31st Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Condor Laucke) took the chair at 10.30 a.m., and read prayers.
– On 2 November Mr Speaker and I wrote to all senators and members concerning an internal traffic survey which is to be carried out in this building to assist in the planning and preparation of the final sketch plan brief for the new Parliament House. This internal traffic survey is part of an analytical study of movement patterns of users in the existing building and will commence next Monday, 12 November.
Because of the intensive and time-critical nature of activities in Parliament House, every effort has been made to streamline the survey and minimise disruption to all building users. I now again seek the full co-operation of senators and all who work in the building during this most important survey.
Notice of Motion
– I give notice that, on the next day of sitting, I shall’ move:
That leave be given to introduce a Bill for an Act to ensure that Aboriginal Electors of the Commonwealth in Western Australia are not prevented from enrolling for elections for the Western Australian Parliament.
– My question is directed to the Minister for Social Security and refers to a question I asked on 27 September of this year about an instruction which allegedly had gone out from her Department that in future spouses of all applicants for sickness and other social security benefits would have to attend for a personal interview at the Department when the applications were being made. Has the Minister an answer to that question? Is it a fact that such an instruction has gone out? Is it a fact that there is a standard form U38A for those seeking unemployment benefit which requests all such applicants to bring their spouses for personal interview? What is the purpose of these interviews?
What have they to do with applications for unemployment benefit?
– I will make an inquiry in the Department with regard to the previous question and see what information I can give Senator Grimes.
– My question is directed to the Minister representing the Minister for Defence. What effect will the withdrawal, scheduled for 30 June next, of British missile testing have on the future of the Woomera Rocket Range?
– This is a matter which should be answered directly by the Minister for Defence. I will refer the question to him.
– I direct my question to the Attorney-General. By way of preface I refer to his recurring theme when he introduced the Australian Security Intelligence Organisation legislation that we have to accept an invasion of some civil liberties for the national security but there was a line that one had to stop at. In that context I ask the Minister what authority he exercises over private eyes and firms which manufacture bugging equipment as epitomised, firstly, by Sydney private eye Michael Darby who says he has a dossier on many people including members of the Government and, secondly, by a firm in Melbourne, the managing director of which is, I think, a Mr Cunningham, which makes bugging equipment. It could mean that we are in the new age of bugging our neighbour. What federal supervision do we apply to both of these elements?
– I would not like to commit myself to a general statement regarding the powers that the Commonwealth Parliament and the Government may have in relation to these matters. Obviously defence powers and matters of that sort come to mind. By and large the general power in relation to control of the manufacture and use of products of this kind would come within the State area. The Commonwealth Government has expressed a considerable interest in and concern about matters of privacy. The question that Senator Mulvihill raises comes directly within that area. My predecessor, Mr Ellicott, gave a reference to the Law Reform Commission on the question of privacy. The Commission in its report on defamation dealt with an aspect of that reference. That report is now under study by the Commonwealth and State governments. The Commission also had regard to the matter of privacy in a census. The general question of privacy has yet to be reported on by the Law Reform Commission. Once we receive the report these matters, amongst others, will be put under study.
-I wish to ask a supplementary question. I think it is traditional for the Attorney-General to have conferences with State Attorneys-General. Having regard to the fact that private inquiry agents in earlier years have been involved largely in divorce activities, could the matter of whether these people have extended their activities into the field of general security be put on the agenda of one of these meetings so that we can see whether the State legislation under which private inquiry agents are registered is linked with Federal legislation, in view of the espionage content?
– I raised that matter at the first meeting of the Standing Committee of Attorneys-General which was held after the report on defamation was received and tabled in the Senate. As I have said that report is being put to study with a view to joint StateCommonwealth co-operation. The report on privacy undoubtedly will be treated in the same way when it is received. I do not know when it will be received. I cannot bind the Commission in relation to what it might do with it. If I have the carriage of the matter I will certainly raise it with the States because it is obviously a matter where Commonwealth-State co-operation is required.
– My question is directed to the Minister representing the Minister for Foreign Affairs and concerns the latest wave of madness and anarchy in Iran. How many staff members are there in the Australian Embassy in Iran? How many Australian citizens continue to live and work in Iran? Has the Australian Government developed clear contingency plans for their safety in any eventuality in Iran?
-The Government and, I think, all Australians are very concerned about events in Iran. Our concern extends not only to those events concerning actions against embassies such as those against the American and British embassies- there are now no attacks against the latter- but also in the wider sphere to the threats of oil embargoes and demands that the Shah be surrended up to Iran. I understand that the Government is aware that the precedent set in regard to those two embassies may offer some endangerment to other diplomatic people of various nations represented in Iran. Therefore, in that context my understanding is that the Commonwealth Government is looking towards the security of our own people. It is believed that at the moment there ought not to be any special threats to the Australian Embassy or to Australian nationals in Iran. But that cannot be said with any sense of complacency about an area which has some unpredictable factors. I am unable to say specifically what the number of Australian staff in Iran is. I will find that out for the honourable senator. Suffice to say that one would need to be discreet in what one says in these matters. One would express the gravest worry about the subject and the hope that there would be in the future a recognition by the Iranian Government of the well established long-term protocol of respect for foreign nationals in a country and that a resolution could be achieved in that regard. Otherwise there is a threat not just to people in Iran but to world peace. There is a danger of world conflagration.
-The Minister for Social Security will recall that, in August, Senator Bishop and I asked questions in relation to supplementary assistance and special benefits. I ask the Minister: Has this matter been investigated? If so, what has been the result of the investigation?
– I recall that at the time of the previous questions I said that the Department of Social Security was awaiting some legal advice on the matter of the interpretation of the Act. I will check with my Department whether that advice has been received. I will advise honourable senators who are interested in this matter accordingly.
– Is the AttorneyGeneral aware that there was a resumption of hearings yesterday in Darwin before Mr Justice Toohey on the Kenbi Aboriginal land claim? Is he also aware that the Australian Fishing Industry Council, Northern Territory Branch, has made application to his Department for legal aid to obtain legal advice in lodging objections to this claim? Can he inform the Senate whether the application of the Fishing Industry Council has been approved? If not, in view of the currency of the hearings before Mr Justice Toohey, will he expedite consideration of the application.
– I understand that a hearing did take place yesterday before Mr Justice Toohey relating to the Kenbi Aboriginal land claim. I understand that he is considering whether he has jurisdiction to inquire into the claim. The application presently before him will resume on 26 November, If he determines that he has jurisdiction, his formal inquiry into the claim is unlikely to commence until early 1980. 1 understand that an application has been made by the Northern Territory Branch of the Australian Fishing Industry Council for legal aid for representation before such an inquiry. Discussions between the Council and officers of my Department have taken place. Information was then provided in regard to the application. I have not yet dealt with the application but I expect to be doing so shortly. In view of the concern expressed by Senator Kilgariff, I will seek to expedite the application.
– I ask the Minister for Science and the Environment whether his attention has been drawn to a report in the Australian Financial Review of yesterday’s date which suggests that the production of medical isotopes at Lucas Heights, Sydney, can be done much more cheaply and much more safely by a machine known as a cyclotron. Will the Minister undertake an examination of a submission by the Australian Atomic Energy Commission for a Hifar reactor in view of the alternative view that isotopes can be produced close to hospitals without the use of nuclear materials at about 10 per cent of the cost of a replacement nuclear reactor?
– I did note the comment in the Australian Financial Review. The affairs of the Australian Atomic Energy Commission are under the control of the Minister for National Development. As much of the subject of the question is of interest to me, I will see that the question is forwarded to the Minister for National Development and see whether an answer can be obtained for the honourable senator.
-I refer the Minister representing the Treasurer to a report in the Australian of 5 November 1 979 by Mr Peter Clyne, whose statements I should in no way be taken as vouching for, relating to the safety of a person’s assets when he is facing a tax investigation. I ask the Minister whether he is aware of this report and in particular Mr Clyne ‘s claim:
Banks throughout Australia notify the Taxation Department, every month, of all accounts on which interest is paid and all accounts in which there is a credit balance above $5000.
Is this statement correct? If so, will the Minister inform the Senate on what basis the banks do this? Will the Minister also inform the Senate what rights the Commissioner of Taxation has to acquire such information?
– My understanding is that under the law all companies, including banks, are required to provide to the Taxation Office annual statements of interest payments in excess of $100. That is the law and has been so for some time. The reports that the Taxation Office is requiring monthly reportings have been brought to the Government’s attention. I have been advised that the claim made in those reports is not correct.
– My question is directed to the Leader of the Government in the Senate. Has the Minister’s attention been drawn to an article published in this morning’s Melbourne Age by that paper’s Brisbane correspondent, Mark Baker, in which it is stated that three unnamed agents of the Narcotics Bureau based in Brisbane have told the Age that two Queensland State members of parliament and some senior State police officers are involved in heroin smuggling? What action will he take to have these serious and highly disturbing claims investigated?
– I have not seen the report in the Melbourne Age. I will seek it out. To the extent that it could involve agents of the Narcotics Bureau, it would be a matter, of course, for the Commonwealth Government and the Commissioner of the Australian Federal Police, who now has a direct responsibility. I will direct the attention of the Minister for Administrative Services to the matter. Allegations that Queensland members of the Legislative Assembly and Queensland police officers are involved are a matter primarily but not totally for the Queensland Government. I have no doubt that the Queensland Government will react to the report and determine whether it has any factual basis. If it is alleged that there is a partnership of agents of the former Narcotics Bureau, members of parliament and police officers, it is a matter for all Australians. I will direct the whole of the nature of the question to the Minister concerned for him to make the appropriate inquiries.
-Has the attention of the Minister for Education been drawn to reported comments of the Australian Labor Party’s candidate for the seat of Canberra, Mrs Kelly, in yesterday’s Canberra Times alleging that at least 20 Australian Capital Territory primary schools will lose their existing principals over the next four years? What are the facts in relation to band 4 principals in Australian Capital Territory primary schools? In particular, is there any truth in Mrs Kelly’s allegation that the Government’s decision on staffing would mean lower morale and fewer promotional opportunities for Canberra teachers?
– I have seen the reports referred to by Senator Knight. Of course, what Mrs Kelly, as the Australian Labor Party candidate, says at the moment is in direct conflict with what the Australian Capital Territory Schools Authority has said. The Australian Capital Territory Schools Authority has endorsed, except for one minor matter, the fact that I have been able to agree to its staffing plans. It has to be kept in mind that what is happening is that I, as Minister, have been able to study the Authority’s proposals and agree to them with one modification that I will now mention. I think one would have to look at the partisan nature of the Labor candidate’s reports. The fact is this: Quite contrary to what Mrs Kelly says, the positions of existing band 4 principals in schools with student numbers below 276 will remain the same in 1980. That is one dolly over. The positions of these principals will be reviewed in a broad study by the Public Service Board, the Australian Capital Territory Schools Authority, the Commonwealth Teaching Service and the Department, and it is expected that as a result of this study a variation to the formula will be recommended. The CTS Commissioner could be asked to approve a salary for any new classification of principal. The appropriate number of positions would then be sought. So much for any suggestion to the contrary.
The number of schools that will be affected in 1 980 will be as in the Press report- Ainslie, Curtin South, Griffith, Narrabundah and Pearce. It is anticipated that an additional two schools will be affected in 1981. The latest information from the Authority is that, by 1983, 18 schools will be affected. The situation beyond 1983 is somewhat unclear. So Mrs Kelly, as the Labor candidate, suffers from difficulties in numeracy at the moment.
In comparison with the State situation, and this must be kept in mind, most principals operating in positions equivalent to ACT band 4 primary principals are responsible for schools with enrolments in excess of 400. Here we are talking about principals at this moment with 276 students and comparing them with band 4 principals in the State system with 400 or more. The disparity between 224 and 400 was considered too great to enable principals of smaller schools to continue to operate at band 4 level. I should add that the minimum salary differential between existing ACT band 4 principals and principals of schools of comparable size in the States is $3,000. Putting that together, I repeat: The fact is that in my own capacity as Minister I have been able to accept the general staffing philosophy recommended by the ACT Schools Authority, with the exception of band 4. The Public Service Board has drawn attention to the disparaties that I have indicated, but rather than simply negativing the situation we are setting up a study to see whether we can come to some adequate and sensible compromise with regard to such principals for the future. I would say that that is an eminently fair arrangement.
-My question to the Minister representing the Minister for Post and Telecommunications arises from his answer yesterday to my colleague Senator McAuliffe concerning the non-televising of national sporting events by the Australian Broadcasting Commission and the statement in his answer yesterday that the Minister has asked the ABC to consider carefully its role in this general area of televised sporting coverage. Bearing in mind the concern and disquiet that exists in country areas of Australia about the inability of people in those areas to view such programs, I ask the Minister whether he is aware of section 64 of the Broadcasting and Television Act which says:
Subject to this Act, the Commission shall broadcast or televise free of charge from all the national broadcasting stations or national television stations, or from such of them as the Minister specifies, any matter the broadcasting or televising of which is directed by the Minister in writing as being in the national interest.
Because of the concern that exists in rural areas, will the Minister request the Minister for Post and Telecommunications to consider declaring in writing to the Australian Broadcasting Commission that a national sporting event such as the Melbourne Cup or a test cricket match is a matter of national interest, and so allay many of the fears of people in these outlying areas?
– Fortunately Standing Orders prevent me from proffering legal opinions. The suggestion that a particular sporting event must be broadcast over the Australian Broadcasting Commission network as it is a matter of national interest raises my eyebrows a little. When I think of the use of the words national interest’ in an Act such as the Aboriginal Land Rights (Northern Territory) Act I believe that we are talking about something of a rather different nature and quality from the point raised by the honourable senator. I make those comments not because I wish in any sense to suggest that there is not the widespread concern of the sort which has been raised by the honourable senator in his question and by other honourable senators in questions on the same subject. It seems to me to be stretching the point a little. I will refer the particular question with respect to section 64 to the Minister for Post and Telecommunications, Mr Staley, to allow him to give the matter raised by the honourable senator careful consideration and a reply in due course.
– Is the Minister representing the Minister for Trade and Resources aware of the proposition put forward in the September 1979 edition of the CAI News for the Government ‘s establishment of overseas trade centres to assist small exporters? Will he request that the Minister give consideration to the establishment of one such centre as a trial in accordance with the CAI News suggestion? Will he advise the results of that consideration as soon as possible?
– I have not seen the proposal to which Senator Archer refers. It is an interesting one. I will refer it to the Minister for Trade and Resources. I am sure he will be aware of it. I will ask him to provide a response to the Senate as soon as possible.
– I direct my question to the Minister representing the Minister for Defence. I refer to the announcement that the United Kingdom will retract from its arrangements with Australia in respect of testing at the Woomera range. The Minister no doubt will recall that in recent months the Minister for Defence, Mr Killen, in answers to questions stated that experimental service trials involving personnel and equipment would be held at Woomera with the idea of enhancing and increasing the usage of the area. In view of the fact that some of these trials have taken place, is the Minister in a position to state to what extent the range might be used for these sorts of experiments? Taking into account the general world situation, will the Minister pay strong regard to ensuring maximum maintenance at Woomera?
– I have no direct information or advice. It is an important question and one in which I think all Australians and, in particular South Australians, are particularly interested. I will seek the information from the Minister for Defence and see whether I can get a reply for Senator Bishop.
– My question is directed to the Minister for Social Security. I note an article in the Australian today that states that over the last two years the Department of Social Security has managed to get back $24m that was wrongly claimed by certain recipients. Is it true that under certain circumstances some persons receiving unemployment benefit can also be receiving allowances under the Tertiary Education Assistance Scheme and yet Department of Social Security officers are not able to crack down on the racket by cross matching computer lists from the Department of Social Security and the Department of Education because of confidentiality sections of the Social Services Act? If so, are there any plans to overcome the situation?
– It is not a fact that the confidentiality requirements of the Act preclude us from exchanging information with other relevant Commonwealth departments. This has always been the practice. I have not seen the statement in the Australian today to which the honourable senator referred, but I did see a similar statement made in a journal. That is not a statement of fact. The departments are able to exchange information and, in connection with the Tertiary Education Assistance Scheme allowances and the unemployment benefit, they certainly do exchange information to enable satisfactory arrangements to be established to avoid duplication.
-I ask the Leader of the Government in the Senate a question on the same subject as that on which a question was asked by Senator Teague. At the risk of being indelicate, I too refer to the madness that is now manifesting itself in Iran. Further, at the risk of being indelicate again, I refer to the insanity in the Islamic renaissance which is sweeping certain parts of the world and which seems to be little appreciated in Australia. In particular, I turn to the oil crisis, or the possibility- not just because of Iran but because of the whole Middle East situation- of oil supplies being acutely short in Australia in a very short time. I ask the Minister: Will he confer with the Minister for National Development and prepare a complete statement on the Government’s intentions in dealing with the problems which might be foreseen in the future and on the plans of both Federal and State governments concerning oil and energy supplies generally for a 10-year period, including proposals to encourage the development of sources of power alternative to petroleum and the fossil fuels? Can such a statement be brought into the Senate at the earliest opportunity so that it can be debated on a bipartisan basis by honourable senators?
– The question is really in two parts: It contains a statement of Senator Chipp ‘s revulsion at what is happening and his references to Senator Teague ‘s earlier question. I am able now, if I may, to tell the Senate that the Australian Embassy staff and dependants number 12 and the Australian community numbers 29, making a total of 41 Australian nationals in Iran. I interpose that because it is part of the answer to the question asked earlier. For several years the Commonwealth Government has been working on an overall energy policy embracing the various elements which Senator Chipp outlined- elements relating to not only conservation as such, but also alternative energy sources- so that Australia can be waterproofed and can play its role with the rest of the world against any resources blackmail.
– Are you satisfied that the Commonwealth has the constitutional power?
– The question which was interposed by the honourable senator is an important one. It asked whether we are satisfied that the Commonwealth has the necessary constitutional power. As I understand it at the moment- and the Attorney-General might have a view otherwise- that has not been raised with the Commonwealth as a delimiting factor at the moment. In any case, the States have a major responsibility in this area. Much of the consumption of energy comes under the direct responsibility of the States. I say that without seeking any alibi at all. If one reflects upon transport systems, electricity generation, fuel consumption in industry and commerce and, of course, the various controls of traffic and automotive vehicles in the States one sees that there is an enormous responsibility on us to work together.
I am satisfied that the Commonwealth Government has proceeded with expedition and, I think, with thoroughness in this matter. I will certainly bring the nature of Senator Chipp ‘s question to the attention of the Minister concerned. I am not aware, for the moment, of an intention to put together a total statement, although, as Senator Chipp would know, at the moment there is a widespread dissemination of information on various aspects of the matter. We have keen development of our coal resources, both for our use and for the use of others; an attempt to get a maximum conversion to coal; studies of alternative sources of fuel; and, of course, the most successful pricing policies of our indigenous oil which have enabled us to bring into an economic situation more and more wells which would not have been regarded as economic. Therefore, we have extended our capacity and storage for the future. Equally, of course, our pricing policies have brought about exploration at an unprecedented level. I will ask the Minister concerned whether he is contemplating a statement. I acknowledge the importance of the question.
– My question, which is directed to the Minister representing the Minister for National Development, follows along the lines of those asked by Senator Teague and Senator Chipp, but is a little more specific. Australia depends for much of its aviation fuel for piston-engine aircraft on supplies from the Abadan refinery in Iran. Can the Minister give some indication when Australia will be selfsufficient in the production of avgas?
-I am a little hesitant about answering a question as to when or whether Australia will be self-sufficient in avgas. I am advised by the Minister for National Development that the present position is that Australia has six months’ supply of avgas and that the Shell company’s proposed new avgas operation is expected to begin production in April 1980. 1 am not quite sure what total effect the new operation of the Shell company and the other work that has recommenced in recent months in the Mobil refinery will have on the supply situation and on total self-sufficiency by 1980. 1 will refer that aspect of Senator Thomas’s question to the Minister for National Development because I think it is important that a very accurate answer should be provided in relation to these matters.
– My question is directed to the Minister representing the Minister for National Development and follows the question asked by Senator Thomas. Is it not a fact that in this country at the moment, particularly in Tasmania and the Northern Territory, commercial aviation operations such as crop dusting are severely affected by the inadequate supplies of avgas? If this country has six months’ supply of avgas on hand, who is controlling its distribution and what can be done to ensure that businesses such as those in Tasmania and the Northern Territory are not affected by maldistribution or by the difficulties in Iran?
-The Minister for National Development has said on a number of occasions- and I have said it here on his behalfthat one of the major problems has been in distribution. Despite the fact that there may be a supply, there are these distribution problems. In a country the size of Australia, with varying demands for a product such as avgas, that presents a continuing problem. The Minister is very conscious of it. Whenever particular problems have been mentioned in this place, I have certainly referred them to the Minister to see whether attention can be given to them. All I can say in answer to the rather general question from Senator Grimes is that this is a matter of which the Minister is very well aware and that he has taken steps, as best he can, to solve specific problems when they occur. But the distribution of the product is very much in the hands of the suppliers and transporters of it.
– AUSTRALIAN COAL RESERVES
-Does the Minister representing the Minister for National Development recall my asking on 19 September this year whether it was intended to forward the figures on Australian coal reserves to the 1980 world energy conference to be held in Munich, and, if so, whether the figures could be released on a State by State breakdown in Australia? I have received a reply from the Minister for National Development stating that such figures have been supplied to the world energy conference. I again ask: Can these figures be supplied also to us in this chamber?
-I will take that question up with the Minister for National Development. I am sure that there will not be any difficulty in obtaining the release of the figures, but I will see whether I can expedite it.
– I preface my question to the Minister for Education by stating that he will be aware that in a decentralised State such as Tasmania the provision of an adequate Tertiary
Education Assistance Scheme allowance is essential to enable many young adult Australians to secure their right to a tertiary education; and further, that this is of particular concern to northwest coasters wishing to attend the University in Hobart or colleges of advanced education courses in Hobart and Launceston, who are finding that accommodation costs far exceed the maximum TEAS allowance. I ask: Will the Government give urgent consideration to introducing, for the next academic year, firstly, a maximum TEAS allowance that will have been restored to the level of the poverty line, where it was when TEAS was introduced in 1974 and, secondly, a cut-off point for parental income, at which the means test begins to operate, that has been raised to a level equivalent to that of 1 974, that is, indexed for inflation?
– Although I sympathise with the problems that Senator Tate puts forward, his question contains within its rhetoric two misstatements. There never was espoused by the previous Government a concept that TEAS should be geared either to the poverty line or to indexation. It was not indexed by the previous Government. That Government supported the Haydn Williams committee inquiry, which held that there was no relationship between the TEAS allowance and a fully supportive income; that it was merely intended to supplement other sources of income. Having corrected those misstatements- and I say that in no vexatious spirit at all because the problem is a very real and human one- I suggest that Senator Tate should have a look at the report of Haydn Williams committee, which incidentally included a representative of the Australian Union of Students. The fact is that all governments have based the TEAS allowance on the concept that it is not to provide total support at all but is to be supplemented either by families- the normal way- and/or by incomes derived elsewhere by students. One realises some of the difficulties that are to be faced in that regard. One is aware of the difficulties that confront students who live away from home particularly, shall we say, as in the illustration given, of those who are from the northwest coast of Tasmania and attend institutions in Hobart. I will be interested to include consideration of the problem in a study that at this moment we are having made of TEAS and other factors to see what can be done to take those elements into account. If Senator Tate can help in that regard he might write to me.
– I wish to ask a supplementary question. Am I to understand from the Minister’s answer that he holds out no hope of a change occurring in the TEAS rates in the next academic year?
– Once again we have a classic example of an allegedly supplementary question that bears no relationship to either the former question or the answer to it. I said nothing of the sort. Let me make perfectly clear what I said. I said that a study of TEAS allowances was being undertaken at the moment. How could that possibly be taken as meaning that I hold out no hope for a review of TEAS allowances? I have said that the matter is being studied at the moment. Senator Tate’s question is neither supplementary nor related to my answer. I ask him to refer to Hansard to study the answer that I gave.
-Is the Minister representing the Minister for Post and Telecommunications aware that the latest issue of the Perth telephone directory contains no information on rates and charges, so that it is not possible to establish the cost of a telephone call or other Telecom service? Why were the simple and comprehensive tables of rates and charges that were included in the previous directory- amended as may have been necessary- not included in the new directory?
– I am able to confirm that the latest issue of the Perth telephone directory omits the information that has been referred to by the honourable senator. I understand from Mr Staley that he is making inquiries into the reason for that omission and will provide Senator Rocher with that information as soon as it is available to him.
– My question is directed to the Minister for Social Security. I refer to an article in the Age of 3 1 October headed: ‘Woman beats high cost of funerals’ which described how an unemployed woman was quoted $900 as the minimum price for the cremation of her pensioner father. When the woman decided to organise a funeral herself and to deal directly with the crematorium, the irate and callous undertaker tore up the death certificate. Is the Minister aware that a starting price of $1,000 for a minimum service is not considered extraordinary? Will she bear in mind that the funeral benefit for pensioners is only $40? In view of the references in the Finnane report on some New South Wales firms of undertakers that it was customary in that State for bribes to be paid to hospitals and their staff to gain business for undertakers, will the Minister initiate a full scale inquiry by the Government into the whole costly funeral business which would be especially timely as American razzamatazz now being copied will add further to funeral costs?
– I do recall an article in the Melbourne Age which referred to some of the matters that were raised by the honourable senator in his question. As far as the cost of funerals and other matters raised by him are concerned, they are not within my ministerial responsibility. I do not propose initiating the full inquiry suggested by him.
– I direct a question to the Minister representing the Minister for Trade and Resources. The 100th anniversary of the first shipment of meat from Australia will occur later this year. The Australian Meat and Livestock Corporation is mounting a campaign to mark that event. As Australia is the largest exporter of meat in the world, and as this great industry means so much to so many Australians, will the Government be prepared to support the campaign or to take some independent action to remind Australia and the world of this important anniversary?
– I will refer the question to the Minister for Trade and Resources.
– I ask the Minister representing the Minister for Primary Industry whether the Australian Government has concluded fishing agreements within the 200-mile Australian limit with the following countries: Japan, Taiwan, South Korea and Russia? Are agreements with any other countries being negotiated? What fees are being paid to Australia for fishing rights by Japan, South Korea, Taiwan and Russia? How many ships will be used within the 200-mile limit by each of the countries to which I have referred? How much fish, by weight, will each country be allowed to harvest in Australian waters during the first 12 months of the agreement with each country?
-The answers to the five questions which the honourable senator has asked me require some detailed response. I will seek those from the Minister for Primary Industry.
-I direct a question to the Minister representing the Minister for Primary Industry. In view of the concern of commercial fishermen on Australia ‘s northern coast at Darwin and elsewhere, is it the intention of the Australian Government to bring about a 12-mile buffer zone as a protection for Australian fishermen now that the 200-mile fishing limit has been commenced?
-One of the basic objectives of the Government during negotiation to give foreigners access to the 200-mile Australian fishing zone is to protect fully the welfare of the Australian fishing industry. My understanding is that the Government has stated on a number of occasions that foreign fishing operations will not be permitted in fisheries currently being fully exploited by Australians or likely to be in the near future. At the same time I believe it must be borne in mind that Australia has an obligation to promote optimum utilisation of fishery resources within this newly declared zone.
