31st Parliament · 1st Session
Mr SPEAKER (Rt Hon. Sir Billy Snedden) took the chair at 2. 1 5 p.m., and read prayers.
– Petitions have been lodged for presentation as follows and copies will be referred to the appropriate Ministers:
To the Honourable the Speaker and Members of Parliament assembled in the House of Representatives, Canberra the humble petition of the undersigned members of organisations listed below and citizens of Australia respectfully showeth:
That the thorough nationwide investigations by the Working Party highlighted the need to establish the National Women ‘s Advisory Council.
That we believe the Council consistently and democratically demonstrates its wide representation of the interests of all Australian women, as shown by the Draft Plan of Action for the 1980 National Conference to be held in Canberra in preparation for Australia’s participation in the United Nations Decade for Women World Conference in Denmark, July 1980.
Your petitioners therefore humbly pray that the Parliament will continue its support of the National Women’s Advisory Council and its recommendations.
And your petitioners as in duty bound will ever pray. by Mr Aldred, Mr Falconer, Mr Holding, Mr Roger Johnston and Mr Barry Jones.
To the Honourable the Speaker and Members of the House of Representatives 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 of the 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 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, debated and voted on by their Parliamentary representative without intervention and interference by an unrepresentative ‘Advisory Council’.
And your petitioners as in duty bound will ever pray. by Mr Burns, Mr Roger Johnston, Mr Lloyd and Mr Lusher.
To the Honourable the Speaker and Members of the House of Representatives assembled. The petition of the undersigned citizens of Australia respectfully showeth: that the price of LPG in Victoria has risen by $80 per tonne since November 1978 as a result of Federal Government policy thereby causing hardship to country consumers using LPG for cooking, heating and hot water and to decentralized industries using LPG for industrial purposes.
Your petitioners therefore pray:
that pending the establishment of a fair price in accordance with Clause 2 above and to provide some immediate relief to country consumers:
And your petitioners as in d uty bound will ever pray. byMrBourchier.
To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled
The petition of the undersigned citizens of Australia respectfully showeth that equal opportunity regarding Human Rights and fundamental freedoms is not enjoyed by all Australians irrespective of the race, colour, or ethnic origin of certain groups, particularly Aboriginal and Islander groups.
That the Human Rights Bill and the Racial Discrimination Amendment Bill do not advance the causes of Australia’s oppressed Aboriginal and Islanders.
Your petitioners therefore humbly pray that Parliament affirms:
And your petitioners as in duty bound will ever pray. by Dr Everingham.
To the Honourable the Speaker and Members of the House of Representatives of the Australian Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth:
Dismay at the Government’s attitude and disregard for we ex Members of the Armed Forces. That the recommendations of the Jess Committee of 1972 has not been implemented in full. That the contents of the Bonnett Report have not been made public. That monies reported surplus in the Fund as at 28 April, 1976, are now declared non existent.
Accordingly, your petitioners call upon their legislators to:
And your petitioners as in duty bound will ever pray. by Mr Hayden.
To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The petition of the undersigned citizens of Australia respectfully showeth:
That as it is clear that unemployment is a long term problem in Australia the Government should extend to the unemployed the same assistance as is given to any other disadvantaged member of the community. There is an urgent need to alleviate the financial hardship and emotional stress that the unemployed are suffering.
Your petitioners therefore pray:
And your petitioners as in duty bound will ever pray. by Mr Charles Jones.
To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled the petition of the undersigned citizens of Australia respectfully showeth:
That there is an urgent need to ensure that the living standard of pensioners will not decline, as indeed, the present level of cash benefits in real terms requires upward adjustment beyond indexation related to the movement of the Consumer Price Index, by this and other means your petitioners urge that action be taken to:
Taxation relief for pensioners and others on low incomes by:
And your petitioners as in duty bound will ever pray. by Mr Leo McLeay.
To the Honourable Speaker and Members of the House of Representatives in Parliament assembled. The petition of the undersigned citizens of Australia respectfully showeth:
We express our grave concern at the terms of the Human Rights Commission Bill 1979 and the Racial Discrimination Amendment Bill 1979.
We note that strong opposition to the form of these Bills was expressed by the majority of our elected Senators. We note that the Bills only escaped amendment because a number of our elected Senators who opposed the Bills could not be in the chamber when the crucial votes were taken.
We note that the Human Rights Commission Bill is totally inadequate for a number of reasons which include the fact that the Bill does not permit the Commission to investigate breaches of human rights which occur under State Law, e.g. Queensland or Western Australia. Further there is no power to prosecute violations of human rights.
We note that the Racial Discrimination Amendment Bill 1 979 is also gravely deficient in a number of respects including the fact that the Commissioner for Community Relations loses his independence, powers and staff.
Your petitions therefore humbly pray that the Legislature will listen to the voices of the Aboriginal and Ethnic communities, women and other disadvantaged groups, who are opposing these Bills in their present form.
We call upon the Legislature to ratify the International Convenant on Civil and Political Rights. But most importantly in the name of Democracy we call upon the Legislature to send the proposed legislation back to the Senate so that all our elected Senators are able to be present and vote on the legislation.
And your petitioners as in duty bound will ever pray. by Mr Les McMahon.
To the Honourable the Speaker and Members of the House of Representatives of the Australian Parliament assembled. The petition of certain citizens of NSW respectfully showeth:
Dismay at the reduction in the total expenditure on education proposed for 1 980 and in particular to Government Schools.
Government Schools bear the burden of these cuts, 1 1.2 per cent while non-Government schools will receive an increase of 3.4 per cent
We call on the Government to again examine the proposals as set out in the guidelines for Education expenditure 1980 and to immediately restore and increase substantially in real terms the allocation of funds for education expenditure in 1 980 to Government schools.
And your petitioners as in duty bound will ever pray. by Mr Cadman.
To the Right Honourable Speaker and Members of the House of Representatives in Parliament assembled. This humble petition of the sportsmen and women and citizens of Australia respectively showeth that:
Valuing the Olympic movement as an historic expression of all that is worthwhile in human endeavour and conscious of the important role competitive sport plays in maintaining health and the spirit of achievement in everyday life.
Honouring the high principles consistently pursued by the International Games Administration of keeping the movement free from religious, racial and political considerations.
Realising that the Olympic movement owes its resilience and very existence to the citizens of the nations from whom spring the participants in the contest and that the survival of this movement is the cherished hope of all communities.
We the undersigned sportsmen and women and citizens of the Commonwealth of Australia by this humble petition respectively pray that the Australian government do all in its power to ensure the participation of a full Australian contingent in the XXII Olympic Games to be held in Moscow, USSR, from 1 9th July to 3rd August 1 980.
And your petitioners as in duty bound will ever pray. by Mr West.
– I inform the House that the Minister for Education (Mr Fife) begins a period of ministerial leave later today. The Minister for Post and Telecommunications (Mr Staley) will act as Minister for Education until Mr Fife’s return on 12 March. Mr Speaker, I might say that I believe that all members of this House would want us to give Mr Fife our good wishes on the leave he will be taking over the next few days because he is travelling to Vancouver to attend the marriage of his eldest son.
Honourable members- Hear, hear!
– Did the Prime Minister, during his years as Minister for the Army and Minister for Defence, receive information through our technical co-operation program with the United States about the possible effects on
Australian troops in Vietnam of the use of agent orange and other defoliants? Did he at any time seek such information? Is he aware now of the widespread concern arising from the difficulties so many veterans are having in securing proper investigation of their claims and of serious health problems caused by these defoliants? Is he concerned also at the criticism levelled by the Vietnam Veterans Action Association at the nature of the examination of its claims proposed by the Government last week? Will the Prime Minister give a firm assurance that these claims will be investigated fully by proper independent means as a matter of urgency and that any resulting compensation cases will be dealt with promptly?
– I was Minister for the Army a good number of years ago and I cannot recollect any information being given to me which would have led to the kind of concern that has become evident in more recent times. I think that it ought to be said that I am quite certain that members of the Army, of the Department of Defence, indeed anyone in Australia, would have been concerned if they had been told at the time that there were possibilities of serious effects as a result of the use of a particular material. I am sure that the honourable gentleman will accept that assurance.
My colleague, the Minister for Veterans’ Affairs, is handling this matter with a very real degree of sensitivity and in very close consultation with the Returned Services League and with others who have a very real concern for the welfare of returned servicemen, from whatever war or conflict they may have come. I am quite certain that the House may rest assured that the matters will be dealt with sensitively and with full and complete justice, as is traditional in all repatriation matters.
-I ask the Minister for Home Affairs and Minister for the Capital Territory whether, in view of increasing concern throughout many nations about the widespread use of casinos by organised crime for washing black money and for other illicit purposes, he will assure this House that the Federal Government does not intend to license casinos in any area for which it has direct administrative responsibility.
– It is a fact that recently the Government decided, in relation to certain applications, that it would not permit a casino to be licensed in the Australian Capital Territory. I am not aware of any other area of Commonwealth responsibility where casinos are likely to emerge, so I cannot say any more than that. However, I would say that, notwithstanding the fact that the Government made that decision about a casino, in my capacity as Minister for the Capital Territory I will be seeking the construction of a substantial international hotel, combined with a convention centre, which is sorely needed in the national capital. Negotiations are currently going on towards that end. That complex will not, of course, include a casino- which may have attracted some others. I cannot assist the honourable member in relation to the effects of casinos because I have had no personal experience of them. On the other hand, it may well be that, if such casinos as do exist are not properly regulated, they can be used for the purposes to which the honourable member has referred. Needless to say, that issue has now become academic insofar as the Commonwealth is concerned.
-I preface my question to the Minister for Health by reminding him of the statement made by his predecessor on 29 May of last year that the commission of inquiry into the efficiency and administration of hospitals would present an interim report by February 1980. I ask: Has the Minister received that report? Has the commission begun hearings on the submissions? Are the commissioners who were appointed last year continuing so to act, or has he received any resignations? Is this a conscious attempt by the Government to delay the presentation of the final report, which is due before the elections are held, as was suggested be done in the famous Eggleton memorandum?
– I cannot confirm or deny whether the statement to which the honourable member refers is correctly attributed to my colleague, the former Minister for Health. My understanding is that the commission of inquiry is due to present an interim report by the end of next June. I believe that that undertaking will be fufilled. As I understand it, public hearings are to commence in Sydney tomorrow. I believe that the Commission is pursuing its work as expeditiously as possible.
– Has the Minister for Transport seen an article in this morning’s Press which suggests that Trans-Australia Airlines is seeking his approval for new cheap air fares in Australia for every day of the year? Has the Minister also seen a large scale advertisement that has appeared in every paper in Australia in which TAA claims to be selling tickets for these fares subject to Government approval? Has the Minister given his approval to this august company?
– Yesterday I received an application from TAA for an extension of the super APEX fare arrangement for travellers on all the domestic trunk routes, which would be a tremendous advantage to people generally, particularly for those people travelling during school holidays. I think it is a very interesting initiative and one that is certainly worthy of support. However, I am checking at the moment to ascertain whether proper consultation has taken place between the two airlines under the provisions of the existing two-airlines arrangement. I am not suggesting for one moment that the rationalisation provisions of the two-airlines agreement is a desirable feature of the agreement. In fact, it is one of the areas I am seeking to have omitted from a new two-airlines agreement for this country. These matters have to be dealt with in accordance with the law at the time. So I have asked my Department to take all the steps that are necessary to see that urgent consultations are proceeded with to ensure that the application is formally correct so that I can give adequate and due consideration to what is a very good proposal.
-I direct a question to the Prime Minister. I refer to the Prime Minister’s statement in this House last Wednesday about wool from his property in Victoria being shipped to the Soviet Union. The Prime Minister will recall telling the House that he had not sold any wool to the Soviet Union since the Soviet Union invaded Afghanistan. I ask him: Are there bales of wool from his property in store at Portland awaiting shipment to the Soviet Union? Were the brands on any of those bales changed at the weekend, and, if so, why and with whose authority?
– I thought that by now the honourable gentleman would know the facts and the irrelevance of that kind of question. If the honourable gentleman wants to pursue it, let me say only that my wool was sold on 22 November last year, which is significantly before the invasion began. It was sold, as wool growers wool is sold in this country, by open auction and any one of 100 or 200 people bid for it. No grower knows where his wool goes. That is the plain, open fact. It is also worth noting that in relation to this matter the Australian Labor Party and the Leader of the Opposition had adopted the view that boycotts, especially of farm products, would be useless and ineffective. He knows perfectly well that the only reason the Labor Party has taken the view that it has about trade boycotts is that it thinks it gives it a bat with which to belt me over the head and that the Australian Labor Party had earlier said that it believed in an effective boycott of the Olympic Games. I believe that the wider Australian public is fed up and tired of the personality politics coming from the Australian Labor Party. The person who changed the brands on that particular wool -
– I rise to order. Under Standing Orders replies to questions have to be relevant to the questions. The question asked of the Prime Minister was whether the brands on any bales were changed at the weekend -
-The honourable member for Newcastle will resume his seat. I heard the question. The reply is relevant.
– I did see reports that brands on some wool, which obviously was not my wool because my wool had been sold and somebody else therefore owned it, had in fact been altered over last weekend. I am told that somebody within the store had done that, as I understand it, because that person thought it was going to help somebody; I do not know who. But is was done on the basis that he too was fed up with the Australian Labor Party and the kind of politics it seeks to introduce into this Parliament.
-Is the Minister for Trade and Resources aware of the important role played by the beef industry in the profitability of the whole rural community? Can the Minister inform me whether Austrafia can expect to maintain or to improve its access to world markets in the 1980s?
– Although the size of the national herd has been reduced in the last few years by the heavy slaughtering of female stock, the market prospects for the cattle industry are indeed very sound. The United States has been our principal market and there are no restrictions operating on that market at the moment. We are making record sales to Japan. Under the multilateral trade negotiations we now have further access to the European Economic Community market and assured access to the Canadian market. Last year was a record year for the Australian cattle industry; almost $1.5 billion worth of exports of Australian meat took place. Whilst the volume of our exports may be down slightly this year, it is anticipated that the overall income will be even higher than that of last year. So, indeed, Australia’s prospects for being able to dispose of its exports are the best they have been for many years.
-Does the Prime Minister agree with the assessments by the Chief of Air Staff and the Secretary of the Department of Defence of the rundown in defence capability under his Government? In view of his frequently asserted awareness of the threat from the Soviet Union over so many years, will the Prime Minister indicate why the program set out in the 1 976 defence White Paper has been abandoned by his Government? Do the high level assessments by the Chief of Air Staff and the Secretary of the Department of Defence indicate that the Air Force is incapable of carrying out the program which the Prime Minister announced to this House three weeks ago? Will the Government now reconsider the latest program in a realistic light and make a new statement to the House on the Government’s actual defence policy and the capabilities of the Australian Defence Force of carrying out those policies?
-The statement I made to the House is accurate. That program I announced will be carried out. I think that we need to understand that over a number of years there have been periods of restraint in defence expenditure. The Minister for Defence has never tried to hide the fact that there have been difficulties in budgeting, as we know, to overcome the economic problems created by earlier times. That has involved restraint in defence expenditure as well as in other areas of expenditure. Having said that, it is worth noting, I think, that we have lifted quite significantly over a fouryear period the funds within the total defence vote that go to capital equipment. That is important in maintaining and improving the viability and capacity of the forces.
I think it is worth noting that in 1973-74, 1974-75 and 1975-76, 7.3 per cent, 5.7 per cent and 8.3 per cent of the defence vote went on capital equipment. Over the last four years the figures have been 12.8 per cent, 13.2 per cent, 15.5 per cent and 15.4 per cent. In other words, we are starting to rebuild the capital structure of the Defence Force. In the statement I indicated that the intention is to lift that figure to about 25 per cent of the defence vote. In the earlier three years that I have mentioned, at constant prices the actual expenditure on capital equipment totalled $563m. In the four years that this Government has been in office- admittedly there is a fourth year as opposed to three yearsexpenditure on capital equipment has totalled $ 1,462m. I think that the honourable gentleman who asked the question needs to be a little sensitive to the position in which his party left the defences of this country in 1 975.
– I ask the Prime Minister What is the Australian Government’s reaction to the outcome of the elections in ZimbabweRhodesia?
-The Government plainly congratulates Mr Mugabe on winning a very dear cut victory in Zimbabwe. It is a really remarkable event that in respect of a country that has been at war for 15 years, where parties have been fighting so bitterly and with such hatred for so long, all the observer reports that I have seen from Australia and other sources to this point have indicated that, despite difficulties, the elections were in fact free and fair. For Zimbabwe to be able to resolve its problems in that way, through elections that have been judged free and fair, is a remarkable and notable achievement. Much credit needs to go to the internal parties in Rhodesia itself. Credit should go to Mr Mugabe, Mr Nkomo, Bishop Muzorewa, Mr Ian Smith, General Walls, to the Governor and to the British who have had responsibility for Rhodesia over a very long while. I believe that we all owe our thanks to Prime Minister Thatcher and Lord Carrington for the way the Lancaster House agreements were consummated and for the way they were managed over some difficult days. I believe also that the Commonwealth Heads of Government Meeting at Lusaka was instrumental in beginning the process which enabled these settlements to be made.
The role of the monitoring force has been significant and important. It was a substantial element in enabling the parties at Lancaster House to come to an agreement. The events of the last six months have underlined the relevance of the Commonwealth itself. Before the Lusaka meeting there were many people of many countries who tended to say that the problems of Rhodesia would be too much for the Commonwealth, that it would split apart and go in different ways. That did not happen. The Commonwealth accepted the challenge, the responsibilities and the enormous difficulties that went with them and helped to find and direct a way through the problems. The role of the Commonwealth Secretariat obviously has been much involved also in a great deal of this. Credit should go to the SecretaryGeneral. Because of the outcome of the elections some people have expressed concern for the future and stability of the Government in Rhodesia. I would suggest that no matter who had won the majority of seats in that country, because of the history of the past, there would be some who would express concerns and fears for the future.
I believe also that what has happened over the last six months has started to lay a fairly solid foundation of co-operation, of seeking to resolve differences by negotiation and reconciliation rather than by killing, intimidation, maiming and fighting. Therefore, as each day passes with a further success in the final resolution of the problems, there is greater confidence that the future will be assured and that it will be peaceful.
Mr Mugabe’s statements of recent times should do much to encourage the people within Rhodesia and also the wider world community. He has spoken of the need for peace and stability, and includes all the parties within Zimbabwe. He has spoken of the need to protect fundamental rights and freedoms of all the people of Zimbabwe. He has spoken of his determination to uphold the Constitution of Zimbabwe. I understand that General Walls is to be appointed to co-ordinate the development of the defence forces. I would have thought that that in itself would give a great deal of confidence to many people within Rhodesia. I am advisedand it is worth noting- that a battalion of Mr Nkomo ‘s forces and a battalion of Mr Mugabe’s forces were integrated into the Rhodesian forces before polling day. That in itself was a mark of the confidence and progress that had been made, not just in the process of moving to ari election and a result but also in the confidence that was slowly being established between people. Whatever the Constitution says and whatever the results to this point, unless there can be confidence between people and general goodwill to maintain peace in southern Africa and in Zimbabwe in particular, it will not prevail.
Mr Mugabe has spoken also of the need for coexistence with South Africa. He has spoken of the common interest of people in Zimbabwe without any difference between race, colour or creed. So the objectives that Mr Mugabe has outlined in his recent statement, as I have described them to the House, are ones which I believe that all members of this House would support. I believe that this House would want to congratulate all the people of Zimbabwe on the processes through which they have gone, with a very high turnout in the vote of over 90 per cent and with a result which is clearly beyond doubt.
I think it ought to be noted that in a little under two years’ time Australia will host the Commonwealth Heads of Government Meeting. I hope and believe that Zimbabwe will then formally be welcomed into the Commonwealth as a free and independent nation upholding the principles and ideals of the Commonwealth. Indeed, that must be our objective and our hope. I believe that the launching has thus far been a good one, overcoming some of the enormous difficulties of the past. It might be appropriate to note that these events are occurring very close to a day which is commemorated throughout the Commonwealth -10 March, Commonwealth Day.
– I ask the Prime Minister a question subsequent to the question asked by the honourable member for Corio. Is it not a fact that for any given year expenditure levels on major capital equipment are determined by orders which have been placed several years earlier? Is it not also a fact that an accurate measure of the determination of a government to improve the capital equipment of the armed Services is reflected in the value of major new equipment approved in each financial year? Is the Prime Minister aware that the value of major new equipment approved in each financial year slumped, for example, to $25m in 1971-72, the last year of the last conservative coalition government preceding the Whitlam Labor Government? Is it a fact that the value of expenditure approved for new major equipment in the succeeding financial years during the period of the Whitlam Labor Government climbed markedly, reaching a peak of over $330m? Is it a fact that with the election of this Government there was introduced a sustained run-down in the level of the value of major new equipment approved in each financial year, falling to $103m in 1978-79 and to $129m in the current year? Finally, to help the Prime Minister refresh his memory, I ask: Is it not a fact that the serious defectiveness impairing the operational capacity of the Royal Australian Air Force has nothing to do with capital expenditure, but relates to operational expenditure which, like major new equipment orders approved by this Government, has been cut back drastically? How can he expect to be taken as having any integrity when he claims to have been concerned about defence but has impaired both the capital equipment preparation and its operational capacity?
– I am also very much aware that the capacity or the willingness of a government to support the defence forces and the defence vote depends upon the funds which a Treasurer is prepared to provide for defence purposes within a particular year. I think that is a very real way of judging the performance of the Australian Labor Party in relation to these matters. I am also aware that when I was Minister for Defence planning was going on for an Australian designed and constructed replacement for the destroyers. I am also aware that that project was cancelled, which made inevitable the later buying of a ship from overseas.
-My question, which is directed to the Prime Minister, refers to the current wool dispute. Will the Prime Minister inform the House of the position in relation to the Japanese trade unions and the handling of Australian wool shipments? Does the Prime Minister realise that there is a real possibility that unless this huge export market is reinstated immediately, we will possibly lose it?
– I have today received the text of a letter from the Japanese Federation of Textile Workers’ Unions. I should like to have the letter incorporated in Hansard if leave is granted for its incorporation, but in any case I think all honourable members would be interested in some parts of the letter. It states:
On behalf of the 460,000 members of Japanese Federation of Textile Garment, Chemical, Distributive and Allied Workers Union . . . for your- active effort-
It thanks me- being made in bringing about better and closer relations between Japan and Australia as a whole.
This letter to you, Mr Prime Minister, is intended to draw your urgent attention to the serious situation concerning the survival of 20,000 members of my union who are engaged in the wool industry in Japan. The workers’ strike after their recent deadlocked negotiations between SPU and NCWSBA has resulted in stoppage of shipments of wool from your country to Japan. These workers are today in the midst of fears hit doubly hard by mills’ closure and unemployment in a soaring inflation climate.
That is, in Japan. The letter then points out how serious it is going to be for Japan, the industry, for the workers and a large number of people in Japan if the worst possible situation continues and wool sales and shipments of wool are disrupted. Of course, the same serious situation would apply in other parts of the world. The continuation of this dispute in this country in defiance of the Full Bench of the Commonwealth Conciliation and Arbitration Commission does indicate again the complete lack of regard for the wellbeing of workers, not only in this country but in many other countries overseas. One could only in those circumstances urge the union officials to do something about it, to have regard for people instead of the impossible situations that they argue themselves into in defiance of the arbitration process.
We in this Government have never said that people may not have a right to a claim for a particular wage or condition of service. What we have said and do say is that it is important and necessary to uphold the arbitration system- an impartial umpire- and to use the processes of arbitration. I am aware also that the Leader of the Opposition has said at some stage in a talk that he on behalf of the Australian Labor Party is prepared to condemn irresponsible disputes. I wonder whether this is one of the irresponsible disputes that he is prepared to condemn or in relation to this dispute and others that have occurred over the last three or four years is he going to remain silent?
-The right honourable gentleman asked leave to incorporate the letter in Hansard. Is leave granted?
The letter read as follows-
The Right Honourable John Malcolm Fraser, Prime Minister of Australia,
My deep respect goes to you, on behalf of 460,000 members of Japanese Federation of Textile Garment, Chemical, Distributive and Allied Workers Union (ZENSEN), for your active effort made in bringing about better and closer relations between Japan and Australia as a whole.
This letter to you, Mr Prime Minister, is intended to draw your urgent attention to the serious situation concerning the survival of 20,000 members of my union who are engaged in the wool industry in Japan. The workers’ strike after their recent deadlocked negotiations between SPU and NCWSBA has resulted in stoppage of shipments of wool from your country to Japan. These workers are today in the midst of fears hit doubly hard by mills’ closure and unemployment in a soaring inflation climate.
Should the worst situation continue in your country, Japan’s wool industry is expected to face disruptive damage by the end of March 1980 when its reserve of wool is totally exhausted. I can only say to you that the industry will foreseeably encounter worsening difficulties which threaten its ability for revival characterised by the further rapid decrease of workers whose number had already gone down more than50 percent since 1973 and production cut by half during the same period. While the world economy today is increasingly becoming inter-dependent, Mr Prime Minister, I strongly wish to point out to you that the families of those workers who are employed in this industry are helplessly in great fear for their livelihood in the days ahead.
Mr Prime Minister, I hereby sincerely urge you to give your attention to this impending matter and to use your good office to help bring about a quick and amicable settlement to the deadlocked dispute between SPU and NCW. I am confident, Mr Prime Minister, that any effort made in this regard will be warmly welcome and highly appreciated by our Japanese workers.
Trusting you will give this matter your kind consideration, Iam,
-My question is addressed to the Minister for Business and Consumer Affairs. I refer to the fact that there was a stopwork meeting by Sydney Customs officers last Friday- of which there was 10 days notice given to the Department of Business and Consumer Affairs- which meant that passengers from 10 inward flights and five outgoing flights passed through Sydney International Airport without Customs, immigration, quarantine, narcotics or Federal Police checks. Is it also correct that since Friday passengers from at least four other international flights have not been screened in any way? In view of the serious breakdown in drug surveillance and other appropriate screening processes at Australia’s busiest international airport, can the Minister explain why he has been unable to meet the representatives of the Sydney Customs officers despite their request? Will he now reconsider his refusal to meet them?
– As the honourable member suggested, the situation is that over 1 , 500 passengers did enter Sydney International Airport last Friday and received only skeleton Customs services as a result of this stopwork meeting. I must say immediately that I- I think that the majority of honourable members here will agree- deplore that action that was taken by a group which is ever ready to insist that it believes there should be an even greater extent of checking taking place. The dispute appears to have been about a roster system although, as far as I am aware, certainly as at yesterday, there had not been any full information received as a result of that meeting as to exactly the nature of that complaint and the bans. It seems as though the roster itself may have been agreed to. I wrote to the president of the New South Wales organisation. My predecessor, having been approached by that organisation, took the view, with which I certainly agree, that we should have contact only with the Federal body. However, I am advised that the Federal body and the State body have some dispute, including legal action. I see the honourable member for Kingsford-Smith shaking his head, but that is as I am advised. I read some newspaper reports, the gist of which was that these aircraft should have been diverted to another airport. I put it to the House that to take 1,500 passengers to an airport to which they do not want to go would create a few problems, not the least of which would be that they may well not be processed at that other airport.
To come to the kernel of the matter the honourable member put to me, the situation is that procedures exist for dealing with disputes with the Public Serice Board and consultative machinery in the Department of Business and Consumer Affairs. With 300,000 Commonwealth employees I do not believe, and I think my colleagues do not believe, that it is incumbent on Ministers to get personally involved in every industrial dispute as it arises. Indeed, part of the objective of having a separate Public Service Board with the powers that it has is to create just the separation between industrial disputes and Ministers that has been achieved. The fact is that there are procedures for dealing with matters such as this, and those procedures should be. followed by the people concerned.
-My question is directed to the Prime Minister and is supplementary to the question asked by the honourable member for Mackellar regarding Zimbabwe-Rhodesia. Has the Government made any plans for a mass exodus of Rhodesians, if such should occur following the general election in that country?
-The answer to that question is no. On the basis of evidence that came to me two or three hours ago, the signs are that things are settling down in Zimbabwe and that, as I am advised, Mr Mugabe is making it perfectly plain that he wants the co-operation of all people. There is even talk of Ian Smith being within the Government, a government of national unity. Talk of mass exodus, therefore, is not helpful to the situation and is not really relevant to it as it is unfolding at the present time. I believe we all hope that the indications we now have will become firmer and that indeed it will be a government for all the people of Zimbabwe.
– My question is addressed to the Minister for Industry and Commerce. Is it a fact that the Reserve Bank recently issued instructions to the trading banks to limit lending on small overdrafts? Given the fact that the rate of interest on overdrafts of less than $100,000 has increased and the fact that the Commonwealth Development Bank provides funds only when finance from other sources is unavailable, is it not true that the small business sector is experiencing increasing difficulty in obtaining finance? What action will the Government take to ensure that small business in Australia will not be further starved of funds over the next few months, particularly prior to the report of the Campbell inquiry being received and acted upon by the Government?
– It is not true that, as the honourable gentleman ‘s question implied, action taken by the Reserve Bank in the context of properly controlling the growth of monetary aggregates in recent months is having a discriminatory effect on small business. The volume of bank lending, and that includes lending to small business, in fact has grown at a much faster rate over the past eight or nine months than was foreseen at the time of the Budget. Indeed, that is one of the reasons that, as I think the honourable gentleman would know, the rate of growth in the volume of money has been, in the eyes of some, a little above what is required to achieve the outcome predicted at the time of the Budget. There is no question of the Reserve Bank’s action, or indeed the Government’s action, working to the comparative disadvantage of small business.
– I mentioned small overdrafts.
-Small overdrafts are part of all overdrafts. The point I am making is that any action that the Reserve Bank has taken has been taken to try to bring the total volume of bank lending closer to the type of lending guidance that was given at the beginning of the year. That does not imply any discrimination against small business. If the honourable gentleman examines the figures he will find that the amount of loans made available by the Commonwealth Development Bank and the total availability of credit from the trading bank system have underwritten very solid growth in the small business sector. I do not think that a case in any sense can be made out to show that there has been any kind of discrimination or any departure from the Government’s basic policy of giving maximum encouragement and support to the development of small business.
– I ask the Minister for Trade and Resources: In view of the serious lack of understanding which seems to exist about the way in which Australia’s wool is sold, can the Minister explain to the House how the system works?
-Having heard some of the charges and allegations laid against the Prime Minister for the way in which his wool has been sold, I think there is a need for some explanation. Indeed, there must be gross ignorance or just complete stupidity on the part of some members of the Opposition for them to go on in the way in which they are going on. Most of Australia’s wool is sold at auction. A small percentage is sold by private treaty. A grower sends his wool to auction where firms bid for it. Once the wool is purchased, the grower of the wool has no idea where its destination is likely to be. He has no power at all to influence in which country the wool will ultimately finish up. It is completely false to make the accusation that has been made. I think I should warn honourable members of this House that if an honourable member sells a car at auction and if that sale goes through an auctioneer to a dealer, who transfers it to another dealer, who eventually sells it to a crook for use as a getaway car in a bank robbery, the Leader of the Opposition will accuse him of selling the car to a bank robber.
– I wish the Deputy Prime Minister would not talk about potential members of the National Country Party in that manner. I hope that the Deputy Prime Minister answers this question with equal good humour. I refer him to the statements made repeatedly by him and by the Prime Minister that trade sanctions against the Soviet Union would be ineffectual and, therefore, should not be attempted. As the Prime Minister has made it clear that this argument applies to important strategic materials such as rutile, wool, grains and hides, I ask: Does it apply also to fish? If so, will the Deputy Prime Minister now reconsider the premature decision to ban the Asmarfish fishing venture, the cancellation of which has had no impact on the Soviet Union but has cost Tasmania at least 1,000 much-needed new jobs?
– What about the CSIRO?
– Ah, the honourable member for Denison, the rumpled Rumpole of the old Hobart small debts court! Does the Deputy Prime Minister not agree that this ban falls within the category of retaliation described by him- I quote hime exactly- in these terms: ‘All you would be doing is to hurt yourself and there would be no sense in that arrangement’? Why should new job creating ventures such as fishing suffer while the highly profitable trade in strategic materials, foodstuffs, wool- in which the Prime Minister and others in the Government have a special interest- and hides is permitted to continue?
-The Leader of the Opposition would be well advised to try to synchronise with some of his State colleagues, although I know the difficulty there is in the northern State in trying to get some sort of collaboration. I thought that he probably had a good relationship with the Premier of Tasmania. If he had asked the Premier what he thought of the matter, he would have found out that the Premier had replied to the Prime Minister by saying that he understood and accepted that there was wisdom in not going ahead with the agreement to allow the Soviet Union to fish in Tasmanian waters.
Indeed, I think all of us know only too well that the marine countries of the world have been anxious to get fishing rights in Australia’s economic zone. Certainly the Soviet Union has been making every effort, knowing full well the advantage that it would be to it to have fishing rights within Australia. We assessed the situation and we believed that we would make an impact on the Soviet Union by not allowing it fishing rights within Tasmanian waters as was acknowledged by the Tasmanian Premier.
-My question, which is directed to the Prime Minister, concerns the Soviet invasion of Afghanistan. Can the Prime Minister inform the House whether the invading Soviet forces in Afghanistan have used poison and deadly nerve gas against innocent civilians in that country?
-There were reports in the newspapers this morning that certain information available to the Office of National Assessments had been withheld from me and, I think, also impliedly, withheld from the Director-General. Because it was a serious allegation it has obviously been examined and the evidence I have had and the base raw information I have seen- the cables available to the Office of National Assessments- do not sustain that allegation. But quite plainly, there is a significant situation in relation to the use of chemical weapons in Afghanistan.
It is known that the Soviet armed forces have a range of chemical warfare materials and delivery systems and considering the type of conventional military force that the Soviet Union has deployed into Afghanistan, it must be accepted that chemical warfare units are included. Indeed, when I was in the United States, I was shown photographs of the actual units in Afghanistan. This is normal Soviet doctrine. It ought to be noted, I think, that the earlier reports from refugees indicating that gas of different kinds may or could have been used had not been confirmed to that point, but the presence of the units was beyond doubt.
Yesterday further advice came to the Office of National Assessments. I have seen this document also, indicating now that the high probability is that gas of different lands has been used in Afghanistan, not necessarily of the most lethal agents that are available but gas that is designed to put people out of action, but which at the same time can have lethal consequences in a number of instances. So now the judgment is that gas has in fact been used, on the basis of evidence that become available to ONA yesterday. I have seen the cables and the dates on those cables. I do not believe that there has been delay in passing on the relevant information to the Director-General or to me.
Mr Speaker, if I may, I want to take the opportunity of saying something about the Office of National Assessments which I am sure all honourable gentlemen will be interested in and which has represented a serious situation, but one which I believe the Director-General is now well on the way to overcoming. I do need to confirm reports that have been circulating within this building that two officers of ONA knowingly contributed some ideas to information being assembled by the parliamentary research staff to assist in the preparation in a speech on Afghanistan to be made by the Leader of the Opposition. I have seen a statement subsequently signed by the two officers which indicates the nature of the material which they gave to the parliamentary research staff.
Amongst other things, that material included views to the effect that the Soviet action was one of blatant military aggression which violated all accepted rules of international relations; that the excuses offered by Moscow were absurd; that the invasion should be condemned in the strongest and most unambiguous fashion; that Moscow was determined to maximise its influence in the region including especially with India; that subversion was standard Soviet practice throughout the world; and that this was now to be expected in additional areas of south west Asia.
It went on that while world-wide condemnation of the Soviet Union had been achieved, it was now necessary for Australia and other Western nations to look to their defences as an unambiguous signal to the Soviet Union of Western capacity and willingness to respond to further aggression. The advice emphasised that it was a long-term task, that a major effort to reduce Western dependence on Middle East oil was essential and that the Soviet Union should be left in no doubt about the West’s will to defend its vital interests. It also emphasised, as did my speech to the House, the need not to cut off dialogue with the Soviet Union on major strategic and related issues.
