32nd Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Condor Laucke) took the chair at 2.15 p.m., and read prayers.
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– I present the following petition from 71 citizens of Australia:
To the Honourable the President and Members of the Senate in Parliament assembled. The petition of the undersigned respectfully showeth:
That the Australian Gas Light Company and the Newcastle Pipeline Company are constructing high pressure pipelines for natural gas and petroleum products respectively from Sydney to Newcastle.
Your petitioners most humbly pray that the Senate, in Parliament assembled should:
1 ) Forthwith hold a public judicial inquiry into unacceptable safety hazards due to the pipelines, and
Act to prevent further excessive and unnecessary environmental damage due to creation of easements for the pipelines, and
Take action to ensure that full compensation and damages be paid to affected landowners.
And your petitioners as in duty bound will ever pray.
Petition received and read.
– I present two petitions from 101 and 21 citizens of Australia respectively, as follows:
To the Honourable the President and Members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth:
That we are gravely concerned by the invasion of privacy caused by Government agents seizing patients’ medical records:
Your petitioners most humbly pray that the Senate, in Parliament assembled, should -
Legislate to protect the private and confidential nature of medical records from scrutiny except on the express and informed consent of the patient or an order from a presiding judge
And your petitioners as in duty bound will ever pray.
Petitions received and first petition read.
– I present the following petition from 1 7 citizens of Australia:
To the Honourable the President and Members of the Senate, in Parliament assembled.
We, the undersigned citizens of the Commonwealth, do humbly pray that the Commonwealth Government:
. Note that legislation establishing plant breeders’ rights in other countries has had serious adverse effects, namely:
Virtual monopoly control of seed production has passed into the hands of a few large international corporations seeking to profit from the exclusive rights over plant genetic materials created by such legislation.
The varieties of seeds available have been restricted mainly to hybrids which will not reproduce truly and will not grow without the aid of artificial fertilizers and pesticides, thus maximising corporate profits without regard for the interests of growers and consumers.
The genetic diversity of crops has been eroded, rendering them vulnerable to disease and other environmental threats.
Recognise that maintenance of the genetic diversity of plant varieties is crucial to the continued well-being of the Australian nation, and take all necessary steps to preserve and promote such genetic diversity as a public resource and to prevent exclusive control over plant genetic materials from falling into private hands.
Defend the vital interests of Australian farmers and gardeners, independent Australian seed companies and their employees, and consumers of Australian farm and garden produce, by rejecting any proposal to legislate for the establishment of plant breeders’ rights in Australia.
And your petitioners as in duty bound will ever pray.
Petition received and read.
– I present the following petition from 1 59 citizens of Australia:
To the Honourable the President and members of the Senate in Parliament assembled.
The petition of concerned citizens of Australia respectfully showeth that legislation for the enactment of the Freedom of Information Bill 1978, amended in accordance with the recommendations of the report of the Senate Standing Committee on Constitutional and Legal Affairs, should be implemented forthwith.
Your petitioners most humbly pray that the Senate, in Parliament assembled, should take all necessary action for the prompt debate and endorsement of the Bill, as amended, for enactment to the greater good of the citizens of this nation.
And your petitioners as in duty bound will ever pray.
Petition received and read.
– I present the following petition from 5 citizens of Australia:
To the Honourable the President and Members of the Senate of the Australian Parliament assembled.
The petition of certain citizens respectfully showeth that allegations have been made by litigants that unjust decisions in relation to ancillary matters are being made at the Family Court of Australia.
We call on the Government to amend section 79 ( I ) of the Family Law Act, to allow all Family Courts to be open and publication of details of proceedings permitted, provided names of parties and other identifying information is prohibited from disclosure.
And your petitioners as in duly bound will ever pray.
Petition received and read.
– Petitions have been lodged for presentation as follows:
To the Honourable the President and Members of the Senate in Parliament assembled: The humble petition of the undersigned citizens of Australia respectfully showeth:
We, the undersigned,
Being concerned citizens of Australia and of the world
Noting widespread violations of fundamental human rights around the world
Observing that Australia has taken a leading role in the United Nations Commission for Human Rights
Being aware that less than 40 per cent of money raised by Amnesty International is remitted outside Australia
Urge the Government to support Amnesty International in a practical way by permitting donations to it to be deductible from income for taxation purposes.
And your petitioners as in duty bound will ever pray. by Senators Coleman and Colston.
Petitions received.
Anti-discrimination Legislation
To the Honourable President and Members of the Senate in the Australian Parliament in Canberra assembled. The petition of certain citizens respectfully showeth:
That the right to work without discrimination on any ground including, inter alia, discrimination on grounds of race, ethnic origin, pregnancy, marital status, sex and/or sexual preference is a fundamental human right; and
That it is both the duty and responsibility of society to fully support those denied work and therefore those who are unemployed as a result of society’s inability to provide full paid employment should be guaranteed an adequate income without discrimination on any ground including, inter alia, discrimination on grounds of race, ethnic origin, marital status, sex and/or sexual preference, or pregnancy.
Your petitioners therefore humbly pray -
That appropriate and adequate laws be formulated and passed to outlaw discrimination in Commonwealth employment, in employment of persons by statutory bodies and quasi-governmental organisations, in employment of individuals under federal awards, and in employment of all persons in areas over which Commonwealth and Australian Capital Territory equal opportunity legislation should have jurisdiction: and
That appropriate laws be formulated and passed to outlaw discrimination in the provision of unemployment benefits to all persons without regard to race, ethnic origin, marital status, and/or sex.
And your petitioners as in duty bound will ever pray. by Senator Puplick.
Petition received.
To the Honourable the President and Members of the Senate in Parliament assembled: The petition of the undersigned citizens of Australia respectfully showeth:
That the National Women’s Advisory Council has not been democratically elected by the women of Australia;
That the National Women’s Advisory Council is not representative ofthe women of Australia;
That the National Women’s Advisory Council is a discriminatory and sexist imposition on Australian women as Australian men do not have a National Men’s Advisory Council imposed on them.
Your petitioners therefore humbly pray that the National Women’s Advisory Council be abolished to ensure that Australian women have equal opportunity with Australian men of having issues of concern to them considered, debuted and voted on by their parliamentary representatives without intervention and interference by an unrepresentative ‘Advisory Council’.
And your petitioners as in duty bound will ever pray. by Senator MacGibbon.
Petition received.
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-I give notice that, on the next day of sitting, I shall move:
That, unless otherwise ordered. Government Business take precedence of General Business after 8 p.m. on Thursday, 4 December 1980.
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– I give notice that, on the next day of sitting, I shall move:
Mr President, with your leave, may 1 add that if by tomorrow night the business of the Senate is finished, this motion will be irrelevant.
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– I give notice that, on the next day of sitting, I shall move:
That the Senate, as a States House, expresses its grave concern
That the Tonkin Liberal Government in South Australia has allowed the economy of the State to deteriorate to such an extent that:
new car sales in South Australia have slumped in recent months to some ofthe lowest levels on record;
the October 1980 new car registrations were 3,790 compared to 4,046 for October 1979 a drop of 256 or 6.3 per cent;
a spokesman for the South Australian Automotive Chamber of Commerce has described as disastrous the fact that new car sales for 1980 were nine per day below 1979 levels.
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– I give notice that, on ‘the next day of sitting, I shall move:
That the Senate -
welcomes and supports the determined actions of Polish workers to establish an independent trade union movement in Poland;
attaches great importance to the continuing ability of the Polish government to negotiate a peaceful settlement of the complex issues without intervention by external forces; and
calls on the Australian Government to warn the Polish and Soviet authorities of the dire and world-wide consequences of the use of armed force against the Polish workers and their families.
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– 1 ask the Minister representing the Minister for Communications: Does the Government yet know precisely what services will be offered to rural householders by the proposed domestic satellite system and at what cost to the householder? If not, when will the Government know this? When will it make a clear statement to end the confusion over this issue?
– I am not able to answer the particular questions asked by the honourable senator, but it might be helpful if I were to advise the Senate that the request for tender documents for a national communications satellite system were issued on 30 October 1980, and the tenders for both space and earth segments close on 1 March 1981. I understand that I can refer the question to my colleague in another place to see whether there are answers to the questions that the honourable senator has raised.
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– I ask the Minister representing the Minister for Education whether he has seen a report of the employment officer at Australian Iron and Steel Pty Ltd at Port Kembla that he is rejecting each year 1 ,000 or more would-be apprentices because they are unable to pass a basic numeracy test, that his results show that 70 per cent of the applicants obtain less than 50 per cent of the marks and that 50 per cent of the applicants cannot even score a 20 per cent mark. Does the Minister agree that industry throughout
Australia is having trouble obtaining suitable applicants for apprenticeships due to their weaknesses in both mathematics and English? Is there a fundamental weakness in mathematics in our primary school teachers, in that no mathematics qualification is necessary for a primary school teacher? Will the Government give consideration to arranging with industry for government and industry to speak with headmasters and school councillors to make sure that they are properly briefed on the basic academic requirements for apprenticeship? Will the Government give consideration to publicising the better job opportunities which are available in Australia to those students who persevere with the hard core mathematics and English during their secondary education, rather than the limited opportunities available to those who select soft options?
– I have not seen the report by the employment officer at Australian Iron and Steel Pty Ltd. All honourable senators will recall that the report initiated by the special select committee of the House of Representatives, and adverted to in the report of the Williams Committee of Inquiry into Education and Training, drew attention to some severe disabilities in numeracy and literacy. They would be in parallel with those that Senator Lewis mentioned.
– Not parallel- not that low.
– The Committee found that 25 per cent of 14-year-olds were incapable of independent reading. I think 15 per cent of the same age group were incapable of independent numeracy. The select committee found - the work was done at a research level in Australia - that there were significant defects in numeracy and literacy, irrespective of whether the magnitude was the same.
– But 70 per cent?
– I acknowledge Senator Robertson’s point regarding magnitude. Nevertheless, I think he would agree that the magnitude revealed by the select committee is sufficiently worrying–
– For us to have our own Senate committee inquire into it.
– For us to do something very real about it. The Williams Committee drew attention to the problem and to the need for remedial and prophylactic steps to be taken throughout the education system. Indeed, that knowledge was available to the Auchmuty Committee which inquired into the selection of teachers for teacher training and the method of training teacher trainees. It is fundamental to this matter that in the first place one should equip the teachers with the necessary skills. In both the Williams Committee and the Auchmuty Committee considerable attention has been given to this matter. I say this, without the knowledge of what the employment officer has said: There is available for apprenticeship now to employers in Australia a considerable number of young people with very high qualifications, Higher School Certificate and even higher qualifications. Often now people with high skills come forward. That does not detract from what Senator Lewis said. The whole question of what we should do in a country that has unemployment but nevertheless has a chronic shortage of apprentices needs examination constantly. We must upgrade the basic skills of our young so that we can produce the skilled people to meet the needs of the future. As to the remaining part of the question, I think that, and indeed the whole question, deserves to be referred to the Minister for Education in another place. I will do so.
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– My question is addressed to the Leader of the Government in the Senate and follows the line of the previous question. I ask the Minister: Did not the Williams Committee of Inquiry into Education and Training, although adverting to the importance of deficiencies in literacy and numeracy, find as a matter of fact that, although numerous attempts were made to blame the high level of youth unemployment on those factors, the real cause of the high level of youth unemployment in Australia is the absence of jobs?
– The Williams Committee did make reference to unemployment, but what Senator Button said in no way cuts across the importance of what Senator Lewis indicated or across my answer. The fact of the matter is that in Australia today there is a shortage of people coming forward from amongst the young to fill apprenticeships. That is a fact which I think is not disputed by anybody.
– I dispute it.
– Well, in fact there are shortages of apprentices and qualified journeymen in Australia.
– That is not the reason for unemployment.
– Let me acknowledge the interjections. I accept that the whole issue of apprenticeship is one that needs looking at and needs reform because of the change of technology. It is inhibiting the employment of apprentices.
That is so particularly in the building trades, in which sub-contracting has altered the whole availability of journeymen. Let nobody think that my reply is a simplistic one in that regard; it is not. The fact is that we are short of trained journeymen in Australia. We ought to be encouraging more young people into apprenticeships. If any of those coming forward lack skills, it is for us in the transition from school to work programs to upgrade those skills. I think everyone would agree with that.
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– My question is addressed to the Minister representing the Minister for Transport. With Australian domestic air transport soon to be in a position to use new widebodied aircraft which will have much quieter turbo fan engines and which will have a noise footprint less than the Lockheed Electra and a noise level on takeoff slightly less than the F27, can the Minister assure us that these new aircraft will be exempt from curfew requirements, as are the Electra and Friendship, thus enabling greater usage of these aircraft and increased service to the Australian public?
– I have some information on this matter raised by Senator Collard. I am informed that the noise levels of the new widebodied aircraft to be introduced by TransAustralia Airlines and Ansett Airlines of Australia certainly will be lower than those of existing jet aircraft and will be comparable with the Lockheed Electra and the F27. However, this does not mean that unrestricted operation of these aircraft would be environmentally acceptable over densely populated areas during the sensitive sleeping hours. Nevertheless, the Minister for Transport has advised me that he is appreciative of the airlines’ initiative in purchasing the quieter aircraft and has given his assurance that he will give the honourable senator’s suggestion serious consideration.
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– My question is directed to the Minister representing the Treasurer. What safeguards will the Government apply to ensure that banks do not boost the real rate on small overdrafts to farmers in drought areas up to 12.5 per cent or thereabouts, for example by service charges, by stipulating that part of an overdraft must be returned to the bank as a term deposit at a lower rate of interest or by charging much higher rates of interest on the portion of an overdraft above SI 00,000?
– The Government recognises that the increases in costs imposed by the increase in overdraft rates may have a particular effect on those farmers suffering the effects of drought. Therefore, the banks have been requested not to apply the increase in interest rates on overdrafts to people affected by the drought for the duration of the drought. The Treasurer has undertaken to elaborate details of this arrangement later today. I am not aware that he has yet made any comment on it, but I will refer to the Treasurer the particular matters raised by Senator Walsh regarding safeguards, service charges and other points raised by him to see whether he is able to deal specifically with them. If the statement elaborating on the Treasurer’s announcement of last night is available, I will see that it is made available to the Senate as soon as possible.
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– I direct a question to the Minister for Aboriginal Affairs. I am concerned that some individual actions taken within the scope of the Aboriginal Land Rights (Northern Territory) Act are made, disregarding the true intent and spirit of the legislation. Will the Minister investigate, firstly, the proposed land claim on Beetaloo station, Northern Territory, held in trust for a family of Aboriginal descent and, secondly, the charge that the present claim on the Ammaroo pastoral lease stock reserve, which perhaps is technically unalienated, has been taken by the solicitor supposedly representing the Aboriginal people of the area without their knowledge and consent?
– I was recently in the Northern Territory and it was quite clear to me that the people there generally accept the Aboriginal Land Rights (Northern Territory) Act. I know this is true for most senior members of the Northern Territory Government. They accept the Act and want to see it work well. I know too of many expressions of concern such as those which Senator Kilgariff has just offered in relation to some of the specific operations of the Act. I am aware of some concerns regarding Beetaloo station. This has been drawn to my attention, and I am awaiting the provision of more detailed information from my Department on what I understand is a very detailed and difficult problem.
The second point raised by Senator Kilgariff concerned the lodging of a claim. I would respond to that by stating that the claims are made on behalf of traditional owners who then have to satisfy the Aboriginal Land Commissioner at a public hearing that they satisfy the requirements of the Act and that they have a traditional association with the land before any land claim can be granted.
It is worth reiterating, however, that following the receipt of the report from Mr Rowland, Q.C., we are seeking the widest possible response from people in relation to the Aboriginal Land Rights (Northern Territory) Act. Those responses, together with Mr Rowland’s report, will be taken into consideration by the Government in a general review of the matters raised by Senator Kilgariff.
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– I ask the Minister for Finance: What credit facilities will the Government make available to farmers affected by drought if the trading banks refuse to lend money on overdraft at 10.5 per cent?
Senator Dame MARGARET GUILFOYLEI have no information that I can give in response to that specific question. I will refer the matter to the Treasurer to see whether he has any specific information relating to farmers in that context. I think that he, in his statement last night, made it clear that it was expected that the banks would give special consideration to farmers who are affected by drought. I hope that, as a result, the farmers who are suffering the effects of very severe drought will find that their difficulties are alleviated as far as possible. However, if the Treasurer has any further information on this matter I will see that Senator Primmer is advised.
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– Is the Leader of the Government in the Senate aware that in 1986 South Australia will be celebrating its one hundred and fiftieth anniversary? As the South Australian Government proposes to hold major sporting events as part of the State’s celebrations, will the Federal Government give financial assistance for these proposed events as it has for the Commonwealth Games in Perth, the Olympic Games in Melbourne and the proposed Commonwealth Games in Brisbane?
– I am aware that in 1986 South Australia’s sesquicentenary will occur. I am equally aware, of course, that the State will want to put on pageantry and sporting events as other States have done for similar celebrations. I think some financial assistance has been extended to one or more States for similar events. 1 will refer the matter to the Prime Minister and to the Treasurer for their study and consideration.
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– I direct my question to either the Attorney-General or the Minister representing the Minister for Administrative Services. I am not sure who will want to answer it. I remind the Attorney of a telegram which I sent to him during the election campaign asking him to intervene personally to prevent the continuance of an advertisement placed by the National Country Party in the Northern Daily Leader on Saturday, 1 1 October 1980, which the Australian Democrats suggested infringed section 161 (e) of the Commonwealth Electoral Act. I repeat that my request was for the Attorney himself, as the first law officer, to intervene. The Attorney will recall that he referred the matter to the Commonwealth Electoral Office. I ask whichever Minister sees fit to answer the question whether he will present to the Senate the legal opinion upon which the Australian Electoral Office based its conclusion that the National Country Party advertisement in the Northern Daily Leader of 1 1 October 1980 did not infringe section 161 (e) of the Commonwealth Electoral Act. Will the Minister undertake to present that opinion as soon as possible and, at least, not later than 40 days after 21 November 1980? If the Minister will not table the opinion, will he give to the Senate his reasons for not making such an opinion available?
– The specific question that Senator Chipp asked would be more appropriately answered by the Minister for Administrative Services who is responsible for the Commonwealth Electoral Act, but as I have some personal knowledge of the matter I will answer it. It is true that Senator Chipp personally requested my intervention as Attorney-General in respect of this matter, on which he sent me a very lengthy telegram, if I remember rightly, during the election campaign. 1 took the view that it was preferable for this matter to be dealt with by the Chief Electoral Officer who, no doubt, would look to my Department for legal advice. In fact, the view that 1 took was subsequently upheld by a court - that the Chief Electoral Officer did have standing in a court in relation to alleged breaches of the Commonwealth Electoral Act.
I think, from the point of view of all parties and of all candidates in an election, it is preferable that decisions and actions of that kind should be taken by an independent person rather than by the Attorney-General who, although one would hope he would be independent, as a candidate in an election, as he very often is, may not be seen to be independent. It is, I believe, very much better for the matter to be dealt with by the Chief Electoral Officer. That is the reason I referred the matter to him. He obtained an opinion from my Department in relation to the matter. As regards the specific question which Senator Chipp asked regarding that opinion being tabled, as I said, that is really a matter that should be addressed to and considered by the Minister for Administrative Services, and I will refer it to him for his attention.
– Mr President, I ask a supplementary question. Is the Attorney saying that it is for the Minister for Administrative Services to decide whether an opinion put out by the Attorney’s own Department is tabled in the Senate? Is the Attorney saying to the Senate that he, the Attorney-General, will not make a decision to direct his Department to table in the Senate an opinion expressed by his own Department? As a consequence, should this be so, I ask: Did his Department consult with the Attorney before it furnished an opinion to the Chief Electoral Officer on the occasion in question?
– Prior to the opinion being given, I had some discussion with the officer of my Department who furnished the opinion, but I did nol seek to influence the opinion in any way because I considered that it was, in the circumstances–
– Why have the discussion?
– It happened to be an officer of my Department who was concerned and he was informing me of what in fact was taking place and the nature of the opinion that was being given. It was simply a discussion of that character, not as to what the nature of the opinion ought to be. The ordinary rule, as far as 1 am concerned, is that I do not table, and my predecessors have not tabled, opinions that are given by my Department. That is the attitude that I normally take. In this case the opinion had been furnished to the Chief Electoral Officer at his request. It was obtained by him in regard to the matter that had been raised by Senator Chipp. I believe that the question of what is being done with that opinion should be determined by the Chief Electoral Officer, and he is responsible to the Minister for Administrative Services. Therefore, I think the question which Senator Chipp has raised today should be directed to the Minister for Administrative Services who, no doubt, will take the matter up with the Chief Electoral Officer.
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– I refer the AttorneyGeneral to his joint statement with the Minister for Foreign Affairs of 5 August 1980 announcing that Australia would ratify the International Covenant on Civil and Political Rights and would establish a human rights bureau to help to implement its policy on human rights. The Attorney-General, in making this announcement, stated:
There have been a number of changes in law and practice to bring Australia into conformity wilh the Covenant (for example, by taking steps to improve the civil rights of prisoners).
Will the Attorney-General inform the Senate of what steps Australia has already taken in law and in practice to conform with the Covenant, including those relating to the civil rights of prisoners? Will the Attorney-General also inform the Senate of what further action will be taken by the Government to reaffirm Australia’s standing as a country known internationally for its active commitment to the promotion and protection of human rights?
– The specific part of Senator Missen’s question dealt with steps that would have been taken by State governments and State parliaments. I do not have at hand details of the particular matters to which I was referring in that statement. I will take note of the question and obtain a detailed answer for Senator Missen. As far as the future is concerned, the Senate would be aware of the fact that we have now established a ministerial meeting on human rights. That now takes place almost routinely at meetings of the Standing Committee of AttorneysGeneral. That Committee is already considering a number of matters.
One of the main responsibilities that we have assumed on ratification of the Covenant is to make a comprehensive report to the United Nations under Article 40 in relation to the matters that Senator Missen has raised. That is one of the major tasks that the Committee has already considered and will have to determine in the next few months. A great deal of work has already been done on that subject. We will be outlining, as best we can, the position in which Australia stands in relation to the Covenant. The work of the ministerial meeting will be ongoing. I have no doubt that matters will be raised in that Committee as to whether Australia is in any particular case in conformity with the Covenant. Discussions will take place on these matters in that Committee as an ongoing responsibility.
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– My question is directed to the Minister for Finance. Given the Government’s claim that it is protecting farmers affected by the drought from the 2 per cent increase in overdraft rates, irrespective of their net worth, what action will it take to compensate unemployed persons in a country town for the 2 per cent increase in housing loan rates inflicted on them by the Government?
Senator Dame MARGARET GUILFOYLEThe statement by the Treasurer last night did not mention any special assistance for unemployed people who may be affected through their housing loan repayments. The statement with regard to farmers was to the effect that the banks have been requested not to apply the increase in interest rates to their overdrafts. I am not able to make any statement with regard to special arrangements for unemployed persons in the circumstances that Senator Coleman mentioned.
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– My question is directed to the Minister representing the Minister for Transport. Does the Government insist on the substantial recovery of costs of improvements to airports from airline operators? In deciding on the expenditure of taxpayers’ funds to upgrade and expand facilities at airports owned and operated by the Commonwealth, is the Government conscious of the likely effect on the price of air fares? Are the full implications of cost recovery policies considered by the Government when embarking upon a program of airport improvement? If not, why not?
– The Government’s ultimate objective is to achieve full recovery of all costs of providing and operating airport and airway facilities.
– Another Dorothy Dixer.
– No, it is not exactly. I happen to be very well briefed on the subject. Currently some 60 per cent of such costs are recovered. The extent of recovery differs according to sectors. I believe that international costs are being over-recovered; domestic trunk costs are expected to be fully recovered this year for the first time; and rural airline costs and general aviation costs are being substantially underrecovered. Airlines are charged air navigation charges for the use of airport and airway facilities on a route basis. Other operators are charged on an annual fixed sum basis. The Government is approving airport improvements. In approving them, it is always conscious of the cost implications for users and the consequences for fare levels. It is not always possible to estimate explicitly these effects for each airport project.
The additional cost associated with a particular airport which is recoverable through these charges is allocated to the various sectors of the industry, broadly on the basis of use. For the domestic trunks which are currently operating at full recovery, and are expected to remain there, the additional costs are recouped on a network basis and therefore do not fall exclusively on the trunk airline passenger using the new airport facility. I would emphasise that cost recovery for airport and airway facilities amounts to only 9 per cent of total costs of major domestic operators. On that basis an increase of, say, 10 per cent in air navigation charges or cost recovery would amount to an increase of only one per cent or less in the total air fare cost.
– I ask that the document which was quoted from by the Minister be tabled.
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– My question is directed to the Minister for Finance. Does the decision to increase the interest rate on small overdrafts by 2 per cent mean that the Government has repudiated the Sinclair policy of diverting large inflows of foreign funds towards overdraft lending in order to keep interest rates down? If not, what does the decision mean?
Senator Dame MARGARET GUILFOYLEIn his question the honourable senator referred to the Sinclair policy’. The policy of the Government is the policy that was announced in the Treasurer’s statement last night. That policy has been clearly enunciated by the Treasurer. A number of matters were covered in that statement. Any other statement that may be referred to as a statement of an individual Minister is not the policy of the Government. The Government’s policy is the one that was stated last night by the Treasurer.
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– I direct a question to the Minister representing the Minister for Industry and Commerce. Does the Government support the expansion of the electronics industry in Australia? If so, does the Minister agree that the continued importation, duty-free, of components such as integrated circuits, thick film hydrant circuits, semi-conductors and even copper and aluminium wire by Commonwealth departments, corporations and commissions undermines the expansion of the local industry?
– I will refer the question to the Minister for Industry and Commerce.
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– In the matter of toxic shock syndrome, will the Minister representing the Minister for Health make available the terms of reference given to the National Health and Medical Research Council on the matter of toxic shock and the use of tampons, together with the terms of reference of the inquiry into tampons currently being conducted by the Australian Government Analytical Laboratories in Sydney? Will the Minister consider waiving the normal confidentiality assigned to reports, transcripts and deliberations of the council and sub-committee members and, because of urgent concern, make the material available to the public? Will he consider making available for public record any written or otherwise recorded information covering the deliberations of the advisory committee on this matter, even if identities are purged from that record? Will the Minister advise of the form of words used in soliciting information about toxic shock syndrome through the Department of Health’s voluntary reporting scheme, including a full description of what symptoms recipients of the bulletin were alerted to? Finally, is it true that a direction has been given that all queries which are directed to any officer of the Department of Health on this matter of tampons or other related matters are to be recorded and sent in a memorandum directly to the Director-General of the Department of Health? If so, what is the purpose of that direction?
- Senator Melzer asked a question in several parts. Firstly, in relation to the whole question of toxic shock syndrome associated with tampon use, no cases have been reported in Australia. That is the first point worth making in relation to the honourable senator’s question. The tampon which is the subject of concern overseas is not sold in Australia. The cause of the shock syndrome appears to be bacterial contamination or bacterial infection of some kind. An analysis of Australian brands - an analysis of the whole problem - is in progress. I am unable to give to the honourable senator the terms of reference of the two inquiries to which she referred, but I will seek out that information.
The honourable senator raised a number of questions, including whether it would be possible to waive confidentiality and whether it would be possible to make certain material available for the public record. I will refer those matters to my colleague the Minister for Health, obtain his view and make that available to the honourable senator. Finally, Senator Melzer asked whether a certain directive had been issued regarding the transmission of information directly to the Director-General of Health. I do not know the answer, but I will see whether 1 can obtain the information.
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– I ask the Minister representing the Minister for Business and Consumer Affairs: Are some ofthe increases in freight costs on goods transported by sea between Tasmania and Victoria made in the knowledge that the freight equalisation scheme picks up a large proportion of the freight through the form of a rebate? Since not all freight costs are subject to the rebate, some freight costs now represent a very severe imposition on certain Tasmanian consumers and producers. What steps has the Government or the Australian National Line taken to stabilise freight costs on goods transported by sea across Bass Strait?
- Senator Watson would know, of course, of the arrangements that have been made between the Commonwealth and Tasmania over a long period in regard to the equalisation scheme. I think he also will recall that in 1971 a Senate standing committee determined that the freight increases implemented by the ANL in the previous year were fully justified.
– Hear, hear!
– Apparently Senator Young was a member of the committee. Subsequently the ANL rates were examined and increased. There is no reason to believe that the existing rates are not appropriate. However, I will refer the matter to my colleague to get some further information for Senator Watson.
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– ls the Minister representing the Minister for Communications aware that the Government financed Independent and Multicultural Broadcasting Corporation has given Channel 9 a financial windfall in that, having acquired the rights to replay selected international soccer matches for $250,000, it granted Channel 9 replay rights free of charge? Will the Minister inquire of his colleague why the replay rights were not offered to the Australian Broadcasting Commission? Further, will the Government consider referring the whole question of multicultural television to the Senate Standing Committee on Finance and Government Operations which is chaired by Senator Rae and of which I am a member?
– The arrangement whereby some commercial stations in Brisbane, Newcastle, Wollongong, Canberra, Hobart, Adelaide and Perth received the rights to telecast the Socceroos’ match against Greece involved an offer by those stations to provide facilities for line coverage of the Philips Soccer League matches to be played in Australia during 1981-82 free of charge to Channel 0/28, the multicultural channel. In return these stations receive the rights to telecast soccer matches held in Australia as well as a number of matches to be played overseas when the rights to such matches are held by the Special Broadcasting Service. I trust that does throw some light upon the matter because it does not appear that it is a windfall.
The honourable senator also asked whether the whole question of the IMBC would be referred to the Senate Standing Committee on Finance and Government Operations. I understand this issue has already been the subject of study by one Senate committee, but I will refer to my colleague the suggestion that has been made. I take it that the reference of a matter to a Senate committee is within the capacity of the Senate.
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– I direct a question to the Minister representing the Minister for Foreign Affairs. Some time ago, in conjunction with Senator Evans and Senator Chipp, I voiced some concern about the attitude of the Australian Government to extending, as it were, the hand of aid to the politically oppressed in Latin America. I wonder whether the Minister can give us an up to date report dealing in particular with the Argentine.
Senator Dame MARGARET GUILFOYLEI have some information relating to the question raised by Senator Mulvihill on 27 November. The question he asked concerned Mrs Anna Maria Mohaded. an Argentinian citizen. The Minister for Foreign Affairs has provided an answer in response to the question raised at that time. He states that the case of Mrs Mohaded has been a matter of concern to the Australian Government for some time. On several occasions during the last 1 8 months the Australian Embassy in Buenos Aires has made representations to the Argentinian Government on the subject of her continuing detention. The honourable senator will be aware that she is an Argentinian citizen and subject to Argentinian law. She does not have the right of option to leave Argentina. The former Minister for Foreign Affairs gave an assurance to Senator Mulvihill on 1 August that she would be issued with a migrant entry visa to Australia as soon as possible after her release. The Government will continue to draw to the attention of the Argentinian Government its interest in Mrs Mohaded’s case.
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– I ask the AttorneyGeneral: In view of the judgment handed down earlier this week by Mr Justice Mason, has the Minister had any cause to review the timetable previously indicated for the reintroduction of the freedom of information legislation into this Parliament? If not, is the Attorney-General in a position to indicate to the Senate when he intends to present the revised form of the Freedom of Information Bill for debate in this chamber?
– The Government has made clear its intention to reintroduce the Freedom of Information Bill. The Senate will be aware that amendments are being made to it. The final form of the Bill has not yet been determined but it is my intention to reintroduce the Bill during the autumn sittings. I hope to be able to do so at the earliest opportunity during those sittings. It has been determined already that that Bill will be given priority in the autumn sittings.