With regard to the particular matter of the 12-mile buffer zone, this was considered by the Australian Fisheries Council at its ninth meeting held on 2 November of this year. The Council endorsed the principle of continued exclusion of foreign boats from a 12-mile zone, except where it is convenient to Australia to allow them to operate in that area. The honourable senator can be assured that the various States and obviously the Commonwealth Government are watching the interests of our fishing industry. If anything else arises out of the question that the honourable senator has asked I will seek an answer from the Minister for Primary Industry.
– My question is directed to the Minister for Social Security and concerns women’s refuges and the funding for them. There is disquiet in the community because there appears to be a prospect of continuing funding being cut. Until now the addresses of these refuges have been kept with great confidentiality for obvious security reasons. Can the Minister advise whether the Federal Government has issued instructions which would mean that there would be no funding unless these addresses were made available to welfare departments and social workers in the States?
– That question falls properly within the responsibility of the Minister for Health. I will refer the matter to him and check with him as to whether, under the community health program, there have been any changes in the arrangements that existed formerly.
– My question which is also directed to the Minister for Social Security relates to a proposed Italian-Australian social services agreement. Has the Minister seen a report in La Fiamma of 22 October to the effect that the proposed Italian-Australian social services agreement is being delayed by the Australian Government? Can the Minister say whether this is so, what stage has been reached with the proposed agreement and when it is expected that it might be concluded?
– I have seen a summary of the article referred to by Senator Knight. As I have said in answer to other questions on recriprocal agreements, the general question of Australia’s participation in reciprocal agreements on social security with other countries, including Italy, is one to which the Government is giving consideration. Because of the differences between the schemes of social security it is difficult to establish a basis which is appropriate to people’s needs while at the same time ensuring that financial commitments arising from any undertakings are appropriate. The fact that Australian pensions are payable to the maximum rate under very generous residence conditions and once granted are portable abroad is significant in connection with any discussions on reciprocal agreements with other countries. Perhaps the matter is further complicated by our reluctance to do anything detrimental to migrants who already benefit or who stand in expectation of benefiting from the portability provisions that presently exist in Australia.
A delegation from Italy is expected in Australia early in December with a view to continuing discussions regarding the matter. Because discussions are still at a preliminary stage it is not possible to say when an agreement, or even the arrangements on which an agreement could be based, might be concluded. As I have said on other occasions, the portability of pensions from Australia at full rates makes it very difficult to reconcile this with arrangements that exist in any of the contributory schemes in other countries.
– Will the Minister representing the Treasurer examine and comment on the evidence of Sir Arthur Rymill before a Supreme Court hearing in South Australia into the affairs of the Bank of Adelaide when he related that a conference on problems in the Bank of Adelaide was held on 1 3 May in Sydney between the Treasurer, banking officials and the South Australian Premier? At that conference Mr Corcoran, the then Premier of South Australia, asked the Treasurer whether he would permit overseas bank finance to come into South Australia in order to assist that State. In his sworn evidence he said that before the Treasurer could reply Mr Stone from the Department said that the Australian Government would not alter its control of overseas bank finance to help shareholders of small banks. He then turned to the Treasurer and said: ‘Is that so, Mr Treasurer?’ The Treasurer nodded his head. Can we take the nodding of the Treasurer as an indication of a considered reply to a Premier’s question or can we accept it that he was compelled to do it as a result of Mr Stone’s intervention? I further ask: Did Mr Knight, the Governor of the Reserve Bank of Australia, inform the Bank of Adelaide that unless it merged with an Australian bank the Reserve Bank would take it over within three days? Did he state that, although it was necessary under the Banking Act to obtain a certificate from the Auditor-General, time did not permit him to do that and that he would take over the bank whether it was lawful or unlawful to do so? Is the Reserve Bank permitted to operate unlawfully for the purpose of coercing a bank into a merger with some other bank?
– Not surprisingly, I have no brief, whether the Treasurer nodded or not. Nor do I have a brief on the other suggestions that have been made. I therefore ask that Senator Cavanagh place his question on notice.
- Mr President, with your indulgence I inform the Senate that quite inadvertently I think I gave what could have been a wrong reply to a question asked by, I think, Senator Elstob regarding a report in the Melbourne Age concerning an alleged involvement in drugs of some people in Queensland. As it now appears my reply was quite wrong because I have now received a copy of that report. I thought I heard him say that there was an allegation that the Narcotics Bureau was involved with the Australian Federal Police and with State members of Parliament. As I read it, it is an allegation that the Narcotics Bureau suggests that the police and the MPs are involved. I think it will be found in my answer that I talked about a suggestion of an alleged partnership of the three. If I did that it would have been totally contrary to the newspaper report and I would want to make it clear that having seen that report my answer in the first place was defective.
– My question is directed to the Minister for Social Security. Will she ask her Department to undertake an extensive survey in 1980 of working mothers of pre-school and school age children to establish the truth or otherwise of the oft quoted statement that a large number of women in our society would gladly give up work to look after their children if they could afford to do so.
– I will give consideration to the question although I see some difficulty in establishing the matters that may be imputed in the question. I do not know how we would determine attitudes on these matters. I will give consideration to the question raised by Senator Walters.
– I draw the attention of the Attorney-General to a question without notice asked by Senator Missen on 17 October to which I understand there has been no reply. I remind the Attorney-General that there are a number of honourable senators on this side of the chamber who are extremely interested in this issue. The question was:
Will the Attorney-General tell the Senate whether he has received from Amnesty International, the United Nations Associations, civil liberties organisations and other bodies submissions in connection with the Human Rights Commission Bill and the Racial Discrimination Amendment Bill which have not yet been debated in the Senate?
In his reply to Senator Missen, the Minister said:
I will take note of the question Senator Missen has asked and give consideration to it.
I now ask: As this matter is now due for debate in this place later this day, has he given consideration to that request and will information on it be given to all honourable senators prior to the commencement of the debate?
– Yes, I have given consideration to that question. I have not yet had the opportunity of mentioning my views to Senator Missen. I think out of courtesy to him I should inform him of my views on that matter before I answer a further question about it. I will certainly do so before the commencement of the debate.
– Does the Minister representing the Treasurer remember my question of 20 September and his reply to it of 9 October when I raised for the first time in public the Foreign Investment Review Board controls on the Iwasaki land expansion? In view of the many allegations that Mr Iwasaki has covertly entered into negotiations to purchase further land in addition to his vast holdings of over 8,000 hectares and 20 kilometres of beach frontage, I ask: What guidelines will the Commonwealth apply to permit further expansion of these holdings which are grossly excessive for the declared purpose of building a tourist resort? If there has been a breach of the FIRB rules, will the Minister give this House an unequivocal assurance that the Commonwealth will give its full support to those regulations?
-I recall Senator MacGibbon asking me questions about the Iwasaki land acquisitions. I do not remember the actual details now. I say at the outset that the Government will ensure that the Foreign Investment Review Board guidelines are observed. That, I think, is quite clear. I am unaware of whether further land purchases are to be made and, if they are, what their extent might be. I have to say that a qualifying factor is that primarily the acquisition of land in Queensland is the responsibility of the Queensland Government. To the extent that the FIRB and the Commonwealth Government, through its guidelines, have a responsibility, I will direct the question to the Treasurer and seek a further response.
– My question is directed to the Minister representing the Minister for Primary Industry. Is it a fact that Japan has paid a $1.4m licence fee for access to tuna in the Australian 200-mile economic zone? In view of the fact that the Chief General Manager of the South Australian Fishermen’s Co-operative Ltd, Mr Fowler, estimates that the Japanese would have paid $10m for the access, will he agree with Mr Fowler that the decision has done a great deal of damage to the Australian fishing industry?
– I am not certain of the actual detail of wording used in the agreement. My understanding is that the amount of $ 1.4m is not necessarily paid for one particular type of fish, but that might be the situation. I will attempt to check with the Minister for Primary Industry. Comment was made about an evaluation by Mr Fowler that the Japanese would have paid $10m. Mr Fowler may be privy to some information that I am certainly not privy to. I think it would be incorrect of me to attempt to speculate as to whether Mr Fowler’s information is correct. I could make no comment on it. I think the honourable senator should place the question on notice and get a more appropriate answer from the Minister whom I represent.
– I address my question to the Minister representing the Minister for Home Affairs. I am sure that the Minister for Home Affairs will be well aware of the Federal Government ‘s long association with the Victorian metropolitan city of Williamstown through the Federal Government’s naval dockyard in that city. I am sure also that Senator Webster, as a Victorian senator and Minister, will be aware that last night the Victorian Premier opened the Williamstown historic seaport project. I ask: Is the Federal Government providing any assistance to this project? If not, will the Federal Government consider providing some assistance to it?
-The matter which is brought forward by Senator Lewis is of significance to Victoria and to the city of Williamstown. Williamstown ‘s connection with the sea over many years is well known. I had noted that the Victorian Premier had launched an appeal for funds for a unique project to bring an historic ship to that area for restoration and exhibition. The Minister for Home Affairs, whom I represent, will certainly be interested in this matter. As Senator Lewis has brought it forward, I will press the Minister to see whether the Department of Home Affairs can take a particular interest in this project.
– I ask the Minister representing the Minister for Primary Industry whether he has seen a report in the West Australian of 3 November that a Western Australian meat exporter has labelled finely cut mutton as beef. Is the report correct? If so, will he protect the good name of all other exporters at present under suspicion by naming the offending exporter? What action will be taken against the offending exporter?
– I did not see the West Australian of 3 November, but what the honourable senator mentions is particularly important, if it did occur. I will bring this matter to the notice of the Minister for Primary Industry. Certainly if a deception of the kind mentioned by the honourable senator has occurred the facts should be made clear, as he suggests, in order to defend the good name of our exporters so that they are not damaged by any untoward action. I am not aware of the facts but I will attempt to find them.
– Earlier today in Question Time Senator Grimes asked me about a question without notice which he asked in the Senate on 27 September concerning departmental interviews of spouses of applicants for benefits.
The inter-departmental review team set up in 1977 to examine the department’s management practices, systems and procedures made certain recommendations, one of which is that claimants and their spouses should be interviewed, where practicable, before the claims are determined. In this connection it should be noted that, since 1 977, the income of the spouse has been taken into account in determining the rates of sickness benefit payable.
Departmental instructions issued in May 1979 provide that claimants for sickness benefit and their spouses are to be interviewed. Similar procedures will soon be issued to cover unemployment benefit and special benefit claims. Interviews may take place at home or at the office,whichever is convenient to the applicant and /or his spouse.
It is important to refer to departmental interview procedures in relation to pensions, which have been in operation for over fifty years. An interview has been an essential element of determination of eligibility and provides the claimant and the department with the opportunity to discuss entitlements to the pension applied for and welfare and fringe benefits generally. Many pensioners have expressed their appreciation of the efforts made by departmental staff to settle them in retirement.
The pre-grant interviews of spouses have not increased work volumes of staff to any significant degree as the interviews of claimants and spouses are often conducted simultaneously. Furthermore the additional information exchanged during interview reduces the need for further client/departmental contact to clarify eligibility.
200 MILE FISHING LIMIT
-Senator Archer asked me a question relating to the 200-mile limit, and asked whether I could ascertain how Australian fishing interests were being protected. I have some information which I seek leave to incorporate in Hansard.
The document read as follows-
On 16 September 1979 Senator Archer asked the following question without notice:
With the conclusion of arrangements with Japan for fishing in Australian waters upon the declaration of the 200-mile limit, could the Minister ascertain how the Australian tuna fishing interests are to be protected, in view particularly of the policy statement recorded at page 275 of the Australian Foreign Affairs Review of May 1979, relative to the highly migratory species?
The Minister for Primary Industry has now advised:
The policy statement in the Australian Foreign Affairs Review to which Senator Archer refers is a press release about the South Pacific Forum Fisheries Agency released after a meeting of officials of member Governments of the South Pacific Forum in Honiara in May this year. The main topic of the press release is the draft convention for the newly established Fisheries Agency, the text of which had been agreed upon by officials and was therefore ready for submission to Forum leaders for their approval and signature.
The Forum has subsequently approved the Convention which has now been ratified by all members including Australia. The meeting also endorsed the need for a more broadly based fisheries organisation specifically dealing with highly migratory species comprising all States whose nationals fish for these species as well as all coastal states of the region.
Australian membership of the Forum Fisheries Agency or the proposed broader based agency will not involve any derogation of our sovereign rights in respect of the living resources of the zone. Article III of the Convention which established the Forum Fisheries Agency fully protects our position whilst the basis for our participation in the broader based organisation will be. that we continue to have sovereign rights over highly migratory species such as tunas within Australia’s 200-mile zone. This approach will enable Australia to effectively implement its policy of not permitting foreign fishing vessels into fisheries currently adequately exploited by Australians or likely to be so in the near future.
-On 24 October Senator Missen asked me a question relating to cheese imports. I have from the Minister for Primary Industry an answer which I seek leave to incorporate in Hansard.
The document read as follows-
I have seen a copy of the submission to which the Honourable Senator has referred. My understanding is that the Cheese Importers Group is suggesting in its submission that European and Scandinavian cheese should be given unrestricted duty free access to the Australian market.
The position is, of course, that there are no quantitative restrictions on cheese imports into Australia from European or Scandinavian countries. There is, however, a flat rate of import duty of $90 per tonne for Swiss type cheese and $96 per tonne for other cheese. Except for the 25 per cent across the board tariff reduction of July 1 973, rates of duty on imported cheese have remained virtually unchanged since 1927 and are small when compared against the value of the cheese concerned.
In 1978-79, for example, the average value of cheese imports from the Netherlands was $2,238 per tonne f.o.b.; from Denmark it was $2,739 per tonne; and from Italy it was $3,533 per tonne. In ad valorem terms these figures represent a duty of approximately 3-4 per cent.
It should be noted that the Cheese Importers Group does not refer in its submission to Australia’s commitments in respect of cheese imports made earlier this year during the GATT Multilateral Trade Negotiations.
From 1 January 1980 a range of soft surface ripened cheeses, Stilton, Roquefort and most goat’s milk cheeses, all of which are currently dutiable at the rate of $96 per tonne, will be provided with unrestricted duty free access to Australia.
In respect of other imported cheese, Australia has agreed to bind the present tariff rate for quantities up to the current level of trade. Only cheddar, fetta, kasseri and Swiss type cheeses are excluded from this undertaking.
The honourable senator stated that non-cheddar cheese is produced only in small quantities in Australia. This is not the case. During 1978-79 Australian production of natural noncheddar cheese totalled about 33,000 tonnes compared with non-cheddar cheese imports of approximately 6,600 tonnes, from all sources except New Zealand. Cheese imported from New Zealand is for the most part similar to cheddar.
With respect to present and possible future Government assistance for the Australian cheese industry, honourable senators will recall that the Government in June 1978 submitted a reference on cheese to the Industries Assistance Commission for enquiry and report.
I am aware that the Cheese Importers Group appeared before this enquiry to present its case for unrestricted duty free access to Australia for imported cheese. I have also noted that the Cheese Importers Group has quoted extensively from the Industries Assistance Commission’s draft report in the submission referred to by the honourable senator.
The final report of the Commission was submitted to the Government earlier this year. Discussions are presently taking place with New Zealand on certain aspects of the report and when the outcome of these discussions is known the Government will be in a position to take a decision on the recommendations of the Industries Assistance Commission.
– Yesterday Senator Lewis asked me a question without notice concerning an agreement between Telecom and the unions covering its employees to offset jobs displaced by automation. I undertook to refer the question to the Minister for Post and Telecommunications for his consideration and reply. I have a reply, and I seek leave to incorporate it in Hansard.
The document read as follows-
The Minister for Post and Telecommunications has advised that a document entitled ‘Consideration of Introduction of Technological Change’ has been under consideration by the Telecom Consultative Council for more than two years. The purpose of the document is to lay down principles and procedures which are to be followed relating to consultation with staff associations when Telecom proposes to introduce new technology. It concentrates on the sort of information to be provided for staff associations to enable them to understand the reasons for introducing proposed new technology, the benefits to be derived by subscribers and the possible impact on staff of Telecom Australia. The document provides for information to be available at certain stages during the considerations of new technology leading up to an actual decision for its introduction. The decision to introduce new tei.nology remains with Telecom.
Most of the unions have accepted the document. It is expected that the decisions by two unions which have not advised their acceptance will be known before the end of 1979. Once the position of all unions is dear, final consideration will then be given to the document by the Australian Telecommunications Commission.
I can assure the honourable Senator that the Government will not condone any sweetheart deals and as I have explained, this is not the purpose of the agreement being considered.
-On 6 November Senator MacGibbon asked what action Qantas would be taking to mark the 60th anniversary of the first aerial passage between Europe and Australia on 12 November 1919. I assured the honourable senator that I would urgently seek some information from the Minister for Transport. I am now able to give honourable senators information on what is intended. I seek leave to incorporate the document in Hansard.
The document read as follows-
Qantas is indeed very conscious of the significance of this occasion, and of the pioneering efforts of Sir Ross and Sir Keith Smith, and their two crew members, Wally Shiers and James Bennett. This is particularly significant for Qantas, as the Kangaroo Route represents some 60 per cent of the airline ‘s business. I am happy to say that Qantas will indeed be marking the occasion.
I am advised that the airline is printing special commemorative certificates which will be given to all passengers travelling on flight between Australia and the United Kingdom on November 12. These certificates will contain information relevant to the occasion, together with a commemorative photograph of the aircraft used on the flight in 1919, a converted Vickers Vimy bomber. Additionally, explanatory announcements will be made by the crew to all passengers aboard these aircraft, and, all passengers will be offered complementary drinks.
I believe all honourable senators will agree that Qantas should be congratualted on these efforts to mark this occasion. I understand there are three flights involved on 12 November, which means that around one thousand passengers will be informed of the significance of the day on which they are travelling.
I might further point out to Honourable Senators, that the Chairman of Qantas, Sir Lenox Hewitt, paid tribute to these aviation pioneers recently, when he delivered the 1 1th Sir Ross and Sir Keith Smith Memorial Lecture, to the Royal Aeronautical Society, in Adelaide last month.
– I inform the Senate that I have received the following letter, dated 8 November 1979, from Senator Grimes:
Pursuant to Sessional Order, I give notice that today I shall move-
That in the opinion of the Senate the following is a matter of urgency:
The grave concern of the Senate arising from the Indonesian treatment of the East Timorese people.
Yours sincerely, DONALD JAMES GRIMES Senator for Tasmania
Is the motion supported?
More than the number of senators required by the Standing Orders having risen in their places-
– I move:
That in the opinion of the Senate the following is a matter of urgency:
The grave concern of the Senate arising from the Indonesian treatment of the East Timorese people.
I move the motion in the hope that this House and the Parliament eventually will express a bipartisan concern about the events in East Timor and about the situation in which a people who have close connections with Australia are suffering malnutrition, starvation and illness without the benefit of medical aid and are dying in large numbers from neglect which, until recently, has been largely hidden from the people of Australia and indeed from the people of Indonesia. I believe that the motion is a mud one and can be supported by members on both sides of the Parliament. Members on both sides have repeatedly expressed concern about the situation in East Timor since December 1 975 when part of the island was taken over by Indonesia.
This island is close to our shores. It is only 350 miles away. It is well within the capacity of Indonesia, with Australian help, to assist and relieve the suffering of the people involved. Members on both sides of Parliament and citizens generally in this country have expressed a desire and a willingness to help the people of East Timor either directly through international agencies or through Indonesian agencies. Such help has not reached these people, firstly, because the plight of the population has not been known to most people in this community and, secondly, because the delivery of aid has been obstructed by the Indonesian authorities.
It is no good our turning our backs on this problem any more. It is no good our avoiding expressing an opinion on it. Our relationship with neighbouring countries like Indonesia is, of course, important, but the sensitivities of the Indonesian Government should not be considered more important than the lives, the freedom, the self-determination and the health of the men, women and children of East Timor who have been sorely abused for centuries by a neglectful colonial power, who have been abandoned in the wake of a revolutionary change in that colonial power and who were then taken over by a neighbour obsessed with unreal fears that a hostile power could develop amongst the 600,000-odd people on the edge of its own country of 1 30 million people.
The events of December 1975 have been much debated in this country and in this Parliament. Accusations have been made about the part various personalities on both sides of the national Parliament and in State parliaments have allegedly played by omission or commission in the affair of East Timor. Unfortunate statements were repeatedly made about the ideological nature of the Fretilin group which undoubtedly heightened the fear of the Indonesians. Our part as a nation in this affair is not beyond reproach, but honourable senators in this place have been prominent in keeping to the forefront the problems which have arisen in East Timor. Three honourable senators have spoken on this matter in the adjournment debate this week. These honourable senators have consistently shown a very real interest in the problem.
I have no desire to dwell on the events of the past. Such an exercise would in fact serve no useful purpose to the people who are suffering in East Timor, but the fact remains that the Indonesians by force took over this tiny country and since then have engaged in a war of attrition against those East Timorese who resisted. The Indonesians have, until recently, allowed no access of note to the area by journalists or international relief agencies and have suppressed knowledge of events occurring in the country. We should signal our concern at these and other events to the Indonesian Government in the hope that it will listen and allow much greater relief and assistance to be provided to the people in the area.
Certainly the reports in the Press recently have brought the whole problem to our notice. Reports from East Timor by church authorities, by diplomats last year, by journalists, by resistance forces through their radio and by letters that have been smuggled out of East Timor have given rise to a sense of uneasiness in this country about what has been going on since 1 976. Now, with the photographs brought out of Indonesia under difficulty by Peter Rodgers of the Sydney Morning Herald, we have graphic and first-hand evidence of what has been going on. The situation has been complicated by the occurrence of a similar and better publicised tragedy in Kampuchea. We now know that those reports are in fact true. We now know that the situation is grave. We now know that the church authorities’ reports on the alarming death rate from violence and disease are true. We now know that much more could have been done with aid from this country, with aid from the international sphere generally and with aid from Indonesia. Not enough was done. We in this place can no longer remain silent about the matter. We can no longer ignore these people nearby.
Various estimates of the number of people who have perished have been given. I do not think there is much point in going into detail about the justification for the various figures given. In some cases the Catholic Church authorities estimated some 300,000 people, or roughly 50 per cent of the population, died in the last four years. The lowest estimate one seems to be able to obtain is that 100,000 people, or 15 per cent of the population, died in the last four years. Certainly, in March 1977 when we held a debate in this place in an attempt to gain support for setting up a Senate select committee to inquire into the problems of East Timor Mr Malik of the Indonesian Government was talking about 80,000 people having died or having been killed in the war then going on with Fretilin. Whatever the figure, it is appalling; whatever the figure, we can do something about it; and whatever the figure, we should be able to do something to prevent it increasing in the future. We know that at least 100,000 people have died, despite the claim by the Indonesian Red Cross that it has spent $7m in relief in the past four years.
East Timor presents a typical tragedy of modern times; of people who initially were denied freedom and development by their colonial power, then were denied self-determination by a neighbour and then, despite the willingness of others to help and despite the good will which existed, perverse national pride prevented the Indonesians admitting until now that a problem existed. Only now, when the situation is very grave, are they admitting that a problem exists and even now attempts are hampered. I have not mentioned yet but will mention later the problems caused over the last four years by the obstruction by Indonesian authorities of the refugee family reunion program. This has considerably concerned honourable senators from the Northern Territory because they have had to deal with the personal hardship which has arisen in that area.
Why should we as a parliament speak out at all at this time? During the debate in March 1977 I suggested that if we as a nation with a small population did not speak out when we saw maltreatment of a small population group anywhere, let alone on our doorstep, we did not deserve to take our place in a community of nations. We must show an active interest in the rights of small countries and the rights of minorities of other countries. We as a Senate had the opportunity to do so in March 1 977 when my colleague, Senator Gietzelt, moved that a Senate select committee should be established so that we could investigate what was happening in East Timor, so that we could have a watching brief over what continued to happen in East Timor. The debate was then much longer than it will be today because the Government allowed a longer debate. It was a thoughtful debate. But the Government refused to support the motion. We had our opportunity to express our concern then; we have our opportunity to express our concern today, however belatedly.
During that debate arguments were used against the establishment of a Senate select committee which I suggest could be used by some honourable senators- and in fact have been used to me this morning by some honourable senators- who would be opposed to our discussing a motion such as that. Such arguments were that at the time there were other examples of aggression and attrition against minority groups in countries such as Angola and Chile; that there was nothing special about East Timor; and that therefore we should not single out that area for special treatment. These arguments I dismiss now, as I dismissed them then. We should be concerned about aggression, maltreatment, malnutrition and starvation everywhere. We should be especially concerned about small groups of people in our geographical area with whom we have a special affinity arising particularly out of their assistance during the Second World War.
We were told at the time that such an inquiry would harm our relationships with Indonesia. Some have said privately to me this morning that this motion will harm our relationships with Indonesia. I can only say that if such an expression of concern will harm our relationships with Indonesia or if an inquiry would have harmed them, those relationships are in a fairly parlous state. I have found that those who would complain about such a motion’s harming our relationships with Indonesia will support vigorously the right of this Parliament to investigate the abuse of civil rights in the Soviet Union. A report on that matter will shortly be brought down by Senator Wheeldon and no doubt it will cause some difficulties in some of our relationships with the Soviet Union. But as a parliament or a nation we cannot allow our relationships with Indonesia or with anyone else to affect our rights and duties as parliamentarians and as humanitarians to report to the people of this community, to present to the people of this community, our concern about what is happening on our doorstep, to speak up for the people of East Timor and to request that something be done.
A further argument used against the establishment of a Senate select committee was that it would inhibit the delivery of aid to East Timor and the ability of refugees to leave East Timor. This argument was put very strongly. The simple fact is that more than two years later aid has not reached many of the Timorese and is still not reaching them, that the land has been devastated and that refugees in Australia, particularly those in the Northern Territory, who seek to be reunited with their relatives from East Timor have been unable to get their relatives out of East Timor. We have heard repeated stories of obstruction of families leaving East Timor to rejoin their families in Australia. We have heard repeated stories of families having to pay large sums of money to get out of East Timor despite the willingness of this country to accept them. All those arguments which were used against the establishment of a Senate select committee in 1977 have been shown to be false. All those arguments about our concern for our relationships with Indonesia and for how our actions may affect what happens in East Timor have been shown to have had no effect.
We may as well have gone ahead with the inquiry; we may as well have had a Senate select committee. I suggest that our knowledge would have been greater. I suggest that our expressed concern would have had more effect on the Indonesian Government than our relative silence since then has had. We would have been able to vet continuously the reports which have come out of East Timor and which have been collected by people such as Jim Dunn. He is known to everyone in this Parliament and is a former consul in Dili. He is a man who has great knowledge about the situation, who has collated and painstakingly collected data on the subject and who carefully collects the reports that come in. We would perhaps have taken more note of the July report of the Australian Council for Overseas Aid, a responsible body, which expressed concern about the aid as it was then going to East Timor via the Indonesian Red Cross. The report summarised some of the problems that the Council found were happening in the area. It said that all aid had gone to the areas under Indonesian control only, that Indonesia was very reluctant to admit foreigners and that, when they have been there, their visits have been brief and restricted. The report added that all of the aid had been sought and given for emergency relief, not for production and reconstruction; that no thorough, independent assessment of the needs had taken place; that there had been no supervision of distribution, no implementation of an autonomous program, no evaluation of the Indonesian Government’s aid program; that all of the grants had been made to the Indonesian Red Cross for its program. The report added that the Australian Government’s aid was lacking not in quantity but in the management of its distribution. At that stage the International Committee of the Red Cross had not been admitted to East Timor. An example is given of what happened when an Indonesian Red Cross truck arrived at Remexio in September 1978 while the foreign ambassadors were there, in these terms
As people rushed to receive the first clothes and nutritious food they had seen for months, home guardsmen using sticks and stones tried to form them into queues. Even so there were only enough supplies for half of them.