I regret that the Leader of the Opposition did not apply to my office for a briefing from the Director-General in the normal way. If that had occurred events may have unfolded differently. The officers would then, presumably, have not felt it necessary to provide the information to the parliamentary research staff in the way in which they did, and without the knowledge of the Director-General. The officers said that they believed it important for the Labor Party to contribute constructively to the debate and to be informed in relation to it. Whilst the officers believed that what they had done was not contrary to the guidelines on official conduct for public servants- but opinion as to that would differ- the Director-General and I consider their actions to have been illjudged and damaging to the Office of National Assessments, because they were capable of misconstruction, as has m fact occurred.
When the Director-General spoke to the officers about the allegations, they readily admitted what they had done. Having seen the reports that were readily provided by them to the Director-General, both as to the reasons for their actions and as to what they actually said, I personally accept this as mitigating evidence which I know the Director-General will take into account. Any further action is obviously a matter for the Director-General. The officers have made it plain that they regret any embarrassment that these actions may have occasioned. They have said that, given the way in which these actions have been misinterpreted they would not do the same thing again- and I suggest that that is just as well. I must say that if there is a repetition of events of this kind, either within the Office of National Assessments or any other branch of the Public Service, it will do real harm to the apolitical nature of that service.
There is one other thing that I need to say. However misguided the actions of certain individuals in the Office of National Assessments may have been, I hold the Office of National Assessments and the Director-General in the highest possible regard. For a long while I had believed that Australian governments were deficient in intelligence assessments. The old Joint Intelligence Organisation was militarily orientated and not well equipped to give governments assessments across a broad range of economic, trade, political and strategic affairs which are relevant and important to modern government. The Office has discharged its capacities well and with a high level of competence and objectivity. I hope that, as a result of this episode, all officers of the Office of National Assessments will recognise their obligations to that Office and to the wider principles and philosophy of a nonpolitical Public Service; that they will make sure that no future actions can be misconstrued in the way that has just occurred. That applies, of course, to all public servants, not just to the Office of National Assessments. I draw the particular attention of the House to the nature of the evidence which the officers gave to the parliamentary research staff concerning the Soviet invasion of Afghanistan, which has been drawn from signed statements by the two officers.
– I ask of the Prime Minister a question which flows from an observation that he made in the course of his statement- I think that is the correct description- of a few seconds ago. This is one of several occasions on which he has made- it was at least impliedly critical- the observation that I had not sought a briefing from the Office of National Assessments on the Afghanistan situation, which is true. However, I ask the Prime Minister Is it not a fact that on the occasion of China’s intervention in Vietnam the Government, through the Minister for Foreign Affairs, approached me and invited me to accept a briefing by the Office of National Assessments? Is it also a fact that the Prime Minister has said that the Russian intervention in Afghanistan is the greatest threat to world peace since the Second World War? Is it further a fact that he has said that he genuinely wants to establish bipartisanship in relation to responses on this matter? Given those last two points, why did the Government regard the situation as less urgent and less compelling in its view and not make available to the Opposition a full briefing by the ONA? Why did the Government, on an earlier occasion, which on the Prime Minister’s statement was nowhere near as serious a threat to world peace, provide a briefing, on invitation, but fail to do so on this occasion- more especially when the Prime Minister had said that he was engaged in a genuine search for bipartisanship?
-The honourable gentleman knows quite well that this Government has established a broad-ranging framework, broader than that which my predecessor had pursued. I accept that he did have Leaders of the Opposition briefed by the DirectorGeneral of the Australian Security Intelligence Organisation and other elements of security and information services available to the Government. As a result of the acceptance of the Hope report and the thrust and philosophy of it we have established broader-ranging briefings which are available to the Leader of the Opposition and to the Deputy Leader of the Opposition. The Leader of the Opposition knows well that those briefings are available.
– Why didn’t you offer it on that occasion?
– I am glad that the honourable gentleman states that the Leader of the Opposition is incompetent and unable to ask; that the Leader of the Opposition needs me to hold his hand at ever turn. Now that I know that the Leader of the Opposition is not capable of making that request I will undertake to offer him briefings at various points.
– Why did you do it earlier when it was not so important to world peace? Because you were contriving a party election and you have no credibility.
-The Leader of the Opposition could have asked for a briefing. He knows that the request would have been accepted and the briefing given. To suggest that he is incapable of putting forward that request on his own account only supports the judgment of certain friends he has in the State of Queensland.
- Mr Speaker, I raise a point of order. The Prime Minister made a charge against me that I stated that the Leader of the Opposition was incompetent. You know I did not state that. I ask for a withdrawal.
-The honourable member for Adelaide, in his point of order has identified a point which seems to elude many members of the Parliament, and that is that I will require the withdrawal of unparliamentary language, but I will not require the withdrawal of a statement which is contested. The honourable member for Adelaide indicates that he wishes the Prime Minister to withdraw a statement he made because he, the member for Adelaide, contests it.
– It is completely untrue. It is a straight out lie.
-The honourable member for Adelaide must understand that I will not call for the withdrawal of a statement simply because, in the judgment of another person, it is inaccurate. The honourable member for Corio will withdraw his interjection.
– I withdraw my interjection, but I take a point of order. During Question Time, when members have no right of reply, what protection do members have when the Prime Minister of Australia attributes to a member a statement never made by that member but initiated and invented by the Prime Minister in order to cause damage to another member.
-The honourable gentleman well knows- he, above all other members in the House, well knows- that the Standing Orders are what the Speaker is obliged to administer in the Parliament. If the Standing Orders are deficient in any way that is a matter for the Standing Orders Committee; it is not a matter for the Speaker.
- Mr Speaker, I might be able to help. I did not mean to imply of the honourable gentleman anything more than that he was underlining the Leader of the Opposition’s incapacity or unwillingness to ask for a briefing. It can be taken either way the honourable gentleman likes.
-I have received letters from both the honourable member for Wilmot (Mr Burr) and the honourable member for Werriwa (Mr Kerin) proposing that definite matters of public importance be submitted to the House for discussion today. As required by Standing Order 107 I have selected the matter which, in my opinion, is the most urgent and important, that is, that proposed by the honourable member for Wilmot, namely:
The disastrous effects on the Australian nation due to the ban on wool shipments by the Storemen and Packers Union.
I therefore call upon those Members who approve of the proposed discussion to rise in their places.
More than the number of members required by the Standing Orders having risen in their places-
-Mr Speaker, I fully concur with your assessment that this is, without doubt, the most important issue facing Australia today. This matter has now reached disastrous proportions in Australia. I do not think that any of us in this House should try to delude ourselves into thinking otherwise. It has reached disastrous proportions because of its effect on the economy and on our relationship with other trading partners, as well as the effect it is having or will be likely to have on industrial relations in this country. Every member of the Australian community, particularly the members of the House, should be aware of the effects that the ban imposed by the Federated Storemen and
Packers Union of Australia is having or is likely to have.
I will take a moment to recap on some of the events that have taken place and which have led up to this ban on wool shipments by the Storemen and Packers Union. A log of claims for certain increases was put before the Conciliation and Arbitration Commission towards the end of last year. That log of claims was heard by the Conciliation and Arbitration Commission in a work value hearing. On 2 1 December last, Mr Justice Staples awarded to the Storemen and Packers Union increases ranging from $12.50 to $15.90 a week. Those increases were disputed by the Australian Wool Selling Brokers Employers Federation which appealed to the Full Bench of the Conciliation and Arbitration Commission against the excessive increases that were granted by Mr Justice Staples. That appeal was lodged by the wool selling brokers on 1 1 January 1980. By 14 January 1980 the Storemen and Packers Union decided to call a national strike.
Before one word had been heard of that appeal, the Storemen and Packers Union decided that it would call a national strike. That cuts across all of the canons of justice and all of the canons of industrial relations. Surely, a party to a court hearing has the right of appeal along the road to natural justice. That is exactly what the joint wool selling brokers did: A decision was given that was not in their favour and they appealed to a higher jurisdiction. That action of appealing to a higher jurisdiction was itself sufficient for the union to call a national strike and to place a ban on wool leaving this country. That action in itself needs to be condemned.
But the matter went further than that. The appeal was subsequently heard by the Full Bench of the Conciliation and Arbitration Commission. On 1 3 February this year the Full Bench of the Conciliation and Arbitration Commission reduced the award increases to an amount that had been consistently applied by the Commission. In other words, a flat increase of $8 a week was granted to all members involved in the industry. That increase granted by the Full Bench was consistent with other increases that had flowed through other award categories and was in line with the Conciliation and Arbitration Commission’s own policies applying to wage indexation. That point needs to be remembered.
The action that has been taken by the union was not taken against this Government; it was not taken against the wool selling brokers. It was directly applied against the Conciliation and Arbitration Commission and was directly applied against the policies of that Commission. It is not an action taken in retaliation of any action that this Government has taken or that the joint wool selling brokers have taken. It is an action that the union has taken in defiance of a legitimate tribunal; it is an action that has been taken against the Conciliation and Arbitration Commission’s own policy. That in itself, I believe, must be condemned by this House. I would be surprised if my friends on the opposite side of this House did not agree that such action in defiance of such a tribunal should be condemned by this House. I would be surprised if my friend, the honourable member for Port Adelaide (Mr Young), did not support the proposition which I am putting to the House.
The matter goes a little further than that. I think that all honourable members in this chamber would be very conscious of the effect that this ban is having on the textile industries of our trading partners, particularly our friends in Japan and Europe who rely so heavily on the wool trade. During Question Time today a letter was read from the Japanese Federation of Textile Garment, Chemical, Distributive and Allied Workers Union which is extremely concerned that the jobs of its members are being placed in jeopardy because of the action that is being taken in Australia by a small group of storemen and packers. That action undermines completely the reputation that Australia, as a nation, has as a reliable supplier of raw materials. Not one of us in this chamber or the people in the broader community can ignore the fact that Australia is now developing a reputation for being an unreliable supplier of raw materials. We should be concerned in the extreme. I believe that this situation is being created not by responsible people in Australia or by those people who have some sense of pride in Australia as a nation, but by an irresponsible bunch of ratbags who are concerned more about their own hip pockets than they are about Australia and the reputation of Australia as a nation. They should be condemned and I believe this House should condemn them.
We are concerned about our reputation as a trading nation. We are desperately concerned as a Parliament to ensure that our Japanese and European friends are supplied with the raw materials that they so desperately need. What the union is doing has considerable connotations for the authority of the Conciliation and Arbitration Commission as an authoritative tribunal in hearing and determining matters relating to industrial relations. What has happened is that the Conciliation and Arbitration Commission has heard a log of claims that was legitimately placed before it by a union. Evidence on that log of claims was heard by Mr Justice Staples who brought down a decision. The other party to that hearing then has the entitlement to appeal to a higher tribunal. That action was taken by the joint wool selling brokers quite legitimately and quite correctly. The higher tribunal, having decided that the increases were excessive, reduced the amount. But the authority of the tribunal is now being disputed by the union which says that it will not accept the umpire ‘s decision.
– It is industrial blackmail.
– As my colleague the honourable member for Denison says, it is industrial blackmail. It undermines the authority of the Conciliation and Arbitration Commission. I would remind honourable gentlemen opposite that if they have a mind to stand in this debate or in other places in support of the Storemen and Packers Union, they would be advocating to the House or to the Australian nation that the union movement has the right to subvert completely the Conciliation and Arbitration Commission as a legal authority.
I strongly appeal to my friend the honourable member for Port Adelaide (Mr Young), when he speaks, to give serious thought- if he has it in mind to support the Storemen and Packers Union- to the effect that giving them support would have. The Storemen and Packers Union is attempting to undermine completely the authority of the Conciliation and Arbitration Commission, and it is attempting to undermine completely any impact that the Commission’s wage fixing authority and policies might have. I strongly appeal to the honourable member for Port Adelaide to give very serious thought to this matter before he attempts to justify what the Storemen and Packers Union is doing. I am quite certain that if he were in the position of a Minister in the Government he would not want to see the Conciliation and Arbitration Commission being completely subverted in this way. I appeal to him as a responsible member to think seriously before he speaks in this debate.
– You are both ex-shearers.
– The honourable member is quite right. The situation is even more disturbing when we consider that the wages policy of the Conciliation and Arbitration Commission and the Commission itself have the full support of the Australian Council of Trade Unions. The Commission, which has the support of the employers and the ACTU having applied its own policies and guidelines to a particular award hearing, is now being challenged by a union. The ACTU is sitting quietly by, saying absolutely nothing. Surely it must be incumbent upon the ACTU to apply its own rules and regulations to one of its affiliated bodies. I am surprised that the ACTU and the President of the ACTU have not done more to bring Mr Simon Crean and the members of the Storemen and Packers Union into line with the policies of the ACTU.
I am appalled to see that the Storemen and Packers Union force its blackmail tactics on the joint wool-selling brokers. Storemen and packers in all ports of Australia except Melbourne and Sydney have now gone back to work leaving only the members in Melbourne and Sydney ports on strike. Members in other ports are levying themselves to pay their members to remain on strike in Melbourne and Sydney, knowing full well that 70 per cent of Australian wool leaves Australia via those ports. That in itself must be condemned because what the Storemen and Packers Union as a collective body is doing is purposely trying to undermine the reputation and the economy of this country, and purposely trying to subvert any relationship that Australia as a trading nation might have with other countries. That must be condemned as a purposeful policy of greed and a purposeful policy to undermine Australia as a nation- not just this Government, or a section of the economy, but Australia as a nation.
So far the effect of the strike is that in excess of 1.4 million bales of wool are in various ports and stores throughout the country waiting to be shipped to end users who desperately need that supply of raw material. The value of the wool being held up at the moment is in the order of $400m.
– How much?
-For the benefit of the honourable member for Denison, I repeat, in the order of $400m. If one can imagine or project one’s mind into the future, if that is the accumulation of cost to this country in little more than two months of dispute, the effect on the country and on the economy of the country, if this dispute continues and the end suppliers seek supplies of raw materials from other countries, could be completely disastrous and could completely undermine our economy. A decision of that nature would have an effect on the whole economy of the country and on the unemployment level, and would be most irresponsible. Frankly, I fail to understand why the Storemen and Packers Union is taking this action when the results can only be to undermine the wage fixing principles and authority of the Conciliation and Arbitration Commission. If the Union is successful in that campaign the only possible effect can be that industrial relations will go back to the law of the jungle. Wage fixing policies will go back to a leap-frogging situation that we saw in 1973-74, with the consequent disastrous effect on the economy and employment in all other sectors of the economy in Australia.
I strongly appeal to honourable members on this side of the House and on the Opposition side to unite in a combined voice in appealing to the Storemen and Packers Union to adopt a responsible attitude to this dispute, to go back to work as quickly as possible, to accept the umpire ‘s decision and, for the sake of Australia as a nation, to go back to work to supply these desperately needed raw materials to our trading partners.
-Mr Deputy Speaker, the honourable member for Wilmot (Mr Burr) is very excitable. As the Minister for Industrial Relations (Mr Street) is in the House and has not raised this question, I suppose one can treat it as a bit of a joke. If the honourable member for Wilmot was any further back in the benches he would be playing table tennis, yet he has been given the responsibility of raising what he considers to be, I suppose, in the words of our Prime Minister (Mr Malcolm Fraser), the second greatest crisis since World War II. We seem to be talking in those terms.
Honourable members on this side of the House will have something to say about the storemen and packers dispute, the wage fixing system, and the array of letters that have arrived from the Textile Workers Union in Japan. More than one letter has arrived from Japan, not that I agree with either letter. During Question Time the Prime Minister opted to read the one which he thought was most beneficial to his side of the argument. There is another letter which I will read to honourable members which, in essence, says that it is hoped that the storemen and packers are completely successful in their claims. Perhaps we could have this on record as well. I do not know whether the Liberal and Country Parties are in support as the same person signed both letters from Japan. It would have been good advice for the Prime Minister, in his position as Prime Minister of Australia, to say to the Japanese textile workers: ‘We have to try to solve these problems ourselves. We are not assisted by receiving letters from the textile workers of Japan in which they utter sentiments which they think can solve the problem. As a result of the decisions which have been given by the Conciliation and Arbitration Commission, the matter of storemen and packers dispute can only be settled here. These matters cannot be settled in any other country.’ I will come back to that matter later.
The honourable member for Wilmot appealed to the storemen and packers to go back to work and said that in that event everything would be fine. Honourable members will know that negotiations have been going on. It is an indictment of this Government that on two occasions in the last fortnight the Minister for Industrial Relations and the Minister for Primary Industry (Mr Nixon) have said, during Question Time in the House, that they were talking to the brokers and the graziers and that they hoped negotiations would take place and the issue could be settled. No statement about this dispute has been made to the House by the people who matter in this Parliament, that is, the Ministers.
Honourable members have not been able to discuss or debate statements being made by the Ministers as to what occurred or as to what came of the talks which they told the Parliament they were going to hold.
In this respect, so far as we know the Ministers have failed in their endeavours to settle this dispute. The Opposition is not sure what solution the Government put up for the settlement of this dispute. We are unsure of the influence it has had on the dispute. The Government, through its Ministers, has not been prepared to tell the Parliament of Australia what role it has played. It is very difficult for any person in the Parliament to make a judgment about what wages the storemen and packers should have. Was Deputy President Staples correct in his original decision? Was the Full Bench correct in giving its decision which lowered the amounts by between $4 and $7? We are not sure of that. What the Storemen and Packers Union has been sure of, both in its submissions to the Commission and in the discussions that have taken place with the parties surrounding this dispute, is that Deputy President Staples, in looking at the industry, spent some months conducting a work value case.
The conclusion reached in a work value case is not a decision that is given off the top of the head which happens to be consistent with decisions which have been given in relation to other industries. A work value case by its very name means that the commissioner, or the Deputy President in this case, looks at the industry and gives a decision which he thinks is consistent with the value of work being performed by the persons engaged in that industry. In this case, after looking at the industry for some five months- five months, not five days- Deputy President Staples gave the decision to increase wages in that industry by $12 and by $ 1 5. It is not true to suggest that the Commission can make a decision that everybody has to get an additional $8 and that Justice Staples should have ignored the decision he had reached about work value and said: ‘The easiest way to have my decision accepted by everybody is for me to give the same decision which has been given by the Commission in some other cases; so I will subscribe to consistency and award $8 ‘, knowing full well in his own mind that that was not the decision he had reached in the work value case for the storemen and packers. He concluded, moreover, that the lowest paid storeman and packer in Australia would now be $36 a week above the poverty line, according to the Richardson report.
If we had been prepared to go through the industry with Deputy President Staples we may well have reached the same conclusion. What is occurring in the wage fixing system is something which the Commission will have to take cognisance of. If it is going to give wage hearings the title of work value cases or productivity cases, or skill cases or whatever, the decision that it gives must be related to the investigation it has held. A deputy president cannot give a decision off the top of his head because some other deputy president may have given a decision to award an additional $8 or $9 in the metal industry. He cannot relate the work that is being done in the wool stores to the work that is being done in the metal shops. It may suit us to believe that the Commission would have been better off if in addition to its partial indexation decisions it had said: ‘We believe that to overcome any other industrial relations problems in this country, all employees should receive an additional $8. Let us dismiss the way in which all these cases have been described. Let us dismiss the separate hearings for the various awards. Let us dismiss the fact that someone might give a decision which is not consistent with a decision that has been given in another court in relation to another industry. Let us give everybody an additional $8 ‘. That is not what the Commission did. The Commission did not lay down that everybody would receive the same amount. Honourable members fly in the face of reality in subscribing to the theory that we can call a case a work value case, but dismiss its content because to award more than $8 would be inconsistent with the decisions which have been given by the Commission previously.
The honourable member for Wilmot did not tell us what percentage of the work force in the last 15 months has received $8 or more in these tight cases. There are going to be a lot more of them. One thing which he said is true. Because of the way in which these cases are working out, there is a threat over the wage fixing system which is not derived from the dispute which has arisen within the Storemen and Packers Union. The Government has played some part in the threat that hangs over the wage fixing system in this country. The Government has continually provoked the Commission, both in and out of court, in terms of its submissions in national wage cases and in terms of some of the political rhetoric which is spoken in this House. It has not subscribed to a good, firm support of the role which the Conciliation and Arbitration Commission plays in Australia. It is a very difficult role. It would not take much to destroy the wage fixing authority of the Conciliation and Arbitration Commission at the moment. The Government has certainly played its part in reaching this situation.
If members opposite asked a salary tribunal for politicians to conduct a work value case for politicians they would not want the tribunal to say before the hearing: ‘We are going to give you $20 irrespective of what you do, how many hours you work and what responsibilities you have’. They would not expect the tribunal to say: ‘We are going to give you an additional $20 a week because we gave someone an additional $20 a week in a different industry six months ago’. They would expect that a tribunal looking at the work of politicians would say: ‘Our decision will be based on a very thorough investigation of the work you do in the national Parliament’. Of course, we are a little luckier than the storemen and packers because there is no appeal in relation to our salaries. We just cop an increase every June. We do not have to worry about appeals. But the storemen and packers are not in the position of having indexation applied to a salary of $27,000 a year. As Justice Staples said, they are $36 a week above the poverty Une. The wage fixing system is under threat not as a result of this dispute, but as a result of some of the madness that goes on in the House, as a result of the fact that Ministers will not talk about these issues. They allow back benchers to try to provoke some discussion in this House, which does the dispute absolutely no good at all.
The Prime Minister loves industrial disputes. I know a lot about the storemen and packers dispute because my office is on the corner of St Vincents Street and Lipson Street in Port Adelaide. If I walk around the corner from Lipson Street, after 50 yards I am on berth 2 at Port Adelaide.
Three weeks after the invasion of Afghanistan, the gravest crisis since World War II, and a few days after the decision was given by Justice Staples and the announcement by the brokers that they were going to appeal, 44,000 bales of wool were loaded- an Australian record- on a Russian ship. I know a lot about the storemen and packers dispute. Letters are coming in from overseas about the storemen and packers dispute. The next one to come in will read: ‘Dear Comrade Malcolm, can you make sure that we do not have to lay off the workers in Leningrad, Moscow, Irkutsk, Novosibirsk and all these other places? We are relying on your wool for our mills’. I wonder whether the Prime Minister of Australia will read out the letters he gets from his comrades in the Soviet Union asking him to make sure that the Russian workers are not laid off. The Russians do not have just ordinary wool. They get that beautiful wool from the Western Districts of Victoria. They cannot get it from anywhere else; they have to buy it from Australia. It does not matter how the brand on the wool pack is changed, whether an M, and N, a Q, a P or whatever it may be, is put on, it still contains wool from Nareen. The Russian mills at Leningrad love it. I hope that when the Russian textile workers write to the Prime Minister of Australia saying that they might have to lay off some workers because they are not getting their 14 per cent of the Australian clip that they get every year, the Prime Minister will read out the letter and say how terrible it is that the storemen and packers should be holding up that wool that goes to our traditional trading ally- the one and only, the great Soviet Union. That is where it is going.
Let me conclude my remarks by showing the House what a farce this whole debate is. At Question Time today the Prime Minister read out a letter which he said he had received from the textile workers in Japan. Let me read to the House the letter that has been received from the same people by the Storemen and Packers Union in Australia. It states:
On behalf of 460,000 members Japanese Federation of Textile Garments Chemical Distributors and Allied Industry Workers Union … I wish to extend our solidarity to your present strike. Adamant attitude and policy of AWC towards your SPU cannot be tolerated even by our Japanese workers who are only indirectly involved. AWC irresponsible attitude has resulted in stoppage of . . . mills and 20,000 jobs in Japanese wool industry who are members of our union. Should this situation continue some Japanese factories must halt operation March 1980. Serious fear increasing exists that wool goods share in Japanese consumer market and production which is present only half of 1973 output’ will further decrease drastically. Kindly be informed. We have strongly protested to AWC by cable and appealed to your Prime Minister, Mr Fraser, requesting his timely efforts in settling the dispute. We assure you our full co-operation in whatever way possible and wish your demands quickest solution and great success. With best wishes, yours fraternally, Yussami President of ZENSEN Tokyo.
I just wish that the Prime Minister would read out both letters so that the Australian people know that the President of the Textile Workers of Japan is writing not only to the Prime Minister but to the Storemen and Packers Union hoping that it wins its claim. Next time a debate of this nature comes up, if we are to talk about it seriously, I wish Ministers would have enough guts to get on their feet. I seek leave to have the cable from ZENSEN to the Storemen and Packers Union incorporated in Hansard.
-Is leave granted?
– We have not seen it.
-The honourable member’s time has expired. The question must be resolved forthwith. The Chair seeks from the Minister a quick response to the request for leave.
– Frankly, my problem is that the printing of this letter is extremely faint. I am not trying to be difficult, but I would like a bit of time to read it. I do not know whether there is anything in it to which I could take exception. I just find that it is extremely difficult to decipher this very faint printing. Mr Deputy Speaker, do you have to know now?
-No, leave can be sought subsequently. The document can be incorporated subsequently if the Minister so agrees.
-This debate is one of great national importance to Australia. It is one that deserves to be treated seriously by the Parliament. It is tragic that the honourable member for Port Adelaide (Mr Young) has taken the approach that he has in this debate. I do not think he said anything at all about the storemen and packers dispute. He just did his usual exercise of putting the boot into the Government about a range of industrial matters as he has done on 150 occasions over a period, working, I think, on the Goebbles principle that if one says something long enough somebody might believe it and it does not matter whether it is right. The facts of the matter are that there are many people in this Parliament and in this country who are vitally concerned about this dispute. I know that the honourable member for Barker (Mr Porter) would very much like to speak in this debate. There are many other members, particularly in the rural community and in my own National Country Party, who would want to be involved, but the time constraints that always hamper us in this Parliament are such that not everybody will be able to take part.
I acknowledge that there is enormous interest on our side of the House in seeing that this dispute is settled responsibly and quickly. It is a dispute which involves at this stage approximately 1.5 million bales of Australian wool with an export value of hundreds of millions of dollars which are tried up on the wharves. Probably at least $500m is involved. The situation is one which is disastrous for our national economy. It is also something which is damaging Australia’s reputation as a trader in the eyes of those countries which purchase our goods. It is a very sensitive matter. It is not one that ought to be kicked around the Parliament in an irresponsible fashion. The realities of this dispute are that it is one which comes very closely to our national interest. The parties involved in this dispute have a responsibility to get together and to settle the dispute in the national interest because it is something which is doing our economy enormous damage. This morning the Prime Minister (Mr Malcolm Fraser) read out the letter from the Japan Federation of Textile Workers’ Unions which emphasises the problems which are being created in that market, which is our second largest market for wool, as a result of the Storemen and Packers Union dispute, here in Australia.
The Japanese and the Koreans which together account for enormous purchases of Australian wool have stocks which are estimated at about four weeks. If there is no wool shipped within four weeks, those stocks will virtually be run down and the mills in Japan and Korea will be forced to close. The stock that most of the Eastern European countries hold will last about two months. In the Soviet Union the stock is in the order of about three months. The situation is that all our markets are in tight supplies as far as stocks go. The longer this dispute continues the tighter this situation will be. Even the comrades of the honourable member for Port Adelaide in Murmanskaya and Vladivostok in the Soviet Union will find that they are unemployed as a result of the wool trade not flowing. This dispute has been right through the conciliation and arbitration system. It started off before Mr Justice Staples. I think that Mr Justice Staples has to take most of the responsibility for what has happened in this dispute. It does not give me any great pleasure- I do not think that it gives any member of Parliament pleasure- to have to be critical of a member of a bench of a court of this country, but there can be -
– I raise a point of order. Is it in order under the Standing Orders for any member of this House to reflect upon a member of the judiciary?
– No, reflecting on the decision.
Mr DEPUTY SPEAKER (Mr Millar)Order! The Chair does not need the assistance of the honourable member for Barker. It is contrary to the Standing Orders for an honourable member to reflect on a member of the judiciary but that does not disqualify reasonable comment.
– I raise a further point of order. I am not canvassing your ruling but, as far as I heard the honourable member for Hume speak, he did in fact reflect on a member of the judiciary. I would suggest that to allow him to carry on in such a fashion brings the judiciary into disrepute which is something that neither you, Mr Deputy Speaker, not I would want.
-The Chair did not construe the remarks of the honourable member for Hume as the honourable member for Banks has read them. The Chair will remain alert to the matter that has been raised.
– It does not give me any pleasure to have to be in any way critical of decisions that are made by a member of any court in this country. The facts of the matter are that there have been a couple of major industrial disputes which have arisen from decisions that have been handed down by this judge. This dispute occurred because a decision was handed down which was far and away beyond even the wildest expectations of the union itself. The union did not expect to get anything like $8 a week and the judge awarded the members $15 a week. There was obviously grounds for an appeal to the Full Bench. The Full Bench has to be the final arbiter in these matters.
– An appeal is allowed for in the system.
– As the honourable member for Darling Downs, who is vitally interested in the wool industry, says, there is a process laid down and there is room for appeal. The reality is that there is room for appeal, and this decision was appealed. The Full Bench marked down the decision of the judge in the lower court. That is the reality of it. I understand that this is a sensitive issue. I understand that it is one which the trade union can have some qualms about accepting. But the fact of the matter is that we do have an industrial system, we do have a Full Bench, and the Full Bench must be the final arbiter in these disputes.
I come back to the dispute. It has been going on now for something like six weeks. The longer it goes on the smaller the stocks in our market countries will become. In the last few years Australia has seen in disputes over iron ore shipments and the like from the Pilbara area the sorts of problems that are created for it as a major trading nation when the unions involved in handling exports disrupt our pattern of trade. I remember that when the Deputy Prime Minister (Mr Anthony) came back from Japan a year ago he put very strongly the message that Australia would not get contracts from overseas markets, particularly from Japan, unless we were able to honour our commitments and become a stable supplier. If the trade union movement is to intervene and disrupt that trade, there will be dire consequences for our pattern of trade into the future. That is really what this dispute is about. We have to settle it in the national interest. There can be no argument that it will not advantage anybody to maintain the present situation with wool piling up on the wharves, growers not being paid, and our overseas markets not receiving the deliveries they need to keep their plants operating. It is very close now to the time when, if the dispute is not settled and the ships do not get moving, the plants overseas will be forced to close. What ought to concern this Parliament is the effect that will have on Australia’s future ability to sell and to trade with overseas countries. I believe that is the nub of the issue with which we are concerned.
The Government has established a working group comprising Government representatives, the brokers, the buyers, and the growers in an effort to resolve the situation. Since that group was formed it has been working constantly since to get a resolution which is acceptable to all parties. It is not possible to agree to pay the union members concerned more than the Full Bench has allowed. It is not on to overrule the Full Bench by some sweetheart agreement. If our industrial framework in Australia is to have any semblance of sanity about it, what the Full Bench says has to stand. I do not believe it is possible for a settlement to be reached outside that. There has to be a settlement within, the framework of the wage decision handed down by the Full Bench.
It is very important to Australia’s national interests that this dispute be resolved. It is an extremely sensitive matter because of the involvement of the Commission and it is extremely important because of the effect it could have on Australia’s pattern of trade for many years to come. There are alternative sources of supply, even though we are one of the major suppliers of wool in the world; but if we continue to damage our credibility as a long term stable supplier of the commodity we must expect buyers to retaliate against us and seek alternative sources of supply.
Mr DEPUTY SPEAKER (Mr MillarOrder! The honourable member’s time has expired.
-With the honourable member for Port Adelaide (Mr Young), I took great note of the fact that the Government places great stock in this matter. Government speakers today have said that this matter is in the national interest. It certainly must be in the national interest when no Government heavyweights, front benchers, have entered the debate! In fact, two of the most ineffective Government back benchers in the Parliament have debated the issue. Their arguments were riddled with rhetoric, and neither of them produced the facts. Neither of the Government’s speakers told this chamber that in the first instance a claim was made against the wool brokers by the Federated Storemen and Packers Union of Australia for an increase in pay for its members. It ill becomes honourable members sitting in this chamber to criticise men in the Australian community who are being paid $24 a week above the poverty line when they ask for an increase in pay from poor employers such as Elder Smith Goldsborough Mort Ltd. The headline in today’s Australian Financial Review states:
Elder’s results bode well for pastoral profit growth.
The same thing has been said about Dalgety Australia Ltd. The employers are impoverished! They certainly are not. They have had record profits. They came to an agreement with the Storemen and Packers Union that, whatever Mr Justice Staples came up with after his work value assessment, they would not appeal against it. Neither of the two speakers from the Government side raised that issue.
- Mr Deputy Speaker, I take a point of order in that I believe the honourable member is misleading the House.
-Mr Deputy Speaker, that is not a point of order, and I take a point of order on that point of order. The honourable member is only using up my time. If he wants to dispute anything I have to say, he should do it in debate.
-Order! The honourable member for Barker is attempting to take a point of order. He has not readily identified it. I would caution him against taking a specious point of order that will absorb the time of the honourable member for Burke.
- Mr Justice Staples in his judgment -
-Order! The honourable member is debating the matter. He will resume his seat.
-It is typical of the tactics of Government members. Every time the truth is told they want to stifle discussion.
– Read his judgment.
-Agreement was reached between the union and the brokers that the brokers would not appeal against Mr Justice Staples’ decision after he had done his work value exercise. The employers ratted on that deal. We all know where we stand when people rat on agreements with us. Who can blame the unionists for taking the action they did? This was not something Mr Justice Staples did off the top of his head. After months of intensive inquiry into the industry, with inspections of the work the men do, he came forward with wages increases for the workmen of $12 plus and $15 plus. Who appealed against that? The impoverished wool brokers. Let us look at some facts and figures on that. The statistics gathered by Mr Justice Staples show quite clearly that in the industry there has been a reduction in wages of 6.2 per cent and an increase in productivity, measured by bales received over man hours worked, of 13.4 per cent. So while there has been an increase in productivity of 1 3.4 per cent, there has been an actual reduction of 6.2 per cent in wages paid. There has been an increase in the value of wool sold at auction of 1 1 per cent, and the wage increase granted by Mr Justice Staples was 7.4 per cent.
– What has the value of wool got to do with it?
-If the honourable member has the wit to add, divide and subtract, he will find that, on a productivity basis, the increase granted by Mr Justice Staples was a very modest increase indeed.
There is no substance in the arguments put to the chamber today by the two Government members. Everybody knows the effect this dispute must be having on Australia as a supplier of wool. We all know about that. The Japanese industry knows about it. All our buyers know about it. Instead of trying to sheet the blame home to men who are being paid $24 a week above the poverty line, why not have a look at Elders and Dalgetys? Why not talk to the brokers about it? The 40 per cent of Government supporters in this chamber who are graziers ought to be talking to the brokers. The brokers are ripping them off right, left and centre, and it has nothing to do with the wages paid to the storemen in the industry. That is where Government supporters ought to be looking. A report in today’s Australian Financial Review states:
Elders’, which is Australia’s biggest pastoral house, yesterday announced a 60 per cent jump in net operating profit . . .
It has had a 60 per cent jump in profit; yet the Government is talking about a miserable seven per cent increase in wages for the working men. Elders can get away with a 60 per cent profit and the Government does not say a word about it. When the blokes who are doing all the work, bending their backs carting 240 lb and 400 lb bales from Nareen to be loaded onto ships to go to Leningrad, the Government does not demur. It does not demur at all about Elders and Dalgetys. All it wants is to do its usual stint of union bashing. If we are to have reasoned debate in this place about this issue- it is difficult to speak about it without being emotional- as the honourable member for Port Adelaide said, why did not Ministers say something about it?