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– My question, which is directed to the Minister for Veterans’ Affairs, refers to section 49 of the Repatriation Act which, as the Minister knows, covers situations where pensioners are not able to control their own affairs. It refers also to the public comment which has arisen concerning near relatives of deceased persons who claim some sort of distribution of the funds which are available. I ask the Minister: Is it a fact that the Commonwealth Ombudsman has recommended changes to the Act? Is he aware also that Mr Justice Toose similarly recommended changes in 1975? Can the Minister advise what is happening to the applications that I have mentioned and which were referred to in a national newspaper? When is the report of the Commonwealth Ombudsman likely to be presented to the Parliament and its result known to the Senate?
– The matters that have been raised by Senator Bishop are quite complicated. I need to refer them to my Department to obtain advice. I will undertake to come back to the honourable senator a little later with some information.
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– Can the Minister representing the Minister for Communications ascertain whether any decision to extend national radio broadcasting to areas on the west coast of Tasmania has been made? Has any assessment been made of the possibility of shared nationalcommercial translator facilities to that locality? In view of the isolation of the people working in this area, can any measures be taken to speed up the program to improve reception?
– The honourable senator asks whether it is possible to ascertain certain information. I certainly will seek out this information for him. I understand that many remote areas of Australia are awaiting the introduction of satellite transmissions in the hope that they will improve services in quite a few areas. I believe that my colleague, the Minister for Communications, will be better able to provide a detailed response.
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– I refer the Minister representing the Prime Minister to the concern that exists in the north of Tasmania relating to the retrenchments at the textile factory of James Nelson Pty Ltd. In view of the fact that certain promises were made to the employees of that factory that their employment would be continuous until at least the end of 1981, I ask the Minister whether he will persuade the Prime Minister to return to Launceston to explain to the workers at the textile factory of James Nelson Pty Ltd, who have received pre-Christmas retrenchment notices, that his October visit was just an election stunt to give credence to Mr Newman’s constant reassurances that their jobs would be safeguarded until at least December 1 98 1 . As this reassurance was based on the supposed certainty of a Government contract being awarded just after the election, and as the bulk of this contract has gone to Taiwan, will the Government admit the cynicism of its pre-election promises?
– I do not know the circumstances under which James Nelson Pty Ltd is, as Senator O’Byrne indicated, retrenching some of its staff. I do not know what the particular terms of trade are that have brought this about. Nor am I aware of any undertaking given by the Prime Minister or anyone else regarding a possibility of a Government contract going to that firm. If Senator O’Byrne will give me information on the understanding involved I will bring it to the notice of either the Prime Minister or the Minister for
Industry and Commerce, who would be concerned with these matters. 1 am not aware of any Government contract which it may have been thought would be directed to that firm but which has gone to Taiwan. I assure the honourable senator that any information that can be given to me will receive the fullest attention.
– I ask a supplementary question. I ask the Minister whether he will use his best offices when consulting with the Prime Minister to have the contract re-examined with a view to 75 per cent of the work being given to Tasmanian employees rather than to Taiwan.
– Assuming that I can get the details of the contract and the background of this matter, I will certainly convey Senator O’Byrne’s suggestions to the Prime Minister. I should add that the Commonwealth Government has taken massive steps over the years, particularly through the Callaghan schemes, to ensure that Tasmania develops in industry and commerce, and that its people have job opportunities. If there are defects in these arrangements I will certainly have them looked at.
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– My question to the Attorney-General relates to the human rights area and the investigatory powers given to the Human Rights Bureau which was recently established by the Government to help implement its policy on human rights. When announcing the establishment of the Bureau the Attorney-General staled that, among other things, the Bureau would:
On reference from the Attorney-General investigate complaints from members of the public and issues related to areas of Commonwealth concern in the human rights field.
Notwithstanding the limited powers vested in the Bureau, I ask the Attorney-General: How many references have been made by him to the Bureau under the terms of this statement? What was the nature of these references and when were these references in fact made to the Bureau by him?
– I have not made any reference to the Bureau in relation to any particular complaint. I do not think that there have been many complaints as yet. I cannot say for sure how many there have been but I have not become aware of any. I was asked a question the other day at a meeting between the Bureau and nongovernment organisations in the human rights field. The meeting, which was held in Sydney, discussed where the Bureau might act in relation to the interests of the organisations and vice versa. I was assured that a complaint in a particular area was to be forwarded shortly. It was not specified what it would be. I will follow up the matter to find out whether any specific complaints have been made and I have not yet been made aware of them.
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– My question is directed to the Minister representing the Minister for Administrative Services. In the light of the statement by the Minister for Administrative Services in the other House yesterday that he currently is examining the Commonwealth Electoral Act with the Chief Electoral Officer and in the light of recent reports that the Government parties were considering four-year parliaments, will the Minister assure the Senate that the other electoral matters at present of concern to the community will be considered? Those matters include: The adoption of a modified preferential voting system; rotation of candidates’ names on ballot papers; the indication of political affiliations of candidates on ballot papers; tighter nomination requirements, especially for the Senate; mandatory limitations of campaign spending; subsidisation of campaign costs; and other glaring anomalies in the current system.
– I think it might be best if I refer that whole question to my colleague, the Minister for Administrative Services, and obtain an answer to each part of the honourable senator’s question.
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– Mr President, I direct my question to you. You may recall that quite some time ago I asked a question of you - I have asked further questions since - with regard to striking official parliamentary badges for senators and members. I ask you, sir: Do you have anything further to report to the Senate as to when such badges will be available?
– I cannot inform the honourable senator at the moment about when the badges, which have been carefully selected, will be available. I will obtain information with respect to that matter from the officer concerned and will advise the honourable senator.
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– My question is directed to the Minister for Finance. Because a high percentage of fruit growers along the Murray River at present are using flood irrigation the salinity problem in the South Australian section of the river is becoming acute. I believe that the Federal Government has promised $300,000 to the South
Australian Government to make low interest loans available to fruit growers to encourage them to change to overhead sprinklers or the drip method of irrigation. Can the Minister inform the Senate whether this money has been made available yet? Does she consider the amount is sufficient for such an increasing problem?
Senator Dame MARGARET GUILFOYLEI will need to check what was stated by Senator Elstob and inquire with regard to the amount that either was promised to be made available or has been made available. I will see that the honourable senator is advised accordingly.
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– I direct a question to the Minister representing the Minister for Transport. As the Ghan, the old narrow gauge railway which has operated from Port Augusta and originally from Adelaide for well over 50 years, servicing the outback to Alice Springs in the Northern Territory, is now ceasing to operate to make way for the new standard gauge rail link from Tarcoola to Alice Springs, is it the intention of the Australian National Railways Commission to retain a section of the old line, rolling stock and other equipment, et cetera, as an historic railway collection to commemorate the pioneers and the feats of all those associated with the Ghan over the past several decades?
– I am afraid I have no information on that matter for Senator Kilgariff. I will refer the matter to my colleague, the Minister for Transport, and bring the honourable senator an early reply.
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– Can the Minister for Aboriginal Affairs inform the Parliament whether Tranby, the co-operative college for Aborigines which has been established for many years in Sydney and which has an extensive program of education, training and assistance with employment programs for Aborigines, has been taken into consideration for national funding through the Department of Aboriginal Affairs for the current financial year or for the next financial year?
– AllI can say to the honourable senator in response to his question is that I am unaware of any action that has been taken. Certainly nothing concerning the matter has come across my desk. It might be best if I take the matter into consideration and advise the honourable senator if other information is available.
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– I direct a question to the Minister representing the Minister for the Capital Territory. I refer to proposals for the future development or redevelopment of inner Canberra areas such as Reid and Braddon and the preservation of some areas and their inclusion on the Register of the National Estate. What action has been taken to prepare a draft policy plan or plans for these areas so that residents, developers and others interested in these issues will have a chance to put their views on the future of important areas of the national capital? Will the Minister ensure that such draft proposals, and certainly any final document, will strike a balance between the need to preserve significant elements of the nation’s history and heritage in central Canberra and the need for new development or redevelopment?
– I am informed that the policy of the National Capital Development Commission with regard to residential land is that, except in identified areas of Kingston, Griffith and Turner, it may be used only for a purpose that complies with the conditions of the lease; that is, a single detached dwelling house. There are no proposals at present to introduce policies to permit redevelopment in all areas, as I understand it. Within the suburb of Reid, however, a conservation area has been identified by the Australian Heritage Commission and has been placed on the Register of the National Estate. The NCDC, after discussions with the Heritage Commission, is preparing appropriate guidelines and development conditions covering proposed changes to buildings within the Reid conservation area. When drafting of those conditions has been completed residents will have the opportunity to comment on them. The Government has accepted the recommendations in the report of the Joint Committee on the Australian Capital Territory on planning procedures. These include procedures for public consultation and, consequently, any future proposals to permit redevelopment in the inner Canberra residential areas would be subject to the need to prepare draft policy plans.
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– My question is directed to the Minister for Finance. I refer to questions which have already been asked today relating to the Government’s interest rates decision. Will the Minister, before the Senate rises this week, make a statement to the Senate on the Government’s decision relating to interest rates and the consequences for areas of business particularly affected?
Senator Dame MARGARET GUILFOYLEI was not planning today to make a statement on behalf of the Treasurer. If the Treasurer has a statement which he wishes me to make on his behalf, I will ensure that that is made in the Senate for him. 1 am not aware of any statement that he intends to make on consequences.
– He made one last night.
Senator Dame MARGARET GUILFOYLEHe made a statement last night and I understood that he intended to elaborate today on matters relating to drought affected areas. He may have done that during Question Time. I am not aware whether he did so. I am not aware of any other statement that needs to be made. A statement that was made by the Treasurer in the usual way would be made in the Senate on his behalf.
– I wish to ask a supplementary question. 1 ask the Minister whether she might consider giving the Senate the benefit of a portmanteau statement covering all the statements made by the Treasurer in connection with this matter in the last 24 hours.
Senator Dame MARGARET GUILFOYLEI will ensure that whatever statements are made by the Treasurer are made available to the Senate.
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– I refer the Minister representing the Minister for Education to the current budgetary problems of the Australian National University that were outlined by the ViceChancellor, Professor Low, in papers he published in November. Does the Minister confirm that the financial difficulties of the Australian National University have arisen only recently as a result of two factors the increased cost of energy and especially the statutory requirement for making provision for staff superannuation, this provision being at the extraordinarily high rate of 20 per cent of staff salaries? By what date will the Tertiary Education Commission report to the Minister on the ANU’s financial situation? Finally, will the Government give every consideration to changing the statutory requirements so that the ANU returns to the Federated Superannuation System of Universities scheme, its lower costs and its range of benefits which are the benefits obtaining in all the other Australian universities?
– I have not seen the official details of the recent statements by the
ViceChancellor. I was aware in my previous capacity of the changeover of superannuation and the extra burden that it created for the ANU. The Tertiary Education Commission, of course, has the overall responsibility each year and each triennium to look at each university following upon recommendations of the Universities Council and to recommend to the Government particular allocations of funding covering the whole of the expenses that the universities meet. I am not aware of the Tertiary Education Commission’s attitude regarding the special problems raised by Senator Teague. Any consideration of a change in requirements is a policy matter. I will refer that to the Minister for Education in another place.
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– I refer the Minister for National Development and Energy to Press reports of yesterday to the effect that the first release of water from the Dartmouth Dam will take place later this month in a bid to save irrigated crops in three States. I ask the Minister: Firstly, what will be the allocation to each of the three States? Secondly, how long will it take after the release of water for South Australia’s allotted quota to reach that State? Thirdly, what assurance is there that South Australia will receive the same quality of water as that drawn off by Victoria and New South Wales? Finally, does the first release of water from the dam coincide with the commissioning of the hydroelectric scheme built into the Dartmouth Dam?
– Like South Australians, I am very interested in the announcement of the first release of water from the Dartmouth Dam. I appreciate the interest of Senator McLaren and other honourable senators in this matter. Senator McLaren asked me four specific questions. They require detailed information which I do not have at hand at this moment, although I did see some of the information this morning. I will seek the information so that I am precise in my knowledge and let him have it. He can rest assured that, as far as possible, there will be absolute equity in the sharing, both in quality and in quantity, of the water from the dam. If I can give further information to him I will be happy to do so.
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– Last week Senator Chipp asked me a question concerning two Royal Australian Navy Reserve chaplains. He was concerned that they had been disciplined by the commanding officer of HMAS Leeuwin for attending a meeting in relation to the Noonkanbah dispute. The Minister for Defence has now provided an answer to the series of questions that Senator Chipp asked.I do not propose to refer to the actual questions, but I hope the answer covers them in substance.
The two Royal Australian Navy Reserve chaplains in question attended last August a meeting to pray for a solution to the Noonkanbah dispute. The two chaplains were not formally reprimanded or censured as reported but were reminded that their action in taking part in a meeting which transgressed Perth City Council by-laws was not consistent with their responsibilities as naval chaplains. They were advised to consider their position with regard to these activities and the Navy.
Both chaplains were in civilian dress at the meeting and neither indicated at any time that he was representing the Navy. The Royal Australian Navy has no objection to personnel attending authorised rallies and meetings if they do so in a private capacity. However, as the Press highlighted the unauthorised nature of the meeting, the commanding officer of HMAS Leeuwin understood that the meeting could have been in contravention of the Police Act. The two chaplains were not formally reprimanded or censured. Furthermore, their duties were not and are not restricted. Prior to the August incident, both chaplains had been invited to take part as fill-ins in the character development course held at HMAS Leeuwin. With the restructuring of the course, their involvement was no longer necessary.
Chaplain McCollum, who has five years service as a Reserve chaplain, has submitted his resignation dated 23 October 1 980 as a consequence of the incident on 13 August 1980. It is understood that this resignation may have been contemplated for some time as the chaplain was being transferred within the church from Perth to Geelong. The letter of resignation was received at HMAS Leeuwin on 1 7 November 1 980 and forwarded to the Navy Office on 24 November 1980. The commanding officer of HMAS Leeuwin acted in good faith in discussing this matter with the chaplains, but his views may have been expressed rather strongly in what was essentially a transgression of a Perth by-law in holding the meeting.
– by leave - It appears from the answer which the Attorney General (Senator Durack) has put down that the Defence Department has put the most favourable interpretation possible on the events surrounding the calling before the commanding officer of HMAS Leeuwin of two naval chaplains for taking part in an ecumenical prayer meeting at Forrest Place. The answer does not apparently address the question whether the commanding officer was rightfully exercising or assuming an authority to deal with an alleged breach of a by-law concerning that meeting when the civil authorities had taken no action. In other words, what are the armed forces doing in taking to themselves a power to deal with these two Australians, when the ordinary prosecuting authorities and, presumably, the Perth Magistrates Court, had no intention of dealing with the matter. Further, the answer does not address the question of an apparent denial of the right of these two Australians when carpeted before the commanding officer to make any sort of explanation; in other words, the question of the denial of natural justice has not been addressed in the answer.
Finally I will be very brief because I realise I am speaking with the leave ofthe chamber even if everything that the Minister has said is correct, the answer does not deal with the dimension or the aspect of the problem that is concerned with the fact that the meeting was of a religious character in that it was an ecumenical prayer meeting. The question that still remains is whether the armed forces representative in this case, the commander of HMAS Leeuwin, perhaps unwittingly may have created a situation in which the right freely to express in a social dimension one’s conscientiously held beliefs about a certain social situation, that conscience being formed by reflection on religious principles, has here been infringed or abrogated. One looks forward to the Attorney, perhaps in the next day or two certainly before we rise for Christmas addressing his mind to that problem and informing the Senate of his conclusions concerning it.
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During the last week the Minister for Foreign Affairs has received numerous inquiries from people and organisations concerned about reports that this man had been abducted from the prison in Uruguay. Our Ambassador in Buenos Aires, who is also accredited to Uruguay, sent an officer of the embassy to Montevideo to investigate these reports. It appears from information obtained during this visit that Martinez is in solitary confinement in prison as a suspected member of the Tupamaros terrorist movement. Martinez was mentioned in the Press on 28 November as being among a group of six detainees claimed to be the ringleaders of the new subversive movement linked with the Soviet Union to overthrow the Uruguayan Government. It should be understood that Martinez is a Uruguayan citizen and therefore subject to the law of that country, lt seems unlikely that he will be released in the near future.
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– Yesterday Senator Grimes asked me a number of questions concerning the hearing of medical appeals by Social Security Appeals Tribunals. I then undertook to provide answers as soon as I was able, and I now have some information which I think answers all the questions he raised. Medical practitioners have not yet been appointed to the Social Security Appeals Tribunals. The matter of finding suitable persons who might accept such appointments is being actively pursued at present, and necessary inquiries are being made by the Director-General of Health at the request of the Director-General of my Department. 1 anticipate that recommendations will be put to me at an early date. Appointments to the Tribunals will be made by me as Minister for Social Security. When those appointments have been made, the Tribunals will be appropriately constituted to hear medical appeals lodged with them after the date on which the change in the jurisdiction of the Tribunals was announced in this chamber by my predecessor.
A person currently awaiting the hearing of a medical appeal may well be entitled to some alternative benefit in the meantime. Where a medical practitioner certifies that a person is unable to work on account of illness, sickness benefit will be payable at substantially the same rate as invalid pension. Alternatively, if the requirements of sickness benefit are not met, an unemployment benefit or special benefit may be payable. My Department is currently taking steps to ensure that the right of appeal to the Tribunals is appropriately drawn to the attention of individual clients concerned. As to the evidence which might be produced before the Tribunals by an appellant, there is nothing in the procedures under which the Tribunals operate which would preclude a Tribunal from hearing new evidence which had not previously been placed before the DirectorGeneral of my Department or before the various medical officers whose advice had been provided to the Director-General.
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– Earlier, Senator Bishop asked me a question with regard to section 49 of the Repatriation Act and 1 undertook to give him an early reply. I am advised that the Ombudsman’s concern has been noted by the Department of Veterans’ Affairs and that an investigation of the matter is going forward. In fact, a comprehensive report is being prepared and options are being selected at this time. I expect to be able to advance those options in the not too distant future.
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– In response to Senator Young’s question to me earlier concerning badges for senators and members, I am now able to advise that the designs have been agreed upon by the Joint House Committee. It is expected that the badges will be available for distribution to senators and members early in February.
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– 1 have received a letter from Senator Ryan proposing that a definite matter of public importance be submitted to the Senate for discussion, namely:
The citing of the Western Australian and Queensland State Governments for alleged human rights violations in the latest Country Reports on Human Rights Practices for 1979 published by the United States Congress and the need for the Fraser Government to take all legislative steps necessary to eliminate discriminatory practices against Aboriginals by the Western Australian and Queensland State Governments.
I call upon those senators who approve of the proposed discussion to rise in their places.
More than the number of senators required by sessional order having risen in their places -
– I raise this matter today because it is a matter of concern to the Federal Opposition and, 1 hope, to all honourable senators in this chamber, including the Minister for Aboriginal Affairs, Senator Peter Baume, that Australia stands condemned in the eyes of the international community for failing to safeguard the basic human rights of some of its own citizens, namely, Aboriginal Australians living in Queensland and Western Australia. In Queensland Aborigines are still treated with discrimination by law - the notorious Queensland Acts. Aborigines on reserves are subject to State Government regulations which set them apart not only from other Australians but even from their fellow Aborigines off reserves. Regulations and by-laws give reserve managers extraordinary rights of entering in to the houses of and regulating the details of clothing worn and domestic implements used by Aborigines living on reserves. There is no freehold title to land and there are no effective self-management provisions. In Western Australia Aborigines have been able to take over leasehold properties but have no effective means of preventing the destructive incursion of mining companies on to their land. Their right to vote has been obstructed by State law.
Australia is a signatory to and has ratified several international conventions protecting human rights. The Prime Minister (Mr Malcolm Fraser) likes to parade his concern for human rights in international forums, to receive decorations for such activities and to use human rights arguments to justify his less successful foreign policies - for example, his Olympic Games boycott. Relatively speaking, Australia’s citizens enjoy advanced human rights, but our generally favourable position makes our tolerance of discriminatory treatment of Western Australian and Queensland Aborigines all the more inexcusable, all the more shameful.
A basic human right is that all citizens of a nation be equal under the law. Aborigines comprise only one per cent of the Australian population. The Aboriginal population of Queensland and Western Australia together comprise about half of one per cent. How can the rest of us tolerate the discriminatory treatment of that less than half of one per cent of the population? The Opposition raises this matter today because we cannot tolerate that discrimination. It is in itself a matter of shame to us. It is further a matter of shame that the discriminatory laws in Queensland and Western Australia were cited some months ago in Country Reports on Human Rights Practices for 1979, which was submitted to the United States Congress, as violations of human rights protected by international agreements to which Australia is a signatory. The United States Congress Country Reports, which my motion refers to, were brought to my attention again last week when I received correspondence from an American human rights organisation called the Northern Hemisphere Association for the Advancement of Australian Aborigines. It will surely be a matter of concern and some embarrassment to Australians that the protection of human rights of some of our own citizens has had to be taken up by a group of people living on the other side of the world.
Although this congressional report was published some months ago and was cited on two occasions in the House of Representatives, the Fraser Government has taken no action to remove the discrimination and indeed has acquiesced in further disgraceful assaults on the right of Western Australian Aborigines living at Noonkanbah. There, as we all know, the Federal Government took no effective steps to prevent the desecration of a sacred site by the Amax company. It refused to use its clear constitutional power. It refused to carry out its constitutional responsibility to safeguard the rights of Aborigines. The then Minister for Aboriginal Affairs, Senator Chaney, admitted his failure in this matter. He has now passed on to higher things.
The hole drilled by Amax is empty of oil. So we are supposed to forget all about this incident just as we are supposed to have forgotten about a previous Fraser Minister’s failure to protect the human rights of Aborigines at Aurukun and Mornington Island. That episode, and the Commonwealth Act which it threw up, the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978 were the subject of an expert and thorough report in November 1978 by the Senate Standing Committee on Constitutional and Legal Affairs. That report concluded that the Fraser Government’s Act purporting to assist the people of Aurukun and Mornington Island was, for practical purposes, ineffective as a means of allowing Aboriginals and Torres Strait Islanders in Queensland to manage their own affairs. The report went on to say that some unilateral action by the Commonwealth would therefore be necessary. The report stated:
In cases where the effective management and control of their own affairs by Aboriginals and Torres Strait Islanders requires the continued occupation of specific lands by those people, the Committee considers that some acquisition of property must form part of the legislative scheme.
Two years later there has been no action taken by the Fraser Government on this Senate report and violations of human rights continue daily in those States. One of the consequences of Australian ratification of the Convention of the Elimination of All Forms of Racial Discrimination is that, under Article 9, the Australian Government is required to make periodic reports to the United Nations Committee on the Elimination of Racial Discrimination. The last report was made in 1 979 and stated:
The Commonwealth Government is committed to the policy of aboriginal self-management. This means that aboriginals, being as free as other Australians to determine their own varied futures, have a fundamental right to retain their traditional life style or, where they so desire, to adopt partially or wholly a different life style. Land rights are fundamental to many self-managing initiatives.
I can only assume that the Government’s report, when it spoke of Aboriginals being as free as other Australians to determine their own varied futures, was talking about the ideal and not the existing situation. The existing situation constitutes a denial of basic human rights to a very large part - about one half - of the Aboriginal population. In Queensland and Western Australia this denial of human rights, as I have said, is perpetuated by the laws of those States and the operation of those laws. In the case of Western Australia, the Country Reports cite amendments to the State Electoral Act as having the effect of restricting the right of Aboriginals to vote. The amendments passed in October 1979 require all enrolment cards to be signed before an electoral officer, a Justice of the Peace, clerk of a court or a policeman. Previously, an enrolment application could be witnessed by any elector as is the case with the Commonwealth Act. This provision presents obstacles to those who have difficulty communicating in English and those who live in remote areas, the majority of whom happen to be Aboriginals.
The amendments also make it an offence to persuade a person to apply for a postal vote. This is a thinly disguised attempt to prevent Aboriginal people from being informed of their voting rights. This notorious provision, contained in section 95 ( 1 ) of the Western Australian Electoral Act, has already been used against Aboriginal community workers who allegedly assisted Aboriginals in obtaining postal votes for the Western Australian State election in February. Honourable senators will no doubt remember the arrest of Mr Stephen Hawke and four others for this alleged offence. That case was decided only 10 days ago after long delays. The result was that a total of 72 charges against the five were withdrawn by the police with costs of $ 1 2,769 being awarded against the Western Australian Government. On 6 June 1979 the following urgency motion was moved in the Senate:
Thai Aborigines should have the same opportunity to enrol and vote in State elections as in Federal elections.
– You lost that one as well.
– Senator Thomas is quite wrong. This motion was supported by the Government and was carried without dissent, although Senator Thomas has now expressed his real feelings on the matter. In expressing the Government’s support for the motion, Senator Chaney said:
Yet the Western Australian Government has passed a law which clearly discriminates against Aboriginal participation in State elections and the Federal Government has done nothing to enforce its stated policy. The 1967 referendum gave the Commonwealth power to make special laws in respect of Aboriginal people. In the absence of any Government action on this matter my colleague Senator Peter Walsh, from Western Australia, introduced in 1979 a private member’s Bill - the Western Australian Aboriginals (Right to Electoral Enrolment) Bill - which if passed would have ensured that Aboriginal people who have complied with the provisions of the Commonwealth Electoral Act would also be included in the State electoral roll, thus removing discrimination. The Government obstructed the passage of that Bill so that a vote was never taken and ultimately it fell from the Notice Paper. However, Senator Walsh has put on notice a motion - No. 27 on today’s Notice Paper - that he intends to introduce this Bill again.
The Government can be in no doubt as to its power to nullify discriminatory State laws. The Government is also very clear on its policy that Aboriginals should be as free as other Australians to determine their own futures. Why then has the Government steadfastly refused to act? Why has it prevented from coming to a vote Senator Walsh’s private member’s Bill, which the Government, in view of its stated attitude, could hardly do other than support? When this question has been put to the Government in the past the Senate has been treated to a lot of noble words about how the Government is protecting the Aboriginal people from being caught up in a conflict between State and Federal governments. That is rubbish. The Government is protecting itself from the political damage that could result from a conflict with the Liberal Government of Western Australia or the National Party Government of Queensland. The Government is protecting Liberal Party and coalition unity to which it obviously gives a much higher priority than human rights for the Aboriginal people.
Noonkanbah has proved beyond a shadow of doubt how highly the Aboriginal people value their rights. The Noonkanbah episode also proved that the Aboriginal people are prepared to fight for their rights as indeed they have been fighting for their rights in the 200 years of colonisation since expropriation of their land has been in progress. It is not, I suggest, the Aboriginals who are scared of the fight; it is the Fraser Government. The Federal Government has failed the Aboriginal people. I take issue with Senator Chaney’s assertion that Noonkanbah was the exception rather than the rule. The situation that occurred at Noonkanbah is not an exception at all. lt is a more dramatic example of something that happens every day; that is, the flagrant violations of human rights that go on in Australia, indeed often perpetrated by the Court Government or the Bjelke-Petersen Government. These violations will go on until the Federal Government takes up its constitutional responsibility to the Aboriginal people and honours its obligations under the United Nations Convention on the Elimination of All Forms of Racial Discrimination.
I raise this matter today to urge the Government to take up its responsibility without further procrastination. We have a new Parliament, a new Minister. The Opposition must dare to hope for the possibility of a new deal for Aboriginal people. In my own newly acquired responsibility for these matters, 1 want to make my attitude crystal clear and put the Minister on notice. The problems of all Aboriginal Australians are long standing - almost 200 years - and aggravated by neglect, racism and well-meaning blunders. A good deal of work and more generous resources will be required before the living standards in health, housing, education, employment and the legal rights of Aborigines, are raised to an acceptable standard; that is, a standard equal to that which applies to all other Australians. My attitude is this: Those problems, although severe, are not intractable. They can be overcome and, in time, if the Government will listen to the many articulate and informed voices emerging from the various Aboriginal communities they will be overcome. The Opposition will certainly pursue the Government relentlessly until they are overcome.
The question of human rights is another matter and an even more basic matter. There is no acceptable timetable for it. Australia having ratified the Convention on All Forms of Racial Discrimination in 1975, the Australian Government, whichever party holds office, is obliged from that time to outlaw discrimination in this country. There is no excuse for inaction. Various legislative alternatives exist. In respect of Queensland, they have been documented by the Missen Committee, and will require, I acknowledge, the acquisition of land by the Commonwealth to be given freehold to Aboriginal communities. A good deal of concern has been expressed about this suggestion in that it would require the Government to undertake a very costly and almost unending series of land acquisitions for the Aboriginal people. 1 suggest that such concern is not well based. 1 suggest that one such example of land acquisition would be enough to demonstrate clearly to the
States the powers and intentions of the Commonwealth.
– Don’t you think they know that we have that power? Why do we want to demonstrate it?
– The interjection indicates that the honourable senator is not willing to do what I have just suggested; that is, to demonstrate to the States that the Commonwealth is prepared to exercise its constitutional power by one test case of land acquisition in Queensland or in Western Australia. Queensland would be a more suitable place for this exercise.
– What would be the result of that? What result would that achieve?
– I believe that the result would be that the State governments would no longer get away with flagrant violations of human rights to which the Government supported by Senator Lewis has acquiesced in the five years that I have been a member of this place. In respect of Western Australia, the Federal Government should take all steps necessary including the funding of the Kimberley Land Council so that the Western Australian Aborigines can exercise their land rights in the same way as Aboriginals in the Northern Territory and in South Australia. Government senators may, of course, vote for Senator Walsh’s private member’s Bill when it comes up. These legislative measures are urgently required.
I inform the Minister for Aboriginal Affairs, Senator Peter Baume, that the Opposition will not allow intra-coalition squabbles to be put ahead of our human rights obligations to the most disadvantaged of our own citizens. I also point out to honourable senators that if the Federal Government does not carry out its responsibilities voluntarily it is likely in the future to be forced to do so by the international community. Already a delegation of the National Aboriginal Conference, led by its President, Jim Hagan, has gained the support of a United Nations sub-commission in Geneva. The NAC has announced that it is planning a boycott of the Brisbane Commonwealth Games if discriminatory State Acts are not repealed by the Commonwealth Government. In advocating a boycott on this matter the NAC is following the example already set by our Prime Minister. However, the Opposition will not stand by silently and see Australia become the object of a boycott by Third World countries and others outraged by our discriminatory laws. I urge the Minister to act on his expressions of good will to Aboriginal Australians to succeed where his predecessors have failed, and to ensure that basic human rights are extended to all Australians, black and white, in all States and Territories of Australia. In this he would be supported by the Federal Opposition and by all fair minded Australians.
– The Government welcomes the opportunity given by the debate on this matter of public importance to restate the Commonwealth’s position and record. The matter which has been raised by Senator Ryan can be looked at in two parts. The first matter deals with what has been cited in a document presented to the two Houses of the United States Congress by the United States Department of State. The second matter concerns the urging of the Commonwealth Government to move, by legislative means, to correct situations to which the Opposition has drawn attention.
– In the States.
– In the States. I accept my colleague’s point. This matter of public importance is welcomed. It gives us a chance to discuss an important subject. Government senators, in assessing the debate that has occurred so far, are entitled to judge the contribution by asking whether it was reasoned, reasonable, accurate, comprehensive or fair. I will demonstrate that Senator Ryan has been most selective in quoting from a document presented to the United States Congress. She has been selective in a way which does her no credit in terms of the job that she has to do. I wish to place on record my admiration for the work done by my two predecessors as Ministers for Aboriginal Affairs. It has been said widely to me that Senator Chaney was the best Minister for Aboriginal Affairs that this country has ever had. That is a judgment which I would endorse proudly.
– He got a promotion out of it.