Another report states:
For example, in March 1979, five tons of corn were delivered to Maubisse where more than 6,000 people had been waiting for it for five weeks.
That report adds:
If there is any food at all (for very hungry and sick new arrivals), it is usually very little and comes very late. Which makes the whole aid program actual meaningless.
The report goes on to talk about the massive corruption that is associated with aid. Others have told of difficulties in East Timor. Reports have come from all sorts of sources, but I suppose that it was only when Peter Rodgers wrote his articles, which appeared in the Sydney Morning Herald, the Age and other newspapers, and produced pictures- pictures which are becoming increasingly familiar from all parts of the world- of starving people, of people sick and without care, that the great severity of the problems was brought home to most of us. Mr Rodgers quotes such people as Mr Frank Carlin, the regional director of Catholic Relief Services, who described the intensity of the East Timor problem as- . . greater than anything I have seen in 14 years of relief work in Asia- here you see so many malnourished children that it becomes the norm. In our collective experience . . . this is the worst we have ever seen.
Mr Rodgers notes that officials of the International Red Cross are more wary about assessing the East Timor situation; that clearly they are sensitive to the fact that for almost four years the Indonesian Government has refused them access to East Timor.
This motion merely asks the members of this House to express to the Indonesian Government their concern about what has happened in East Timor since December 1975, when the Indonesians invaded, and July 1976, when the area was incorporated into Indonesia. Certainly, it is a belated call for this Parliament to express its concern officially. Certainly we had the ability to do this in the past, in 1977. We did not choose to do so because, apparently, of the view that it would be better for the people of East Timor if we did not. The time has come for us to express our concern officially. Individuals have been doing it for three years. We should do it collectively now as a Parliament. The simple fact of the matter is that East Timor comprises a tiny area with a population of 600,000. It is easily accessible to Indonesia and to Australia. It is an area to which we could have given aid, food and medical care to prevent the present catastrophy from happening. We were prevented from doing so by the actions of the Indonesian Government and, because of restrictive access to the area imposed by that Government, by our lack of knowledge concerning what was happening. It is for these reasons that I believe the Senate should express the concern set out in the motion.
– Every member of this Senate is acutely concerned about the present plight of the people of East Timor, both with regard to their lack of adequate food supplies, their malnutrition and the combination of that with threats to their health. We have expressed, in the strongest terms, not only our concern but also our practical support. Today Australia can say that it has moved quickly to supply to Timor remedial aid and huge quantities of supplies; huge in the sense that our efforts exceed the rest of the world put together, although that should not be simply a measure.
I speak not only for the Government but also to the people of Timor because I have a debt of gratitude to them as I have lived and worked amongst them. I know them. I have an affection for them. I have personally experienced the living conditions of the people, not only of the Lesser Sunda group of the archipelago but also of Indonesia itself. I speak in both those capacities with a considerable knowledge of the islands. It is one thing to turn the whole force of this Parliament and this Senate towards efforts to relieve the plight of the people of Timor- we dedicate ourselves to that- but it is quite another thing at this delicate and sensitive time to see this matter not as a motion, to be concerned about the people of East Timor and to give them real aid. The Government back benchers will support that motion wholeheartedly. This is a completely wrong headed approach at this moment. This motion does not do that at all. It seeks to give a gratuitous berating to the Indonesian Government about the defects of the past. These defects Senator Grimes and his Party must bear heavily because day by day they admit that their then Leader, Mr Whitlam, behaved wrongly at that time. So at a time when something could have been done on an international level to deal with the future independence of the Timorese people those who are delivering gratuitous lectures today and who are doing positive damage by so doing were then, in fact, allowing this situation to occur. Indeed, they were concurring with it on the side. No one is seeking to be defensive about the Indonesian Government’s actions of the past. The present Government has consistently made it clear that it did not approve of the manner of incorporation of East Timor into Indonesia. I want to say, with all the force I can, that at a time when our main and, indeed, our sole task should be to help the Indonesian people save their lives and restore their health, it is grossly unhelpful, to do things- when we are demanding and seeking the co-operation of the Indonesian Government and its people- which could be insensitive and could destroy the effects we make. I say that in order to concentrate the problem on where it should stand. If there are motes in the eye on this business, then let us go back in history. Historically this has always been a beleaguered and embattled area with, in fact, a very primitive colonisation. This area in terms of its capacity for subsistence, has a very poor agricultural base and a very poor subsistence level. This is an area which has had empires controlling it over the years and the colonial development was negligible.
It is sad that when the Portuguese left Timor they left it without an infrastructure capable of self-sustenance. They left it in a point of civil war and they left it basically without any medical or health structure. That is the background in which this situation has occurred. Emotive phrases are used by Senator Grimes when he says: ‘Without the benefit of medical aid’. I read, although I cannot confirm it, that at the time the Portuguese left Timor there was something like one doctor for the whole of the colony. My understanding is that in the 13 prefectures now, there are two nurses per prefecture, and there is one doctor per prefecture which is vastly better than before. This may not be enough. Indeed, it was the Western world which brought most of the diseases to Timor which we now have to combat, particularly the diseases of the respiratory system.
I remind the Senate that an American Congress committee which visited Timor several years ago was able to say that there was evidence that Indonesia was making very significant efforts to help in this regard. Since we are looking at the question of what has happened there, I remind the Senate that in 1973 under Portuguese colonisation, the Portuguese budget for Timor was $A 10.1m of which $4.6m came from Portugal and the balance from Timor. By 1975 it was $ 14.7m, part from Timor and part from Portugal. If there is to be a measure, I remind the Senate that in the period October 1976 to March 1978 the Indonesian Government allocated $ 17.1m; from April 1978 to March 1979, $15m; from April 1979 to March 1980, $19.5m-a total of outside help of $5 1.6m. Demonstrably this is not enough, but it is far more than was provided before especially taking into consideration the population of 600,000 people. The fundamental difficulties are that although it has a small population, the nature of the terrain, the dispersal of the people and the independent tribes, make it very difficult to deliver the essential commodities and medical supplies. Without in any way denying that there is a massive need for the world and particularly Australia to help, I must say that we have been totally selective about Timor. This is one of the great dangers of foreign policy selectivity. Sadly enough we pick on some particular country. We do that in Africa quite regularly and do not notice what is going on around. Suddenly there is total evidence throughout the Lesser Sunda group, which is east of Bali, through Lombok, Sumba, Sumbawa, Flores, Amboyna, Roti Timor and Timorlaut- those islands are very well known to me- that there is a lack of basic food supplies particularly when there are bad seasons and there have been bad seasons. Senator Robertson smiles, but he cannot -
-I am not smiling. I am absolutely disgusted with your attitude.
-The honourable senator was smiling. My attitude is very simple indeed. I am totally pledged to the relief and help of the Timorese people. This is the classic kind of cynicism. The only people who were willing to stand by and help in the annexation of East Timor were members of the Whitlam Labor Party, of which Senator Robertson was a member. Every day in the week members of the Labor Party would get up, as Senator Gietzelt as its spokesman has done repeatedly, and say: ‘We do not support Mr Whitlam in his help’. He was their leader. In 1974-75 when Mr Whitlam was their leader there was the most devastating silence by members of the Labor Party and now, because they want to cover up for their own failures, they are saying these things.
Let me make it perfectly clear- no amount of shouting by honourable senators opposite will do this-that the Commonwealth Government, my Government, has made it clear that we do not condone annexation by the method in which it was done. We have never condoned it, whereas the Labor Leader not only condoned it but apparently encouraged it. Although the Labor Party stood by and allowed this neglect to occur, we are saying that the problem today is the plight of the people and that we should not aggravate the relationship between government and the people. We in our time of office have moved in and managed to persuade- others have also managed to persuade- the Indonesian Government to let in the International Red Cross and outside help to get things going in that country. We are doing things. The Labor Party is screaming to cover up the errors of its past.
In terms of its selective foreign policy I have not heard members of the Labor Party- I include Senator Robertson- get up and point to the fact that we have a responsibility for the people in Lombok. Reports have stated that approximately 70,000 people there are at starvation level. We should be looking at the situation in Flores, Amboyna and similar places, but we chose selectively to pick one area because we want a selective foreign policy. Tragically the fact of the matter is that it is an area in which, over the centuries, people have found it hard to feed themselves. We as an affluent country look at Indonesia and imagine that it has the treasures- as we have- to help its people. Sadly, Indonesia has enormous problems of sustenance for its people, and therefore we cannot measure things in that way.
I have pointed out that, compared with its help for other areas, its budgetary help to the people of East Timor is significant and favourable. We have not condoned what has happened. Anyone who is seriously interested in the welfare of the Timorese people should concentrate his or her energies on helping them. This Government has been doing that since 1975. It has given a total of $4m in aid, and that is more than the total amount given by all other countries. It has offered practical help and has been active in trying to get the International Red Cross into the country. The Indonesian Red Cross and the International Red Cross are working with the Indonesian Government in Timor to solve the immediate problems.
In addition to our direct help the Australian Government has made Australians’ contributions to the Red Cross tax deductible. There are means available for this deductibility to be applied to other donations channelled through the Australian Red Cross. We must keep in mind that, whilst the present situation has features which require special efforts, East Timor has always been subject to famine and disease. In the surrounding areas malaria, tuberculosis and malnutrition are sadly endemic. However, that is no excuse for our not helping. The colonial regime did virtually nothing to develop the territory, and relief efforts are made harder by the need to provide a basic economic, social and health infrastructure. We have before us a situation in relation to which we must get our priorities right. The priority is the people situated north of us who are suffering from a combination of disease and malnutrition. Unhappily I observed these conditions over a considerable period of my life, so I know what the problems are. I know the effects of poor diet and disease in combination or as separate factors. We must, of course, act. We are in fact acting.
Instead of bringing forward a debate on how we can help the Timorese people more, the Labor Party has said: ‘How can we berate further the Indonesian Government?’ In doing so it has made the issue one of hiding its own disastrous failure at a time when something could have been done. Nothing could be more unhelpful at this time than this motion. I make it perfectly clear that the Government- to a person, to a senator- is totally concerned about the plight of the Indonesian people in Timor. It is eager to help them. The Government is parctically demonstrating its help, but it rejects the idea that it is helpful at this moment gratuitously to berate the Indonesian Government. We believe that that could positively harm the people of East Timor and cause disease and death. At the moment we want team work between the two governments. There has been ample time in the Senate to talk of the past history and the mistakes that have been made. It would be positively harmful to the people of East Timor to have this motion carried in its present form. Being fully concerned about the East Timor people and wanting to help them, under Standing Order 152,I move:
In respect of that motion, under Standing Orders, I move:
The Senate divided. (The President- Senator the Hon. Sir Condor Laucke)
Question so resolved in the affirmative.
That the question be not now put.
The Senate divided. (The President- Senator the Hon. Sir Condor Laucke)
-Standing Order 152.
Question so resolved in the affirmative.
– Does that mean that we can now continue to debate this matter and not have the gag applied?
– It was just decided not to have the question put.
– We will move to the next matter on the Business Paper which is the Presentation of Papers by Ministers. I call Senator Carrick.
– It is a bloody disgrace, Mr President.
- Mr President, I heard a statement made as to your chairmanship, that that’s a bloody disgrace. It was made by Senator Gietzelt. I draw your attention to it.
Honourable senators interjecting;
- Mr President, I realise the sensitivity of the Government on this matter, acting under instructions. But Senator Gietzelt referred to the procedure used by the Government and not to your chairmanship. I think that Senator Carrick well knows that. He can report that back to his colleagues in the Indonesian Embassy.
Honourable senators interjecting-
- Mr President, I draw your attention to the words: ‘He can report that back to his colleagues in the Indonesian Embassy’. That was said by the acting Leader of the Opposition, Senator Grimes. I find that remark utterly offensive. I ask for its withdrawal. While I am on my feet, I mention that I rose to a point of order in regard to Senator Gietzelt ‘s remarks because you, Mr President, had ruled and immediately following your ruling he made that statement. If indeed he did not make that statement in reference to your ruling, I fully understand and I would acknowledge that. In other words, I would not press that point of order if that was so, but I do the other.
– I also would point out that parliamentary language must at all times be observed in this place irrespective of the context of remarks. In respect of the second matter, I did not hear the remarks beyond the word ‘colleagues’, which I am told were ‘in the Indonesian Embassy’, which is offensive to the Minister. Senator Grimes, please withdraw that remark.
– I withdraw that remark.
– Pursuant to section 24 of the Australian Bureau of Statistics Act 1975, 1 present the Australian Statistics Advisory Council annual report for 1978-79.
– Pursuant to section 24 of the Australian Bureau of Statistics Act 1975, 1 present the Australian Bureau of Statistics annual report for 1978-79.
-by leave- I move:
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
– For the information of honourable senators, I present the text of a statement on the meeting of the Australian Education Council held in Perth on 25 and 26 October 1979.
-by leave- I move:
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
– Pursuant to section 47 of the Australian Overseas Projects Corporation Act 1978,I present the annual report of the Australian Overseas Projects Corporation of 1979.
– Pursuant to section 88 of the Export Finance and Insurance Corporation Act 1974-78, I present the annual report of the Export Finance and Insurance Corporation of 1979.
– Pursuant to section 30K of the Industries Assistance Commission Act 1973,I present the annual report of the Temporary Assistance Authority 1978-79, together with the text of a statement by the Minister for Business and Consumer Affairs relating to action taken on reports received during the year.
-by leave- I move:
I seek leave to continue my remarks later.
Leave granted, debate adjourned.
– Pursuant to section 45 of the Industries Assistance Commission Act 1973,I present the annual report of the Industries Assistance Commission for 1978-79, together with the text of a statement by the Minister for Business and Consumer Affairs relating to action taken on reports received during the year.
– Pursuant to section 44 of the Commonwealth Serum Laboratories Act 1 96 1 , I present the annual report of the Commonwealth Serum Laboratories Commission for 1978-79.
– For the information of honourable senators I present the interim report of the Defence Services Homes Corporation on operations under the Defence Services Homes Act for the year ended 30 June 1979. The final report cannot be presented until the form of the final statements has been decided by the Minister for Finance and the report of the Auditor-General on those statements is available. Honourable senators will recall that an interim report for 1977-78 was tabled on 21 November 1978. Notification of the approved form of the financial statements for that year and the report of the Auditor-General have been received. The final report is now being printed. I hope to be in a position to table the 1977-78 final report of the Corporation before the end of the current parliamentary sittings.
– For the information of honourable senators I present the fifth report of the Poultry Research Advisory Committee 1977-79.
– by leave- I move:
I have not had time to have a look at the report. I would advise people who are interested in the poultry industry, not only the poultry farmers, but also the people who are in charge of any legislation dealing with the poultry industry, to read this report thoroughly. I advise them to take cognizance of the work that is done by the Poultry Research Advisory Committee and to give very serious thought to this before any legislation is introduced which might have some detrimental effect on the poultry industry. I seek leave to continue my remarks later.
Leave granted; debate adjourned.
– Pursuant to section 28 of the Oilseeds Levy Collection and Research Act 1977, I present the annual report of the Oilseeds Research Committee 1979.
– by leave- I move:
That the Senate take note of the paper.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
– For the information of honourable senators I present the resolutions of the 107th meeting of the Australian Agricultural Council 1979.
– by leave- I move:
That the Senate take note of the paper.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
-Minister for Science and the Environment)- Pursuant to section 53 of the Home Savings Grant Act 1976 I present the interim annual report of the Department of Housing and Construction.
-Minister for Science and the Environment)- For the information of honourable senators I present the annual report of the Patent, Trade Marks and Designs Office 1978-79.
– Pursuant to section 102 of the Postal Services Act 1975 I present the annual report of the Australian Postal Commission 1978-79.
– For the information of honourable senators I present a direction to the Commissioner of the Australian Federal Police pursuant to sub-section 13(2) of the Australian Federal Police Act 1979.
-I present the report and transcript of the evidence from the Joint Committee on Foreign Affairs and Defence on its inquiry into human rights in the Soviet Union.
Ordered that the report be printed.
Senator WHEELDON (12.38)-by leave-I move:
That the Senate take not of the paper.
The report which is being tabled today in both Houses of the Australian Parliament is the result of an inquiry which took over two years which was undertaken by a sub-committee of the Joint Committee on Foreign Affairs and Defence. It is an inquiry into a controversial subject, but a subject of very great importance not only to the members of this Parliament but to the people of the Soviet Union and, I would venture to suggest, to the people of the whole world. It is an inquiry into the situation regarding the human rights of the people of the Soviet Union. The inquiry began in 1 977, initially with a decision by the Joint Committee on Foreign Affairs and Defence to inquire into the following matters:
The Status of Soviet Jewry- whether or not Jews in the Soviet Union are the victims of adverse discrimination in citizenship, in rights to religious practice, in rights to publish, communicate, travel, emigrate and organise.
After some discussion the sub-committee came to the opinion that this was too narrow a frame of reference; that the question of human rights within the Soviet Union went beyond the situation solely of the Jewish people although they did have particular problems. Subsequently on 18 October 1977, on the recommendation of the sub-committee, the full Joint Committee resolved to enlarge the terms of reference to the following topic:
Human rights in the Soviet Union bearing in mind Australia ‘s support for the principles contained in the Universal Declaration of Human Rights and the Final Act of the Helsinki Agreement.
This is the matter to which the sub-committee has applied itself for the past two years. This is the matter which is the subject of the report which is being tabled today. It may be askedindeed it has been asked- why it is that an Australian parliamentary committee should inquire into what could be described as the internal affairs of another country. Why is it that we should be looking at human rights within the Soviet Union, a country with which Australia has diplomatic and in many respects friendly relations? I speak on my own behalf, and I speak certainly on behalf of the members of the subcommittee, when I say that we believe it is completely proper that such an inquiry should be undertaken. We believe it is important that the Australian Parliament and the Australian people should be informed on the situation of human rights in the Soviet Union, for two major reasons. The first is that the Soviet Union is a super power. It is one of the two super powers, along with the United States of America. No country can avoid having relations with the super powers. No country can be secure so long as it believes that there is any threat of any kind whatsoever from either of the two super powers. It is much more important to know what is happening inside the United States of America and inside the Soviet Union than it is to know what is happening inside Bolivia or Uganda, or for that matter in Cambodia. However horrendous the events that are occurring in any of these smaller countries, the consequences of those events are in no way as important to the people of this country and to the people of the rest of the world as are the events which take place within the boundaries of the super powers, nor are the policies of those countries in any way as important or as significant or as potentially dangerous as the practices and policies of the super powers.
With regard to the other super power, the United States of America, nobody I think is going to argue that there have not been and still are deprivations of human rights within that country from time to time, as there are in all other countries. No country has a record free of any blemish in the sphere of human rights- no country whatsoever- and we are not saying that that is the case. No human institution is perfect, no government is perfect, no nation is perfect. But I do say that however critical any one may be of the United States of America and its policies and practices, we do not need to have an inquiry into that country in order to find out what is the situation with regard to human rights within the United States of America. We can read about the position of human rights in the United States of
America merely by buying Time magazine. We can listen to their own radio service, the Voice of America, and we will hear the Reverend Jesse Jackson and all sorts of other people talking about the situation of the Wilmington Ten and various deprivations of human rights within that country.
Whatever its faults may be, the United States is a relatively open society. Any of us can go there, any of us can look around for ourselves, any of us can talk to Americans who are free to come and go themselves, and many of them who have been here have complained about various aspects of the conduct of the Government of that country which they do not like. I am afraid I cannot say that of the Soviet Union. It is not an open society. It does not have an independent Press. It does not have an independent judiciary. One cannot learn from listening to Radio Moscow what is the situation inside the Soviet Union with regard to human rights. One cannot learn by reading the official publications that come from the Soviet Embassy, one cannot learn from reading Soviet newspapers in English or in any other language, what are the views of dissidents, what are the views of those who have some criticisms of that regime. That information can be obtained only by inquiries undertaken outside the official framework of the Soviet Union.
Apart from the importance of the Soviet Union as a super power, the other reason why we believe it is important to understand what is happening inside that country is that the Soviet Union is an evangelical super power. The Soviet Union is the centre of a world-wide ideological system, a system which I would venture to say they describe, not entirely accurately- I do not want to get into a debate about that- as Marxism-Leninism. The Soviet Union has as its declared policy the extension of the MarxistLeninist form of government throughout the whole of the world. Whatever they have not said, whatever they may have denied, whatever they may have been accused falsely of having said, there cannot be any doubt that, in any one of the major statements made by the Soviet Communist Party or the leaders of the Soviet State on any of their great occasions, they subscribe firmly to the view that the system of Government, the social system, the political system, the economic system, which applies in the Soviet Union is not only one which ought to be emulated elsewhere in the world but also is one which they propose to see is implemented throughout the rest of the world. Indeed they have said, as Mr Brezhnev himself has said, I think on more than one occasion, that in those countries which are in close proximity to the Soviet Union, where there is a similar form of government- countries such as Czechoslovakia, Bulgaria, Poland and so on- the Soviet Union has a right to see that they do not depart from that form of government, a doctrine which was not described by Mr Brezhnev in this way but which I think has been described accurately by others as the doctrine of limited sovereignty, the doctrine which justified the intervention by the Soviet armies into Hungary in 1956 and into Czechoslovakia in 1968.
I do not want to debate those matters again. But if there is a super power, if there is indeed any country which is actively pursuing the propagation of a system of government, a system of society, throughout the whole world, it is surely of importance to the people of the rest of the world to understand how that country behaves within its own borders. It is no use just looking at what they say; but if they say that with their system there will be greater freedoms, more democracy and greater justice than under the systems existing elsewhere in the world, surely all of us have a necessity to examine how they do conduct their own societies so see whether their words and the claims they make about superiority of their system and the desirability of that system being adopted by other countries is borne out by what one sees practiced within their own society.
The allegation has been made that this constitutes an interference in the internal affairs of another country, namely, the Soviet Union. I think I have already explained why I believe that it is . proper that there should be an inquiry, whether it is regarded as interference in the internal affairs of the Soviet Union or not. But one should not overlook the fact that the Soviet Union itself is far from loath to comment on the internal affairs of other countries. It does not do it by parliamentary committees. It is part of their system not to have parliamentary committees of the kind which exist within this country. But even the most enthusiastic and ardent admirer of the Soviet Union would not be able to deny that any broadcast on Radio Moscow, any word or line that appears within any Soviet publication, appears only because it accords with the policy and the intentions of the Soviet Government.
If an article appears in Pravda, which is the official organ of the communist party in the Soviet Union, that is an action by the Soviet Government. The Soviet Union has had a great deal to say about situations in a number of countries. It has commented at various forums on the conditions of Australian Aborigines; it has commented about what are alleged to be the brutalities and denials of civil rights by the United
Kingdom Government in Northern Ireland; it has talked at length about the situation of the black population of the United States, and indeed it is entitled to, because that is what we are doing. I believe the Soviet Union is entitled to do that. It is perfectly entitled to comment on all these matters. I would not resist its right to comment in any way on these matters. But it cannot have it both ways. If it is free to comment on the situation in Northern Ireland and the situation in the United States and the situation in Australia and the situation in Chile, as I believe it is entitled, then we are entitled to comment on the situation inside the Soviet Union. We have exactly no more and no less entitlement than it has.
An additional reason why I believe it is important that we should be examining the situation with regard to human rights within the Soviet Union is that the Soviet Union is a party to the Final Act of the Conference on Security and Co-operation in Europe which was dealt with in Helsinki in 1975. 1 think it is worthwhile noting that among the provisions of the Final Art of the so-called Helsinki Accord some of the following statements appear:
The participating States will respect human rights and fundamental freedoms including the freedom of thought, conscience, religion or belief, for all without distinction as to race, sex, language or religion.
They will promote and encourage the effective exercise of civil, political, economic, social, cultural and other rights and freedoms all of which derive from the inherent dignity of the human person and are essential for his free and full development.
The Soviet Union says that the Helsinki Accords are very important. It has complained that certain other countries are not carrying out the principles of the Helsinki Accords to which they are a party. I believe it is important that we should look at the record of the Soviet Union with regard to the Helsinki Accords to see whether the Soviet Union has been carrying out the provisions of those Accords in the conduct of its own government. There is one other thing which I think should also be mentioned. I refer to the question of detente. It is certainly not the purpose of the Sub-Committee or of its report to encourage armed conflict, rearmament or the use of neutron bombs or any other weapons. One ought to always bear in mind what it was that Mr Brezhnev himself, the General Secretary of the Soviet Communist Party and President of the Union of Soviet Socialist Republics, said about the significance of detente. He said that detente means a relaxation of military tension. It means taking steps towards universal disarmament. Let us assume that when he said that he meant that and intended to do that.
But Mr Brezhnev did not stop there. He went on to say that the relaxation of military tensions- detente- does not mean an end of the ideological struggle. He made that perfectly clear. He did not say that detente means that we will stop criticising the social and political systems of other countries. He did not say that we shall not take action to extend by means of persuasion, propaganda- if you want to call it that- or various ideological means MarxismLeninism throughout the world. But the Western countries, the democracries, have accepted the first part of the proposition concerning the relaxation of military tension but have done nothing about the second part concerning ideological struggle. In my view this is a serious dereliction of duty by democratic governments. If it is quite proper for the Soviet Union to point to the superiority of the Marxist-Leninist form of government over other forms of government, I believe it is equally proper for those who subscribe to a democratic parliamentary form of government to just as persistently advocate the superiority of the democratic parliamentary form of government over other forms of government.
Too many people who claim to be democratic and to support the parliamentary system adopt an attitude which can be described only as racist. They say that democracy is all right in Western Europe, Australia and New Zealand but that it does not work elsewhere. They say that because it did not work in Uganda it will not work anywhere else. They neglect the fact that the second largest country, India, with all of its vicissitudes, for over 30 years has remained one of the best functioning parliamentary democracies in the world. We know of all the problems it has had from time to time, but whatever Mrs Gandhi might have done at least when she was removed from office she was removed by an election. There is nothing strange about people living in a tropical country and being of a dark complexion which means that they cannot have a parliamentary system. India and Sri Lanka have shown that this can be done.
If the Soviet Union is to say that its system is superior we are also entitled to say that our system is superior. If the Soviet Union is entitled to point out imperfections in our system of government we are entitled to point out imperfections as we see them in its system of government. Let me take one example- this is not a subject in the matter of the report but it relates to it- of the ideological struggle. All of us have heard now for the last several years about the denials of civil liberties within West Germany, about the socalled Berufsverbot, about the provisions which stop people of certain political persuasions from holding various civil service appointments within that country. I certainly think that those provisions were mistaken. I do not believe that they were good laws, but one would think from listening to the propaganda which has been spread about the situation within West Germany, most of it coming from East Germany, that in West Germany severe restrictions are placed on one ‘s political activities but in East Germany it is Liberty Hall. I am sure that there are people firmly of this opinion. Why are they of this opinion? They are of that opinion because the Soviet Union and East Germany have taken the ideological struggle seriously. Despite the fact that the German Social Democratic Party, the fraternal party of my own Party, the Australian Labor Party, is illegal in East Germany, despite the fact that the parties which correspond to any of the other parties in Australia, whether the Liberal Party, the National Country Party or the Australian Democrats, are illegal within East Germany and are unable to function within East Germany and despite the fact that in West Germany all of the political parties are legal apart from those which actually advocate the policies of the former National Socialist Party, I do not believe that there is any doubt that many people throughout the world believe that somehow or other East Germany is more democratic than West Germany. This is because East Germany and the Soviet Union have persistently put forward the proposition that their system of government is better and they have set out to expose what they regard as weaknesses in the systems of other governments while we have not done the same thing.