The honourable member for Hume (Mr Lusher) told us today that a working party comprising the Government, the graziers and the brokers has been set up to try to find ways in which to solve the dispute. I will tell them how to solve it: Stop using the Full Bench of the Conciliation and Arbitration Commission as an economic tool to try to undo the mess that this Government has got. this country into. Everybody knows that the inflation rate is rising. Let honourable members speak to any housewife in the country. She will tell them how much more it is costing her at the supermarket. The Government should try to convince the housewives, but it never can. Prices are rising. Wages have nothing to do with the situation, but the Government thinks that it is great to pin everybody down to an increase of a miserable $8 a week so that these guys earn $32 a week above the poverty line. It ill becomes honourable gentlemen sitting in this chamber, on the salaries that we all receive- I am not ashamed of mine because I work for it- to tell other sections of the community that they ought to be trying to survive on a wage which is $32 a week above the poverty line. That is the national disgrace. If there were any sensitivity amongst honourable members opposite and if they really wanted this dispute settled, they would find it easy to do that.
Simon Crean, the Federal Secretary of the Federated Storemen and Packers Union of Australia, is waiting by his telephone now. The employers have broken off negotiations and refuse to talk any further. That will certainly go a long way towards resolving the dispute! As of today they have told the union that they have nothing further to say to it. So clearly it is not in the mind of the employers to negotiate a situation in which the men can return to work. They have no intentions of letting the men go back to work. They want to starve them into submission. They will fail, because the members of the Storemen and Packers Union are not the only ones involved. That union may be in the front line at the moment, but another 13 unions are involved in moving this wool from where it stands to where it has to go. We have a saying in the trade union movement: ‘If you hit one of us you hit the lot of us’. We are like the Irish brothers, so to speak. In that sense it is lunacy for the Government, if it is so doing, to adopt the tactics that two of its back benchers have told us it is adopting. I sincerely hope that commonsense will prevail amongst members of the Government and that they will see the error of their ways.
It is true that there are procedures for appeal. I think the honourable member for Wilmot (Mr Burr) said that every party to a court hearing has the right of appeal against a decision. Okay, the workmen are appealing against a decision that was made by the Full Bench of the Commission. How about that? If it is good enough for the employers to do it, why is it not good enough for the workmen to do it? There is absolutely no substance in the matter that has been brought before the House. When the workers and all the other people in this country are paying high prices for petrol, when the economy is in a mess, when inflation is rising, when prices are going through the roof and when interest rates are jumping, the time of this House would be better spent in discussing matters which are bread and butter issues for all Australians instead of trying to belt hell out of the Storemen and Packers Union and attempting to impoverish workmen who work very hard and are trying to exist on a wage which is $24 above the poverty line. In one sense that may express the nature of this Government, but the Government must stand condemned in the eyes of the Australian community for as long as it avoids the important issues.
Mr DEPUTY SPEAKER (Mr Drummond)Order! The honourable member’s time has expired. The discussion is concluded.
- Mr Deputy Speaker, I seek your indulgence to deal with a matter which was raised in the course of this debate relating to the incorporation of a document. The honourable member for Port Adelaide (Mr Young) sought leave to incorporate a document. In view of the fact that the Prime Minister (Mr Malcolm Fraser) received leave during Question Time to incorporate a document, leave is granted to incorporate this document. I make the point though, that the Government cannot be expected in the normal course of events to grant leave to incorporate a document if it has not had an opportunity to study the document.
– I apologise to the Minister. We received this document just before I spoke. As the Minister knows, what the Prime Minister said was a letter is not a letter; it is typed from a cable, just as ours will have to be. So the bloke in Japan is sending a lot of cables.
The document read as follows-
Following is text of a Message from Japanese Textile Union: “On behalf of 460,000 members Japanese Federation of Textile Garments Chemical Distributors and Allied Industry Workers Union (Zensen) I wish to extend our solidarity to your present strike. Adamant attitude and policy of A.W.C. towards your SPU cannot be tolerated even by our Japanese workers who are only indirectly involved. A.W.C. irresponsible attitude has resulted in stoppage of Australian wool shipment to Japan thus threatening closure of mills and 20,000 jobs in Japanese wool industry who are members of our union. Should this situation continue some fear increasingly exists that wool goods share in Japanese consumer market and production which is presently only half of 1973 output will further decrease drastically. The industry has only recently managed with marginal profit after a long bitter struggle since the oil shock of 1973 which saw a drastic cut in our labour force from 45,000 to the present 20,000.I can only pray that our members are not again subject to the same frightening sacrifices of recent years. Kindly be informed we had strongly protested to A.W.C. by cable and appealed to your Prime Minister, Mr Fraser requesting his timely efforts in settling the dispute. We assure you our full co-operation in whatever possible and wish your demands quickest solution and great success with best wishes and fraternally.
Tadanobu Usami President Zensen, Tokyo “ ends
Simon Crean General Secretary
Federated Storemen and Packers’ Union of Australia
Melbourne 3.20 pm
Debate resumed from 20 November 1979, on motion by Mr Fife:
That the Bill be now read a second time.
- Mr Deputy Speaker, may I have your indulgence to suggest that the House has a general debate covering this Bill and the Customs Amendment Bill (No. 5) 1979 as they are associated measures. Separate questions will, of course, be put on each of the Bills at the conclusion of the debate.
-Is it the wish of the House to have a general debate covering the two measures? There being no objection, I will allow that course to be followed.
-Mr Deputy Speaker, I wonder whether I could have your indulgence to make a very short intervention in this debate for the purpose of indicating that the Government has made known to the shadow Minister concerned some amendments that it proposes to make to this Bill which was introduced by my predecessor. I will elaborate on that matter in my reply to the second reading debate, but I indicate that the major amendment is to alter the qualifying period for automatic discharge from bankruptcy from five years to three years, not to two years as appears in the Bill which was introduced into the House last November.
-Mr Deputy Speaker, I seek your indulgence to try to get from the Minister for Business and Consumer Affairs (Mr Garland) further elaboration of the points which he has made. The amendments have only just been drawn to my notice and the Bill is quite a voluminous document. I was wondering whether the Minister could give the Opposition some indication of the attitude of the Government and of the reasons for bringing these amendments before the House. In view of the extremely complicated nature of the Bankruptcy Amendment Bill, it would lead to good government and to a better situation in the House if the Minister for Business and Consumer Affairs, who is at the table, could give us some idea as to the motivation which prompted the Government to introduce these amendments.
– If the Minister cares to exercise that indulgence, nobody on the Opposition side is standing.
– We want this explanation before we speak.
Mr GARLAND (Curtin-Minister for Business and Consumer Affairs)- The honourable member for Port Adelaide (Mr Young) should not be too high minded or the obvious comment will be made. With your indulgence, Mr Deputy Speaker, this Bill was introduced into the House last November by my predecessor. As the honourable member for Banks (Mr Martin) has said, it is a very complex and lengthy Bill containing the first substantive amendments to the Bankruptcy Act for some 14 years. The Government has indicated to the Opposition spokesman on these matters, the honourable member for Adelaide (Mr Hurford), who is now at the table, that it will be moving a number of amendments at the Committee stage. My purpose in announcing to the House a few moments ago the major change, namely, that to the qualifying period for automatic discharge from bankruptcy, was to alert honourable members who will be speaking in the debate and who may be complaining about that change that in fact the Government had decided to amend it from the existing five years to three years and not to two years as was originally proposed.
-For a number of reasons I thank the Minister for Business and Consumer Affairs (Mr Garland) for his explanation and I thank the honourable member for Banks (Mr Martin) for his question and for his participation in this matter. The Opposition proposes at the outset to move an amendment to the motion that the Bankruptcy Amendment Bill be read a second time. I move:
The Bankruptcy Amendment Bill aims to amend the Bankruptcy Act 1966 which came into operation on 4 March 1968. That Act was introduced following a comprehensive review by a committee chaired by the late Sir Thomas Clyne. The Act reflects a philosophy of bankruptcy which derives more from nineteenth century English legislation than from modern business practice and contemporary social attitudes. It is for this reason that the Opposition is pleased to note that a number of changes are provided in the Bankruptcy Amendment Bill in respect of the rights of debtors and creditors. In general, these changes are in the right direction and bring the bankruptcy law more into accord with modern credit and business practice as well as contemporary community attitudes. So we do not oppose the second reading of the Bill although we do have a view which we put in our amendment to the motion for the second reading. The existing law has become increasingly inappropriate in the face of these changes. Indeed, it is the Opposition’s view that a more substantial review of the philosophy and provisions of the bankruptcy law than is achieved by this Bill is warranted, and I will discuss that point further in this speech.
Before explaining in detail the concerns of the Opposition as set out in our amendment to the motion for the second reading of this Bill, I would like to make mention of some of the main provisions of the Bill and to indicate the Opposition’s attitude to them. Firstly, the Bill provides for the establishment of a Common Investment Fund which will pool the resources of bankrupt estates. The interest proceeds of this fund will go part of the way anyway towards meeting the shortfall of revenue over expenditure incurred in the administration of the bankruptcy law. The Opposition supports the establishment of this Fund. We accept that an increase in fees would not be an effective or equitable means of reducing the shortfall since smaller States would not be able to pay and larger States may be induced to seek private trustees. We note, however, that the Fund is expected to meet less than one-third of the shortfall, which shortfall was over $2m in 1978-79. It is to be hoped that improvements in the administration of the bankruptcy branch, together with a reduction in the incidence of bankruptcy will come to reduce this shortfall further so that the taxpayers of this nation will not be subsidising this area of concern.
We are aware of hardships suffered by many small creditors. They will feel that they should benefit from the interest on this Fund. Our attitude is that bankruptcy administration should be improved so that creditors do not have to wait for so long. Beyond all this, however, one can make the point that creditors have the option of choosing private administration. They are not invariably forced into the hands of the Official Receiver and if they choose private treatment they will know just how well off they are in being subsidised by the taxpayers.
The second point I want to make about the Bill is that it provides for a number of procedural changes which should lead to the simplification of the administration of bankruptcies. Again, the Opposition generally agrees with these changes. Clause 37 of the Bill provides, for example, for the Registrar to dispense with unnecessary public examinations insofar as bankrupts are concerned. The Opposition is aware, however, that such procedures can in some instances be very much in the interests of the public or of minority creditors. Indeed, it would appear that a public examination of debtors should be provided for in some cases where it is presently not required. I believe that this particularly relates to Deeds of Arrangement under Part X of the Bankruptcy Act. There have been judicial decisions and other instances where it appeared desirable for public examinations of debtors to have occurred. It is not clear that the provisions of the Bill relating to Part X of the Act are adequate to meet all the problems which have arisen in this area- for example, in the case of Patrick Partners in 1 976. This area of the law is very technical. It can be competently dealt with only by a thorough review. Instead, the Government has opted for a patch-up of the existing provisions relating to Arrangements with Creditors without Sequestration’ rather than a comprehensive review from first principles. This, to an extent, is disappointing, in view of the fact that this area of the law has been subject to the greatest public disquiet.
I mentioned Patrick Partners earlier. Members of this House will know that I refer to a particular member of the House who was able to use these provisions to sidestep examination of the sort that many believe should have been applied.
- Mr Deputy Speaker, I take a point of order. The honourable member for Adelaide, intentionally or otherwise, has used words which clearly cast an aspersion upon the honourable member for Macarthur (Mr Baume). I am sure the honourable member for Adelaide did not intend to do so, but in the absence of the honourable member for Macarthur and as a member of this House, I ask the honourable member for Adelaide to withdraw the imputation he has just made.
-Mr Deputy Speaker, on the point of order, I am stating facts that there is disquiet. I have a full right to raise them in this House. I state that there is disquiet. This Bill is about that disquiet. It is about changing provisions and I am stating that those provisions are not sufficiently changed in this Bill.
-I am sure that the remarks made by the honourable member for Adelaide will be brought to the attention of the honourable member for Macarthur and will be made the subject of a personal explanation or of other forms of the House.
-Furthermore, this section of the Act will be the subject of further suggestions and recommendations from the Deputy Leader of the Opposition (Mr Lionel Bowen) when we come to the Committee stage of the Bill because we will have some positive suggestions to make as to how this area should be improved so that people who ought to be examined are so examined in circumstances such as those that I have just referred to. The Opposition believes that this is one of the main areas of legislation which should be the subject of a comprehensive review by the Australian Law Reform Commission.
The third point I want to make about the Bill is that it provides for a number of changes in the respective rights of debtors and creditors under bankruptcy. As I have already indicated, the Opposition generally welcomes these provisions, but I put the emphasis on ‘generally’. I want to draw the attention of the House to the recommendations of the Senate Standing Committee on Constitutional and Legal Affairs. That Committee has made recommendations that the Commissioner of Taxation should not be so prominent in the priority he has been given. The main recommendation of that Committee, as set out on page 70 of the report, reads as follows:
This recommendation has been largely accepted by the Government, I concede, except that tax instalment deductions were excluded as were withholding taxes on dividends remitted overseas. Tax instalment deductions are estimated to be the main item, almost 50 per cent of revenue loss which would occur due to abrogation of Crown priority. In relation to this provision of the Bill in changing the respective right of debtors and creditors under bankruptcy, I believe that the order of priority in the payment of debts should be reviewed continuously. In particular, the vulnerable position of employees should be monitored. In relation to this we have the special problem with the definition of ‘employee’ and ‘employment’. For example, agents such as commission sales agents appear to have no recourse, since in the common law they are not within the definition of ‘employee’ in terms of the master-servant relationship. Therefore, as
I understand it, such agents do not enjoy priority in the payment of debts. Perhaps the Minister will comment on that point in replying to the debate.
Bankruptcy is a procedure which changes the status of a debtor. Although it provides him with a number of benefits, it also imposes certain important disabilities. Accordingly, in the view of the Labor Party, it is desirable that the law should be so designed as, first, to encourage the use of voluntary schemes, such as deeds of arrangement for the regular payment of debts. These have the effect of avoiding many bankruptcies. Secondly, it should be so designed as to ensure that discharge from bankruptcy can be achieved at the earliest possible date consistent with the best interests of both debtors and creditors.
The Bill remains deficient in measures to enable regular payment-of-debt programs to be introduced as an alternative to bankruptcy. This is another aspect which the Opposition believes, following the work on the topic which has already been undertaken by the Australian Law Reform Commission, should be subject to further review. However, the Bill does make provision for a change in the period of bankruptcy. I understand that this matter has been the subject of continuous debate. Indeed, it is very much a matter of judgment. The fact, of course, is that the ideal period before a bankrupt can most satisfactorily be released from bankruptcy varies from case to case. The setting of statutory periods is inevitably a compromise between conflicting objectives of justice and efficiency and the Opposition will not oppose the relevant amendments to be proposed by the Government. The Government having changed its mind on the matter, the Opposition will not oppose that change of mind at the Committee stage. I take this opportunity of thanking the Minister for observing the normal courtesy of giving me advance notice of those changes- as I have already thanked him for announcing them to the House at the beginning of the debate and thus enabling me to get here.
The Minister will, I know, seek to amend the Bill to provide for a statutory three year period, with a right of objection by creditors continuing for some time. This will replace the alternative set out in the original Bill, of two years combined with the right of objection by creditors. I repeat, the Opposition will not oppose that change.
I return now to the amendment proposed by the Opposition. Firstly, there is concern at the increasing number of bankruptcies. In the three years since 1975-76 there has been a 103 per cent increase in its incidence. In that year there were 1,900 Part IV and Part XI bankruptcies. In 1978-79 there were 3,857 such bankruptcies. There has also been a 92 per cent increase in the number of Part X administrations. This represents an enormous increase, and one about which the Labor Party is very concerned.
Some 18 years have now passed since the Clyne Committee reported. In the interim quite substantial changes in credit and business practice have occurred in Australia. In the context of insolvency and bankruptcy, perhaps the most important of these have been: Firstly, the significant growth in the provision for consumer credit; secondly, the significant relative growth of the non-bank financial intermediaries, such as finance companies, as a source of loan funds; thirdly, the general increase in the proportion of business activity which is financed by debt rather than by equity capital.
Each of these trends implies an increasing reliance of the community on debt. Whereas this may have been acceptable in the more certain era of economic growth of the 1950s and 1960s, in recent years the risks associated with high debt burdens have resulted in a dramatic increase in both bankruptcy and insolvency in general. In these circumstances it is not sensible to conclude that bankruptcy law stands as an incentive for greater responsibility to be accepted by debtors. Indeed, in many instances of insolvency in our community the responsibility lies either in forces beyond the control of the parties concerned or, regrettably, squarely on the shoulders of creditors who have been all too willing to impose heavy interest burdens on the public- indeed, all too willing to give credit generally. An example of willingness to impose heavy interest burdens has been provided by mortgagee sales of houses by finance companies. An example of willingness to give credit has been provided by the explosion in the last two years of credit-financed small retailing. Beyond all that, the Government’s economic policies have caused many bankruptcies, particularly in the small business community. In the last four years of the Fraser Government we have had an economic policy of seeking salvation through stagnation. That has imposed an enormous burden on those who have sought to engage in economic activity in the community and has been one of the main causes of the great increase in the numbers of bankruptcies.
-That is right. There is no question about that.
– As the honourable member for Hawker says, there is no question about that. Some 18 years have now passed since the Clyne Committee reported and all of the things that I have described have happened in the interim. For these reasons, the Opposition believes that the bankruptcy law should be reviewed comprehensively, not merely to raise more funds for, and streamline, its administration, but to alter the basic philosophy which underlies its provisions. This is essential in view of the quite dramatic social, economic and political changes which have occurred and will continue to occur in our society.
I have referred already to the desirability of schemes which enable debtors to meet their commitments without being forced into bankruptcy. I have referred also to the problems which exist, and will largely remain, in relation to Part X of the Act, particularly where partnerships are involved. The Bill is not a fully comprehensive review in the sense that is now desirable. These provisions, and the whole question of the applicability of the bankruptcy procedures in a large number of cases, should be reviewed. We note that the Australian Law Reform Commission has requested a reference to undertake such a broad review. We support that request and, indeed, give voice to it in our amendment.
It must be recognised, of course, that reform of bankruptcy law is very much a remedial measure. It cannot be expected to alter radically the incidence of the type of circumstances which lead to bankruptcy. Its main objectives can only be to ensure that the effects of bankruptcy are minimised. One way in which to seek the avoidance of bankruptcy is the provision of better business education, for small business people in the community particularly. I hope indeed that Government will provide more help in this regard in the years to come. Certainly a Labor government will when it takes office at the end of this year. Reduction in the number of bankruptcies requires policy action on a very broad front. One avenue is that of management education. A second is that of changing the practices of credit providers, where these require substantial review. Again, the Government’s policies in such areas as structural, technological and regional change could be altered to ensure much more effective management of change. For instance, in such an environment businesses and individuals are more likely to be able to conduct their affairs without undue risk of insolvency. They will be able to plan more effectively.
Again, a less restrictive monetary policy on the part of the Government will create conditions for a recovery in economic activity, as well as a more acceptable general level of interest rates. I grieve for the many in business who are so burdened with the increasing interest rates that are now to be imposed upon them at this time. Those increasing interest rates will impose such a burden that we will have even more bankruptcies than we have had hitherto. I have already pointed to the fact that, without this burden, the record of recent years has been very poor indeed.
The Commonwealth does not have full power in respect of all these areas of activity, but it does have power in respect of most of them. I realise that much of the law relating to the provision of credit and insolvency, is vested in the States. A review of the whole area of the law will involve company as well as private insolvency. Therefore, the co-operation of the States will be required before such a review can be undertaken satisfactorily. However, The Australian Law Reform Commission is well set up to be able to cross State boundaries and undertake the review in the State area as well as in the Federal area. The Opposition is of the view that the Australian Law Reform Commission should receive this reference as soon as possible. I urge the Government to begin steps to gain the necessary cooperation to bring this about.
I trust that those remarks fully explain the reason why the Opposition is moving its amendments at the second reading stage. I have a few words to say about the other Bill, which is the subject of this cognate debate, namely the Customs Amendment Bill (No. 5) 1979. It is a machinery measure which is consequential upon the passing of the Bankruptcy Amendment Bill. The second reading speech of the Minister shows that the enactment of the Bankruptcy Amendment Bill 1 979 will create a new statutory corporation, the Official Trustee in Bankruptcy, to replace individual official receivers as trustees of bankrupt and deceased estates and, consequently, the trustees functions carried out by official receivers under the Customs Act will have to be transferred to the Official Trustee in bankruptcy. I gather that is precisely the mechanism which is achieved in the second Bill. The Opposition, of course, as it is not opposing the Bankruptcy Amendment Bill, being of the opinion that a little is better than nothing, will not be opposing the consequential amendment. As I resume my seat I repeat the views of the Opposition that a second reading amendment is needed and so I have moved that amendment.
-Is the amendment seconded?
– I second the amendment and reserve my right to speak.
-I support the Bankruptcy Amendment Bill 1979 and congratulate the Minister for Business and Consumer Affairs (Mr Garland) and his predecessor on bringing into this Parliament, for the first time in 14 years, comprehensive amendments to the Bankruptcy Act 1966. It has been no mean feat to prepare the amendments which we now have before us. I say, with the greatest of respect to the honourable member for Adelaide (Mr Hurford), that the 174 clauses set out in this Bill are the result of a considerable amount of work.
I take the opportunity to congratulate, through the Minister, both the senior officers and advisers present in the chamber today and those who, on previous occasions, came before our Government back benchers Law and Government Committee and other back bench committees and not only gave us the benefit of their experience with respect to the proposed amendments but were prepared to listen to some of the proposals which came forward from back bench members. I take the opportunity also to congratulate all those involved in the administration of bankruptcy in this country over many years with the herculean task they have carried out, notwithstanding the intricacies and technicalities of the legislation. It has been my experience also- although I have not practised law to any great extent in the field of bankruptcy- that not only have they dealt with the ramifications of the legislation with great and meticulous care, but they have injected into the administration of bankruptcy in this country a compassion and an understanding which is perhaps not so injected in some other countries of the world.
We have only to turn our minds back to the last century and the writings of Sir Charles Dickens to recall that debtors prisons were very much an accepted form of the economic and commercial life of the United Kingdom literally a little more than 100 years ago. If we have done anything in the twentieth century I think we have at least now reached the stage of accepting that an honest debtor who gets into debt, through no dishonest or corrupt means, should not be the subject of punishment per se, should certainly not be imprisoned, but should be counselled, rehabilitated and assisted. It is very significant that in the amendments to the Bankruptcy Act brought forward by the Minister and his predecessor there is a compassion and an understanding for the first time I have seen in any piece of legislation dealing with bankruptcy. I recount that as a very junior articled clerk I have stood or sat in courts and seen debtors fined and imprisoned for non-payment of debts. In some cases, in fact the majority of cases, the people were unrepresented legally and in many cases they were totally inarticulate; yet I have this memory of people being taken from the Courts of Petty Sessions and locked up.
The more enlightened approach to the commercial law of this country has come to a recognition that we do not, prima facie, punish people who get into debt as was the tradition in the last century and for most of this century. We now endeavour to rehabilitate them and assist them.
There must be nothing more galling, more humiliating and more hurtful than for a small businessman who has striven over a number of years to build up a business to find himself in a situation of insolvency culminating in his bankruptcy either on his own petition or on a creditor’s petition. With the utmost of respect to my friend, the honourable member for Adelaide, who basically made a very sensible speech, it is completely erroneous to quote bankruptcy figures and to put them into a political context. I say- I say this on the basis of authority- that for many of the people who have gone bankrupt during the period of the current Fraser Government, the seeds of the destruction of their businesses were sown in years before we came into power. I want to make that point very bluntly. Many people were able, through sheer hard work, to recover their situation, but there were many who could not be saved. The damage was not done by Liberal policies; it was done by the socialist policies of the Whitlam Government from 1972 to 1975. My colleague opposite, the honourable member for Hawker (Mr Jacobi), is champing at the bit. If he wants to mount a case that the high number of bankruptcies over the last two or three years are the result of our policies I want to put to him, as one who respects his objectivity very much, that he should look at the figures over the next five years before he casts his judgment on the economic performance of the present Government. He will see our record. The wages of sin we have seen in the last five years are the result of the policies of the Whitlam socialist government from 1972 to 1975.
The two main purposes of the Bill are, firstly, to provide for a common investment fund to provide for a more equitable adjustment of the rights of both debtors and creditors and also to help defray the administration expenses of bankruptcy; and secondly, to improve the administration and effectiveness of the Act. I wish to read into my remarks perhaps the best definition I have read of the way to approach the situation of bankruptcy. It comes from the Clyne Committee report and in particular paragraph 7. I simply read it into the record:
It is accepted by the community that when a debtor has reached such a position that he is no longer able to pay his debts in full and there is little prospect of his being able to do so, his property should be made available, through a trustee, for distribution amongst his creditors on an equitable basis; and that, after all his property has been so made available, he should, if his financial difficulties have been brought about by misfortune rather than dishonesty or extravagance, be released from his liabilities and be given an opportunity to re-establish himself with as little delay as possible. The Committee equally believes that there is need to provide for the punishment of bankrupts who are dishonest and to safeguard the community against the early release of such persons from their liabilities and from the close supervision provided by the bankruptcy law.
So there we have it. In the case of genuine misfortune, incompetence, negligence or anything falling short of those specific words ‘dishonesty and extravagance’, I believe that the bankrupt is entitled to as much protection as indeed is the creditor. My experience has been that those administering the law have recognised that fact. Where a bankrupt is under attack, if I can use that phrase, from some creditors and when some of those creditors have, to a large extent, contributed to his bankruptcy but then have become very avaricious, I have often wondered whether we should not have a provision for what I would call contributory negligence with respect to bankruptcies. I do not suppose that the administrators would particularly like to have to make some of the judgments they would be called on to make, but it galls me when I see a person who gets into a situation of bankruptcy, to a large extent, because of the conduct of the very creditor who then files the petition and obtains the sequestration order.
The court, of course, has little discretion to decline an application made by a creditor who is in a position to comply with the provisions of the Act. The establishment of the Common Investment Fund is a sensible move and follows precedent already established in the United Kingdom. Like the honourable member for Adelaide (Mr Hurford), I believe it is a far more effective way of raising revenue to help offset the cost of administration than is the raising of fees. I did note that in his second reading speech the previous Minister for Business and Consumer Affairs, the present Minister for Education (Mr Fife), said:
It was estimated that, in a normal year, this interest-
That is, the interest raised from the Common Investment Fund- should increase the revenue from the bankruptcy administration by about 3 3 per cent over current receipts.
It is a somewhat significant figure. That will mean that, to a large extent, we will not have increases in fees in respect of the administration of bankruptcy for at least the next few years so that certainly is a good move.
I support the establishment of the corporation to be known as the Official Trustee in Bankruptcy. This is not just a lawyer’s point; it is very important that trustee functions be clearly separated from the person who is the legal entity holding the trust property. It is a point which I believe now puts beyond doubt the clear roles and which establishes some degree of certainty in the minds of those charged with the administration of the Act. I welcome the initiative in the Bill which seeks to dispense with unnecessary meetings of creditors and public examinations. I believe that this initiative is long overdue and that many public examinations have been totally unnecessary. They have served only to be yet another harrowing experience for the person in a situation of insolvency as he goes through the legal machinery which eventually leads to bankruptcy.
If I have any complaint, it is that one clause of the Bill in my view does not go far enough. Perhaps that is, if I can say so with respect, the most important thing that I want to say in respect of this Bill. Clause 41 of the Bill amends section 82 of the Principal Act. This clause, in very simple terms, facilitates the proving of a debt with respect to arrears of maintenance payable by the bankrupt to his wife and to his dependants. I recognise that that is a good step forward. It means that the simple registration of the judgment of the court saying that there are arrears of maintenance is accepted immediately as a debt provable in the estate. I further recognise that quite independently of the bankruptcy administration, the wife on her own behalf and on behalf of her children can take separate proceedings for the enforcement of the maintenance order made in her favour. But the question I ask this Parliament rhetorically is this: Why should the Deputy Commissioner of Taxation be paid as a preferred creditor in advance of wives and children with respect to whom arrears of maintenance have been accumulated?
Let me take this precise case of a bankrupt whose assets realise, we will say, $10,000. We will also assume that the bankrupt is incapable of working. Indeed, we will go further in this instance I present and say that he is receiving the unemployment benefit. The Deputy Commissioner of Taxation as a preferred creditor lodges a claim for $3,000. So $3,000 of the $10,000 is gone. But what of the waster who has run up maintenance arrears of $5,000 due and payable to his wife and children? They are not counted as a preferred creditor and they should be. They will rank along with the butcher and the baker and any other tradesman in the split up of the other $7,000. Is this fair? So I particularly appeal to the Minister, who is a man of compassion and understanding, to have another look at this matter, because it is not sufficient to say that the wife has other remedies. If a man is out of work and on the unemployment benefit, the court cannot extract blood from a stone. But if he has assets in the bankrupt estate, I believe that the wife and the children should be given preferred creditor status.
I hope that every member of this House who believes in the family supports that proposition in principle. Employees are given preferred status, as the honourable member for Adelaide pointed out- and rightly so. There would be some people in the community who would say that if we give employees preferred creditor status, we must, if we are consistent, extend the same privilege to the wife and children. I think that it is criminal that people can accumulate thousands and thousands of dollars of arrears in maintenance, that they can go bankrupt and that any money in their estate which ought to go to the wife and kids goes to the Deputy Commissioner of Taxation first, then to the employees. The wives and kids join the queue for their share of the rest. I put this point forward on a completely bipartisan basis. I see opposite me three honourable members who, I know, are genuinely concerned with the equities of the administration of justice. I make the appeal on a bipartisan basis that we look at this matter.
Putting it in simple terms, I believe that those to whom maintenance arrears are owed should be preferred creditors. They should be allowed to receive their money as preferred creditors and not simply have the ranking of ordinary creditors. It could make the difference for example, whether a 16-year-old daughter recipient of a maintenance order was able to go on to tertiary education. It could mean a lot of very big things. It just seems to me that where there are assets in the estate and where the bankrupt does not have the income to comply with the order, the wife and children should be preferred creditors. I make this plea on a bipartisan basis.
I now wish to refer to two other matters which appear in the most recent amendments which really are to the credit of the Minister for Business and Consumer Affairs. I support the lifting from $500 to $1,000 the amount upon which a person can be made bankrupt. Indeed, I suggest that that is a reasonable increase. It is an increase of 100 per cent. Persons ought not be subject to a creditor’s petition for a single debt, or indeed collective debts, of a lesser amount than $1,000. Secondly, I support the reduction from five years to three years the qualifying period for automatic discharge from bankruptcy. I commend the Government on this occasion for introducing retrospective legislation which will confer this benefit, immediately upon royal assent being given to this Bill, on those persons who are already bankrupt but who have done their three years. But I hasten to remind the House that this provision applies to automatic discharge only and that the court has the power to discharge a person from bankruptcy at any point of time upon application. There have been cases of a discharge being granted in a much shorter time than 12 months, and it may be granted for a variety of reasons. Quite obviously payment of the debts in full is one reason that comes to mind.
I can recall a case in Tasmania where a man had striven to repay his debts to the extent that he had had a total nervous breakdown. He was under psychiatric treatment and the doctor said that the mere fact that he had continued to remain bankrupt, that he was still on the records of the court as a bankrupt, was playing on his mind to such an extent that it was seriously and adversely affecting his health. The court expressed concern as to whether he may take some action against his own person because of his shame and humiliation. In that case a humane judge said: You have done your best. Any further pressure would be cruel’. He granted a discharge.
I did congratulate the officers of the Department involved in the administration of bankruptcy. None have worked longer, more arduously and with greater distinction under extremely difficult circumstances than those involed in the administration of bankruptcy in the city which is the centre of the electorate which I have the honour to represent, the electorate of Denison in the city of Hobart. The bankruptcy administration in Hobart has been shifted from pillar to post since I was in short pants. It has now reached a stage where I hope that, with reference to the Public Works Committee of the new Federal law court complex in Davies Street, Hobart, to be built at a cost of about $6m well spent in Denison, the bankruptcy administration and those charged with the administration of the law are given the opportunity of sharing, at a very early date, the occupation of those premises. The Minister will confirm that I have requested him to apply as much pressure as he can to his colleague from Western Australia, the AttorneyGeneral, the honourable Senator Peter Durack. The Minister in turn has given me a couple of names of Ministers upon whom I should apply a little gentle pressure.
The Federal law court building in Hobart would bring together for the first time all the administration for Federal law from bankruptcy to family law matters. It is a magnificent project and those involved in the administration of bankruptcy are entitled to share in this building. It will not be anything like the enormous construction on the shores of Lake Burley Griffin. It will be small and simple, but it will be adequate. I urge the Government to put the matter to the Public Works Committee at the earliest opportunity and hopefully, with the assent of that Commmittee, we will see construction of the building commence within a very short period. I support the Bill.
Mr DEPUTY SPEAKER (Mr Drummond)Order! The honourable member’s time has expired.
– I support the amendment to the Bankruptcy Amendment Bill 1979 for three basic reasons. Firstly, it expresses concern at the increase in bankruptcy in this country. Secondly, it does not provide for a full reform in the area in which I am interested, namely, Part X of the Act. Thirdly, it calls on the Government for a broad reference, particularly on the question of insolvency, to the Australian Law Reform Commission. Basically, the Bill restructures the law to give it ease of administration. To that extent I support the Bill. If ever there existed an indictment of a government for its ineptitude, its prevarication and its failure to protect the needs of the individual, the shareholder, the creditor, the debtor, deeds of arrangement and so forth, it is in the field of bankruptcy. I ask for leave to incorporate in Hansard a schedule of the annual numbers of bankruptcies in Australia from 1969 until 1979.
The document read as follows-
– The honourable member for Denison (Mr Hodgman) ought to be fair. In reference to what he said I will quote from the schedule which I have incorporated. It shows that from 1971 to 1972 the figure stood at 2,684. When Labor went out of office the figure stood at 2,061. However, since this Government came into office in 1975 the figure has dropped to 1,900. In the 1978-79 year the figure reached 3,857. Under Part X of the Act, the area in which I am interested, that represents a 7 1 .3 per cent increase in bankruptcies on the preceding year.
The appalling statistics on the escalation of bankruptcies which have occurred since this Government came into office can be sheeted home to two critical factors. Firstly, the Government is incompetent in handling the economy. Secondly, it has failed to update much needed legislative reform in four important areas. These are company law, securities law, the need for appropriate criteria for accounting procedures and, lastly, bankruptcy. I have three major criticisms of the Bill. Clause 50, sub-clause ( 1 ) amends the provision of the Act relating to the classes of claims which are entitled to be paid in priority to ordinary debts. In particular, the Crown priority in respect of income tax and social services contribution is omitted. This is in line with the Government’s decision to abolish all remaining Crown priorities in the Commonwealth sphere except in relation to tax instalment deductions, withholding tax dividends and interest remitted overseas.
This partial abolition of Crown priorities is in conflict with the very strong recommendation made by the Senate Standing Committee on Constitutional and Legal Affairs in its report entitled ‘Priority of Crown Debts, June 1978’. The Committee concluded:
The rights of the Crown to be paid debts owing to it in priority to other creditors of an insolvent administration should be abrogated entirely.
Among other things, the second criticism I have is that clause 50 sub-clause ( 1 ) also increases the priority claim limit from wages from $600 to $ 1 ,500 per employee. In the explanatory memorandum, the Minister for Business and Consumer Affairs (Mr Fife) explained that a limit was imposed for these reasons:
It is considered unlikely that any employee dealing genuinely at arms length with his employer would let his salary or wages accrue overdue to a figure in excess of $ 1,500.
If any limit is to be imposed $1,500 would seem to be an unrealistic maximum. The current high level of wages, combined with such basic factors as monthly pay periods, could effectively produce a claim well in excess of $1,500 within the space of only two pay periods. That ought to be considered. It is difficult to see why any limit should be imposed given that all other claims by an employee, that is, worker’s compensationthe previous $2,000 limit having been abolished under this legislation- long service leave, annual leave and sick leave, are not subject to any monetary limit. Whilst the Minister also implies that any claim for wages above $1,500 would be, if anything, suspicious, it should be remembered that all creditors must supply proof of a debt to the trustee of the bankrupt. The trustee would be eminently qualified to determine the validity or otherwise of such a claim. That ought to be reconsidered.