– lt is interesting to hear the honourable senator interjecting. That is the kind of sentiment that she does not want to hear in this place. Senator Chaney was the best Minister for Aboriginal Affairs that this country has ever had. I wish also to place on record, in relation to the job that Senator Ryan has to do as Opposition spokesman, that I want her to do the job well. The honourable senator can confirm that I have opportunities for her to be briefed by officers of my Department. That is already under way. She has been briefed by my officers on matters which she has raised. The honourable senator should acknowledge this fact. She has access to the daily Press clipping service of my Department because as Opposition spokesman it is appropriate for her to have that. She has access to all the public documents. We will do our best to ensure that she can do her job to the best advantage of the Aboriginal people. It seems to me that the only worthwhile pursuit of debates on Aboriginal affairs is whether our actions advance the welfare of the Aboriginal people in the end. That is the purpose of this sort of debate. There is no value in trying to seek some cheap political advantage in this kind of debate. The advancement and welfare of the Aboriginal people of Australia are important. This matter of public importance fails when judged by that test.
Let us examine firstly the citations on which the honourable senator chose to place so much of her case. The document ‘Country Reports on Human Rights Practices for 1979’ is a report of the United States Department of State to the United States House of Representatives Committee on Foreign Affairs and the United States Senate Committee on Foreign Relations; a report from the administration to the Congress. It is a very comprehensive 854-page report covering many nations. Three pages of those 854 refer to Australia. Most of what is said about Australia is complementary. It is a very fair report. Honourable senators could ask why Senator Ryan chose to be so selective in what she presented to this Senate. I would have thought a balanced presentation would have revealed the good and the bad. We need to see this report in context. Actually, we need to see what was said in that report. 1 am upset by the selective quotations which the honourable senator has made. The report refers to allegations and states:
In Queensland, laws governing street marches have led to confrontation between the police and civil rights activists.
The honourable senator read out this portion of the report:
Complaints have been made that certain amendments to the electoral laws of Western Australia . . .
She also read from the report where it states:
She did not read out the offsetting comments. She has to consider whether she has played fair by the listening public, by the Senate, by the nation, and by Aboriginal people, by selecting little bits of what was quoted. The report also states:
The Government acknowledges that in general the aboriginal population is disadvantaged in such areas as education, housing, health and employment. Through the Department of Aboriginal Affairs and other federal and state agencies, the government has sought to secure for aboriginals access to government service equal to that accorded other Australian citizens together wilh additional services appropriate to their disadvantaged state.
That matter was mentioned in the report but was not mentioned by Senator Ryan. The report continues:
Special programs have been undertaken to assist aboriginals in becoming self-sufficient.
There was no mention of that by Senator Ryan. The report, referring to these programs, continues: . . include encouragement of land ownership, expansion of employment opportunities, training programs, support for small business acquisition, home ownership and involvement in other development projects. These policies are directed towards helping the aboriginals to become economically self-sufficient while preserving their distinctive culture.
That is a quote from the document on which the honourable senator and her party have based their case. The report acknowledges the concern by the Government of Australia and what this Government is doing, through legislation, to assist the development of Australia’s Aboriginals. Any balanced presentation would have put down both sides, not just picked out one side to make a cheap and tawdry political point which is not to the advantage of the clients. 1 do not believe it is to the advantage of the honourable senator.
The 854-page report discusses human rights practices in many nations. As a matter of fact I have had a chance to look at some of them. Australia’s favourable record stands out like a beacon compared with that of many nations which are listed in that same report. For example, Australia’s entry is followed by the entry for Burma. Honourable senators might wish to read what is said about the Burmese record. I wonder whether the honourable senator, with her rather overblown language and her strange rhetoric, was seriously trying to compare what happens here with what happens in some of these totalitarian states, what happens in Albania or the Soviet Union and other countries which are listed in that report. Does the honourable senator want to compare what happens in this country with what happens in Chile, Brazil, Ethiopia, Iran, Democratic Kampuchea. Where is her sense of balance? Where is her sense of proportion? She has quoted selectively and out of context to make a small point. Since that report was put down on 31 January, the Australian Government has ratified the International Covenant on Civil and Political Rights. It did that on 13 August this year. That imposes certain responsibilities and obligations on Australia - obligations which we will undertake honourably and completely.
The kinds of denials of human rights with which she sought to associate Australia are those which apply in other countries - people being thrown out of helicopters, arbitrary arrest and imprisonment, torture, political executions, disappearance of persons, the suppression of dissent. She should have drawn the clear distinction between Australia and these countries. What happened in the case of Australia’s report was that we attracted mainly praise for what we were doing. A few areas of concern were referred to - areas which are a matter of public record, and areas which are sometimes a cause of disagreement between the Commonwealth and State governments. I remind the Senate what this Government’s Aboriginal policy aims to do. It aims to encourage Aboriginal self-management.
– In Queensland?
– The honourable senator interjects: ‘In Queensland?’ The policy of this Government is to encourage Aboriginal selfmanagement throughout all areas of Australia, and the Government’s record demonstrates that it is achieving that goal.
We support Aboriginal land rights; that is, secure tenure of land which is required for social and economic purposes. During this debate I, or one of my colleagues, will set out the extent to which we have been able to see the progressive achievement of land rights in increasing areas in Australia. To encourage self-sufficiency by supporting Aboriginal initiative and enterprise; to restore Aboriginal people to a proper social and economic place in the Australian community; to give Aboriginals access to government services; and to reduce the big gap in health, education and Aboriginal housing by special programs and by the provision of additional resources - those are all worthy aims, and they are the kinds of aims which our programs are achieving.
I turn to the second arm of the motion. It contains an assertion that it is necessary in Australia for Commonwealth legislative action to be taken to improve the situation in certain States which, in line with our federalism policy, are pursuing their own roads. It is true that the referendum of 1967 did confer new powers on the Commonwealth - powers that it did not have before. But that referendum did not take away from the States responsibility for providing most services. Nor did it take away from the States the capacity which they possess to make a number of laws - laws which they have always been able to make. I do not deny for one moment that specific Commonwealth law can override State law. Land can be acquired, but such action does not guarantee the kinds of desirable outcomes for Aboriginal people which we are seeking. I emphasise that point. The use of our legislative power does not guarantee the kinds of outcomes that we are seeking. If we are not certain that we can achieve the outcomes we seek, we have to be careful before we embark upon a certain road. There is even some thought that Aboriginal people could suffer if we were to use our legislative powers and to make them the pawns in a game between the Commonwealth and the States.
It is often asserted that discrimination can be prevented or overcome by passing legislation. But the record does not bear this out. Legislation already exists. The Australian Labor Party passed the Aboriginal and Torres Strait Islander (Queensland Discriminatory Laws) Act in 1975. It seems to me that it has not had the effect sought. Merely passing a law does not mean that we can achieve the desirable outcomes that we want. We have the Racial Discrimination Act and, as the United States report notes, this Act prohibits all forms of racial discrimination in Australia. It prohibits them, but each year there are hundreds of complaints made to the Commissioner for Community Relations under the Act. It shows that although racial discrimination is prohibited it still exists. The Queensland Government was committed, during its election campaign, to repeal so-called discriminatory laws which still remain in effect in Queensland. We have to wait to see the outcome of that matter.
I offer the Senate some opinions in support of my assertion that legislative change will not necessarily improve the lot of Aboriginal people. I shall quote from a letter written to the Senate Standing Committee on Constitutional and Legal Affairs by Sir Clarrie Harders who was at that time Secretary to the Attorney-General’s Department. Sir Clarrie has now retired, but he was a very eminent law officer of the Commonwealth. This letter which was written on 12 October 1978 addressed itself to this question. Part of the letter reads:
Whatever is said is likely to prove too simplistic, because without all the facts and considerations available, what might be theoretically possible could well prove to be practically impossible or, for policy reasons, not acceptable to those having the responsibility for the matter. I should also mention that, in a situation where the Stale was not co-operating, it is difficult, if nol impossible to foresee what action the Slate might take or what legislation it might pass to make difficult a particular course of action proposed by the Commonwealth.
We have concerned ourselves with the proposition that taking the road of confrontation is not necessarily the way which will achieve the ends which we are seeking.
I remember that the Prime Minister (Mr Malcolm Fraser), in” answering a question in another place recently, stated:
It will not advance the cause of Aborigines if one government is virtually to go to war with another over the question of what ought to be done.
Our approach has been a different one. Our approach has been to seek co-operative action with the States. We have been successful in obtaining that co-operative action. We have been successful in a number of things which we have sought to do.
We can set down on the record some of the significant achievements which we have been able to obtain by seeking to work with the States rather than against them. We have been able to achieve the purchase of land for Aboriginals. Aboriginals now operate almost 60 pastoral leases throughout the country. These leases were bought for them by the Government, previously through the Aboriginal Land Commission and now through the Aboriginal Development Commission. We have passed legislation granting land rights to Aboriginals, and in the Northern Territory now some 26 per cent of the land has been transferred to them. Through the South Australian Government we have been able to obtain an agreement in relation to the Pitjantjatjara people. In the State of New South Wales we have a select committee report on land rights from which we expect action to flow shortly. The State of Tasmania is presently working to move towards some provision of land rights for Aboriginals. Aboriginal owners have been able to negotiate with governments and multinational companies regarding mining on their lands, and they have been able to negotiate very much to meet their desires, to their advantage. They are now receiving royalty-type payments. A number of other achievements have been made which I expect my colleague to set out when he speaks.
I return to the subject of the motion moved by Senator Ryan. A number of real and significant achievements have been made already without constitutional confrontation between the Commonwealth and the States. It is our belief that this is the road which will advantage Aboriginal people to the greatest possible extent. We believe that these actions are in the best interests of the Aboriginal population, and we think that should be the ultimate consideration.
It is possible for the States themselves to take positive steps to meet the wishes of Aboriginals, and that has been a new and developing trend. The Opposition is really grasping at straws, because the record of this Government is one of steady achievement. We are entitled to judge the purposes of Senator Ryan in proposing this matter of public importance, the purposes of the Opposition, by examining–
– Politics.
– My colleague said it is politics. I believe politics is the purpose, not the best welfare of the Aboriginal people. The case was incomplete, it was partial, it was misleading. The facts are that the Country Reports praised Australia as well as drawing attention to some areas in which we still have to make progress. Our present Australian record is enlightened by world standards and is enlightened by the historical standards of this country. The Commonwealth Government is acting to improve the lot of Aboriginal people. Aboriginal Australians are making real progress in land rights, in improving educational performance, in health, in employment and in their own promotion. Finally, we believe it is wrong thinking to assert that introducing legislation is the only way to succeed. My goal as Minister for Aboriginal Affairs is ensuring the continuing welfare and advancement of the Aboriginal people. It is that goal which I believe we all would want to pursue in the Senate. I believe that raising a matter of public importance of this kind has validity only when we can direct it to that fine and worthwhile purpose.
– I am shocked, disappointed and amazed at the performance of the new Minister for Aboriginal Affairs (Senator Peter Baume) in his first confrontation with the Opposition. The last speech I heard that was like the speech he just made was made by Charles Porter, the previous Queensland Minister for Aboriginal and Island Affairs, who has just resigned his seat. I have not heard that sort of soap-box ranting from anyone other than Mr Porter and now Senator Baume. I think it is an amazing state of affairs for someone who came to this chamber with a rather humane outlook on the problems associated with Aborigines to have switched completely from that side to the other side and now to have made an apartheid-like speech.
My colleague Senator Walsh will deal in detail with the problems in the Kimberleys. I will refer to what the Minister said when he nicely camouflaged the real situation and pointed out that a number of properties throughout Australia are owned by Aborigines. It is true that there are some. Some of those properties are owned freehold and others in the Northern Territory are pastoral leases. Of course, Noonkanbah is not a prime example. In the Minister’s 19i-minute apology to Charles Court and Bjelke-Petersen he did not say that Charles Court will take Noonkanbah back. The only land rights for Aborigines in Western Australia are those which have been granted under a parliamentary Act. That can be done for the Aborigines. The Act is known as the Roman
Catholic Vicariate of the Kimberleys Property Act. I will quote only two clauses from it and will not quote the short titles. Section 5 of the Act relates to the power to sell, mortgage and lease, lands. Sub-section ( 1 ) states:
Notwithstanding anything contained in the Acts mentioned in the Second Schedule to this Act, it is lawful for the Vicar Apostolic of the Vicariate of the Kimberleys in his corporate name as “The Roman Vicar Apostolic of the Kimberleys” subject to any express trust or condition against alienation and to the provisions of section seven of the Roman Catholic Church Lands Act, 1895-
to sell any lands . . .
to mortgage the lands to secure moneys borrowed …
to lease the lands . . .
So the Act goes on. The Minister for Aboriginal Affairs probably has never heard of the Act but it has been in existence for many years. It was amended as recently as 1970 in order to facilitate certain property transfers. We could have included in this debate reference also to the Northern Territory. The Minister’s party battled here for two days to reject 30 amendments that had been moved to legislation in an endeavour to give the people of the Northern Territory decent land rights legislation. But the Government was guided by the people who own the uranium mines and by the representatives of absentee landlords in the pastoral industry on how much it could give under various sections of that Act. Those were the people who provided the policy which this Government rubber-stamped.
Let us look at the Queensland situation. I will not refer to the document, a portion of which was read by Senator Ryan. Senator Ryan was quite right in referring to those sections of the document because that is the basis on which we rest our argument. The 1965 Act operated in Queensland until it was replaced by the 1971-72 Act, which was drafted and ready to be enacted in 1971. But it was deferred until, from memory, the first Monday in December 1972 when the Labor Government was in office. I know several of the people who suffered six months’ solitary confinement, people from the Palm Island community who were consigned to Punishment Island, under the provisions of that Act. One of those people who received that sort of treatment under the Act died quite recently in the Charters Towers hospital. He was a broken man. The Act placed restrictions on personal liberties. Children of 10 or 1 1 years of age could be confined for up to 14 days in little rooms attached to dormitories. Female children in particular were locked up every night of the week. In those days in places like Doomadgee children were taken away from their parents so that they would not be influenced by the pagan rites that allegedly were held by their parents. That practice continues today in a more limited degree in many Aboriginal communities in Queensland. In those days there were red lists. If a person’s name was on a red list it meant that that person could not even go home as is customary at Easter or Christmas to see parents, other relatives and friends. If a person did go home illegally and was caught that person was subject to the provisions of the Act and to the reserve by-laws. On previous occasions I have read into the Hansard record some of the very restrictive aspects of the by-laws in particular which gave almost godly powers to the reserve manager.
At the moment in Queensland we are fighting several legal cases; at any rate, we are endeavouring to get sufficient evidence to make a good job of it. The cases involve people who have been left by relatives sums of money which have been taken into trust by the State Department of Aboriginal and Islanders Advancement. All sorts of excuses for that are being sought. In past years a will was not legal unless it carried the signature of the white manager of the Aboriginal community. I am worried that some of this money in fact may have been misappropriated by various persons in government departments. That is not uncommon. It was not uncommon while the Act applied. A portion of all wages earned by people outside a settlement who had been allowed to leave the settlement to take up sugar cane cutting, main roads work or work on stations had to be paid to the Department. Many of those people have never got that money.
An elderly gentlemen died in Townsville a few weeks ago. According to records and his memory thousands of dollars must have been received on his behalf. We have searched the records of every bank in all of the regions in which he worked to see whether that money was ever put into a bank on his behalf. No account can be found in his name. Therefore, it can only be assumed that by collusion between departmental officers and employers the money that was supposed to go into those accounts never got there but went into somebody else’s pocket instead. When someone seeks help on these sorts of things from the Department of Aboriginal and Islanders Advancement in Queensland the Department is very reluctant to help because this is a lucrative area into which somebody can dip his fingers if necessary. In those days too the native protectors, usually the local policemen, exercised the right without training or supervision. As they passed around the passbooks of the people in their charge they were able to misappropriate thousands and thousands of dollars. Apparently, our Minister for Aboriginal Affairs approves of all this because he wants to see a continuation of it. That is the way Queensland and Western Australia are still operating.
In Queensland racial discrimination is a very live subject, a very live matter indeed. If we were to go to the town of the Queensland Premier, Kingaroy, we would find no houses built there by DAIA or Department of Aboriginal Affairs funding. It is a snow white town and that is the way the Premier likes to keep it. On underpayment of Aborigines, we can look at the employment record of some of the white farmers in the area over a long period. The Queensland Premier is no exception; he has avoided the problem by saying that what was paid was the rate for the job. Well, it was the rate of the job amongst those people, including himself, who treated their employees as though they were black slaves. If those employees got 10 shillings or one pound a week for a 70-hour week they were lucky indeed. That is the record in that area and in other areas. A now deceased former Deputy Premier of Queensland did the same in the Cooktown area. In Queensland no pastoral leases can be sold to black people, but Senator Baume obviously approves of that sort of discrimination because he said quite unequivocally today that he intends to do nothing about it in the future. About 18 months or two years ago the Premier took to Cabinet a directive which still exists and which stated that no State department was to negotiate with any officer of the Federal Department of Aboriginal Affairs unless the Director of the State Department of Aboriginal and Islanders Advancement or his nominee was present at the discussions. I know that is so because I have a copy of that Cabinet minute.
Probably one of the prime examples of this discrimination concerned the Archer River station on Cape York. The owner was prepared to sell it to an Aboriginal group; the Aboriginal group wanted to operate on the property; and the Commonwealth Department of Aboriginal Affairs was prepared to fund the purchase of the property. But the purchase was rejected at the last minute by the Premier and the Commonwealth Department of Aboriginal Affairs got down on its little knees and ran for cover, with the Minister leading it into the funkhole. I tell the Minister now that if he does not do something about Yarrabah there will be a very sad situation there in the nottoodistant future. The Minister’s predecessor went there to create what he said was this sort of gentlemanly conduct. The State Minister would not even go with him. He was not game to go; he stayed away. I think he went to Yarrabah on only one occasion. Senator Chaney tried to do something about the situation but he knuckled under to the State Department when it would only grant leases which were not worth the paper they were written on.
Let us remember what happened here not so long ago when Aurukun and Mornington Island were both deprogrammed, which is probably a better word than ‘dereserved’. Senator Dame Margaret Guilfoyle, on behalf of the Government, was handling the Bill whereby Mr Viner was really going to front up to those toughies in Queensland. But he was last seen disappearing into a little cave down by Lake Burley Griffin hoping that nobody would find him. The whole Bill was torn to tatters by the Queensland Government five minutes after the Senate rose. We on this side of the chamber suggested certain amendments to stop the sorts of standover tactics used by the Queensland Government, but your Government, Mr President, and the Minister’s Government refused to accept those amendments. Yet a little while ago the Minister said: Why do we have to indulge in some sort of confrontation?’ He is not fighting Labor governments. If he is to have a fight why cannot he cooperate with governments of his own political colour? They will not cave into him but he is caving into them all the time. It is almost horrific to see the attitudes that Federal Ministers for Aboriginal Affairs adopt. When Charlie Court roars they whimper and when Joh Bjelke-Petersen yells, they buckle at the knees.
The Minister now claims that those aspects of Aurukun and Mornington Island are a magnificent demonstration of democracy because he thinks the people have land rights. They have not got land rights. They have merely been used by the Ministers for political reasons. I instance the teaching service in the Torres Strait Islands. The Minister was a member for two or three years of a standing committee which made certain recommendations, all of which he is now running away from. He is running away from not only the recommendation with regard to land rights but also the recommendation for a proper teaching service in the Torres Strait Islands. Sixty unqualified teachers are employed there by the Department of Aboriginal Affairs and in five years the Government has made no effort to change the situation at all. Now the Minister is saying: ‘We are not going to have confrontation. By gentle negotiation we will be able to alter all this’. The Government is a laughing stock. Each of the last three Ministers for Aboriginal Affairs is looked upon as an idiot by the State Administrations of Western Australia and Queensland.
Another recommendation of that committee was to take health services out of the hands of the
Department of Aboriginal Affairs in those States in which they still applied, as they do in Queensland to a very large degree. That has not been done. So slap-happy health services are provided at the State level. I turn now to that other Everingham in the Northern Territory. Yesterday I heard the Minister justifying the operation of the trachoma program at local level in the Northern Territory. The only inference that one could take from his speech or from his answer to a question or whatever was that it was a fantastic idea. The job will be half done. We recall that for political reasons the Government agreed to the trachoma team’s leaving Queensland. People who were listed for treatment on that occasion are now blind because they did not get picked up on the second round. If that is done in Western Australia and in the Northern Territory, undoubtedly the Minister will allow Mr Bjelke-Petersen to do it in Queensland because he has not the intestinal fortitude to stand up to him or to anybody else. He will be just another racist Minister.
– Order! Senator Keeffe, you will withdraw that racist reference.
– I beg your pardon, Mr President.
– You implied that the Minister is a racist.
– It should not embarrass him, but I will withdraw it.
– I refute the tirades which are supposed to support the matter of public importance which has been proposed by the Opposition and which it hopes will stand as a shocking indictment of the governments of Western Australia and Queensland for apparent discrimination not only against Aborigines, as has been concentrated on here, but also against Europeans and Aborigines. I took the trouble to read the report, the Country Report on Human Rights Practices for 1979, on which the matter of public importance is based. It is a report from a United States body to the United States Senate and House of Representatives. The Opposition has stated that it is a shocking indictment in itself that such criticisms should have to come from overseas before we take any notice of them here, but I compliment the Minister for Aboriginal Affairs (Senator Peter Baume) for his expose of the tirade that was read to us today by Senator Ryan when she spoke to this matter of public importance. Certainly her quotations from the report were selective and out of context, and I think she should be condemned for that. The report to the United States legislature is really a glowing account of human rights administration in Australia and should be taken as a compliment to us. I now mention the right to march legislation in Queensland which has caused so much confrontation.
Senator Georges interjecting -
– Senator Georges is remonstrating against that. He has been one of the protagonists. The bone of contention is the right of appeal to a magistrate. All the Queensland Government did was to bring its march laws into line with the march laws in other States. I think it is to be complimented for that. If anybody was refused a permit to march, there was a right of appeal to a magistrate. That right was taken away, but even then the application had to go back to the Commissioner of Police before it was ratified. The right of appeal to a magistrate was taken away because the radicals in the country started to fire bomb the magistrates’ houses when they refused to give permission for marches which would interfere with the traffic. Many marches take place in Queensland. I think there were more than 350 in the last 12 months and in each case a permit had been granted. Nobody in Queensland, except a radical minority, feels that his or her human rights have been infringed in any way. I dispense with that part of the Country Report that refers to street march legislation in Australia.
The second part of the matter of public importance refers to minor infringements of human rights in both Western Australia and Queensland. The report acknowledges that changes have been made to the legislation in both Queensland and Western Australia. The Queensland legislation may have its imperfections, but it was drawn up in consultation with the Aborigines and the Torres Strait Islanders. The Government enacted legislation that was apposite to, suitable for and agreed to by the Aborigines and the Islanders. It has been amended over the years according to their will. Although we may feel that some of that legislation is inapposite, the Aborigines and the Islanders do not think it is. The Premier himself has said that if at any time the Aborigines and Islanders want the legislation amended he will amend it. If they want the Act abolished he will abolish it. Although it is stated in the south that the Act is discriminatory, the only way one could fairly say that it is discriminatory is by saying that it discriminates in favour of the Aborigines and Islanders. This is shown in the results at the ballot box. There was a time when every Aboriginal and Islander community in Queensland was represented by the National Party. The biggest community, Cherbourg, is in the Premier’s electorate. He collects the huge majority of that community’s vote. Eighty to ninety per cent of the
Aborigines on Mornington Island and Aurukun vote for Bob Katter in the electorate of Kennedy.
– What about what happened in Cook?
– Cook was represented by Eric Deeral, a full blood Aboriginal and a National Party man. Who destroyed him? The radical Labor mob made it impossible for him to represent that electorate. They gave him no sympathy or consideration. They were racists. Queensland also gave this Parliament its first Aboriginal member. Access to the political process is quite free in Queensland. The Labor Party has never had an Aboriginal member. Anybody who has presented the Labor policy to the Aborigines has not been supported by them. The National Party and the Liberal Party certainly have had their support. I laugh at the accusation that Aborigines are denied their rights.
I have spoken previously in this Parliament on the subject of rights. Many declarations and covenants on rights have been cranked out of the United Nations. That organisation blithely punches them out all the time, but it completely forgets to define the term ‘rights’. This is a fundamental issue. To tinker with rights in the legislature is one of the best ways to destroy people’s rights. All the rights covered in the United Nations covenants and declarations are qualified by the proviso that a person has the right to do something provided he does not break any law. Then, of course, a law can be passed to deprive people of that right. I have spoken about this situation previously in this chamber. I think it is most dangerous. The definition of the word ‘Aborigine’ also ought to be looked at. The word has been given a very wide definition which has given Aborigines cause to question just who is an Aborigine. We should introduce the qualification that people should be capable of being initiated to become Aborigines rather than deciding that they feel they are Aborigines. That is offensive to the Aborigines themselves, particularly tribal Aborigines.
I give an illustration of the Labor Party’s delicate sensitivities towards the Aborigines in Australia. It has appointed a lady as spokesman on Aboriginal affairs. That shows that the Labor Party knows nothing about Aborigines. She will have no communication with them. I can just see her sitting down under the trees out in the bush with the ants crawling over her and the Aborigines not talking to her. They will not talk to her because it is part of their ethnic culture that women take no part in their tribal counsels. Her appointment shows that Mr Hayden does not know much about Aborigines either because he appointed her. I find this an insult to Aboriginal people. The Labor Party will get nowhere while it has a woman trying to negotiate with Aborigines. If, with her permissive feminism and all her other attributes, she thinks that Aboriginal women are Europeans with a black skin she will have a very fertile field in which to work.
The Aboriginal communities in Queensland are now run by Aborigines. Certainly, some have white managers but that is at the request of the Aborigines. Their affairs are handled at their request. They do not have to be handled by the white manager but, if they request it, the white manager will handle them. In the main, the Aborigines want a white manager on their communities to keep the radical elements off them. They feel that they do not have enough strength themselves to keep these radical people off the communities. Therefore, they ask for a white man who has the power and the strength to keep the radicals off their communities and prevent their making the young men run wild. These are the facts. I note now that almost a world wide network of hatred is being formed by radical, partly Europeanised and highly politicised black people. The organisation exists in the major capitals of the world to point the finger of hatred and discrimination against Australia. I do not know who is financing this organisation, it will not admit the source of its finances. Already it is criticising us in international fora and it is gathering strength. This is a dangerous situation which is most unwarranted in Australia. We can be proud of our record. Certainly we had to crawl before we could walk but in recent years we have moved towards a very enlightened policy with regard to human rights. It is much more enlightened than that of many other countries.
The communities, of Aurukun and Mornington Island have now been transformed into independent local bodies. The Federal Government is able to provide funds and the communities have been running very successfully for 18 months. They have been providing their own services. This could be a method of bringing the communities into the twentieth century. The Yarrabah community has been mentioned. That community asked for its land treatment to be handled in the way it has been handled. It did not want to become a local authority and it has not become one. I do not think many people realise the amount of consultation that goes on between these communities and the Queensland Government. As I said, that is reflected in the results at the ballot box. The suggestion that the Federal Government legislate to fix these assumed heinous wrongs is an impossible one to bring into effect. As Senator Baume said, we cannot legislate to make people love one another. Certainly that is not important to the Aborigine. He is of a much more ancient extraction than us. The things that are precious to him are not precious to us and vice versa. We have different aspirations and different hopes. The important thing is that we respect one another.
People should not think that one race is superior to another. That is not the case at all. The Aborigine is not superior to us and we are not superior to him. We are different. The difference is important and that is what we should stress. Respect is also important. We must respect the Aborigine and he must respect us. Any white man who tries to negotiate with Aborigines and does not stand up for the white man is immediately thought to be a fool and the Aborigines will not trust him. I think that is the first basic lesson that people should learn. Aborigines do not want us to be nice to them. They have had a land tenure organisation for 40,000 years with a tribal elder system which has appointed men to run dancing rites, singing rites, hunting rites and punishment rites. It has had everything well organised. What have we done? We have created a whole lot of artificial land areas and land councils that have no authority. We have created artificial boundaries. The important issue is tribalism. As a matter of fact, it is the big issue all around the world. Unless we recognise tribes we will have troubles - troubles similar to the rest of the world. I refute this so-called matter of public importance. I support the Government.
– It is, I believe, appropriate that Senator Sheil should have been the second speaker for the Government in this debate. He is a self-confessed admirer of South Africa and apartheid, and it is appropriate that he should be the second speaker for the Government in a debate about the treatment of Australian Aborigines. I do not want to comment very much on what Senator Sheil said, but there is one point upon which I must comment. I refer to his assertion, which I believe he has made before, regarding the white managers of Aboriginal settlements in Queensland. He assures us that the only reason the white managers are there is not to impose Bjelke-Petersen or government policy upon the Aborigines in the settlements, but because the Aborigines themselves want the white managers. It will be recalled that Senator Sheil said precisely the same things about the Government of Ian Smith in Zimbabwe. He said that the black Africans in Zimbabwe actually wanted the Government of Ian Smith to continue in office. We know what in fact happened, of course, when the black Africans in Zimbabwe were given an opportunity to say for themselves whether they wanted Ian Smith or whether they wanted somebody else. I should be very surprised if the same situation did not apply in Queensland if black opinion were permitted to be expressed through the ballot box. lt will not be expressed through the ballot box, of course, while the present Queensland Government remains in power and while the present Commonwealth Government continues to grovel before the reactionary governments of Queensland and Western Australia on these matters.
Senator Sheil Then why do they vote National?
Senator WALSH 1 know why they vole National. Some curious things happened in polling booths just out of Mount Isa. 1 cannot recall the name of the precise polling booth. If there are Australian Labor Party scrutineers there, there is a Labor majority. If there are no Labor scrutineers there, the vote is approximately 70 votes to two voles to the National Party. Whether that is the explanation for their voting National in Cherbourg as well, I would not know, but that is certainly the situation in Mount Isa. The strength of the National Party vote among Aborigines depends on whether Labor Party scrutineers are at the polling booth in al least some instances in Queensland.
Senator Baume asserted quite early in his address that Senator Chaney was the best Minister for Aboriginal Affairs that the country had ever had.
Senator Peter Baume 1 did not say that: I said I have been told thai.
Senator WALSH Very well. I will not pass comment on that except to say that, judging from the performance today by Senator Baume, if Senator Chaney has been the best Minister for Aboriginal Affairs thai the country has ever had. his title is not likely to be seriously challenged by Senator Baume.
The matter of public importance which Senator Ryan has raised refers lo the Country Reports on Human Rights Practices for 1979. published by the United States Congress. I am primarily concerned, as a Western Australian, with the explicit reference to Western Australia, and particularly with voting procedures in Western Australia, contained in that report. The report stales:
Complaints have been made that certain amendments to the electoral laws of West Australia have the effect of restricting the right of aboriginals to vole. These provisions relate to enrollment and voting procedures and could be applied ip a manner lo discourage voting bv aboriginals and others not fluent in English. In al least one instance, illiterates Wei , prevented from using ‘how to vote’ cards and the outcome of the elections was overturned by the Australian courts.
– The United States Congress is a pretty radical organisation.
– Yes, the United States Congress is a pretty radical organisation, as Senator Sibraa pointed out. I wonder whether the sycophants in the Government and among its supporters, if they are no’ - orried about anything else, could perhaps be 1 be concerned about the treatment of Aborigine in Queensland and in Western Australia if it were suggested to them thai this treatment might endanger our special relationship with the United States and that the treatment of Aborigines by at least two State governments is a matter for critical comment by the United States Congress. The fact that that treatment is tolerated by the Commonwealth Government, which would have unquestioned constitutional power to correct it if it chose to do so, must also, one would expect, be a matter of some concern to the United States Congress and, one would presume, to the United States Administration.