Other criticisms have been made of this report. I refer particularly to some minority reports which were presented and which are included in the back of the report. I point out that none of those minority reports were made by any members of the Sub-Committee who heard evidence. The minority reports were made by members of the Joint Committee who were exercising their right which they have to submit minority reports. There was no dissent whatsoever from any of the members of the Sub-Committee. I will refer to one of the matters later. The one which I wish to refer to at the moment is a minority report from Mr Armitage M.P., Dr Blewett M.P. and Mr Scholes M.P. Their first criticism is that the report is one of inordinate length and repetitiveness. I am very pleased to learn that Mr Armitage, Dr Blewett and Mr Scholes have embraced a belief in the virtues of brevity. Without dwelling on that, I would like to say that in making a report of this kind the Sub-Committee was firmly of the opinion that any recommendations on a matter as serious as this should be backed up to the fullest possible extent by evidence, by reference to evidence and by arguments. Imagine what would happen if we came down with a six page report saying that we had looked at the matter and that the situation of human rights in the Soviet Union is unsatisfactory? What would have been said about the SubCommittee then? We would have been asked: Where is your evidence and argument? What is the backing for what you are saying?’ I apologise if those with more rapid minds than my own were able to pick up these points more quickly and did not need some of the repetitiveness which is alleged to be there. In my own view in order to satisfactorily establish the conclusions to which we came it was essential that we should include all of the material which is contained within the body of this report.
Sitting suspended from 1 to 2.15 p.m.
-Before the suspension of the sitting of the Senate, I was dealing with some of the objections which were raised in the minority report of Mr Armitage, Dr Blewett and Mr Scholes, concerning the nature of the inquiry conducted by the Sub-Committee on Human Rights in the Soviet Union of the Joint Committee of Foreign Affairs and Defence. I am referring, perhaps at some length, to these matters because I think they typify the sorts of objections which various people raised with the inquiry. Another objection raised was the difficulty the Sub-Committee experienced in obtaining evidence concerning the Soviet Union. It was suggested, therefore, that it was not proper for the Australian Parliament to make decisions on the matter without having obtained that evidence. I reject that suggestion. Indeed, I think that it is the practice of the Parliament constantly to reject it.
This very day, as I understand it, in both Houses of Parliament- certainly in the Senate- a debate has been held on the situation in East Timor. That was held quite properly; I am all in favour of it having been held. Certain statements were made- properly made, I also believe- but they were not made as a result of the committee of inquiry of the Australian Parliament having investigated the situation in East Timor and having taken evidence from people who made allegations about that country. Certain matters do tend to become common knowledge. In fact, only last month I was in London attending what was described as an international legal colloquium on the position of Soviet Jewry. The people who took part in the colloquium, apart from me, were all distinguished lawyers- some were practising politicians, some practising lawyers and some academic lawyers. Very few, if any, of them were Jewish and, for the most part, they were to the Left.
Among the people who took part were: Mr Ramsey Clark, a former Attorney-General of the United States of America, not generally regarded as the spearhead of the John Birch Society; Lord Lloyd of Hampstead, Professor of Law at the University of London, a Labour life peer; the President of the French Criminal Court; the President of the Paris Bar; the VicePresident of the French League of Human Rights; the Professor of Law at the University Rene Descartes; Monsieur Gaston Monnerville, a former President of the French Senate, a leading French left wing politician and a resistance leader during the Second World War; a professor of law from the University of Mexico, Spanish by birth, a refugee from Franco’s Spain; from Great Britain, the Rt Hon. Peter Archer, Q.C., M.P., Solicitor-General in the recent Labour Government; Mr Stig Gustafsson, Professor of Law in Stockholm, a Labour member of the Swedish Parliament; Professor Federico Mancini, an eminent Italian Jurist and a member of the Central Committee of the Italian Socialist Party; Senator Umberto Terracini, a Communist Party member of the Italian Senate, a leader of the partisans during the anti-fascist resistance.
In fact Senator Terracini the Italian Communist Party senator, pointed out in his remarks that the treatment of Soviet Jewry deserved particular study and was so outrageous that it told one not only something about the situation of Jews but also something about the situation of the whole Soviet society. That was not said by somebody from the Central Intelligence Agency; that was said by a member of the Italian Communist Party, a veteran Italian working class leader, a veteran leader of the Italian anti-fascist movement who took up arms against Mussolini. Indeed, the colloquium concluded: . . that Soviet Jews wishing to leave the Soviet Union had been consistently subjected to harassment and other forms of maltreatment and that their human rights had been denied, Soviet law and procedure infringed, and unwarranted punishments inflicted. Although during the last year there has been an increase in the number of Jews allowed to leave the Soviet Union, this Second Colloquium . . has found the basic situation unchanged and in some respects it has even worsened.
Participants in this Colloquium-
That is, Lord Lloyd of Hampstead, the Communist senator and all the other people I have mentioned, without dissent-
Are dismayed, especially against the background of the tragedy experienced by Jews in this century that a wave of antisemitism is inspired officially -
That is endorsed by an Italian communist senator- by the USSR, which employs to this end books and all possible media facilities even including the distribution of Soviet antisemitic publications in foreign countries. Such antisemitism is an illegal manifestation of religious and racist discrimination both by international and Soviet law. The pursuit of such an antisemitic campaign is intolerable.
Those were the findings of that group of Leftofcentre to Left, mainly non-Jewish, lawyers and politicians who gathered in London. I raise another criticism which was made in the minority report and which I do not entirely follow. It is a matter which was not raised in the SubCommittee, so I do not know to which organisations the authors of the minority report are referring. They state:
It should also be noted that the pattern of witnesses, which came before the inquiry, was partly due to the active participation of certain international groups, in conflict, with just cause, with the Soviet Union.
I do not know whom they mean. I do not know whether they have in mind the CIA, the Masonic Lodge, the Ku Klux Klan or the Elders of Zion. I have not been given the benefit of the information which they apparently have on the matter. In Appendix H to the report we mention some organisations which assisted in the travelling to Australia and the accommodation of witnesses who gave evidence before the SubCommittee. They included: The Latvian Evangelical Lutheran Church of Australia, the Latvian Relief Society of Australia, the Ukranian Committee for the Defence of Human Rights, Victorian Division, the Latvian Federation of Australia and New Zealand, the Russian Orthodox Brotherhood of Australia and the Executive Council of Australian Jewry. What a terrifying sextet! Indeed, one can well wonder that the Soviet Union would be trembling when it has the Latvian Evangelical Lutheran Church arraying all its might against the Soviet Union and its allies! I do not know- I dare say that later they will explain this- which international organisations they had in mind, but those were the only organisations to which they referred.
I mention again in passing, with regard to evidence, that twice I wrote to the Soviet Ambassador inviting him to give evidence before the Committee and twice I failed to receive a reply. I made approaches to a number of people, whom I do not care to name because I do not want to be accused of a form of McCarthyism. I know that they have expressed opinions favourable to the Soviet Union in and out of season. I invited them to come along and say a few words to the SubCommittee. Not one of them appeared. One of them did write back and say that he was not prepared to be associated with me and my imperialist activities. He is the only one of all of them who had the courtesy to reply.
What is very interesting is that all of us know that there are a lot of organisations whose full time occupation is telling us of the benefits of the Soviet way of life and the virtues of Soviet policy. There is the World Peace Council, the World Federation of Trade Unions, the International Association of Democratic Lawyers and many other such organisations. We are all familiar with people and organisations in Australia who have warm, friendly feelings about the Soviet Union and who believe that it is a pack of lies to suggest that there is any infringement of human rights there. But not one witness came from anywhere to support that claim. Not only did they not come from the Soviet Embassy; not one person, not one single, solitary soul, was prepared to come before the Sub-Committee and say one word of praise or commendation or excuse about the record of the Soviet Union with regard to human rights. It is not because we did not try to get witnesses; it is not because those who were interested in the matter were not only too well aware that such an inquiry was taking place -
– Did they take you seriously?
– I think they took us very seriously indeed. It is not that the Soviet Union is loath to provide information. I understand that when an inquiry into the presence of the Soviet Union in the Indian Ocean was conducted by a Senate committee the Soviet Embassy was happy to provide information to that committee. So it is not as if the Soviets have a principle which disqualifies Australian parliamentary committees from inquiring into Soviet activities.
During the course of the evidence that the Committee heard from some people to whom I will refer in a moment, we learnt, I believe to my satisfaction- it would have been to the satisfaction of any reasonable person- that 300 dissidents are held quite improperly at any one time in Soviet psychiatric institutions, that their only psychiatric disorder is to be critical of the Soviet Union and that they include many eminent Soviet citizens. Among them is Major-General Grigorenko, one of the most decorated veterans, if not the most decorated veteran, of the Red Army in the Second World War, a major-general in the Soviet Army and a lifetime member of the Soviet Communist Party. We learnt that contrary to the Helsinki Accords, to which the Soviet Union is a party, there is not freedom of religion, there is not freedom of speech, there is not freedom of assembly and there is not freedom of migration, even when it is a case of the reuniting of families.
Among the witnesses from whom we heard was Mr Leonid Plyushch, a Soviet citizen, a man who was allowed to leave the Soviet Union as a result of pressure which was applied by the French Left, by the French trade unions, by the French Communist Party, and who still described himself as a Marxist. There was Professor Voronel, an eminent physicist, a man of Jewish origin who had never practised the religion of Judaism, who did not speak Hebrew, who belonged to no Jewish organisations, who was not interested in going to Israel, but who, through the very fact that on his internal passport the word ‘Jew’ was printed, found it impossible to carry on his profession as a physicist. There was Mr Kalnins, a Latvian, a man born and bred in the Latvian Communist Party, whose father was one of the Latvian Red Guards who stormed the Winter Palace in 1917. He was another man who, because he was prepared to speak out on the rights of the Latvian national minority, of Latvian culture and of the Latvian language, found himself placed in the most awful situations which he described to us, which can be found in the transcript of evidence and which have now made it necessary for him to leave his own country of Latvia which he never wanted to leave and to which he wants to return.
We referred to some other matters in the report. Indeed, some of the inquiries which we made are inquiries which one does not need to go anywhere to make. For example, one only has to read the Soviet Constitution to learn that although there purport to be within it guarantees, for example, of full employment, unlike other documents which are described as constitutions there is in it no remedy available to anybody who says that he is denied that employment which is guaranteed. There is no provision anywhere within the Soviet Constitution for any steps that can be taken by any citizen or any resident for the redress of grievances- none whatsoever. If someone believes that he has been falsely or improperly unemployed, there is no court to which he can go to direct some functionary to find him employment or to secure any of the other human rights which purport to be guaranteed by the Constitution.
We did not need to leave Australia to find evidence of the distribution of anti-semitic material. At a trade fair held in Melbourne last year the Soviet delegation was distributing two antisemitic books which I think any reasonable and sensitive person could describe only as obscene. One of the remarkable documents which was prepared and which shows the extent to which Soviet anti-semitism seems unfortunately to have gone, comes up with the old story that the New York ‘Jewish’ banking firm of Kuhn, Loeb and Co.- the New York ‘Zionist bankers’- were the people who are subsidising the State of Israel. By a curious coincidence- it is funny how antiSemites seem to say exactly the same thing from whichever direction they come- the Australian League of Rights was circulating at the same time a document in which it said that this apparently very versatile banking firm of Kuhn, Loeb and Co. financed the Russian Revolution in 1917!
– Didn’t it start World War Two!
– I think it has done a lot, and must be very busy about its business. The report of the Committee is long- I do not believe unduly long. The conclusions that the Committee has come to are conclusions which have been argued for and for which there is evidence that can be seen in the transcript which has been distributed. We make a further recommendation, that is, that there should be established by the Australian Parliament a permanent committee on human rights. Some members of the full Committee, not of the Sub-Committees, have expressed their opposition to that point of view on the grounds, amongst other things, that it could raise some antagonism amongst other countries. It is certainly the view of the Sub-Committee that whatever the virtues may be of inquiring into human rights in the Soviet Union- I believe it was probably more important than any other similar inquiry- we would be hypocrites if we were to inquire into human rights only in the Soviet Union and not in other countries. We all know that gross deprivations of human rights are taking place in countries throughout the worldserious deprivations of human rights- in Chile, in Bolivia and in Uganda. All over the world there are countries in which there are deprivations of human rights.
– In Timor. There are deprivations of human rights in our country- of course there are- in the United States and in Great Britain. In all of them there are deprivations of human rights. We believe that this is a matter of which everybody should be aware. If some government is infringing the human rights of its citzens, that is a fact which ought to be known to all because a country which denies human rights to its own citizens is not going to respect the human rights of the citizens of any other country. If, in the 1930s, politicians in countries such as Britain, France, the United States and Australia had paid a little more attention to the deprivations of human rights inside Germany, Italy and Spain and if they had seen the sorts of things that Hitler and Mussolini were doing to their own people, rather than looking at some of these governments as any other governments with which to have ordinary intergovernmental relations, they may well have been much better aware of what was likely to happen to them. In any case, if we believe that the preservation of human rights is a virtue, this is somebody we should not be afraid of upsetting somebody about. Nobody who needs to trade with us is going to stop trading with us because we have said something about their deprivation of human rights. If it is in their economic interest to trade with us, they will trade with us. If it is not in their economic interest to trade with us, they will not trade with us. What we say about human rights will not make the slightest difference one way or the other.
In any event, one way to assist in securing the spread of human rights to all the citizens of this planet is for the citizens in other countries to be aware of it. Senator Cavanagh asked whether they took the Committee seriously. Certainly the Tass office in Moscow took it sufficiently seriously to write a letter to the Canberra Times about it. I was challenged by a Tass correspondent as to how I would react if a committee of the Soviet Parliament were to inquire into Australian Aborigines. My reaction is that I would be delighted if a committee of the Soviet Parliament, or of any other parliament, were to inquire into the situation of Australian Aborigines. If it were to do so, I think that the Australian Government should assist any committee as far as possible in its inquiries. If we have nothing to be ashamed about, there is nothing to keep quiet about. If we have something to be ashamed about, it ought to be exposed.
My concluding words are, first, to thank my colleagues on the Sub-Committee and the members of the Joint Committee for the long hours and the hard work which they put in to bring down this report. I would like particularly to mention the Hon. Kim Beazley, who was the first chairman of the Committee and whom I succeeded after his retirement from the Parliament at the end of 1977. I would like particularly to pay tribute to Mr Claus Ducker, the secretary of the Sub-Committee, who worked on this matter well over and above the call of duty or the requirements of his employment. His conduct was exemplary and I believe that with such officers in the service of this Parliament the Committee will be able to inform itself adequately on a multiplicity of subjects.
I would only add that this report is not a clarion call for a cold war. Nothing in it suggests that, provided the military arrangements are satisfactory, strategic arms limitation talks should not proceed and be extended; that there should not be universal and complete disarmament, abolition of atomic weapons and all of the other things which we need if we are to live in a safe world. We are not talking about that. We are talking about a struggle of ideas between thosewhatever their views might be on economic policy, health services, nationalising banks or something else- who believe in a system in which there is freedom of assembly, freedom of speech and freedom of the people to change their government, and those who do not believe in those freedoms. It is an important struggle and one from which this Parliament should not abdicate.
– I intend to speak very briefly but would like to congratulate Senator Wheeldon, the Chairman of the Sub-Committee on Human Rights in the Soviet Union upon the tremendous work that he has done in producing this report, also the members of his committee including, from this chamber, Senator Sibraa, Senator Martin, and Senator Scott, who was originally also a member. I am glad that Senator Wheeldon mentioned that this inquiry got under way under the chairmanship of the Hon. Kim Beazley, who in those days set the standard which, as chairman, Senator Wheeldon followed.
There may be arguments, as Senator Wheeldon has said, concerning whether a committee of the Parliament should examine what people might regard as the internal affairs of another country. I do not think that is a relevant argument to use now. It has been suggested that this report is too long. I read the original draft and found it to be fascinating. It is well documented. As is essential in a report of this kind, the conclusions are supported by evidence. Neither the Sub-Committee, the Joint Committee on Foreign Affairs and Defence nor the Parliament could be left open to a charge of making allegations which could not be substantiated. I believe that the Sub-Committee has substantiated its allegations and findings. I know that, as the Sub-Committee has pointed out, under the czars Russia was not noted for its sensitivity about human rights. The situation has not changed. As Senator Wheeldon has said, the Committee’s first reference was the situation of the Jews in the Soviet Union and later that reference was widened.
The report deals at great length with the situation of people of the Jewish faith and persuasion in the Soviet Union. Some of the discriminations are crude, but many are very subtle. Because they are subtle they are no less effective when employed against these people. The report documents many cases in which subtle discrimination has been used to their disadvantage. One example, of course, is the use of the term Jew ‘ in a passport or document, a practice which brands the holder for all time as one who is somewhat separate from the rest of the community. We have a right to deplore such discrimination on grounds of race or religion.
At this stage I do not intend to say more, but I believe that the Senate and the Parliament are indebted to Senator Wheeldon and his SubCommittee for the tremendous job that they have done in producing this monumental report, which should be read by all honourable senators and members and, indeed, should be widely read in the community -
– By the community of Australia.
– By the community of Australia- I thank Senator Young- for a better understanding of the real problems of people who are denied what we regard as fundamental human rights. As Senator Wheeldon has said, no country is free of the charge of denial of human rights. We should all accept that. Like Senator Wheeldon, I would not be worried if the Soviet Union wanted to inquire into a section of the Australian public. I trust that the Australian Government would co-operate in such an inquiry.
– In view of this morning’s effort, would you be willing to let us conduct one into Indonesia?
– I do not want to get into that argument now.
– Of course you don’t.
– I have grave doubts about the advisability of going further with it, because it involves people of different cultures and traditions.
It is very easy for the honourable senator to suggest that, but perhaps Indonesia would conduct one into us too. The honourable senator might not find that very comfortable. However, we are not discussing that subject now. We are talking about this report, which I support. I seek leave to continue my remarks later.
Leave granted; debate adjourned.
-by leave- I table additional information which has been received by Estimates Committee D and seek leave for it to be incorporated in the Hansard record of the Committee’s proceedings.
Senator DURACK (Western AustraliaAttorneyGeneral) by leave- I am pleased to inform the Senate that Dr Donald Ernest Edgar has been appointed Director of the Institute of Family Studies. The appointment is for a period of seven years and Dr Edgar will be taking up the position in February 1980. The Institute is to be located in Melbourne.
As honourable senators may recall, the Institute of Family Studies is established by the Family Law Act 1975. Its functions are: To promote, by the encouragement and co-ordination of research and other appropriate means, the identification of, and development of understanding of, the factors affecting marital and family stability in Australia, with the object of promoting the protection of the family as the natural and fundamental group unit in society; and to advise and assist the Attorney-General in relation to the making of grants, out of moneys available under appropriations made by the Parliament, for the purposes related to the functions of the Institute and the supervising of the employment of grants so made.
Apart from its advisory role in relation to grants, I see the functions of the Institute as falling into two categories- those directed towards the understanding of factors, both positive and negative, that influence the family; and those aimed at promoting the protection of the family by the practical application of that understanding. There is a dearth of solid, well-researched information on the family in Australia. Although some limited research has been undertaken into isolated topics, it has not been co-ordinated and the results, if they found their way to influencing the practice of those who work with families, have tended to do so by accident.
Although it has regrettably taken longer than many of us would have liked, I see the establishment of the Institute as a landmark in the development of our understanding of what is happening to marriage and the family in Australia today. For the first time, we will have a multidisciplinary Institute sponsored by the Government, with the basic role of building up a reliable body of information about the strengths as well as the problems of the Australian family. In other words, it will be trying to identify now only what makes marriage and families go wrong, but what makes them go right. An equally important role is the dissemination of research findings in a usable and practical way to those who can make the best use of them.
The appointment of a Director, which is obviously the first step in getting the Institute under way, has not been without its problems. It was clear that the foundation Director would need to have the administrative capacity to establish the Institute. He or she would also need to be a social scientist of high standing with the ability to provide leadership and purpose to a multidisciplinary organisation. The Director would also need to have the personal qualities and standing required to maintain effective liaison with university and government departments and with national and overseas research organisations. The Institute was seen as too important to settle for second-best.
After an extensive advertising campaign in late 1 977, which attracted a large number of applicants from Australia and overseas, a prospective Director was selected but negotiations broke down. Shortly afterwards, a technical deficiency was discovered in the provisions of the Act relating to the appointment of the Director. Honourable senators will recall that this was one of the matters to which the Family Law Amendment Act 1979 was addressed. The position was readvertised and after an exhaustive selection process, the conclusion was reached that Dr Donald Edgar was eminently well-qualified for appointment. Dr Edgar is presently a Reader in Sociology at Latrobe University. He completed a Bachelor of Arts and a Master of Education at the University of Melbourne and then a Doctorate at Stanford University, California. During 1 968 and 1 969 he was an Assistant Professor and Research Associate at the University of Chicago and then from 1969 to 1971 a Senior Lecturer in Sociology at Monash University. He has held his present position since 1 972.
Dr Edgar has an excellent research record and has published several books concerned with social change in Australia, education and the family. He is Chairman of the Schools Commission-funded Country Education Planning Committee in Victoria; also, he is a member of the Australian National Commission for UNESCO and its Social Science Advisory Committee, and the UNESCO General Information Committee. Dr Edgar is married with two daughters. I am aware, from representations I have received, that the establishment of the Institute of Family Studies will be welcomed by most sections of the Australian community. I have no doubt that the Institute will assume immense social significance in the years to come. It will, I believe, establish itself as an authority which may be consulted by all who research or teach or work in the area of marriage and the family. I move:
– I want to say a few words on the statement brought down by the Attorney-General (Senator Durack) on this matter. It is now five years since the Family Law Act was instituted and there have been a great number of expressions of concern in the community at the time span between the presentation of the Bill, the passing of it by this Parliament and the setting up of the Institute of Family Studies. We recognise some of the difficulties with the technicalities of the Act and the amendments that were necessary for it to be possible for the Institute to be set up. Nevertheless we are disturbed at a general constant theme of submissions coming before the Joint Parliamentary Committee on the Family Law Act which has recognised the importance of such an Institute and at the dearth of information which is available in the community.
The Attorney-General in his statement has not mentioned the actual duties of Dr Edgar and we would hope that, as well as advising and assisting the Attorney-General in relation to making grants, there will be provision for the setting up of research sectors within the Institute itself, so that the Institute will be entirely independent in some areas for its own research. We hope that Dr Edgar will not only promote the encouragement and co-ordination of research but also that he will be responsible for bringing to the attention, not only of this Parliament but also to the people of Australia the very important things that are at issue with our family situation. We have been unable, on many occasions, to obtain information which we considered vitally necessary for the presentation of a report to this Parliament because no one has been doing any research in this area. The appointment is at least a start.
I have to come back to the statement that I originally made. It is now five years since the Act was instituted. The appointment not being taken up until February means that we have another three months time lag and there will, of necessity, be something like 12 months before the Institute will, in actual fact, be able to provide us with figures which we consider to be of vital importance for our community life.
-I would like to make some brief remarks about this appointment. I welcome it very much and likewise with Senator Coleman, who is a member of the Joint Parliamentary Committee on the Family Law Act, I have had the opportunity to appreciate the loss which we have had in the lack of studies in this area and the lack of co-ordination. I did not quite understand Senator Coleman in her fears that Dr Edgar and the Institute of Family Studies would not be doing the studies. It seems to me that is the very purpose of it. There is not only the studies it does itself, but also there is the co-ordination of other studies that are going on in the community. They are directed towards filling in the gaps and showing how we are going in this family law area. As Senator Coleman has said, we have lacked this facility very considerably in the last few years. As a Committee, looking at the Family Law Act and its operation, we cannot answer some questions. The fact is that the study material is not there. The collection of the results of legal research and the sociological impact of these matters are just not there for the moment to be commented on. Unquestionably this is something which ought to be done now.
I have not had the pleasure of knowing Dr Edgar, but I have no doubt that, with the qualifications he appears to have, he is eminently suited for the task he faces. I think it is important that he move into this task well established with staff and with facilities. In fact, it should not be anything like a one-man band. It should not start off like, unfortunately, the Family Law Act which started off under-staffed. That has been the problem we have had for some years. We should not have this Institute without having proper staff. It should be properly staffed to enable the members to get down to the job and make up for some of the lost time. I welcome very much this appointment, which has been carried out with great care and great consideration. I look forward to a very successful start to the life of the Institute. I seek leave to continue my remarks later.
Leave granted; debate adjourned.
Bills received from the House of Representatives.
Motion (by Senator Chaney) agreed to:
That so much of the Standing Orders be suspended as would prevent the questions with regard to the several stages for the passage through the Senate of the Bills being put in one motion at each stage and the consideration of such Bills together in the Committee of the Whole.
Ordered that the Bills may be taken through all their stages without delay.
Bills (on motion by Senator Chaney) read a first time.
– I move:
I seek leave to have the second reading speeches incorporated in Hansard.
The speeches read as follows:
Defence Amendment Bill 1979
The Bill amends the Defence Act 1903 to give the power to make standing appointments of officers to act as Chief of Defence Force Staff or a Service Chief of Staff during any absence of the holder of the relevant office. Legal advice is that such an amendment is necessary for this purpose.
Standing appointments are necessary to ensure that officers are available to act in any unexpected absence of the Chief of Defence Force Staff or a Chief of Staff.
The Bill will also expedite the payment to members of the Defence Force of approved increases in salaries and allowances and other financial benefits.
At present, salaries and allowances of members of the Defence Force are required to be prescribed in regulations made under the Defence Act 1903, the Naval Defence Act 1910 and the Air Force Act 1 923.
The Defence Force is the only area of Commonwealth employment where all financial benefits are required to be prescribed in regulations. There are over 480 regulations.
This requirement for the making of regulations has been and, indeed, continues to be, a source of considerable delay in the payment of these benefits.
This delay gives rise to problems.
No one should have to wait an inordinate length of time to have new or revised benefits paid. This is especially aggravating to the Defence Force, where frequent movement of members and their families is a feature of service life and there is a range of benefits provided in recompense. Adjustments to these benefits should be able to be paid quickly.
Another problem is that substantial delays result in administrative inefficiency because of the need to maintain and keep up-to-date records of payments that cannot be made until the regulations are amended. Frequently this takes many months.
A consequence of these problems is that the periods of retrospectivity which are inevitably involved attract criticism by the Senate Standing Committee on Regulations and Ordinances.
Attempts have, of course, been made to reduce these delays.
Special arrangements have been made with the Attorney-General’s Department for Statutory Rules applying wage indexation increases to be drafted without delay. However, changes to the wide range of other financial benefits have to compete with the drafting needs of other departments.