In a report entitled ‘Insolvency: The Regular Payment of Debts of 1977’, the Australian Law Reform Commission paid particular attention to the problem of individual and non-business insolvency which is specifically provided for in the Act. The report of the Commission concludes:
The procedures available under the Bankruptcy Act do not constitute adequate provision to enable small or consumer debtors to compromise or discharge their debts from their assets or their earnings.
I ask leave of the House to incorporate in Hansard the Law Reform Commission’s ‘Summary of Recommendations’ in the report on Insolvency: The Regular Payment of Debts.
The report read as follows-
SUMMARY OF RECOMMENDATIONS
Regular Payment Plans
Thousands of non-business debtors become insolvent each year, sometimes as a result of unemployment, illness or accident; sometimes from understandable over-extension of their income. Those who become insolvent are often quite unable to handle the crises which confront them. The law in Australia lags far behind some other jurisdictions in assisting them to rearrange payment of their debts and to avoid recurrences of their debt problems. The Bankruptcy Act provides a means for insolvent debtors to rearrange their debts and avoid bankruptcy, but the procedures are costly, cumbersome and inappropriate for the needs of non-business debtors. We have received numerous submissions from a wide variety of sources calling for the introduction of new procedures. Our recommendations are that:
A Regular Payment of Debts Program should be established, laying down the procedures to be followed in assisting non-business debtors to enter into regular payment plans (Paras. 43 S).
The procedures should be available outside bankruptcy. They should be aimed not only at arrangements providing for extension of time for payment of debts, but also at arrangements providing for composition or rateable reduction of debts, where payment in full is not expected (Para. 56).
The procedures should be available to an insolvent non-business debtor in respect of non-business debts, provided that his total indebtedness (excluding home mortgage) does not exceed $ 1 5,000 (Para. 46).
The procedures should be operated in a given case not by the debtor himself but either by a separate official within the Department of Business and Consumer Affairs (the Administrator of the Regular Payment of Debts Program) or, alternatively, by a debt counsellor licensed by the Department (Paras. 45, 99).
The procedures should not involve meetings of creditors. Instead, use should be made of the mail both as a means of informing creditors of a proposal and as a means of creditors signifying their approval or disapproval of a debtor’s proposal (Paras. 69, 70).
The debtor’s proposal should indicate the extent to which he proposes to pay his non-business debts over a maximum period of three years. It should contain a full statement of his financial position (Paras. 54, 55).
The proposal should become operative and binding on all creditors unless more than one half of the creditors in number and amount indicate that they reject the proposal (Para. 69).
Creditors should be restricted from further recovery action whether by legal process or otherwise. A secured creditor should not be permitted to realise his security, provided that the proposal ensures that his security interest will be adequately protected (Paras. 49 B).
A plan should not be terminated automatically by default on the part of a debtor, but a creditor might, after 60 days default, give notice of his intention to commence recovery action. The debtor should be granted fourteen days within which to apply to the Court for reinstatement in the plan (Paras. 77, 78).
Upon successful completion of the payments due under a plan, the debtor should be discharged from debts covered by the plan (Para. 79).
A debtor who remained subject to a continuing plan three and a half years after its commencement should be discharged from debts covered by the plan unless a creditor entered, and successfully maintained, an objection before the Court. The Court should uphold an objection if it believed that the debtor had not made honest and reasonable efforts to comply with the terms of the plan (Para. 79).
While the detailed procedures set out in the report may appear to be complex ones, the detail is necessary to give guidance in unusual cases as well as uncomplicated ones. For the average case, the procedures will be simple to follow and easy to administer.
The successful use of the Regular Payment of Debts Program is dependent, to a large extent, upon the availability to debtors of expert debt counselling, both at the time of operating the procedures and during the currency of their repayment plans. Our recommendations are that:
There be established by the Department of Business and Consumer Affairs a training scheme for persons wishing to become debt counsellors ( Paras. 106 ff).
That trained debt counsellors be licensed to operate the procedures of the Regular Payment of Debts Program, and generally to advise and assist insolvent debtors (Paras. 106 ff).
That funds payable under the proposed plans be paid to, and distributed by, the Administrator rather than licensed debt counsellors (Paras. 100 ff).
That any person other than a solicitor, trustee or tax agent who, under an informal scheme of arrangement, receives money from a debtor for payment to his creditors be required to be licensed for this purpose by the Department (Para. 22).
The Administrator should be required to publicise the Program as widely as possible ( Para. 118).
The Commission has also examined the arrangements which are made within bankruptcy for contributions by bankrupts towards payment of their debts. These arrangements normally apply to non-business bankrupts until the expiry of a period of five years from the commencement of bankruptcy. This is the present period for automatic discharge from bankruptcy. In view of the circumstances of most non-business bankrupts, and in view of the social, commercial and ecnonomic changes which have taken place since the present rules were first adopted, we recommend that:
. A non-business bankrupt should be automatically discharged from bankruptcy six months from the commencement of bankruptcy, unless an objection is made in the final month of that period either by a creditor or by the Official Receiver (Para. 144).
The debtor’s discharge should be delayed or made subject to conditions only if the Court is satisfied that it is appropriate in all the circumstances that discharge of the bankrupt would be unconscionable in all the circumstances or that he could make a substantial contribution from income toward payment of his debts for a period not exceeding three years (Para. 144).
. In determining whether a debtor ‘s discharge should be delayed or made subject to conditions, the Court should pay attention to the need to rehabilitate debtors as well as the need to protect the interests of creditors. It should have regard, in particular, to the age and health of the bankrupt; to the circumstances which obtained at the time he undertook the relevant obligations; to his understanding of, and experience in, the handling of credit; to any departure by his creditors from reasonable commercial practice; and to the extent to which he has undergone debt counselling since he became bankrupt. It should pay particular attention to the bankrupt’s obligations in respect of the maintenance of his family and of the provision of education for his children (Paras. 145 ff).
-I come now to Part X of the Bill. On 7 January I wrote to the Minister in the following terms:
On 22nd March, 1977, I asked upon notice … a question of 14 parts of the then Minister for Business and Consumer Affairs . . .
In particular, I draw your attention to the following statements of the then Minister.
The Government is considering amendments designed to clarify the application of the provisions of Part X to partners who seek to have their partnership affairs administered under Part X.
and (10) The Government is considering several amendments to Part X in the light of experience since the commencement of the Bankruptcy Act and because of decisions, including decisions in the matter of Patrick Partners, resulting injudicial interpretation of some of the provisions of the Part.
I would therefore seek from you, advice as to why no such amendments are included in the Bankruptcy Amendment Bill presently before the Parliament. In my opinion Part 10 of the Bankruptcy Act is seriously defective and in urgent need of major amendment.
The Minister was good enough to reply on 31 January this year. I will not read out the whole reply, but in his penultimate paragraph he had this to say:
Currently my officers are preparing drafting instructions for a number of amendments to the Bankruptcy Rules. Some of these amendments will relate to Pan X matters and, in particular, to the holding of meetings where the debtors are joint debtors whether partners or not. These rules will, I believe, overcome the many problems currently facing trustees administering the deeds of joint debtors.
I wish now to turn to the matter of Patrick Partners and in particular to the Masterman report. In my view, bankruptcy is the final act of a commercial disaster. There are three critically important facets to the Bill which must be considered if we are to deal with bankruptcy at all. The problem is multi-factional and must be considered in that way if maximum protection is to be obtained. The Masterman report on Patrick Partners and Reform of the Law of Bankruptcy ought to be studied by the Minister. In particular, it ought to be taken into account by members taking part in the debate. Masterman, in his report on the collapse of Patrick Partners, referred to one aspect of the inadequacy of the laws relating to bankruptcy. The reference concerns the appointment of a partner of the auditors of Patrick Partners as a trustee in bankruptcy. The appointee is a Mr J. Jamison. Masterman had this to say:
Under the present law the appointment of a partner of an auditor of the debtor as trustee in bankruptcy is perfectly legitimate. A number of difficulties, however, can arise from this situation and this has become apparent from my consideration of matters within the terms of reference.
In commenting on the efficacy of the appointment, he had this to say:
A trustee in bankruptcy often has to make decisions on what he believes to be in the interests of creditors. He should be in a position where he is free from the possibility of criticism on the grounds of partiality. It is, I think, unfortunate that those who may be affected by a particular course of action which a trustee decides to take can be left by reason of past association between the firm of auditors of which the trustee is a partner and the debtors concerned, with the belief or suspicion that decisions were taken on the grounds of partiality or in a situation where there is a possibility of a conflict of interest. Under the uniform companies legislation it seems sufficiently clear, and is generally accepted, that a partner of a firm of accountants which are auditors of a particular company cannot be appointed as a liquidator of that company in a voluntary liquidation even if he has had no previous personal association with the company. In my view, and without in any way reflecting on the conduct of Mr Jamison as Trustee in the present case, there are good grounds for believing that the same situation should apply in relation to the appointment of trustees in bankruptcy.
The Minister, in his letter to me and in answer to related questions, stated that several amendments would seem to cover Masterman ‘s comments. I quote him: -in respect of deeds of assignment clause 124 amends s. 23 1 such that a. creditor may lodge with the registrar an objection to the appointment of a trustee on various grounds and the Court may, if any of the grounds of objection are established, appoint another trustee.
I am not going to go over those grounds. The Minister and his advisers are aware of them. The Minister stated further: -similarly, in respect of deeds of arrangement, clause 129 amends s. 237 to give creditors similar rights of objection. -and for compensations, clause 1 33 amends s. 243 to provide for similar creditors ‘ rights of objection.
Let us have a look at the matter. While Masterman recommended that a person in Mr Jamison’s position should be prohibited from being appointed as trustee, as in the analogous case in the uniform companies’ legislation, the Bankruptcy Amendment Bill provides only grounds for objection to such an appointment and does not prohibit this type of appointment. It is a weakness. However, it should be noted also that other amendments effected by clause 124 which deals with assignment, clause 129, which deals with arrangement, and clause 133 which deals with composition, provide a legal basis for committees of inspection to be appointed by creditors to supervise and assist trustees in Part X administrations.
There has been some doubt in the past as to whether Part X arrangements can apply to joint debtors and specifically to partnerships. I concede that. The Minister has pointed out that clause 100 inserts a new section 187A providing that Part X arrangements will now apply to partnerships. However, we are yet to see how this will operate in practice because specific rules in consequence of the amendment- that is, in respect of joint statements of affairs- are yet to be made. I appreciate, if anybody does, the difficulty which the Minister and, in particular, his staff, face. But as I said before, the approach is multifactional. We should not forget that in the course of this debate.
The lessons of the failure of Patrick Partners do not stand only for the weaknesses in the Bankruptcy Act. I should like to have indulgence from the Minister for three or four minutes. If the collapse of the stockbroking firm of Patrick Partners has done nothing else, I suggest that it has once more focused attention on the need for tighter controls over stock exchanges and their members. That is where the real weaknesses lay in the Patrick Partners collapse. That there is a need is made clear by Masterman ‘s official report into the ruined house of Patrick, which was tabled in the New South Wales Parliament. We, as members, ought to study it. The report shows that as early as August 1974 nearly one year before the firm’s collapse the accountants were aware of a discrepancy in the company’s liquid capital position. Yet nothing was done to correct that situation. If Patrick Partners failed in its duties, so did the Corporate Affairs Commission, and equally the Sydney Stock Exchange. They both stand indicted. According to Mr Masterman, both were inadequate in their roles as monitors and scrutineers of the firm’s operations. The Exchange was unable to mount a prompt, intensive investigation itself. It failed to do so. My belief is that it did not want to do so. The Corporate Affairs Commission was criticised for renewing the licences of the 1 1 partners of the firm when it knew of breaches of stock exchange rules about the firm’s liquidity. It was abundantly aware of the breaches, but it failed to act in relation to them. If both bodies had discharged their obligations, Patrick Partners’ demise might have been averted, or alternatively, it might have left behind it rather less of a mess than it did.
All that can be done is to ensure as far as possible that disasters like that of Patrick Partners will not be repeated. For this reason, Masterman recommends no fewer than 16 major changes to the law and to the conduct of stockbrokers. The recommendations include a suggestion that brokers clients who suffer a loss when a broking firm acts improperly should be compensated through the stock exchange fidelity fund. I agree with that proposition wholeheartedly. They also include a requirement that brokers should submit financial returns quarterly instead of annually and a suggestion that the self-regulatory functions of stock exchanges be carried out by the Corporate Affairs Commission. Obviously, so they should.
Calls for reform have been made before- in the Rae report, for example- just as broking and investment firms have come to grief before. The weakness lies not so much in the existing laws as in getting those laws enforced by the stock exchanges, the corporate affairs commissions and the State police forces. The truth is that the securities industry was too seduced by the euphoria of the mining boom to be trusted to regulate itself on a casual, clubish basis. The same philosophy still pervades throughout the stock exchange. The State corporate affairs commissions lack the resources and the application to supervise share market and company affairs which have become increasingly national in scope and character. I regret to say that the forthcoming legislation is not going to close the gap. All of this adds up to the argument for the creation of an independent national body to control company law, not the hotch potch that we are going to debate in the next 12 months. The public has a right to be protected against incompetent financial operators. One way to help provide that protection is to create a national regulatory body which has adequate powers and is not subject to State vetoes or procrastination. A national approach is essential.
Let me conclude by saying, in the last two or three minutes which I have available to me, that if I were to ask the Minister for another indulgence it would be simply this: I know that bankruptcy involves the individual, but if one turns to companies one finds the same problem. One also finds it in insurance law. If anybody took the time to study the four or five insurance reports, one would find that they are full of recommendations, requests-pleas, if we like- for amendments to laws to give to bodies that are charged with the responsibility the arms by which they can protect shareholders, policy holders, creditors and debtors. To this point of time the Government has failed to act upon it as, I am ashamed to say, we did when we were in government. Last year’s annual report among others made these three points: The poor standard of insurance returns, the lack of claims one-off statistics maintained by the industry, and the inadequacy of solvency margins.
It is an indictment on the Government that, despite 18 years of persistent inquiry, investigation and assessment, it is not yet able to table appropriate legislation, in particular appropriate amendment, to Part X of the Act. I must confess that what I am after is the big fish in the pond, not the small fish. Any further delay ought not to be tolerated by the Parliament. The House ought to call on the Minister to table the amendment as quickly as possible. It is a detailed and complex matter. The issue ought to be, in the intervening period, referred to the Australian Law Reform Commission for assessment so that we can come back at long last with a decent body of codified law. This House ought not delude itself and, least of all, the people whom it represents. If we fail to acknowledge -
Mr DEPUTY SPEAKER (Mr Armitage)Order! The honourable member’s time has expired.
Debate (on motion by Mr Ian Robinson) adjourned.
– For the information of honourable members, I present a report by the Uranium Advisory Council on the Feasibility of Uranium Enrichment in Australia. I seek leave to make a statement.
– Honourable members will recall that the Council indicated in its first report, which I tabled on 13 September 1 979, that it was studying this matter. The Council, on its own initiative, decided to consider the relevant factors known to it that needed to be weighed in seeking a balance between the possible advantages and disadvantages of Australia embarking on a uranium enrichment project. The Council submitted its report to me on 24 October 1979. I have deferred bringing this report to Parliament until this time because of references in the report which remained confidential between governments pending the final report of the International Nuclear Fuel Cycle Evaluation, INFCE. In its report the Uranium Advisory Council has expressed the overall judgment that:
Assuming that the balance between costs and markets is considered by the Commonwealth Government and private industry to be acceptable, it can see no valid reason against the Government’s proceeding with a study on the feasibility of, and perhaps participating in the establishment of, a commercial uranium enrichment industry in Australia.
In reaching this conclusion the Council identified four particular considerations which, in its opinion, need to be weighed in estimating the feasibility of enrichment processing in Australia. With one exception members of the Council reached the following broad consensus view: firstly, the Council accepted that the Australian Atomic Energy Commission possesses the necessary technical skills and experience, as a result of the research that it has already conducted into the centrifuge process, to advise on and if necesary to participate in the planning, construction and operation of an enrichment plant, and that the Australian industrial structure provides an existing basis for the manufacture of some of the necessary component machinery for a centrifuge plant; secondly, as to the balance between construction and operating costs and marketing prospects, the Council does not regard itself as competent to offer a valid judgment as to the economic viability of an enrichment project; thirdly, the environmental effects of uranium enrichment processing are particularly important from the viewpoint of the general public. The Council notes that while certain of these effects would need to be assessed in respect of specific conditions at a particular site, the normal routine operation of the plant would be such as to have little or no effect on the environment. The Council expects that an environmental impact study would be prepared; and fourthly, the Commonwealth Government would not authorise the establishment of a commercial enrichment plant without ensuring that it was subject to the effective international safeguards, institutional controls and surveillance measures that INFCE believes can minimise the risk of diversion of low enriched uranium for production of weapons grade material.
I am pleased to inform honourable members that the Government has recognised the importance of these issues in formulating its policy regarding the upgrading of uranium in Australia. The Government, following consultations with major Australian industrial companies which had previously expressed a joint interest in uranium enrichment, encouraged the formation of the Uranium Enrichment Group of Australia. The companies involved are Broken Hill Pty Co. Ltd, CSR Ltd, Peko-Wallsend and the Western Mining Corporation. The Commonwealth Government therefore envisages a major role for industry in studying and, if the venture proves feasible, in developing a commercial enrichment industry in Australia. The INFCE noted that the technical and economic viability of certain enrichment technologies are well established. It is industry which is being asked to make the commercial judgments whether a uranium enrichment industry is an attractive commercial proposition for Australia.
The Government recognises that the existing Australian industrial structure could provide a suitable base for the manufacture of components and equipment which would be required if an enrichment plant were to be established in
Australia. It is envisaged that it would be possible to manufacture in Australia the equivalent of 70 per cent, or perhaps more, of the total investment in components and equipment. Australia ‘s interest in uranium enrichment stems from the abundance of natural uranium resources which we possess. It is entirely consistent with the Government’s policy of maximising the processing of raw materials prior to export that we should give careful consideration to evaluating the possibility of undertaking commercial uranium enrichment in Australia. The report of the Uranium Advisory Council notes the broad support at all levels for this general principle. It is worth while drawing the attention of honourable members to the following observation of INFCE in this regard. I quote:
Of those few states capable of developing national facilities, those having substantial commercial or industrial incentive to do so would include countries having a large domestic nuclear power programme or large indigenous natural uranium resources.
The Government has agreed to the technical expertise of the AAEC being available to assist the Uranium Enrichment Group of Australia in its work. The State and Northern Territory governments will also have an opportunity to be involved as fully as possible. The environmental aspects of uranium enrichment will be carefully considered and, if it were decided to proceed with the establishment of an enrichment plant in Australia, this decision would be subject to the Commonwealth Environment Protection (Impact of Proposals) Act 1974 and relevant State environment protection legislation. An environmental impact statement would be required.
INFCE concluded that present uranium enrichment capacity operating or under construction will cover projected demand for enrichment services up until about 1990. To cover projected demand beyond then additional capacity would be required. By virtue of its being a party to the Nuclear Non-Proliferation Treaty, Australia accepts International Atomic Energy Agency safeguards on all its nuclear activities. A uranium enrichment plant in Australia, and the enriched uranium produced, would therefore be subject to full IAEA safeguards. INFCE did not identify significant problems with the safeguards methods applied by the IAEA to existing nuclear facilities, but suggested research and development on improvements in safeguards cost effectiveness and in containment and surveillance measures. Australia is participating in advisory group meetings in the IAEA concerning the safeguarding of enrichment facilities. Nonproliferation conditions attaching to the supply of nuclear material, equipment and technology received particular attention in INFCE. Australia places importance on strengthening the international non-proliferation regime. One kind of institutional arrangement which could contribute to non-proliferation objectives and which has received great attention internationally as a result of INFCE is the possibility of multi-nation participation in sensitive stages of the nuclear fuel cycle, such as the enrichment stage. In January 1979 the Government announced that multi-nation participation in an enrichment plant would be fully examined with particular attention to the potential advantage from the non-proliferation viewpoint.
The Government has been particularly encouraged by the attitude of foreign governments and organisations towards the concept of developing a uranium enrichment industry in Australia, based on proven technology. The Government has been in contact with the governments of the United States, France, and Japan, and those of the tri-partite organisation known as Urenco- Centec, that is, the United Kingdom, the Federal Republic of Germany and the Netherlands. Information has already been made available by Urenco-Centec and the French, and discussions are continuing with the United States and Japan concerning their respective interests in uranium enrichment in Australia. The Government is confident that, given the degree of interest in co-operation which has been expressed both in Australia and overseas concerning the development of this industry in Australia, Australia is well placed to participate in any future expansion of world enrichment capacity. The Government welcomes this constructive report by the Uranium Advisory Council. I present the following papen
Uranium Advisory Council report on the Feasibility of Uranium Enrichment in Australia- Ministerial Statement, 5 March 1980.
Motion ( by Mr Garland) proposed:
That the House take note of the paper.
– It is difficult for anybody to respond at two hours notice to a topic of this complexity, although I recognise that that is within the parameters normally given within the House. From a reading of the reports of the Uranium Advisory Council and the International Nuclear Fuel Cycle Evaluation, it seems that the Government really has not thought through the position. In talking about Australia being well placed to participate in any future expansion and lauding the report of the Uranium Advisory Council, the Government is really trying to gloss over its obvious intention to move headlong into uranium development and enrichment. The report from the Uranium Advisory Council, which has been circulated by the Minister for Trade and Resources (Mr Anthony), states at page 3:
However, when it comes to estimating the commercial viability of a uranium enrichment plant in Australia, taking account of establishment costs and market uncertainties over a lead time of some years, the Council feels that it lacks the necessary economic and technical expertise to enable it to make such an assessment.
That may be a frank statement and an honest one, but it does not take us very far. Earlier the report refers to this question of market uncertainty, and in paragraph 6 on page 2 it states:
These and other comparable analyses are conditioned by uncertainty about future marketing prospects for enriched uranium. Authoritative Australian and other sources, including INFCE, agree that the enrichment market will probably be adequately supplied until about 1990 but predict that demand will grow thereafter, perhaps substantially.
Again, the Uranium Advisory Council report is not very helpful on that point. It goes on:
Apart from the general desirability of continued firm control over the project by the Commonwealth Government, we would imagine that substantial Government participation in one form or another would be necessary in an. investment of this magnitude . . .
Quite obviously, the Government has not told the Uranium Advisory Council what it intends in any kind of commercial arrangement. Will we see another version of National Country Party politics, that is, socialising losses and capitalising gains?
– Very funny.
– It is not too funny when the public purse has to suffer the cost of its rhetoric. When it comes to socialism, the Country Party believes in socialising only losses.
– It shows what intelligence you have got.
– Just lay low, please. In his statement the Minister said:
It is industry which is being asked to make the commercial judgments about whether a uranium enrichment industry is an attractive commercial proposition for Australia.
Is it to be a purely commercial arrangement? Is it to be a government-commercial mix? What is to be the relationship between the Government and the commercial area? These are things which obviously the Uranium Advisory Council does not know and it indicates the reason why the Uranium Advisory Council is not very helpful. I was interested to hear the Minister say that the Council was very helpful. If it was helpful, it escapes me.
The point I want to raise is that there is obviously a glut of enrichment services available in the world. If there were unanimity of view between the parties in this country about the question of uranium mining and exporting, if the whole nuclear industry were gearing up for a massive spurt of growth, if in fact Australia were to become a continuing major exporter of uranium and there were that bipartisan agreement, the continuing movement of fabrication up the fuel cycle from mining to enrichment and to fuel fabrication may indeed be a proposition, with the added value which would flow from that. But people on this side of the House believe that the main stumbling block to the continued development of a peaceful nuclear program is nuclear proliferation, that is, the risk of weapon creation which flows from the activity of the international nuclear industry, from the growth of the normal thermal reactor industry around the world.
The International Nuclear Fuel Cycle Evaluation was established essentially by the United States of America to look at all elements of the fuel cycle. It was commonly believed that the thing that most concerned people was reprocessing and the risk of diversion during the reprocessing of materials which could be fabricated into weapon-grade material. One of the things which INFCE turned up was the fact that probably we have been worrying too much about reprocessing and not enough about enrichment. I will read into Hansard a passage from page 27 of the summary of the INFCE report. It is headed ‘Operating enrichment facilities’ and states:
One way to acquire weapons-usable material would be to use an enrichment facility designed and operated for lowenriched uranium to produce HEU by modifying the plant and/or its method of operation, for example by rearrangement of cascade equipment, changes of operating conditions or by adoption of a batch recycle operating mode. However, these modifications would entail varying degrees of difficulties, depending on the enrichment process used and the extent of the modification. Such basic changes from the original design would require activities and fundamental changes of operation mode which are subject to detection, particularly if the plant was under safeguards from its inception.
The different ways of misuse of an existing enrichment plant: diverting LEU within a plant, altering a declared LEU plant so as to make it produce HEU, which both might be undertaken either covertly under safeguards or possibly following a withdrawal from safeguards, are influenced in different directions by some technical process features such as the size of the separation factor and hold-up, the length of equilibrium time and the mode of connection of elements. Where these factors operate to reduce the difficulties, they would in some cases simultaneously operate to increase the effectiveness of safeguards through earlier detection of diversion of nuclear material and through timely detection of possible deviation from the defined design. With the centrifuge process this means that features such as high separation factors, small uranium hold-up, and parallel mode of connection of small separation elements, which are technically advantageous for HEU production, would, in some cases, facilitate the effectiveness of safeguards. In the diffusion and chemical enrichment processes, their special features, small separation factor, large separation elements in series arrangements, high uranium hold-up, which reduce the convertibility of plant, would at the same time make difficult -
This needs to be emphasised- the application of effective safeguards based only on present materials accountancy and require further development also of containment and surveillance techniques.
In other words, the INFCE report seeks to place a caveat over the proliferation of enrichment facilities.
I was interested to hear the Minister for Trade and Resources state: ‘Australia places importance on strengthening the international nonproliferation regime’. Those are the kinds of words that we have heard from the Government all along, but when we look at the statement, which the Prime Minister (Mr Malcolm Fraser) made in May 1976, if I recall correctly, and which was his major uranium policy statement, and then look at all the subsequent wateringdown arrangements which the Government has embarked upon, who could have any confidence in the fact that the Australian Government, the Fraser Government, would be committed to these kinds of objectives? I do not want to see Australia locked into the world nuclear industry with a heavy investment in uranium enrichment technology, as the Minister pointed out in his statement, with the Atomic Energy Commission again high up on the list of priorities as a pet baby and with an enrichment plant along the way in which, in the Government’s view, the Broken Hill Pty Co. Ltd, CSR Ltd, PekoWallsend Ltd and Western Mining Corporation Ltd would have a high interest. If it turns out to be a lemon, who picks up the losses?
I would think that the economics of uranium enrichment could not be all that hot at this stage, given the fact that there is a glut of uranium and of uranium enrichment services in the world. Before any Australian Government could embark on such a policy there would need to be a fairly substantial degree of bipartisanship in this country about the course of uranium development. Not only does that not exist at the moment, but also the Government’s high-minded ideals, in terms of its own policies, have been substantially watered down in the years since May 1976. At this stage I think that the Australian Government is very foolish to commit itself, even in a cursory way, to a uranium enrichment industry and at the same time to suggest, as the Minister did in his speech, that there will be a great jump in the demand for enriched uranium. The Minister said: ‘To cover projected demand beyond then an additional capacity would be required’. Will there be additional demand? If the fast breeder reactor is developed in the way in which the Government says it will be developed, will it not knock out the need for low enriched uranium services? I do not know. These are questions I cannot answer, but they are certainly questions which the Uranium Advisory Council cannot answer either.
At this stage the Government has told us: ‘We do not know anything about the market uncertainties, we do not know whether there will be any demand and we are not really sure about the technology, but we think the Atomic Energy Commission can handle it for us, so we are going to fall in boots and all to find out whether we can get into this business’. Even in terms of the Government’s policy, which is a commitment to uranium exports, I suppose there is no harm in examining this matter in a cursory way, but if this is the start of what we see as a protracted commitment to the building of enrichment facilities in Australia, it is on a very shaky premise without any explanation of the commercial arrangements which would be made. I find the statement by the Uranium Advisory Council honest but unsatisfactory and I find the Minister’s statement extremely unsatisfactory.
-I would like to make a very small contribution to this debate. I am frankly disappointed by the contribution of the honourable member for Blaxland (Mr Keating). This is an issue of vital importance to Australia. The statement which has been presented to Parliament today is part of a long and ongoing process and no commitment is made in it. The Minister for Trade and Resources (Mr Anthony) has stated that the Government is continuing to look at the feasibility of establishing a uranium enrichment plant in Australia. If the Opposition insists on taking a luddite approach to this issue, it will regret doing so before Australia, as a nation, is too much older. The fact is that one has to look only at the recent report from the Organisation for Economic Cooperation and Development on the future demand for uranium to see that, even accepting that the honourable member for Blaxland might be right in saying that proliferation and enrichment may go hand in hand, Australia would be much better off if it were involved with enrichment than if enrichment were done beyond our shores. If that is done we must add to our control over the industry.
The Opposition’s approach to uranium development in Australia has been shown on many occasions to be disastrous. Australia has a major resource which will be in strong demand in the world over at least the next 50 or 60 years. If we do not take the opportunity to get as fully involved as we possibly can in the total development of uranium we will not be acting in Australia’s interests. I support the statement made by the Minister for Trade and Resources. I think it is a responsible and measured statement in which Australia is saying no more than that it is continuing to look at this aspect of the uranium industry. For my part, I hope we push further down that road and finish up as a major uranium enricher.
Question resolved in the affirmative.
– I move:
The motion I have just moved is required in accordance with the provisions of the Parliament Act 1 974 to permit the erection within the parliamentary zone of a bus shelter in Kings Avenue and the erection of three lighting masts on the ramps leading to Kings Avenue Bridge. The proposed works will also require the approval of the Senate. As the proposals which I presented to the Parliament yesterday indicate, a survey of bus passengers undertaken in 1978 showed that a bus shelter opposite the Edmond Barton building would be justified. The shelter, which is expected to cost $2,500, will be similar to those erected at bus stops in other areas of Canberra.
Following the completion of road works in King Edward Terrace and Bowen Drive, it will be necessary to rearrange the ramps leading onto Kings Avenue. It is proposed to light these ramps by providing three 25-metre high mast lighting columns, two of which would be inside the parliamentary zone. The masts will be of a design similar to those already installed nearby and at the southern end of Commonwealth Avenue Bridge. Supply and erection of the masts is expected to cost $40,000.I commend the motion to the House.
-I would like to raise a matter concerning the proposals that have just been put before us. As a member of the Joint Committee on the New and Permanent Parliament House, I would like to note that it is traditional for matters such as this to be referred by the Executive to that Committee to make sure that the precincts of the Parliament in the parliamentary triangle are guarded and that members of parliament have a right to consider such matters. Matters such as the police boxes which were recently erected at the rear of Parliament House and the observation deck which was erected at the location of the new and permanent Parliament House were referred to that Committee and were approved by it.
In the case before us, the structures which are to be erected are minor. As a member of the Committee and as the local member involved, I have had a look at the plans involved and I would not think any member of parliament would take exception to them. But I would like to place on record the fact that if matters are not referred to that Committee of which I am a member, along with other members of this chamber, and those matters are substantial, I would take exception to the role of the Executive in pushing those matters through.
– I join with the honourable member for Canberra (Mr Haslem) on this issue only. I am a member of the Joint Committee on the New and Permanent Parliament House. I have been since its inception. I was, in fact, a proposer of the Parliament Act 1974. There has been a practice whereby matters such as those raised by the honourable member for Canberra concerning guard boxes and other structures, are referred to that Committee for consideration and recommendation. I was given to speak in this debate because of the unusual procedure being adopted by the Executive on this occasion in putting these matters forward without that sort of chain of consultation that has gone on in the past It is true that the matters are not of great significance. They concern only the erection of a bus shelter and the erection of high mast lighting in an area where those things already exist. They are on the periphery of the triangle. But I do not think that that is the point. I do not think that the significance of the work ought to be the criterion. I think the criterion ought to be that all works within that triangle ought to be referred to the Committee for consideration and for the Committee to report back.
It is always easy to be wise in hindsight. As I say, I was a proposer and a drafter of that Bill in the first instance. But I am afraid that I have looked at clause 5 ( 1 ) of that Bill since and have had some heartaches about it. It states:
No building or other work is to be erected on land within the Parliamentary zone unless the Minister has caused a proposal for the erection of the building or work to be laid before each House of the Parliament and the proposal has been approved by resolution of each House of Parliament.
Of course that is what is happening. My pangs of regret are over the fact that the word ‘erected’ ever went into that clause in the first place because it leaves it quite free for anybody with the mind to do so to remove trees, to remove buildings and to do all sorts of work provided what they are doing is not erecting something. That, to me, is an oversight. It is too late now, I guess. That aspect should have been thought of six years ago. However, that aside, I trust that the Minister for Health (Mr MacKellar) will take note of what has been said by the honourable member for Canberra and me and may even consider not proceeding with this matter tonight and having further consultation with the body with whom consultation needs to take place to have the matter referred to the Joint Committee on the New and Permanent Parliament House for consideration and recommendation.
– in reply- I do not think that this is a matter of sufficient gravity to hold up work at this stage, but I will take on board the matters mentioned by the honourable member for Canberra (Mr Haslem) and the honourable member for Burke (Mr Keith Johnson).
Question resolved in the affirmative.
-The Bankruptcy Amendment Bill is significant legislation. It provides for a more equitable adjustment of the rights of both debtors and creditors and is intended to improve the administration and effectiveness of the Act. Earlier, the honourable member for Adelaide (Mr Hurford) moved an amendment. I find that the amendment is not well based. I put it to the House that it is really a political manoeuvre on the part of the honourable member because if one looks at the real import of the Bill it is quite clear that the Government is moving in a proper manner to update the provision of bankruptcy legislation. It is doing so with due regard to experience in this field on the part of those who have the responsibility of administering the bankruptcy law. It takes into account the very precise recommendations made and upon which the original Act was founded. I refer of course, to the matters raised by the Clyne Committee in 1966.
There was some suggestion that the fact that those principles had been taken into account implied that the Government was not thinking in modern day terms and was not taking into account certain aspects which were purely political in nature, and to which I will refer again in a moment. The truth of the matter is that, in the light of all the experience in this very important field, a field which touches upon the well-being of citizens of this nation in a very positive manner- I refer to those who are affected by the incidence of bankruptcy- bankruptcy still is a very traumatic matter for families, for people employed and for the business world. It is, of course, a very significant matter these days as well. It is significant for a number of reasons. At the outset, bankruptcy law back in 1966 was designed to meet a situation of very great need. My understanding is that prior to that time we did not have a very satisfactory arrangement in respect of bankruptcy. Yet, for many years there had been an on-going situation in which the problems of bankruptcy, as I said earlier, affected very drastically many people in this nation. In the light of experience since 1966 it now seems very appropriate, for example, to reduce the period of automatic discharge from five years to three years. This is surely a very forward step. But many of the matters that have been mentioned in the debate- because time is now running short I do not propose to traverse themare appropriate for attention in the Committee stage.
Again I turn to the amendment moved by the honourable member for Adelaide and which was so strongly supported by the honourable member for Hawker (Mr Jacobi). I put it to the Opposition that, this is a very poor approach to a most important matter. It is a poor approach because the Opposition has mixed into it the ingredients of an observation on the economy. They assert that the state of the economy is the reason for the difficulties that so many people are experiencing these days, difficulties which have occasioned a very great increase in the incidence of bankruptcy. I emphasise that other elements are involved. Earlier in the debate I referred in part to such elements as flowed from the drastic effect of the policy of the previous Labor Government, which led to wage escalation, high inflation levels and the total disruption of what was a fairly even, ongoing situation in thi economy and in terms of business growth and development. We see today the consequences, the traumatic effect of the drastic policies of 1973 to 1975 but, I repeat, other elements enter the picture as well, and they are very significant.