The matters lo which the United States congressional report refer occurred early in 1977 - almost four years ago. Since that time two phenomena have simultaneously been displayed in Western Australia. One is a continual attempt by the Court Government to impose impediments in the way of Aborigines recording valid votes. The second phenomenon is allegations of impropriety by the Liberal Party and by Liberal candidates every time they lose another seat in an electorate which has a significant Aboriginal component. The matter first received great prominence, of course, in the Court of Disputed Returns in regard to the result in the Kimberley electorate in 1977 which, as the United States congressional report notes, ultimately overturned the result of an election. There was, as the court finding ultimately revealed, a conspiracy involving many senior members of the Western Australian Liberal Party and in which, ultimately, the Attorney-General of Western Australia was involved- a conspiracy to deprive Aborigines of their right to record a valid vote in the State election (or Kimberley in 1977. The reason for that conspiracy- -
- Mr President, I may have misheard the honourable senator, but 1 think he said that there was a conspiracy in which the Attorney-General in Western Australia was involved. That is not in accord with the provisions of the Standing Orders.
– I am saying what the court found, Mr President. The court found that there was a conspiracy.
– Are you referring to the finding of the court?
– Yes. The reason, of course, for that conspiracy was the belief - right or wrong - among Liberal Party members that if Aborigines voted they would vote overwhelmingly for Labor. Whether that belief was true at the time when the Liberal Party first formed it may be open to doubt. There is, however, no doubt, as a result of the actions of the Court Government over the last three or four years, that they now vote Labor, and that is not surprising. The fears of the Liberal Party and its aspirations were summed up in a letter which the then member for Kimberley, Mr Alan Ridge, wrote in 1977 to one of his electoral workers, John Fletcher, and which was produced before the Court of Disputed Returns. Ridge stated: 1 am hopeful that at some time in the future the Electoral Act will be amended with a view to overcoming some of the difficulties which were experienced on polling day. I can foresee–
I can foresee’, he said - that unless this is done, there could be anything up to 4,000 Aborigines on the roll at the next election and, under these circumstances, the Liberal Party would probably be fighting a lost cause.
I can foresee’, he said, ‘that unless something is done there will be upwards of 4,000 Aborigines on the roll, and under these circumstances the Liberal Party will be fighting a lost cause’. It was for that reason that in 1977 the Liberal Party attempted to stop Aborigines, and with considerable success, as the court found, from voting in the State election in the Kimberley electorate. There were subsequent attempts - again successful - by the Government of Western Australia to amend the State Electoral Act in a way which imposes impediments to Aboriginal enrolment. The next matter on which 1 wish to comment is the 1980 Kimberleys election when to a substantial degree Alan Ridge’s worst fears were realised. Aboriginal enrolments had increased considerably and the available evidence suggested that those Aborigines who voted voted very strongly for the Labor candidate, and the Liberal Party lost the seat.
There was the case of the drum of port wine brought down to the Aboriginal community at Turkey Creek, which appeared to breach at least two sections of the Western Australian Electoral Act and one section of another Western Australian Act as a result of which no legal proceedings were initiated by the police. On the other hand, under the enthusiastic sponsorship of Police
Commissioner Owen Leitch, who many people regard as the alter ego of Premier Charles Court, some 80 charges for alleged breaches of the Electoral Act, mostly concerned with postal voting, were laid against Stephen Hawke, Jennifer Gardiner and Tom Stephens. Gardiner was acquitted of most of those charges in July. They were thrown out of court by the magistrate. The remainder of the charges against Gardiner, however, and all of the charges against Hawke and Stephens - there were 51 charges against Hawke alone - remained in limbo until three weeks before the Federal poll, when it was announced by Police Commissioner Leitch that the Crown would proceed with the prosecutions. One day before the Federal poll, on 1 7 October, Police Commission Leitch announced that the Crown would not be proceeding with the prosecutions. The sequel to that was an award by the court in Western Australia on 19 November, reported in the West Australian on 20 November that some $12,769 in legal expenses had been awarded against the Crown on behalf of the three people who had been charged.
It may be coincidental that, after the charges being in limbo for some three months, the Western Australian Police Commissioner resurrected them three weeks before a Federal poll, but I suggest that one would need to be extremely naive to believe that it was coincidental. I suggest that a far more likely explanation is that Owen Leitch revived these charges three weeks before the Federal election because his intention was yet again to intimidate Aborigines from applying for postal votes for the approaching Federal election. Finally, partly but not entirely as a result of increased electoral participation by Aborigines, the Liberal Party lost the Federal seat of Kalgoorlie. The charges reappeared, as they always “do when the Liberal Party loses yet another seat with a significant Aboriginal component. The former honourable member for Kalgoorlie, Mr Cotter, alleged on AM on 30 October, amongst other things, that: . . there was a very disturbing attitude in the Kimberleys where some voters, some communities in fact, voted solidly, 100 per cent for a particular candidate without a single informal vote. Now that’s totally abnormal. Even in a very sophisticated electorate in a metropolitan area you’ll get some informal votes.
He was asked whether he was talking about Aborigines. He said:
Well yes, the Aboriginal votes particularly were in this line where there were some results, for instance, of about 77 to nil, 140 to two . . .
So he went on. In other words, the complaints poured in again, as they always do when the Liberal Party loses a seat, that there was electoral manipulation of Aborigines by Labor Party candidates and Labor Party supporters. The Liberal Party has had at least three opportunities to produce substantial evidence to support those charges in the courts. On every occasion it has failed to do so.
The final point I wish to make is this: In 1979 the Western Australian Electoral Act was amended in a way deliberately designed to make it difficult for Aboriginals to get on the State electoral roll. Their applications had to be witnessed by a J Justice of the Peace, a clerk of courts, an electoral officer or a police officer - all authority figures with whom many Aborigines have unhappy memories of past associations. An illustration of that fact - it is within human memory and Aborigines in the Kimberleys remember it - is that an entire tribal sub-group was shot at by the police at Forest River, exterminated, within the lifetime of Aborigines living in the Kimberleys.
– Order! The honourable senator’s time has expired.
– The Senate is debating a matter of public importance proposed by Senator Ryan, the Opposition shadow Minister for Aboriginal Affairs. I wish to explain to those listening to the debate how it has come about. I am sure that many of them will wonder what on earth we are talking about. On 4 February this year the Department of State of the United States submitted to the Committee on Foreign Affairs of the United States House of Representatives and the Committee on Foreign Relations of the United States Senate a report on human rights practices in 1979. That report consisted of some 850 pages relating to human rights practices throughout the world. Out of the 850 pages, three pages were devoted to Australia and East Asia and the Pacific. Because the report made some very small criticisms of the States of Western Australia and Queensland, the proposal is that the citing of these States in this report requires the Fraser Government: to take all legislative steps necessary to eliminate discriminatory practices against Aboriginals by the Western Australian and Queensland State Governments.
Senator Ryan in fact took some very selective quotations from this report. She stated:
I support my colleague the Minister for Aboriginal Affairs (Senator Peter Baume) who to my mind proved beyond any shadow of doubt that that is simply not true. She picked out the very slight criticisms and totally overlooked the rest of the report. I wish to mention some of the parts of the report to which she failed to refer. The report states:
Australia has one of the most comprehensive social welfare systems among the Western democratic nations.
It states further:
Aboriginal rights and development are of constant and active concern in Australia.
It also states:
Special programs have been undertaken to assist aboriginals in becoming self-sufficient. These include encouragement of land ownership, expansion of employment opportunities, training programs, support for small business acquisition, home ownership and involvement in other development projects. These policies are directed towards helping the aboriginals to become economically self-sufficient while preserving their distinctive culture.
That is the sort of quotation that Senator Ryan failed to give. I ask: Is this condemnation of Australia? In fact, there is not the slightest doubt when one reads the report that quite to the contrary it is written in great praise of Australia in relation to its human rights. As to the criticisms of Western Australia and Queensland, let me say right from the word go that I hold no brief for either of those States. It seems to me that the Queensland Government is adopting a different approach from the one which the Federal Government believes is the correct approach for Aborigines. Must we condemn the Queensland Government for having a different approach? In fact, it would seem that the current Queensland approach is similar to the approach which the Federal Government adopted towards Aborigines until 1975.
– Yes, but we changed.
– Senator Georges said that we changed. In 1975 we changed our approach. The Country Reports on Human Rights Practices for 1979 state:
Because of deep cultural differences between the aboriginal and European populations, the Commonwealth Government experienced great difficulty in pursuing its former policy of assimilation through promoting social change among the aboriginals so that they would become indistinguishable from other Australians in standards of living, occupation, and participation in community affairs. By late 1975, government policy had changed to one of commitment to the principle that aboriginals should be as free as other Australians to determine their own varied futures.
It seems to me that that explains that until late 1975 the Federal Government was adopting an approach which is currently being adopted by the Queensland Government. I am not praising the Queensland Government for carrying out that policy; what I am suggesting is that it may be taking the Queensland Government some time in getting around to adopting the policy which this Government has adopted. After all, the
Queensland Government has just been returned lo office with a substantial majority. Senator Sheil has pointed out that substantial majorities were achieved in those areas where Aborigines have great voting strength. The Premier of Queensland, in his policy speech, stated:
We believe that our policy of treating all our people as Queenslanders is the right course.
The Premier was talking about Aborigines. He further stated:
Now as we go into the 1980s, we will provide even further opportunities for our Aborigines and Islanders to take the roles they want as part of the normal life of the Queensland community.
This will enable the Government to repeal-
I am sure Senator Bonner will enjoy hearing these words -
The Aboriginal and Torres Strait Islander Act, but still allow us to continue Government assistance.
We would be delighted if the Queensland Government repealed the Aboriginal and Torres Strait Islander Act. The Queensland Government is being herded by our Federal Minister for Aboriginal Affairs into a particular area in relation to its handling of Aborigines. I think it has to be acknowledged that the Government has achieved a great deal. The proposal of the Australian Labor Party, as usual, is that what is needed is a head-on confrontation. The Labor Party, as always, came up with a simplistic solution, and the simplistic solution in this case is to pass legislation. I was fascinated to hear the slogan ‘pass legislation’. What legislation? Senator Ryan told us what legislation she wanted us to pass. She wants us to repeal the State Acts. She will find to her surprise when she reads her speech later in the Hansard that what she recommended was that this Parliament should repeal the State Acts. How would we do that? Would we resolve that the Queensland legislation be repealed or would we pass an Act of Parliament which states that the Queensland legislation shall be repealed? It is a typical example of the simplistic solutions which the Labor Party comes up with to all of the problems of government and of managing Australian society. If we had some constitutional power which would enable us to repeal an Act of the Queensland Parliament, what on earth would that achieve? What would we achieve by repealing a Queensland Act of Parliament?
– It would not help the Aborigines.
– As Senator Bonner said, it certainly would not help the Aborigines. The Aborigines are part of the State in which they live. They cannot be isolated from it. In effect, they cannot be made islands within their own State.
The Labor Party always finds it so much easier to talk in slogans instead of trying to think a matter through. I suggest that the speech of the Minister for Aboriginal Affairs, Senator Peter Baume, showed that he had thought the problem through. He took the opportunity to re-state the Government’s case. I believe he restated it in a manner of which we can all be proud. At the conclusion of his speech the Minister said - I think my note is correct - that the goal has to be the advancement of the Aborigine. I applaud his sentiments. I move:
That the business of the day be called on.
– Before I put the motion I shall call Senator Georges, who wishes to make a personal explanation.
– by leave - I claim to have been misrepresented by Senator Sheil. By implication, Senator Sheil gravely misrepresented me and a number of people who have engaged in the struggle for civil and democratic rights in Queensland. Senator Sheil referred to members of a minority rabble who threw fire bombs at magistrates’ houses. As I was one of the leaders of the protest in Queensland that description, of course, includes me. Senator Sheil has glibly referred to a rabble, but many thousands of people protested against the laws which apply in Queensland. This was referred to in the document which has been debated.
Several thousands of people were arrested. Some were imprisoned. What happened in that confrontation unfortunately received justifiable mention in the Country Reports on Human Rights Practices for 1979. 1 seek the indulgence of the Senate to speak at length to show how I have been misrepresented. It is necessary to make clear that the law in Queensland has not been repealed. It still exists, but it is now being exercised with discretion. I take great offence, with other people, at being referred to as a member of a rabble. In fact, had it not been for the discretion of the Commissioner of Police and the Assistant Commissioner of Police in Queensland it would not have been possible for us in Brisbane to engage in those democratic disagreements with the government of the day.
- Senator Georges, you are making a personal explanation and I ask you to confine your remarks to an explanation of the misrepresentation.
– I was misrepresented by Senator Sheil. I did not take up the matter earlier. I took it up at this moment so it would not interrupt the debate. I think I have made my point.
This incident cost the Queensland Government some $5m and it cost those who protested some $36,000 in order to correct the situation to which we have been referring.
Question resolved in the affirmative.
page 291
Bill received from the House of Representatives.
Ordered that the Bill may be taken through all its stages without delay.
Bill (on motion by Senator Peter Baume) read a first time.
– I move:
That the Bill be now read a second time. 1 seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The speech read as follows -
The main purpose of this Bill is to make statutory provision for the no work as directed - no pay principle in certain areas of Commonwealth employment, thereby removing the legal uncertainty which has arisen as a result of a recent decision of the New South Wales Supreme Court in Bennett v the Commonwealth and Another (1980) New South Wales Law Reports 581. In addition the Bill makes several amendments to the Public Service Act. I will first deal with no work as directed- no pay provisions of the Bill. It is an established principle at common law that an employer had an obligation to pay wages to his employees so long as the employment relationship continues. On the other hand a right to wages at common law is contingent upon an employee obeying the lawful directions of his employers, and being ready, willing and available to perform all of his duties as directed. Therefore, where an employee does not fulfil those obligations the employer is not obliged to pay wages. The Government is firmly of the view that this basic contractual principal, commonly known as the no work as directed - no pay principle, should apply to Commonwealth employees. 1 do not need to remind honourable senators that the Australian community has been subjected to great inconvenience and hardship through the industrial actions of some Commonwealth employees and their unions. In recent times, the nature of industrial action within the Public Service has changed. Employees have increasingly sought to escape the consequences of their actions, while imposing inconvenience and hardship on others, by taking what they see as astute, selective industrial action in the form of work bans and limitations while expecting to remain on full pay and to enjoy all the privileges of employment in the Australian Public Service. The Government is not prepared to tolerate a situation where its own employees dictate the terms and conditions under which they are prepared to work. The Government does not believe the public should bear the cost of employing persons who are not prepared to provide the public services for which they are engaged. I believe the Australian people are right behind the Government in the action being taken by this Bill.
It has been suggested that this legislation reintroduces the antiquated common law concept of the master-servant relationship which has been replaced by the industrial law handed down by the various arbitration tribunals. This view makes the assumption that employees have an absolute right to wages. It ignores the fact that the rights are correlative to duties and that the existence of an employee’s right presupposes the fulfilment of the employee’s duties and obligations. The Government does not accept that this common law concept of correlative rights and duties is outmoded and, if it were, the Government considers it appropriate to restate it now. The Australian public has a right to expect of their public servants a fair day’s work for a fair day’s pay.
It is also suggested that employees have a right to access in any industrial situation to industrial tribunals. There can be no reason for such access if officers and employees fail to perform the duties properly required of them. To understand this I think it is important to appreciate the fact that the common law and statute law, on one hand, and the industrial law, on the other hand, operate in different spheres. Common law, as it may be affected or altered by statute law, determines the nature of the employee - employer relationship and the correlative rights and duties of the parties. On the other hand, industrial law is designed to settle disputes arising within the relationship established by common law or statute law. This Bill determines the nature and extent of rights and duties and there is no reason why industrial law and arbitral tribunals should be able to supersede the relationship so determined. To overcome the circumstances of selective industrial action, Commonwealth employing authorities, with the full support of the Government have sought to use the common law principles of no work as directed - no pay to deny pay to their employees on occasions when they have refused to comply with lawful directions.
The continuing application of the no work as directed-no pay principle has now been placed in doubt by the Bennett case. That case had its origins in a national campaign of disruptive industrial action by the Administrative and Clerical Officers Association involving selective work bans and limitations. The campaign was in support of a 20 per cent pay claim as well as staffing and related issues. Departments applied the no work as directed-no pay principle and denied pay to public servants who refused to perform their duties as directed. A total of 138 public servants were placed off pay during the periods in which bans and work limitations were in force. Arising out of this industrial dispute action was taken in the Supreme Court of New South Wales in May challenging the power to apply the no work as directed-no pay principle. This challenge was initiated by an employee of the Commonwealth Employment Service engaged under the Public Service Act and was supported by the ACOA.
The case was decided against the Commonwealth. The Court held that the Public Service Act and regulations constituted an exclusive code governing the relationship between the Commonwealth and its officers. As a consequence the common law principle which enabled employees not performing their duties as directed to be taken off pay had been displaced by provisions of the Public Service Aci and regulations. The impact of the Bennett case has not been confined to situations where employment under the Public Service Act is involved. The decision also raises legal doubts as to whether the no work as directed-no pay principle would be available to other Commonwealth employing authorities which are established by legislation which could similarly be held to be an exclusive code.
This Bill will remove the legal uncertainty that has arisen as a result of the Bennett case, lt will make statutory provision for the application of the no work as directed-no pay principle by amending the Public Service Act and the legislation establishing certain statutory authorities. The six statutory authorities requiring amendment to their enabling legislation are the Australian Broadcasting Commission, the Australian Postal Commission, the Australian Telecommunications Commission, the Commonwealth Banking Corporation, the Commonwealth Teaching Service and the Overseas Telecommunication Commission. Specifically, the Bill amends the Public Service Act and the legislation establishing the six statutory authorities so as to include a provision which will empower the Public Service Board and the specified statutory authorities to declare that staff who refuse or fail to comply with an authorised direction relating to the performance of their work are not to be paid salary. The effect of such a declaration will be that an officer or employee covered by the declaration will not be entitled to salary until such time as the Board or the statutory authority is satisfied that the officer or employee has complied or will comply with all relevant directions to perform his or her work or otherwise revokes the declaration. Specific provision has been included which will ensure that a declaration will remain in force in circumstances where an employee who is covered by the declaration attends for duty but either performs work other than that which he has been directed to perform, or complies in part only with a direction.
The Bill also provides that all declarations to deny pay are to be in writing and signed by a member of the authority exercising the power or a duly authorised delegate. The provisions also require the authorities to give notice of a declaration to employees to whom the declaration applies. Furthermore, it is expressly provided that this new power and the existing disciplinary powers are not to be used concurrently against an employee in relation to the same refusal or failure to perform duties as directed. The Government is concerned that the new powers should apply consistently and uniformly throughout Commonwealth employment and should not be capable of being overriden by a determination or an award.
Accordingly, provision has been made in the Bill to specify that the power to declare that a Commonwealth employee is not to be paid salary where the employee refuses or fails to comply with a direction to perform duty shall have full force and effect notwithstanding any inconsistency with any previously enacted Commonwealth laws, or any industrial awards or determinations, whether made before or after the commencement of these amendments. The Bill also provides that these amendments shall be prescribed provisions for the purposes of the Public Service Arbitration Act and the Conciliation and Arbitration Act, thereby prohibiting the making of inconsistent determinations or awards by the Public Service Arbitrator and the Conciliation and Arbitration Commission respectively.
I come now to the remaining provisions of the Bill which make additional amendments to the Public Service Act. Clause 38 of the Bill amends that Act to enable the Public Service Board to determine terms and conditions of employment for officers and employees of the Australian Public Service.
With this new power the Board will be able to determine for public servants generally, salaries and allowances, recreation leave and other leave entitlements, conditions relating to overseas service, hours of duty and the manner of recording attendance, and other conditions of employment. At present the bulk of terms and conditions to be covered by the proposed determination-making power are specified in the regulations or, in the case of conditions relating to leave, are provided for in the Public Service Act itself. These present arrangements do not provide a satisfactory basis on which changes agreed as a result of the normal industrial processes can be implemented expeditiously by the Public Service Board. Amendment of regulations and, where necessary, the Public Service Act can involve considerable time and resources. Because of this the existing machinery has led to criticism in the past by departments and staff organisations alike. The purpose of this amendment is to avoid these problems.
Over the years the Parliament has given virtually all other Commonwealth employers - that is, the statutory authorities - the power to determine terms and conditions. In fact almost 62 per cent of Commonwealth employees are now covered by determination-making powers. The provisions contained in the Bill are similar to the provisions of the Defence Amendment Act 1979 in which the Parliament conferred on the Minister for Defence the power to make determinations in relation to the pay and conditions of members of the Defence Force. In addition, the provisions will give effect to recommendations on this matter by the Royal Commission on Australian Government Administration.
The Bill confers on the Public Service Board only the powers necessary to ensure the effective determination of terms and conditions. First, certain terms and conditions of employment only are specified in the Bill and will become the subject of the new power. The remaining terms and conditions of employment will continue to be set out in the Public Service Act and regulations. Moreover, the power will not extend to long service leave, maternity leave or superannuation all of which will continue to be provided for in specific Commonwealth legislation. Secondly, the scope of the determination-making power will not exceed the present scope of the powers in the Public Service Act authorising the making of regulations on terms and conditions of employment. Essentially, the amendment contained in the Bill will result, in relation to terms and conditions of service, in the substitution of the determinationmaking power for the power to make regulations. Thirdly, the existing safeguards imposed on the fixing of Public Service terms and conditions will continue to apply. Public Service Board determinations will be required to be tabled in both Houses of the Parliament and be subject to the normal disallowance provisions. Furthermore the determination-making power will not limit the jurisdiction of the Public Service Arbitrator or the Conciliation and Arbitration Commission. Determinations of the Arbitrator and awards of the Commission will override inconsistent provisions in the Board’s determinations, just as they are at present capable of overriding inconsistent provisions in the Public Service Act and regulations.
In another amendment, to the Public Service Act, clause 43 of the Bill inserts provisions placing on a statutory footing the Staff Suggestions Scheme set up and operated by the Public Service Board. The scheme is designed to encourage public servants to make suggestions promoting efficiency and improving safety and standards throughout the Public Service. The new provisions will enable the Board to authorise the making of payments to staff who have made suggestions deserving of recognition.
Clause 1 1 of the Bill confers on the Chairman of the Prices Justification Tribunal the powers of a permanent head, powers which are normally granted to heads of statutory authorities employing staff under the Public Service Act. Clause 1 7 of the Bill brings the arrangements in relation to appointments of officers to the Australian Public Service into line with practice. Some doubts have been raised as to the validity of past appointments and the clause puts those beyond doubt also. The remaining amendments are minor in nature or are largely consequential to the introduction of the determination-making power.
The Government considers that the enactment of the provisions of the Bill is of great importance, both to Commonwealth employees and the Australian community in general. The no work as directed - no pay amendments will ensure that the government authorities covered by the Bill will have an express statutory power to put off pay those employees who refuse or fail to perform their duties fully for the period of such refusal or failure. Thus public servants will be covered unequivocally by a principle that already applies generally to employees in the private sector. Equally, the other amendments to the Public Service Act will have important and beneficial effects on the operations of the Public Service. I commend the Bill to the Senate.
Debate (on motion by Senator Walsh) adjourned.
page 294
Bill received from the House of Representatives.
Ordered that the Bill may be taken through all its stages without delay.
Bill (on motion by Senator Peter Baume) read a first time.
– I move:
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The speech read as follows -
The main purpose of the Bill is to give effect to three of the taxation measures announced in the policy speech of the Prime Minister (Mr Malcolm Fraser) . The three measures are a special 20 per cent depreciation allowance for new plant used by primary producers and for new fishing vessels and related equipment, full deductions in the year of expenditure for capital outlays on soil conservation on primary production land and the removal of a specific exclusion from the investment allowance of plant for use in amusement or recreation. As a result of amendments proposed by the Government and adopted by the House of Representatives, the Bill also provides for income tax deductions for donations made to public funds set up to provide relief for the unfortunate victims ofthe earthquakes in Italy.
Depreciation of Primary Producers’ Plant
A 20 per cent rate of depreciation, on a prime cost basis, is to be provided for new machinery and other plant used exclusively in agricultural or pastoral pursuits or forestry operations. New fishing vessels, fishing equipment and shore-based plant that is used exclusively in fishing operations are also to qualify. The new allowance will enable the cost of eligible plant to be written off for tax purposes in equal instalments over five years, beginning in the year in which the plant is first used or installed ready for use. The new measure will apply to plant that is ordered - or, if constructed by the taxpayer, construction of which is started - on or after 1 October 1980. Structural improvements and motor cars, motor cycles and other passenger motor vehicles will not be eligible, neither will second-hand plant. The Bill will permit taxpayers to elect for ordinary rates of depreciation to be applied to individual items of plant instead of the special 20 per cent rate.
Soil conservation expenditure
The second of the policy initiatives implemented by the Bill will authorise full deductions in the year of expenditure for the capital cost of a wide range of soil conservation measures on land in Australia that is used for primary production. Capital expenditures to qualify for the new deduction include outlays on the eradication or extermination of animal or vegetable pests, on the destruction of detrimental weed or plant growth and on the draining of swamp or low-lying land. Also specified are expenditures on the prevention or combating of soil erosion, on the erection of control fences to exclude livestock or vermin from areas affected by erosion or excessive salinity on the erection of levee banks and, following amendments adopted by the House of Representatives and incorporated in the Bill, drainage works carried out to control soil salinity or to assist in drainage control. At present, expenditures of these kinds are generally deductible by way of equal instalments over a period of 1 0 years or, in the case of fencing, are subject to depreciation allowances over a number of years. Eligible expenditure on soil conservation measures will qualify for the full deduction if it is incurred under a contract entered into on or after 1 October 1980 or is incurred on or after that date in an operation carried out by the taxpayer.
Investment allowance
The Bill will amend the investment allowance provisions of the income tax law so that new plant for use in connection with amusement or recreation, or in some related activities, may qualify for the allowance. The amendment will apply in respect of capital expenditure incurred after 30 September 1 980 on the acquisition of such plant under a contract entered into after that date or, if the plant is constructed by the taxpayer, construction of which began after that date.
Mr President, I would like to take this opportunity to foreshadow a further amendment to the investment allowance provisions that it is proposed to introduce at a later date. The Government has received strong representations concerning the ineligibility for the allowance of expenditure incurred on the acquisition of new tourist buses. Buses that operate solely in carrying passengers from one place to another as part of a regular bus service currently qualify for the allowance. However, the exclusion of plant for use in connection with amusement or recreation has hitherto meant that buses used to a significant extent for sightseeing tours have failed to qualify. The amendment proposed in this Bill will, of course, change this situation as regards buses used in this way so that such buses that are acquired under contracts entered into on or after 1 October 1 980 will qualify for the allowance.
However, industry representatives have pointed to unqualified advice given to them by the office of the then Treasurer in December 1975 to the effect that tourist buses would be eligible for the allowance. This advice followed the announcement in the 1 975 policy speech that an investment allowance would be introduced. Although subsequent press statements made by the then Treasurer indicated that - along with certain other categories of plant - plant for use in connection with amusement or recreation would be outside the scope of the scheme, the Government recognises that large amounts of expenditure may have been committed in the belief that all tourist buses would be eligible for the investment allowance. The Government has decided, therefore, that the law should be further amended to allow the buses to qualify for the investment allowance as from 1 January 1976 - the date of commencement of the allowance.
A Bill to give effect to this further decision will be introduced as soon as practicable and will ensure that, for the period from 1 January 1976 to 30 September 1980, the exclusion for plant for use in amusement or recreation will be treated as not having operated in relation to tourist buses. Bus owners who have been unable to obtain deductions on the basis of the present law will be entitled to have their assessments amended to accord with this decision.
Classes of plant brought within the scope of the investment allowance by this Bill and by the further amendments I have foreshadowed will, of course, remain subject to the general requirements of the investment allowance provisions. For example, the general exclusion from the allowance of cars and other light vehicles will mean that buses designed to carry less than nine passengers will continue to be excluded from the allowance, as will buses of any size that are hired out on a ‘drive-yourself basis.
Italian earthquake relief
As I have already mentioned, the opportunity has been taken to include in the Bill - by an amendment adopted by the House of Representatives - provisions to allow an income tax deduction for donations to public appeals to assist victims of the earthquakes in Italy. The
Prime Minister announced the Government’s intention to introduce these measures in a statement on 25 November 1980 and the Treasurer (Mr Howard) expanded on the Prime Minister’s announcement in a statement he made on 27 November 1980. These measures reflect the Government’s strong support of efforts being made by groups in Australia to raise funds for the relief of the unfortunate victims of the earthquakes. The gift provisions of the income tax law will be amended by the Bill to allow as tax deductions donations of $2 or more during the current financial year to any public fund set up in Australia exclusively for the relief of persons affected by the Italian earthquakes.
The Bill also proposes to correct some minor drafting defects in the legislation that was enacted this year to introduce the 40 per cent oil-fired conversion allowance. Details of the Bill are contained in an explanatory memorandum and an addendum to that memorandum, which explains the effect of the incorporated amendments, that are being circulated to honourable senators. I commend the Bill to the Senate.
Debate (on motion by Senator Walsh) adjourned.
page 295
– I move:
It should be clear even to the most obtuse member of this Government if not to Malcolm Fraser himself, that the action which has been taken by the Government in the defence papers case to suppress the book Documents on Australian Defence and Foreign Policy 1968-1975 and extracts from that book has been foolish, misconceived and counterproductive in the extreme. It is clear that in mounting this exercise the Government has given excessive weight to the fears, the neuroses and the instincts for self-preservation of bureaucrats - officials whose advice over the years, characterised as it has been by what can only be described very often as moral and intellectual poverty, has led Australia into a series of thoroughly unhappy and often thoroughly foolish foreign policy stances. One needs to mention only the cases of the recognition of China and the whole situation in respect of Timor for that claim to be made out. Equally, it is clear that the
Government gave insufficient weight to the value of open government - a value which the Government often enough has expressed its adherence to in principle but has raced away from whenever the opportunity to prove it has arisen in practice. The value of open government was affirmed in resounding terms by Mr Justice Mason in his decision in this case on Monday when he said: lt is unacceptable in our democratic society that there should be a restraint on the publication of information relating to Government when the only vice of that information is that it enables the public to discuss, review and criticise government action.
It is also clear that if the Government’s object was to avoid public attention being focused on aspects of our bilateral relationships with countries of various kinds, especially Indonesia, then that strategy has been profoundly miscarried because far more attention is being devoted to aspects of these relationships as a result of the Government’s action to suppress these works than - and I think it has been universally conceded - otherwise would have been the case. The legal situation as it now stands can give remarkably little comfort or solace to the Government. The proceedings before Mr Justice Mason were only interlocutory in character, which is to say that they involved the seeking merely of an interim injunction until such time as a permanent injunction could be obtained as a result of a full trial, and although it is true that as a result this case now is not at an end we do have findings of a High Court judge which must be given enormous weight, based as they are on a reasonable evaluation of all the evidence in this case and based as they certainly were on a full consideration of the relevant law.
The situation as it obtains at the moment so far as the law is concerned, if 1 may sketch it briefly, is this: First of all, it has been firmly decided by Mr Justice Mason that the law of breach of confidence is not available to the Government in this case. There has been a clear rejection of the Commonwealth Government’s argument that simply because documents are classified ‘secret’ there is some overriding claim to confidentiality which ought to be respected by the courts whatever the countervailing public interest might be in the disclosure of those documents. Mr Justice Mason made it clear that there was an obligation on any court hearing and determining these matters to consider the basis of the claim for confidentiality which is made; that is, whether there would be damage to the national interest, whether embarrassment would be caused and whether in turn this would constitute damage to the national interest, and to do so in the context of Australia being a democratic society where there is a great and legitimate public interest in the debate, the discussion on and the review and the criticism of government action of all kinds, not excluding government action in the foreign affairs field.