Another area of reform has been to replace separate regulations for each service with regulations having tri-service application. However, such consolidations are necessarily a slow process because of the need to continue with daytoday amendments and do not solve the problem of the extensive detail that has to be prescribed.
The Bill proposes to resolve these problems by empowering the Minister for Defence to make formal determinations of these financial benefits for members of the Defence Force. The Bill provides for the making of determinations to be notified in the Gazette and for the determinations to be laid before both Houses of the Parliament where they will be subject to disallowance, as is the present case with regulations.
I wish to make one matter clear. Nothing in the Bill is designed to alter in any way the policies governing the fixation of Defence Force pay and other financial benefits or the machinery by which fixation takes place.
The making of a determination will usually require the repeal of the corresponding regulation. This presents procedural difficulties that would, until all the regulations were replaced, continue the very delays that the proposed scheme is intended to eliminate.
Having regard to this problem and to the size of the task of replacing so many regulations, the Bill provides for an interim period during which the transition from regulations to determinations is to take place. The proposal is that the Minister for Defence, during the interim period only, will be authorised to amend or repeal such regulations by interim determinations. These determinations will also be subject to the procedure for notification, tabling and disallowance.
The Bill also makes formal drafting amendments to the Defence Act.
The Naval Defence Amendment Bill 1979 and the Air Force Amendment Bill 1979, which I will also introduce, will make amendments to the Naval Defence Act 1910 and the Air Force Act 1923, respectively, which apart from some formal drafting amendments, are purely consequential.
It is my belief that the revised procedures provided for in this Bill will not only speed up the payment to members of the Defence Force of changes in rates of, and other improvements to, financial benefits, but will also enhance the revision and consolidation of the existing law on this matter, a task which has hitherto been hampered by the regulation-making process.
I commend the Bill to honourable senators.
Naval Defence Amendment Bill 1979
As mentioned in the second reading speech on the Defence Amendment Bill 1979, the purpose of this Bill is to make amendments to the Naval Defence Act 1910, which are consequential on those proposed to be made to the Defence Act 1903 by the Defence Amendment Bill.
I commend the Bill to honourable senators.
Air Force Amendment Bill 1979
As mentioned in the second reading speech on the Defence Amendment Bill 1979, the purpose of this Bill is to make amendments to the Air Force Act 1923, which are consequential on those proposed to be made to the Defence Act 1 903 by the Defence Amendment Bill.
I commend the Bill to honourable senators.
Defence Force (Retirement and Death Benefits Amendments) Bill (No. 2) 1979
The primary purpose of this Bill is to rationalise in a beneficial way the provisions of the DFRB and DFRDB Acts relating to class ‘C invalidity retirees from the Defence Force.
Both Acts incorporate a three-tiered invalidity structure broadly reflecting the extent to which a retiree is handicapped by his retiring disabilities in gaining and maintaining civil employment.
Invalidity classification on retirement and subsequent reclassification procedures are based on an assessed percentage of incapacity in relation to civil employment. An assessment of sixty per cent or more attracts a class ‘A’ pension; thirty to fifty-nine per cent a class ‘B’ pension; and less than thirty per cent a class ‘C benefit which depending on the member’s length of service may comprise either a lump sum payment or a pension.
As the DFRDB Act stands at present a class A’ or ‘B’ pensioner reclassified ‘C who loses his pension status is ineligible for further reclassification even though a subsequent reduction in his capacity for civil employment may occur through deterioration in his retiring disabilities.
Clause 10 of the Bill seeks to rectify this anomaly by opening the way for further reclassification where appropriate. A minor amendment to the DFRB Act, effected by clause 4, makes it clear that similar arrangements are to apply in respect to comparable DFRB invalidity retirees.
Invalidity retirees with twenty or more years effective service who are initially classified ‘C’ on retirement receive a pension in lieu of the normal lump sum benefit. In essence they receive a pension for their long service rather than disablement which, because it attracts only a ‘C classification, is invariably of a minor nature.
The view has long been held that as they receive their pensions calculated on a length of service basis they should be permitted access to the commutation provisions in the same way as normal age retirement pensioners.
Clause 9 of the Bill provides that access; but for future initial class ‘C invalidity pensioners only. In practical terms they are to be treated as normal age retirement pensioners for commutation and various other purposes specified in the legislation, including the calculation of residual pension, reversionary benefits and annual pension increases. Obviously enough, there can be no question of any subsequent invalidity reclassification in their case.
I should explain that there are very sound practical reasons for not extending the commutation option to existing initially classified class C pensioners. They devolve from the effects of annual pension adjustments. Retrospective commutation opportunity must carry with it retrospective decrease in pension, and the effects would be most severe on those who chose not to commute. Only part of their pensions would be increased in the future.
In summary, the Bill reflects initiatives favoured by members of the defence force which are consistent with the basic benefits philosophy of the DFRDB Scheme. The amendments proposed do not, in any way, take away or reduce the rights of existing invalidity pensioners.
I commend the Bill to honourable senators.
Debate (on motion by Senator Grimes) adjourned.
Bill received from the House of Representatives.
Ordered that the Bill may be taken through all its stages without delay.
Bill (on motion by Senator Chaney) read a first time.
– I move:
I seek leave to have the second reading speech incorporated in Hansard.
– I remind honourable senators that when I use the first person personal pronoun it refers to the Minister for Productivity (Mr Macphee).
The speech read as follows-
Since the creation of a portfolio specifically directed to improving Australian productivity, the present Government has viewed the role of industrial property in this country as being essentially a mechanism for assisting Australian industrial development and, as such, included it in that portfolio. As the Minister responsible, I have previously introduced into the House of Representatives a number of Bills for the purpose of increasing the effectiveness of various aspects of industrial property legislation in assisting the development and performance of Australian industry. The present Bill represents a major step in the continuation of that process and I believe its introduction constitutes one of the most significant developments in the history of the Australian patent system.
Honourable senators may remember that Cabinet gave its approval earlier this year for Australian participation in the Patent Cooperation Treaty following the commencement of the operation of that Treaty on the first of June 1978. The introduction of the present Bill is intended to give effect to that decision by amending the Patents Act to bring Australian patent law into conformity with the provisions of the Treaty in order to permit accession to the Treaty by Australia later this year.
The amendment of the Patents Act necessary to provide the required conformity with the Patent Co-operation Treaty can be largely achieved by recognising patent applications lodged in accordance with the Treaty and seeking protection in Australia as applications under the Patents Act. Essentially, the Bill provides such amendment and its immediate result is therefore to introduce a further, optional procedure for applicants in lodging either an application for a standard patent or an application for a petty patent under the Patents Act. However, by permitting Australian accession to the Patent Co-operation Treaty, the consequence of the Bill will be a major modification of operation of the Australian patent system by introducing into that system the various operations provided under the Treaty. The Bill therefore has a significance extending far beyond the actual terms of its provisions and the purpose behind its introduction is to obtain for Australian inventors and industry the collective benefits available from the participation of the various countries party to the Treaty.
The question of Australian accession to the Treaty has been widely canvassed amongst interested parties. Without exception, Australian industry has appreciated the benefits to be obtained from participation in the Treaty and expressed unqualified support for Australian accession. Within some other quarters, however, individual elements have viewed the Patent Cooperation Treaty as an unwelcome development and the prospect of Australian accession as a misconceived political intrusion into the functioning of the patent system. Personally, I believe such opposition as has arisen has been motivated more by a fearfulness in coping with change rather than an objective assessment of the consequences of the changes involved. Nevertheless, the effects of the Patent Co-operation Treaty on the Australian patent system are potentially so important that a clear understanding of operation of the Treaty is required. Accordingly, in order to enable the significance of this Bill to be properly appreciated, it is appropriate, I think, to summarise briefly the background and operation of the Treaty.
Essentially the Patent Co-operation Treaty -or to introduce its more convenient abbreviation, the PCT- represents the first internationally accepted mechanism for rationalising the essential operations involved in the grant of patents by individual countries and having an acceptable degree of validity. That rationalisation is achieved through the collective adoption by the member countries of the procedures prescribed in the Treaty and its associated regulations. At the commencement of its operation, 1 8 countries were party to the Treaty. In the brief interval since then, a further six countries have acceded and there are now 24 participating countries. The participants include major industrialised countries, such as the United States of America, the countries constituting the European Economic Community, the Union of Soviet Socialist Republics and Japan; middle order countries of the kind to which Australia belongs, such as Sweden and Austria; major developing countries such as Brazil; and underdeveloped countries, such as Cameroon, Congo and Madagascar. Like Australia, a number of countries, including Canada, Spain and the Republic of Korea are either amending or considering amending their legislation for the purpose of acceding to the Treaty. Accordingly, notwithstanding the problems inherent in establishing any new co-operative enterprise, the degree of acceptance which the Treaty has already achieved virtually assures its role as the major vehicle for international co-operation in the processing of patents, as well as being a dominant factor in determining the course of future development of national patent systems throughout the world, including the Australian patent system.
Accession has acquired a special significance for Australia. At their meeting in Geneva earlier this year, the member countries approved the appointment of the Australian Patent Office as one of the major functional bodies created by the Treaty. In that role, the Australian Patent Office will join the European Patent Office, and the Patent Offices of the United States, USSR, Japan, Sweden and Austria in providing other member countries with the technical services established by the Treaty. Resulting from that decision, the specialised facilities and expertise developed by the Patent Office under the Treaty will also be available for utilisation by all Australian inventors as well as for the benefit of Australian industry. Moreover, in offering those facilities to applicants from other member countries- an offer which has, at least initially, been confined to developing countries- this country will be provided with a new facility for materially assisting such countries in introducing and operating effective patent systems with the resultant consequential benefits, not only for their own national development but also for Australian industry in exploiting its technology in those countries within the framework of an effective mechanism of protection.
The rationalisation of the operations of the patent systems of member countries which is achieved by the PCT affects four major areas involving operations which are basic to the provision of effective protection in any country in which a patent is sought. So far as the first area is concerned, the grant of a patent in any particular country is essentially dependent upon the sub.mision of a report for such grant. To date, the procedural operations of national patent systems have been independent to the extent that every country has required a separate application for the grant of protection in that country.
The PCT rationalises that procedure, firstly, by requiring each member country to adopt a uniform procedure and criteria in recognising applications invoking the Treaty and, secondly, by integrating the separate applications for each country in which protection is sought into a single application which is collectively effective as an individual application in every such country. As the international application under the PCT may be lodged in the patent office of the country in which he resides, the applicant is relieved of the necessity of communicating with overseas patent offices and complying with different and unfamiliar procedures before his application for protection is recognised as such. The benefits for Australian applicants desiring foreign patent protection are self-evident.
In the second phase, the PCT recognises the universal nature of the requirement that the validity of a patent is dependent upon whether the patented invention is new. And, since it is generally accepted that the grant of invalid patents significantly diminishes the effectiveness of a patent system, most countries providing such protection require each application to be subject to a prior determination as to whether the invention is new before a patent is granted. That determination is invariably based on a more, or less, extensive investigation of existing technical knowledge by the national Patent Office and an assessment of the patentability of the invention in the light of that knowledge.
In practice, the information determining the newness of an invention as regards its patentability in a particular country as well as the criteria upon which patentability is assessed, are essentially the same for every country. Accordingly, where protection is sought for an invention in a number of countries, the patent office of each country concerned effectively duplicates the same investigations and assessments in determining whether the invention is sufficiently new to be patentable in that country. The PCT eliminates such duplication by appointing a limited number of patent offices to undertake the investigation of prior technical disclosures for the purpose of determining the newness of the inventions in applications lodged under the Treaty and, if requested by the applicant, to provide an assessment of the patentability of the invention in the light of those investigations. The results of those investigations and assessments are supplied to all the member countries in which the applicant wishes to obtain protection.
Under the Treaty to date, six patent offices, designated as international searching authorities, have been appointed to undertake the investigation of technical disclosures relevant to determining the newness of an invention. A similar number of offices, designated as international preliminary examining authorities, have been appointed for assessing the patentability of an invention on the basis of the result of such investigation. Following accession, the Australian Patent Office will constitute both a Searching and an Examining Authority and authorised to perform the functions of those Authorities both for Australian applicants under the Treaty as well as applicants from developing countries. With the transfer of a major part of the operations of patent offices to searching authorities and preliminary examining authorities, the PCT is able to exploit a further rationalisation of the procedures involved in the prosecution of patent applications arising from the cost reduction achieved by eliminating the previous duplication of the operations transferred to those authorities.
The Treaty conveys benefits of that rationalisation to applicants by requiring the patent offices to the countries in which protection is sought to defer examination of applications lodged under the Treaty and by providing each applicant with the results of the investigation and assessment of the relevant searching and examining authorities prior to the commencement of examination. By virtue of that provision, applicants may avoid incurring the costs of prosecuting applications for which valid protection cannot be obtained. This procedure will not only benefit applicants, including Australian applicants, seeking protection through the medium of the PCT, it will also relieve patent offices, including the Australian Patent Office, of much of the load involved in unnecessarily examining applications which are inherently unpatentable.
Finally, the PCT rationalises the operations associated with the publication and dissemination of the technical details of the inventions which are sought to be protected through the Treaty. One of the basic features of a patent system is the disclosure of the technical details of patented inventions to the public, the purpose being, partly, to avoid infringement of patent monopolies but, primarily, to provide national industry with sufficient information to enable inventions to be freely exploited on expiry of the patent. Accordingly, where protection of an invention is sought in a number of countries, the patent office of each of those countries incurs the costs in producing for the benefit of the public the documents disclosing the technical details of that invention. The PCT eliminates the costs arising from that duplication by making a single authority responsible for the publishing and printing of applications lodged under the Treaty and for distributing the resultant documents to all member countries. To bring home the potential significance of this aspect of the Treaty, I need only point to the fact that approximately one million new patent documents are currently generated each year throughout the world. Those documents, however, involve something less than 400,000 different inventions. On the basis of those figures there is a potentially enormous cost-benefit to be obtained through utilisation of the PCT. When it is realised that approximately 90 per cent of Australian patent specifications involve inventions which are also published overseas, it is obvious that the Australian patent system is potentially a major beneficiary from this aspect of the PCT.
I hope that that necessarily brief and simplified explanation of the PCT will enable the significance of the present Bill to be fully appreciated. I apologise for taking the time of the Senate on this explanation; unfortunately, the technicalities of the Treaty are such that without some explanation the terms of the Treaty which are annexed to the Bill convey about as much information to an ordinary reader as a Chinese laundry ticket. However, even with the simplified explanation I have given, it should be evident that the PCT is essentially a mechanism for rationalising procedural features of the patent systems of member countries through mutual cooperation. As such, it involves no change to the philosophy on which those systems are based. In that respect, the Treaty merely implements longestablished principles governing international co-operation in industrial property. In so doing, however, one of its major results will be to increase the impact of those principles on the patent systems of member countries and part of the opposition to Australian accession derives from the presumed adverse nature of that impact on Australian industry.
The proponents of that view acknowledge the benefits of the Treaty in assisting Australian inventors to obtain increased protection in other countries. Conversely, however, they claim that the corresponding assistance given to overseas inventors will increase the number of Australian patents granted to overseas patentees. As a result of those patents, many overseas inventions previously published but not patented in Australia and which can therefore be freely utilised by Australian industry will no longer be accessible to industry. That objection raises the direct question of the effect of foreign participation on the Australian patent system. Just how significant this question is may be gauged from the fact that approximately 90 per cent of all Australian patents granted each year are granted to overseas patentees. However, since the argument also implies that patents themselves disadvantage Australian industry, it raises the much more basic issue of the value of the Australian patent system as a mechanism for assisting national development. These questions are not only too important to ignore, their answers bear directly on the present Bill since, by enabling Australia to accede to the PCT, one of the major purposes of the present Bill is to assist increased utilisation of the Australian patent system.
In answering these questions, it is important to note that by facilitating foreign participation in national patent systems, such as that of Australia, the PCT is designed to achieve in practice an objective that was recognised as inherently beneficial in principle almost one hundred years ago when the Paris Convention for the Protection of Industrial Property was introduced. The essential feature of that convention was, and still is, the commitment by each member country, to grant to the nationals of every other member country, the same treatment and protection under its national industrial property laws as it provides to its own nationals. So far as patents are concerned, that commitment reflects the acknowledgement by the member countries of the Convention that the effectiveness of the patent system of any country is primarily dependent upon the extent to which the system is utilised by inventors. Moreover, it also reflects the further recognition that the effectiveness of a patent system is in no way dependent upon the territorial origin of an invention or the nationality of a patentee and that those factors are essentially irrelevant to the operation of a patent system. The importance of the extent of utilisation in contributing to the effective operation of their patent systems is appreciated by most countries and is indicated by the fact that 88 countries are currently party to the Paris convention. Australia has been a member since 1 907 and the extent of the contribution made by overseas inventors to the effectiveness of the Australian patent system is evident from the fact that over 90 per cent of Australian patents granted annually are granted to patentees domiciled outside Australia. Not unexpectedly, Australia is not alone in this regard and, in practice, foreign participation is a significant and generally the dominant factor in determining the extent of utilisation of almost every national patent system.
The objection to increased participation by overseas applicants as diminishing the accessibility of foreign inventions to Australian industry is therefore, in principle, not an objection to the PCT, but a criticism of the effectiveness of the Australian patent system as a vehicle for assisting exploitation of inventions by Australian industry. In assessing the validity of such criticism, it should be understood that the essential justification for the grant of patents has always been considered to lie, primarily, in the assistance that the resultant exclusive monopolies provide for the commercial introduction and exploitation of new technology achieved, firstly, by the initial availability of a competition-free market to the owners of the technology and, secondly, by providing industry with unrestricted access to that technology on expiry of the monopoly through the publication of sufficient practical details by the Patent Office to permit utilisation of the technology. In my view, the motivation provided by the economic rewards obtainable from a commercial monopoly makes the patent system, in principle at least, the most effective incentive devised to date for the exploitation of new technology by industry. Naturally, the machinery of the patent system requires to be geared to the current needs of industry, for example, by providing protection consistent with the scope of modern technology or making available protection of a kind which can be economically exploited by industry. Such needs tend to change with time and it was the appreciation of such changing needs that formed the basis for my recent introduction of petty patents into the Australian patent system as an optional form of protection.
Ultimately, however, the measure of the effectiveness of a patent system is the extent to which new technology is adopted by industry. In this regard, it is a commonly overlooked feature of the patent system that the failure of patentees to work their inventions in Australia to a sufficient extent to satisfy the reasonable needs of the Australian public is an abuse of patent monopolies and, as such, a justification for depriving such patentees of their exclusive right to a monopoly or, in extreme cases, of their right to any monopoly whatsoever. Unfortunately, however, the question of whether Australian patents, particularly foreign-owned patents, are adequately exploited, or whether the provisions for preventing abuse of patent monopolies by insufficient working are satisfactory, are questions on which very little information is available. It is for the purpose of obtaining advice on important practical considerations such as these that I established the Industrial Property Advisory Committee and I would take this opportunity to indicate here that a review of the Australian patent system, oriented towards improving its practical effectiveness rather than the mere structure of its legislative framework, is a matter which I will be referring to the Committee for its early consideration. An approach of that kind represents a major departure from the basis of previous revisions and will inject a new dimension into such a review.
When it is appreciated that the role of the patent system is to assist national development, the real significance of the PCT to Australian industry becomes evident. Moreover, the fulfilment of that role is not limited to assisting the exploitation of new technology; the incentive provided by the potential rewards from such exploitation contributes to the generation of new technology by encouraging the creation of indigenous invention as well as the importation of overseas inventions. The patent system is thus pre-eminently an effective and dynamic mechanism for technology transfer in the full meaning of that much-abused term.
Unfortunately, the limited sense of values of some of the spokesmen opposing Australian participation in the PCT and the involvement of the Patent Office in its operations, is reflected in their evaluation of the Australian patent system on the basis of the concept of patents, individually, as social contracts rather than on the basis of the effect of patents, collectively, as a mechanism for promoting technological change. To treat the patent system as a mere aggregation of individual private rights is to ignore its capability for contributing to national economic development. The value of a patent system in assisting national development is well understood by most developing countries. The participation of a number of such countries in the PCT is based on their recognition of the value of the PCT as a means for introducing and operating an effective patent system where indigenous facilities and expertise to operate independent patent systems are lacking.
The appointment of the Australian Patent Office as a Searching and Examining Authority under the PCT creates a unique opportunity to assist developing countries, in particular English speaking countries, by providing the resources and expertise necessary for the adoption of an effective patent system. Such assistance has a particular significance for this country in view of its potential importance in encouraging regional co-operation and development. The capacity for rapid technological development in the Asian region has already been demonstrated by countries such as Japan, Taiwan and Korea. The SouthEast Asian countries are clearly on the threshold of similar development and in the embryonic stage of introducing patent systems. The PCT now provides these countries with a mechanism for adopting effective patent systems as well as offering Australia the opportunity for regional co-operation in the operation of those systems.
I think that the impact of the PCT on this country and the benefits of participation need no further elaboration. The Treaty has been described by overseas authorities as the most significant development in patent co-operation this century and there is no doubt that it is destined to play a decisive role in the future operation and development of national patent systems. At this early date, the Treaty provides only an optional procedure and its immediate impact will necessarily be restricted by the extent of its usage by applicants and the number of participating countries. However, with our commitment to its aims and our opportunity for benefiting from its operations, it is at this stage that this country should contribute to the implementation of the Treaty. This Bill constitutes the first step in that process. Accordingly, I commend the Bill to the Senate.
Debate (on motion by Senator Mcintosh) adjourned.
Motion (by Senator Chaney) proposed:
That, unless otherwise ordered, Government Business take precedence over General Business after 8 p.m. on Thursdays for the remainder of the present period of sittings.
-The Opposition, as it usually does, opposes this motion. We believe that it is absolutely unnecessary. We have no objection to returning to this Parliament and sitting in order to carry out the business of the Parliament in a normal manner and to carry out normal debate on important legislation. The Government finds itself in the situation of its business having to take precedence over General Business because of its own difficulties- because of the delay in introducing important legislation into another House and into this House and because of its failure to organise its program so that legislation can be debated and considered properly by this Parliament. We object to this procedure and honourable senators having their ability to debate matters of importance on General Business evening taken away.
– Has that always been your attitude?
– I have always and consistently objected to it, Senator.
– When you were in government?
-When the honourable senator was in Government previously he could have done something about it because he had the numbers but he did not care to do anything. We object because we are in a situation where this Government- it claims to be an efficient Government, to have its affairs in order and to know how to run this country- is in such a mess that it will have to rush Bills through this place and another place in the next two weeks so that various Ministers and others can get overseas and have their nice summer holiday. We do not intend to facilitate this. We intend to oppose this motion. We object to having the business of this country conducted in this way.
– I join with my acting leader, Senator Grimes, in objecting to this motion which has been put before the Senate. I agree with everything that Senator Grimes has outlined. I have one other objection that I want to outline. Thirteen months ago I gave notice of a motion which sought to refer to the Senate Standing Committee on National Resources for inquiry and report the matter of the fishing industry. That motion is still on the Notice Paper. This Government is not prepared to allow a motion such as that to be debated. Apparently the debate on it is to be held over until next year. This is not good enough.
Nearly every day we are finding that there are problems with the joint venture agreements that this Government is entering into in the fishing industry. These matters are being raised not only by members of my party but also by members of the Government, both in this place and in another place. Problems associated with the Commonwealth Government’s involvement in carrying out agreements are occurring, and we are not even privy to what is going on. The professional fishermen of this country wanted a public inquiry into the Commonwealth’s involvement in the fishing industry. I will read the terms of my motion which is still on the Notice Paper and which I brought into this chamber on 10 October 1978.
That the following matter be referred to the Standing Committee on National Resources: The Commonwealth’s responsibility for the development of the Australian fishing industry, following the declaration of a ‘200 mile off-shore sovereignty’.
Senator Baume took the adjournment on that motion which has been on the Notice Paper for 13 months. It was inadvertently taken off the Notice Paper in May of this year and I had to have it restored. Now we find that the Government does not want to debate the referral of this matter to the Senate Standing Committee on National Resources. That Committee has before it at the present time only one item of investigation, and that deals with energy. We will be commencing our public hearings on that reference tomorrow and when that inquiry is completed we will have nothing before us. It is most important to the professional fishermen of Australia that we proceed with this inquiry. What is the reason for the Government not bringing it forward? Why does it leave it as item No. 1 12 on the Notice Paper? Why does the Government not give this matter some priority? We could go ahead and get the staff operating and call for submissions. We could then get on with our inquiry as soon as we have finished the one that we are on. This matter is of grave importance.
I could quote from Hansard many questions that have been asked in the Parliament. I think I should mention one question which is very pertinent to this matter. I refer to an answer by Senator Webster to a question posed to him by Senator Primmer on 21 February 1979. The answer appears in the Senate Hansard of 7 February at page 262. The question concerned a joint fishing venture involving particularly squid fishing. Senator Webster said:
The project was approved in accordance with the guidelines for feasibility fishing adopted by the Australian Fisheries Council in January 1 978.
In today’s Australian Financial Review we find a different story. We find that Mr Fowler, who was the General Manager of Safcol in South Australia, attacked the Government’s policy on squid fishing, which is one of the few areas where successful joint ventures operate. He claimed that the Department of Primary Industry appeared to have gone berserk. All of these things which have been said about the fishing industry in Australia could be investigated if the Government gave this reference to the Committee. But it has decided to leave the reference motion on the Notice Paper; it will not allow it to be debated in the chamber. Now, for about the third Thursday in a row, the Government has moved a motion that Government Business take precedence over General Business. Yesterday I wrote out a whole list of matters which appear on the Notice Paper and in relation to which I have taken the adjournment. They concern reports that have been tabled in this Parliament and most of them deal with primary industry matters. Yet we are not given the chance to debate them.
Another matter I raised with Senator Chaney earlier was the fact that the Government always sees fit to introduce primary industry legislation into the Senate in the dying hours of” the Parliament. That will happen again this year. We will find that all of these important reports which deal with primary industry matters will lie on the Notice Paper until we come back next year. They will probably suffer the same fate as the motion which I moved for the holding of an inquiry into the fishing industry and which, as I said, has been on the Notice Paper for 13 months. We cannot bring the matter on for debate in the Senate so that the Senate can make a decision on whether the Senate Standing Committee on National Resources should go ahead and conduct an inquiry.