We must take into account what happens in the respective States. I refer, for instance, to the policy of the New South Wales Labor Government in regard to the operation of its Metropolitan Water, Sewerage and Drainage Board. That Government made a deliberate decision to dispense with the services of sub-contractors. Thus, 300 or 400 small business people in New South Wales have been confronted with a drastic situation which undoubtedly will result in a number of them facing bankruptcy. It is all very well to say that the Government has not been able to take care of the economy sufficiently to avoid the rising incidence of bankruptcy. I point out again that it should not be attributed exclusively to the policies of the party that is at present on the Treasury benches: Many other elements are involved.
It is important that there should be uniform bankruptcy laws. I believe that it should come within the jurisdiction of the Commonwealth, as at present, but one must take into account also the elements which affect business in the respective States. I am sure that the amendments to the law that we are considering will go a long way in resolving the problems with which we are confronted today.
That we find so many people facing bankruptcy is nothing of which to be proud. The percentage increase in its incidence, as has been mentioned, is very serious indeed, but one has also to look at this matter in another way. I refer to the ingredients of that rise in the number of bankruptcies. Without doubt, very many occur among those who are in the category of the owner-operator, the self-employed person who has been squeezed by the astronomical rise in wages and by cost factors that are beyond his control. These factors create a critical and very difficult business climate.
To meet this situation the Government has moved in a number of other directions. I refer to assistance to small business, to the extension of the credit facilities of the Commonwealth Development Bank in a number of areas, and to the whole range of other actions that have been taken in the last couple of years to try to meet this situation. Honourable members, in considering in Committee the proposals of the Opposition, must recognise that, clearly, the purpose of the Bill is to help meet the present situation and to make it more equitable and satisfactory for those unfortunate people who have been affected so adversely. It is quite wrong to assert that the Government is overlooking that aspect. The unfortunate position that has befallen one section of the community is the very reason for the introduction of the legislation. Time precludes my going further into the matter. I hope that, in the Committee stage, some of the detailed aspects to which reference has been made will be clarified, as indeed they should be.
Sitting suspended from 6 to 8 p.m.
-Mr Deputy Speaker, we want to spend time in committee on this debate and that is why the Opposition has not called for a vote on the second reading amendment.
Original question resolved in the affirmative.
Bill read a second time.
-The Government has some amendments to move at this Committee stage. I believe the Minister for Business and Consumer Affairs (Mr Garland) will be here shortly to move those amendments. In the meantime, I will just indicate that the amendments are acceptable to the Opposition but there are a couple of Opposition speakers who did not have a chance to speak at the second reading stage and who would like to make a contribution at this stage. While we are waiting for the Minister to move his amendments perhaps you would be good enough to call those Opposition speakers.
– I direct the attention of the Committee to a significant deficiency in the Bankruptcy Act 1 966 and to the Bankruptcy Amendment Bill before us today. I think the legislation does not adequately protect the interests of the debtor who is in a specialised trade or calling and is forced into bankruptcy perhaps by a combination of circumstances that are beyond his control, such as illness, and his affairs are put into the hands of a trustee who has no special knowledge of the trade or calling and as a result acts to the detriment of the bankrupt, and perhaps also to the detriment of the creditors. This is a situation where the trustee acts in good faith but unwisely by applying normal business practice in order to get the best result that he can for the creditors in the shortest period but where the application of normal business practice may be utterly inappropriate when applied to the bankrupt’s trade.
While I was in practice as a solicitor I had a client who was exactly in this situation. It would be improper to state his calling or to breach ethical considerations by identifying him, so I will choose, by way of a hypothetical example, the case of a dentist. A young dentist, we will say, sets up in practice in a working class area. He buys a great deal of equipment and overcommits himself. There is a good deal of unemployment in the area, the number of patients is less than expected and account payments are a long time coming in. The dentist suffers from an illness that disables him for some months and he is unable to obtain the services of a locum; the landlord is pressing for back rent; the supliers of his equipment have not been paid; the contractor who built the consulting rooms is demanding payment. In this particular case the bankrupt’s original solicitor- not me at that stage, I hasten to add- advised Dr X to become bankrupt. He does so. An experienced trustee, Mr Y, is appointed by the creditors but he appoints a young and ostensibly skilful employee, Mr Z, to carry out the work in the case of Dr X’s bankruptcy. I can only assume that Mr Z must have had a lot of very unhappy experiences with dentists. In this particular case he acts with a manifest lack of sympathy with Dr X.
– He squares the account.
– He squares the account. Dr X’s equipment is auctioned and sold for less than a quarter of its true market value. Dr X is convinced that a trustee with some special knowledge of the dental profession would have acted differently. He might have persuaded the creditors that their interests were best served by delay and they might well have been paid 100c in the dollar. Precipitate action in this case assisted nobody. I hope that the Minister will pay some attention to this matter because I think it is significant and I would be grateful if the Minister could make some comment before the Bill passes through its third reading.
I draw the attention of the Committee to section 155 of the principal Act, which is about the appointment of trustees. The only qualification one has to have to be appointed as a trustee is that he be a person; that is all one needs. Section 1 5 5 of the original Act of 1 966 says this:
A person may apply to the Court to be registered as qualified to act as a trustee and, subject to this section, the Court may, if it thinks fit, by order direct that he be so registered upon his entering into a bond in the prescribed amount and manner with such surety or sureties as the Registrar approves.
I make some brief observations on sections 176, 177 and 178. Section 176 in the original Act is amended by clause 90 of the Bill before the Committee tonight. It says:
Where the Registrar is of the opinion . . . that the trustee may have been guilty of malfeasance, misfeasance, negligence, wilful default or breach of trust in relation to the estate or affairs of the bankrupt, the Registrar may apply to the Court for an order . . .
The situation that I am dealing with is not a case that is covered by malfeasance, misfeasance, negligence, wilful default or breach of trust. What the trustee is guilty of, in my view, and I use ‘guilty’ in inverted commas, is an error of judgment. It might be a wilful error of judgment, it may be in some ways a perverse error of judgment but it is not criminal or quasi-criminal. Nevertheless, the consequences may be extremely serious. What I am concerned about is that there is no provision in the legislation to cover that kind of situation similar to the story that I referred to the Committee before.
Section 177 of the Act gives the creditors very considerable powers vis-a-vis the trustee. When one turns to section 178 of the original Act we find that it gives the bankrupt some rights against the trustee but I think those rights are rather feeble. Section 178 says:
If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable.
That is in the original Act. That may be applicable to control an on going matter. However, it may be that a trustee makes a decision to put the bankrupt’s property up for auction and puts a reserve price on it. The reserve price is reasonable, but the bankrupt finds that the trustee says: Look, I couldn’t get anything like the reserve price and I have accepted 20 per cent of it’. It is a bit late then for the bankrupt to go to the court and say: ‘Look, there ought to be some kind of sanction’. I think section 155 is far too weak. I have thought of trying to draft an alternative. It is really very tricky. I hope that the Minister will take these two points into consideration.
I think that the solution might be to provide a new sub-section to section 155 of the Act to provide for a category of what I have called ‘special trustees’. The special trustees might be persons who are placed on a list by the court on the nomination of professional or trade associations. In other words, the builders’ association might nominate somebody who has a lot of expertise in building; the dental association might nominate a special trustee with some expertise in dentistry. Other special trustees could have experience in contracting or some other profession. In that way when we deal with special trade customs or special trade procedures we will have a trustee who knows a lot about that area. The bankrupt should then have the option of saying whether his affairs should be administered by an ordinary trustee under the Act or by a special trustee.
The other amendment we ought to make is to proposed new sub-section (1) of section 176 of the Act. I think that sub-section ought to be amended. Again, I think it would be a neat trick to draft it. It ought to cover categories of errors of judgment occasioning actual loss to the bankrupt. The bankrupt ought to have an opportunity to ask the court to intervene if he reasonably anticipates that an error of judgment made by the trustee will lead to a loss due particularly to arbitrary and unreasonable exercise of authority. It seems to me that this is a real gap in the Act. The present Act is a considerable improvement on what has gone before, but this is a gap. I know that this matter has been raised with previous Ministers and previous Attorneys-General and nothing has been done about it. I think something should be done. I would be grateful if the Minister would comment.
– by leave- I move:
Honourable members will recall that the Bankruptcy Amendment Bill which was introduced into the House in November last year contained a large number of amendments to the Bankruptcy Act- in fact, it covered some 134 pageswhich are the first substantive amendments to the bankruptcy law for 14 years. Thus it represents a substantial amount of reform. So I believe it is desirable that the Bill be enacted soon.
When that Bill was introduced my predecessor indicated that the Government did not intend to proceed with the amendments to the Act without adequate consultation with the community. The Bill is long and complex, as honourable members have said, with significant social and commercial implications. The Government was anxious to ensure that account was taken of the views of those sections of the community that were affected by its provisions. Accordingly, the Government indicated that it would hold over debate on the Bill until these autumn sittings.
Submissions were invited from honourable members and the public by 15 February 1980. As a result a large number of useful and interesting submissions were received. I have given them careful considerations. I have had them examined by official receivers and by the Inspector-General in Bankruptcy, Mr Sweeney, who is in the chamber tonight. In addition to thanking the public for the submissions they put forward, I would like to mention and to thank in particular Senator Messner and the honourable member for Hawker (Mr Jacobi) for their assistance in bringing particular issues to my attention and for their continuing interest in the Bill.
Bankruptcy law needs revision from time to time to take account of changing social attitudes and commercial conditions. There are a number of aspects on which much more work will need to be done if amendments are to be carried out in the future. I have asked my Department to continue this work. The Government is mindful of the need for a later phase, but with the constant pressure on the Government’s legislative program I am unable to indicate when that might be. Of course, if one were to wait until all matters were fully covered, including long term issues, I am satisfied that a great deal would be lost by not proceeding with those amendments presently before the House.
Some of the more interesting submissions will require further and more detailed consideration. In this regard, I mention these suggestions that have been made; some of them have been raised in this debate. The first suggestion is that the test of income for the purposes of the Bankruptcy Act be along the same lines as the test of income for the purposes of the Income Tax Assessment Act. Would such a definition be a sounder basis on which to determine a bankrupt’s capacity to contribute to his estate for the benefit of his creditors? Secondly, the question was asked: should there be an examination of the philosophy of administrations under Part X of the Act so as to streamline procedures and to facilitate such administrations in the future? There have been suggestions that, even with the amendments in this Bill, the current provisions may remain cumbersome and inappropriate to modern business needs. One particular issue would be whether we need three separate types of Part X arrangements. The third suggestion was as to whether enforcement provisions should be included in certain sections to overcome doubts as to whether certain applications under section 118 of the Bankruptcy Act are properly applications which can be heard by a court exercising bankruptcy jurisdiction. The fourth suggestion was as to whether the preferences that have been given to maintenance creditors are sufficient.
In this respect, I acknowledge the particular interest of the honourable member for Denison (Mr Hodgman). I acknowledge also his interest in other areas of this Act. As I have indicated to him I will be happy to pass on his suggestions to the appropriate quarters of the Hobart Federal Court. Because of the nature of the suggestions which came forward, it is necessary to hold further discussions with interested parties and to conduct more detailed consideration of the policy issues that are raised before any final decisions are made. I have directed my Department to proceed with these discussions as soon as possible so that the issues can be placed before the Government at an appropriate time.
But there were some suggestions for which, after careful consideration, I have received the approval of the Government to place them before the House for its consideration at this stage. The most important of these are as follows: Firstly, there will be amendments to increase from $500 to $1,000 the minimum amount which is required to found a creditor’s petition in a bankruptcy proceeding under Part IV or Part XI of the Act. Secondly, the qualifying period for an automatic discharge from bankruptcy will be increased from the two years proposed in the Bankruptcy Amendment Bill to three years. The time limit on the operation of an objection to automatic discharge will be increased from the three years proposed in the Bill to five years. Thirdly, and importantly, persons who are undischarged bankrupts at the date of the commencement of the amending legislation should become entitled to an automatic discharge, in the absence of objections or court orders to the contrary, three years after the date of their bankruptcy or on the commencement of the amending legislation if they have already been bankrupt by then for more than three years. I will be providing, for the benefit of honourable members, more detail on these and other technical amendments later. I might add that, in relation to those points which have been made in this debate by honourable members and to which I have been unable to respond, I will certainly see that those matters are examined. I will write to the respective honourable members about those points.
Mention has been made in this debate of the increase in the number of bankruptcies in the community. Those matters appear most recently in the twelfth annual report of the operations of the Bankruptcy Act. Because a good deal has been said about that point I might just say that as far as is known the increase relates in part to the decrease in the social stigma attaching to bankruptcy in contemporary society. The annual report tried to analyse reasons for this. It said, of business bankruptcies, that economic conditions affecting industry accounted for 26 Vi per cent; lack of business ability, almost the same, 25.8 per cent; lack of sufficient initial working capital 20.4 per cent; and for more than half of non-business bankruptcies a major cause seemed to be excessive use of credit facilities, 54.4 per cent. I suggest, with respect to those who have made comments, that the real reasons behind them are obscure. Whilst some general political or economic arguments have been made, something has been said in rebuttal which would indicate that really there are no simple explanations in this area.
I would like to mention the question of rehabilitation. My predecessor in his second reading speech last November pointed out that one of the most significant social changes since the Bankruptcy Act 1966 came into operation in 1968 has been the increasing attention paid to the problem of rehabilitation of debtors who have been unable to cope with our modern consumer credit oriented society. This Bill makes a significant contribution, but much more needs to be done. In fact the community needs to be educated. This is not a task solely for government but one which should be shouldered also by all those groups in the market place associated with the granting of credit.
The honourable member for Denison (Mr Hodgman) mentioned in particular the situation in relation to priority for maintenance creditors. I want to make one or two observations in that regard. This Bill not only makes arrears of maintenance provable in bankruptcy- which was not previously the case- but also it permits the maintenance creditor to pursue the normal remedies outside bankruptcy. That puts the maintenance creditor in a position superior to that of all other secured creditors. The Bill, consequent on the Government’s decision on priority of Crown debts, removes priority previously accorded to arrears of taxation other than taxation instalment deductions and withholding tax, which is analogous. Further discussion on priority to be accorded to the Crown is really not appropriate in terms of the bankruptcy law as such.
The question of giving the maintenance creditor preference over other secured creditors has not actually arisen in any submission to the Government that is, before the honourable member for Denison raised the matter with me. In fact, this question has been put to the family law judges- the Chief Judge and the senior judges- who expressed satisfaction as to what had been provided. It is important to note that they considered that in the long term additional issues may have to be carefully examined, for example, whether a property settlement order, pursuant to section 79 of the Family Law Act, should be deemed to be a maintenance order for the purposes of the Bankruptcy Act. Before any preference could be given to maintenance creditors- which would need a far-reaching examination as in effect it would be competing with the rights of employees of a bankrupt who, of course, have their own responsibilities in providing for their families- the matter requires some examination. I give an assurance that that examination will go on in the next phase, as indeed will- the suggestion made by the honourable member for Hawker about the limit of $1,500 on wages. I listened with interest to what the honourable member had to say about that matter, too.
In respect of the amendment moved by the Opposition to the motion for the second reading, I have noticed the attitude which the Opposition took to that amendment. I advise honourable members that the Government is actually considering a request by the Law Reform Commission for a general insolvency reference.
– Will you support the proposals?
– I am aware of an inquiry currently being conducted by the Cork Committee in the United Kingdom whence our bankruptcy law is derived. As acknowledged by the honourable member for Adelaide (Mr Hurford), a general reference would have implications for company law. I am told that the matter has been raised with State colleagues on the Ministerial Council for Companies and Securities and it is, in fact, still under active consideration. Tonight I would not be in a position to accept what is proposed. It is a matter that is under current consideration and it is not being treated lightly. Of course, that Council meets regularly. It has a lengthy agenda and that item is on its agenda.
A quite large number of matters have been raised in the debate. That is only to be expected. If I may I conclude by saying that this Bill represents a significant reform in a complex area. There are difficulties, and often there are more difficulties involved in some of these amendments than might be apparent at first glance. I regard the amendments necessary in this area as on-going. It is a pity that the Parliament has not faced up to amendments more frequently. These are the first amendments for many years. I hope that in the future the Parliament will face up to amendments more frequently. There is a need, through various bodies, for a number of the suggestions made in this debate and by the public for submissions to be more closely examined. That will be done. In the meantime we should get on with this Bill and get it through a difficult legislative program this year because of the forms which the Bill contains.
– As honourable members will appreciate from the nature of this discussion, bankruptcy law is rather boring, and rather technical, and not many people are interested in it until they become the subject of bankruptcy proceedings themselves. Nevertheless, I want to speak to some of the matters mentioned by my colleague the honourable member for Adelaide (Mr Hurford) who led for the Opposition in this debate. My remarks relate to Part X of the Act which deals with arrangements with creditors whereby sequestration can be avoided. It is interesting to make a comment as to the problems of bankruptcy which in turn relate to the problems of failure. Indeed, the causes of failure are many. For example, I am reminded that, in 1978-79, 500 bankruptcies were caused by unemployment. When we are dealing with the problems of severe economic times- including present times- unfortunately we will have more bankruptcies. Our philosophy is that we are trying to help people. We have the debtors and creditors trying to come to some solution, which is commendable. As honourable members will know, there are penalties under the Constitution. Anybody who is an undischarged bankrupt or is insolvent cannot remain in the Parliament, so there are factors which create a stigma.
Part X of the Bill relates to the arrangements that can be made whereby people can come to some arrangement amongst themselves without having to go through the final process of bankruptcy. Under Part X of the Bill arrangements account for some 12 per cent of total administrations. Last year there were 528 of these arrangements. I wish to talk about one such arrangement. I do not do so in the personal sense, but it was that of Patrick Partners. That was an arrangement that was made. Those of us in public life know the problems that can beset members of parliament. They are subject to accusations in relation to the performance of their duties. We are in public life. If we represent people we have a number of constituents who want to know why the law is not better, particularly in relation to subscribed sums of money or creditors. That position applies specifically to the Patrick Partners case. Many of us were driven nearly mad by constituents who had lost their money and who talked about the problems of the bankruptcy law, which we could readily identify as being due to the fact that the constituents concerned happened to be small shareholders, small creditors, who were outvoted in the procedure that we call a meeting of creditors.
In this case there were 1 1 deeds of arrangement. It was held in the Federal Court that they were valid and binding on the creditors. But let us make the position very clear. Very many of the creditors felt that they were not valid. They knew they were binding, but they had lost their money. So we have this difficulty. Section 222 (5) of the Act states that the court cannot set aside a deed of composition unless it is satisfied that it is in the interest of the creditors. The creditors in that context are all the creditors as a group, so minority groups are not given any protection. The amendments that have been moved make some improvements. They allow for control by the court over the controlling trustee. The controlling trustee can be removed if he is guilty of wrong doing or negligence.
The real menace of this section, in my view, is that a registered trustee, usually an accountant- I am not against accountants- can be appointed as a controlling trustee. That happened in the case of Patrick Partners. In my view this provision is wrong. I would rather see the registrar, the Official Receiver, as the trustee, because then we could have some redress from the point of view of the creditor. We would have some official supervision. If we feel that that would create too much burden for the trustee, I suggest that barristers-at-law of some 10 years’ standing could be approved as those people who could approve deeds of trustees. That would avoid the problem which arose in Patrick Partners. I make the point that there were some real problems for creditors attending meetings.
Part X of the Act is based on the old proposition that we have to look after the interests of the creditors and the debtor. Of course, that principle does not apply if there is a majority situation. If the majority of creditors agree with an arrangement it is assumed that it must suit the lot. It does not. We need to rethink the whole aspect of Part X. We should do something about it. I hope that we can do more than what has been done till now. The Law Reform Commission talks about the consumer debtor, yet Part X effectively excludes this kind of debtor. In the more complex estate a far stricter rule needs to apply to groups than would normally apply. The difference between business bankrupts and consumer bankrupts is the difference between the positions of strength of a debtor and the creditors. In the case of the consumer bankrupt the position of strength lies wholly with the creditors. However, in the case of the business bankrupt, or deed of arrangement, creditors may be in a very weak position. If the controlling trustee is not at arm’s length to both the creditors and debtor, then the position of some creditors is weakened. In the Patrick Partners case the controlling trustee was certainly not at arm’s length. In fact, he had been part of a firm of auditors involved with the company concerned.
We cannot solve these problems, but we need a new approach on the basis of equity. We need a situation in which creditors feel that if they attend a creditors’ meeting they will not be outvoted by people who represent mainly subsidiary companies of the partnership that has gone into bankruptcy. We need to have a situation in which they are admitted to the meeting and deemed to be creditors. Is it any wonder that creditors would not but vote for their friends?
– But you are not suggesting that this happened with Patricks, are you?
-I am telling the facts to the chamber what happened in this case. We find that enormous commissions, enormous legal fees have to be paid. The minority group, the creditors, put up their hands and say: ‘We are against this’, but they are outvoted by the sheer weight of money that is deemed to be the debt owing. In many cases the majority groups concerned are certainly friends, if not former partners, acquaintances or directors of those who have been the subject of the bankruptcy application or the deed of arrangement. If we look at the Patrick Partners case as an example of people losing their money we see that a lot of money was syphoned off. Indeed, a lot of money was certainly seen to have been effectively removed from the control of the creditors.
Is it any wonder that we, as members of Parliament, were inundated with questions asking: What sort of a law is the Bankruptcy Act? When I go along to a creditors’ meeting I am not even accepted because I have a different point of view from what is deemed to be the majority point of view’. I do not think it is right. In this case, in relation to the deeds of arrangement the trustee may say: ‘Look, it has been accepted. The majority accepts it’. The small creditor may ask: But who are the majority?’ He is told: ‘Well, never mind. They are the people who have been admitted to the meeting as creditors’. The trustee can do that because there is no arm’s length provision. I want to see a situation in which the registrar, the Official Receiver or others who have some arm’s length position- I would suggest barristers-at-law who have had some experience -can approve of any deed, a situation in which a creditor can go out and say: ‘I object to this arrangement. It means that I will get nothing out of this position. Look at the money that has already been lost in some cases. Why are you not examining this matter from the point of view of the assets that ought to be available?’
Let us consider how we are going to deal with this situation effectively. In the case of Patrick Partners, it was put to creditors at the original meeting that an arrangement would be made for them to get 100 per cent of their money because some person was going to acquire an asset. It never happened. It was a tactic to build up support at a creditors’ meeting for going ahead with the arrangements. Look at the money paid to the controlling trustee. Look at the money paid to the legal people who were involved. It took away any chance of some of the creditors getting any money at all.
These are the reasons why we need to talk about this matter quickly. I do not want to see another three or four years go by before we deal with this Act again. I think it can be done before then. Let us talk about good law. Good law and legal concepts have to be based on reality. The problems applying to the Bankruptcy Act at present seem to be related more to economic power. Therefore, it is suspect. The reality of the situation is that all creditors have the same rights, but when it comes to deed of arrangements, the way they operate at present, we find that the majority of creditors can virtually be excluded. Wealth is the operating factor against them. It is for those reasons that I would like the Minister, through the Law Reform Commission, to look at the exact position that applies in this case and to look at the complaints of the creditors to see whether there could not be a prompt amendment to the Act.
The DEPUTY CHAIRMAN (Mr Jarman)-
Order! The honourable member’s time has expired.
– I shall take up only a few minutes of the time of the Committee. I agree wholeheartedly with what the honourable member for Kingsford-Smith (Mr Lionel Bowen) said. I am satisfied that certain provisions are included in Part X to overcome some of the problems which occurred in the case of Patrick Partners. As I understand it, amendments are forthcoming to Part X to overcome as much as possible the issue that was raised in the Masterman report. If I am right in that assumption, when can one expect that those amendments will be forthcoming?
– I could not give the honourable member for Hawker (Mr Jacobi) a particular time. I can only say that there will be a consideration of what I regard as the longer term issues that need to be examined. As I said a little earlier, the representations that we received in response to the introduction of the Bill last November contain some elements which the Government believes need further examination. If we were to try to deal with that matter and a number of others immediately it would lead to a delay in this Bill. I came to the conclusion that we had to proceed with this Bill and deal with some of these matters at a later date. I am really not in a position to indicate when that might be. As far as I am concerned, these matters will be dealt with as soon as possible. We have a legislative program this year which is, to say the least, very tight. I have to say in all honesty and candour that they will certainly not be dealt with this year, but I hope that the Government of the day in the future will address itself to these questions.
Amendments agreed to.
Bill, as amended, agreed to.
Bill reported with amendments; report- by leave- adopted.
Bill (on motion by Mr Garland)- by leaveread a third time.
Consideration resumed from 20 November 1979, on motion by Mr Fife:
That the Bill be now read a second time.
Question resolved in the affirmative.
Bill read a second time.
Leave granted for third reading to proceed forthwith.
Bill (on motion by Mr Garland) read a third time.
Consideration resumed from 4 March.
Clause 3 (Interpretation).
-When the debate on the Human Rights Commission Bill 1979 was adjourned last evening, I had just referred to some constitutional legality questions which I considered applied in relation to the terms of the amendment. I wish now to proceed to look at the implications of the terms of the amendment as it would affect the Human Rights Commission, the work of the Commission, the work of the Attorney-General and the work of this Parliament as it is described in the relevant provisions of the Human Rights Commission Bill.
When the International Covenant on Civil and Political Rights was passed by the United Nations, it was my understanding that, in the course of the third committee debate on the drafting of the Covenant a proposal had been made to include words very similar to those which have been moved in the amendment of the honourable member for Swan (Mr Martyr). The words which were suggested by the United Nations Committee that should be included were ‘from the moment of conception’. In fact, that proposal was defeated. It was seen that it was better to leave it to the States themselves to decide, according to their laws, what is human life because different countries would have a different perception and society would have different views throughout the world on that issue. I do not think that that view has changed since the Covenant was ratified and signed by 59 countries.
The amendment goes to the heart of the determination by the Commission of its functions, as defined in clause 9, and the powers and duties of the Commission as they are defined in clause 10. Clause 9, sub-clause (1), paragraph (b) states that the Commission is: to inquire into any Act or practice that may be inconsistent with or contrary to any human right-
Sub-paragraph (ii) states: where the Commission is of the opinion that the Act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement . . .
Turning to clause 10, we read in sub-clause (3):
The Commission shall perform the functions referred to in paragraph 9(1) (b)-
I have just mentioned those functions:
One of the difficulties that I have with the amendment moved by the honourable member for Swan is that it is totally constrictive on what the Commission is able to determine in this area because it is not just concerned with termination of pregnancy. It has other implications which I will come to in a moment. It is also totally restrictive as to what the Minister is able to do and it is totally constrictive on what this Parliament may have to do if settlements cannot be effected in accordance with the clauses in the Human Rights Commission Bill. In doing that, I am sure that it gets to the heart of the Human Rights Commission Bill and makes it almost impossible for this Parliament, a Minister and the Commission properly to make an assessment of what society’s views are on this issue as to whether conception is the period from which human life begins or whether there is a life in being at some other point, whether that be at 21 weeks, 28 weeks, or whatever is determined by the law.
If one looks, for example, at Halsbury’s Laws of England one reads:
At Common Law the person killed must be a life in being.
It is neither murder nor manslaughter to kill an unborn child while still in its mother’s womb.
Halsbury also says:
A child is not considered in law to be completely born, so as to be the subject of a charge of murder or manslaughter, until the whole body of the child is brought alive into the world with an independent circulation and breathing or capable of breathing, from its own lungs. It must possess an existence independent of its mother.
One could go on to refer to the way in which the law has considered when a life in being is created which is totally different from the one which would be applied if the amendment of the honourable member for Swan was included.
Another point which I think is worthwhile considering is that, if there was logic in the amendment which has been put forward by the honourable member for Swan, we would have seen support for the amendment put by the Opposition in relation to the application of this Bill in places other than the Commonwealth and its territories. There has been no indication whatsoever that there will be support to have the provisions of this Bill applied to the States. Honourable members should remember very well from the debate which took place last year that the law which applies to the termination of pregnancy -if we just take that issue alone; that is not the only issue- and the circumstances under which it can be terminated are covered by the law of each State in this Commonwealth. There has been no suggestion whatsoever that the Human Rights Commission Bill is intended to be carried over into the States sphere. In fact, it does precisely the opposite. To suggest that it ought to have application to the termination of pregnancy in these circumstances cause me to ask: Are we only talking about the Australian Capital Territory and other territories or is this the first step in a major campaign that has some other motive than the motive to define human rights for the purposes of the Human Rights Commission Bill? That is a matter which I think honourable members should consider at some length.
The other matter which I wish to deal with refers to the declaration of the rights of the child. That is not a binding instrument on this Parliament. It has not been ratified; it has not been signed. It is simply something which can be referred to, which was passed in November 1959 by the General Assembly of the United Nations, and which did talk about the declaration of the rights of the child. I have no doubt whatsoever that if a complaint were to come to the Commission, and ultimately to the Minister, and if the Minister referred it to this Parliament, every one of those areas of concern would look at the Declaration of the Rights of the Child and at the words recited in the preamble:
Whereas the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth,
I emphasise the words ‘before as well as after birth’. That is a concept which would be considered in the processes outlined in the Human Rights Commission Bill. To adopt the amendment would be to constrict totally any considerations of that type. It would be a debilitating process which would stifle the operations of the Human Rights Commission Bill.
Mr FitzPATRICK (Riverina) (8.51)- I support the amendment moved by the honourable member for Swan (Mr Martyr) because I believe that it is consistent with the aims and objectives of any Human Rights Commission Bill drawn up under the guidelines of the United Nations International Covenant on Civil and Political Rights, which came into force in 1976. 1 notice that the Minister for Employment and Youth Affairs (Mr Viner) in his second reading speech said that the starting point for the definition of ‘human rights’ will be 26 of the 53 Articles of the United Nations International Covenant. These provide for equality under the law, freedom of opinion, conscience and expression, the rights of the family and children, and basic rights such as the right to life. I have not heard anyone in this debate dispute the emphatic statement made by the Minister at the conclusion of his second reading speech, when he said:
The purpose of the Human Rights Commission, and of the machinery associated with it, is to help Australia maintain its excellent record in the protection of human rights, and progressively to develop a better and more comprehensive recognition and observance of the rights of every individual in our community, regardless of financial standing and whatever his or her race, age, sex, religion or status.
I repeat: the protection … of every individual in our community, regardless of . . . race, age, sex, religion or status.
It seems to me that the aim of a Human Rights Commission is to protect a progressive society and to take care of those who are weaker and less able to defend themselves. That seems to be consistent with the views expressed by the Minister in his second reading speech and with the International Covenant. There is no doubt that, of all human life, the baby in the mother’s womb is the least able to defend itself. If that is the case, that is where the application of a Human Rights Commission Bill should commence. It was said in the abortion debate that world authorities such as Bertrand Nathasen and others tell us that human life begins at conception. If that is so, why do we not spell it out clearly in our Human Rights Commission Bill? Either we are consistent with the aims and objectives of a Human Rights Commission and want to protect all human beings from the very beginning of their lives, or we are inconsistent and want to discriminate against the weakest of our society, the child in the mother’s womb. We cannot have it both ways.
I remind honourable members that by voting for the amendment moved by the honourable member for Swan they will be acting consistently with the aims of the Human Rights Commission Bill and in conformity with the United Nations Covenant. They will also be in harmony with the very basis of nature- the conception, nourishment and birth of a child. If we break any part of that cycle of nature, either by intent or omission, we can no longer claim that we are the custodians of civil liberty and human rights, which we claim is the very purpose of this Bill. I call on the Parliament to accept its responsibilities, to reinforce and positively set the right standards of morality in this community. I cannot see how we can do that without protecting the rights of an unborn child.
-We are debating in Committee the amendment moved by the honourable member for Swan (Mr Martyr) to clause 3 of the Human Rights Commission Bill 1979. The amendment seeks to amend the Schedule to the Bill, containing the International Covenant on Civil and Political Rights, which describes the rights to be upheld by the proposed Human Rights Commission. One paragraph of the amendment seeks to make explicit the rights of the physically or mentally handicapped. I doubt whether any members would quarrel with that, and I certainly give my strongest support to that paragraph. The other paragraphs seek to ensure that the ‘equal and inalienable rights of all members of the human family’ prescribed in the Covenant apply to ‘the human person from conception’. I quote those words from the amendment moved by the honourable member for Swan. We have before us an alternative form of wording submitted by the honourable member for McMillan (Mr Simon), which would have the Covenant apply to ‘the human person before as well as after birth’. The latter wording is derived from the United Nations Declaration of the Rights of the Child, adopted by the United Nations General Assembly in November 1 959.
Under the legislation, the proposed Human Rights Commission is charged with investigating enactments of the Commonwealth, or acts or practices performed under Commonwealth laws, to determine whether or not they are consistent with the Covenant. The Commission must then report to the Attorney-General on the action needed to be taken to ensure that human rights are maintained in accordance with the Covenant. As I understand it, the objective of the honourable member for Swan is, and I quote from his speech in this place on 28 February 1980: . . to write into what is supposed to be legislation to secure full human rights for all Australian citizens the basic right to life of every Australian, not from the accidental time of birth but from the impeccable moment of conception.
To support the amendment moved by the honourable member for Swan one would have to agree on two important points. The first is that it is necessary to define the rights of the child from the moment of conception rather than by reference to the more general description used in the United Nations Declaration of the Rights of the Child, namely, ‘before and after birth’. The honourable member for Swan regards the distinction as important as he believes that abortion is hardly ever justified, except in the most extreme circumstances. This view is strongly held by a minority in the community, and there are varying degrees to which abortion is opposed throughout most of the remaining members of the community. The second requirement, if one is to accept this view, is that even if one holds this almost absolute view, one is entitled to enforce it by legislation on what I believe to be a majority of the population not holding that view.
To be fair to the honourable member for Swan, he has shown a complete consistency on this matter. He does take the almost absolute view and he does not shrink from enforcing it by legislation. I respect his stand, but I disagree with it on two grounds. Firstly, I cannot accept the almost absolute view on abortion held by the honourable member. As I stated in the debate in this House on the so-called Lusher motion, I am not even sure that my own conservative approach to this subject would stand up under the immediate pressures in a case involving someone very close to me. I do not see the issue in such black and white terms. I regard it as a very difficult and sensitive issue. I accept that many members of the community have varying shades of opinion on it and that those shades of opinion are subject sometimes to change under immediate pressures of circumstances. It is a very difficult view in the community and there is not general agreement on it.
Secondly, even if I were certain in my own mind that abortion was almost never justified from the moment of conception, I do not believe that it is my role as a legislator to impose my personal moral view in an area where there is no community consensus; and this is such a case. Fortunately the honourable member for McMillan has produced an amendment that acknowledges the rights of the unborn in a way that does not require the absolute definition of life from conception demanded by the honourable member for Swan. This latter amendment leaves some flexibility in the definition and would be acceptable to most people, excluding only those who would deny the child any rights before birth. I commend to the House what I regard as a reasonable yet significant amendment put forward by the honourable member for McMillan.
I certainly believe very strongly that it is worth amending this Bill to acknowledge quite explicitly the rights of the unborn child. I believe that that is moving in the right direction. I argue with the honourable member for Swan merely as to how far one should go in that direction. Of course, adoption of the amendment foreshadowed by the honourable member for McMillan would not preclude an application to the Human Rights Commission to have, for example, an abortion in the Australian Capital Territory investigated, but I think it would put the Commission in a stronger position to deal with such an application in a humane and sensible manner which was not totally at variance with the majority view in the community.
To summarise, I believe that it is correct to amend the Bill by moving in the direction suggested by the honourable member for Swan, but I believe that his requirement is almost an absolute one. I do not believe that it would have wide community support although I acknowledge that it is strongly supported by a section of the community. I believe that by going as far as the honourable member for McMillan suggests we would make a very useful change to the Bill.