The second point that seems to be clear now as a matter of law in the aftermath of Mr Justice Mason’s decision this week is that the Commonwealth Government could not in this case, and presumably cannot in any future course this case may take, rely on possible breaches of the Crime Act, in particular section 79 which is an extraordinarily wide-reaching provision that imposes penalties of up to seven years’ gaol for people involved in the communication of government information or secret or confidential material of various kinds. The Commonwealth could not rely on threatened breaches of this provision to found, to give a basis for an injunction. At best this kind of statutory provision could be used after the event to punish the conduct in question. Mr Justice Mason said that it could not be used as a vehicle for the prior restraint of the Press. Indeed, the only basis that Mr Justice Mason was able to find for the continued restraint of at least some of the material in issue in this case was the Commonwealth’s technical but otherwise threadbare claim to the protection of Crown copyright. Even in this area it is made perfectly clear in His Honour’s judgment - as indeed must be obvious to anyone who has the remotest familiarity with copyright law - that the protection afforded the Commonwealth is very nominal in character under this head to the extent that copyright protection does no more than protect the Commonwealth against the publication of substantial extracts of material in the precise literary form in which they are initially created.
The copyright protection does not stop the communication of the actual substantive information contained in the material in question. As a result, it is perfectly open for the Press or indeed the publishers of the book to reprint the substance of the material in question in paraphrased form, or in a form where it amounts only to a series of small extracts surrounded by substantial additional comment. If the publication is made in this form the Commonwealth cannot in any way stop that in advance or get damages for its happening after the event. It is a pyrrhic victory at best in terms of the interests of confidentiality, that the Commonwealth was obviously trying to have recognised here. The other point to notice about the copyright issue is that it may not, on closer examination, be available at all to the Commonwealth to the extent that Mr Justice Mason suggested in his judgment. Government documents may well be in a very different position from private documents so far as copyright law is concerned, in the sense that there may be an overriding interest which the law ought to protect in the promotion of public knowledge and public discussion, lt may be, on closer examination, when this matter is dealt with again by the courts, that there will be a foundation for even the copyright claim that the Commonwealth has succeeded in so far totally disintegrating and disappearing from sight.
The question must be asked: Is this charade to continue? The comments of the Prime Minister (Mr Malcolm Fraser) yesterday in the House of Representatives made clear that the Government seems to have learnt absolutely nothing from its experience so far. It appears that the Government will continue to clutch at every threadbare straw it can find in this matter simply because of its obsession with secrecy and its obsession with closed government. Because it is apparent that, like the Bourbons, this Government has learnt nothing and forgotten nothing from the experience of the last few weeks it seems likely that the situation that we have had with the defence papers case is one that may well recur again and again in the future.
Therefore, it becomes necessary to try to stand back a little bit to take a longer view of the issues to which the defence papers case has given rise. It is necessary to try to identify the principles which ought to be applied to these sorts of cases in the future; thus the particular matters which I am seeking to have referred to the Senate Standing Committee on Constitutional and Legal Affairs. It might be thought that, in fact, the Committee dealt with many of these matters in the course of its Freedom of Information Report tabled in 1979 which we hope will be debated fully in the context of the Government’s Freedom of Information Bill. It is not the case that that Committee dealt with the full range of matters which arise in the context of this motion.
The Committee made some analysis of the present security classification system and made certain recommendations on the basis of that analysis, especially with respect to the implementation of a declassification system in the future. But it did not do this because it was marginal to the Committee’s major objective in the kind of detail which would be appropriate given the obvious magnitude and importance of the whole classification question in this area of foreign affairs, defence and international security. Further, the main object of the Committee was really pursued in the context of the Freedom of Information Bill to ensure that the exemption provided in that Bill for material ‘prejudicial’ to defence security and international relations could not be claimed by conclusive ministerial certificate without the opportunity for independent review. The Committee, of course, went on to recommend such a review, on an independent basis, by a judicial member of the Administrative Appeals Tribunal. The Committee did not stop to consider what the public interest criteria should be, which should be applied both by the Government in making its initial disclosure decision or, for that matter, by the Administrative Appeals Tribunal or anyone else in reviewing that decision. Clearly, it is the question of what are the relevant public interest criteria that remains very much to be resolved.
A further matter to which the Committee did not address itself was the question of the supression or release of this kind of information otherwise than in the context of the Freedom of Information Bill and the voluntary release of such information by the Government upon request. The Committee did not then look at the whole question of prior restraint and the circumstances in which that might be legitimate. It did not look at the legitimacy or otherwise of the penal sanctions which presently exist to punish the publication of such information after the event. So these then are the two major matters which it is proposed to refer to the Committee. First is the question of appropriate guidelines for the publication or suppression of documents relating to security, defence and international relations. Second is the appropriate means of enforcing such guidelines and practice.
I wish to say something more about the course that the Committee’s investigations might take under each of these headings. As to the suggested guidelines or criteria which should govern the suppression or release of this kind of information it would appear- at least to me - that this can best be approached as follows: There probably are three broad ways in which security, defence and international relations information can be regarded as sensitive. The first is on the basis that disclosure would impair the efficacy of particular government policy, programs or activity and I will explain what I mean by that in a moment. Secondly, it could be sensitive on the basis that it would cause embarrassment in our ongoing relations with other countries. The third possible basis on which it might be thought such information was sensitive would be that its disclosure would cause domestic embarrassment in Australia to politicians and, more particularly, officials who have been concerned with the generation of the documents in question. I believe that is a broadly appropriate way of dividing up the notion of sensitivity. In fact, quite different basic principles are applicable to each such class of information. 1 acknowledge that in the real world things are a bit less simple than that, that the categories overlap and that there are very few clear-cut cases in one or other of those categories. 1 believe it helps clarity of one’s thoughts in this matter - in an area where there has been a remarkable paucity of literature to assist one in trying to come to grips with this question of public interest - to try to untangle the strands and to look at the principles which might be applicable to different classes of information in this way. As to the question of impairing efficacy– the first category 1 identified of sensitive information it appears to me or to anyone who has really looked at this that there are several different kinds of information that might come into this category. For a start, there is military information of ongoing importance or value; information of a kind which, indeed, may prejudice the safety of this country and its capacity to defend itself; defence plans relating to the overall strategy or the deployment of facilities and personnel; and material relating to weapons research and development. There is of course no difficulty in principle here in saying that such material of immediate ongoing value ought to be allowed to be kept secret. The difficulty is rather one of practice, given that so much of this kind of material tends to be overclassified. There is a long history and tradition in Australia of that phenomenon at work. Many illustrations of it are given in Desmond Ball’s recently published and invaluable book on United States bases in Australia, A Suitable Piece of Real Estate, lt may be that the appropriate criterion to apply to military information of this kind is the one suggested publicly on various occasions by Alan Renouf that the Australian public should not be denied information which is in possession of, let us say, the Russians - the ‘what the Russians don’t know’ criterion, if one wants to put it in those terms.
Another category of information which may be thought to impair the efficiacy of government activity of a legitimate kind is security intelligence information of ongoing importance. Where the disclosure of such information would endanger or dry up an overseas source, there would seem to me to be a clear case for the maintenance of secrecy with respect to such information. There may be other categories as well which come within that particular head. Another area, still in this class of sensitive documents, would be that of contemporaneous diplomatic negotiations, where it is clear that the disclosure of certain information would have the effect of denying the capacity of the Australian Government in a negotiating situation to preserve its options, to have flexibility in its approach to the solution of diplomatic negotiating problems. Clearly on many occasions it would be an impossible situation if one’s diplomatic hand were disclosed prematurely.
I repeat that in all these sorts of categories there is no difficulty in justifying secrecy in principle. The point may be made that time here, as in so many other places, is of the essence, that information of this kind does get out of date very rapidly, and that a great deal of information in this broad category would appear now to be unnecessarily restricted now, whatever the legitimacy of its restriction may have been at the time.
The second broad category of information which I mentioned was that which might cause embarrassment in our ongoing relations with other countries. I do acknowledge that documents in this category seem to be in a much more ambiguous position. There is a huge amount of information protected on the basis of this kind of claim, lt was almost the sole justification that was offered publicly by the Government for its stance in the defence papers case, namely, that our ongoing relations with Indonesia would be prejudiced by the material contained therein. I do think that this is a consideration which should be given some real weight. It just cannot be scoffed at. There is no doubt that disclosure of material such as that emanating from the Australian High Commissioner in India, Mr Upton, being highly critical of Mrs Gandhi, was the kind of information which was profoundly embarrassing to our current relations with that country, and would make the life of any Australian diplomat in India very difficult. If one is looking simply at the issues of principle here, given that there would appear to be nothing new in substance about the information which was communicated, with its sole news value being in the source from which it came, 1 think that if one is arguing principles here, one could clearly justify the Government taking the view that such information ought to be kept secret.
The difficulty with all this kind of information, however, is that the principle here can be carried, and usually is carried, much too far. Ongoing relations wilh other countries can be very long term indeed, spreading over 10, 20, 30, 40 and many more years than that. If it is to be the case that any information at all which can be regarded as sensitive in that ongoing relationship is to be kept secret for that reason, we can have an absurd situation in practice where very little material does come on to the public record, even though that is a crucially important part or should be a crucially important part in the Australian policy debate. The appropriate thing that the Committee might look at in its consideration of this kind of information is the imposition of some rule of thumb time limit. Any particular time limit would be arbitrary. Certainly the present 30-year rule based on the notion that that is about a generation in length and most of the participants would be dead by the time the information is released is much too long. It may be that two years would be too short. It may be that some period such as five years would be appropriate. Again I suggest that this is the way to tackle this class of sensitive information.
The third and final category of information which is regarded traditionally as sensitive in this area by governments of whatever party is information the release of which would cause embarrassment to politicians or public servants immediately involved. Very often this is the real’ reason why it is sought to protect information, even though it is hardly ever the articulated reason. I suggest it is clear that where this is the real justification or the principal justification for the suppression of information, secrecy is not justified. This is the point that was taken by Mr Justice Mason in that passage which I quoted at the outset of my speech, and it is even acknowledged by the Prime Minister (Mr Malcolm Fraser) himself in what he said yesterday in the other place, to the effect that matters should not be restrained merely to avoid debate. The difficulty with that kind of statement is that, as with so many other statements of the Prime Minister, the deeds are not matched by the words. I acknowledge that the deeds are very rarely matched by the words when it comes to the behaviour of parties in government as distinct from what they tend to say in opposition. At the very heart of the whole freedom of information debate is the notion that however embarrassing, however difficult in a short term sense that might make it for people who have been traditionally immune from scrutiny in whatever they do within the bowels of government, this will contribute to the disclosure of such information to a much better, more accountable and better quality system of government in the future.
Who could now argue about the contribution made by the New York Times to the quality of the defence and foreign policy debate in the United States as a result of its disclosure of the Pentagon Papers? Who would now argue with the legitimacy of the disclosure, again by that newspaper in the United States, of the details of the secret bombing of Cambodia? Who would now argue that lies, deceit and hypocrisy are a proper basis on which to conduct any nation’s foreign affairs? These are the kinds of considerations which underlie the whole argument about freedom of information and which make it crucial that defence, security and international relations be not treated as somewhere off to one side, as peculiarly immune from processes of this kind. It is the reason why, as with so many other areas of government, it is necessary that so far as possible information such as this comes to light.
The question that now remains to be addressed and still, I would argue, remains to be addressed by the Committee, is that if one can identify guidelines of that kind, that is only part of the problem. The very practical question for governments of all colours is what on earth they do in practice when faced with a request for information which they think is sensitive for one or other of these reasons, or when they find that that information has been leaked and a policy decision has to be made, a governing decision, as to what they will do about it - whether they will seek the prior restraint through the courts by means of an injunction against such a threatened publication, or whether they will mount into operation the full panopoly of the criminal law by seeking some ex post factor punishment of the offenders by way of retribution, or at least deterrence of other people. These are the problems which arise here. Again it seems to me that there are several different kinds of problems which have been tangled up together in the public debate of these issues, and it would be the task of a committee, considering a reference such as this, to begin by untangling the framework for the debate and identifying the issues and the kinds of principles which should be applicable to each of them.
I think at least three different kinds of situations need to be taken into account and looked at separately, because they do involve different considerations. The first one is the situation of voluntary release by governments in a situation where governments are requested to release certain documents, or where they may not be requested but think it perhaps appropriate to do so. Under this head there arises for consideration, of course, the whole question of the operation of our present security classification system as laid out in the handbook on protective security. The Senate Standing Committee on Constitutional and Legal Affairs has, as I said earlier, undertaken some consideration of the way in which the classification system operates at the moment, and has made some recommendations. That issue is so central to the way in which governments operate in this whole area that I believe a strong case can be made out for this whole aspect to be looked at in rather more detail, rather more thoroughly and in a rather wider context.
Again, under this general heading of voluntary release by governments one does need to take into account the role of freedom of information legislation. I have indicated already the nature of the Committee’s response to this issue and our suggestion that, whilst it may be appropriate that there is a general exemption for information which is damaging to the national security, defence or international relations interests, that certainly ought not to be a matter on which Ministers can make unilateral decisions without reference to larger public interest considerations and without their views being able to be tested by independent tribunals. That is the kind of thing which needs to be considered there.
The next area which needs to be considered is the whole question of prior restraint - whether the Government is ever entitled in principle or should be entitled to suppress by way of court injunctions and machinery of that kind the threatened publication of sensitive material in this area. That is the situation which squarely arose in the defence papers case. The question is: What should governments be entitled to do? In the United States of America the answer would be very clear: The United States Government is not entitled as a matter of fundamental constitutional principle to do anything of the kind. The only sanction which is available to the Government in the United States is the after the event punishment of the offender. A fundamental inhibition is recognised by the United States Supreme Court on any attempt by the Government to engage in this form of prior restraint of the Press. So much was established in the Pentagon Papers case.
Whether that kind of principle should be extended with its full majesty to the Australian constitutional scene is a matter for genuine debate on which reasonable men certainly can differ. It is not absolutely clear and unarguable that the prior restraint is any more unjustifiable than after the event suppression. I am not clear whether there is a case for distinguishing as clearly as the United States does between the illegitimacy of prior restraint and the legitimacy of after the event punishment. That remains something which needs to be considered by the Committee in the present context.
The final situation which needs to be considered by the Committee when talking about enforcement machinery is what the proper role of the Government should be when it comes to suppression by after the event action - the operation of penal sanctions and punishments of various kinds. Many weapons are available as Australian law now stands. Certainly, sections 70 and 79 of the Crimes Act are the most conspicuous and well known of such provisions. They are clearly intended to operate, although they have not been used much in practice, as a deterrent to people communicating information of almost any kind which the Government wants to keep secret.
There is a very real question as to the circumstances, if any, in which it is legitimate for the Government to deploy its armoury of that kind. Is it the case that it is appropriate for the Government to use measures of that kind in respect of any class of material which, if it is a matter of voluntary restraint, it may have refused to release? Is it the case that some things may be proper for the Government to resist when it is simply a matter of voluntary release but it is improper in principle for the Government to seek to suppress after the event? It may be that the interests of our nation in preserving a free Press are of overriding importance here and that nothing should be done by way of criminal punishment which severely inhibits or deters the freedom of the Press to engage in fearless investigative reporting.
In the time available to me I have sought to do no more than to outline some of the kinds of issues which seem to me to be squarely raised by the events of the last few weeks and on which we as a parliament or as a nation simply do not have a received body of generally acceptable wisdom. Whether the Senate Standing Committee on Constitutional and Legal Affairs is capable of producing that acceptable body of wisdom remains to be seen. Certainly the respect with which our conclusions have been treated in other reports would not lead one to believe so. But I believe that that Committee, as a bi-partisan committee, can produce a report on these important issues which will be of profound utility to the country - a report which the Government will ignore only at the risk of its credibility.
Debate (on motion by Senator Messner) adjourned.
page 300
– I move:
Last night the Treasurer (Mr Howard) made a statement in the House of Representatives. Although to my knowledge no Standing Order requires that a statement made in the House of Representatives be issued either simultaneously or subsequently in the Senate, when a major statement on economic policy is made in the House of Representatives it is normal practice for a similar statement to be made in the Senate either at the same time or at a succeeding time. By 8 o’clock tonight the Government will have had almost 24 hours in which to clarify its interest rate policy and to make any additions it wishes to make to the statement which the Treasurer presented last night. The Senate is entitled to expect such a statement from the Treasurer’s representative in the Senate. The reason I am moving this motion now and stipulating 8 o’clock is that, should the Senate agree to this motion - the Senate will be abdicating its self-respect if it does not agree to the motion - she will have at least two hours in which to prepare a statement. I cite examples of statements on the economy presented within the last Parliament in the House of Representatives and presented either simultaneously or subsequently in the Senate. This is not an exhaustive list. Statements on foreign investment policy and income tax avoidance were presented. A second statement of income tax avoidance was presented, as were statements on tax indexation and so on.
For several months the financial markets of the country have been in chaos. It has been evident to anyone who follows the financial scene at all that the interest rate policy followed by the Government has been non-viable. Finally, last night the Treasurer, at very short notice and I understand in an ill-prepared way, got around to making a statement in the House of Representatives. We are entitled to receive such a statement in the Senate, particularly in view of the Minister’s persistently evasive attitude when questioned on matters of interest rate policy. The policy, as far as it went, which was announced by the Treasurer last night, is fundamentally contradictory. The rationale for the 2 per cent increase in interest rates on small overdrafts cited by the Treasurer - sourced from me, incidentally, and evidently with the Minister’s approval - was that unless small overdraft interest rates were lifted to something more realistic in line with prevailing market rates funds would be withheld from that sector of lending; in other words, the people seeking small overdrafts would make their choice between paying a higher interest rate and getting no overdraft. That was the rationale for the policy the Treasurer presented.
– Do not debate the matter, Senator. Your motion seeks to suspend Standing Orders for a certain purpose.
– Yes, Mr President. I have moved a motion to suspend Standing Orders. I just want to make one point about the need for the suspension of Standing Orders and why the Senate ought to have an opportunity to debate this matter. Having established that as the Government’s rationale, the Treasurer went on to say that farmers and others in drought affected areas would be exempt from the 2 per cent increase in overdraft interest rates. How does the Treasurer, how does the Government, having said that funds will dry up unless overdraft interest rates are suspended, pretend -
– I raise a point of order, Mr President. Senator Walsh is defying your ruling. He is way outside what could be considered to be relevant to the motion. He is using this as an opportunity to make a speech he wants to make on this subject. I ask you, Mr President, to ensure that he abides strictly by the Standing Orders.
– I have asked you, Senator Walsh, to restrict your remarks. You have sought the suspension of Standing Orders and moved a motion to that effect. But you must not debate the matter which you may wish to debate later on. Your motion has been moved purely for the purpose of suspending Standing Orders. You are permitted to explain as briefly as you can the reason for moving the motion. The motion then will be put before the House.
– Very well, Mr President. I shall not speak for very much longer. In support of my motion I was drawing attention to the fundamental contradiction which destroys the rationale of the interest rate policy insofar as it was announced by the Treasurer. The Senate is entitled to an explanation of the Government’s interest rate policy from the Treasurer’s representative in this place at 8 o’clock tonight. The Opposition - and any honourable senator on the Government side who wants to participate in the debate - is entitled to an opportunity to debate the question. If the Senate abdicates its responsibility and its self-respect on a matter such as this and declines to give the Treasurer’s representative an opportunity to explain the Government’s interest rate policy in the Senate - the Senate is surely entitled to an explanation - I trust that we will hear no more about the Senate’s being a House of Review.
– Is the motion seconded?
– I second the motion, Mr President.
– I want to speak briefly on behalf of the Government. The Government is entirely opposed to this motion. The motion is really entirely misconceived. If Senator Walsh or any Opposition senator had wanted to speak on this subject as a matter of urgency, there were perfectly adequate forms of the Senate under the Standing Orders to enable them to do so. They did not choose to bring it forward today, We have already had a lengthy debate on a matter of public importance. It this had been a subject which Opposition senators thought was of such urgency, the matter could have been brought forward under those procedures. It is quite unnecessary to suspend Standing Orders to enable a statement to be made by the Minister for Finance (Senator Dame Margaret Guilfoyle). By tradition, ministerial statements in this place are made by leave, and in fact arrangements are in hand for the Minister to make a statement on this subject tomorrow. A statement on interest rates has already been made by the Treasurer (Mr Howard) and widely reported. A further statement from the Minister for Finance, representing the Treasurer in this place, will be made tomorrow. There are absolutely no grounds whatsoever for this motion to suspend Standing Orders. The Government is opposed to it.
– The question is that the motion moved by Senator Walsh for the suspension of Standing Orders be agreed to.
– I seek leave to ask a question.
– No.
– Leave is not granted.
– All right; we will have a division on it.
– Order!
– Gutless mob!
– Order! I want no more interjections at all from you, Senator Walsh.
Question put:
That the motion (Senator Walsh’s) be agreed to.
The Senate divided. (The President - Senator the Hon. Sir Condor Laucke)
AYES: 23
NOES: 33
Majority……. 10
AYES
NOES
Question so resolved in the negative.
Sitting suspended from 6.5 to 8 p.m. (Quorum formed).
page 302
Debate resumed from 2 December, on motion by Senator Durack:
That the Bill be now read a second time.
– Although the Opposition is not especially happy at the short time it has had to consider in any detail the provisions of this Bill which was introduced only yesterday, nonetheless, I make it plain at the outset that we will not oppose it, subject to satisfactory answers being received to some of the questions I want to raise. The reason we will not oppose it is that the Bill puts on a proper statutory basis within the federal courts a principle which has been accepted for some time in practice, through the medium of ex gratia payments from the Commonwealth Government at the federal level, as it has now been accepted as a matter of statute law in all the State jurisdictions around Australia. The principle is that litigants should not be prejudiced in respect of their costs by circumstances which are essentially beyond their control.
I will list the major such circumstances with which the Bill quite properly deals. The first is where, having been successful at first instance or in a lower appellate court, a litigant fails in a higher appellate court on the basis of some question of law being decided against him or some matter as to the assessment of damages. Another circumstance provided for is where an appellant is successful and a new trial is ordered with the reimbursement extending to the costs of that new trial. A third circumstance is one in which proceedings are aborted for some reason, for example by the death or illness of the judge, or some other circumstance entirely out of the litigant’s control. Finally, another circumstance covered is one where an appellant is successful on appeal but is, nonetheless, unable to recoup his costs against a respondent for some reason or another, usually because that respondent has flown the coop, is impecunious or something of that kind. As 1 said, we are advised by the Attorney-General (Senator Durack) that such reimbursement has been made in the past on an ex gratia basis but we welcome the attempt here being made to formulate a proper statutory basis on which this scheme of reimbursement can operate in the future.
We note further that the funds to be available for this reimbursement are to be provided from Consolidated Revenue. In most other jurisdictions, with the exception of Victoria, the funds in question are provided from a contributory suitors fund. We also welcome the accomplishment of this Bill which is to avoid the necessity for any such procedure and to make the payments out of Consolidated Revenue.
– It’s a good Bill.
– Senator Teague should wail. We may be forced to identify one or two problems in it. Further, by way of accolade, I mention that the particular principle which underlies this Bill is a simple one of fairness and equity. The most well-known articulation of at least one of the bases for it is that given by Mr Justice Moffitt in the New South Wales case of Acquilina v. Dairy Farmers’ Co-operative Milk Co. Ltd (No. 2) in 1 965. His Honour said that the grant of relief operates on the basis that: . . it can be interred that it proceeds on the assumption that the law is known so that if an error or law occurs in a court of first instance, or an inferior appellate court, such error may ordinarily be attributed to a fault in the administration of justice rather than of the parties so that the costs of having the error rectified ought not ordinarily to lie on the unsuccessful respondent to the appeal, but to be paid from a fund contributed to by all litigants.
The Opposition has no quarrel at all with the general principles of this Bill, nor does it challenge the criteria and, by and large, the machinery which are provided for the payment of these reimbursements. I add finally by way of accolade that we further welcome the exemption from the operation of this Bill which is provided for government litigants at all levels as well as large companies, defined as those with paid-up capital of $200,000 or more, which are, of course, well able to fend for themselves when it comes to paying the costs of litigation.
However, some matters do give rise to concern and on these we would appreciate the Attorney’s response. I acknowledge that it may be thought that some of the matters I will now mention should more appropriately be raised at the Committee stage, but it may be more expeditious for me simply to list the questions on which we would like answers and thus avoid the necessity if we get some answers for protracting the Committee stage to any extent. The first such matter I raise is the anticipated total cost of the scheme. The Attorney said in his second reading speech that it was not expected that very large sums would be involved under this legislation. Indeed, he gave this as a reason for financing the scheme out of Consolidated Revenue rather than out of any contributory suitors fund. But I ask him what kind of sum is anticipated to be appropriated for the purpose of this legislation? What has been the experience at the federal level with ex gratia payments of the kind to be substituted under this Bill by statutory payments and, for that matter, what has been the experience in the State jurisdictions where this kind of legislation operates and from which it appears the points the Attorney made on his optimism are derived? The concern we have is that, given that the ultimate authority for the pay out on a cost certificate rests with the AttorneyGeneral and that the Attorney is obliged under clause 16 of the Bill to have regard to ‘the moneys available at the time of the application for making payments’, the appropriation contemplated for this purpose may, in fact, be too niggardly in practice to make this a really worthwhile reform. The total cost that the Government is prepared to provide will clearly have an effect on the exercise of such discretionary authority as the Attorney is vested with under this legislation on its very terms. For that reason, the total amount that is made available at any given time is of some importance to the way in which the scheme will operate.
The second matter I raise is the level of costs payable in particular cases. The prescribed maximum amounts so described are set out in the Schedule to the Bill. For the High Court of Australia the prescribed maximum amount is $5,000, for the Federal Court of Australia it is $3,000, for the Family Court of Australia it is $2,000, for the Supreme Court of a Territory it is $3,000 and for any other court of a Territory it is $1,000. The problem is that while these amounts may be perfectly appropriate and adequate for appeals which normally do not last for more than one or two days - very often in the High Court these days they do not last for much more than 1 5 or 20 minutes when applications for leave are being sought - these figures nonetheless may in practice be wildly inadequate to pay for a retrial where that is ordered. It is well known that lawyers’ fees tend to be, at least to the layman’s appreciation and indeed to that of many lawyers, extraordinarily high. We need to consider as one spectacular example of that only the social security frauds case. That case, which has now been given a new lease of life in a different guise has been running for well over 18 months at the committal stage only, at a total cost to the community of over $5m so far, with one counsel alone, Mr Rofe, Q.C., earning $150,000 in one 12-month period over the last 1 8 months. He is being paid at a base rate, we were told at a recent Estimates Committee meeting, of $590 a day; that is for any appearance of more than three hours, and with various other extras - preparation, reading fees and so on - he is set at a maximum figure of $1,000 a day.
That is nice work if you can get it, but Mr Rofe is really by no means unique in this respect in terms of the kinds of fees that senior counsel are now commanding at the Melbourne and Sydney Bars, and indeed at many other places as well, where fees of $1,000, $1,500 or even $2,000 or more a day are by no means uncommon, with junior counsel getting their chop on a pro rata basis. lt is not hard to see, accordingly, that when a complex matter is sent for retrial the total figure - not per day but the total figure - of $1,000 in a lower territory court, $3,000 in a Federal court, or even $5,000 in the event that a matter goes to trial before a single judge of the High Court, which is a not totally unknown circumstance, will be thoroughly and completely inadequate to pay the realistic costs of the litigants concerned.
There is another present example which comes to mind, more particularly as a result of today’s news, and that is the costs that Mr Sankey was ordered to pay for the Queanbeyan proceedings alone, quite apart from all the other miscellaneous appeals that were involved in his aborted criminal prosecution against the former Labor Ministers. He was ordered to pay as a cost of those proceedings, as his own contribution, $75,500. Perhaps I might make a short digression, still on the subject however of costs, and ask the
Attorney-General about one particular matter that has been very much on my mind and on many other people’s minds today as a result of that news about an anonymous donor generating the $75,000 to pay for most of Mr Sankey’s costs. Given that Mr Sankey’s case is on appeal at the moment in the Supreme Court on the cost question - indeed that appeal hearing was concluded today - what is to be the situation, I would be delighted to know from the AttorneyGeneral, in the event that the Supreme Court should ultimately expunge or significantly reduce the costs order that was made against Mr Sankey? To whom will the outstanding balance now be paid by the Government? In any event, in this context I ask: On what basis is the table in the Schedule derived? If it is, as the Attorney says, in line with the payments currently being made under the State legislation, is this in practice fair? How can he persuade us that it is fair, not in the context of appeals but in the context of orders for retrials?
I raise a further matter, and it arises in a sense from that point. Will the Attorney continue the practice of making ex gratia payments in appropriate cases, or does the fact that there is now to be a firm statutory basis for this kind of reimbursement mean that in future we can expect these ex gratia payments totally to dry up, even in the most deserving case? What I have in mind is a situation in which a retrial may be ordered when the real costs involved are substantially in excess of those set out in the Schedule prescribing the maximum amounts payable. If the Attorney can tell us just what he proposes will be the future situation with respect to ex gratia payments, that would once again help our more cheerful acceptance of this Bill.
Another matter that I raise concerns proceedings in the Administrative Appeals Tribunal which will, of course, assume an ever-increasing importance in Federal law, with the broadcasting case involving Murdoch’s company, ATV 10, being perhaps just the most conspicuous current example. We are pleased to see that appeals on questions of law from the Administrative Appeals Tribunal to the Federal Court are one of the matters defined as Federal appeals under this Bill now before us, and accordingly are prima facie fully within the scope of this Bill. But I suggest to the Attorney, and I again would very much appreciate his response on this, that there may be some ambiguity as the Bill is now drawn about whether litigants can be reimbursed under this Federal Proceedings (Costs) Bill if a ‘new trial’ is ordered following a successful appeal to the Federal Court on a question of law.
The Attorney will, of course, being a master of these things, be aware that section 44 (v) of the Administrative Appeals Tribunal Act provides that a Federal Court can make an order remitting a case to be heard and to be decided again by the Administrative Appeals Tribunal. But the particular question that I put to the Attorney derives from the language of clause 8 of the present Bill which envisages reimbursement being allowed where in any Federal appeal - that expression is used - a new trial is ordered. I ask the Attorney whether the expression ‘new trial ‘, which is not further defined in this Bill, is in fact adequate to cover further proceedings before the Administrative Appeals Tribunal which is not a court and which is not, in ordinary usage, engaged in the business of conducting trials; rather, it conducts proceedings by way of administrative review. I ask the Attorney, quite genuinely, because this is a matter of concern: Is it his view and that of the Government and of the Draftsman that the language of clause 8, referring only as it does to new trials, is adequate to cover reimbursement for further proceedings ordered before the Administrative Appeals Tribunal, and whether indeed for that matter it was the intention of the Government to include such resumed or new proceedings before the Administrative Appeals Tribunal within the scope of the Act? If it was the Government’s intention to do so, can it state for the record its belief that the language of this Act accomplishes that result? 1 raise a final matter of a much more general character to which the Attorney may or may not wish to respond. The present Bill is premised on the time honoured Anglo-Saxon rule that costs follow the event; that is, the loser in litigation pays not only his own costs but also those of the winner. This, to my mind, raises the question of whether it is still appropriate in all matters that this time honoured Anglo-Saxon principle which is invariably honoured by the court, whatever the notional discretion the court has may be in principle- -
– It’s a good principle.