What will be the fate of that motion? Will the Government give an assurance today that it will bring on the matter on next week before the Parliament rises so that the Senate can make a decision on whether that reference ought to go to the Committee? Does the Government not want an inquiry into the fishing industry? Is it afraid to have an inquiry into the fishing industry because of all the criticism that has been levelled at it, the agreements that it has entered into, and the fact that the fishing industry is saying that the Department of Primary Industry has gone berserk? Australian fishermen are being sold out to overseas interests. Why cannot the Government let us get on with this inquiry? That is the matter that I raise. I could talk for another 53 minutes- I have time to do that- about all the reasons why we should oppose this motion. As I have said on many occasions, the Government is just using this place as a rubber stamp for the people who sit over on the other side of Kings Hall. The Senate is not a House of review. The Government cannot say that we are holding up its business. In the early hours of 19 October the Government forced the Senate to debate what it claimed to be an urgent Bill which to my knowledge has not yet been proclaimed. The Government kept us here until 3.10 in the morning. Some Opposition senators- I was one- said that the Government would not in future be given leave to incorporate second reading speeches or statements in Hansard. We have tried to cooperate with the Government but it has not cooperated with us. The other day I tried to have read the response to recommendations of the report of the Senate Standing Committee on Social Welfare. The Government Whip, Senator Baume, did cartwheels on the other side of the chamber. He did everything he could to see that the response was not read into Hansard and that it was incorporated. As I am the secretary of a committee, I was unfortunately away at 8 o’clock that evening when he was able to get the permission of the Leader of the Opposition (Senator Wriedt) to incorporate it in Hansard. If I had been here I would have refused that leave. Today we allowed the Government to incorporate second reading speeches in Hansard. But I give the Government fair warning that if it pursues this motion, if it does not agree to our objection and we do not proceed with General Business tonight, I will be one person who will refuse the Government leave for the rest of this session to incorporate any second reading speeches or statements in Hansard. That is fair warning. (Quorum formed)
– I will not spend a lot of time discussing the Australian Democrats’ objections to this motion. I have discussed them before. I think all of the arguments that I brought forward in the past are now equally valid. We agree with the opinions on this matter of Australian Labor Party senators. The point I did want to make is that we in the Australian Democrats since we have been in this place- I think I can speak for Senator Chipp as well as myself when I say that we are perfectly qualified, perhaps by past experience, to pad out our speeches to our full speaking time- have made an attempt in most cases to use only a little of the speaking time allowed and just to say what we have to say and no more. We have done that as a concession to the carrying on of business in this place because we have felt in our naive innocence that this would have allowed us possibly at some time in the future to bring forward some of the business that had been brought to us by people who have a perfect right to have it presented in this place. I will not say too much about that.
The point I raise now is that the Government has said for the first time that it has cancelled General Business for the remainder of this session. I make it absolutely plain that there are 400,000 people in the Public Service who would have liked to have known, now that party preselections are going up, whether there is any possibility of a reasonable deal being given to them whether they should be allowed as other Australians are to nominate in a reasonable way as candidates for election to this place or the other place. They will now not be able to do so. In other words, the Government has made quite sure of that by cancelling General Business which includes this matter. Public Service Board General Order 3/D/4 states:
An officer or employee wishes to nominate for election to a House of Parliament . . . must resign before nomination.
The Government has ensured by this motion that that matter will not come up in time for any public servants who might feel they wish to be able to nominate for candidates for any political party on a fair and equal basis with other members of the society. The Government is perfectly happy then regardless of the fact that this matter has been raised many times to allow this to continue to be something which is left in abeyance. In other words, the Government has continued under the suspicion- I think, more than a suspicion- that it will allow a large and significant section of the Australian community to operate as a deprived class treated probably unfairly and possibly also unconstitutionally.
The Government’s priorities seem to me to be very strange indeed. There is nothing whatsoever to stop us continuing this session of Parliament into December if necessary. The Government apparently seems to have some sort of priority system whereby it is far more important for it to get Parliament up and to go away than to debate normal and reasonable points of General Business brought before this Parliament and in particular, the Senate. They are not brought forward on our whims but because large numbers of people in the society want them brought forward. The Government is not prepared to have that. It is going to clamp down on this. It is going to make sure that anything that might rock the boat or anything that it might object to in any way can be shut off completely simply by saying that one of the very few avenues of private senators and members of smaller parties- as our Party is for the time being- will be denied. We will not be able to bring these matters forward on behalf of people who wish to have them brought forward. My purpose for rising to speak on this motion is to put on record in Hansard that this motion is a deliberate device on the part of the Government to prevent General Business coming forward. I commend to those 400,000 public servants concerned a very careful study of that attitude.
– I rise primarily to reinforce the argument that has been put to the Senate by Senator McLaren with respect to the protection of our marine resources. As late as last week, the Senate Standing Committee on Science and the Environment received very important evidence in Adelaide about the protection of marine mammals. It was obvious that, unless more effective supervision was applied to the granting of trawling licences, all sorts of pirating activities would occur in this area.
Let me express my interpretation of the problem that Senator McLaren envisages. We could continue to permit franchise to be granted to Indonesian and Taiwanese fishing vessels. The Senate Standing Committee should have the right to summons to appear before it the people who have responsibility in this area to ensure that deprivations will not be suffered by sea mammals or, for instance, a specific rare variety of fish. If the activity of these fishing vessels is not monitored, what we fear will take place and no action will be able to be taken on it by this Parliament before it reassembles. That is the prime reason why I make this point. We need permanent Senate committees which have clearly defined charters so that the introduction of any new proposals may be properly studied.
To talk about an off-shore 200-mile zone is nothing new. I asked a question whether we would put an Australian observer on every foreign trawler. I received a halfhearted answer that dealt with costs and negotiations. We face the situation where the negotiations that do take place will not be subject to the monitoring of the Senate Standing Committee that was referred to by Senator McLaren. The Committee of which I am a member and which is chaired by Senator Jessop has only a very limited area of inquiry with respect to the evidence given on the matter of marine conservation. That is the first complaint that I make.
I come to my second complaint with respect to this proposal. Senator Chaney and the Government Whip, Senator Peter Baume, are primarily responsible for the way in which work comes before this chamber. I express very strongly my hope that, when we come to a consideration of the estimates in the Committee of the Whole, we will not find ourselves facing a situation similar to one that we had on a previous occasion. The argument is put that the real laundering- the real questioning- of the operations of a department occurs before the various estimates committees, each with a permanent membership of six senators. I do not cavil at that claim. The point I make is that some honourable senators are not able to get the information that they would seek at a certain estimates committee hearing because they are engaged in the work of another estimates committee.
I repeat my concern to Senator Chaney and to Senator Peter Baume that what happened on a previous occasion should not occur this year. My immediate target is the Department of Housing and Construction. When we deal with the Estimates in the Committee of the Whole I will expect senior officers from every department to be in this chamber. It will not be much good if the Minister simply says that he will take on board the matters that are raised. The sittings of the Senate will conclude in early December, and we will not get an answer until January on matters that some constituents regard as very important.
If Senator Chaney is to jettison General Business I would like to see him make some recompense to the Senate and ensure that when we deal with Estimates in the Committee of the Whole officers of every department are present. He should not bank on the hope that because the departmental officers received a grilling before the Estimates Committees honourable senators will not raise further matters in the Committee of the Whole. I can assure him that a number of us who were not able to attend meetings of certain Estimates Committees will be raising matters. I am thinking of asking questions concerning the Department of Industrial Relations and the Department of Housing and Construction. To be brutally frank, I asked a leading question that came partly within the responsibility of the Department of Foreign Affairs and partly within the responsibility of the Department of Immigration about immigrants to Australia who could have been involved in nazi collaboration. Senator Baume would know I am thinking about Mr
Urbanchich. I want officers of the Department of Immigration to be here when I ask questions about this man. I want to find out whether people made false statements when they sought citizenship. Urbanchich is one of those I am interested in. I want records to be produced in this chamber.
I simply give a warning that when we consider Estimates in the Committee of the Whole I want officers to be here briefing Ministers. I do not want Ministers to tell us blandly with a smile on their faces that they will give us an answer later on. On that basis, by the time we get an answer the initiative will have been lost. It is the Opposition ‘s role to probe. We want detailed answers. This is why I have very strong objections to Government Business taking precedence of General Business at 8 p.m. on Thursdays.
– in reply- I have noted the Opposition’s objections to the proposal that Government Business take precedence of General Business at 8 p.m. on Thursdays for the remainder of this session. The objections put forward are objections that we have heard before in this chamber.
– From both sides.
-As the acting leader of the Opposition in the Senate, Senator Grimes, says to me that, we have heard the same arguments from both sides, I would like to draw the Senate’s attention to the procedures which were followed during the period of the previous Labor Government. I do so, not to cast aspersions on that Government, but merely to indicate that the practice has been followed with some consistency in this chamber over a considerable period. We find that on the last three General Business days of its first sittings in 1973-24 May, 3 1 May and 7 June- General Business was dispensed with. The Senate rose on 8 June. In the Budget sittings of Parliament the motion was negatived. The Government tried it as early as 20 September on that occasion. It did away with General Business on 8 November, 15 November, 29 November and 6 December. The Senate rose on 13 December. In the session from February to April in 1974 the Government did away with it on only one day. From July to November 1974 we find that this occurred on 1 8 July, 25 July, 1 August, 1 5 August, 3 October, 24 October and on 13 November for the remainder of the period of sittings, which was four Thursdays. The Senate rose on 12 December at the end of that year. On 14 May 1 975 the motion was put for the remainder of the period of sittings, which covered five
Thursdays. So the motion was moved during every sessional period under Labor.
The simple fact of the matter and the simple point which I am making is that we have yet again a series of crocodile tears. This procedure has occurred in the Senate regularly over many years. It is a simple concession to the fact that Government Business must be concluded before the Parliament rises. Mr President, I commend this motion to the Senate. I regret that you have been subjected to yet another bout of crocodile tears. I trust that we will get on with the business of the Senate.
That the motion (Senator Chaney’s) be agreed to.
The Senate divided. (The President-Senator the Hon. Sir Condor Laucke)
Question so resolved in the affirmative.
Motion (by Senator Carrick) proposed:
That, unless otherwise ordered, Standing Order 68 be suspended for the remainder of this period of sittings.
-The Opposition opposes this motion as it did the last one. Standing Order 68 reads:
No new business shall be commenced after half-past ten o’clock at night.
Of course we note that the Leader of the Government in the Senate (Senator Carrick) gave no reason for wishing to suspend this Standing Order. I put it to the Senate that this is a very sensible Standing Order. Obviously it was introduced into this place with good reason. It is sensible that no new business be commenced after half-past 10 at night. In fact it is probably sensible that no business at all ever be done in this place after half-past 10 at night, but unfortunately we do that. As in the case of the suspension of General Business, the reason for introducing this suspension of Standing Orders is that the Government has been incapable of conducting its own business and getting its business out of the way in reasonable time. The Opposition has no objection to staying on after the next two or three weeks to deal with important legislation. We will stay here. We see no reason at all why new business should be introduced into this place after half-past 10 at night. I am surprised that the Government would care about introducing or would want to introduce new business because most members on the other side of this place are incapable of coherent thought after half-past three in the afternoon. But after half-past 10 at night that number incapable of coherent thought increases rapidly.
It is an eminently sensible Standing Order. We have been given no reason at all why it should be suspended. We know the reason. The reason is that the Government is in a mad rush to get through legislation, most of which should have been in this place much earlier, and most of which can be introduced in the next few weeks. We are perfectly happy to stay here in civilised hours and debate the business in a civilised manner. The Government is not interested in conducting the Parliament in a civilised way, and that is why it is moving this suspension of Standing Orders. We desire sensible debate on legislation in this place. That is why we oppose this suspension of Standing Orders.
– I join with and support my colleague and acting leader in opposing the proposition put down by the Leader of the Government in the Senate (Senator Carrick). When the provisional program was made available to the Parliament it was proposed that we would sit during the whole of November for the purpose of carrying out the legislative responsibilities for which we are elected. No suggestion has been made or proposals put forward by the Government which suggests that we ought not carry out those responsibilities. Maybe the honourable senators who constitute the majority in this place have the same view as Sir William McMahon who said that he is sick and tired of the Parliament and that we ought to be rising on 1 5 November. If Sir William McMahon and others in this place share that point of view, let them get out of the Parliament if they are not prepared to carry out their task of ably representing the people in the Parliament. Let him not, at 72 years of age, decide to recontest another three-year term in the Parliament. I am sure the same sort of sentiments are prompting Senator Carrick when he suggets that we ought to be putting ourselves through the arduous tests of sitting through all night in order to get legislation carried. We know, of course, that at times when that process has been applied and precedents have been broken because of a desire by the Government to meet a certain schedule, the Government then has allowed a Bill to wander around Canberra for several days before it was taken for the signature of the Governor-General, despite the fact that the Opposition wanted to have the opportunity to debate it properly- not in the early hours of the morning at one, two or three o’clock, which is the threat that is hanging over our heads as far as this proposition is concerned. We have been told at this late hour that the Government wants to get certain legislation through, and to do that senators have to be prepared to sit to all hours of the night. In addition to that there is the proposition by Senator Carrick that he shall have the right to introduce new business after 10.30.
What are we trying to do? Are we trying to get the Parliament up on 15 November, or to carry out the second suggestion and get it up on 22 November, and to negate the provisional program which was put down that we would sit through the whole of November? We are not afraid to debate the issues. That is what we are here to do, and that is what we want to do. Numerous speakers have been listed to debate the Budget, for example, and we are informed now in this second or third last week that there will be no further debate on the Budget. So all honourable senators on both sides of the chamber who have not had an opportunity to debate the Budget are told by the Leader of the Government, who seems to be assuming the role of a dictator in this place, that there will not be a debate on the Budget and that we will have to combine that with the debate on the Appropriation Bills.
Here we are coming into the second week of November and neither the Budget has been passed nor the Appropriation Bills put before the Senate for proper consideration. Take, for instance, one of the Bills for which I have particular responsibility, the Aboriginal Land Rights (Northern Territory) Bill, which was presented to this Parliament on 24 May. I can say, almost without fear of contradiction, that it has been on the program every week since the Budget session began. I do not know how many times I have prepared myself for that debate only to find that it has been taken off the program time and again, indicating either that this Government is not interested in getting that piece of legislation through, or that it will be one of those situations where it will be introduced after 10.30 in the evening on a Thursday night, at the end of a long sitting day.
I think the Government owes the Senate, the Opposition, and the people at large some sort of explanation of why we should be subjected to this sort of harassment. We have offered to cooperate with the Government. That was the yardstick which was applied when we were in government. There was a general agreement and a gentleman’s agreement in respect of the way in which the Parliament should operate, even though we were a minority in this place. Very rarely were those agreements broken. But that is not the policy adopted by Senator Carrick and the obedient majority that sits behind him, because whatever he does they just obediently and silently follow- maybe ungraciously, but nevertheless giving him the majority. We saw an example of this this morning when matters which were properly within the responsibility of the Senate to debate, matters associated with Indonesian aggression of East Timor, were before the Senate. We saw what happened there and how members of the Government side obviously were dragooned to vote against something in which they believed fundamentally. Some of them had spoken in this place about the sensible way in which Senator Grimes presented that matter.
If that is the way that the Senate is to operate, we protest against it most vehemently. We believe that we have been elected to do a job. We want to do that job, and we want to put into effect the role that the Government, when its members were in opposition, said was the role of the Senate, that is, that the Senate should be a House of review. It is not a House of review if we are subjected to sitting into late hours of the next day for the purpose of debating an issue. All I can say is that if that is the way the Government is to continue to operate in this place as the majority party running the affairs of this country, the sooner it is out, the better.
– I oppose the suspension of Standing Order 68 for the rest of the session. I accept the Government’s desire to be able to introduce new business every night. I think that the debate is linked with the one that has just occurred concerning precedence of Government Business over General Business. I suppose that after this matter is disposed of we will have a repetition of what Labor did when it was in office.
– Hear, hear!
-We have that indication. A lot can be achieved by agreement. When Labor was in office it was a minority group in this House. We should not talk about how many times similar action was taken. We should look at the record to see whether such motions were voted on. There was an agreement between the parties that certain things should happen. It may have been that General Business was not debated. Let us look at the remarks of Senator McLaren. He said that he had had an item on the Notice Paper for 13 months seeking the referral of a matter to a committee of this House. The discussion would possibly take about 10 minutes. I cannot see any harm in referring the matter to a committee. That right of discussion is taken away and Senator McLaren will have to wait until next year to bring the matter forward. It is an important question. It may be that circumstances justify some curtailment of the rights of honourable senators, but the Government should see whether it can accommodate issues such as the one to which I have just referred. Since I have been a member of Parliament we have always had this late rush of legislation, but some sort of agreement has always been worked out.
– It still is, Senator.
– There has not been some sort of agreement. With whom did the Government agree to gag the motion concerning East Timor this morning? With whom did the Government agree to put the question that the question be not now put? Who agreed? Did Senator Grimes agree with the Government? There has been no agreement. With an acknowledgment that there must be some curtailment of the rights of members in order to get business through at some time, cannot party leaders get together and say: ‘What can we do to sort this out? What is considered important? Perhaps there should be some discussion on a certain question. How much discussion? What is a reasonable time?’ Not only is the right of parliamentarians not considered but also the Government is making a grab at everything. A motion has been moved to provide the capacity for the Senate to sit to three and four o’clock in the morning if necessary. This is legislation by exhaustion. If the Government cannot even form a quorum at four o’clock in the afternoon how will it form one at two or three o’clock in the morning? The Government will be forced to do so if an agreement is not reached. If the Opposition realised the circumstances perhaps it would agree to sit late on certain nights and agree to certain curtailments of activities. It may agree to some concessions for Government members. I do not know the attitude of the Party. But there has not even been any discussion. The Government says that it has the numbers and will do what it wants. But it will not be able to do so effectively.
As Senator McLaren has pointed out, one honourable senator can stop the incorporation of second reading speeches in Hansard and thereby necessitate the reading of speeches which takes a lot of time. One honourable senator can call for a quorum. Two honourable senators can insist on a division on every motion. Honourable senators opposite should consider the time which will be consumed if such an attitude is adopted. Although such action may necessitate the moving of the gag by the Government, it is of no value to a government- when its members move it- for propaganda purposes. The Government will achieve nothing. There should be some consultation on this question and at least some effort to find out whether we can reach some agreement on the operation of this Parliament in order to let it operate more co-operatively than it appears it will in the immediate future.
– We understand why the Government has moved this motion. Similar motions have been moved in this place and in the House of Representatives near the end of almost every session. Such motions are necessary for a variety of reasons. We also understand why the Opposition is opposing the motion and why it is making the speeches it is in opposing it. Both sides, but particularly oppositions, are to blame. I am not just talking about the present Opposition. When I was a member of the Liberal Party when it was in Opposition in the House of Representatives we stonewalled and wasted time and thought that we would embarrass the Government and win a political victory out there with the electorate. What absolute rubbish. All members of Parliament do is exhaust themselves. The public does not give a damn. They think that we are rather pathetic.
On principle, we will be opposing the motion. I repeat what Senator Mason said earlier. We are prepared to sit here until Christmas Eve if the Government wishes but we are not prepared to sit after 10.30 or 1 1 p.m. I give notice now that I will not be seen in the chamber after 1 1 o’clock on any evening. I say that without any apology at all. I say that so that some sneaky little member of the Press Gallery, who may have been boozing his night away in a bar, the next morning, after seeing a division list in Hansard and noticing that I was not present in the chamber, cannot write some sneaky little article anonymously -
- Mr President, you are fresh out of listeners in the House again.
- Senator Keeffe should use the correct words.
- Mr President, I draw your attention to the state of the House. (Quorum formed).
– I was being critical of those members of the Press Gallery who are never seen in this place but who the next morning may have a look at a division list or whatever, notice that somebody was not present, and then write some sneaky little piece, as was done in the Canberra Times recently, without even looking at the debates in Hansard. To accommodate those sorts of people I now say that as far as -
– There was a letter in the Canberra Times today.
– Yes, there was. It was a letter containing a small remark composed by a smaller mind. I ask: What good is achieved by staying here until three or four o’clock in the morning? I was appalled at the motion that the Senate passed this morning. I will speak about that in a moment.
I have made some quick calculations on a matter that is disheartening to me and which is the reason why I resigned from the Liberal Party in 1977 and desperately wanted to get out of this whole business of politics. I think that Parliament today- this is the fault of everybody- is now a farce. I did a quick calculation and found that it cost about $30,000 to $40,000 to bring 64 honourable senators to Canberra for the three days and nights and to accommodate them. Can any honourable senator say to me now that the expenditure of taxpayers’ funds of that amount was justified? Can any honourable senator, other than a Minister, say that he or she has had any impression on government policy? What impression have we made this week? Have we in this chamber been able to divert the passage of legislation?
- Senator Walters, the great democrat, says that she has been able to do that. I would like her to make a statutory declaration to the effect that this week and last week she has voted on every issue according to her conscience. I would like all Government senators to make that sort of statutory declaration. Senator Missen has suggested that he could sign a statutory declaration to the effect that on every issue he has voted according to his conscience. Senator Missen is an honest man; I accept his statement. But what happened this morning when Senator Missen voted with the Government on the most extraordinary motion I have faced in my 1 9 years in this Parliament? The Government moved a motion that the question should not be put. My incredulity asks: What is wrong with that? I am old-fashioned enough to believe that this is the national Parliament; that each senator is elected not by the Liberal Party of Australia or the Australian Labor Party or the Australian Democrats, but by the people; and that they are elected by the people to come into this place and to vote on issues according to how they believe the people will be affected by those issues.
– It is a little late for you to say that now, Don.
- Senator Bonner interjects. Normally I am not personal in my remarks; I am personal in my remarks only when people interject when I am speaking. Senator Bonner has interjected. This morning the Senate was asked to pass a motion which I thought was extremely reasonable. It asked that we express our grave concern ‘arising from the Indonesian treatment of the East Timorese people ‘.
- Mr President, normally I would not rise to a point of order while Senator Chipp is speaking, but I do so now. I ask you how we should interpret Standing Order 4 1 5 which states:
No Senator shall reflect upon any Vote of the Senate, except for the purpose of moving that such Vote be rescinded.
– I raise a point of order, Mr President.
– Order! We will have one speaker at a time. Be seated please, Senator Gietzelt.
– I ask you also, Mr President, whether what Senator Chipp is now saying is relevant to the matter which is before the Senate, namely, the suspension of Standing Order 68.
– To which Standing Order are you referring? Is it Standing Order 415 or Standing Order 4 18?
– It is Standing Order 415, Mr President.
– You are referring to a vote of the Senate -
– Yes, Mr President, I am referring to a vote of the Senate this morning.
– I realise that. A moment ago when Senator Chipp was referring to an individual senator and what that senator had done I was waiting to see whether that senator felt that a personal reflection was being made against him. As he did not indicate that that was so, I did not pursue the matter. But I do indicate that it is desirable to avoid saying anything which reflects on a person or a vote of the Senate.
- Mr President, I am astonished that Senator Baume tried to stop me from speaking on such a subject. To overcome Senator Baume ‘s sensitivity, let me point out that in no way am I reflecting on the vote of the Senate. I hope that pleases him. What I am reflecting on is the actions of the Government in instructing its members on how to vote this morning. I presume that even my stating that is within the province of the Standing Orders and will not offend Senator Baume ‘s sensitivity. But, Mr President, you allowed Senator Bonner to interject when I was speaking. I do not say that as a criticism of you. But he did interject; therefore, I think I am entitled to respond to his interjection. On the matter of relevance, I am speaking to the point of why it is a waste of time our being in this place at all, but particularly after 1 1 p.m. That is why I will not be here after that time.
Senator Bonner, on countless occasions and with great courage and sincerity, has denounced the actions of the Indonesian Government in Timor. I have always regarded Senator Bonner as a champion of human rights, of human values, and as a man who will speak up for the oppressed and for the minority groups. But this morning he had an opportunity to vote on the motion asking us to express our grave concern. The motion did not even censure the Indonesian Government; no international incident would have arisen out of it had it been passed. It simply asked that we express our concern at the
Indonesians’ treatment of East Timorese people. God knows, evidence exists to indicate that those people, those human beings, are being mistreated. Did Senator Bonner vote on that motion according to his conscience? He voted to stop himself from voting. On the instruction of his political party he voted that the Senate be prevented from voting on the motion.
What is the purpose of our sitting around here costing the taxpayers $30,000 to $40,000 a week? We all came here this week but we were not even allowed to vote on the motion. Senator Wheeldon just made a magnificent speech denouncing the alienation of human rights in the Soviet Union and Government senators were saying: ‘Hear, hear’.
– Order! Will you please bring your comments back to the matter before the House.
-Yes, Mr President. I confess to being a little carried away. I thank you for bringing me back to the matter before the Senate. If members of the Liberal Party believe that I am attacking the system only as far as they are concerned, let me say with great respect to members of the Labor Party that there are people in the Labor Party who would support the Indonesians ‘ actions in Timor.
– Order! You are not discussing the matter before the House and you must realise it. You are experienced enough to know that.
– With great respect, Mr President, I am attacking the party system which disciplines honourable senators to vote according to the way in which their parties direct them to vote and not according to their beliefs or conscience, as they should. I believe that that is entirely relevant to the whole issue of the uselessness of the Senate’s sitting beyond 1 1 o’clock of a night. That is what the motion before the Chair is about. I submit, with great respect, that there is some relevance in the argument I am putting. What is the point of what we are doing? Will I be asked to stay here until three or four o’clock in the morning to see honourable senators asleep on benches. I do not blame them for that.
– Snoring sometimes.
-Whatever they might be doing. Will I be asked to be here until three or four o’clock in the morning and, with three or four honourable senators in the chamber- I do not blame honourable senators for that- the division bells will ring; the chamber will fill; members of the Liberal Party and Labor Pam will file in, see a mate somewhere and sit down beside him; the doors will be locked; you, Mr President, will ask honourable senators to move to the right of the Chair or to the left of the Chair; and, inevitably- it happens every division- an honourable senator will turn to his mate and ask: What are we voting on?’ That happens after the doors are locked and while honourable senators are being counted. That happens under the parliamentary system. The Executive has destroyed Parliament as a force. I would say that in the vote this morning at least 10 members of the Liberal Party- good, decent men and women- voted against their conscience, against what they believed to be in the interests of their electors.
I can barely stand this place for the farce it now is- for the farce it has been turned into by the Executive. When I came into the Senate I was told by officers and other people that this House is different from the House of Representatives; that we are more independent here; that we do not do as we are told here; that we object to being pushed around. I will not be a party to a farce. That is why I object to the motion before the Senate. I make this statement about my attendance for the benefit of the people in the Press Gallery who are never here to watch the proceedings of the Senate so at least they will be able to report my actions and absences with some accuracy.
-by leave -Mr President, I wish to make a personal explanation. In the course of the tirade we just heard from Senator Chipp, I claim I was misrepresented. He singled me out and said that I was directed by my party to vote on an issue which was before the Senate this morning. I categorically deny that. I have never been directed by my party. Despite what Senator Chipp said and unlike him, I have voted against my own Government on matters of conscience on a number of occasions in this place. Senator Chipp, as a member of the House of Representatives for many years, never once voted against his Government; and when he became a Minister again he never voted against his Government.
-by leave-As Senator Bonner has made a personal explanation it may look rather curious if I do not do so since I was singled out for some particular treatment. I was not particularly concerned about it then or now. I have certainly never been directed by my Party on any occasion as to how I should vote. I will probably give some fair demonstration of that in respect of the next Bill we will proceed to and I think the past record will also show that.
This morning I voted very much on my own conscience. I think I might even have suggested the way in which the matter may be handled. I am not sure about that; somebody else may have had the bright idea before me. But I was perfectly in agreement with what was done. It was very proper and sensible that it should be done that way. As for direction, no such direction was suggested at any time.
– I join my colleagues on this side of the chamber in expressing very great opposition to the proposed suspension of Standing Order 68 which says:
No new business shall be commenced after half-past ten o’clock at night.