– This is a matter on which there will be a free vote, and what I am about to say is my view and not that of the Opposition, whose members have their own views. I can understand why people express views by way of amendments to legislation which they think quite properly should be the law, but I am in the position of having to ask: If we are talking about the law in this case, why did the honourable member for Swan (Mr Martyr) fail to support an amendment which would have made the legislation applicable to the States? The honourable member failed to support our amendment to that effect, but has brought forward a provision which is philosophical but which will not be enforceable. It would apply only to the Australian Capital Territory which has a population of 180,000, whereas there are some 14 million people in Australia. I know that the honourable member might feel that that should be just overlooked, but I cannot overlook it. If we are talking about the rights of the unborn child- and we should protect the unborn- why does not the honourable member suggest that those rights should apply to the States? He has the perfect answer which he did not use; that is, to look at the State laws.
My religious convictions lead me to agree that life commences from the time of conception, but there is no legal definition of when that actually happens. The legal definition in the various Criminal Codes which apply in Australia clearly cover this situation. In New South Wales, which I suppose includes the Australian Capital Territory, the Criminal Code states that whomsoever attempts to procure an abortion, whether the woman is with child or otherwise, is guilty of a crime. That is the law; and we have to address our minds to the defences to that charge. A defence is that abortion is not a crime under the law if the mother’s health will be impaired. That is the test. There we have the competing interests of the unborn and those of the mother who is carrying the child. Where is the law defective from the point of view of what the honourable member is trying to do? There will be no argument because the law states that whomsoever endeavours to procure an abortion shall be liable to penal servitude; it is a crime. Surely the honourable member would say: ‘I find that law satisfactory’. He does not want it to apply, but it is the law.
Let us look at the situation in his own State of Western Australia. I assume that during the recent election he campaigned vigorously in his State. At that time it would have been of interest to him to raise these matters because if he felt that the law was defective in that State, he would have done something about it. But did he have to? I suggest not, because the Criminal Code of Western Australia states that any person who has intent to procure the miscarriage of a woman, whether she is or is not with child, is liable to 14 years in prison and that any woman who has intent to procure her own miscarriage, whether she is or is not with child, is liable to imprisonment for seven years. Where is the gap in the law? I understand what the honourable gentleman is trying to do; he is trying to encourage people by saying: ‘If I get this amendment through, the right to life people will applaud me because I will really be able to reduce the number of abortions’. I do not think that is a genuine approach to this matter. I cannot see how we will save the life of one unborn child as the existing law covers the whole aspect of any woman with child. It has to be established that the woman was with child. Any honourable member can act as a complainant if he feels an abortion has taken place. The honourable member for Swan could go to the courts in Western Australia and say: ‘I have some knowledge that a crime has been committed’ and lay the information. The woman’s defence, I think, would be: ‘I had to do this from the point of view of my physical or mental health’, and I think that if the matter went to a jury, on the balance of probabilities the woman would be acquitted.
The concept put forward is that abortion is a crime. There is no argument about that. The big argument is whether the law is watertight with regard to abortion on demand. We went through this whole exercise when we debated what was called the Lusher motion. The view of that honourable member was that the law is not the law. If the law is not the law those honourable gentleman who are members of the Government have a duty to do something about it, but none of them has done anything. I agree with the right honourable member for Lowe (Sir William McMahon). I am amazed that we are now debating a Bill which has already passed through the Senate with the approval of the parties of honourable members opposite and with Government senators applauding and approving of it and rejecting our suggestions with regard to the States, but into which honourable members opposite have suddenly decided they will introduce this question about the rights of the unborn. That is commendable, but it is hypocritical.
– No, never. You do not acknowledge the rights of the private member to raise a matter.
-Naturally the Minister for Employment and Youth Affairs cannot agree. I would have thought that if he and the Prime Minister (Mr Malcolm Fraser), as members of the Cabinet, agreed with the honourable member for Swan, they would have suggested that this legislation apply to the States. Where is their standard of justice if they are going to say to the honourable member for Swan: ‘I wash my hands of this. I am in a Pontius Pilate situation. I do not care, but if you want to raise it, do so and we will see what happens when we vote’? The honourable member for Swan has circulated his amendments in which he says we have to protect the rights of the unborn. I agree, but I can think of nothing weaker than the Martyr amendment because it would not apply to the States. If we look at the State laws we find that the rights of the unborn are dealt with.
The problem in this case concerns our religious convictions; it is a question of morality. The best way to help the unborn is to help the mother. There is a United Nations charter which I would love the Government to do something about. It is called the Universal Declaration of Human Rights. It states that everyone has the right to life, liberty and security of person; that everyone has the right to recognition; and that everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to the law at a public trial. That is the law at present. That is the Universal Declaration of Human Rights.
Then we come to the International Covenant on Economic, Social and Cultural Rights. We see this provision which the Government has never done anything about:
Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period, working mothers should be accorded paid leave or leave with adequate benefits.
I suggest to the honourable member that if we were to have a society where we could guarantee women an economic future, we would save a lot of unborn children.
– And children.
-The interjection is valid. What is this Government doing about handicapped allowances? Those allowances have not been altered since 1 975. The incentive allowance for people working in sheltered workshops has remained at a measly $5. The Government has never done anything to change those real issues that it could have done something with. When we look at it from the legal point of view, where is the gap in the law for the honourable gentleman’s amendment? Where is that gap? We have a gap from the point of view of our own conscience. But we have to talk about the woman who is going to be in the dock, the woman whom the honourable member says legally should do five or seven years in a cell. I cannot see the validity of that argument. If a woman has already borne three children and because of mental health feels that she cannot carry on with the birth of another child, there is a valid argument- not from my personal point of view but from a legal point of view- that she is going to suffer a breakdown.
The honourable member says: ‘That does not matter; she goes to gaol for seven years’. That is the penalty. Can honourable members imagine what is going to happen to that woman? Can they imagine what is going to happen to the three children she has already borne? What part of society is going to support the honourable member in that context? How much stronger would the honourable member’s case be if he could say: ‘I have here an opportunity to guarantee you economic support’. But he will not do that. It is the punitive position that the honourable member wants to apply and that weakens the case of all those involved in this matter. It is a crime. There is a defence to the crime. But in many cases, people want to say: ‘No, the defence has to be the way I look at it’. That ought to be in their own conduct. The judgment ought to be against them by their Saviour. That is the position. That is where the final judgment will be. The honourable member cannot legislate to say: ‘I have washed my hands of it. Seven years in the penitentiary for you because I guarantee that you have committed a sin and you are going to pay the penalty for it’.
– Order! The honourable member’s time has expired.
– I was very disappointed to hear the speech of the honourable member for Kingsford-Smith (Mr Lionel Bowen) just now because I had understood from his comments on the Lusher motion that we debated about a year ago that his objection to that motion was the way that motion tried to go about the abortion issue. He objected to dealing with the matter of funding. I recall the words of his speech at that time. He said:
They made it an issue of whether we should be paying the thirty pieces of silver or otherwise.
They were his words. Here we have in the amendment that had been moved by the honourable member for Swan (Mr Martyr) a principle to be enshrined in the Human Rights Commission Bill. It is not something which is going to put anyone in the dock’, to use the words of the honourable member for KingsfordSmith. It is not something which will withdraw anyone’s medical benefits. Insofar as people might have had those objections to previous attempts in this place to introduce some restriction on abortions or on funding of abortions, those objections do not apply to the amendment which the honourable member for Swan has put before us. The amendment which he has put before us just concentrates on the principle, so that all of those who objected to the Lusher motion on the basis of the manner in which the motion went about the issue and not on the principle and who stated at the same time that they were clearly against abortion and wanted to reduce the number of abortions in our community, will now have the opportunity to vote on this amendment and support that very principle which they espoused while they were opposing the Lusher motion. That is really the issue that is clearly before us.
Let us look at what the Bill will do. The amendment put forward by the honourable member for Swan will add something to the Bill by way of a greater definition, a more expanded definition of the application of the Bill. In this respect, I would like to deal with a remark made by the honourable member for McMillan (Mr Simon) in his speech last night. He said:
I would raise the question of whether there is constitutional basis which would give this Parliament the right to amend an international covenant unilaterally which would have the effect of being law in this country. I think that the terms of the Constitution and the foreign affairs power which was granted under section 5 1 to this Parliament does not give us the right to pass an amendment of this type.
Between the time when the honourable member for McMillan made those remarks and now, I have not been able to find another lawyer who agrees with that constitutional interpretation. In fact, the amendment does not seek to alter the International Covenant on Civil and Political Rights. We cannot do that; that is acknowledged by everyone in this place. The Covenant is the document that was agreed to by many countries as being the Covenant. We do not seek to amend it. What the amendment moved by the honourable member for Swan seeks to do is to define the application of the Covenant in Australia. There is nothing unusual about that because the Bill itself, in whatever form it might be presented to this chamber, seeks to define the application of the Covenant in Australia. That is the very purpose of the Bill in many respects. It is in that respect that many members opposite and some on this side of the chamber have raised some objections to the Bill. They believe that the Bill is too restrictive in its application of a Covenant to Australia. So all that the amendment moved by my honourable friend seeks to do is to define in one particular area the application of the Covenant to Australia. It certainly does not purport to amend the Covenant itself.
So I believe that the argument put forward by the honourable member for McMillan has no validity. Indeed, it could be argued that the Covenant as it stands could be open to interpretation that life begins at conception because it talks in general terms about the human person or about human life and, as it stands, that could be open to the interpretation that many of us would want to put on it that human life begins at a much earlier stage than at the actual birth itself. So, this amendment merely seeks to give the broadest possible definition to human life and to set that issue squarely before members so they can vote on it.
The Human Rights Commission Bill sets out the functions of the Commission in the following way. Its main initial functions are likely to be to hear complaints pursuant to paragraph (b) and to review legislation pursuant to paragraph (a). For example, the functions of the Commission are as follows:
The Bill goes on to set out a further function, namely:
So, as we look through the wording describing the functions of the Commission, we see words such as ‘examine’, ‘inquiry’, ‘report to the Minister’. These are the sorts of words that the Bill sets out. What could be better as a way of putting before this Parliament the pure issue of principle itself than to have enshrined in the purposes of this type of body, this type of commission, the objective of inquiring into these matters; to examine them; to report to the Minister on them, and if necessary to report to Parliament on them; to raise in the community a consciousness of the nature of human life and of the importance of human life before birth; and, as many of us would put forward, the importance of human life from the time of conception? Again I recall the words of the honourable member for KingsfordSmith. In speaking on the condolence motion concerning the late Frank Stewart he said that Mr Stewart had recognised that really to do something about this issue- I hope that I am not doing the Deputy Leader of the Opposition an injustice in paraphrasing his words- one had to change the minds of people; it was something that had to be achieved in the minds of people. That is what the amendment before us sets out to do. It sets out to create a consciousness on the part of the members of one of the institutions of our society- the one that we are setting up now, the Human Rights Commission- that one of their purposes is to direct our minds towards the objective that human life, from the time of conception, is to be regarded as important and something that must be respected; that they must work towards the attainment of that objective.
I repeat that the amendment before us denies no one a medical benefit. Some may say that it should. It does not put anyone in the dock. It does not empower the Commission to take specific action against any particular purpose. It does require the Commission to examine these matters, to report on them and to assist this Parliament- and I trust the whole country- to raise the public consciousness of the importance of human life and the way in which we must be acting in order to protect it.
-For reasons that are consistent with those which I stated in this Parliament on 22 March 1979, as reported at page 1065 of Hansard, I oppose the amendment that has been moved by the honourable member for Swan (Mr Martyr). I give that reference because I want to be brief tonight and that speech sets out in greater details some of the points that I would wish to make.
This Bill is about human rights and the amendment before us, which I oppose, is concerned with when life begins for that purpose. As I stated in the debate on the so-called Lusher motion, although I personally believe that life begins at conception, or at least implantationnamely, although I belong to the genetic school as it is called in the New Zealand royal commission report, nevertheless I respect the views of those who belong to the developmental school. In other words, I respect those who hold that, whilst conception establishes the genetic base for an individual human being, nevertheless some degree of foetal development- a number of weeks of such development- is required before one can speak legitimately of the life of an individual human as being an issue in the abortion decision.
Having said that, I indicate that in no way do I support the abortion on demand school, as I shall state again in a moment. As has been mentioned in the speeches made earlier, this debate, again, is overwhelmingly about abortion. I will not vote inconsistently with that which I have stated previously. I will not, by my vote tonight, upset legislation which prevents making criminals of those of the developmental school who hold their views in good faith. There are many women who use that law to justify an abortion on the grounds that not to abort would injure their mental or physical health. I perceive the beliefs of those who belong to the developmental school to be the general beliefs of the community. The law, generally speaking must follow- it cannot lead- such general beliefs. I agree with the honourable member for Mackellar (Mr Carlton) that as a legislator I feel bound to follow in such an instance as this, in such a grey area as this, what I perceive to be the general belief of the community, not my personal view on the matter.
But this is not to state that I believe that legislation relating to abortion here in the Australian Capital Territory, or indeed in most States is satisfactory; far from it. Let me state that clearly and cryptically. Nor will the view that I have just articulated stop me from doing all that I can other than by legislation, to prevent abortions. I believe that abortions are a national tragedy, a great sadness for our country, at this time particularly. We should all be condemned for not doing more to help, by means other than legislation, those who suffer unwanted pregnancies. I have on the Notice Paper notice of a motion recommending some financial help for people in these tragic circumstances. I pay tribute to Birthline and other such organisations which help women in need. I wish that the Government would help these organisations more so that there would be a means other than recourse to legislation by which to prevent abortion.
I also make it quite clear, as I indicated earlier that I would, that I do not support legislation that would allow abortion on demand or request. Clearly, sincere people of the developmental school join those of the genetic school in believing that there is a life after a few weeks of foetal development. Life is precious, it is very sacred. Just as I oppose capital punishment I oppose the taking of life in the foetus, save when a choice must be made between that life and the mother’s life. So too, I am sure, would followers of the developmental school oppose the taking of life in the partially developed foetus, except when the mother’s life is at stake. Legislation must follow those general beliefs.
I will not vote for an amendment that is inconsistent with these views, which I stated on a previous occasion also. The amendment before us is such an amendment. However, I shall support the amendment of the honourable member for McMillan (Mr Simon). Of course there is life at a point before birth, and rights should be attached to such life.
– Order! I remind the honourable member that the amendment of the honourable member for McMillan is not yet before the Committee.
-To save time in debate, I indicate that, when it is, that will be my position. The only excuse for not voting for such an amendment would be that the Covenant attached to the Human Rights Commission Bill already governed those rights. I accept your ruling, Mr Chairman, and merely state at this stage that I oppose the amendment of the honourable member for Swan. Perhaps you will allow me to state in conclusion that, when the other amendment is before the Committee, I shall support it.
-Having heard the honourable member for Adelaide (Mr Hurford), I must make it clear, amidst the weaving and dodging that is going on in this place tonight, that I support strongly the amendments moved by the honourable member for Swan (Mr Martyr).
When this legislation was introduced, it was described by the Minister for Youth and Employment Affairs (Mr Viner) as a step towards protecting the rights of the individual. It was also explained that the starting point for the definition of human rights was to be the International Covenant on Civil and Political Rights, a United Nations covenant to which Australia was a signatory. Also proudly cited was the fact that Australia is in good company in that regardwith countries such as the United States of America, Canada, New Zealand and Japan, which have also established their own forms of machinery to protect human rights. Yet, worth while as this International Covenant may be in attempting to define human rights, it is my contention that it is fundamentally deficient in that it fails to define what is a human being. The Martyr amendments, as they have become known, fill this serious gap. Far from just being in good company, if the Parliament supports these amendments, in my view Australia will be to the forefront in upholding the principle of human rights.
The thrust of these amendments is to date the beginning of human life from conception. As such, the unborn are human beings and, as human beings the unborn are of us, beings of intrinsic worth, the sort of worth we ascribe to ourselves. The unborn have human status and human value. They have human rights and other human beings have responsibilities towards them. I judge that against these amendments, and the regard for the unborn which necessarily stems from them, three main classes of argument are advanced.
There is, first, the argument of those who question the propriety of this Parliament to amend unilaterally or to define further an international covenant. I am singularly unimpressed with this line of argument. As I explained earlier, the starting point for this legislation and for the definition of human rights is the International Covenant, but if we judge this covenant to be deficient in definition and that it fails to define what is a human being, in the interests of good law in this nation we must overcome that deficiency.
This is a sovereign Parliament in a sovereign nation. If we adopt an international covenant for the basis of our domestic law we have every right to define the application of that covenant if it needs clarification. I believe this type of argument is a legalistic out for those who would willingly beg the real question, and that is the right to life of the unborn. I am mindful of the fact that one who has argued in this vein, that we cannot amend an international covenant, has put forward his own amendments which he sought to have considered prior to this amendment.
The second and third classes of argument revolve more around a central theme, and that is the right to life of the unborn. The second class of argument is advanced by those who accept that life begins at conception. In fact, last night I heard the honourable member for Hindmarsh (Mr Clyde Cameron) say that he believes that life probably begins before the point of conception, but then those people go on to argue, as the honourable member for Hindmarsh did, that the termination of this life is justified because of socio-economic or other considerations before conception or after birth. I just simply cannot go along with that. As I said during the debate on the so-called Lusher motion, any problems after conception or after birth, be they emotional, physical, social or economical, are human problems which can be solved by humane means. The destruction of one of the participants in that problem, the unborn child, does nothing to overcome that root problem and in fact is basically inhumane and grossly unjust.
Finally, there are those who refuse to accept that conception marks the beginning of human life. They refuse to accept scientific fact, moral intuition and the logic of argument that the unborn are human beings. I do not have time to repeat all the arguments I stated during the debate on the Lusher motion, but it is worth remembering that those who do not accept conception marking the beginning of human life cannot agree amongst themselves when human life does begin. Where does that leave the principle of the sanctity of human life if we cannot even agree from when it begins? I tell honourable members that it leaves it nowhere, dependent precariously on varying individual judgment at any point in time. We only have to look at historical example and precedent to realise what state we arrive at when people make at any point in time their own judgment about the sanctity of human life.
For varying reasons the basic, fundamental human right, the right to life itself, is being denied to hundreds of young Australians. Annually up to 80,000 young Australians, albeit immature young Australians, are being denied the opportunity to grow and to develop into contributing worthwhile members of our society. Unknown is the number of handicapped human beings who are being left to die because they are being denied care and treatment that you and I would expect and demand. At present the unborn who are killed and the handicapped who are left to die have no rights, no redress to the court; they have nothing. My argument is simply this: If we are at all serious about human rights we must extend the basic human right, the right to life itself, to those human beings- the unborn and the handicapped in our society. I urge all honourable members to support these amendments, without fear or favour.
– Before calling the next honourable member I would alert the Committee to the fact that in this type of conscience debate where the call will not automatically alternate from left to right, the Chairman will endeavour to distribute the call as equitably as possible throughout the chamber. As a consequence, two honourable members may be called consecutively from the same side. I trust the Committee will accept those arrangements.
– I oppose the motion that has been moved by the honourable member for Swan (Mr Martyr) for reasons that I explained to this Parliament when we discussed the Lusher motion. I am more convinced today that what I said then is right and, therefore, I will pursue more anxiously than ever the rejection of the amendment proposed by the honourable member. To this end, I start by explaining that we are considering the International Covenant on Civil and Political Rights 1966, to which 59 countries have already become a party. All 59 countries have accepted the Covenant in the way in which it was drafted and presented. They have not been prepared to introduce matters which are particularly local or not extremely relevant to what is contained in the document. I believe that if we accept the course proposed it will be a peculiarity. We will be different from everyone else in the world. I believe we will be looked at with some apprehension once again when our actions are considered in the international conferences.
What is being recommended? Honourable members will know that the second paragraph in the preamble to the Covenant says:
Recognizing that these rights -
They are the rights that are to be protected- derive from the inherent dignity of the human person,
Obviously this must mean a living person. If that were not right it would not be wise for someone to want to add the additional words ‘from conception’. Therefore we get a big variation between the Covenant and what is now being proposed by the honourable gentleman. I say clearly here that I respect his right to do what he wants to do.
– Thank you, Bill.
– You need not thank me. I do not need thanks from anyone. I will express my pleasure or disdain if I wish to. In your case it is respect. It must be observed clearly that what was done was not done for any unuseful purpose. Those who have moved the motion have acted because they obviously believe there has to be some change in the law as they see it. I do not want change. I stand firmly on what I said on 2 1 March 1979 when referring to the Levine judgment. We must leave the judgment as to whether a child is to be aborted in the hands of the medical profession. Mr Justice Levine said:
The accused must have an honest belief on reasonable grounds that what they did was necessary to preserve the women involved from serious danger to their life, or physical or mental health, which the continuance of the pregnancy would entail-
I believe that that is a proper way in which justice should be applied, and I adhere to it. I add immediately that I do not believe in abortion on request. Nobody can say, as people did on another occasion, that I do. For that reason I want the law to be preserved.
I turn now to the Constitution. There is no doubt at all that the proposed amendment would be a contravention of the Constitution. We cannot add something to an international convention of this kind unless it is indisputably international in character. They are not my words; they are the words of a very great Chief Justice, Sir Owen Dixon. I believe they are right. What have we got here, and how peculiar is it? I am sure it was not understood by the honourable member for Swan. The simple fact is that this Bill can apply only to the Australian Capital Territory. I know it is argued that under article 50 of the International Covenant on Civil and Political Rights it is said that the provisions of the Covenant will apply to all States belonging to a federal system, but that is only if the Federal Parliament, bringing down the law, says that it shall apply, and then it would be subject to jurisdiction by the High Court. Clearly when the Bill was introduced it was not intended to apply to the States, only to the Commonwealth area of jurisdiction. Clause 5 of the Bill says it does not bind the States or the Territory. The speech made by the Minister for Employment and Youth Affairs (Mr Viner) in introducing the Bill says:
In the course of recent discussions between the AttorneysGeneral of the various States on human rights matters, interest has been expressed in the possibility of developing an Australian declaration- not a Bill- of rights based on the Covenant. Here again, an important objective is to avoid duplication of agencies to achieve the essential objective of protecting human rights. The Bill requires that, in accordance with our federalism policy, a declaration would be made only after full and careful consultation with the States. Any declaration will be tabled in the Parliament and be subject to disallowance.
So this amendment will not apply to any other place than the Federal capital. What a peculiarity! Of course the people of Canberra will go to other States such as Victoria and New South Wales to have the abortion of a child for medical reasons, thus complying with the laws in those States. For that reason I believe it was very foolish for this amendment to be introduced at the present moment.
I take the matter even further than that. It is my belief that we are creating difficulties. Because if we give power to a commission relating to the addition of the words ‘from conception’, which is as badly defined as this one is, we could have members of the commission making decisions which would come under considerable debate and which would be criticised severely in various sections of the community.
If the words are not properly defined, different people will interpret the words in different ways. The result will be that this very same issue that we are dealing with tonight will frequently come up for discussion with the same division it is creating today. We dealt with this matter twelve months ago; we are dealing with it again today and we will deal with it in the future despite the fact that we would have no power to go beyond the Australian Capital Territory. For that reason, I object to it. This matter was introduced without very much thought, as the honourable gentleman who introduced it will admit. It was introduced at a time when I believe we should be uniting the community. If ever there was a time when we needed unity of thought on such occasions involving constitutional problems and social problems it is now. What are we doing? Within a year of the previous debate we raise an issue which the House has handled before and which has been defeated. I believe the Martyr motion will be defeated again. On those issues I come back to exactly the point on which I ended when I spoke to the House on this matter on the last occasion. I think that it is a shame that this matter has been introduced, although the honourable member had a right to do so if he wanted to do it. I think too much mischief has been created already. The sooner we get to a vote and decide what the issue is the better it will be for us all.
I believe that human rights are precious. But I believe that the life of the woman is equally precious. The decision to take medical action should be judged not by a parliament but by the doctor or doctors who are attending the motherand I emphasise that. If we do introduce a law contrary to that of the Levine judgment we will find backyard abortions the rule of the day. They will not be carried out by the medical profession operating openly and in the interests of the women. In most cases they will run to wherever they can get an abortion. They will go to some backyard to achieve their objective, and maybe under filthy conditions, to get their abortion.
-I would like to -
– He has had one go.
-Not in the committee stage. I would like to applaud the seriousness of this debate and the tolerance that so far has been shown by honourable members towards each other in the varying views that they have held. But I think that the members of this House which consists entirely of men, ought to try to understand- it is impossible for a man fully to understand- the anguish suffered by an unmarried pregnant woman or the wife of a man who cannot afford to maintain even the number of children he already has before we stand up in this place and pontificate on what women should be allowed to do or what they should be made to do.
I have been very close to people of whom I have thought a lot- women whom I have loved. I refer not to my daughter- let that be clearly understood- but to people I have loved and who have found themselves in this terrible predicament of being pregnant and unmarried. It is a terrible ordeal for a woman to go through. No man can ever understand what it feels like for a woman to be carrying a child of a man who will not marry her, who cannot marry her or who is married to her and cannot afford to maintain the children that he already has. No male can ever understand that feeling. That is what I want honourable members to try to remember. I want honourable members to be charitable enough to try to understand the feelings of women.
The honourable member for Hume (Mr Lusher) who got so much capital out of this issue last year has not been here for the whole of the debate. I said in the last debate that he spends a great deal of his time chasing every bit of skirt he can lay his eyes on.
– Order! The honourable member will withdraw.
– I was about to go on to say, sir, that I apologised for having said that on the last occasion. I certainly do not suggest that that is where he is right now.
– Order! I think the honourable member must in more specific terms withdraw the reflection.
– I do that, sir, certainly. I want to take issue with the honourable member for Casey (Mr Falconer) who said that he believed that people who had deeply held religious views or intellectually held views in favour of preventing abortion ought to have every right to express them without being chastised or without being punished or ridiculed in any way. I agree with that entirely. I have always said that people who honestly believe that the termination of a pregnancy at the point of conception is murder, have not only the right to make laws to prevent that murder, not only the obligation to practise their beliefs by seeing that they do not terminate their own pregnancies, but also a right and an obligation to see that nobody else terminates theirs. I have always said that and that is a position I will not move from.
I thought it was very uncharitable on the part of one gentleman to make the remarks that he made against the Deputy Leader of the Opposition (Mr Lionel Bowen). The honourable gentleman is well known to people who are close to him to be a great christian person who practises his deeply held religious belief. He is a man who, to those who know him, has always been faithful to his marriage vows. Never at any time have I seen the honourable gentleman even so much as appear to be committing mental adultery much less adultery of any other kind. He is a credit to his church, the Australian Labor Party, the Parliament and the nation. I find it deplorable that pipsqueaks on the other side of the chamber should have the audacity to cast aspersions on his integrity and on his intellectual honesty.
– Aspersions were not cast on his integrity. The matter was dealt with with intellectual objectivity.
– The honourable member for Lilley will remain silent.
-He should remain quiet, sir, you are right, but I respect the deeply held views that he holds. I respect the views held by the honourable member for Swan (Mr Martyr). Neither he nor the honourable member who has been interjecting so fiercely is playing politics in relation to this matter. Both of the honourable members whom I have mentioned honestly believe what they are putting forward. For that reason I have the utmost respect for them. I shall not say one single word against them or denigrate them one iota. I believe they are honest and I admire people who are honest. I have no admiration at all for people who dishonestly come into this Parliament and put forward a view which they do not really believe in. I have known some people, not members of this Parliament- we are lily whites- but members of other parliaments who are no longer here, who were guilty of being party to abortions yet had the hypocrisy to stand up in the parliament and make speeches against abortion. That kind of utter hypocrisy turns me off and makes me angry.
I do not believe that the Right to Life people are doing their cause any good by the aggressive, threatening and intimidatory tactics they are using against members of this Parliament to try to get their way. They have certainly lost me over it. I would rather have an appeal couched in the terms of a letter that I received about six months ago from a gentleman who wrote to me more in sorrow than in anger over the view I had taken. It was a most beautiful letter. I have kept the letter, I treasure it, and one day it will finish up in the archives. I wrote back to him saying that if I received many more letters like that I would be forced to re-examine my conscience and to think again. His letter was an appeal rather than a threat. It was the sort of letter that really would make an impression upon any decent man who wants to be right. I want to be right on this issue. I hope I am right. I think I am right, though I may not be right, but as long as I believe that I am right I will press that belief to the point of a vote.
I know that there is a very grey area between the point at which one can say that an abortion can be had without taking a human life and where clearly it is the taking of a human life. I do not accept that life begins at the very instant of conception. I will not go again through the agonies of the sperm hoping for nourishment; I say no more about that. I do not accept that life begins at the instant of conception, but I do accept that at some point in time life is more than just some organism attempting to form itself into a human being. No one could help but be impressed by the television pictures of the quintuplets born in Melbourne recently. Here were five little children- human beings- babies who were not much more than the age at which some pregnancies are terminated. Nobody could look at those pictures without feeling that there is a point well before birth where he child is clearly a human being, is clearly entitled to be protected, and is clearly entitled to all the benefits which this Covenant seeks to bestow upon it.
Finally, I agree with the remarks made by one other honourable member, namely, that this Parliament has not the power to alter a Covenant This Parliament is altering the Covenant if its definition of any term of the Covenant alters the spirit of the Covenant from that which originally was submitted to the United Nations. That is an argument which one cannot get past. The amendment moved by the honourable member for Swan will be defeated.
– Order! The honourable member’s time has expired.
-I do not intend to make a long speech. I have spoken at length on this subject in the House and my views are fairly well known. I contend very strongly that the important issue in the amendment is that it seeks to include, in the definition of the Covenant, rights for the unborn child. It is around that central issue that this amendment must be considered.
I appreciate the calmness of the debate. I recognise that there is a need for people in the national Parliament to accept the fact that there are differences of opinion and those differences of opinion must be recognised.
The amendment asks that the rights of the unborn child should be available from conception, which I contend is the beginning of life. One of the problems that we face in a debate of this kind is to get that line of demarcation. The honourable member for Hindmarsh (Mr Clyde Cameron) has made some comments which indicate that he is struggling on this particular issue. He usually expresses himself pretty clearly, but on this particular issue he did not give much conviction to the views that he expressed. The point is, where does one draw that line of demarcation? If one holds the view that life begins at conception there is no doubt about where it does begin. The rights of the unborn child should begin from that stage where life exists. If one holds the view that life begins at conception, then one must agree that the amendment, as moved by the honourable member for Swan (Mr Martyr), that carries with it the merit of having that line of demarcation clearly denned; and no life is denied the protection that it is desired to give it in the Covenant.
In previous debates arguments have been put forward on the issue of when an abortion can be accepted. There are very big differences of opinion about that. At that time I quoted from eminent doctors who had studied this position in the United Kingdom. From the medical views which I have listened to and read about since that time I am quite convinced that a woman does not have an abortion without the possibility of some serious effect on her health or her attitude to life. This was the view held by those doctors. It is a matter of opinion and can be argued, but there is plenty of evidence for that view. The argument which gives encouragement by those who seem to regard abortion as something which in itself could have no ill effects, has been disproved, to my satisfaction, by very many prominent medical people who have made a study of that issue.
The rights of the unborn child must be recognised and deserve to be recognised. That is why this amendment to the Covenant has been brought forward. If one believes that life begins at conception, of course it is logical that protection should follow that line and should be applied from that point. That is the one place where this line of demarcation is perfectly clear. There have been some comments as to the difficulty arising from the changed definition. If, in providing for an inherent right to life, Article 6.1, has avoided interpretating whether life begins at conception or at birth, I submit that it could well be that even greater difficulties could arise because of the uncertainties that surround that Article. Having listened to this debate, I am not convinced that the problems that some people seem to suggest could arise as a result of this amendment being carried would, in fact, arise. If this matter proceeds, there is a possibility that even greater problems could arise because of the lack of definition at present. If there is a lack of a clear cut definition- and we have the opportunity to provide a clear cut definition and a line of demarcation- and if we believe in the rights of the unborn child, then I agree that the amendment moved by the honourable member for Swan will so provide.
The amendment does not make a great deal of difference to the Covenant except on that one major point, the introduction of the words ‘from conception’. There has been a lot of discussion which I feel does have relativity to this subject. Let us look at this amendment in the form in which it has been provided. It means that words are to be added. To the words in the Covenant Recognizing that these rights derive from the inherent dignity of the human person’, paragraph (a) of the amendment would simply add the words ‘from conception’. Article 2 paragraph 1, states:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction . . .
Paragraph (b) of the amendment would add the words ‘from conception’. The Article would continue: the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Paragraph (c) of the amendment would add ‘including the mentally and physically handicapped’. Article 6 paragraph 1 states:
Every human being has the inherent right to life.
Paragraph (d) of the amendment would add from conception ‘. The article would continue:
This right shall be protected by law. No one shall be arbitrarily deprived of his life.
The definition of human rights would be altered to read: human rights’ means the rights and freedoms recognized in the Covenant or in any relevant international instrument and includes human rights before birth;
When we examine those alterations, when we see that they boil down to adding the words from conception’, I believe the point at issue is whether we believe that life begins at conception. My argument to that proposition is that if a conception takes place, if a being is conceived, then in the ordinary course of human nature that being will become a person in due course. Therefore it would be hard to say that life does not begin at conception. If that is the case, it does not matter whether a particular time is stated when a pregnancy reaches an advanced stage where the unborn child should get some protection. I believe that it would be very hard to define a cut-off point. I contend again- it has been the central theme of the comments I have made tonightthat we should give that protection as from conception. We should certainly give protection to every unborn child. Such protection covers everybody, whereas the other idea of defining a time at which life begins leaves some unborn children without the protection which I believe they deserve.
– I prefer the amendment moved by the honourable member for Swan (Mr Martyr) to the amendment moved by the honourable member for McMillan (Mr Simon) and I prefer the amendment moved by the honourable member for McMillan to the unamended Bill. Before I discuss the relative merits of the amendments, I wish to refer to an attack not on the views of the honourable member for McMillan but on the man himself. It has been asserted by the Right to Life Association that Mr Simon has revealed his duplicity. I assert that the honourable member for McMillan is not a mendacious man. If in fact he is, to quote the Association, ‘one of its prime targets at the 1980 Federal elections’, I, although I agree with the central views of the Right to Life Association, will be in the electorate of McMillan campaigning for the member for McMillan.
– We cannot say the same.
– No, obviously. Much has been asserted about the effect of the Human Rights Commission Bill. In fact, all the Human Rights Commission will purport to do is to advise, to bring matters before the attention of the Parliament and the public. It will have no power beyond that; it is not intended that it should have any power beyond that; and it cannot have any power beyond that. The explanatory notes on the clauses state:
The Commission is to achieve its objectives by processes of investigation, conciliation and report, and through the publicity derived from having its report, to the Minister tabled in the Parliament.
Further on it is stated:
The Commission’s recommendations are not, however, self-executing:
So the majority of fears that have been expressed by those who oppose the amendment moved by the honourable member for Swan must be groundless. The Human Rights Commission will have no executive authority or effect whatsoever. It will merely make us look at a very serious question. The Human Rights Commission will attempt to bring publicity to a group of wellknown, widely accepted human rights. It will call attention to any form of discrimination- to sex discrimination, to slavery, to liberty and security of person, to freedom of movement, to equality before the law, to onus of proof, to the rule of law and so on.
These human rights are basic and are very important, but they are all dependent upon the right to life itself. Our society depends upon the right to life. That brings me to Article 6. Article 6 is the article that deals with that prior right. It is a prior right, for without that right there are no others. Article 6 paragraph 1; in its unamended form, states:
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Article 6 paragraph 5 states:
Sentence of death shall not be imposed Tor crimes committed by persons below eighteen years of age -
The following is the relevant part- and shall not be carried out on pregnant women.