– We will hear from you, Senator Teague, in justification of it if the Attorney cannot manage to fend for himself. It raises the question of whether that is still appropriate. It operates, of course, as a quite profound disincentive to litigants initiating cases in the courts, especially in the new and fast emerging class of public interest cases, the most familiar example of which are actions brought in the areas of environment protection, consumer protection, broadcasting licensing, and other similar matters and also the, I hope, fast emerging area of civil rights and anti-discrimination law. The Attorney may, of course, think it is a good thing. Senator Teague is nodding his head, so he clearly is of that view. The Attorney may not wish to do anything at all which could be regarded as encouraging what in the United States is a rather more litigious culture than our own, no doubt at least partly prompted by the absence there of any similar costs following the event rule. But I, for one, have long thought that there is a case for abandoning the rule entirely, certainly when cases are involved concerning litigation against governments or public authorities, and perhaps also, bearing in mind one of the exemptions which is contained in this Bill, cases which are set in train against large companies which are well able to absorb and to afford the costs of such litigation.
I also suggest that even if the actual abandonment of the costs following the event rule is accomplished for those matters, and for those matters alone, there may also be a case for rethinking and rewriting, as a result, new discretionary criteria to be applied by the courts with respect to other classes of litigation so as to make the discretion which is notionally able to be exercised by the courts in these matters something that is more real in practice than it is at the moment. I would appreciate knowing whether the Government has given any thought to this much larger question of the standard, familiar, ancient costs rule and, indeed, whether the Attorney, if he has not given it any thought so far, is willing to give genuinely sympathetic consideration to a case being made out along these lines for the Government’s attention.
The present Bill is not premised on any such assumptions. It is based squarely on the traditional assumption about cost rules. It does something in its own way to mitigate the harshness of those rules as they can operate in particular circumstances. As such, and subject to satisfactory answers being given to the various questions I have asked, the Opposition, I repeat, welcomes the introduction of the Bill.
– in reply - I thank the Opposition for its support of this measure. Senator Evans, in his usual vein, has not given any fulsome praise to the measure and we have been treated to the usual criticisms that are directed to any measure that the Government introduces. I must say that in this case the criticism has been in the form of questions rather than outright, fullblooded criticism. I suppose I should be thankful that at least we have an acceptance of this measure on this basis.
– It’s almost laudatory.
– Yes. As I said in my second reading speech, this Bill is a very positive measure of reform, in a confined area, admittedly, but one in which for many years there has been a potential for injustice as a result not necessarily of mistakes within the legal system but of mischances which occurred as a result of a judge dying, necessitating a retrial. We have not had any proper provision to cover this class of case, albeit for many years similar provisions have existed in the administration of the State courts. That has been a deficiency in the Federal system. It is a matter of some satisfaction to me that I have been able to introduce this measure. In view of the acceptance of the principle, I hope it will receive the same acceptance in another place as it has received in the Senate and that within the next few days it will be on the statute book and in force.
asked a number of questions. The first related to the total cost of this measure. It is pleasing to notice that the Opposition is starting to ask questions about the total costs of measures. The Australian Labor Party did not ask such questions when it was in government but it is learning, albeit slowly. It is very difficult to give an estimate of total costs. We have endeavoured to make some assessment of the costs if the Bill were to apply in the Federal Court system. We have made a number of inquiries as to the number of cases and so on. The best estimate we can make is about $200,000. It is interesting to note that in New South Wales, for instance, which I think everyone agrees is the most litigious State in Australia and in which similar legislation has been in force for some years, the highest cost of its scheme in any one year has been $108,000. It is not really a matter of extrapolating that figure to the Commonwealth as a whole, but I think it is some indication that our figure of $200,000 is probably a reasonable one and perhaps a generous one.
The second question asked by Senator Evans related to the costs of retrials. It is true that we have put limits - somewhat strict limits, admittedly - on costs in the various Federal courts. They have been fixed with regard to appeals rather than to retrials. I acknowledge that fact. In some States the cost of retrials is unlimited. However, as the Senate is aware, under the Federal administration of justice we rely substantially on the States system in regard to the administration of Federal criminal laws. Therefore, retrials are most likely to arise in the States systems, even though they are provided for under
Federal law. The retrials which would occur would be paid for out of State suitors funds.
– But what about the Territories?
– I am coming to that point. That matter would certainly arise in some Territory courts. In certain cases - Senator Evans referred to some of the more outstandingly expensive cases; the one that he mentioned, the social security commital proceedings, is taking place in a State court - expensive retrials could take place in a Territory court. I do not exclude by any means the question of an ex gratia payment in a case of that kind. At this stage this Bill is an experiment concerning the problems that may arise in regard to costs. We think they would be rare, but the measure does contain a provision for increasing these sums by regulation if we found that the costs of retrials were in Territory courts well habitually above the limits. That, of course, would be a very real reason for increasing the limit. In a case where there was a good ground for an ex gratia payment because the costs had exceeded the limit I would not regard that as being excluded by this provision. I think it would clearly be a very good ground for altering the limit.
The other question asked by Senator Evans was in regard to rehearings that might be ordered in the Administrative Appeals Tribunal. It was not intended that the provisions of this Bill would apply to rehearings in the Administrative Appeals Tribunal. I think it is clear enough that the clauses to which Senator Evans referred would not apply in such a situation. I think we would keep the matter under consideration. If a substantial cost were incurred as a result of a rehearing being required by a question of law, that again would be a matter for consideration of an ex gratia payment. However, it must be remembered that in the Administrative Appeals Tribunal the ordinary rules relating to party and party costs or costs following the event do not apply. Nevertheless, that does not completely determine the issue. I concede that there may be situations in which a party would be put to great expense as a result of a mistake of law in the Administrative Appeals Tribunal. There could be a case which involved a very expensive rehearing. In that event I think we would need to keep the matter under observation to see whether there was a need to provide for that situation.
The last matter that Senator Evans raised involves a very major issue relating to the question of party costs and the principle under our administration of justice that costs follow the event. I do not think this issue necessarily arises out of this legislation, although this Bill does provide an opportunity to raise the matter for discussion. However, it is an issue which is very fundamental to our administration of justice. It is not one which is by any means confined to the Federal area, lt concerns the State administration of justice, probably in a very major way as far as litigants are concerned. More litigants are involved in matters going before State courts than are involved in those going before the Federal courts.
We have made a major experiment in this regard in the family law area. It is interesting to note that the report of the Joint Select Committee on the Family Law Act expressed some criticism of and concern about the way in which the Act has operated. The Act applies the principle of each party paying his or her own costs, which principle as I have said, applies to parties appearing before the Administrative Appeals Tribunal. In the Federal area we have undertaken very major experiments in changing that time honoured principle under our system whereby the costs follow the event: The unsuccessful party has to pay both sets of costs. Apart from its application to the areas that I have mentioned, this matter has not been considered by me or by the Government. As I have said, I think it goes far beyond the Federal court system; it applies to the administration of justice generally in Australia and involves very much the State courts. I am not aware of any strong criticism of the system, apart from that made in the family law area. However, there is now criticism of the change made to the legislation by this Parliament.
I am familiar with the American principles. I can remember listening to an interesting lecture by Professor Goodhart on this subject nigh on 30 years ago. He indicated that from his experience not only as an academic but also as a litigant in the American and British courts - he was in a rather unique position - he preferred the American system whereby each party paid his own costs. Each party knew exactly where he stood even before he embarked on litigation. However, that has not been a favoured view in England or Australia. As I have said, I think the principle is one which has to be seen in operation. We have experimented in Australia in the family law area and with the Administrative Appeals Tribunal. I do not have plans to change the rules which apply to the other courts. As a result of the review of the change made to the Family Law Act, the question arises whether the change in the rule applying to that area was successful.
I do not propose to say anything more in regard to the measure. The points Senator Evans has raised in relation to this new rule are of some importance. I am glad that the Senate has indicated its support for the measure. I hope it will have a speedy passage.
Question resolved in the affirmative.
Bill read a second time.
In Committee
The Bill.
– I wish to raise one matter at the Committee stage of the Federal Proceedings (Costs) Bill 1980 in the light of the answers given by the Attorney-General (Senator Durack). I still await with some interest what he has to say on the subject of what he will do in the Sankey case should the State Supreme Court order a reduction in the costs payable, but perhaps that matter can await a more opportune time. The matter that I wish to refer to is the question of new trials, or at least rehearings in the Administrative Appeals Tribunal in the event that that is ordered by the Federal Court of Australia. I was rather surprised to hear that it is not within the Government’s contemplation that proceedings of this kind be contained within the ambit of this Bill. I was rather giving the Government the benefit of the doubt, assuming its bona fides, and thinking that it was just being a little optimistic on the drafting front. But it appears that my optimism was not borne out. For that reason I will be testing the Attorney-General’s resolve on this matter by moving an amendment in the following terms: 3 (1) Definition - after ‘judgment’ add new trial’ includes a rehearing in the Administrative Appeals Tribunal ordered pursuant to section 44 (S) of the Administrative Appeals Tribunal Act 1975.
I take on board what the Attorney-General has said about keeping this matter under review and perhaps making it the subject of some ex gratia payment in the future should he be satisfied that there is occasion for that. I take on board his remarks about keeping under review the question of whether the Act itself ought not to deal specifically with this matter. Being well aware, as the Opposition is, of the difficulty of getting the Government to initiate any amendment to a piece of legislation once it has been through this Parliament, given what I think is the likelihood of the Attorney-General’s mind when it comes to ex gratia payments being concentrated by the terms of the Act in front of him - such claims might, at least as a threshold matter, be based on that Act - given the lack of confidence, with every respect I have, in the Government’s likely resolve in this matter, and given further the Opposition’s belief that appeals heard before the Administrative
Appeals Tribunal will be of great and growing importance in the future, with many quite significant matters being there heard and determined, often with significant points of law arising therefrom and being dealt with by higher courts, it does seem appropriate to us that there be specific provision in the Bill to cover this. Accordingly, I move: 3(1) Definition - after ‘judgment’ add new trial’ includes a rehearing in the Administrative Appeals Tribunal ordered pursuant to section 44 (S) of the Administrative Appeals Tribunal Act 197S.
– I am not prepared to accept the amendment moved by the Opposition. I think it needs a good deal more consideration then can be given to it at this stage. Let me reiterate what I have said. This is a measure which is, to a certain extent, experimental as to cost. I have given our estimate of what the total cost may be. However, at this stage we are not very certain as to the total cost involved. We are familiar with situations as they have arisen in State areas. Applying those situations to the Federal area we believe an estimate of the cost is the figure that I have given.
As to this extension which is set out in the amendment that has been moved by Senator Evans, I have already indicated that it is one that we would keep under consideration. Admittedly, it is not a matter which could be altered by regulation as could be done in respect of other courts because the Schedule does not apply to the Administrative Appeals Tribunal. In cases before the AAT, apart from the exceptional type of case such as the one on appeal now from the Australian Broadcasting Tribunal, the parties involved are usually the person aggrieved by an administrative decision and the Minister, a department or an authority. The costs of the authority are met on public account anyway. The applicant has the right to apply under section 69 of the Administrative Appeals Tribunal Act for an order for costs on the grounds of hardship and reasonableness. If a retrial were ordered I do not think there would be any difficulty in satisfying the test of reasonableness. The question of hardship is one for the Attorney-General to determine. No doubt on the issue of hardship he would take into account the fact that the applicant would have to meet costs for a second time.
Other litigants before the Administrative Appeals Tribunal may be those who are excepted from Federal Court proceedings altogether. I doubt whether there would be many cases in which the provision in the amendment would apply. For a start, there would have to be a rehearing on a question of law. By and large, one litigant would be involved. The person conceivably would not come within the definition of hardship. As I have said, the litigant who has to face for the second time round a hearing before the Administrative Appeals Tribunal may well come within the definition of hardship. The applicant may well be a company. I think the occasions when the provision in the amendment moved by Senator Evans would be required would be very rare. At this stage I would prefer to let the matter proceed without adopting this amendment to see whether such situations do arise. As I have said, if a case of particular hardship occurs, there is always the avenue of making an ex gratia payment. For those reasons, I am opposed to the amendment.
Amendment negatived.
Bill agreed to.
Bill reported without amendment; report adopted.
Bill (on motion by Senator Durack) read a third time.
page 308
Debate resumed from 2 December, on motion by Senator Messner:
That the Bill be now read a second time.
– At the outset I want to protest at the cavalier way in which the Government is pushing this legislation through both Houses. Last night the Treasurer (Mr Howard), who of course is responsible for this Bill in the House of Representatives, was not present during any part of the second reading debate. He was not present to answer questions which had been addressed to him during the second reading debate, nor was he present for the Committee stage. Several important questions which had been raised by Ralph Willis and Ralph Jacobi, among others, were simply ignored by the Government. The Treasurer of course was busy at that time putting up interest rates and trying to overcome some of the more rustic, rednecked resistance from within the Fraser Government, and indeed probably from the head of the Fraser Government, to conceding that market realities had to be faced after all. The Treasurer has probably been occupied today in trying to explain away to the public the innate contradiction in the interest rate policy which he finally managed to extract from the Cabinet last night.
The contradiction to which I refer is that if interest rates on small overdrafts are not increased to a more realistic figure than the previous 104 per cent then of course no money will be made available by the banks for that type of lending, which probably is a fair recognition of reality. The rationale was completely contradicted when the Treasurer added that small overdrafts for farms and businesses in drought affected areas will be exempt from the 2 per cent increase. The Treasurer has yet to explain - and his representative in this House has absolutely no knowledge of these matters, judging from her responses - how this Government will ensure that overdraft funds will continue to be made available at 104- per cent for people in drought affected areas when it could not ensure that the finance will be made available in other areas. 1 look forward to the Minister for Finance (Senator Dame Margaret Guilfoyle), the Treasurer’s representative in this place, attempting tomorrow to explain away that contradiction.
The other matter about which I want to complain is that I was told by Ralph Willis, not by any representative of the Government, a few minutes ago that a number of amendments will be moved to this Bill in the Committee stage. On making some inquiries I discovered that the amendments were circulated in the Senate sometime before the suspension of the sitting for dinner. I eventually managed to find them in the considerable pile of papers that I have on my desk here. We are expected, I presume, to consider the several pages of amendments before the Senate rises this evening.
– The Attorney does not like quick decisions.
– The Attorney does not like quick decisions except when it is convenient. It is impossible to give the proposed amendments adequate consideration in the time which is to be made available. I can understand the Government’s eagerness to get this legislation through because, as Senator Guilfoyle will shortly tell us, literally millions of dollars are being lost every day as the promoters gear up their anti-social activities and rush through as many tax evading schemes as they can before the Bill becomes operative. However, it is not necessary to push the legislation through with such indecent haste. The Bill, as is usual, states that it will commence on the day it receives royal assent. There is no reason whatsoever why those provisions in the Bill which apply to the collection of tax, not the imposition of criminal penalties, cannot be backdated to the beginning of last week, to the beginning of this year or as far back as the Government wants to apply them.
The Labor Party has long stated - and this is beyond reasonable dispute - that the only way to stamp out tax evasion and tax avoidance in this country, particularly tax avoidance, given the Byzantine decisions of the High Court under the tutelage of Sir Garfield Barwick, is to serve clear notice on the tax avoiders and those who market and promote their schemes that retrospective legislation will deprive them of the lucrative gains which they have hitherto received from their antisocial activities.
The Australian Labor Party will support backdating of the revenue provisions of the Bill which is before us. We would not, of course, support backdating of the criminal provisions. I fear that the Government will not accept that and that the Bill will be pushed through this so-called house of review with the several pages of amendments which I sighted only a few minutes ago and which probably not even half a dozen people on the Government side have sighted at all. It has been estimated by an authority as widely recognised as Professor Mathews that tax avoidance currently is costing revenue about $1 billion a year and that tax evasion - the so-called cash economy - is costing about $2 billion a year. Tax evasion mostly is illegal, even under existing law and is, therefore, much more difficult to eradicate than tax avoidance in which case at least the relevant factual information is supplied to taxation authorities.
However, it appears fairly clear that the subcontracting system is a major area of tax evasion. As far back as mid- 1978 the Treasurer announced that he was having inquiries made into the subcontracting system in the building industry with a view to imposing a flat rate deduction on all payments made to sub-contractors unless specific certificates of exemption were obtained from the Taxation Office. A scheme of that nature is in operation in the United Kingdom and, as far as I know, works fairly satisfactorily, lt was later revealed to the public that a letter from, I think, the Housing Industry Association had been received by the Treasurer, protesting about the Treasurer’s stated intention to curtail tax evasion in this area. Since then the Treasurer appears to have dropped the whole idea. It is the old story of the Fraser Government caving in whenever a significant pressure group applies pressure to it.
I want to dispose of a myth - the myth that the reason tax avoidance is rampant is that marginal tax rates are too high. That is the apologia submitted by some people associated with this Government; by many people associated with the socalled tax avoidance industry; and, of course, most passionately of all, by the tax avoiders.
– And by the Australian.
– And by the Australian newspaper. These highly contrived tax avoidance schemes are indulged in overwhelmingly by people with the highest incomes - people whose incomes are sufficiently high to attract the maximum marginal rate of 60 per cent. The maximum marginal rate has been 60 per cent ever since the 1977 Budget. That is the lowest it has been at any stage since uniform taxation was introduced in 1942. Whilst it is true that income taxation on ordinary people, on middle and low income earners, is higher under this Government than it has ever been in peacetime, the maximum marginal taxation rates that now apply to those with really high incomes are lower than they have been since 1942. For 35 years significantly higher maximum marginal tax rates did not lead to an epidemic of tax avoidance schemes but in the last three years they have done so. I suggest that it is logically inescapable, if one wants to identify the cause of the epidemic of tax avoidance in the last few years, for one to look somewhere other than the maximum marginal rate of taxation. One does not have to look very far. In fact, these days one does not have to look beyond the shores of Lake Burley Griffin, about 400 yards away, where one will find the High Court of Australia.
There are two reasons for the proliferation of tax avoidance, of what morally is theft from the public purse. Those reasons are: The highly permissive judgments handed down over a period of years by the High Court, in favour of tax avoiders, under the tutelage of the Chief Justice, and the general decline in public fiscal morality manifest in the Fraser Government’s attitude to these schemes and, in particular, to the direct participation in a number of contrived arrangements which minimise tax paid by a number of Fraser Government Ministers. It is a matter of public record that the Deputy Leader of the Liberal Party used an artificial arrangement of companies to avoid most of the tax which would otherwise have fallen due on his very profitable land at Stumpy Gully.
– Order! The honourable senator should take heed. He must not in any way reflect on members of this House or the other House and he should not reflect on the judiciary.
– Mr President, it is a matter of public record, on Mr Lynch’s own admission. We were never privy to the report prepared by his solicitor and accountant which was alleged to have cleared him from all suspicion. Of course, we were never allowed to see that report of the Prime Minister (Mr Malcolm Fraser). But it is a matter of public record, on his own admission, that he had family companies arranged in such a way that he was able to avoid a great deal of the tax which otherwise would have fallen due on those highly profitable land trading arrangements. There is also the curious case of three companies associated with the honourable member for Curtin (Mr Garland), and I will have a bit more to say about that matter later. Of course, there is the well known fact - again available on public record - that most of the Ministers in this present Government have trusts, or at least it has never been revealed that more than one of them has since disposed of his trust. The explicit purpose of those trusts is to minimise the payment of personal taxation. Given that sort of example from the Government of the country, and given the permissive interpretations of the Act in favour of tax dodging in favour of what is morally theft from the public purse, it is not really surprising that tax avoidance has proliferated. It has absolutely nothing to do with the maximum marginal tax rates at least within the conceivable parameters.
Of course, if the maximum marginal tax rate fell to lc or 2c in the dollar the tax avoidance industry would collapse. There is no way that the marginal tax rate could fall to anything like that. If we opted for a flat rate tax with a threshold of about the present threshold, the average marginal tax rate would then be the same. It would have to be something like 35c in the dollar. Given that it has been shown to be so easy to avoid tax under the present laws and under the present interpretation of those laws by the High Court there is absolutely no reason to believe that the tax avoidance industry will disappear. That is an apologia put out by and on behalf of the anti-social racketeers who are robbing and who in recent years have robbed the public purse of probably thousands of millions of dollars of revenue. It is utterly without substance. The examples which are set to the public by people occupying the highest positions in the land, those who are supposed to make and uphold the laws, have been so bad that it is not surprising that otherwise honest people have joined in. This has been compounded by the very limited degree to which the activities of those who are making and allegedly upholding the law have been exposed to public scrutiny and the way in which numbers have been used in this Parliament to prevent their being exposed to public scrutiny.
There was an attempt in the Senate earlier this year to investigate such fundamental taxation questions as those involving a company director who occupied a company house, evidently without paying rent - but one way or the other, that is not terribly important. Under these circumstances, section 26 (e) of the Income Tax Assessment Act is perfectly clear. If rental is paid by the director-occupier of the company house that rental must be included as taxable income in the taxation returns of the company. If, on the other hand, no rental is paid imputed income in lieu of rent must be added to the personal taxable income of the director-occupier of the house. It is known that a director of Mundroola Pty Ltd occupied a house under those circumstances. It is not known whether the imputed income in lieu of rent of the house was added, and nobody has been invited to reveal to the public whether he added imputed income to his personal taxable income, or whether, alternatively, he paid rent. According to some published reports rent was not paid. Even if that were not so, if rent were paid, it should be added to the taxable income of the company. There was an attempt in the Senate earlier this year to flush out the facts of this highly relevant matter. That attempt was killed by the Government. The Government refused to have that matter investigated. Given that sort of moral example, of moral leadership, is it surprising that tax avoidance is rife?
The tax avoidance industry will not be killed by any conceivable reduction in the maximum marginal rate of income tax. It will be killed by a clear and credible threat from the Government of the day that retrospective legislation will be used to put an end to it. As long as the threat is credible - and I guess no such threats are credible coming from this Government, knowing its record of caving in under pressure from rich and powerful friends - there would be no need to pass the retrospective legislation, because the promoters of the tax avoidance schemes, the shonky lawyers and accountants who are aiding and abetting this antisocial activity, this moral theft, would be out of clients. But the Government refuses to do so. That gravely overdue social and taxation reform will have to wait for three years and for the election, evidently, of a Labor Government.
The particular type of scheme against which this legislation is aimed is a variant of the Slutzkin schemes against which legislation, I understand not entirely effective, was passed in 1972 and in 1978. The Slutzkin scheme at its height managed to strip dividends out of profitable companies in such a way that they were not taxable in the hands of the recipients and to strip all assets from a company so that the company’s liability for company taxation could not be met. This legislation is aimed against the latter practice under the Slutzkin scheme. But according to my information variants of the other half of the Slutzkin scheme - that is, stripping dividends from companies in such a way that they are not taxable in the hands of the recipients of dividends - still operate to some extent.
This brings me to the curious case of Stirling West Pty Ltd, of Greenbank Pty Ltd and of Frederick Salon Pty Ltd, three companies incorporated in Perth. On 10 February 1978, the branch register, the share register for all of those companies, was transferred to Peat Marwick Mitchell and Co., of Cavanagh Street, Darwin. The transfer was lodged by Rickford Administration Pty Ltd, a firm in Melbourne. Three days later R. V. and L. M. Garland resigned as directors of those companies, and in their stead Matthew Joseph Sheedy, a chartered accountant of 20/11 Auburn Grove, East Hawthorn, Victoria, and Ian David Stafford Collie, a solicitor of 30 Kintore Street, Camberwell, Victoria, were appointed directors. On the same day, L. M. Garland resigned as secretary of the companies, and M. J. Sheedy, the same M. J. Sheedy previously mentioned, and R. M. Evans of 28 View Street, Peppermint Grove, Western Australia, were appointed as secretaries.
On 27 February, the company register was transferred back to Melsom Wilson and Partners, of 37 St George’s Terrace, Perth, the transfer again being lodged by Rickford Administration Pty Ltd. On 20 March of that year the share capital was divided into 9,950 ordinary shares at $2 each, and 50 B class shares at $2 each. Previously there had been only 101 shares in Stirling West Pty Ltd, 200 in Greenbank Pty Ltd and 100 in Frederick Salon Pty Ltd. On 21 December 1978 R. H. Judson of Ferrier Hodgson Green and Co., 459 Collins Street, Melbourne, was appointed liquidator. The facts that I am quoting are relevant to Stirling West Pty Ltd, but with very slight variations they apply to all three companies. On 9 October 1979 the sole shareholder in the company was another company called Hulldale Pty Ltd, and it received the liquidator’s distribution which was 1 1 1 shares at $4.55 per share, or a total of $505. That bears the hallmark of a dividend stripping operation. It is scarcely conceivable, and certainly strains credibility, that such multiple changes of ownership and a shuffle over two States and one Territory of share registries, directors, secretaries, managers and so on, with all the legal and administrative costs which would have been incurred in such moves, would have been carried out by companies which had only $500-worth of assets in the first place. The R. V. Garland in question is a former Minister, and the full story behind these companies–
– Order please! Order, Senator Walsh. You are in one of your fields, which seem to give you great pleasure, of making imputations and reflections against people here in this place. You are doing it, if I may say so, in a clever way, just getting away from the severe censure of this place. You are to make no imputations or inferences with respect to any member of this place. Do not try to do that by speaking at a tangent.
– I make no imputations, Mr President. I have stated some facts which are available on the public record at the Corporate Affairs Office of Western Australia. 1 invite Mr Garland to make an explanation to the public as to the motives behind those facts that I have outlined. I invite also the Prime Minister to tell the Parliament whether he received a declaration from Mr Garland at the time those changes were taking place indicating, firstly, that they were taking place and, secondly, the reasons for their taking place. The Prime Minister assures us that there is no reason for any mandatory disclosure of business interests by Ministers because he says it is all disclosed to him. I invite the Prime Minister to tell the Parliament whether those facts as 1 have disclosed them and other relevant facts pertaining to those companies were disclosed to him by that former Minister during his period as a Minister. The matter was touched upon by way of a question asked in the House of Representatives during the Budget Session of Parliament. Whether the fact that it was raised is related to Mr Garland’s subsequent decision to leave the Parliament I am not able to say.
According to the Treasurer in his second reading speech, no fewer than 2,086 schemes against which this legislation is aimed were organised by one company in a recent period. The Treasurer added that 733 of those schemes cost the revenue $128rr. Unfortunately, the Treasurer did not name the company that is marketing and promoting the schemes, nor did he give its city of origin. I invite the Minister for Finance, who is in charge of the Bill in the Senate, to supply that information to the Senate. It would be interesting, to say the least, if the company concerned were domiciled in Melbourne. It would be more interesting if it should be either Rickford Administration Pty Ltd or Hulldale Pty Ltd. I think the public is entitled to know the name of the company, whatever it is.
Lawyers and accountants have complained about what they claim to be the draconian provisions of this Bill. I would be more impressed by lawyers’ arguments if they were vocal in opposing violations of human rights rather than what they see as violations of property rights. For example, I would have been much more impressed if these lawyers and other lawyers had been more noticeable in their opposition to the conscription legislation under which young Australians were drafted to Vietnam and as a result of which almost 500 of them ultimately were killed in a cause which has since been thoroughly discredited. As subsequent evidence revealed, lies were *old in the Australian Parliament when the announcement and commitment originally were made. The damage that was done to the young Australians involved obviously is irreversible. I make the point that I would be much more impressed if the legal profession were more visible in opposing that sort of violation of human rights. Unfortunately, I regret to say that it appears to be much more interested in opposing what it sees as violation of property rights.
I do not have time to go into this matter at any length. One of the submissions we received was from a member of the bar in Melbourne. In that submission the point was made that ‘calculated and fraudulent evasion of tax is already a grave criminal offence’ under section 23 1 ( 1 ) of the Income Tax Assessment Act. However, he did not tell us what the maximum penalty under that section of the Income Tax Assessment Act is. If we look it up we find that the maximum penalty is a $ 1 ,000 fine and payment of tax up to double that which has been evaded. That sort of penalty is peanuts to people who organise schemes like this, expecially as they know that the maximum penalty is rarely if ever applied, particularly the one that could really hurt, namely, the double taxing provisions. Unless they are certain to be detected and prosecuted, that sort of penalty does not worry them at all. It seems to me that this lawyer has been less than totally honest in presenting that as an appropriate penalty for what he described as a grave criminal offence. I trust that the calibre of some of the other points that he makes is more substantial.
– The Bill that is under discussion tonight is the Crimes (Taxation Offences) Bill 1980. I participate in this debate in support of the Bill. The Bill is divided into two main areas: One deals with offences in relation to sales tax and the second deals with offences in relation to income tax. The Bill is concerned with arrangements which evade the payment of sales and income tax. It deals quite extensively with aiding and abetting arrangements. Amendments which will be introduced at the Committee stage by the, Minister for Finance (Senator Dame Margaret Guilfoyle) will put beyond doubt that it is the person who aids and abets who is the one who will be prosecuted.
The offences under this legislation are quite severe but, on the other hand, the cost in terms of lost revenue to the Government and to the nation is far in excess of $100m a year. Our Treasurer, John Howard, has cited an instance of one operator alone handling 2,086 arrangements. This Bill is unlike a number of other Bills related to taxation that have passed through this chamber this year. Those other Bills dealt with the subject of tax avoidance; this Bill deals essentially with tax evasion. Tax avoidance, of course, is the arrangement of one’s affairs in such a manner within the existing law as to minimise the total tax payable. Tax evasion, on the other hand, is outright fraudulent activity and is an illegal act.
This Bill is very notable in that it is the first piece of legislation introduced in this Parliament which seeks to bring criminal proceedings into the taxation field. I assure the Senate that the Government did not enter into this legislation lightly. Bringing criminal offences to the taxation field has far-reaching aspects but it must be remembered that in this legislation we are dealing with illegal proceedings. As I said, the Government has reluctantly but very forcibly brought into this chamber legislation to cut out this fraudulent type of activity. The fact .that some sections of the legal profession have approached individual senators indicates that this Bill will bite and will be meaningful. In other words, this Bill will have some impact. I have read a number of the objections that have come in. One from an eminent Queen’s Counsel indicated that although he could find no fault with the individual clauses of the Bill he believed that, because of the impact and the severity of the penalties imposed in the Bill, a longer time was required to consider the wider ramifications of this Bill.
The proceedings that have been undertaken by these operators have been referred to as ‘bottom of the harbour’ schemes. Let me explain what we mean by ‘bottom of the harbour’ schemes. Companies known as straw companies are set up and stripped of their assets, and the documents and all the relevant material are destroyed in some way or conveniently dumped in Sydney Harbour. Hence the reference to ‘bottom of the harbour’ schemes. They are essentially fraudulent in intent. They start off essentially as dividend stripping operations. The purpose of the Bill is to introduce sanctions to overcome that sort of operation. It makes it an offence for a party to be involved in a straw company or a straw trust, because trusts are increasingly being used for this sort of arrangement. These straw trusts and companies are designed to frustrate the collection of income tax or even sales tax that becomes lawfully payable. The provisions of this Bill make it an offence to aid, abet, counsel or procure others to be parties to such arrangements. The penalties are severe - up to five years’ gaol or a fine of $50,000. Nowhere in company law or in taxation law do we see penalties as severe as those, but I suggest that they are warranted and needed. Because of the criminal penalties that these provisions introduce, the Bill will not come into operation or affect arrangements or transactions of the proscribed kinds until after the legislation receives royal assent.
I mentioned that many representations have been made to honourable senators to delay the Bill. What is the reason for some of those representations? Some are quite honourable in intent. Some are not. On the front page of the Australian Financial Review this morning there was an article that stated that there was a rush to beat Howard’s net. The tax evading operators are rushing through an unprecedented level of projects before the proclamation of the Government’s Crime (Taxation Offences) Bill. That indicates that the Bill will have some meaning. It also indicates that there is a lot of profit to be made in the interval until this Bill receives royal assent, which I trust will be forthcoming by at least Friday. The article mentioned that yesterday one Sydney operator alone carried through schemes worth $3m. Those sorts of schemes are beyond the comprehension of the ordinary layman and I think they must be condemned by all right thinking Australians and ordinary taxpayers.