When I was elected to this chamber 13 or 14 years ago it was run of the mill for us to stay here until 5 a.m., 6 a.m. or even as late as 7.30 a.m. while legislation was being rammed through. This was done mostly because the Ministers wanted to get out of this country on their twiceyearly safaris overseas. That was basically what it was for. I can remember that Dame Annabelle Rankin- Senator Rankin as she then was- was the Government Whip. She used to bring very old Liberal Party senators to the door of the chamber on their crutches and sometimes in their wheelchairs and they would then stagger in for divisions. The complexion of the Senate has changed somewhat since those days, but the unfortunate part is that that was the way the Government was being run in the late 1960s and it is still being run the same way today. We were told some three or four weeks before the Budget was brought down on 2 1 August this year -
– Why don’t you look behind you?
-Wait for the Country Party to wake up, and never mind.
– Flo will wake him up. Flo is the one who will wake him up.
– Order! I called Senator Keeffe.
– Some three or four weeks before the Budget all honourable senators were circulated with a schedule showing the expected dates of sitting in this session. My copy indicated that we would sit until the end of November. Yet a month ago rumours started in this place that the session was to be cut and that we would be closing down on 14 or 15 November. That rumour has finally surfaced as reality. The suspension of this Standing Order is the way that the Government will overcome that problem. It is going to cut out General Business. Senator Mason of the Australian Democrats said earlier that many people outside the Parliament were worried about a notice of motion that he has on the Notice Paper. He will not get that matter on until probably next June and by that time the Government will have decided that it is too busy and that it wants to adjourn the session early so that those on the Government side, particularly the Ministers, who want to get away on their junkets to the north where it is warmer, will be able to do so.
At the beginning of the Budget session no legislation had been prepared for us, mostly because Ministers were enjoying the winter sun in other places and did not have their Bills ready, prepared or organised. Of course, there was plenty of stuff to go on with. There was stuff held over from the last session. There was no reason why that should not have been brought forward at that time. At the end of this session some of it will still be on the Notice Paper. The notice in respect of Standing Order 152 this morning reminded me of what must have happened in Hitler’s Germany, in Mussolini’s Italy and in Franco’s Spain. It was a negation of every democratic principle to enable the Government to cope with something that was going to take several hours to debate. But the Government gagged the debate because it was a touchy political question. There is no need for us on this side of the chamber to pass judgment on the Government. The people outside will pass judgment on it for its cowardly action this morning in blanketing out a motion that should have been open to several hours of debate.
Just before we rose at the end of the autumn session, I objected to being kept here to make a speech at ten past two in the morning, even though I had my notes prepared to do it. Then I mentioned the fact that several honourable senators on that side of the chamber were flat on their backs and sound asleep. One man was lying there in the middle benches with one of his colleagues slapping his face and another shaking his feet; and they still could not wake him up. I was suspended from the chamber because I drew attention to the fact that people were dead to the world. They should have been dead to the world, but they should have been at home in their beds and not here trying to sleep. It is utterly ridiculous that we should carry on a debate at any time after 1 1 p.m.
– Why don’t you wake up your own senator now?
– We woke the honourable senator up a while ago.
– No, you haven’t. Have another look.
– I have no eyes in the back of my head. I will attend to that matter after I finish speaking. Another of the reasons why there has been an attempt to cram legislation through is that tentative arrangements were made for an election to be held on 8 December. I had a question which I proposed to ask here and I am going to put it into the Hansard record now. It is addressed to the Minister representing the Prime Minister and asks him whether he can inform the Parliament that it is a fact that the Commonwealth Electoral Office proposed to book or had already booked time on a computer owned by another Government department.
– This is not relevant to the matter before the Senate.
– I do not want to disagree, Mr President, but one of the reasons for cramming this legislation through is the fear that there might be a snap election.
– Relate your remarks to the matter before the Senate.
– I believe it is relevant-I am not disagreeing- because there has been a great panic on that side of the chamber ever since the beginning of the Budget session because of the fear that the master of the Party, the master of the Parliament, would call a snap election without telling them. The fact that the computer was booked is not the only symptom of what is happening. Do honourable senators opposite know that in recent weeks their Prime Minister (Mr Malcolm Fraser) has had lengthy discussions with senior members of the Commonwealth Electoral Office in a search for all the options with regard to which date would be the most suitable to hold an election? Whether it is before Christmas or later does not matter, but he has been looking at all the options. Do honourable senators opposite know that in Queensland some country schools have been booked, only tentatively, for an election of 8 December? Do they know that recently in the far north there were problems whether the electoral rolls would be ready in time for 8 December?
– Please come back to the matter before the Senate, that is, the suspension of the Standing Order, and relate your remarks to reasons why you think it should not be suspended.
– I am doing that precisely.
– You are getting rather remote when you get to the top of Queensland.
– I must raise all the relevant matters which indicate the reasons why the Government wants to carry on until daylight every morning so that it can finish earlier than would normally be expected. We have sat here until mid-December when a little reason prevailed, and we did not have to stay in this chamber until daylight every morning to do it. There was plenty of business to keep us going and there is plenty of business on this occasion to keep us here. I join with my colleague Senator McLaren in saying: ‘If you people on that side want to play hard, there are many individuals on this side who are prepared to play it hard too. If you are prepared to answer quorum bells every half an hour, you will need to have a gracious look about you while you do so. If you need to cross the floor every time a division is called, we will make sure that divisions are called ‘. .
One final point that I might make is that the Prime Minister has never trusted his senators. The Senate could easily stay here for a week after the House of Representatives rises, but this Prime Minister is the only Prime Minister in the years that I have been a senator who is not game to let his senators stay behind when he adjourns the House of Representatives. That is exactly what is happening on this occasion. He does not know what some of them will get up to. He does not know whether they might introduce new Bills or something. He would not be here and would have to bring the House of Representatives back. The whole thing is phoney, a sham. Senator Chipp hit the nail on the head when he said that the Executive is running the country; that the Parliament has nothing to do with it. Honourable senators on the Government benches, by negating Standing Order No. 68, are themselves heading towards a dictatorship. They do not want anything at all exposed to the public. The public will not be here at 3 o’clock in the morning. The Press will not be here. Nor can the proceedings be broadcast at that time, unless you happen to run one of the ethnic stations.
– I call the Minister.
– in reply- Mr President -
– Are you closing the debate?
-I am closing the debate, Mr President.
– I have given the Minister the call, to which he is entitled.
– The Labor Opposition has just demonstrated why, on rare occasions, we sit after the time at which the adjournment motion is usually proposed. For the last hour and a quarter the Opposition has taken up time that could have been spent in very useful debate, for instance, on the Human Rights Commission Bill and other measures. Opposition supporters have been talking absolute nonsense and indulging in a kind of ritualistic, tribal histrionics. I make it perfectly clear that in recent years the sessions of this Senate have been concluded in an orderly, tidy manner with all business completed, without the need to bring down the guillotine. I may say that that has been absolutely contrary to the history of the Whitlam Labor Government. The then Leader of the Government in the Senate, Senator Murphy, in order to get the Senate up, gagged through 43 Bills in one go. Yet we find these people, with crocodile tears streaming from their eyes, telling us how wicked it is to use the gag. Senator Murphy, and indeed the whole of the former Labor Government, brought in Bills at random after half-past ten at night- brought in new business all the time. They did not even pay honourable senators the courtesy of inviting them to vote on the suspension of Standing Order 68. They acted with complete disregard for the Senate.
Senator Chaney has been able to show honourable senators that, as regards General Business, they have had a far better run under this Government than they had under the former Labor Government. So do not let us pretend. The Party that gags, guillotines and railroads Bills through is the one whose supporters now sit on the Opposition benches. The Party that in recent years has ordered the passage of Bills through this Senate by discussion- and will continue to do so- is that which forms the Government of the day. By proceeding in a tidy fashion, it has avoided completely the use of the guillotine at the end of sessions. It has indeed, given honourable senators a fair go, so the suggestion that General Business was never set aside by Labor has been blown apart by Senator Chaney ‘s cold statistics. As to the suggestion that Labor did not bring in new business after 10.30 at night, Hansard reeks with examples to the contrary, reeks with examples of the reckless use by the Labor Government of the guillotine to ram legislation through and detroy the effectiveness of the Senate.
Senator Chipp had something to say about whether he would be here after 10.30 p.m. Every honourable senator may look to his own conscience as to whether he will be here at any time, whether it be before or after 10.30 p.m. That will be a matter for the people to judge in the future. I make no further comment about that, but it is nonsense to say that an honourable senator can make a sound judgment at 10 o’clock but cannot make it at five minutes to eleven at night. That could be taken basically as a reason for changing the hours of the Senate completely. All that is being asked is that the procedures of the past be legalised; that we do what has been done before so that it will not be necessary to use the guillotine as it was used by the former Labor Government, or to ram Bills through. We will give all honourable senators a fair go. If Opposition supporters wish it I will bring down in the Senate proof of the fair go that the Opposition has had in discussing its urgency motions, its matters of public importance, of the fair go that it has been given at Question Time and of all of the other ways in which the Government has sought to make this a workable Senate.
As the Leader of the Government in the Senate, I have a vested interest in ensuring that all honourable senators receive a fair go. I assure them that they will. It has been suggested that there is something wrong; that the debate on the Budget was not sufficiently lengthy. Do Labor supporters want me to cite the speakers’ lists when the Budget was being discussed under a Labor Government and compare them with the speakers ‘ list on this occasion, when in fact a very lengthy debate has been conducted? Do Labor supporters want details of the number of times when the former Labor Government brought down the guillotine? Their claims are nonsense. I do not wish to prolong the debate because an hour and a quarter of valuable time has already been wasted, but if the Australian Labor Party wastes the time of the Senate it is only fair to the taxpayer that a time adjustment should be made in the period after the adjournment motion is formally proposed. I believe that the taxpayer would consider that to be poetic justice. It is for all honourable senators to examine their own conscience. I commend the motion to the House.
That the motion (Senator Carrick’s) be agreed to.
The Senate divided. (The President- Senator the Hon. Sir Condor Laucke)
Question so resolved in the affirmative.
Debate resumed from 25 September, on motion by Senator Durack:
That the Bills be now read a second time.
– Yes, that is agreed.
– Can I ask whether a separate vote will be taken on the two Bills, so that the debate will be the same but that there will be a separate vote.
– There will be a separate vote.
– We would be perfectly happy to have the Bills debated together and then, as must be, to take separate votes.
-These Bills have had a very bad Press and deservedly so. The Australian Financial Review of 2 November put it this way:
The legislation is an unhappy compromise fashioned out of federalism and trying to walk on the eggshell-strewn path between politicians who want a forceful armory to honour human rights and those who don’t want any legislation at all.
It pleases no one except those hopefuls who think it is a base on which to build- and on the available evidence, that they may have a very long wait.
Perhaps the most succinct editorial comment on the legislation, taking into account both the Human Rights Commission Bill and the Racial Discrimination Amendment Bill however came from the Canberra Times on 29 September, when the following statement was made:
Senator Durack ‘s legislation is empty where it is best, dangerous where it is not.
It is easy to see why this new Human Rights Commission, despite its superficial attractions, will do little or nothing to advance the cause of human rights in this country. It is equally easy to see how, in the process, the Commissioner for Community Relations, Mr Al Grassby, will be stripped of all those powers and responsibilities which have made him, over the last few years, such an effective voice for blacks and migrants in this country. One does not have to be much of a cynic to discern two clear motives for this legislation. The first is to enable Australia to be seen internationally as doing something about human rights, but without the Government having to actually, in practice, do anything at all to improve the local situation. The second motive is undoubtedly to suppress the hitherto all too irrepressible Mr Grassby who has long been a very embarrassing thorn in the Government’s side exposing, as he has done with so much flair and capacity, the unhappy state of racist attitudes and behaviour in this country, but again being able to dispose of Mr Grassby without at the same time being seen to be actually abolishing his office.
The sheer hypocrisy of these two Bills, their cosmetic quality at best and their contemptuous disregard for effective protections for human rights at worst is, and can be, very readily demonstrated by looking a little more closely at what they contain. The Human Rights Commission Bill establishes a Human Rights Commission consisting of a chairman who, one is led to understand, will probably be a judge acting part time. There will be a deputy chairman likely, it seems, to be Mr Peter Bailey, the Public Service architect of this legislation who will be the full time executive director of the organisation and between five and nine other members, most of who will be part time. The functions of the Commission, to put it broadly, are those of inquiry, investigation, report, research and education. The Commission will be able to investigate complaints or inquire into matters on its own initiative relating to breaches of human rights by the Commonwealth by or within a Territory. It will also be able to report generally on the effectiveness of existing Commonwealth and Territory law and it will be given a general mandate to ‘promote understanding and acceptance’ and also to undertake and co-ordinate ‘research and education programs in relations to human rights’. The Government did not succeed, as apparently it hoped it would when it withdrew the previous Human Rights Commission Bill introduced by Mr Ellicott in 1 977, in getting the States to agree to participate directly in the Commission. The Bill now provides that intergovernmental arrangements may be made between the Commonwealth and any State or Territories for, as clause 1 1(1) states:
The Bill goes on to define ‘human rights’ for the purposes of the legislation as meaning the rights and freedoms recognised in the International Covenant on Civil and Political rights and any other declared international instrument to the extent to which that international instrument is applicable in Australia. One interesting and important clause in the Bill is clause 9 (2) which recognises the necessity, in certain circumstances, for affirmative action or benign discrimination; the clause in question provides that an enactment or practice should not be regarded as offensive to human rights if it is: . . solely for the purpose of securing adequate advancement of particular persons or groups of persons in order to enable them to enjoy or exercise human rights equally with other persons.
So far, so good. But there are at least four major, very substantial criticisms which can be levelled at the Bill as it now stands. Let me deal with those in turn. The first is that the Bill does nothing to actually change the law in any of areas such as police powers, freedom of assembly, voting rights and all the rest of them, where civil rights are very obviously in need of specific legal protection. It is true that in a number of areas like racial discrimination and also the protection of privacy effective investigative and conciliatory machinery can be as important in practice and perhaps even more important than the creation of formal rights enforceable through the courts. It must be acknowledged that there are many other areas where nothing short of a change in the law will help to correct the situation. In bringing forward this legislation the Fraser Government has explicitly rejected, for the umpteenth time, the idea of an Australian Bill of Rights which would- I will talk about the concept of the Bill of Rights later on- specifically incorporate into the substantive law, some of these crucial rights and protections. The reality is that in this legislation the Fraser Government has opted for a Human Rights Commission without this substantive backup and the result will be little more than an exercise in cosmetics, unless and until the law is given that fundamental change of direction that is needed.
The second obvious objection to this legislation is that the Commission is given no role at all in relation to State law. It can investigate complaints or make recommendations only with respect to existing or proposed laws in relation to matters arising at the Commonwealth level. But the reality is that the most flagrant breaches of human rights are perpetrated, and perpetrated regularly, at the State level. The worst offenders currently are Queensland and Western Australia with their laws and practices relating to voting, public assembly, criminal investigation, Aborigines and, perhaps one can also add, industrial relations. Other speakers, particularly those on this side of the chamber and to a lesser extent those on the other side, will no doubt develop this point in greater detail. Indeed, I propose to do so at the Committee stage. However, its fundamental importance should not be understated.
In the Bill there is provision for future cooperative human rights action between the Commonwealth and particular States in agreed areas. But I think even the most charitable assessment of the situation would be that this is, at the moment, a very long way off. In any event those States where co-operation is least likely are the very States where new initiatives and action are most urgently needed. I take the view and the Opposition takes the view that here, as elsewhere in this whole human rights area, the Commonwealth should gather up its courage and legislate under the external affairs power- section 5 1 (xxix) of the Constitution- in such a way as to extend its jurisdiction in human rights matters over the States.
The third criticism is that the Bill tries to have things both ways so far as the International Covenant on Civil and Political Rights is concerned. In the first place the definition of the term human rights’ in the Bill is squarely related to the contents of the Covenant, and that is a good way, on the face of it, for opening up a wide range of human rights topics to be brought within the umbrella of the Commission to the extent that the Covenant covers, as it does, just about everything in the realm of civil and political rights, from slavery to privacy. The difficulty about relying on this one Covenant is that it is not an especially good way of ensuring that any particular right is protected to the maximum extent. Freedom of assembly, to take one example in making the point, is denned in Article 21 of the Covenant- the Covenant is conveniently incorporated in the Human Rights Commission Bill by way of a schedule- as being legitimately subject to restrictions: . . in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
That set of permissible exceptions from the scope of freedom of assembly contained in Article 2 1 of the Covenent- particularly insofar as it includes the wide-ranging French expression, ordre public, which is much more extensive in its connotations than the English expression ‘public order’- appears to allow the survival of even a street march law such as that which exists in Queensland. Yet, while on the one hand the Government derives the benefit of the looseness of the Covenant’s definitions, it does not rely on the Covenant as a basis for extending, as I suggested it should under the external affairs power of the Constitution, legislative reach of the Bill into the States. Of course the Bill does not give specific legislative approval to the ratification of the Covenant as did by way of contrast the Radial Discrimination Act 1975 in relation to the International Convention on the Elimination of All Forms of Racial Discrimination. It may well be some considerable time before the Australian Government gets round to ratifying the Civil and Political Rights Covenant, let alone the optional protocol to that Covenant which would allow individual human rights grievances to be aired in an international forum.
The whole history of the ratification of this Covenant- I say this in parenthesis- has been a most unhappy one. It seems to me now, as it seemed for a number of years- I believe also to Senator Missen, who is nodding his head- that there ought not be any excuse any longer, if indeed there has ever been any excuse, for Australia delaying the ratification of the International Covenant on Civil and Political Rights. The evasion, equivocation, posturing and prevarication with which successive governments have treated this question has long since ceased to be a joke. I do not entirely exempt even the Labor Government from this charge, although it was Mr Whitlam who at least took the first step in December 1972 of signing the Covenant which started the process.
It will be remembered that we were first promised ratification of the Covenant in 1973- seven years after its adoption by the United Nations- to coincide with the twentyfifth anniversary of the Universal Declaration of Human Rights. We were then promised ratification, it may be remembered, in 1978 to coincide with the thirtieth anniversary of the Declaration of Human Rights. Now I understand we are being promised ratification later this year after this legislation finally is passed. One suspects that we will still be sanctimoniously fussing and fiddling ‘consulting the States ‘ and ‘ensuring that we are in a position to fulfil our international obligations’ when the Diamond Jubilee of the Declaration comes and goes.
The fourth main problem in relation to the new Commission- in many ways this is the most serious of all- is that on my understanding it seems likely to be given only derisory staff and resources. That is my understanding. I would be all too delighted if the Attorney were in a position and willing to tell me that my understanding is incorrect and that the staff and resources will be substantially great. Until he tells me that my understanding- I communicate it to the Senate- is that the new Human Rights Commission will have a total staff of no more than about 10, leaving aside Mr Grassby ‘s staff of a similar number who will be amalgamated into the new Commission. All of the ten staff, I understand, will be based in Canberra: there will be no regional offices established, notwithstanding the purported national reach of this new legislation, this new national machinery. I mention now, as I will mention again later, that the Commissioner for Community Relations has been sadly undernourished in his staffing since the Fraser Government took office. The successive annual reports pointing to the impossibility of effectively carrying out investigative and educational research and promotional work on a shoestring budget. It seems that exactly the same considerations will be applicable to the even broader range of functions now proposed to be vested in the Human Rights Commission. The real test of the Government’s commitment to anything more than a shopwindow approach to human rights will come when it reveals the contents of its purse. I can only suggest that the auguries at the moment do not appear to be very favourable.
One other test, of course, of the sincerity of the Government’s approach to the protection of human rights and to giving some viable status and character to the new Commission will be the way in which it approaches the staffing of the Commission and whether it mans it with personnel of capacity, credibility and energy. It will be particularly interesting to see who the Government appoints as chairman of the Commission. If it takes the step of appointing a dynamic and effective judicial character- I understand it will be a judge; I might be wrong, but I would be only too delighted to be corrected on these matters by the Attorney- such as Michael Kirby of the Australian Law Reform Commission, then he or she might be able to make a silk purse out of this sow’s ear. But the appointment of anyone of any lesser calibre will all too obviously demonstrate that the Government’s concern with this legislation is to do nothing more than to create a cosmetic structure, which as I have said might make us appear in international forums, where we may not be scrutinised too closely, to be fulfilling our international obligations but which in reality will be a sad travesty.
The Opposition’s general attitude to the Human Rights Commission Bill, the first of the duo before us, is, then, that it is a wholly inadequate solution to the problem of the protection of human rights in the country. What is needed, in the Opposition’s viewpoint and I hope also from the viewpoint of a number of Government senators, is a piece of legislation which creates not just machinery for the discussion and promotion in a very abstract sense of human rights in this country but a means for people to enforce their rights. What we want and what we need is a recognition in Australian law that the kinds of rights which are specified in the International Covenant are part of Australian law and can be relied upon when they are breached and threatened either in the private or public sector, as they so often have been in the past and in current circumstances. What we need is a situation in which those rights are enjoyed, not just in the Australian Capital Territory or as a matter of Commonwealth law, but where it really matters- in the States, around the country. We want a situation in which there is effective machinery for the enforcement of those rights- but not just on paper. It does not help much simply to give a right, a formal legal status, unless machinery is simultaneously created that will make the enforcement of that right a reality. By an effective enforcement machinery- I will spell this out again in a little more detail later on- I do not mean simply the courts; I mean also certainly the kind of conciliatory machinery which has proven itself to be so appropriate for the resolution of a great number of particular kinds of human rights problems. I mean an enforcement machinery which is an appropriate blend and balance of soft conciliatory measures and mechanisms on the one hand, but on the other, lying behind that, an iron fist- a court sanction, with the possibility of proceedings perhaps being initiated by the human rights agency in question. That is the kind of response that we think is appropriate. That is the kind of thing that we see to be totally omitted from the very framework of this legislation as it is presently constructed. Accordingly, it is for that reason that on behalf of the Opposition I move an amendment which has been circulated to the motion for the second reading of this Bill. I move:
Leave out all words after ‘That’, insert “the Bill be withdrawn and re-drafted to provide for:
Specific adoption in judicially enforceable form of the rights specified in the International Covenant on Civil and Political Rights along the lines of the 1973 Human Rights Bill.
Application to the laws and practices of the States; and
Expanded powers and functions for the Commission, including effective means of enforcing its recommendations.
What this legislation redrafted in those terms might actually look like needs a little further elaboration. I will come back a little later on to spell out the kind of thing that the Opposition does believe is appropriate and what is subsumed within the terms of that amendment.
Let me now turn to the other side of the coin, the other piece of legislation, the companion piece of legislation that has been introduced, the Racial Discrimination Amendment Bill. This is the part of the package which emasculates Mr Grassby. It does the job neatly and efficiently. It is not for nothing that in the back rooms and corridors of the Liberal Party and the National Country Party offices this is known as the ‘Get Grassby’ Bill, because that is exactly what it does. It might as well be labelled that because the substance of it, when one looks at it, it is an unapologetic exercise in just those terms.
The Commissioner for Community Relations, Mr Grassby, is left by this Bill with little more than his title and a number of functions which he may or may not be allowed to exercise at the discretion of the Human Rights Commission of which he is not to be a member. His independence will disappear and there is no guarantee, despite various Government protestations to the contrary, that he will be able to go on exercising the kind of investigative and noise-making role that he has engaged in since his office was established in 1975.
There ought to be no doubt about the worth of Mr Grassby ‘s office and the role that he and his staff have played in the Commission for Community Relations. He started with a handicap. He started with a piece of legislation which had been emasculated by the Liberal and National Country Parties in this Senate by removing from it provisions or rewriting provisions so as to make the proof of discrimination more difficult, so as to remove from the Commissioner his power of compulsory evidence gathering, by removing from the Commission his power to initiate litigation. But notwithstanding those handicaps the Office set to work and has done as has been widely accepted in the community at large, an admirable job ever since.
For a start, the statistics speak for themselves. In the latest annual report of the Commission, the Commissioner records that, since the inception of his office, 2,818 complaints have been investigated over those four years. Conciliation has failed and dissatisfaction has prevailed in only three of those cases. The performance of the Commission who speaks for itself in the annual report volumes which the Commission has produced. The volumes, four of them now represent a mine of information about the nature, extent and character of racism within Australia and about the attitudes of Australian governments-federally, territorially and in the States in confronting it. No one who has even read or even dipped into any of those reports of the Commission could fail to perceive them otherwise than as a searing indictment of the racism which still prevails in the Australian community, but, moreover, an indictment which is meticulously researched and documented. The volumes are admirable and impressive. They are frightening volumes in many ways but they are an important educative mechanism, an important reform mechanism in the Australian civil rights climate. They have made a very crucial contribution to our understanding and I hope to our appreciation of what is necessary to overcome Australian racism.
Furthermore, the standing of the Commission is demonstrated not just by the statistics and not just by the volumes but by what people say and believe about Grassby and about his Commission. There is no doubt that, whatever the churlishness which is periodically and very often noisily expressed by Government spokesmen and backbenchers, he and his Commission enjoy enormous respect and credibility in a very wide swathe of the community. One measure of that respect and credibility which Mr Grassby enjoys, one very simple mechanical measure of it, is the number of invitations that he receives to travel the country and talk to community groups, in particular, migrant groups and Aboriginal groups.
During the Estimates Committees hearing on 7 May this year, I asked the Attorney-General (Senator Durack) and through him the relevant public servants:
It it not the case that a good deal of the Commissioner’s travelling is in fact sponsored by the organisations which he visits and to which he speaks, and that that is necessarily so because of the stringency of the present Budget? Is that a fair comment?
From Mr Wyer of the Community Relations Commission, I received the following answer:
Yes, that is a fair comment. I would say that 90 per cent of his travel is sponsored, but it depends on what one means by that. Some organisations actually contribute fares as well as costs, but very few do so.
Ninety per cent of the movements around the country of Mr Grassby are the product of paid invitations from those organisations which he visits. One can perhaps regard the willingness to expend money in this materialistic age as being one significant demonstration of the credibility and respect in which Mr Grassby is held.
– The appendix to his report shows an enormous number and variety of them.
– Yes, indeed. I am indebted to Senator Missen for drawing that to the Senate’s attention. What is extraordinary, of course, and the sting in the tail of that exchange during the Estimates Committee hearings is the way in which the Commission has been able to perform its function, to build this credibility and respect in the community at large, without any kind of reasonable level of financial or physical support from the Government.
– Or political support.
– As my colleague says, ‘or political support’. This legislation before the chamber is the measure of that. To do all the work that the Commission does and has done each year around Australia it has been given a staff of just 1 1 people, despite the fact that Mr Grassby has periodically pressed the Government for an addition to his establishment, as a basic minimum necessary to perform his task, of at least double that. The work load statistics, as demonstrated in the annual reports of the Commission, are quite incredible. Between 1975-76 and 1976-77 there was a 73 per cent increase in the complaints dealt with. Between 1 976-77 and 1977-78 there was a 38 per cent increase. Between 1977-78 and 1978-79 there was a 13.4 per cent increase. During that whole period the staff allocation remained absolutely static.