Why it is not to be carried out on pregnant women? Of course, because we would not be punishing merely she who committed the crime and to whom the due process of law had been applied; we would be punishing the innocent child. I believe that sanctity of life is necessary to the continuing preservation of society. Unless life is sacred society cannot survive. If life is to be sacred we need to know what is life and what is sacred. There have to be some starting and finishing points. I do not think that we can reasonably say that some lives are more sacred than others. Are the old less sacred, less important, than others? Are the inferior or the people of a different race to be considered less sacred? For heaven’s sake, no. The unborn are equally alive, as has been conceded by several speakers who intend to oppose the amendment moved by the honourable member for Swan. If the line is not drawn at the point of conception, at what point can it be drawn? That point was made by the last speaker. It must be drawn and it must be drawn clearly. The only clear point at which it can be drawn is the point of conception. We cannot afford to have a society that throws its weak or unwanted birds from the nest. Hence it is right that the Human Rights Commission should keep these issues before the Parliament and the public.
-As the honourable member for Moore (Mr Hyde), the previous speaker in this debate, said, the kind of issues at which the Human Rights Commission will look will be things such as the right of assembly, the right of free speech, imprisonment without trial, the right to join a trade union, the right to religious freedom, sexual discrimination and such matters. The honourable member for Swan (Mr Martyr) and the honourable member for McMillan (Mr Simon) have decided to seek to have the Committee add by amendment some extra words to the second recital of the International Covenant on Civil and Political Rights. The second recital reads:
Recognizing that these rights derive from the inherent dignity of the human person.
That is how it reads at present. If the amendment moved by the honourable member for Swan were carried the recital would read:
Recognizing that these rights derive from the inherent dignity of the human person from conception.
If the amendment moved by the honourable member for McMillan were carried the recital would read:
Recognizing that these rights derive from the inherent dignity of the human person before as well as after birth.
The issue really gets down to the fact that this Human Rights Commission has no executive powers, as has been mentioned by other speakers. From my point of view, both of those amendments are an advance upon the words presently in the Covenant. My judgment on the matter goes back to which of the amendments buttresses legally the provisions of the Human Rights Commission legislation. I have always held the view that there is a continuum of life after conception. It is not only a religious view which I hold, but it is what I think is essentially a logical view: If we were aborted we would not be here. In other words, if there was any break in the continuum of life after conception, obviously there would be no chance for future development. If one extrapolates that argument backwards, therefrom - from the point of conception- there is a continuum of life and a development. So, rather than it being a religious point of view, it is, I think, logical. I can never quite understand why others do not see the logic as I see it, but I respect the fact that many people do not.
What impact do these so-called amendments to the Bill have on the legislation? As I said earlier, the Commission has no executive power. Under ‘Powers and duties of the Commission’, the Bill provides:
The Commission may, in its discretion, decide not to hold an inquiry as a result of a complaint … if the subjectmatter of the complaint is not of sufficient concern to the complainant.
The only complainant in an abortion matter would quite obviously have to be the father. The aborted foetus cannot complain. The woman, the mother, would not complain, otherwise she would not have had the abortion in the first place. She is not likely to have the abortion and then go to the Commission and complain about her own abortion. The complaint would have to come from the father. The complaint could only come from the father after the abortion had taken place. A father could not go to the Commission and say: ‘I think that my wife or woman friend is contemplating an abortion’. The whole question is where one proves legally when life has commenced. If the father complains after the abortion has taken place, how and on what basis could evidence be introduced in a court that life commenced from a certain time or certain date? It would be more likely that a woman had been to a medical practitioner and that there would be a record of a positive test of pregnancy. Therefore, in respect of the reference in the Simon amendment to ‘before as well as after birth’, before birth would have, in my view, much more prospect of some kind of legal test than would the precise definition of conception or the time of conception. Therefore, I think that the Simon amendment in terms of this legislation is more appropriate. However, that does not conflict with my view that life begins at conception.
We then get back to the question of sufficient concern. Even if the Commission deems to investigate the matter, the Commission is then only going to report to the Minister and nothing will happen from there on; so the notion that this is an abortion debate is nonsense. It has nothing to do with any specific legislation on abortion because when the Parliament considered the medical practices clarification legislation in 1974 it made a positive decision about legislation, laws, affecting the rights of unborn children. This amendment does not do that. When the Deputy Leader of the Opposition (Mr Lionel Bowen) moved the amendment which proposed a specific adoption in judicially enforceable form -in other words, when the honourable member for Swan was given the right to make the decisions of the recommendations of the Commission judicially enforceable- he voted against it. When he was given the opportunity to have these laws applied to the States he voted against that. Where the amendment was moved to expand the powers and functions of the Commission, including effective means of enforcing its recommendations, he voted against that.
That is a very curious way for him to behave because, if he believes that this Commission ought to be able to investigate an abortion matter, why does he not want to have some kind of recommendation judicially enforceable? Why does he only want there to be a report to a Minister? What Minister of the Crown is going to act upon it? We all know here that no Minister would act upon such a recommendation because of the implications of his action. If one denies the legislation at legal enforceability one really takes away from it something other than a piece of legislation which declares, as the second recital does, the dignity of the human person either from conception or before as well as after birth.
On that basis I believe that the amendment moved by the honourable member for McMillan is a more appropriate amendment which buttresses the legislation as we have at present introduced. Frankly, whilst I accept the integrity with which the honourable member for Swan holds his views about life after conception, I do not have any respect for the manner in which he has sought to introduce the amendment as if it is to imply, particularly to organisations like the Right to Life, which are conscienciously interested in the topic, that this will in some material way assist the question of abortion. It will not assist the question of abortion. Therefore, may I say finally that I would vote in favour of the Simon amendment. I hope that the Committee will carry it.
– For the benefit of the honourable member for Blaxland the ‘Simon amendment’, as he described it, is not yet before the Committee. It has been circulated.
– I will not detain the Committee for very long. Mr Chairman, given the nature of your ruling, may I just say that I do not intend to speak on the next amendment. I foreshadow that I am opposed to this amendment and likewise I am opposed to the amendment of the honourable member for McMillan (Mr Simon). Other speakers have said, whether they have categorised this as an abortion debate or not, that they will not be canvassing the views that they expressed on the motion of the honourable member for Hume (Mr Lusher). I am also in that category. My views on the subject of abortion are well known. They accommodate the shades of grey which the honourable member for MacKellar (Mr Carlton) and other members have referred to. I will confine myself in the interests of time to the Human Rights Commission Bill itself. In doing so, I must say that the declaration of human rights and other international instruments apply to lives in being. They do not confer rights on a foetus.
These international instruments are consistent with the common law of England which we have applied here since the white settlement. They are consistent with many statutes of the Federal and State parliaments which have adopted that common law. In many cases they do confer rights on lives in being retrospective to their period in the womb. They do not confer rights on a foetus prior to birth. Some of the rights and protections relate to the period prior to birth, but they apply retrospectively once the life is in being.
One of the consequences, it seems to me, of acceptance of the amendment of the honourable member for Swan (Mr Martyr) is that it seeks to change the whole pattern of that British law and the Australian law by conferring rights on a foetus. I cannot construe it in any other way than that. Likewise, I think there is an ambiguity- if I might have your indulgence, Mr Chairman- in the Simon amendment in that it could be read as doing the same, although I doubt that the mover intended that and certainly I would ordinarily read it in the light of the common law as enshrined in the Australian law. I believe that the Bill is an adequate statement of human rights in accordance with international instruments and Australian domestic law and that, as such, members of this Committee ought to support the Bill.
A number of members have referred to the ultra vires nature of attempts to amend the International Covenant. I say simply that I identify myself with those comments, especially as put by the right honourable member for Lowe (Sir William McMahon). A couple of examples have been mentioned, and I will refer to one that has been raised with me, of matters which could certainly cause consternation among people if the amendment of the honourable member for Swan were carried. I instance the case of a woman who might be pregnant but not know it and who continues to take contraceptives, which might have a damaging impact on the foetus. Is some interfering relative or neighbour to be able to go along to the Human Rights Commission and complain about this possible interference with the right of the foetus? I doubt whether the Commission would entertain such a complaint, but the mere fact that people are already talking about whether this would be a consequence indicates the nature of the difficulty associated with the amendment. I do not wish to pursue that matter any further. I have summed up my arguments, and in the interests of time I will not pursue it.
Before resuming my seat, I wish to refer to a Press statement which was released in the name of Mrs Margaret Tighe and which I understand was published this morning in at least one newspaper. An extract from that statement says:
Barry Simon is a marked man!’, said Margaret Tighe, President of the Association.
That is the Right to Life Association. The article continues:
He is one of our prime targets for the 1980 Federal elections’.
It goes on:
Right to Life President Mrs Tighe urged those who have already shown by their votes where they stand on the abortion issue to support the Martyr Amendment. ‘Likewise those MP’s who are conscious of the power of the Pro-Life vote at the 1 980 elections would be well advised to suck with the Martyr amendment’, warned Mrs Tighe. ‘The Pro-Life movement will not go away! ‘
The honourable member for Hindmarsh (Mr Clyde Cameron), amongst others, has referred to the intimidation by the Right to Life Association. In my speech on the Lusher amendment I did likewise. I say now that not only is the honourable member for McMillan a marked man, but I have also long been a man marked by the same Association. I should mention that at the last election the Association distributed in my electorate a pamphlet, in the same blue and white colours as the Liberal Party uses, setting out a score for answers by the various candidates to a questionnaire issued by the Association. By the way, I did not complete that questionnaire because I was campaigning interstate and the Association gave me short notice of it. I did not see it until after the closing date and I did not complete it. Nonetheless, the Association gave me a minus score. The pamphlet was distributed outside the official Commonwealth Electoral Office as though it were a how to vote card.
I do not need to say much more because we are all being very moderate tonight, but I believe that all honourable members ought to consider the scurrilous intimidation of these totalitarian bullies. The Right to Life movement lost the motion of the honourable member for Hume. It will lose this motion of the honourable member for Swan. It will be sadly disappointed when it takes on marked men such as the honourable member for McMillan and myself. I trust that no member of this Parliament will bow to the scurrilous intimidation of this Association. I believe that the best way to stand up to it is to recognise that it is behind the motion of the honourable member for Swan and to defeat both amendments and support the Bill.
-I support the amendment moved by the honourable member for Swan (Mr Martyr). I should also say that I was concerned to receive on my desk the pamphlet from the Right to Life Association accusing the honourable member for McMillan (Mr Simon) of duplicity. I do not agree with the Minister for Immigration and Ethnic Affairs (Mr Macphee), that the Association is behind the move of the honourable member for Swan. I think it has come from his own initiative and has been his conviction for a long time. I disagree with the honourable member for McMillan on this issue. We have conceptual and definitional differences, but I respect his right to those differences. If he is a marked man, I will be happy to campaign for him in 1980, despite our differences. In this place he certainly has been a champion of human rights. We disagree on this particular aspect of the human rights question, and I respect his right to differ.
Having said that, I think that much of the concern that has been expressed about these amendments is not well founded. This is not a rehash of the Lusher motion, which basically related to issues of Federal funding and States rights. This Bill is a statement of rights and of the principles upon which those rights are established. It does not get down to the specifics of the Lusher motion. All those members who voted against the Lusher motion but expressed their abhorrence at the principle of abortion, particularly abortion on demand, might see their way clear to support this amendment. The explanatory memorandum to the Human Rights Commission Bill states:
The Bill provides that the definitions of rights contained in the International Covenant on Civil and Political Rights (or other declared international instruments) are to be the point of reference for the Commission when promoting human rights and investigating complaints.
I think it is sensible therefore to adopt in this Bill, through the amendment, the principle of that other declared international instrument, the Declaration of the Rights of the Child. After all, it was only last year that we in Australia celebrated the twentieth anniversary of the proclamation of that instrument by the General Assembly of the United Nations in 1959. The preamble to the Declaration of the Rights of the Child states: the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.
I would take it a little further than that, as will be clear from my comments. In the light of that statement, let us provide in this Bill the protection afforded by the provisions of that international instrument. There are those who say that we should not interfere in a Bill such as this because it is based on an international covenant, particularly if we are not about to enshrine such amendments in our laws. I wish to make several points in relation to that criticism. First, this Parliament has the power and the right to amend the Bill in the way envisaged. The amendment would broaden its scope rather than narrow it, and this Parliament has the responsibility to act in this way if it so chooses, notwithstanding the nature of the Bill, its effectiveness, or the constitutional limits to our jurisdiction. We are not changing the Covenant, we are providing a bench mark to be used by the Commission for carrying out its duties, a bench mark which seeks to define more clearly something which is inherent in the Covenant. My second comment on this criticism is that the Bill, even without the amendment, rightly or wrongly has no judicial enforceability on the Commonwealth or the States. I think the honourable member for Moore (Mr Hyde) made that clear when he said that, according to the explanatory memorandum, the Commission is to achieve its objectives by processes of investigation, conciliation and report, and through the publicity derived from having its report to the Minister tabled in the Parliament. So we are not deluding ourselves as to the role of the Commission, but we are aware that the Bill gives the Commission an educative role.
My third point in reply to this criticism is that I wonder whether we are really attempting anything radical by this amendment. It seems to me that the amendment is basically doing no more than making specific mention of a fundamental human right that is already recognised, although not obviously to many, within the Articles of the International Covenant on Civil and Political Rights. It seems to me that all the human rights outlined in those Articles are fully dependent on the one fundamental human right, that is the right to life, which is clearly enunciated in Article 6 of the Covenant. I agree with the comment of the honourable member for Moore that paragraph 5 of Article 6 is very interesting. It says that the sentence of death will not be carried out on pregnant women. I think we are entitled to ask why that paragraph is there. Quite obviously, it is there because there is an acknowledgement that a pregnant women is carrying another life within her. On that point, I refer to a comment made by the late Frank Stewart, a man I respected greatly when he was in this chamber. In an abortion debate in this Parliament in 1973 he said:
I ask the Minister whether when his wife was carrying their children and they knew she was pregnant did they refer to that baby as a blob of jelly or did they refer to it, from the time that they knew she was pregnant and they were going to have a baby, as a foetus or any other name but baby?
– It being 10.30 p.m., I shall report progress.
-I propose the question:
That the House do now adjourn.
– I require that the question be put forwith without debate.
Question resolved in the negative.
-To conclude the quote, the honourable member said:
Did they expect at any stage during that pregnancy that 3 white mice or a kangaroo was within his wife’s body?
So the Covenant itself, in an obtuse way, recognises the amendment moved by the honourable member for Swan. It refers to pregnancy and not to particular stages of pregnancy. I reiterate that we are not delineating the specific rights of the child, the principles of funding or any of those matters. To a Bill which states rights and principles according to an accepted international declaration we are simply seeking to add another principle which has also been internationally declared and celebrated in Australia and which is indirectly enshrined in the International Covenant on Civil and Political Rights.
This amendment to a human rights Bill takes the question of human rights back to where human life begins. I agree that there is always some debate on where that human life begins. It has been quite clearly stated in the New Zealand Royal Commission into Contraception, Sterilisation and Abortion which has been referred to previously in the course of abortion debates in this Parliament. Of course, as was mentioned by the honourable member for Hindmarsh (Mr Clyde Cameron), any discussion on this overall subject necessarily relates to one’s own concept of foetal life. If we depart on that fundamental point, our subsequent arguments on this subject can never come together and we have to respect each other’s point of view on that question. I believe that life begins at conception. Therefore, I support the Martyr amendment. It is a statement of principle in a Bill which deals with principles.
The amendment foreshadowed by the honourable member for McMillan is, in my view, a compromise amendment. It certainly improves the original Bill, but it seems to me that the term before birth’ is very different from and open to much more discretion than the terms of the amendment moved by the honourable member for Swan. In answer to the honourable member for Mackellar (Mr Carlton), who spoke earlier, I would say that in my view we either have life or we do not. It is not a matter of degree and it cannot be measured, in my view, in months or days.
There is only one starting point and the honourable member for Swan clearly defines the point, where, in my view, human rights should start. The Simon amendment is not clear enough. It suggests that the human rights of the unborn child may begin or end at a yet-to-be-determined month during pregnancy. In my view, human life does not become more sacred the older one gets, even if one is talking in months rather than in years. Therefore, I certainly support the Martyr amendment.
– What about the rights of women?
– In answer to the honourable member for Port Adelaide, who talks about the rights of women, I say that I am talking about the rights of the child. If one believes that life begins at conception, there are two separate rights that cannot easily come together. I choose on this occasion to speak for the inarticulate person who has no one to defend him or her. That is a very difficult point. It revolves around one’s concept of foetal life. I think we differ very greatly on that issue. I am pleased to support the amendment moved by the honourable member for Swan.
– I am reluctant to enter this debate and I intend to speak for only a couple of minutes. I oppose the amendment moved by the honourable member for Swan (Mr Martyr). In my few remarks I want to speak in support of full human rights. I feel that we really have been using a smokescreen on the question of human rights. I do not need to spell out just two fundamental issues. In looking at the freedom of speech and the freedom of assembly, there is no doubt in my mind that the honourable member for Swan would support the Government of Western Australia in the restrictions it places on trade unionists who want freedom of assembly and freedom of speech. The fact is that there is a diversion in this whole debate.
The Minister for Immigration and Ethnic Affairs (Mr Macphee) talked about intimidation and about the right of people to determine their own futures free from coercion and intimidation. He spoke about intimidation from the Right to Life Association. But some of us who have been members of this Parliament and of the Labour movement for years have suffered intimidation from the whole system which has never stopped intimidating us. I applaud the courage of both the Minister for Immigration and Ethnic Affairs and the honourable member for McMillan (Mr Simon), but I hope that they have some understanding of the intimidation and the smearing innuendoes which have come through the years from the conservative forces in this country.
When looking at the question before the Housethat is, human rights- we can look at the legislation on the statute book which they themselves have supported. Amendments have been moved to such pieces of legislation which concern the whole basis of human rights as the arbitration legislation, the Industrial Relations Bureau legislation and the Atomic Energy Act. Under the provisions of section 47 of the Atomic Energy Act one can be guilty by association. These are the aspects of intimidation.
I am speaking briefly in support of full human rights and in opposition to any attempts to restrict the concepts of human rights, including restrictions on the human rights of women to control their own bodies. There do not seem to be too many men in this male dominated chamber who worry about the role of women or about what women want. If there were more women members of this Parliament we might have a better understanding of the real issues, but this male dominated chamber seems to have forgotten about this issue. Mr Chairman, you seem to be looking at me as though I am straying from the Bill. With due respect, this amendment seeks to amend the Schedule, which deals with the whole basis of human rights. The sad thing about this piece of legislation right from the word go, in my view, is that it is extremely weak and inadequate. The basis of the inadequacy is, if I can use the term, that the honourable member for Swan is the flag bearer for his own narrow political line in bringing forward this amendment. But in fact we know -
– He has a conscience. It is a free vote.
-I have never made a reflection on the sincerity of the honourable member for Swan or on his conscience. He knows that I accord him that right. There are honourable members on this side of the Parliament with consciences, just as there are honourable members opposite with consciences. I am making no reflection on their consciences, but I am saying that this amendment on this inadequate piece of legislation should not have been brought forward- other honourable members have spoken about how weak it is and how trivial the arguments areand that it is about time the men of conscience opposite started to think about real freedoms in this country. It is time they started thinking of the real freedoms of our Aboriginal, people. The Minister for Employment and Youth Affairs (Mr Viner) should start worrying about their freedoms. The way in which he has connived and manoeuvred to get his Ranger agreement with the Northern Land Council -
– Order! I am afraid that the Chair cannot allow the remarks of the honourable member for Reid. The Chair is obliged to require the honourable member to be more relevant to the question before the chamber.
- Mr Chairman, we are dealing with the Schedule to this Bill. There has been an amendment moved to the Schedule. We should be dealing with human rights as they apply to Aboriginal people. That is the basis on which we should be proceeding. After all, we do not have to narrow our remarks to the point where we discuss only the terms of the amendment. We are talking about changing the Schedule. I believe that I have a right to talk about the Schedule. We are dealing with the whole basis of human rights. Surely we have a right to talk about Aboriginal people. We have a right to talk about how a Minister of this Government connived, about the injustice which he dealt to the Aboriginal people and the way in which he misled the Northern Land Council and about the way the Aboriginal people in the Northern Territory have been treated. Surely we have a right to talk about the way in which we have treated the Aboriginal people right from the beginning of white settlement in this country. Those are the basic points which we ought to be dealing with in more depth.
There seems to be this special understanding that we have to put everything aside and talk about some sacred issue. We in a male dominated chamber are making a decision about women, a decision which as far as I am concerned will in fact restrict the whole of women’s rights and freedom. A woman should have the sole right to determine what happens to her body. Basically, we men should have a better understanding of that issue. I did not want to speak for so long; in fact, I thought I was going to speak for only a couple of minutes, but the honourable member has got me wound up. I do not want to use the term, but I believe the amendment before the chamber is a smokescreen. I believe that we should defeat this amendment and that we should also defeat the further amendment proposed by the honourable member for McMillan when it comes before us.
– I support the Martyr amendment. Might I just remind honourable members of the opening paragraph of the International Covenant on Civil and Political Rights because I do not believe that it has been read to the chamber and there are words in it which are somewhat appropriate to this situation. It says:
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members-
These are the important words- of the human family is the foundation of freedom, justice and peace in the world . . .
To a large extent, the debate tonight has proceeded on the premise that by some convoluted logic the unborn child is not, for the purposes of human rights, a member of- to quote the words of the Covenant-‘ the human family ‘.
I do not need to repeat the basic principles upon which I believe the Martyr amendment should be supported. But I do wish to invite the attention of honourable members to some of the comments that have been made as to the amendment, its effect upon the Bill and its effects upon the Covenant. The first thing I want to say is that if members care to look at the Constitution of the Commonwealth of Australia, they will find that no constitutional power is expressed in the Constitution to legislate with respect to human rights. The basis upon which this legislation comes before the Parliament is by virtue of the power given in section 51, placitum (xxix) and that deals with external affairs. So the whole constitutional basis of the legislation we are dealing with is the statutory incorporation of a United Nations covenant. Without that power and without reference to the Covenant, there would be no constitutional basis at all for this legislation.
The second thing is that it has been claimed during the debate that this legislation will have effect only within the Australian Capital Territory. This is just not correct. I refer the honourable member who made the comment to clauses 5 and 1 1 of the Bill. Clause 5 providesand I readjust a few words:
This Act binds the Crown in right of the Commonwealth
I will come back to the remaining words in a moment. Clause 11 provides machinery for the Human Rights Commission -
- Mr Chairman, I take a point of order. My point of order concerns the question of relevance. We are not discussing the Bill as a whole. We are discussing the amendment of the honourable member for Swan. In my view, the honourable member for Denison has rambled all over the place and I suggest -
– I think the honourable member for Banks has made his point. The honourable member for Denison is required to be relevant. The Chair was extending some latitude to the honourable member for Denison to come back to the question before the chamber. I must require him to do so immediately.
-I was a little disappointed in the point of order of the honourable member for Banks because the point I was about to make was that the amendment moved by the honourable member for Swan (Mr Martyr) may have application in accordance with this clause 1 1 of the Bill in every State of Australia and in the external Territories. That makes it a completely different kettle of fish to those who have been claiming that the Bill would have application only in the Australian Capital Territory.
The third point I want to make in relation to the amendment of the honourable member for Swan concerns the claim by some people that in some way the amendment would be out of order because we cannot add to an international covenant. An unreported decision of Sir Owen Dixon was cited in favour of that proposition. I do not know what decision the honourable member referred to, but I do know that as long ago as 1945 the High Court of Australia, in the case of Polites v. the Commonwealth and Kandiliotes v. the Commonwealth, clearly ruled that the Parliament of the Commonwealth of Australia could pass any legislation it wished which would override international law. So, if we can override international law, we can clearly override an international covenant, and we can clearly override an international treaty.
The relevance of this is that some honourable members might have had the legal wool pulled over their eyes to the point where they might have believed that in some way the amendment of the honourable member for Swan was not a proper amendment. It has been claimed in the debate that the amendment is contrary to the Constitution. I submit, with the greatest respect to the honourable member for Banks, that I am fully entitled to put an argument to the contrary, to say that the amendment of the honourable member for Swan is not only fully constitutional but that five other countries which have ratified this Covenant have chosen to reserve sections of it; in other words, to say that those sections will not apply. I invite, rhetorically, the Minister to dispute as a proposition of constitutional law that if we have power to take out parts of a covenant we also have power, for the purposes of domestic Australian law, to add to that covenant. That is exactly what the amendment is doing. I raise that point in the hope of clearing the air so that no honourable member is seduced into believing that the amendment of the honourable member for Swan is in any way unconstitutional or in any way contravenes international law. It would be a tragedy for any honourable member to take that view and to vote against the amendment on that premise.
Having made those points, may I refer specifically to the terminology of the amendment. It is important that when we look at this amendment, particularly in comparison with a subsequent amendment, we appreciate the significance of the wording of the amendment. It adds to the definition of ‘human person’ the specific qualification ‘from conception’. It is on that basis that I would contend as strongly as I can that if one accepts that a human being exists from the moment of conception, it follows as a matter of logic that the amendment moved by the honourable member for Swan should be supported. If we accept that there is human life, as the late Frank Stewart put it, existing in the womb at the time subsequent to conception, then on what basis can we deny that form of human life, the human rights which are set out in the Covenant and which are to be protected by the Commission? With the greatest of respect to the honourable member for Blaxland (Mr Keating) it is not just a question of joining trade unions; it is not just a question of freedom of association: It is, as the honourable member for Perth (Mr McLean) pointed out so forcibly, the most fundamental right of all, and that is the right to life. I suggest that without that no other rights are worth anything, no matter what our views may be. We are confronted by a very interesting situation. I suggest that if a vote were taken in this Parliament tomorrow on the reintroduction of capital punishment such legislation or proposal would be defeated overwhelmingly on the fundamental basis that no civilised community has the right to take away the life of one of its citizens.
I support the amendment of the honourable member for Swan on a very simple basis. If quite properly this civilised community will not take away the life of a citizen who has had a trial according to law, who has been represented by legal counsel and judged by his peers, on what basis of logic can we say that something which cannot even speak, which has no independent existence, shall have its right to life taken away. For those reasons I not only commend the honourable member for Swan as a man of conscience and courage but support his amendment. I have indicated to the honourable member for McMillan (Mr Simon) that if, contrary to my judgment, the amendment of the honourable member for Swan were defeated I would support his amendment.
I make it clear in conclusion that any suggestion that the honourable member for Swan’s amendment is not constitutional, or in some way contravenes international law, is completely, I say with respect, wrong. I invite any honourable member who claims authority to the contrary to indicate the same. Specifically, I say to the Minister for Employment and Youth Affairs (Mr Viner) that, if five other countries have already varied, by reservation, the International Covenant, it must follow that the power to delete includes the power to add. For those reasons I support strongly the amendment moved by the honourable member for Swan.
-The important thing for the Committee to realise- we seem to have moved away from it a little- is that we are discussing a Bill to set up a Human Rights Commission. A number of people seem to be under rather a misapprehension as to what we are debating. It is not a Bill to outlaw abortion in this country. Indeed, if one looks at its provisions one sees that even if it were to be amended in the fashion suggested by the honourable member for Swan (Mr Martyr) it would have little or no effect on the procurement of abortions in this country.
I have considered the amendment of the honourable member for Swan during the last few days, since it was tabled, and, in common with the honourable member for Blaxland (Mr Keating), say that I believe that life begins from conception. However, unlike the honourable member for Swan, I am essentially a practical man. I came into the Parliament with a desire to see some changes occur. I would think that, if this Parliament made a statement on the rights of all people, not just those of women or children, or men, it would be doing something productive. From what has been said around this chamber this evening, in the lobbies and in the dining room, it would seem that the amendment proposed by the honourable member for Swan is doomed to failure. Therefore, I must ask myself: Am I to come into this Parliament and send myself on a fool’s errand or to vote for a motion which perhaps does not go quite as far as I would like it to but goes some way toward putting on the record the rights of unborn children.
That brings me to a consideration of the amendment that has been foreshadowed by the honourable member for McMillan ( Mr Simon). I believe that it has some chance of gaining some support in this Parliament. If it does gain it, it will go a long way towards putting on record a principled statement by this Parliament that it believes that children do have a right prior to their being born. Indeed, I feel that it goes a little further than does the present common law which says, in effect, that one has rights before one is born provided one lives to claim those rights. That is a compelling reason to vote for the foreshadowed amendment rather than that of the honourable member for Swan.
I am also rather taken aback by some of the empty rhetoric that has been expressed this evening by Government supporters. During the last two days, honourable members have had a chance to vote in such a way as to give this Bill wider implications than its present rather narrow implications. The honourable member for Kingsford-Smith, the Deputy Leader of the Opposition (Mr Lionel Bowen), proposed a number of amendments which would have made this Bill applicable to the States and also have given it some judicial teeth. As members are aware, the present BUI contains no such provisions. However, Government supporters, as is shown by Hansard voted against such a proposal. The honourable member for Swan himself voted against the Bill being made applicable to the States.
I took some interest in what the honourable member for Denison (Mr Hodgman) said this evening. I can only say that he is lucky that he came into this Parliament to earn his living rather than continue earning it at the Bar. His interpretation of clause 1 1- that the Bill does apply to the States- represents outright stupidity. Any person who can read cannot fail to be convinced that the Bill has absolutely no relevance to the States. Indeed, it specifically excludes applicability to the Northern Territory. We find that it will appertain to the Australian Capital Territory including Jervis Bay, and to the territories of a number of islands such as Norfolk Island, Cocos Island and Christmas Island, over which the Commonwealth has control.
I put it to the House that at some time in the next few years the Australian Capital Territory will be granted self-government and that we will then find that this Bill will have some applicability and control in regard to Commonwealth laws on abortion as they appertain in Norfolk Island, Christmas Island and Cocos Island.
I repeat: I came into this Parliament to do some practical good. I do not think that we should be getting ourselves into a real knot about the jurisdiction of the Commonwealth regarding abortion in those areas in the future. Therefore, I put it to the Committee that we should support the foreshadowed amendment and try to do something positive for unborn children. Also, we should be doing something positive for handicapped children, and for children- indeed adults- who are not in full control of all their faculties. Again, this Government has done precious little for those people.
We have heard from the honourable member for Swan- who is so interested in this debate that he is having a chat on the front bench- a lot of windy rhetoric about what we will do for handicapped people. This Government has done precious little in that direction. I might say that my sister, who is the Deputy Principal of the Mater Dei Special School, run by the Catholic Church in Campbelltown, agrees with me on that point. She has had quite some experience in this field. It is all very well to say that we disagree with abortion and that we think handicapped children should be helped, but surely it is selective morality to say all that and do nothing about it. We, as a Parliament, have not done a great deal about that in the recent past. I would hope that we would be able to go some way towards doing something about it.
I conclude by quoting from the Declaration of the Rights of the Child, parts of which, rather than the amendment of the honourable member for Swan, the honourable member for McMillan has suggested should be placed in the preamble of this Bill. The third section of the Declaration states that:
Whereas the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, ‘ before as well as after birth ‘.
If this Parliament strives to express that in general terms which will get across-the-board acceptance by members of the House it will have gone a very long way towards doing something for unborn children. I am also led to believe that unfortunately the Australian Government has not ratified that Declaration. Where now goes the windy rhetoric of Government members? Where now goes the windy rhetoric of this Parliament? We should do something practical. Unfortunately the honourable member for Swan’s amendment is doomed to failure. I feel that the proper and consistent thing to do is to support a measure that will go some way, albeit perhaps a small way, in the direction of putting on the record the attention of this Committee to, and the concern of this Committee for, the rights of all Australians, be they born or unborn.
– Each day, as you will know, Mr Chairman, there appears in the editorial column of the Courier Mail a quotation from the noted civil rights campaigner, Thomas Jefferson. That quotation is that our liberty depends on the freedom of the Press and that cannot be limited without being lost. Paraphrasing those words of Thomas Jefferson, who was a pioneer in the civil rights movement, one could come up with a proposition like this: Once we limit the rights of an individual we destroy those rights. I support wholeheartedly the amendment moved by the honourable member for Swan (Mr Martyr) not only as a matter of conscience but also because it recognises the basic civil and human right of the child. I firmly uphold, as a matter of conscience, that life begins at the moment of conception. Everyone appreciates that people have different and differing views on that.
Let me further the point advocated by the honourable member for Swan. In case there are some honourable members present who may be minded to vote against his motion on account of an alleged constitutional difficulty- let me clear up a few of the matters that have been discussed in this debate. Initially I am indebted to the right honourable member for Lowe (Sir William McMahon) for drawing my attention and, therefore, the attention of the Committee to the wrong argument advanced by the honourable member for Denison (Mr Hodgman). I remind the honourable member for Denison that clause 5 of the Bill quite specifically states: binds the Crown in right of the Commonwealth but does not bind the Crown in right of a State or of the Northern Territory.
It is worthy to point out in rebuttal to the honourable member for Grayndler (Mr Lea McLeay) and to the Deputy Leader of the Opposition (Mr Lionel Bowen), who questioned the wisdom of people supporting the amendment of the honourable member for Swan and voting against his own amendment. The fact is simply that the constitutional aspect does not apply. The Bill does not provide that the International Covenant on Civil and Political Rights has the force of law in Australia; nor does it contain legislative approval for ratification as, for example, in the Racial Discrimination Act 1975. The main purpose for including the copy of the Covenant in the Schedule is to identify rights for the purpose of the Bill and the effect of the amendments is only to modify these rights for the purposes of the Bill. One too appreciates the views of the Deputy Leader of the Opposition insofar as he believes that it is appropriate to control the affairs of the state. We, on this side of the chamber believe, and I in particular believe, that in certain matters the States have the right and the responsibility to legislate in their sphere of influence and it ill becomes the Commonwealth Government to seek to erode those rights. It is worthy of pointing out that the Commonwealth can legislate in areas dealing with matters under the Constitution only where those matters are specifically spelt out in the Constitution and all matters not so spelt out remain the province of the States.
We are not talking about a covenant which has been ratified by the Australian Government. The Minister for Employment and Youth Affairs (Mr Viner) in his second reading speech, went to great pains to point out that the Government hopes to ratify the Covenant later in the year. So the main reason for including a copy of the Covenant in the Schedule is to identify the rights for the purposes of the Bill. I am somewhat concerned at some sentiments that have been expressed that if the amendment of the honourable member for Swan is agreed to there could, in effect, be a witch hunt. Previous speakers have instanced certain situations where a relative may report someone for having an abortion. I draw the attention of the Committee to paragraph 1 of Article 6. It states:
No one shall be arbitrarily deprived of his life.
The influential word is ‘arbitrarily’. The word has been defined in two English cases as meaning ‘without reasonable cause’. We in Australia still subscribe to the rule of precedent. Decisions made in the relevant courts are binding on courts in our country. Those two cases where the court ruled that the meaning of ‘arbitrarily’ shall be without reasonable cause’ are Qinion v. Home (1906) in the First Court of Chancery and Mills v. Cannon Brewery Co. ( 1920) Second Court of Chancery, page 38, the judgment of Lawrence J. So it would be appropriate to remind the Committee that these matters have been set down for interpretation as in Article 6. There is no need for anyone to be worried that there will be a witch hunt. The commissioners will be obliged to make their decisions in line with accepted practice and taking as their guidelines precedence established in the relevant courts. If one accepts the meaning of the effect of Article 6 it would be that a person may not be deprived of his life without reasonable cause.
To make sure that people are fully aware that there will be no witch hunt, I ask them to bear in mind that this law, as pointed out by the right honourable member for Lowe and by the honourable member for Grayndler, will apply only to the Australian Capital Territory and the areas under the control of the Commonwealth Government. It is generally accepted that the law governing abortion in the Australian Capital Territory stems from the Menhennitt ruling. So there is no need to be concerned or worried.
Rather we should take the opportunity to support the amendment of the honourable member for Swan. He has set out quite clearly and unequivocally the fact that the rights of the child are to be protected from the moment of conception. He has not hedged; he has declared an intention because he subscribes to the Thomas Jefferson concept that once we limit the rights of any individual, be it child, unborn, elderly person or the physically handicapped one, in effect, we destroy those rights.
