 of 2013 F2013L00023 -

Statement of Principles concerning inguinal hernia No. 5 of 2013 F2013L00020 -

Statement of Principles concerning inguinal hernia No. 6 of 2013 F2013L00021 -

Statement of Principles concerning malignant neoplasm of the oral cavity, oropharynx and hypopharynx No. 1 of 2013 F2013L00016 -

Statement of Principles concerning malignant neoplasm of the oral cavity, oropharynx and hypopharynx No. 2 of 2013 F2013L00017 -

Student Assistance (Education Institutions and Courses) Amendment Determination 2012 (No. 1) F2012L02588 C

Superannuation (Productivity Benefit) (Nominated Fund) Declaration 2012 F2012L02559 -

Superannuation (Productivity Benefit) (Qualified Employees Exclusion) Declaration 2012 F2013L00026 -

Superannuation (prudential standard) determination No. 9 of 2012 - Prudential Standard SPS 410 - MySuper Transition F2012L02509 *

Superannuation Act 2005 - Seventh Amendment of the Deed to establish the Public Sector Superannuation Accumulation Plan F2013L00027 -

Page 198

Any Member or Senator who wishes to draw matters to the attention of the committee under the Human Rights (Parliamentary Scrutiny) Act 2011 is invited to do so.

Sydney Airport Slot Management Scheme 2013 F2013L00183 *

Telecommunications (Interception and Access) (Emergency Service Facilities - Australian Capital Territory) Instrument 2012 (No. 2) F2012L02591 -

Telecommunications (Interception and Access-Independent Broad-based Anti-corruption Commission of Victoria) Declaration 2012 F2012L02551 -

Telecommunications (Participating Persons) Determination 2013 F2013L00155 -

Telecommunications Labelling (Customer Equipment and Customer Cabling) Amendment Notice 2013 (No. 1) F2013L00088 -

Telecommunications Technical Standard (Requirements for Customer Equipment for connection to a metallic local loop interface of a Telecommunications Network - Part 2: Broadband - AS/ACIF S043.2:2008) Amendment 2012 (No. 1)

F2012L02533 -

Television Licence Area Plan (Brisbane) 2012 F2012L02495 -

Television Licence Area Plan (Northern New South Wales) 2012 F2012L02537 -

Television Licence Area Plan (Regional Queensland) 2012 F2012L02530 -

Tertiary Education Quality and Standards Agency Act 2011 - Amendment No. 1 to the Higher Education Standards Framework (Threshold Standards) 2011 F2013L00194 -

Therapeutic Goods (Listing) Notice 2012 (No. 4) F2013L00014 -

Therapeutic Goods (Listing) Notice 2012 (No. 5) F2013L00015 -

Therapeutic Goods Information (Stakeholder Consultation on the System for Australian Recall Actions) Specification 2013 F2013L00117 -

Tuition Fees Order 2013 F2013L00060 -

Vehicle Standard (Australian Design Rule 80/03 - Emission Control for Heavy Vehicles) 2006 Amendment 2 F2013L00034 -

Veterans’ Entitlements (Veterans’ Children Education Scheme - Income Support Bonus) Instrument 2013 (No. R9/2013) F2013L00178 -

Water Efficiency Labelling and Standards Determination 2013 F2013L00067 -

Work Health and Safety Act 2011 (application to Defence activities and Defence members) Declaration 2012 F2012L02503 D

Work Health and Safety Codes of Practice 2012 F2012L02522 *