Of late I have been approached by a number of accountants who are concerned not only about the evasion industry but also about the avoidance industry. They believe that accountants and lawyers who are essentially doing the right thing by their taxpayer clients are losing clients in a dramatic way to those who operate in the tax avoidance and tax evasion industry. Therefore, I will certainly play my part in supporting this Bill and in getting it through this chamber so that it can receive the Governor-General’s royal assent at the earliest possible opportunity. I also undertake to this Parliament that I will do my best to speed up amendments to section 260 of the Income Tax Assessment Act that are necessary to overcome certain problems. I can assure the Senate that many amendments to that section have been put to paper, but there are certain problems, as we all realise. It is important, when that legislation goes on the stature book, that it be meaningful to catch these sorts of operators. John Howard, of course, has been quite resolute in his determination to attack tax avoidance and, in recent days, tax evasion. I will give the Senate an example. The September 1980 edition of the Chartered Accountant in Australia states:
We all know that the last Tew years have been marked by a flurry of activity in amending the Act–
That is the Income Tax Assessment Act- by the Commonwealth Parliament, lt is interesting to note that 10 years ago there was but one amendment to the Assessment Act covering some 14 pages. In 1979 there were seven amendments to the Income Tax Assessment Act, this time covering 86 pages. Already in 1980 there have been four amendments to the Assessment Act and two amendments to the Rates Act covering hundreds of pages. The CCH recently stated that its loose leaf legislation volume now stands at 1 ,628 pages compared with 663 pages of less compact format when the volume was introduced in 1969 and this represents an increase in the size of the Act of al least 1 45.6 per cent.
The lesson from those figures is that there are many more people who are adopting a lot more sophisticated and probably, to some extent, underhand methods which were unthought of years ago and who are now in this tax avoiding industry. But the Bill before us tonight contains new and drastic provisions. The terms are necessarily wide; we have to put out a wide net. Therefore, I support the call that has been made by the secretary of the Australian Taxpayers Association, Mr Eric Risstrom, for a public information bulletin to be issued at an early opportunity by the Commissioner of Taxation as to how the Act will be administered. I believe this would be certainly a forward move. Some people genuinely believe that there could be some areas of concern in that innocent parties believe they may be subject to a severe penalty. I believe these severe penalties will apply only when the person who is involved actually knows what is going on; they do not apply to the person who is not aware what the scheme is all about. There is a fundamental rule of taxation that intentions are usually manifested by subsequent actions, and the subsequent actions of the operators can be quite relevant in these circumstances. The writer of the editorial in today’s Australian believes that the legislation may be a little hasty and in making that suggestion he inevitably must realise that the Government is losing millions of dollars each year.
– Each day.
– In fact each day because, as I mentioned earlier, one operator put through schemes worth $3m in one day. The Australian makes the point that legislation already in existence, such as the Income Tax Assessment Act, the Crimes Act, the Companies Act and the Bankruptcy Act, is sufficient. I believe the Australian has been quite naive in presenting that list. I now wish to support my thesis as to why the Australian is misleading many Australians through its editorial. Honourable senators will recall that yesterday I asked the Minister for Finance whether the Treasurer would prosecute, under section 23 1 of the Income Tax Assessment Act, offenders dealing with these bottomoftheharbour type companies. Senator Dame Margaret Guilfoyle rightly pointed out that section 231 of the Income Tax Assessment Act - this is obviously one of the sections on which the Australian must have relied in referring to the supposed adequacy of a relevant section in the Act - does not provide an appropriate remedy for this kind of activity. Senator Dame Margaret Guilfoyle stated:
This section applies where the activity complained of involves attempts to avoid assessment of tax. There is grave doubt whether the provision applies to activity designed so that a company cannot pay the tax that it is liable to pay. More significantly, if an offence were committed, it would be an offence committed by the company. In a situation where the company had been stripped of funds a prosecution, therefore, would be pointless.
Under section 231 of the Income Tax Assessment Act the penalty for the fraudulent avoidance of tax is not great. Section 231 has a cardinal defect in that it is framed so as to render the company itself subject to a pecuniary penalty. This is quite pointless when the company is devoid of assets or, in the case of a dividend stripping operation, it has no cash. In any event, I believe it is very doubtful whether the section applies to schemes to prevent collection of tax being expressed in terms that strongly suggest that such schemes are limited to evasion of a tax liability.
The next point is that company law has been given as an example of the adequacy of the existing laws. I will make seven points to dispute this. Firstly, it is regrettable that the State company Acts are not uniform in character. In fact, some States have developed their company law to a much more sophisticated form than many others. Secondly, company law is not always an appropriate vehicle for countering frauds against the Commonwealth. Thirdly, the State company law enforcement officers have not launched, to my knowledge, a single prosecution against people who are known to the Commissioner of Taxation to be involved in these bottom-of-the-harbour type operations. Fourthly, the secrecy provisions of the Income Tax Assessment Act could be an obstacle to the Commissioner of Taxation in communicating information to State company law enforcement officials. Fifthly, company law is restricted to companies and does not deal with trusts. Sixthly, trusts are also a convenient vehicle through which these bottom-of-the-harbour type operations are conducted. Seventhly, as I mentioned, some of the penalties in company law are certainly not severe enough.
The Crimes Act has also been referred to and in some of the representations received section 86 has been mentioned. Section 86 states that it is an offence to conspire with another to defraud the Commonwealth. But the operators of these schemes have this section in mind; they are pretty cunning people. They have already deliberately taken steps to ensure that parties to these straw type companies and trusts have as little knowledge as possible about the operations and the movements from one operator to another to circumvent section 86. We have received advice from the Commonwealth Crown Solicitor, the Acting First Parliamentary Counsel and senior officers of the Attorney-General’s Department, the Department of Business and Consumer Affairs and the Australian Taxation Office, all of whom agree unanimously that the existing laws are not effective and that adequate legal sanctions are not currently available. Therefore, there is a wide range of expert opinion in support of this legislation.
Lastly the Australian cites bankruptcy law as being one of the laws which provide adequate protection or penalty. However, bankruptcy deals with individuals; it does not extend to companies. Whilst individuals go into bankruptcy, companies go into liquidation and therefore company law, not bankruptcy law, covers the operations of companies. I fail to see how bankruptcy law could have a great deal of impact in this area. Even with the enactment of the very necessary Bill that we are debating tonight, which is designed to counter straw companies and straw trusts, innocent parties need not worry unduly. It has to be proved beyond reasonable doubt that the burden is substantial. The penalties for aiding and abetting extend to those who advise.
I believe that the legislation has teeth. It reaches not only the operators of the schemes but also the accountants and lawyers who draw up and sell the schemes at considerable profit, to individuals who buy into them and make substantial tax savings to the detriment of the honest taxpayers of Australia. I therefore have much pleasure in supporting this Bill and hope that it will have a speedy passage through the Senate.
– The Crimes (Taxation Offences) Bill is one of a number of Bills that have been presented in the Senate over the last two or three years dealing with a subversive activity within our society whereby certain persons, for their own greed and personal benefit, are undermining the very revenues which are required by any democratic government to carry out its program. Along with other Opposition senators, I am in full support of the Government’s attempt to deal with this subversive element within our society, an element which is content to take all the benefits of living in a democratic and wealth producing society but which will not make a fair contribution to revenue in order to sustain our democratic and mixed society. I would applaud any move made by the Government to deal with these tax bludgers. Vigorous legislative action is needed. Throughout the community there is a sense of inequity. As has been pointed out by such authorities as Professor Russell Mathews, taxation payments by the rich have become discretionary. Those who are wealthy and able to employ and prevent the talents of the best legal and accounting brains in this country pay such taxation as they deem it proper to pay. They do not abide by the law as promulgated by this Parliament.
The Bill before us attempts to deal with a direct, calculated, fraudulent scheme to evade taxation. Until now, on the whole, we in this chamber have dealt with attempts to avoid taxation or to create a situation in which the liability to pay tax does not appear to arise. We are now dealing with a situation in which the liability having been incurred, a scheme is entered into so that the Commissioner of Taxation has no person or company with sufficient assets to whom he can turn to meet that taxation liability. We are dealing with schemes amounting to many hundreds of millions of dollars. As the Treasurer (Mr Howard) pointed out in his second reading speech, one promoter alone in the recent period has stripped some 2,086 companies, and in 733 of those cases the Commissioner of Taxation found that he was unable to collect tax on taxable incomes aggregating some $128m. Straw companies, straw trusts, as so precisely explained to the Senate by Senator Watson have been the vehicle for massive tax evasion by the wealthy within our community.
As Senator Walsh pointed out, many of the promoters of such schemes put forward a case that they are doing only what has to be done, given what they claim to be high marginal tax rates in Australia. Mr Acting Deputy President, I believe that Senator Walsh dealt very well with that argument, but I say that even if the promoters were correct and even if the income tax rates in this country were high - high in relation, perhaps, to other Organisation for Economic Cooperation and Development countries, although they are not - surely it is obvious to everyone how circular their argument is. Taxation rates have to be high if the revenue constantly is being depleted by the failure of these people to contribute their fair share. Of course, we know that it is the ordinary taxpayer - the pay-as-you-earn taxpayer - the person who cannot normally arrange his affairs to avoid any liability, who really is bearing the incidence of those higher rates of taxation which are complained about. In other words, tax avoidance and tax evasion merely create and exacerbate the problem of high tax rates and do nothing to solve the problem. It will be solved only if, indeed, on the part of those in this country who have great wealth there is a change of attitude towards their obligation as members of this democratic wealth-creating society to contribute to the general welfare and the revenues needed, as I said, to sustain it.
I turn now to the provisions of the Bill. I, like Senator Walsh, have absorbed the tenor but not the detail of the amendments which have been circulated only very recently in the chamber by Senator Dame Margaret Guilfoyle. However, as I read them briefly, they do not appear to modify the intended impact of the Bill on tax evaders. In fact, there is some more precise language employed, as I understand it. I think, when we are dealing with such severe penalties as are contained in this legislation, namely a penalty of up to $50,000 by way of fine or up to five years’ imprisonment, it is incumbent on this legislature to use words as precisely and with the greatest clarity possible. On the understanding, as I have it at the moment, that the amendments do no more than try to achieve that, and in no way go back on the intention of the Treasurer in his second reading speech to deal severely and adequately with this series of tax evasion projects, I will support the amendments.
I now have some comments to make on the Bill itself. As I have indicated, for the first time we have evasion tackled head on by this Government. Evasion, as I have said, is the means by which companies or individuals concerned put themselves in a position in which they do not pay any tax, a liability having been incurred. For example, what happens is that, amongst other things, rather than pay tax on the company’s profits a promoter puts the company in a position in which it has no funds to meet its assessment. This can be done in a number of ways. The money can simply be taken out illegally after fake directors, whose addresses are given as vacant blocks of land, have been appointed in the company and the records destroyed. Of course, a favourite method of destroying those records is by dumping them at the bottom of Sydney Harbour.
It is that direct evasion, that calculated, fraudulent evasion of tax, with which this Bill deals. I believe the fact of evasion, as opposed to avoidance, certainly justifies the severe penalties that I outlined a little earlier. Because the penalties are so severe they cannot be applied retrospectively. That is not to say that, in the opinion of the Australian Labor Party, some attempt ought not to be made by the Government to recover those moneys which ought to have been paid into Treasury by these tax evaders. I think there perhaps has been some misunderstanding, even during the course of the campaign, with my friend Senator Chipp and the Australian Democrats in regard to our position. What we in the Labor Party say most firmly is that there can be no retrospectivity of the imposition of penal sanctions. There can be no imposition of penalties such as these fines or these terms of imprisonment in relation to activity which is not illegal until the royal assent is appended to the Bill we are discussing.
What we are saying is that the Government ought to take a more robust attitude to those persons who have evaded taxation, perhaps amounting to hundreds of millions of dollars, even billions of dollars, maybe over the last, two years, in reliance on the schemes that are dealt with in this Bill. In any case, because there can be no retrospectivity of this legislation insofar as it imposes penalties, I believe it is imperative, as Senator Watson pointed out, that the legislation be given hasty passage. To wait until the autumn session of Parliament, perhaps four months away, would be to allow tax obligations of an order of many hundreds of millions of dollars to be evaded. In the Australian Financial Review this morning there is an article, under the heading ‘Rush to Beat Howard’s Net’ which states:
Yesterday one Sydney operator alone carried through schemes worth $3 million.
Last week the same operator carried through schemes to the value of $5.5 million.
I believe that in a situation like that, given the fact that we cannot make criminal penalties retrospective, it is imperative that this legislation receives royal assent either tomorrow or on Friday. I think it needs to be understood by the bureaucracy - although, of course, in looking at the legislation, no court could take this into account, but taking the normal fact that the bureaucracy will read these debates- that in that period until the time we meet again in autumn, the Taxation Commissioner will move against the most blatant and the most directly calculated of the schemes. In other words, where there may be a borderline case and where there may be some cause for concern that the Bill, despite the amendements, may be drafted in a way which is not as precise as one might wish, one would hope that the Commissioner of Taxation would hold off and give us, as legislators, an opportunity to reflect on the precise wording of the Bill in the light of the submissions we received over the summer recess.
Another aspect of the Bill which needs to be commented on is the fact that it deals specifically with aiders and abettors of such schemes. We have had some cries of concern from the professions involved and from certain promoters, but it needs to be said very firmly indeed that the giving of professional advice is in no way the subject of penalties. It is in no way impugned by this Bill. What the Bill refers to are persons who, directly or indirectly, aids, abets, counsels or procure another person, including a company, to enter into an arrangement or a transaction. In other words, if I go to a lawyer or to an accountant - but not to a promoter - and seek professional advice and he tells me that the scheme I am considering would in fact amount to an evasion of taxation as portrayed by this Bill, then to that point and insofar as the professional is giving his professional advice, he is in no jeopardy whatsoever. He moves into a situation of aiding and abetting only when he counsels or advises that the client enter into such a scheme or a transaction.
That is in entire harmony with the history of the ethics of the legal, and I do not doubt, accountancy professions. Indeed, in accordance with the law - it is clear under the Commonwealth Crimes Act - one may not, without oneself committing an offence, aid or abet the commission of an offence against the law. Any text book on legal ethics makes it quite clear that that is the case. In other words, it is a case of professional misconduct which would enable a profession to strike one off the roll if one aided or abetted in a fraudulent scheme to evade taxation. I am not speaking about avoidance; I am speaking about evasion. Therefore, insofar as the Bill before us is drawn in a way which imperils only those advisers who actually help in entering into a scheme to evade taxation, I believe that the Bill ought to be supported.
Indeed, it is known that this Bill has been put to the Taxation Advisory Committee, although I am not able to quote its comments and I do not believe that there is any public record of them. This committee is comprised of men eminent in both the legal and accountancy professions and the general commercial and trading life of this nation. One thinks of Mr Brunsdon of Price Waterhouse and Co., Mr Webb, Q.C., of Melbourne, Mr Harkin of ICI Australia Ltd–
– Don’t give a guernsey to Webb.
– In any case, eminent members of the accountancy, legal, trading and commercial life of this country who are on the advisory committee have examined this legislation. I think it might be of some assistance if the Minister for Finance (Senator Dame Margaret Guilfoyle) were able to indicate that such a committee, comprising such representatives of the various professions involved, had given its approval to the Bill as it has been drafted. It may allay the fears of those members of the profession who have made submissions to honourable senators. In fact, we know that the accountancy profession has led the legal profession in an attempt to instil a sense of social ethics into the carrying out of its professional duties. I think it was the Institute of Chartered Accountants which promulgated certain guidelines for the conduct of its members in relation to clients seeking advice in the taxation area. I would say that professional advisers acting within the normal ethics of their profession have nothing to fear.
Whilst this Bill is supported by the Opposition, and probably by the whole chamber, the Opposition hopes that it is only a prelude to the much vaunted redrafting of section 260 of the Income Tax Assessment Act. I am not saying that new drafting should supersede every piecemeal attempt to deal with tax avoidance or tax evasion but we must, after all these years, surely have reached a point where we can get beyond the adversary- almost sporting, although a lethal sporting - contest situation in which the Taxation Commissioner and the promoters are pitted against one another in a way which merely means that as the legislature deals with one scheme 10 more spring up, hydraheaded, to replace it. We must get to the situation in which this Parliament is able to say to the general public, and more particularly to the High Court in a simple, concise manner that it regards the evasion or avoidance of taxation - in other words, entering into schemes for the dominant purpose of reducing a fair contribution to the Federal revenue- as anti-social and such that not only should they be disregarded in their impact against the Treasury but also that those who immediately benefit from and those who aid, abet or promote such schemes should incur penalties. Incidentally- I forgot to say this when speaking about the lawyers and accountants - that tax agents need to be looked at in this regard. I refer to those who are registered by the Taxation Commissioner as tax agents. I believe that where it is found that they have been promoting such schemes their registration ought to be taken away from them.
I applaud the Bill. I believe that the range of penalties is only what is needed in the situation. It is my view, and it has been for some time - it is only a personal and idiosyncratic view - that the set penalties could be even more severe. Here is a situation where we know that one promoter has robbed Australia of hundreds of millions of dollars, as I said in the earlier remarks of my speech, needed to sustain the decisions reached by the democratically elected government of this country. I believe that as with treason, such people ought to have the right to a Federal vote taken from them. In other words, where somebody is responsible for such an enormous impact on the ability of the nation to carry out its schemes, I do not see why such a person should have any say in the counsels or the formation of the Government. I believe, to vary the slogan of the American revolution, that one should say: ‘No representation without taxation’. That perhaps is a somewhat extreme view but I think it would make clear to the promoters and the users of such schemes that their behaviour is intolerable in a democratic society, a wealth producing society such as ours. They have to make their fair contribution. I believe that this legislation merits the support that it is receiving around the chamber. I am confident that should the Treasurer early in the autumn session find himself able to bring forward a revamped section 260 it will receive the plaudits of this chamber and the full support of the public of Australia.
– The Australian Democrats support this Bill totally. We commend the Government for bringing it forward and for the ingenuity it has shown in some of the provisions that have been included in it. Radio listeners to this broadcast might be a little puzzled to know why the Senate should take up two hours to pass a Bill on which there is unanimity. Sometimes some of us are puzzled about that also, I guess. Maybe it is because we are on air that it takes a unanimous vote to pass. I believe that the contributions to the debate on this Bill so far from both sides of the chamber have been constructive, useful and helpful. I think if the Government has learnt anything tonight it will know that there is a genuine desire on behalf of all parties represented in this chamber, and I think of all senators, to see tax avoidance and in particular tax evasion attacked on a non-party basis. I would pledge the Australian Democrats to co-operating in any form with the other political parties in this nation to eradicate as far as possible tax avoidance, and tax evasion in particular.
I had some misgiving about the legislation as it was first introduced into the Senate. I must say that I was singularly unimpressed by some of the recently arrived champions of human rights who sent me and other senators lengthy telegrams asking the Senate to delay the passage of this legislation. I do not wish to impugn all of them but I suspect, looking at some of the names of people who are really part of the tax avoidance industry, that if this legislation had been delayed it would have been exactly what they wanted. They could then have got away with their nefarious schemes of tax evasion and tax avoidance. However, I commend the amendments moved by and the speech of the Minister for Finance (Senator Dame Margaret Guilfoyle). The statement is in language that is easily understood. As far as I can see, on a quick reading of it, it allays some of the fears that I had when I read some of the earlier provisions of the original Bill.
Like other senators, the Australian Democrat senators want this legislation passed as soon as possible so that it can become law and, therefore, proclaimed at the earliest opportunity. I was interested in what Senator Tate said about retrospectivity. I want to mention that matter very briefly in a moment. As I understand it, this Bill will become law on royal assent. I would have thought we could have at least gone back in time a little and had it made a law on the date that the intention of the Bill was first announced. I understand it is a matter of a few days only. From what Senator Tate and other honourable senators have said and according to what I read in this morning’s Australian Financial Review, it would have cut several of these operators short in their tracks to the extent of several hundred millions of dollars.
As I said during the election campaign, the Australian Democrats philosophically are opposed to retrospectivity of all legislation. I made it clear then and I make it clear to the Government now - this will have more significance after 30 June next year when the Democrats will hold the balance of power in this chamber - that if the Government wishes to catch tax avoiders or tax evaders and make an announcement on a certain date that a certain scheme will not be countenanced by the Government, even though it might be announced during a parliamentary recess, when that Bill is brought before the Parliament and if the Government wants to back-date that legislation to the date of the original announcement, it will have the total support of the Australian Democrats.
– It does that now.
– No, it does not. This is one occasion when it does not do that.
– On tax avoidance it does.
– On tax avoidance it does. I am referring to tax evasion. I did say, with very great respect, that on this occasion this Bill does not do that even in relation to tax avoidance. If an announcement were made during a parliamentary recess this Parliament could not assist the Government for several months in attacking tax evaders. I am quite sure the Australian Labor Party would support that concept. I am quite sure many Liberal senators would support that concept.
On the question of retrospectivity, I have the utmost sympathy and admiration for the Labor Party in its desire to attack this filthy, dirty tax evasion industry. I am told it is one of the fastest growing industries in the country. I am persuaded that the Treasurer, Mr John Howard, is genuinely concerned about this. I am given to understand confidentially by people whose word I would never doubt that the Treasurer secretly would like to introduce retrospectivity, but his party members stand against that. I accept that. The fact that a man of the conservative nature of John Howard would want to introduce retrospectivity - although he might not agree with that - I think should drive home to us that this man is so frustrated at the inability to catch these people, these robbers and thieves, in the legal way that he is prepared to go against the philosophy of his party and probably against his own philosophy. I have a great admiration and sympathy for the Treasurer in this regard.
However, I must say - I repeat it to the extent of being tedious - that as soon as parliaments introduce retrospective legislation of any kind it is the thin end of the wedge in a door. Once parliaments or politicians have back-dated an Act so that what might have been legal a week or a month ago is made illegal retrospectively, I believe that is a very serious erosion of human rights. I do not believe that there is not good will in this place. I think the remarks of those who have spoken on this tax evasion industry tonight have indicated the agreement of the three political parties, that there is the wit amongst us to come up with some sort of scheme.
I hope I will not embarrass my friend Senator Evans, with whom I have had some discussions on this matter, but his views and work on this question are to be respected and admired. As a result of those discussions I do believe there are avenues where the three parties could get together on a non-party basis and come up with some formula by which tax evaders could meet their match. That could be done by the combined talents of the three political parties. I hope that day would come soon. I repeat Senator Tate’s plea, the plea of Senator Evans - which I have heard on countless occasions - and the plea of Liberal senators that surely to goodness we can come up with some answer to the extraordinary interpretation of section 260 by the High Court of Australia. The Australian Democrats totally support the Bill and wish it a speedy passage.
– Like other speakers, I indicate that I very warmly welcome the Crimes (Taxation Offences) Bill 1980. The Bill deals in an unprecedented way but in a way which has a good chance of being unprecedentedly effective with what is unprecedentedly nauseous conduct. The measures which are proposed are certainly harsh, but they are fully deserved, given the crudity and the immorality of the evasion practices against which they are directed. The Bill has certainly been rushed through this Parliament this week, but I for one am prepared to accept that that degree of haste has been justified in the circumstances. Many of the critics of the Bill, whose correspondence we have all received in recent days, have referred to the indecent haste with which the Bill has been introduced. Nearly all those critics have sought that the Bill be deferred more or less indefinitely for further consultation. If I may say so, the only indecency which is involved in this exercise is that of the operators of these schemes and arrangements; the extent of which indecency has been amply revealed, as several senators have already said tonight, by this morning’s Australian Financial Review, which indicates that millions of dollars worth of these schemes and arrangements have been processed while the Parliament has been talking on this Bill.
I do not want those remarks to be taken as amounting to total adulation for the Government’s performance in all respects for this legislation and that it is not immune from criticism in every respect. In the first place, there has been a very great delay in the introduction of this legislation, even though the problems with which it deals have been well known to the Government for many months at the least and perhaps even longer than that. Certainly they have been the subject of attention from the Opposition inside and outside this Parliament for many months. It was months ago that I raised in this chamber the question of sales tax evasion, especially in the context of new car sales through chains of straw companies. The shadow Treasurer, Ralph Willis, has raised on several occasions, most recently in early October, the operation of this kind of evasion scheme through asset stripping operations of the kind that is specifically the subject of legislative attention here. The Government has, I fear, been dilatory, as it is so often, in dealing with tax avoidance and evasion. We still await after two years or more of promises the emergence of the redrafted section 260 of the Income Tax Assessment Act, not to mention some more effective measures in the whole area of artificial tax avoidance, to which I will refer again at the end of my relatively short remarks.
The second criticism which I think can be directed against the Government and the Treasurer, Mr John Howard, in this matter goes to the drafting of this Bill which is, it must be acknowledged, less precise in its original form than one would have wished, given that it is significant criminal legislation imposing significant penalties. It was never in doubt, let me say, what the interpretation and application of this legislation would be when it came before the courts, given the purpose language with which it is riddled, the manifest and legislative intention - not that that is necessarily a sufficient condition for nationality so far as the High Court of Australia is concerned - of its basic provisions and the criminal standard of proof beyond reasonable doubt which would have had to be applied in any prosecution. But that said, 1 think it must be acknowledged that the amendments which are to be introduced tonight and which have been very recently circulated seem from my reading of them to improve the Bill in these respects. I just add that it is a pity they were not incorporated in the original draft of the Bill that we all saw so as to show up more clearly the special pleading, which it undoubtedly is, the protestations of the legal and accounting professions which we have been receiving in the last few days.
But my main reason for speaking on this Bill is my criticism that the Government simply has not acted with sufficient diligence to exercise and to take advantage of the remedies which are already available to it and were available to it before this Bill was introduced or even contemplated. I am concerned that this Bill will have only a prospective operation. I cannot deny the legitimacy of that operation, given that it is penal legislation. I am very much in favour of retrospective legislation in the context of artificial avoidance schemes but not when penal provisions are an issue of the kind involved in this Bill. But I am concerned, as I said, that, given that this Bill does have only a prospective operation, there will be many promoters and their clients and advisers who will go unpunished for their past criminality if the Government now chooses to rely only upon the weaponry contained in this Bill.
I am not arguing, I repeat, for the retrospective operation of this Bill or of any other penal legislation that might be proposed. What I am arguing for is the application now of the weapons which are already on the statute book and which the Government has long had available to it, including in particular, as examples of that weaponry, section 231 of the Income Tax Assessment Act and also section 86 (1) (e) of the Crimes Act. Perhaps those sections ought to be put on the record. Section 231 ( 1 ) of the Income Tax Assessment Act provides:
Any person who, or any company on whose behalf the public officer, or a director, servant or agent of the company, by any wilful act, default or neglect, or by any fraud, act or contrivance whatever, avoids or attempts to avoid assessment or taxation shall be guilty of an offence.
Penalty: Not less than Fifty dollars, or more than One thousand dollars and, in addition,
I add that this is the crunch of the section– the Court may order the person to pay to the Commissioner a sum not exceeding double the amount of tax that has been avoided or attempted to be avoided.
Perhaps even more pertinently than that, however, is section 86 (1) (e) of the Crimes Act, a provision which I guess is familiar to the extent that it has been the section deployed in the Social Security fraud case in Sydney. I suppose that is no advertisement for any criminal provision, given the shambles into which that case has descended. Nonetheless it has been a long-standing, easily applicable section in less complex situations of the kind involved in the subject matter cf this Bill before the Senate tonight. Secton 86 ( 1 ) (e) reads:
A person who conspires with another person -
to defraud the Commonwealth or a public authority under the Commonwealth, shall be guilty of an indictable offence.
Penalty: Imprisonment for three years.
That is a provision which could and, in my view, should have been applied. I am not impressed, I must say, by the arguments that we have heard from the Treasurer and indeed tonight from Senator Watson, at least in respect of section 231, that these provisions have no application to the kind of crude evasion which is here in issue. There may be some difficulties about the application of section 231, although I think Senator Watson and the Treasurer have overstated them. I do not think there are any significant difficulties now in the path of applying section 86 (1) (e) to get at those promoters and the people associated with them who have perpetrated fraudulent and crude denials of the Commonwealth’s getting the revenue to which it is duly entitled.
-I said, limited application; not no application.
– I understand that, Senator, but I think you are overstating the limitations which are associated with it and that the provision on its terms does have application. I am reinforced in that view by the fact that I have been reliably informed today by an eminently respectable source, who unfortunately 1 am not at liberty to name, that many months ago in Sydney most of the major promoters of these bottom of the harbour schemes and similar evasion practices received opinions from three or four pre-eminent Sydney silks to the effect that under the existing criminal law it had nothing to do with this Bill; it concerned the existing criminal law and in particular the Crimes Act provision to which I have referred these promoters are and have been guilty of serious offences for which they could be prosecuted and gaoled. The promoters in question asked their legal advisers whether they were safe in engaging in these kinds of practices and they were told, 1 am reliably informed, unequivocally that they were not.
The reason, it appears, that they have not been deterred from continuing to engage in these practices, notwithstanding those opinions, is that they know all too well the incapacity of this Government to get its act together, to move quickly and decisively to prosecute and to act to protect the revenue. I suspect that the real problem lies with the Treasury and the Australian Taxation Office in this Government apparatus which between them have a long tradition of aggregating to themselves all legal decisions in the tax area without recourse, without reference, to the specialised expertise which exists in the AttorneyGeneral’s Department. I ask the Minister for Finance (Senator Dame Margaret Guilfoyle) whether she will respond to this question in her reply. Have the Taxation Office and the Treasury sought advice from the AttorneyGeneral’s Department as to what they can do under existing law? Have they given the AttorneyGeneral’s Department the facts and asked the question or have they simply and timidly assumed that nothing can be done without the kind of new detailed legislation that we have before us tonight? I further ask: If they have not taken the step of asking for professional advice in the past, will they do so now in the light of my report to the Senate tonight that I understand on impeccable authority it is the considered opinion of the Sydney Bar and the higher echelons of it I believe the opinion of the Bar is accurate that there is ground for prosecution under existing law?
I would not wish any of these various criticisms to detract from my and the Opposition’s view that the Government nonetheless is basically to be commended for bringing forward this Bill, particularly in the revised terms in which it is now to proceed through this House tonight. We will commend the Government for each and every initiative that it takes and continues to take in this whole scandalous area of avoidance and evasion. I only hope with Senator Chipp and Senator Tate that the Government bites the bullet in a way that it has not done hitherto and that it accepts some of the other kinds of views which the Opposition and now although still with rather much less vigour and precision than I had hoped; we of the Opposition will continue to work on him. Senator Chipp have articulated about the support that the Government can expect from this side of the chamber for a variety of measures in this area which have not yet been introduced. I refer in particular to the enactment at long last of a properly redrafted section 260 and, in addition, to some far more systematic and effective attempt to legislate so as to get away from the capacity of tax avoiders to use blatantly contrived artificial schemes.
I will not get into the argument now I am tempted to do so about the merits and demerits of retrospective operation in this area. That is an argument that can perhaps await a later time. I hope that the Government takes it on board. I hope that the Government comes to acknowledge that there is a principled basis for more far reaching legislation in the avoidance area than it has so far attempted and that it will continue to get the full support of every member in this chamber, including those in the Opposition and the Australian Democrats, if it acts in such a way as to correct once and for all the scandals that have been operating in this area of taxation.
(10.26) - I thank the Senate for the way in which it has dealt with the Crimes (Taxation Offences) Bill which is before us. Many speakers have said that this Bill will introduce into law provisions under which the courts may impose appropriately severe penalties on persons who engage in evasion of income tax or sales tax through the use of straw companies and straw trusts. I believe the provisions of the Bill have been amply canvassed throughout the debate. I will move some amendments to the Bill on behalf of the Government at a later stage.