I take exception to the point that has been advocated in the debate that it ill becomes a chamber of men to make decisions on matters which it is maintained by some are matters for the woman and the woman alone to decide. I reject that consensus. I reject that argument which is put as a logical argument by the people who in conscience hold to that point of view. I can appreciate how they hold that point of view both in conscience and in logic. What I am saying is this: As far as I am concerned, the argument is illogical and is not based on fact. The woman may have a right, the man may have a right, but a child can be conceived only by the action of two people. It is wrong to say that one of those three people has the only right to decide whether the child that has been conceived shall live or shall not live. What about the rights of the child? Are we going to forget about those? Therefore, I reject that point of view. It appears to me that the child has not asked for life. Life has been granted to it by a decision of two other people. That child having been granted that life, which is neither sought nor demanded, surely it behoves society to protect the right of the innocent, the right of the weak and the life of someone who had no say in whether he or she should be conceived.
One appreciates that this debate has been held in an unemotional atmosphere. One hopes that we in Australia can rise above that type of outlook. Remember that not only are we talking not only about the present; we are also laying down the guidelines for the future. It appears to me that, if we are concerned with the survival of our civilization, somehow, some way, the strength of our feeling must be related to the feeling that we have for the unborn.
– Order! The honourable member’s time has expired. The honourable member for Swan wishes to make a personal explanation. Does the honourable member claim to have been misrepresented.
-Yes, I do. Earlier in the debate the Minister for Immigration and Ethnic Affairs (Mr Macphee) intimated that an organisation was behind me and was responsible for what I have been doing. I have to confess that this is all my own work. Mr Chairman, you will have to take my word for that and so will he.
– I will be very brief in my remarks. I support the amendment moved by my very good friend, the honourable member for Swan (Mr Martyr). I was very pleased that he made the personal explanation that he did because I believed before he made it that it was all his own work. I also believe that this is a vote of conscience. Somebody said this evening that when we vote on a matter of conscience we do what we think is right. Therefore, it is not a time for bitterness, character assassinations or any of those sorts of things. It is a matter of voting for what we believe is right. I do not believe that anyone can say that, in voting on a matter of conscience, he has been intimidated by anybody- the Right to Life Association or other people, or even the pressure groups who carry out the bullying that goes on in this Parliament. That sort of thing does not enter into a vote of conscience.
When we vote on matters of conscience we do what we think is right. We are not influenced by anybody. We do not start destroying a person’s character because he does what he thinks is right. We just do what we think is right. Therefore, I support the amendment because I believe that life begins at conception. Nobody can influence me to believe otherwise. Nobody could intimidate me- not even the Right to Life Association which I do not believe has intimidated anybody. If there is a matter of conscience involved, I believe that a few honourable members from both sides of this House use excuses as a matter of convenience to define the word ‘conscience’. That goes on day after day. When one votes on a matter of conscience one should vote according to one’s conscience and stick to it. I support the amendment moved by the honourable member for Swan. I do not intend to vote for any other amendment because it is not much use going halfway down the wicket; I believe that we have to go the full way. I support the amendment.
– I too will be very brief in my remarks, particularly at this late stage. I want to put on the record that I will be supporting the amendment moved by the honourable member for Swan (Mr Martyr). If by any chance that amendment is not supported by the House I will then be supporting the amendment which will be moved by the honourable member for McMillan (Mr Simon). I also want to pick up what has been said by some other speakers tonight about the Press statement that was issued by the Right to Life Association in relation to this matter and, in particular, in relation to the honourable member for McMillan. I fully endorse the views of those speakers, including the honourable member for Moore (Mr Hyde), the honourable member for Perth (Mr McLean) and others, who expressed concern about this matter. I express very real sadness at that Press statement.
I believe that the honourable member for McMillan is a very fine member of this House and, as has already been said tonight, there is no person in this chamber who has done more or fought more for human rights than has the honourable member for McMillan. The statement in relation to the honourable member for McMillan, I believe, is a very sad statement. I believe that the statement is in the same category as the statements which ask people to remember the 1980 elections and those who may not have voted for the Lusher motion last year. I am not in that category because I did vote for the Lusher motion. I believe that the Press statement released yesterday by the Right to Life Association does a disservice to the Association, it does a disservice to the admirable causes and objectives of that Association. I have to say also that I believe that it does a disservice to the author of the statement.
Having said that, I support the Martyr amendment for the same reasons that I supported the Lusher motion last year, even though the nature of the subject being discussed this evening is really very different from that debated last year. I support the amendment as I did in the same situation last year, because I believe that the rationale and the motivation underlying the amendment moved by the honourable member for Swan is a belief in the sanctity of human life and a belief that the unborn child has as much right to life as has any other human being. I believe in that with all the strength that I have. I believe that if one does not attach full significance to the life of the human being, whether he be born or as yet unborn, the laws of our society count for naught and our society indeed is doomed.
I have some difficulty in accepting some of the arguments that have been advanced tonight. It has been suggested that, somehow or other, the amendment fundamentally changes the role of the Human Rights Commission, the concept of human rights and so on. I cannot understand that point of view. It seems to me that what the Martyr amendment does is simply to strengthen the underlying motivation of the International Covenant on Civil and Political Rights and to clarify what the Covenant is all about. It clarifies that human life and a human being is a person who may not yet be born. To me, that is all the Martyr amendment does. I think that some of the esoteric arguments advanced from both sides of the House tonight really escape that basic purpose. For that reason, I support the amendment.
I believe also that the amendment brings this covenant much more into line with the Declaration of Rights of the Child of 1959 which, as has been said earlier, spelt out that the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection before, as well as after birth. Again, the Martyr amendment clearly reinforces that point. It does not seek to change the nature of the Human Rights Commission or the power or the lack of power that the Commission will have. Its rights basically are investigatory. Neither the Martyr amendment nor the Simon amendment will change this situation one iota. For those reasons I support the amendment.
I make one final comment and it is in relation to a remark made earlier in the debate by, I think, the honourable member for Mackellar (Mr Carlton). I think that the honourable member for Adelaide (Mr Hurford) made a similar point. As I understood them, they said that the Parliament should not express- I apologise if I misquote them- views on social and moral issues or on personal morality. If that is what was being suggested, I cannot agree with that view. I believe that the Parliament cannot be the arbiter of social and moral issues. I believe, equally, that Parliament would be abdicating its responsibilities if it did not discuss social moral issues even though it cannot dictate them.
– I had not intended to speak in this debate but I now want to make a few very brief points. In this debate we have heard logic taken rather beyond the natural use of language. We have had a forced and quite inappropriate extension of language because people are arguing by analogy in a case where analogy is not particularly appropriate. For example, there is a logical slide that says that human life is analogous, is equivalent, to the human person. I really think we must protest about that. Of course we understand that from the very moment of conception there is the first stage in a progress which ultimately leads to a formed human being, to a human life and to what we refer to as a ‘ person ‘.
A ‘person’ has the attribute that we call ‘personality’. It is a sheer perversion of language to say that one can go back and apply the term ‘person’ to whatever it is, back to the stage of the zygote. That is just nonsensical. We might say that a sequence of numbers begins with one and we then go on with the sequence of numbers until we get to 1,000. But the number one is not the equivalent of the number 1,000; it is the first of a long series of numbers which ultimately leads to something. But to say that the fertilised egg is the equivalent of a person is simply a perversion of language as we understand it. One might just as well say that Marshal Tito’s amputated leg is equivalent to Marshal Tito. To do so is to say that the whole or an aspect of something is the equivalent of the whole. It is not so. It is quite nonsensical to assume that. One might say that a festering finger in a sense is alive, that something one desperately wants to get rid of on one’s body is alive, it is a part of the person; but it is not equivalent. A pimple on the back of a neck is human in a sense but one cannot say that it is a human person.
We might all agree with the definition of human life. If we were asked whether human life begins from conception, we might all put our hands up and we could get a unanimous vote; but if we say that life is equivalent to personality, one has to protest and say that that just is not so, they are two completely different concepts. I have always been attracted to the approach of the medieval theologians. If one goes back to St Thomas Aquinas and his Summa Theologica there was the concept that a personality began from quickening. There was the concept of quickening. For the moment I have forgotten what month it was that the quickening began, but the point was that it was related to the concept of a life that was capable of having an independent being.
One could say of the human life in the womb that its relationship to the mother is parasitic in the early stage. It is quite incapable of life outside the life of the mother. There is nothing to which we can attribute the word ‘personality’; it is parasitic in nature. The honourable member for Swan (Mr Martyr) mentioned the case of Louise Brown and in my own speech on the Lusher motion I also referred to it. If honourable members think of the fertilised egg or eggs that were in the test tube in the very early period of that experiment, and if it had been decided perhaps that the experiment was to be brought to an end, the test tube was tipped up and the contents of the test tube eliminated and destroyed, it would be a sheer perversion of language to equate that to abortion or to equate it to murder. There may be a different kind of term that we have to employ for it, but it is a perversion of language to say that it is equivalent to what we always understand by the term ‘child destruction * or the concept of abortion.
I think too that there is a lot to be commended in the abortion decisions of the United States Supreme Court where it has broken up the period of pregnancy into three trimesters. The Supreme Court’s view is that to try to interfere with the life of the foetus in the last trimester is a tremendously serious thing that should never be undertaken except where there is the most grave and obvious threat to the mother’s life. In the middle trimester, from the end of the third month to the end of the sixth month, the situation is somewhat less serious, but again it is not something that is undertaken lightly; there has to be abundant medical evidence to justify it. But in the first trimester the Supreme Court sees it in a different situation in terms of seriousness because at that stage the embryo is not viable.
I was disappointed by the legal argument of the honourable member for Denison (Mr Hodgman). I had expected better of him. I can quite understand that where one has a convention, some people may wish to reserve some of the articles in the convention. They may say: ‘Of the 53 Articles we propose to endorse 50, but we reserve our right about the other three’; but I do not understand how one can have a situation of tacking where one can say: ‘We do not think that 53 is enough. We really propose to make it 54 and we are going to add on to the international convention something that no one else has looked at or agreed to, and something that has never been in debate’. One then purports to produce something that is somewhat more than the whole of the parts. That is a form of tacking that I do not quite understand. Of course, the criticism that I make of the honourable member for Swan applies also to the honourable member for McMillan (Mr Simon) because it involves something that is tacked on. If this motion fails tonight, I can see it being attached by way of amendment to practically every piece of legislation that comes up. I look forward to seeing it brought up on Appropriation Bill (No. 1) and Appropriation Bill (No. 2), because it is just as appropriate there as it is here.
I say to the honourable member for Swan, who is unquestionably sincere in this- some people who have moved in this area before perhaps have not had the same fanatical devotion to the principle as has the honourable member for Swan- that I am very much concerned as to how one can have what purports to be a universal principle that operates throughout the whole of the nation when, by the very nature of the legislation that we have, it is circumscribed to a particular principality within the Commonwealth and is applicable only to the Australian Capital Territory and a few of its off-shore islands, and so on. I find that really quite inexplicable. If the honourable member for Swan had perhaps thought it through more, I am sure he would have voted with us on the amendment moved by the Deputy Leader of the Opposition (Mr Lionel Bowen). Certainly that would have been a much more consistent position.
– I want to make my position clear in this debate. I support the amendment moved by the honourable member for Swan (Mr Martyr). I have had some experience in debates of this nature. When my motion was before the House about a year ago it was a motion which was distorted very savagely in the debate and also outside the Parliament. All manner of irrelevancies were raised and, if honourable members study that debate, it will be interesting for them to note that virtually no honourable member agreed with abortion as such. Apparently, for some good reason, during the debate, they were not able to support the motion that was before the House at that stage. At that time the opponents to my motion had no real alternative but to resort to irrelevancies. There were very few, if any, conscience arguments- I stress ‘conscience arguments’raised against the proposition that I had before the House. The debate that we are experiencing at the moment is proceeding along very similar lines.
There are a lot of honourable members in this Parliament who need an excuse not to support the amendment moved by the honourable member for Swan or, as a second position, not to support the amendment moved by the honourable member for McMillan (Mr Simon). They have no alternative but to resort to irrelevancies in order to justify their decision for taking that stance. I would prefer the situation to be one in which people really said what they thought and voted as they really thought, however that may be.
I take the view that the amendment moved by the honourable member for Swan is a statement of principle which this Parliament should support. I personally support it. If it fails, I will certainly support the amendment moved by the honourable member for McMillan. The principal arguments which I described earlier as irrelevancies are, firstly, that we should not interfere with an international covenant and, secondly, that whatever the Parliament does in this case will apply only in the Australian Capital Territory. I reject both those arguments. I believe that it is important that this Parliament make a statement of principle. I believe that it is something that should be made by the Parliament. Even if members feel that they cannot support the amendment moved by the honourable member for Swan, I personally cannot see any reason why there should not be a unanimous vote for the amendment moved by the honourable member for McMillan. How can it be argued by any member that at some stage before birth the unborn child has no rights? Is it not recognised in Part III of the International Covenant on Civil and Political Rights? Article 6 paragraph 5 states:
Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
To me that is an acceptance by the drafters of the International Covenant on Civil and Political Rights that there are rights that attach to a child before it is born. I believe that the only question that really becomes relevant in this debate is whether members believe that human rights start at conception or at some later stage. That is the situation with which this Parliament, if it is to be honest with itself, must come to grips. I think it is as simple as that. The arguments that have been put up against either or both of the amendments are, I believe, irrelevancies and excuses. We owe it to ourselves as responsibly elected members of this Parliament to come down in favour of one of the two amendments which are before the chamber. If a member believes that life commences at conception, obviously he must support the amendment moved by the honourable member for Swan. If in conscience he cannot accept that proposition- I accept that there are many members who in conscience cannot accept it- I believe that there is no alternative but to support the amendment moved by the honourable member for McMillan.
As I have said, the Covenant itself recognises that at some stage before birth- all we can argue about is at which stage it is, whether it is one month, three months, five months, eight months or nine months- there are civil rights that attach to the human being who is as yet unborn. I ask the Committee and all members, in a most sincere and serious appeal to reason, to give consideration to what really is the issue that is the subject of this debate. I put it that the issue is not whether the legislation will apply in the Australian Capital Territory or the ,whole of Australia. It is not whether this Parliament ought to be interpreting or being seen to amend an international covenant. The issue which has been raised by the honourable member for Swan in a sincere fashion and which has been followed up in an equally sincere fashion by the honourable member for McMillan, is at what stage we as individuals believe that human life commences. I do not believe that anybody in the Parliament can justify in any reasonable sense voting against the amendment moved by the honourable member for McMillan. To vote against that amendment must be, by definition a total nonsense. Voting against the amendment moved by the honourable member for McMillan would be saying in effect: ‘I do not believe that even one month or one day before a child is born it has any rights to anything’. That must, by definition, be a nonsense.
I ask members to give consideration to those two factors, to make an honest decision in their own minds as to the point at which they believe human life commences. If they cannot agree with the honourable member for Swan, as I do and as many others do, that human life begins at conception, then they must in all conscience support the amendment moved by the honourable member for McMillan. I urge full, thorough and honest consideration by all members of those points.
– I support the amendment that has been moved by the honourable member for Swan (Mr Martyr) as a statement of principle. The arguments have been put very effectively for this amendment, not only by the honourable member for Swan himself but also by a number of my colleagues during the debate this evening. However, those members who have argued against the amendment moved by the honourable member for Swan have done so on the basis of questions about the specific legal impact of the amendment which he moved. So we find that a legalistic interpretation has been used in argument against this amendment. We have heard this argument this evening from the honourable member for McMillan (Mr Simon) and the honourable member for KingsfordSmith (Mr Lionel Bowen), among others. I urge honourable members not to be deterred by these red herrings. But, I reject the strong personal attack which has been launched on the honourable member for McMillan by way of a Press statement today. I certainly agree with others who support the amendments of the honourable member for Swan that the honourable member for McMillan has been a very strong advocate of human rights in this Parliament from the time that he became a member. I certainly reject the charges that have been made against him in the Press statement today.
I reject the legal arguments that have been put against the amendment. I believe that the Human Rights Commission Bill which we are considering this evening should be regarded more as a statement of principle than as a maze of detailed legalities. I expect that the Human Rights Commission, when it is established, will operate on broad principles. Hence, as a statement of principle I believe that it is quite justifiable to assert that human rights originate from conception. That is the effect of the amendment.
As a general principle, termination of pregnancy is to be abhorred. Having made that general statement of principle, one can accept that there will be specific instances when termination of pregnancy may be justified. These instances can be summarised as situations in which termination is the lesser of two evils. It certainly is unlikely that there will be some 60,000 of those occasions in any one year, which we find is the current situation with regard to abortion. The right to life obviously applies to all individuals and, in a particular instance where the rights of two individuals clash, a specific judgment will have to be made by the Human Rights Commission. In conclusion, in principle abortion is to be abhorred. In supporting the amendment I support that principle.
– I have never spoken in an abortion debate, not in 1974 or previously, but having listened to a number of speeches tonight I thought that I ought to put some views. I am one of those people who simply do not know the answer to this question. All I know is that nobody whom I know likes abortion- not any man or any woman. I really find it quite strange listening to people speak in the chamber who give the impression that one side or section of the Committee wants to support abortions and the other section does not. I do not know anyone who wants to see or have an abortion performed. I find it rather obnoxious, in fact, that this Committee which is a totally male dominated House should be making these sorts of decisions. I suppose it is a reflection on our political system that there is not one woman here to contribute to the debate.
I cannot see, quite frankly, what the point is in this debate. I ask the question of everybody in the Committee: Do we really think that whatever the vote is one way or the other there will be one less abortion carried out in Australia? I ask that question sincerely because I do not think there will be. I do not think which way we vote will matter. People will have abortions if they feel they are essential. They do not go along and have them because they think they will be fun. They get into a mental and physical state where they feel they need to have one.
– We have laws against rape, but that goes on.
-I do not think that that is a very good analogy. I ask the honourable member who interjected: Does he honestly believe in his own mind that if we vote one way or the other this will create a situation where there will be one less abortion? I do not believe that there will be. There is a division in the community. I think that it is mostly based on religious beliefs. One section of the community believes that a child exists from conception and the other does not. That section which believes that a child is born at conception will not have abortions and those who do not will continue to have abortions, the only difference being that they will have them not through this vote but through tighter laws in the various States. They will have them by going to backyard abortionists, and so on. I do not have the mental and physical powers to know whether a child is formed right at conception or whether it is three months or four months later. I do not know the answer, but I do know that one section of the community believes that a child does not exist until it is three months in the womb. Therefore, I think that this debate, as I have said, is quite pointless.
I conclude on one point which really fascinates me. I have heard it said over and over again in this debate that many people believe that abortion is murder. Is that correct? I think I have heard the honourable member for Swan (Mr Martyr) say that.
– Never. Never. It is killing.
-He says ‘It is killing’. I have heard organisations such as the Right to Life and many other people claim that it is murder. If it is murder, I assume that to carry it through to its logical conclusion anybody who commits murder must therefore be punished as a murderer. That would be the logical conclusion. If we are going to punish people who are involved in abortioneither the patient or the person who commits it- we must punish them in the same way as we do murderers. Nobody has ever seriously suggested in this day and age that this is likely to occur. What sort of punishment would we impose on people who commit abortions- 20 years in gaol? How would we punish them?
We know that many thousands of abortions are performed throughout every year. They will go on no matter what we say in this Parliament. Are we seriously suggesting that ultimately we are going to pass laws which will put literally hundreds of thousands of women, doctors, fathers and people involved into gaol? I think not. The best we would probably do, if we were to make abortion illegal in every State of the Commonwealth, would be to impose some nominal fine. That is really the ultimate test whether people are sincere in their belief that what is happening is abortion. I think that the debate is pointless. It is going to change absolutely nothing. We have contributed very little to the problems that face the young unmarried or married woman who needs to have an abortion in this society today.
– I had decided a few moments ago not to speak in the debate, but sadly I have to report to the Committee that, after listening to the honourable member for Lalor (Mr Barry Jones), I join with him on the point that he made because the point does strike in many ways right at the heart of what this is all about. The honourable member for Lalor said that if the continuum does not exist of the progression from a zygote or an embryo to a person, therefore, the whole argument falls to the ground, with which I agree. I would say to the honourable member that there is a difference in looking at the progression of numbers to the progression of an embryo to being a baby or a person.
– I said that one is not the equivalent of the other.
– Let me just continue for a moment. The number one may exist forever as the number one. It may eke out its existence as number one. It does not necessarily have to become the number 1,000. We may only ever have one Barry Jones, the honourable member for Lalor. I ask this Committee to consider for one moment whether we should look at one Barry Jones and say that of necessity he would be expected to become 1,000. 1 would suggest that on that same reasoning the zygote, the fertilised ovum and the embryo, is expected ultimately to become a person. Its existence may be interrupted, but that is the expectation that comes from the very fact of its existence. Therefore, the progression of a being, once it exists, is a very different matter from the progression of a number. One exists in actuality and a number ultimately after all exist in one ‘s imagination.
– They are not equivalents.
-I am not suggesting that the comment is with respect to Tito’s leg also. I make the point- I only want to make a couple of points in respect to the debate- that this is important, as was the debate last year, for the reason that the law as it applies in a number of States has more holes in it than a recitation of the law or the criminal code would ever indicate. The honourable member for Kingsford-Smith (Mr Lionel Bowen) quite correctly earlier tonight quoted the criminal code in various States or the law as it applies in various States and said: Look at the penalties that may apply in respect of abortion or the taking of a foetus’. We know, and it is quite clear, that the gloss on the law is the interpretations of Menhennitt, the Levine rulings and so on. I would suggest with respect to both- Menhennitt certainly and Levine even more so- that they depend upon the doctrine of necessity, the doctrine of proportionality. I would suggest that the doctrine of proportionality in this respect would lead to a total and absolute absurdity- the proportionate disadvantage of continuing with a pregnancy compared with the proportionate disadvantage of not continuing with it. If we were to apply that law, which is a derivation of the doctrine of necessity, we would come to a lot of absurdities.
Let us look at the events of last year. The honourable member for Hume (Mr Lusher) was quite correct when he said in the debate last year that almost no one in this chamber, or very few people in this chamber, stated the principle explicitly that there ought to be abortion on request or on demand and there ought to be no argument about it. All kinds of exceptions were introduced into that debate. It was suggested that his motion was not acceptable because it was imposing upon States through a financial provision a determination of this Parliament which the States may not want to accept. It was proposing on the States an interpretation of their law or a practice with respect to their law or the criminal codes which the States were not implementing. There was the other fascinating argument that was proposed by a very important person in this chamber, a Minister, that the methods of criminal proof had no relation with respect to medical benefits. A lot of pathologists who have been caught might well emblazon that on their surgery doors.
Those arguments were utilised on that occasion in order to defeat the proposal of the honourable member for Hume, known as the Lusher-McLean proposed amendment, and it was defeated. None of those conditions applies in respect of this matter. None of them applies in respect of the amendment proposed by the honourable member for Swan (Mr Martyr). Not one of those applies, and so those who took part in the debate last year, who voted and found exception with the proposal of the honourable member for Hume for any of those reasons, ought to make an alteration because those reasons have vanished. They have vanished altogether. In addition, it has been made perfectly clear that there is a constitutional power in respect of human rights legislation and this Parliament is able to exercise that power. I find rather repugnant the proposition put earlier tonight that because something has passed the Senate, because something has been accepted in the other place, ipso facto it ought to come through here without amendment or attempted amendment. That was an important proposition. If there happen to be any members from the other place listening to this debate, let me tell them that I have never heard them accept that proposition when legislation goes from this place to the Senate. It is appropriate to consider that. The honourable member for Casey (Mr Falconer) at an important stage in this debate gave what I thought was a very good speech and put a number of very important propositions. Those who are worried that too much power could be exercised as a result of this legislation should recollect his words. There will be no change in funding; there will be no compulsory change in investigation or disclosure. He went through the precepts contained in clause 9 of the Bill, which make it quite clear that there is a great lack of compulsion.
The honourable member for Swan asked for a declaration of principle with respect to the beginning of life and the right to life, from whatever time it is judged to be reasonable that it begins. He nominated conception. There could be an argument as to life beginning a week or two later, with implantation in the womb. An argument about a week or so is not appropriate. For example, those who are concerned about the imprecision of the date or time or moment of conception should consider the imprecision of saying that life exists before birth. They may have a doubt about a couple of weeks with respect to conception or implantation; in the case of both they have 35 or 36 weeks to play with. I had not intended to say anything about this matter, but I had to respond to the honourable member for Lalor (Mr Barry Jones) and his attempted medieval gloss upon Aristotle. I think his argument is metaphysically incorrect, but were he to be correct, I would say to the honourable member that he would be quite right to oppose this amendment and propose abortion on demand. However, I say that his argument is not correct, either analogically or metaphysically or in any other way, and that is the ultimate reason why I will be supporting the amendment moved by the honourable member for Swan.
- Mr Chairman, this could well be the last speech of the evening, and it will be short and to the point. At the outset, I express the view that I believe that the Right to Life Association has had absolutely nothing to do with what the honourable member for Swan (Mr Martyr) proposed in his amendment yesterday or with the proposal put last year by the honourable member for Hume (Mr Lusher). I believe that the proposals were the work of those gentlemen as individuals, and that has been stated by others. The only exceptions to the requirement for the Human Rights Commission to investigate a complaint exist in clause 10 (4), paragraphs (a) to (f). I do not intend to read those now but, generally speaking, if a complaint is made to the Commission it has no alternative but to investigate the complaint fully. My argument with both the honourable member for Hume and the honourable member for Swan- this is not a personal attack; they are entitled to their views- is that they totally reject any exceptions when it comes to the question of abortion. They do not accept any exceptions whatsoever. In the minds of many honourable members of this House exceptions do exist. That is where many of the arguments lie.
– So did distortions. You are distorting.
-You had your go last year and earlier tonight, my friend.
– The honourable member will address the Committee.
- Mr Chairman, I repeat, that is where the difference exists. The proposal which has been put forward by the honourable member for Swan, no matter how well motivated, places the Human Rights Commission in the position in which once a complaint is before it, it has little alternative other than to investigate it. Who is going to be pulled up before the Commission? The woman’s doctor, the woman, her husband?
– How would you like Al Grassby to decide on your abortions?
– Order! The honourable member for Prospect will remain silent.
-Sometimes when I think of him I think that perhaps abortion for some should have been compulsory many years ago.
– The honourable member for Fadden will ignore interjections.
– And retrospective.
-Retrospective too, I am reminded by the honourable member for Perth. I conclude with the observation that the Human Rights Commission, under this amendment, would have no alternative but to investigate every complaint made in areas of its control- every area, every abortion. I am quite sure that most honourable members in this House could not accept such a situation and would not want the Human Rights Commission to be involving itself in every abortion that takes place. In my mind and in the minds of many other people in this chamber, there are valid reasons why a person should be able to have an abortion without living in fear of being dragged before some commission such as we are establishing this evening.
Thursday, 6 March 1980
That the amendment (Mr Martyr’s) be agreed to.
The Committee divided. (The Chairman- Mr P. C. Millar)
Question so resolved in the negative.
– I call the honourable member for Banks on a point of order.
– I would like your guidance, Mr Chairman. As I understand the situation, there is an amendment to be put by the honourable member for McMillan. So as to clarify completely the situation, do I have an assurance, particularly from the Leader of the House, that that amendment will be put now? The honourable member for McMillan, the Leader of the House, or you, sir, as the Chairman -
– The honourable member for Banks is not addressing himself to a point of order but seeking the indulgence of the Chair to secure information. The Leader of the House may anticipate a similar indulgence if he is of a mind to respond.
– With respect to the honourable member, it is not for me to say whether any member of this House is going to move an amendment. I understand that one will be moved.
-There is no substance to the point of order.
- Mr Chairman, I take a point of order. In respect of the amendment moved by the honourable member for Swan (Mr Martyr), the Chairman will recall that last night the honourable member sought leave of the House to have all amendments taken together. Leave was not granted. The only amendment upon which honourable members have voted, I respectfully submit, was the first amendment. Therefore, in view of the withdrawal of the second part of the amendment of the honourable member for McMillan (Mr Simon), it would be appropriate and fair, I submit, to give the honourable member for Swan the opportunity to now move formally his second amendment.
– The Chair is of the view that the amendments are dealt with as they occur in relation to the Bill. The first amendment moved by the honourable member for Swan (Mr Martyr) has been dealt with by the Committee. There is an amendment by the honourable member for McMillan (Mr Simon) with respect to clause 3 of the Bill and that is the amendment now requiring the attention of the Committee.
- Mr Chairman, I raise a point of procedure. In view of this rather unusual display this evening of an honourable member moving an amendment that he will not be supporting it would be an understatement on my part to say that some confusion exists in this House at this time.
– I am wondering whether you could put off -
– Order! Is the honourable member for Fadden seeking my indulgence to make an explanation or is he raising a point of order?
– Whatever allows me to say something.
– For the benefit of the honourable member for Fadden, I state that there is no point of order and I do not grant indulgence.
- Mr Chairman, could I seek your indulgence?
-The Chair is not inclined to extend indulgence. Does the honourable member for Swan (Mr Martyr) wish to raise a point of order?
– No, Mr Chairman, I do not wish to raise a point of order. I want to speak to that.
– I call the honourable member for Corio.
-Mr Chairman, I wish to propose a procedural matter. A number of amendments to this clause are foreshadowed of which I think the Committee is well aware and which it has more than adequately debated. I only put the proposition that, with the agreement of the Committee, the question could be put in the form that: ‘The question is that the clause stand as printed’. That would enable the matters of the amendments to be resolved by one vote.
– That would presuppose the outcome of the vote.
-Mr Chairman, I raise a point of order. I wish to endeavour to clarify what the honourable member for McMillan (Mr Simon) has said. He has said that he does not intend to support his motion. I think he has to vote on it one way or the other. If he were to leave the chamber we should not be put in the position of voting on something which the honourable member himself will neither support nor reject.
-Any honourable member is entitled to change his mind during the course of the debate. It may well be argued that that is the purpose of debate. So it is quite in order for the honourable member not to support the motion or the amendment which he originally proposed. But the Chair upholds the view of the Deputy Leader Opposition (Mr Lionel Bowen) that it could well be construed as a mischief on the Committee for an honourable member to initiate business requiring the attention of the House and then absent himself from the proceedings leading to a vote at the conclusion of the discussion. Therefore, the Chair is of the view that the honourable member will be required- he will be perfectly free- to vote in accordance with his judgment and conscience and within that ambit he will be required to vote.
-Mr Chairman, I will be brief. I support the amendment which has been moved by the honourable member for McMillan (Mr Simon). I voted for the amendment moved by the honourable member for Swan (Mr Martyr) on the last occasion. I was not pressured when I made that vote. I did it as a vote of conscience despite pressures which were put on me. In my view this matter should be dealt with now as expeditiously as possible. It has been canvassed in this House ad nauseam and on similar motions over a long period. I am of the opinion, and I am open to correction, that there could be no further arguments put of which we are not aware.
– Hear, hear!
-I would never move that the motion be put- but!
-I thank the honourable member for McMillan (Mr
Simon) for making his position clear and for keeping his word. All I say is that, as I indicated earlier, I will now support the amendments of the honourable member for McMillan, even if he will not. I commend that course to the Committee.
Unfortunately, my attention was diverted when the honourable member for Kingsford-Smith (Mr Lionel Bowen) made some comment about my likely intentions in regard to voting on this proposal. I apologise to the Chair. May I make it perfectly clear that I will be voting against the amendment.
That the amendment (Mr Simon’s) be agreed to.
The Committee divided. (The Chairman-Mr P. C. Millar)
Question so resolved in the affirmative.
Clause 3, page 2, at the end of the definition of ‘human rights ‘ add ‘ and includes human rights before binh ‘.
Human rights’, according to my amendment, means the rights and freedoms recognised in the International Covenant on Civil and Political Rights or in any relevant international instrument and includes human rights before birth.
That the amendment (Mr Martyr’s) be agreed to.
The Committee divided. (The Chairman-Mr P. C. Millar)
Question so resolved in the affirmative.
Clause, as amended, agreed to.
– I wish to make a personal explanation.
-Does the honourable member claim to have been misrepresented?
– I do. This evening in the debate on the Bankruptcy Amendment Bill the honourable member for Adelaide (Mr Hurford) inadvertently, I believe, said:
Members of this House will know that I refer to a particular member of the House who was able to use these provisions to be able to sidestep examination of the sort that many believe should have been applied.
I have spoken to the honourable member for Adelaide. I understand that he was under the false impression that I was a full partner in a broking firm. I have explained to him, and he acknowledges the fact, that I was what is called a salaried partner, a non-owning partner, in that concern. I have made that position clear in the past in this House. There is a very significant difference between the two situations. I was not obliged and did not take advantage of any provisions of the Bankruptcy Act. I have never at any stage had any relationship with the creditors of that partnership. In fact, I was indemnified totally against any loss or damage. I was party to a trust deed which indicated that I was entitled to none of the assets of that partnership nor liable for any of its liabilities. I wish to make my status very clear. This has been stated before in the House and it is disappointing to me that so many honourable members do not seem to have heard it.
-Order! That is quite enough explanation.
House adjourned at 12.43 a.m. (Thursday)
The following notices were given:
Mr Street to present a Bill for an Act to amend the Conciliation and Arbitration Act 1 904.
Mr MacKellar to present a Bill for an Act to amend the Diplomatic Privileges and Immunities Act 1967.
Mr Adermann to present a Bill for an Act to amend the Pig Meat Promotion Act 1975.
Mr Garland to present a Bill for an Act to provide for the payment of bounty on the production of certain ships and other vessels.
Mr Garland to present a Bill for an Act to amend section 8 of the Ship Construction Bounty Act 1975.
Mr Garland to present a Bill for an Act to provide for the payment of bounty on the production of certain refined tin.
The construction of research laboratory complexes for CSIRO divisions of Applied Organic Chemistry and Materials Science at Clayton, Victoria.
The following answers to questions were circulated:
asked the Minister for Transport, upon notice, on 2 1 November 1979.
-The answer to the honourable member’s question is as follows:
Questions relating to the level of Commonwealth expenditure on roads in the Australian Capital Territory during the period 1971-72 to 1979-80 inclusive and in the Northern Territory during the period 1971-72 to 1978-79 inclusive should be directed to the Minister for the Capital Territory and the Minister for Home Affairs.
Under the financial arrangements with the Northern Territory, which came into effect on 1 July 1979, an amount of $19m has been made availabe to the Northern Territory in 1979-80 by way of a Commonwealth specific purpose payment for roads.
asked the Treasurer, upon notice, on 21 November 1979:
Mr HOWARD- The answer to the honourable member’s question is as follows: (1), (2) and (3) The speech made by the honourable member would have come to the notice of the Commissioner of Taxation who is responsible for the administration of the income tax law. However, the secrecy provisions of that law preclude the Commissioner from commenting in any way on the taxation affairs of any person or on any action that might be taken against a person.
asked the Treasurer, upon notice, on 26 February 1980:
-The answer to the honourable member’s question is as follows:
See reply to Question No. 5079 (Hansard, 21 February 1980, page 293).
Science and the Environment: Departmental Correspondence (Question No. 5586)
asked the Minister for Science and the Environment, upon notice, on 5 March 1980:
– The answer to the honourable member’s question is as follows:
Our new Minister has said to the Heads of the agencies within his portfolio, including myself, that he does not check the details of correspondence within the Ministry or involving the Ministry ‘.
The Chairman of the Great Barrier Reef Marine Park Authority has since indicated that the statement quoted above did not reflect an accurate assessment of my discussions with heads of agencies within my portfolio, and has apologised for the unintended misrepresentation.
Cite as: Australia, House of Representatives, Debates, 5 March 1980, viewed 22 October 2017, <http://historichansard.net/hofreps/1980/19800305_reps_31_hor117/>.