Some matters on the Bill were raised by honourable senators in the Opposition. I can provide a response from the Government on some of those matters. Senator Walsh raised the question of collection provisions of the Bill and suggested that they could be backdated. He, as did other honourable senators, dealt with the matter of retrospectivity. But as far as the comments of Senator Walsh are concerned, the provisions apply only where a person has been convicted. Senator Walsh stated that the Opposition would not support retrospective application of penal provisions. I believe Senator Tate and Senator Evans expressed the same sentiments. It has to be said that the collection provisions could not be backdated as suggested by Senator Walsh. Senator Walsh also invited me to name the stripping company referred to by the Treasurer (Mr Howard) and to identify its city of operation. On behalf of the Treasurer, I say that the name of that company has not been communicated to the Treasurer by the Commissioner of Taxation, the secrecy provisions of the law being an obstacle in this case. I certainly would not make any public comment on that matter.
Another point referred to by Senator Walsh concerned what had become known as Slutzkin schemes. These are schemes in which company profits on which tax has been paid are effectively enjoyed by shareholders through a sale by them of their shares to a company that then strips the profits out as dividends. The Bill before us deals with something else. It concerns schemes in which the company has not paid the tax on its profits and under which the company is rendered incapable of paying its tax. That represents tax evasion. Penal sanctions are proposed in this Bill.
The Slutzkin schemes are avoidance schemes. Shareholders avoid tax on dividends that otherwise would be paid to them out of tax-paid profits. The Government acknowledges that this is a problem area. However, it must be recognised that a person who sells his or her shares for a price that reflects profits that have been retained in the company does not thereby necessarily engage in dividend stripping. Take for instance ordinary sales of shares cum-dividend. The price in that case reflects underlying profits about to be paid as dividends, but it does not constitute dividend stripping. I assure the Senate that the Government is alive to the problem and, as soon as is practicable, will be giving consideration to what remedies are appropriate to deal with these schemes. Many senators have said that there would be support all around the chamber for measures introduced by the Government to ensure that the scheme of taxation in this country is fair and equitable and that the revenue is protected.
I thank Senator Tate for the speech he made on the Bill. If we reflect on much of what he said we understand the spirit of the Bill that is before us and the need for Bills of this kind to be introduced from time to time. He raised a question with regard to the Taxation Advisory Committee and said that he would be interested to know of its response to the Bill. I am advised that the Treasurer discussed these measures with that Committee. The measures now before the Senate reflect the responses of the Treasurer and the Government to the views and advice of that Committee. I think Senator Evans or Senator Tate said that there are those who believe that even harsher remedies could be undertaken to deal with some of the matters before us.
I thank the Australian Democrats for their support of the Bill. Senator Chipp suggested that the Bill might be made retrospective to when it was introduced. I understand that point and acknowledge his policy approach, but this would still constitute retrospectivity of a penal statute. Senator Chipp has views about that which are probably consistent with this Bill. Abhorrent as is the current rush to strip companies, the Government feels that it cannot make a criminal law retrospective. As I said, I was interested in Senator Evans’s comments with regard to retrospectivity.
Senator Evans commented on the delay by the Government in introducing legislation. He said that the Government has known about these things for some time. I think that is a fair comment. For some time the Government has been very concerned about the things covered by this Bill. There has not been avoidable delay. The Government wanted to be careful to ensure that its legislative response is an appropriate one, not one that would allow another rush of response against it. As Senator Evans said, because the Bill is properly only prospective in operation, the Government ought to apply existing available sanctions against schemes entered into in the past. He mentioned section 231 of the Income Tax Act and section 86 (1) (e) of the Crimes Act. In view of the urgency to have this Bill passed in this session perhaps this is not the place to argue the technical issues raised by these matters. The legal advice before the Government is that section 231 is not applicable to anyone other than the company. Under the Crimes Act conspiracy to defraud is very difficult to sheet home. Again, perhaps further debate and argument could be had on the merits of the use of existing provisions in the two Acts mentioned by Senator Evans. At this stage I will not canvass them in any greater detail than that.
The further question was asked: Has the Taxation Office asked the AttorneyGeneral’s Department for advice about applicability of criminal provisions? I am able to assure the Senate that the Taxation Office has asked the AttorneyGeneral’s Department for advice but in no case has it had advice that successful prosecution could be brought. No doubt the Commissioner of Taxation will continue to ask the legal authorities whether prosecutions might be launched, or whether they would be likely to be successful, under existing law in particular cases that arise. This is a matter of continuing consultation. In all we have done through this Bill and through other Bills introduced by the Treasurer with regard to taxation matters, it is clear that the Government is very serious indeed to ensure that the scheme of tax in this country is applied fairly and equitably. I was very pleased to hear that when measures of this kind are placed before the Senate there will be support to the extent that we have seen tonight.
Question resolved in the affirmative.
Bill read a second time.
In Committee
The Bill.
(10.30) - by leave - I move:
Senator Dame MARGARET GUILFOYLE (Victoria - Minister for Finance) (10.36) - The suggestion of Senator Walsh with regard to clause 2 is not acceptable to the Government. As I said in response to Senator Walsh’s earlier comments, the collection provisions apply only where a person has been convicted, and the Government notes that Senator Walsh would not support retrospective penal legislation.
The other point that was made earlier by Senator Walsh and to which I referred was also commented on by Senator Chipp. Senator Chipp’s suggestion that the Bill might be made retrospective to when the Bill was introduced was a point that we could understand. But we need to say that this would still constitute retrospectively of a penal statute, and as I said at that time, however much we might find abhorrent the current rush to strip companies, the Government still feels that it could not make a criminal law retrospective. 1 think that sentiment was also expressed by Senator Walsh in his earlier comments and it has been expressed by other honourable senators in speeches that they have made. For that reason the suggestion made by Senator Walsh would not be acceptable.
Amendments agreed to.
Bill, as amended, agreed to.
Bill reported with amendments; report adopted.
Bill (on motion by Senator Dame Margaret Guilfoyle) read a third time.
page 325
Debate resumed.
– I say at the outset that the Public Service and Statutory Authorities Amendment Bill has been characterised in a rather sloganeering way as the no workno pay legislation. That has a certain superficial appeal because one can always ask: Why should anybody be paid if he or she does not work? That is a question which might well be directed at Government senators from time to time, for example. But the fact of the matter is that this Bill is not a no workno pay piece of legislation; it is a no work as directed in a number of quite extraordinary circumstancesno pay piece of legislation. It has its origins in the bizarre industrial relations policies of this Government which now have been pursued for some five years and have the character of something of a joke amongst not only Opposition spokesmen but also employee and employer organisations in Australia.
Those policies have their origin in what was described as a key-note speech of the present Prime Minister (Mr Malcolm Fraser) in 1975 when he was Leader of the Opposition and spokesman for the Opposition on industrial relations. I will quote what he said in that speech in 1975 because, unfortunately, it is of great relevance still to the Government’s industrial relations policy. He said in 1975:
Our view is that satisfactory industrial relations depend ultimately on the attitudes of mind of people in industry.
I interpolate that that is a proposition with which most people in industry would agree. He went on to say:
Attitudes of mutual respect, of willingness to listen, to understand, to reason, and discuss in an informed way, are essential. These attitudes cannot be created by any party’s industrial relations policy.
That is an impeccable view with which most practitioners in industrial relations, whether they be union advocates or employer advocates, would agree.
– But he spoke with a forked tongue, senator.
– Yes, and I am about to quote the second prong of the fork. Of course, the Prime Minister was quite right in saying that these attitudes cannot be created by any party’s industrial relations policy. In fact, exactly the converse attitudes have been created by the industrial relations policies of the present Government. The Prime Minister went on to say this is the second prong of the fork, if we are going to get into culinary metaphors:
To achieve a more reasoned industrial climate, the L-NCP believe that rules must be established that carry consequences.
We do not believe that such a crucial area of national lire can be outside the law.
The Prime Minister continued:
There should be no return to old rigid penal clauses.
What the then Opposition was proposing was an industrial relations bureau as a third arm of the conciliation and arbitration legislation which would provide the consequences in the course of industrial disputation and disagreement. That speech, as Senator Mulvihill most clearly divined by that perceptive interjection which he made a few moments ago -
– He saw it in a flash.
– Yes. That speech carried in it the two arms of this Government’s industrial relations policy. The Government’s failure to keep any balance between the two arms of that policy and the fact that the two arms of the policy are inconsistent and indeed almost schizophrenic in their approach to industrial relations issues have bedevilled this Government for five years. If there has ever been one area of chronic failure - of course there have been many such areas of the Fraser Government - it is its total incapacity to understand industrial relations issues, not just because the Government does not listen to the trade unions but because it does not listen to employers who are intimately concerned with the day to day problems of industrial relations and because the attitudes of this Government are totally dictated by a sort of blinkered ideology about some of the issues.
The legislation before the Parliament now - the Public Service and Statutory Authorities Amendment Bill - is a classic example of this situation. Right from the beginning of this legislation - it has not had a very long history - there has been a lack of consultation with the unions concerned, a failure adequately to explain the legislation to the organisations which have been available and to get their reactions to it, and so on. As I said, that is a classic illustration of the sort of dilemma which the Government has got itself into in relation to this matter. This legislation, the so-called no work-no pay legislation - a very attractive sort of proposition superficially - does not deal with that issue at all. What this legislation in fact does is create in relation to the Commonwealth Public Service a total departure from all of the efforts of the Conciliation and Arbitration Commission, for example, to lay down principles in relation to industrial relations in this country over many years.
Quite contrary to the views expressed by Government spokesmen, it is also legislation which is opposed to the principles which have been enunciated in the common law.
It is quite apparent from the second reading speech of the Minister for Aboriginal Affairs (Senator Peter Baume) in relation to this legislation that the Government and its advisers do not understand the situation as it is applied in the common law. I illustrate that point by referring to a piece of legislation which the Government introduced in 1977 called the Commonwealth Employees (Employment Provisions) Bill. It was stated at the time that that legislation would provide the Government with the necessary armoury to deal with industrial relations problems in the Commonwealth Public Service. It has scarcely been used. This is another piece of howling at a full moon which is the general policy of the Government in relation to industrial relations. Every time there is a problem the Government introduces yet more and more legislation. Half the time the Government does not use it; it just makes a fuss about it in this Parliament. That legislation, which not unwarrantedly is described as draconian in industrial relations terms, has been on the books since 1977. Yet here we have another piece of legislation directed to the same sort of purpose in the Parliament at the present time.
One thing about that legislation introduced in 1977 which is applicable today in terms of what the industrial tribunals in this country have said about these problems is very well illustrated in a judgment of Mr Justice Sharp, not only a former distinguished judge of the Conciliation and Arbitration Commission, but also a former distinguished senior public servant. In a case dealing with stand-down clauses heard before the Conciliation and Arbitration Commission, he said:
I do not accept the contention . . . that standing down employees without pay should be an employer’s right if that were the most convenient way of avoiding economic loss. The concept that it was management’s prerogative to use labour at will has had no place in western society Tor many decades.
If Mr Justice Sharp had to rewrite his judgment today he would say that it has had no place in Western society for many decades except in Australia under the Government of Malcolm Fraser, Australia under a parliament with a Liberal-Country Party majority in the Senate. ‘No work - no pay’, Government members shouted from the hustings; look at them sitting over there on the other side of the chamber tonight. Apply that principle to them and see how well it is received as a general proposition. That, of course, is the situation which the industrial tribunals have developed as described in the judgment of Mr Justice Sharp to which I referred. What the legislation is designed to do is not concerned with no work - no pay. In essence it says that if a public servant is given a direction by a superior officer to do something and he declines to do it, according to the very ancient industrial maxim, ‘When I say “Frog”, you jump’, if a person does not jump he is liable to the penalty provisions of this legislation. He is liable to be subject to a declaration which says that he will get no pay from the time the Public Service Board makes a declaration in relation to that situation. That proposal, that concept, has some inherent difficulties. With the greatest respect, if we examine the details of the legislation we will see that it is not only industrially unwise but also inherently stupid. Let me look at the details of the legislation and just take one or two examples which might appeal to and be understood by even Government senators. For example, if a public servant under this legislation is told ‘You drive this parcel from A to B in five minutes’ and in the course of abiding by that direction he breaks numerous traffic laws, it does not matter; he is still subject to a declaration if he declines to do it.
– Can’t you do better than that?
– What is an example which would appeal to Senator MacGibbon? I will try to think of a simple one in a minute for Senator MacGibbon. I thought I was being as simple as I could be in making an illustration of that kind. I will try to think of a simpler one for Senator MacGibbon and Senator Walters. I cannot think of more worthy recipients of an appropriate simple example. I will come back to the details of the legislation because we will be very happy to discuss those with honourable senators opposite. As 1 said, I was just making the simple point that they are inherently silly.
– You are a very simple man.
– It takes one to know one. They are inherently silly provisions, and I will return to them. Let us look at what the Bill is all designed to achieve. What this is all really about is the sort of neanderthal attitude to industrial relations of the so-called Gang of Four which governs this country. I refer to the three National Country Party members, Mr Nixon, Mr Sinclair and Mr Anthony, and to Mr Fraser, the ersatz member of the Country Party. This bill reflects the neanderthal views of that Gang of Four. The tragedy for the Government is that it does not have some informed and intelligent people on its side of the chamber who are capable of examining this legislation critically. The purpose of the legislation, of course, is to try to snap a demoralised Public Service into line. That is what it is about. One does not create a Public Service which is loyal and efficient and which has good morale by continuing to belabour it with this sort of legislation. After all, there is enough on the books already.
Let me give the Senate some examples of the Government’s attempt to solve the sort of situation which it sees itself in. The Public Service will respond to good government. It happens to know that it does not have one at the moment and it will not respond to the sort of leadership it is getting. What does it get instead? Let me give the Senate some examples. In 1977 it got the Commonwealth Employees (Employment Provisions) Act of that year. That made it possible for the Government to stand down, suspend or dismiss without notice, without time limit or without any appeal any Commonwealth employee engaged in industrial action of any kind. That is what happened in 1977. Will some Government spokesman tell me in the course of this evening or tomorrow what problems that has solved in the Australian Public Service? What it has done is to have this country singled out by the International Labour Organisation.
– A socialist organisation.
- Senator MacGibbon says that it is a socialist organisation. That explains the look of horror on his face every day. I suppose the dining room is a socialist organisation. That is what the ILO thinks about that legislation which this Government adopted in 1977. Would a Government senator tell me - they know so much about it - at a later stage in this debate what that has achieved in respect of the stated objectives of this Government of getting the Public Service to work better? What has it achieved? Of course, the answer is nothing. There is a massive silence for the first time from all those interjectors on the other side of the chamber. Secondly, in 1977 the Conciliation and Arbitration Act was amended to provide new grounds for deregistration of Public Service unions taking industrial action. It was amended with a great howl of euphoria. It was going to produce Armageddon, or whatever the Government wanted at that time, in relation to the Public Service. I am not sure whether it was in a state of war then.
– How do you spell hyperbole’?
– There was no hyperbole. That was the way the legislation was introduced.
We were all told that if that sort of legislation were introduced the problems would disappear, and they have not. It was in 1 979, in the course of a dispute regarding that very Act, that the Government sanctioned - that was the word - the unions involved by withdrawing the agreement to allow payroll deductions in the Commonwealth Public Service. We should think of all that stuff and of this legislation in the light of the bible for the Liberal Party on industrial relations, the Prime Minister’s speech of 1975, in which he talked about attitudes of reason and discussion, and so on, as being the most important things in industrial relations. This is the fourth attempt to discipline the Commonwealth Public Service, the other three attempts having failed. This attempt contains its own seeds of destruction in exactly the same way as the other attempts did and as we warned they would. Since then the Government has attempted to pursue its reliance on sanctions in the Public Service in spite of widespread unrest and criticism of the policy. There has been international condemnation of the Fraser Government for the introduction of that legislation in 1977. The Freedom of Association Committee of the governing body of the ILO had this to say:
The Committee … is not convinced that legislation imposing punitive sanctions on public employees on account of their involvement in various forms of industrial action is either necessary or desirable. The Committee has previously pointed out that the imposition of sanctions on public servants on account of their participation in a strike is not conducive to the development of harmonious industrial relations. In view of the foregoing principles and considerations the Committee expresses the hope that the Government will not find it necessary to proclaim the Commonwealth Employees (Employment Provisions) Act 1 977 in its present form.
The Government did find it necessary to proclaim that legislation. The proper perspective in which to view this legislation is that the Government has embarked, by means of these other pieces of legislation and of its general industrial relations policies in the Public Service area, on the creation of an industrial environment which has led to numerous industrial disputes. The Government, having created such disputes by its own policies and by its failure to consult adequately with the sorts of bodies which, to its credit, it set up to consult with organisations of employees, then acts to exacerbate those disputes by adopting repressive legislation to try to deal with the disputes which are the consequences of its own industrial relations policies. That fact is a tragedy for this country and for those employed by the Government, because the Government should set an example for its own employees and has persistently failed to do so. It has persistently failed to do so in relation to legislation of this kind, which the employee organisations in the Commonwealth
Public Service first heard about only in June 1980 not in any spirit of consultation but in a spirit of being informed about the Government’s intention.
I want to deal subsequently with the issues of consultation and so on, but let me just put this to the Senate for Government senators to think about overnight: Would somebody on the Government side think about the proposition of a public servant who under this legislation decides to work to regulation? Of course, that is the Achilles’ heel of the legislation. What if a public servant does that? How will the Government apply this legislation? Will it say that the regulations which governed the employment practices and the way in which the work is done have no effect any longer? Let us think about that overnight and perhaps we will have a refreshing view from a Government senator tomorrow.
Debate interrupted.
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Proposed University at Darwin - The Senate - Newspaper Articles
– Order! It being 1 1 p.m., under sessional order, I put the question:
That the Senate do now adjourn.
– Last week questions were asked and answers given about a proposed university at Darwin. Late last year - I think it was probably August or September - criticisms were made on the adjournment debate about the proposal to build a university in that part of Australia. From reports in the media and the way in which this thought has been introduced, perhaps the public or honourable senators do not appreciate the viewpoint of the people in the north. There is a strong feeling within the community that the time has come for the people of the north in Darwin to prepare for a university. Whilst it is not my intention to discuss the matter now, I wish to incorporate in Hansard a message from the Planning ViceChancellor of the University of the Northern Territory, Dr J. Eedle who has been the Secretary of the Department of Education since the transfer of powers for responsible self-government in the Northern Territory. As honourable senators will see in the document that I will incorporate, the case that has been put forward refers to the long term arguments. It states that suggested alternatives do not meet the needs of the Territory and sets out the main points presented during a debate on the matter in the Northern Territory Legislative Assembly. I seek leave to have the document incorporated in Hansard. .
Leave granted.
The document read as follows -
Re: University of the Northern Territory
. Long Term Arguments
University will complete Territory’s system of education and will increasingly reduce ‘brain drain’ thereby stabilising population and assisting permanent settlement and development of the north.
University will provide a resource for research of particular relevance and benefit to the NT and surrounding region. Currently others are using the NT for research e.g. every Australian university (except Wollongong) is involved in research in the Territory.
University will provide a base for activities of common interest between Australia and countries of south-east Asia.
NT is the only politically-separate area in Australia to lack university sector of post-school education.
The special needs of the Aboriginal component of the NT population - 25% of the Territory’s total population.
Reasons for establishing university now
Will re-inforce the factors which led to granting of self-government e.g. Commonwealth’s policies on decentralisation.
Current and projected growth rate of population with concomitant rising level of needs and expectations. By 1995 Territory’s population expected to increase by 67%. Projected national average increase is 18%.
The need to establish a focus for research to assist the present social and economic development of the Territory.
Inability of institutions elsewhere to provide adequate numbers of suitably qualified personnel for the NT.
The lead-in time required for a university to come to maturity.
Suggested alternatives do not meet the needs of the Territory
Expand Darwin Community College - will not attract students who wish to undertake university studies.
Support for external studies programmes offered by universities elsewhere - courses are not oriented towards the Territory nor will this suggestion meet the needs of those with ability and opportunity to enrol full-time.
Supplementary allowances for students to enrol elsewhere will continue to encourage drift away from NT and will perpetuate Territory’s disadvantage compared with all other states wherein bulk of students attend universities within home states.
Recruit highly-qualified manpower from interstate - not always possible to recruit sufficient nor do those attracted identify in the long-term with the Territory.
Establish a university in ten or twenty years - if the need will be demonstrably clear in ten or twenty years, the university must be commenced now. James Cook University started twenty years ago and is now regarded as an established and respectable institution.
Northern Territory Legislative Assembly Debate- main points presented by opposition
Not opposed to a university but questioned order of priority and speculated on cost and referred to cut backs in expenditure on universities elsewhere and cut backs at Darwin Community College in trade and technical area.
Proposed that a select committee be appointed to inquire into the establishment of a university.
EEDLE Planning Vice Chancellor, University of the NT
– Thank you, Mr President. I draw the attention of honourable senators to this document. If necessary, after a study has been made of it, perhaps there will be a debate based on the information that is now available and not on hearsay.
– I will not detain the Senate. I intended to make a personal explanation tomorrow but I thought I might save time tomorrow by dealing with it now. I refer to an article in the unlikely vehicle of the Australian Financial Review which from my experience is normally an accurate journal - I do not always agree with what it says but it is usually accurate - and a journalist, Miss Judith Hoare, whom I have always found to be a most competent and excellent journalist. By somebody’s fault I was misquoted in the edition which appeared on Friday, 28 November. The article stated:
The Leader of the Australian Democrats, Senator Chipp, told the Financial Review yesterday that he favoured the ownership by one group of a Sydney and Melbourne television station.
The article related to the proposed changes to the Broadcasting and Television Act. I said no such thing. I said that I was not persuaded that it might not be a good thing for networking. In other words for one group to own two channels in two different cities may well be in the interests of viewers and advertisers and in the public interest. For example, I do not think we could watch that splendid program Sixty Minutes if it were limited to an outlet on only one of Packer’s stations. I am not for or against the proposal. All I said to the Australian Financial Review was that I had an open mind on the subject and was not totally persuaded that one person should be restricted to one television station. The article continued:
Noting that the Australian Broadcasting Tribunal had said in the ATV 10 case that Mr Murdoch’s News Group control of the two stations would be against the ‘public interest’ Senator Chipp argued that if this argument was taken to its conclusion, the public interest could be ‘shattered’.
Again, I said no such thing. What I did say was that if the statement by the Tribunal that it was wrong for one person to own a station in Sydney and in Melbourne was taken to its logical conclusion, then the Fairfax and Packer group’s control of both stations could also be shattered and that could bring chaos to the industry. I made no firm statement but said that there were dangers in the light of this decision. The article continued:
He said -
That is me - if the Government was proposing to remove the public interest provisions, the Australian Democrats ‘would not be saying they were absolutely wrong’.
The Australian Democrats say that it would be absolutely wrong if public interest provisions were removed. I am confused as to where Miss Hoare or the Australian Financial Review got that statement. The report goes on:
Senator Chipp said there may be a need ‘to look at the legislation’ but added ‘we are not blindly saying the public interests provisions ought not to be removed’.
Contrary to the finding ofthe ABT, Senator Chipp believes that control of a Sydney-Melbourne television network is in the public interest, providing a better deal for advertisers and the public.
Again, I said that it may well be, and I did not have the faintest idea. I am glad that the Government has dropped the proposal for this session. I believe that when this vexed question does come for consideration by the Parliament, and particularly the Senate, we might adopt a bipartisan attitude. I very firmly believe that the public interest provision should remain, and so do the other Democrats.
– Thousands of democratic parents will be happier for having heard that from you. They have been very worried about it.
– Thank you, Senator Button. I have had a bit of mail about it, and that is why I rose tonight to make this personal explanation. I am not persuaded that the determination of whether the public interest is involved should be in the hands of an outside tribunal. What I am putting to the Senate for its consideration, and will be putting again, is whether that is too big a decision to be left to an outside body and whether it should be a decision of the Parliament. The matter of public interest in the broadcasting area strikes at the root of one of our freedoms. I should have thought that the protection of that freedom should not be left to the whims or vagaries of one person or one tribunal but rather to the Parliament itself.
– I rise to put the record straight about something which will appear in today’s Hansard. Whilst I might not be entirely accurate when my comments now are compared with what appears tomorrow in Hansard, my outline of what happened will be reasonably accurate. This afternoon Senator Rocher asked the Minister for Veterans’ Affairs (Senator Messner) a question without notice. The reply prompted an interjection from my colleague Senator Keeffe, who said: ‘Another Dorothy Dixer’. The Minister for Veterans’ Affairs denied that it was such a question and said that he was extraordinarily well briefed. After the question was answered, Senator McLaren requested that the paper from which the Minister quoted be tabled, which subsequently was done. On examination, I see that at the top of the paper appear the words ‘Senator Rocher’, and then the word ‘answer’. The answer given by the Minister to Senator Rocher’s question then appears. If honourable senators look at that matter, I think they will agree that my colleague Senator Keeffe was correct when he interjected. ‘Another Dorothy Dixer’.
– I would like to take a few minutes of the Senate’s time to put on record a correction of one of those occasions when even the most careful and accurate of journalists can sometimes be wrong. Whilst 1 do not wish to attack the author, I do wish to put him right. A Laurie Oakes report was published in the Daily Mirror of Tuesday, 25 November. Knowing as we do that Laurie Oakes’s articles are reprinted in a large number of papers, I thought that it would be appropriate if there were a correction of part of his article entitled ‘How Labor Fooled a Novice Liberal’, underneath which it is the heading, ‘The trials of being a new boy in Parliament’. After telling a story - I am not quite sure how accurate it is, but it is just a story - the article asserts:
It was to avoid that kind of embarrassment that the Speaker of the House of Representatives, Sir Billy Snedden, last week arranged a seminar for the new MPs elected at the October 1 8 election.
At the seminar, the first of its kind—
I wish to repeat and to underline those words ‘the first of its kind’ - the new boys (and girls) were introduced to all the senior officers who run the day-to-day affairs of the Parliament .
They were also given a thorough grounding in parliamentary procedures, and a guided tour of all the nooks and crannies in Parliament House so that they will not gel lost on the way to take part in divisions.
It was a good idea - something that was long overdue. The class of 1980 starts its first parliamentary session today in a much better position.
I do not wish to suggest that the House of Representatives may have been negligent in the past, but I wish that somebody writing a story like that which commences with a story about the Senate would at least be accurate and ensure that he approaches the matter with fact. The fact is that 1 remember that shortly after I was elected in 1967 I came here and had an introduction into what the Senate was all about. I was taken through the various parts of the Senate chamber, the Senate offices, the records office, and to the Parliamentary Library. In fact my colleague, Senator Young, and I spent a day and a bit being taught what the Senate was all about - at least where to find it. That was in early 1968. As I understand it, the Senate has always endeavoured to ensure that new senators were given an introduction to what it was all about. The recommendation that was made in 1975 by the Royal Commission on Australian Government Administration, that action could be taken to acquaint new and inexperienced members of Parliament with the organisation of government and its procedures through the preparation of a guide for new parliamentarians showing procedures for obtaining information from the bureaucracy, the library services, et cetera, and through courses in the activity of government, was not really necessary for the average senator.
In fact, in 1979 when the whole process of government was getting around to responding to that recommendation of the 1975 report of the Royal Commission, it was in fact identified that certain services were made available; some to senators and some to the members of the House of Representatives. Bibles were presented. One might think that that would be very appropriate, would provide for their greatest need, and that that is all they would need. But the recommendation that was made to the Government by a committee said in relation to the Senate that it is not considered that any improvement to the present system was required. Yet approximately 1 8 months later an article is written in which it is suggested that, for the first time ever, members of the Parliament have been given some idea, some grounding, some introduction, to avoid the trials of being a new boy in the Parliament. I want simply to put on record that you, Mr President, the Senate officers and various other people over the years have, I believe, conducted an introductory course for new senators to ensure that they do not fall into the traps which are outlined in Mr Oakes’s article, lt is one of those things which, if not corrected, can be repeated time and again - the claim that never has it happened.
– Who cares?
– I know that members of the Australian Labor Party probably do not care.
– Don’t repeat your lies of the election campaign, which you are about to do.
– Order!
– I withdraw.
– I understand that there have been organised introductions for quite some time and that they have been successful. I just wanted to put that on record and, Mr President, I thank you for the opportunity.
– In view of Senator Rae’s remarks, I would like to put the record straight insofar as 1 am concerned. I became a member of the Parliament in 1971 and I did not have the privilege that Senator Rae said he had in 1967 of being shown around the Parliament. I certainly had a short discussion with the Clerk of the Senate, but that was all. I had to find my own way around the place. Some of my colleagues have said by way of interjection that they were not shown around the Parliament. It may be that the people in this Parliament thought only members of the Liberal Party needed some education on how the Parliament worked and that the members of the Australian Labor Party would have found out for themselves long before they came here what they were coming to and what to expect.
– I wish to comment on the remarks of Senator Colston, which I found somewhat surprising. He referred to the fact that I had tabled some information regarding a question asked by Senator Rocher. I want to indicate that in no way was that a reply to any Dorothy Dix question. As I understand it, a Dorothy Dix question is a question which is promoted by a Minister and is forthcoming from a member of his own party. In no sense was that the kind of question asked. I was given notice of the general ambit of Senator Rocher’s question with regard to cost recovery and that information was provided for me by the Department of Transport.
– I wish to respond to the matter raised by Senator Rae. I thank the honourable senator for referring to this matter. It is true that in July 1978 I had an orientation course for the senators from both sides who came to the Parliament in August. Next year I propose to have a similar orientation course for the 13 senators coming in after 1 July.
Question resolved in the affirmative.
Senate adjourned at 1 1.18 p.m.
page 331
The following papers were presented, pursuant to statute:
Continental Shelf (Living Natural Resources) ActRegulations Statutory Rules 1980 No. 337.
Lands Acquisition Act - Statements (S) by the Minister describing land acquired by agreement under sub-section 7 ( I ) of the Act, for specified public purposes.
States Grants (Petroleum Products) Act - Amendment of the Schedules to the subsidy scheme in relation to the States of New South Wales and Victoria, dated 27 November 1 980.
page 332
The following answers to questions were circulated:
asked the Minister representing the Minister for Health, upon notice, on 25 November 1980:
– The Minister for Health has provided the following answer to the honourable senator’s question:
I refer the honourable senator to my answer to Question No. 3181 (Hansard, 18 and 19 September 1980, pages 1388-9).
asked the Minister representing the Minister for Health, upon notice, on 25 November 1980:
Which preparatory soaps, cosmetics, shampoos or medicaments sold in Australia contain hexachlorophane, and in what proportions.
– The Minister for Health has provided the following answer to the honourable senator’s question:
I refer the honourable senator to my answer to Question No. 2758 (Hansard, 18 and 19 September 1980, page 1386).
Lung Cancer: Workers at Radium Hill
– On 26 November 1980 (Hansard, page 35) Senator Cavanagh asked me, as Minister representing the Minister for Health, a question without notice concerning the mortality rate from lung cancer of workers at Radium Hill.
The Minister for Health has provided the following information:
The research to which the honourable senator referred was done by the SA Health Commission and was not funded by the Commonwealth Government.
I understand that whilst the study has not been discontinued there has been a change of plan because a large proportion of the employees involved have remained untraced. (Of the 300 who were the subject of intensive tracing only about 65 per cent had been located).
I further understand that a low level search is continuing and that the SA Health Commission is seeking funds for an intensive tracing of the remaining population. My Department has not been approached in this regard.
Cite as: Australia, Senate, Debates, 3 December 1980, viewed 22 October 2017, <http://historichansard.net/senate/1980/19801203_senate_32_s87/>.