Similarly, in respect of finance, the allocation for the financial year 1975-76 was $1 12,000. In 1976-77 that went up to $239,200. In 1977-78 it was $256,786. In 1978-79 it was $300,000. The estimate for the current year is $315,000. I ask honourable senators to compare that with the $lm which the Victorian Government, just one State, has indicated it is now prepared to make available for a promotional campaign to eradicate racism in that State and Victoria is perhaps the least racist State, if I might claim that, in the Commonwealth. The Victorian Government is prepared to spend more than three times the annual budget that the Grassby Community Relations Commission gets for a whole year to maintain its on-going program of investigations, conciliation, education, research and promotion of human rights right around Australia. It is a scandalous situation. There is no doubt that the organisation has suffered and suffered badly as a consequence. Mr Wyer, again in the course of his evidence through the Attorney-General to the Estimates Committee hearings on 7 May this year- this is reported at page 286 of the relevant Hansard- when asked how the efficiency of the organisation was suffering as a result of this financial stringency, said:
Things are not being dealt with adequately. I think that this financial situation is a clear indicator of that. Complaints are not being dealt with adequately. They are being dealt with to the extent that staffing resources and general resources allow. What I am saying is not new. This situation is clear from the Commissioner’s last three annual reports. He has reported in this way to the Parliament.
Notwithstanding that stringency, notwithstanding that tightwad attitude that the Government has continually demonstrated in relation to Mr Grassby and his organisation, they have nonetheless ploughed on manfully to do the job that I have indicated and to enjoy and accumulate the respect that I have indicated. That ought not to be doubted or contested by any Government spokesman from the Minister down. Against that background, let us look and see what the Government is trying to do to the Community Relations Commission in this Racial Discrimination Amendment Bill.
In the first place, the object of the Bill is said to be the rationalistion of human rights machinery- that is certainly not something which is objectionable to the Opposition in principle- and as a result the amalagation of the Community Relations Commission into the Human Rights Commission. Again that is something that might not in principle be objectionable, but the difficulty, the obvious anomaly, is that there is not provision in the legislation for the Community Relations Commissioner to be one of the commissioners of the Human Rights Commission; nor, as I understand it, is there any intention whatsover on the part of the Government, without specifically mentioning it in the text of the legislation, to employ Mr Grassby as one of the new Human Rights commissioners. This is nothing short of a calculated insult to Mr Grassby and one which will not go unnoticed by the migrant communities whom he has served so irrepressibly and effectively.
The second criticism that the Opposition has about this legislation is that the various functions which are vested in the Community Relations Commissioner by section 20 of the Racial Discrimination Act, namely investigation and settlement of complaints, promotion of compliance with the Act and general research and education to combat racial discrimination, are now all given specifically to the new Commission. It is stated that these functions are to continue to be performed by Mr Grassby ‘on behalf of the Commission’.
The crunch comes in the proposed new section 20A (2), which states:
In the performance of a function on behalf of the Human Rights Commission, the Commissioner is subject to the directions of the Human Rights Commission.
It will be very interesting to see, for example, whether Mr Grassby will continue to be allowed to exercise his own judgment in relation to such matters as the issuing of court certificates in the Archer River affair, which honourable senators will recall involved the Queensland Government’s refusal to transfer land rights leases to an Aboriginal community. This was one of the matters in which conciliation machinery failed and failed spectacularly. It clearly had to be the subject of litigation, if the matter were to proceed further, but it has been the subject of some reluctance when it came to support from the present Federal Government.
Thirdly, although it appears on the face of the Racial Discrimination Amendment Bill that there is nothing in it to directly stop complaints of racial discrimination wherever arising, including Queensland, being channeled directly to Mr Grassby, as they have been in the past, the Opposition believes that one must take into account the potential effect of clause 1 1 (1) (b) of the Human Rights Commission Bill, which has an effect, and which would make it possible for the Commonwealth to delegate completely to a State any function relating to the promotion of the observance of human rights, ‘including functions of the Commission’. There is that possibility to delegate powers and functions, including the function of receiving and dealing with particular kinds of complaints to a State agency or instrumentality. One cannot forbear from commenting that continued pressure of the kind that has so far been so successfully exerted in the past, for example, in relation to Aurukun and Mornington Island, may well result in the Commonwealth handing back to States like Queensland the domestic enforcement of all or part of the Racial Discrimination Act. One hardly needs to stress how deplorable an abdication of Commonwealth responsibility that would be, but it is able to be accomplished as the text of this Bill now stands.
The fourth general matter that I wish to raise about the Racial Discrimination Amendment Bill is that Mr Grassby ‘s staff is to be transferred lock, stock and barrel to the new Commission, leaving him no powers at all of hiring, firing or deployment. In the explanatory memorandum to the Bill, the Government’s intentions in practice are stated as follows, and quite the relevant passage:
Under the arrangements proposed by the Bill, the staff of the Commissioner will be transferred to the HRC. The Commissioner will of course continue to be assisted by them in the exercise of the inquiry and conciliating functions-
I interpolate there: For how long remains to be seen. The passage continues:
But the promotional and education research functions under the principal Act will be carried out for the HRC
That point makes it abundantly clear, in my submission, just how empty is the earlier provision contained in the text of the Bill stating that the Commissioner for Community Relations is to continue to exercise his original functions on behalf of the Commission, as the quote goes. How can he exercise any functions at all if he is given no staff to help him perform them?
The fifth point is this: The powers vested in the Commissioner for Community Relations by the 1 975 Act in relation to the appointment of local concilation committees and the central Community Relations Council-not that that has ever been established- are now stripped from him and vested in the Human Rights Commission. The explanatory memorandum suggests that these are appropriate measures under the new arrangements, but that would appear to be so only if one’s object by this provision is to further humiliate the office holder in question. I think the final expression of the Government’s contempt for Mr Grassby, and no lesser word is appropriate, and also the Government’s discomfiture -
– Indeed, fear and discomfiture at his work to date- lies in the provision in the Bill which deprives him of the right or the duty to present an annual report to the Parliament. In future his work is to be reported simply as one part of the larger annual report of the Human Rights Commission. Not much imagination is needed to see how the provocative, stimulating, informative and far-reaching series of annual reports that Mr Grassby has produced since 1975 will be written in the future. It is obvious that the Government has wanted to rid itself entirely of Mr Grassby and all his works. But it has not been able to muster the courage to openly and honestly abolish his office. Rather, it will wait until his present statutory term expires, and in the meantime do everything possible to minimise his effectiveness and maximise his humiliation. The contempt that has thus been shown to both Mr Grassby and to the communities that he so effectively served should be matched in turn by our contemptuous rejection of this half-hearted mish-mash of new legislation. That is the attitude of the Opposition to this Racial Discrimination Amendment Bill 1 979. We regard it as wrong in concept, bad in its execution, incapable of surgery and incapable of amendment. We oppose it outright in the second reading stage, and if it goes beyond that we will oppose-it clause by clause in the committee stage. There will not be any amendments; it will be opposition, for the reasons that I have outlined.
Let me conclude, at some length still, by indicating a little more constructively perhaps than I have hitherto what is the Australian Labor Party’s attitude to an appropriate solution to these human rights problems. Let me start by saying, because it is necessarily a central theme in this package of legislation and in particular that part of it which concerns the Community Relations Commissioner, that we do not object to the better and more effective co-ordination of human rights machinery in this country. There has been a proliferation of such machinery at both Federal and State levels in recent years, in the areas especially of racial and sexual discrimination- if Senator Maunsell can bring himself for a moment to concentrate on concepts which will be entirely unfamiliar to him, I expect- and also in the area of privacy. There is a case, in the interests of avoiding confusion in the public mind and in maximising the efficiency with which rights can be protected in these areas, for all these various bodies to be integrated into a single organisational structure. But if this kind of exercise is to take place, it has to be effective. It has to operate in a way that is sensitive to the ends that we are trying ultimately to achieve, or I assume we are trying to achieve- though I am not sure in the case of some members of this chamber.
At the Federal level, to dismantle the Community Relations Commission, at the moment an effective and viable operation, and to incorporate it into this ragtag and bobtail new creation of the Human Rights Commission, would be a travesty of any such objective. Under present circumstances, given the attitudes, the motivations, the kind of machinery that is involved, it would be a disgrace. I might add that similarly to try, as the Government apparently intends doing, to dismantle the national network of employment discrimination committees, those tripartite bodies of employers, unions and government which have engaged very successfully in the -
– That has been quite clearly denied by the Attorney.
– That is a matter on which the Australian Council of Trade Unions, the Confederation of Australian Industry and the Chairman of the National Committee on Discrimination in Employment and Occupation, Dr Colin Hughes, remain quite unpersuaded. Given the fact that the responsibility for these communities at the moment is still tenuously within the Ministry of Employment, and possibly within the area of industrial relations- there seems to be some kind of tug of war going on in that particular area- those Ministers who have the most immediate responsibility for the administration of that particular informal anti-discrimination operation have not made the position at all clear. It is true that the Attorney-General (Senator Durack) has gone further than the other Ministers to indicate his own view of that particular situation, but what the reality is in terms of the Government’s position still remains very unclear to that organisation and those committees.
– When I write letters to the national Press I write them on behalf of the Government. You should know that.
– That may be so, Attorney. 1 am delighted to hear it. I will certainly take that view in the future. But the reality of it is that there is a feeling of uncertainty abroad. The promised creation of those particular organisations in the future on a statutory basis has not yet been forthcoming. The answer on that particular front apparently has been held over pending the outcome of this legislation, and the situation is, so far as those organisations are concerned, still unclear. I do not mind personally whether ultimately those two committees are integrated into an effective organisation of a national sweeping human rights law enforcement kind. But what one is concerned about, and I am delighted to get a denial, if that is what has just emerged from the Attorney’s lips, is that there may be some residual lingering temptation, once this new machinery is established, to rationalise’, to ‘clear the boards’, and to vest this particular function in the Human Rights Commission. A very unsatisfactory exercise that would be were it to come about in those terms.
At the State and Territorial level, when one moves beyond the purely Federal scene, the Government acknowledges, and has acknowledged by its actions over the last two or three years, that there is a case for trying to weld together the various existing State and Federal human rights agencies into some kind of coherent form of organisation, and the Bill, I suppose it must be acknowledged, does create the framework for further development on a co-operative federalist basis in that particular respect. But experience so far surely should have persuaded the Government, and certainly persuaded Mr Bailey, as the Government’s main adviser in this area, that cooperative federalism, here as elsewhere, is destined to be an abject failure, and that there is no prospect of getting effective, inegrated acrosstheboard machinery unless the Commonwealth itself takes the initiative and exercises that constitutional power which it almost certainly in my belief at least has available to it under the external affairs power, and enacts its own human rights legislation.
The centrepiece of the legislation, in the Opposition ‘s opinion, should be a national human rights Bill. It is this kind of legislation one model- not the only one- for which presently exists in the ill-fated Human Rights Bill of 1973 which we suggest ought to be the re-written form of this legislation. It is to the creation of that kind of more effective piece of national human rights machinery that our second reading amendment is directed. I repeat the terms of that amendment which are that the present Human Rights Commission Bill be withdrawn and redrafted to provide for:
It will be noted that it does not say ‘in identical terms ‘ to- the 1973 Human Rights Bill.
It may be appropriate for the record, without endeavouring to traverse in any way the whole sorry history of the 1973 Human Rights Bill and the storm of ill-understood reaction that it created -
– Some of us understood it, Senator.
– Some, indeed, understood it, Senator Missen. I remain eternally grateful for that. That Bill regrettably drowned in 1 973 in a sea of hostility from various sources. It came from the complacent, mostly conservative lawyers, who saw no need for any Bill of rights. Then there were the sceptics, mostly journalists and other lawyers, who saw a need for a Bill of rights but doubted that that one would work. There were the law and order types who thought the Bill would work all right but for the wrong kinds of people. There were the States’ righters, probably the most significant lobby group of allmiscellaneous State Premiers and Supreme Court judges prominent among them- who hoped that the Bill would not work at all in thenown backyards. There were the old fashioned Parliament men, if I can so describe them, like Jim Killen, who were against what they perceived to be an encroachment by the judiciary on the rights, prerogatives and preserves of the democratically elected representatives of the Parliament. The largest category of all, if not the most significant in their opposition, were the suspicious, mostly clerics, who saw the whole thing as a kind of gigantic fiddle aimed at denying them their rights. That was the kind of environment in which the 1 973 controversy was fought out. I shudder at the thought of any repetition, but the risks of creating that kind of opposition have to be taken on and overcome by any government which is concerned to get a rational mechanism for the enforcement of human rights in this country.
The kind of model that the Australian Labor Party is committed to in this respect is a national Bill of rights. Putting it simply, a Bill of rights is a document which identifies fundamental rights and freedom and requires that they be respected and perhaps sets out some mechanism for their enforcement. We acknowledge that it is appropriate and possible for such a Bill of rights to be introduced not only at the national level but also at the State level. We would be all too delighted were any State to take, in addition to any initiative which might operate at the Commonwealth level, such an initiative and introduce such a piece of legislation. I notice in a Press report in the Courier-Mail of 9 April this year that the south-east regional conference of the Liberal
Party in Queensland thought the concept of a Bill of rights- understandably enough in that State- was an admirable one. Any such initiative would be welcomed by the Labor Party. We are not so besottedly centralist in our approach to this or anything else that we would not welcome such an initiative taking place at a State level as well as at a Federal level.
We make the point and will make the point throughout this debate that the real problem of human rights is at the State level and that we are only touching the tip of the iceberg if we operate at the Commonwealth level. At the national level a Bill of rights could take the form of something that was incorporated in the Constitution itself. That, to me and to the Labor Party, remains a viable and sensible longer term goal. But pending the achievement of that millennium we would regard it as appropriate and desirable that a Bill of rights be incorporated into national legislation, along the lines of the 1973 Human Rights Bill. We believe it appropriate, if that legislation is to be worthy and deserving of the name, that it actually set out in specific detail the particular rights which are being protected and give them some stature, some legal force.
The kinds of rights that would be appropriate to deal with are essentially those canvassed and covered within the Civil and Political Rights Covenant. I do not think it is appropriate, although some people do, to talk about a Bill of rights as appropriately containing references to the right to clean air, a basic income, health care and so on. Rather, I think it is appropriate to talk, when one is giving civil liberties legislative form, in terms of traditional civil and political rights, which do not depend on the mobilisation of large financial resources for their realisation, but simply depend on the attitudes, actions and good faith of governments. A lot can be said, but this is not the time or place to do so, about the kind of language in which it would be proper to couch such a national Bill of rights. It is possible- there are ample precedents in other countries for both ways of doing it- to use either very broad and general language or on the other hand very precise, meticulous language which is elaborately concerned to specify the exceptions and exemptions to the particular basic rights in question. My personal view would be to favour, at least so far as the statement of the basic rights themselves is concerned, relatively short, simple and elegant language, that being important not so much from the point of view of ease of judicial or other interpretations but because of the crucial imagination-capturing and educative role that such legislation would necessarily have to play. I would not go quite as far as the United States in that respect nor perhaps even adopt the precise language used in the 1973 Human Rights Bill in expressing rights. But I do think it is possible, within the kinds of parameters I have indicated, to produce statements of rights in terms which are both succinct and sufficiently meaningful legally to be capable of application and practice, but which are not hopelessly offputting to the ordinary layman or average reader.
I do not accept for one moment the age old criticism about Bills of rights that some danger is involved in specifying and listing particular rights because by doing so we exclude the possibility of the continuing enjoyment of other rights which may have been accidentally or inadvertently omitted from the list. The simple technical solution is the insertion of a clause, called technically a ‘non-derogation clause’, in a Bill of rights which simply says that the enjoyment of any of the rights here set out does not in any way derogate from the existence of such other rights, whatever they may be, which have hitherto been recognised.
So far as the enforcement of a national Bill of rights of the kind that I am urging is concerned, it is important, I think, that there be some role by way of enforcement given to the courts, both to make declarations that particular laws or Executive acts are in breach of the Bill of rights’ guarantees and to apply standards in matters where they are otherwise lacking, for example, the criminal law enforcement area. I know all the arguments about the conservatism of judges. I know of their likely tendency, in the Australian environment, to approach a Bill of rights with the same degree of application as they would approach a dog Act or a tax Act. I know that the libertarian attitudes of our judiciary tend to be somewhat conspicuous by their absence. But I do retain a confidence that, by having such a piece of legislation on the statute books, it could cause no harm and may do some positive good. That needs to be argued, and obviously I am running out of time in which to argue it now.
Such legislation may, and I believe over a period it would, do a substantial amount of good in that it would give litigants and judges tools with which to work in striking down unconscionable legislation and unconscionable behaviour. It would give them tools which they presently completely lack, given the way in which our law is approached. In addition to the courts, I believe that it is appropriate and desirable that there should be enforcement mechanisms and enforcement machinery of an investigative, conciliatory kind, with which we have become familiar in the work of Mr Grassby, the Community Relations Commission, the various States’ sexual discrimination and equal opportunity commissions and the Privacy Committee in New South Wales. They and many overseas jurisdictions provide models from which we can learn.
The final point to be made about the concept of a Bill of rights is a very important one, namely, that it is not in any view- certainly it is not in our view- a universal panacea. It is not the only approach one should adopt to human rights. It is not a substitute for other more specific, more piecemeal solutions to particular human rights problems in the privacy area, the sexual and racial discrimination area, the criminal investigation area and other areas as well. But it is a fundamentally important back-up mechanism. If it were to be enacted in the way in which I have suggested and in the way in which it is encouraged to be enacted by the amendment which the Opposition has moved to the motion for the second reading of the Bill, we would be a hell of a lot further down the track in the protection of human rights than we are at the moment with the two Bills which are before us.
If the present Bills represented a genuine effort to take a step along the way towards the creation of effective human rights machinery in Australia, one could and would do nothing but applaud this new legislation. But the circumstances of the introduction of the Bills and the barest scrutiny of their terms show that the Government is intending nothing of the kind. The Government must not be allowed to get away with the pretence.
The ACTING DEPUTY PRESIDENT (Senator Davidson)- Is the amendment seconded?
– I second the amendment, Mr Deputy President, and reserve my right to speak at a later stage in the debate. ( Quorum formed).
– I rise to speak on two Bills which I assure honourable senators are among the most important Bills which have been brought before this Parliament this year. I believe they deserve a great deal of consideration by this House and by the public. The Human Rights Commission Bill and the Racial Discrimination Amendment Bill, which are connected pieces of legislation, have been in gestation for quite a long time. It is important that if they emerge from the Parliament they should do so in an effective and useful form. One would expect under those circumstances that every effort would have been made to ensure that as much information on the Bills as possible was available. I start my speech by expressing great surprise at the attitude which the AttorneyGeneral (Senator Durack) and his office have adopted with regard to the submissions which have been made to them on the legislation by a number of respected and, I think, very important organisations- organisations such as Amnesty International, the United Nations Association of Australia and various others.
In the past few weeks I have endeavoured to ensure that the contents of the representations which organisations have made, copies of some of which have been sent to me, were known to other honourable senators and honourable members. On 18 October I asked the AttorneyGeneral by question whether he would make copies of them available to honourable senators and honourable members. Only this morning I received from the Attorney-General an answer to my question, in which he said:
I have received representations from many organisations including Amnesty International and the United Nations Association of Australia, concerning the two Bills. I do not think it is appropriate for me to release these representations. However, should these organisations wish their views to be known to members of the Senate it is open to them to make copies of their representations available to senators.
– That is fair comment.
– It is very late for honourable senators to be expected to try to obtain copies. It has been suggested to me that those organisations might be embarrassed if their representations were made public. They put their representations forward desiring them to be considered by the Government and desiring them to be made public. Therefore, this afternoon I communicated with the organisations which I know made representations and some of them have made an attempt to communicate with the Attorney-General’s office to indicate that they wish to have their representations known to honourable senators. I believe that honourable senators ought to have an opportunity to read them. I do know that, in all the representations of which I have received a copy, the organisations concerned universally have been critical, in different ways, of the legislation as it stands before us. As much as I am able to do so, I will make copies of such representations available to honourable senators and honourable members while this debate continues.
I believe that there is a need for this type of legislation, and I support the creation of a
Human Rights Commission in this country. At the same time, I do not find that I can support the second Bill which is before us. I think that we can make alterations to the Human Rights Commission Bill which will turn the proposed Commission into an organisation which can be effective, but I do not see any way in which we can deal with the other Bill, the Racial Discrimination Amendment Bill, which has been criticised so vehemently by Senator Evans this afternoon. Whilst I might not agree with some of the nuances of his expressions and some of the harsher judgments he made, I believe that the criticisms of both Bills which already have been made have substantial justification. In the course of my speech I will mention one or two of Senator Evans’ arguments.
I believe that what is fundamental is that it is no good relying on common law to defend and promote civil rights, human rights, in this country- one might say in any country. Nor do the people in Great Britain, the originators of the common law, these days consider that the common law is adequate. Undoubtedly, for hundreds of years- more particularly, in the past 100 years- legislation has been needed to ensure the protection of human rights in the democratic countries. Action through the courts, through common law, has proved, time and time again, to be inadequate. Magna Carta, the basis of our liberties, was not something which the judges discovered. It was a matter of legislation; a matter on which the King and the barons got together. That was how it was founded. The Bill of Rights of 1688, which was a settlement from which a number of our rights and parliamentary liberties have come, was a matter of legislation and not a matter of common law. The world did not get rid of slavery by the common law. In fact the common law was very busy upholding slavery and the rights of slave owners. It was legislation which caused these things to be removed. Likewise, it is necessary that these international covenants should receive that type of consideration and be used to defend the human rights of the people.
I refer to a speech entitled ‘Human Rights: The Challenge for Law Reform’ which was recently delivered by His Honour Mr Justice Kirby as the Turner memorial lecture. In it he spoke about the Australian debate on this subject and said:
The Founding Fathers, when they settled the Australian Constitution, agreed by a small majority not to include a Bill of Rights, after the American model. Such ‘rights’ as were mentioned in the Constitution (section 92 apart) have received scant attention and circumscribed interpretation.
The traditional explanation for this, in Sir Owen Dixon’s words, is as follows:
Civil liberties depend with us upon nothing more obligatory than tradition and upon nothing more inflexible than the principles of interpretation and the duty of courts to presume in favour of innocence and against the invasion of personal freedom under colour of authority.
So there has not really been very much experience in Australia of human rights being protected by the courts.
Of course, I say in response to Senator Evans that where I leave him is that I do not see a justification for a bill of rights. I am probably one of those lawyers of whom he was somewhat critical and who in 1973 investigated the need for a bill of rights and were not satisfied that there was such a need. If we had a Bill of rights we would be dependent again on the interpretation of judges. It is because of the failure of interpretations by judges that we have needed international conventions. I do not see a Bill of rights as a solution to our problem. Lord Justice Scarman said recently that the universal common law is in retreat. A great English judge is there coming to this conclusion. I think that is obvious from the entry of Great Britain into the European Economic Community, its adoption of European conventions and its allowing the situation in which the European courts can now apply legislation which can override the common law.
One of the most authoritative things said about this was in an article entitled ‘Human Rights, the Common Law and Australia’s International Obligations’ by Professor Alex Castles. In that article, he said:
The common law has therefore not fared well as a course of basic principles and rules on the protection of rights and freedom. Even the common law tradition, which may influence judicial approaches towards favouring the liberty of the subject in the interpretation of statutes or constitutional provisions has not always been all that self-evident in the decisions of our courts . . .
The constraints in judicial law making have been one cause, although not the only one, which have contributed to the need to establish new and more effective means, more in tune with our times, to deal with many aspects of justice being done and seeming to be done. The creation of the office of Ombudsman is an outstanding example of this. The number of cases where action has been required by Ombudsmen has exposed the relative ineffectiveness of our traditional means for dealing with human rights matters.
One could say also that the whole development of our administrative law, by legislation, has made this very necessary. I say to those of my colleagues who have a feeling that somehow the cosy common law is sufficient to look after our rights and will do something about them that it has not been proved so. As a lawyer who believes in the tradition and desirability of the rule of law and the use of the courts, I say that it is quite false to rely upon the common law to defend human rights.
As a result of this thinking, over many years we have seen the development of international covenants; and one of them is concerned basically with the first Bill that we are dealing with today. The Universal Declaration of Human Rights of 1948, of course, set out the series of rights which were then thought to be sound, which I think are still substantially sound today and which are basic to the rights of human beings. Since that time they have been spelt out in further covenants. First, the rights in the Economic, Social and Cultural International Covenant have been adopted by many countries; and we as a nation have signed and ratified that covenant. We might not have done a great deal about enforcing it. The other covenant which is central to the Bill is the Civil and Political Rights International Covenant which has been signed by us but which, as has been pointed out already, we have not yet ratified. I believe its ratification is something we ought to be doing. We ought to do it now. I see no reason why we should not do it.
I propose to move an amendment which would specifically show approval of the Parliament for immediate ratification of it. I do not believe there is any need for us to get our laws in some sort of order before we ratify it. That apparently must be the view of the Government which talks about early ratification, because it is clear that we are not going to alter our laws substantially between now and December or whenever we ratify it. But we ought to ratify that covenant now. One reason we ought to ratify it is that we have been elected to the United Nations Human Rights Commission. We are serving a period of three years on that Commission and we, as a nation, should be setting an example for other nations. Even if our rights are in a reasonable condition, we, as a nation serving on that Commission, should go ahead and ratify this Covenant.
We have given some examples of our desire to carry out various international covenants. Last year the Australian Government submitted to the World Conference to Combat Racism and Racial Discrimination a national report which stated that action taken in this country to combat racial discrimination had been based on five principles. I will read out the first three:
The two other principles relate to programs of education and other special programs to promote that covenant. I do not believe that we have adequately enforced that racial discrimination covenant as yet. We have quite clearly not spent enough money in that area and quite clearly there is a great deal of difficulty for people to enforce it. They are forced themselves to go ahead with proceedings if they want to take action. Nonetheless, we have done something in that area. But we have yet to do anything very substantial in the general area of human rights covered by this Bill.
As a final matter in regard to this aspect of our development and of the principles that we ought to be applying, may I quote from the Federal platform of the Liberal Party. It sets out our views on justice and law reform and then says that one of the matters that should be done to give effect to the principles is:
Protect the civil liberties of the individual in society including the implementation of civil, political and social rights wherever applicable according to international conventions adopted by Australia, in fields of Commonwealth power or where the adoption of the convention has been approved by the States.
As a Liberal senator, I am committed to the necessary activity in the enforcement of international covenants to which this country has put its signature.
We have before us a proposal for a Human Rights Commission. In a sense it is a half-way house. I support the present proposals. I do not think the alternative which, for example, Senator Evans advocates, of a Bill of rights, is applicable in this country at this time. It may be that if we fail to set up a suitable Human Rights Commission, and if it is not effective, then we may have to consider adopting something like that course. We should try this commission approach first and endeavour to make it work. Senator Evans said that he could see no positive harm coming from having a Bill of rights. That seems to me to put it on a very low plane indeed. One needs to be very much more satisfied than that before one adopts that course.
One remembers the enormous amount of disputation that occurred in 1973 when Senator Murphy brought down a Bill designed to create a Bill of rights. No one knows just how the courts would have interpreted parts of that Bill of rights, or what we would have had. The Americans have found their own difficulties in following such a course. They have found at times that human rights, civil rights, have been badly protected. The Supreme Court has made a ruling which presents a different idea altogether. Thus, one would be very much in the hands of the judges. Of more major importance- an aspect that Senator Evans tended to dismisswas that the States and others were extremely frightened by that concept of a Bill of rights. They could see their laws being overridden, their rights being taken away from them. Probably their fears were exaggerated, but I think they were real and resulted in a situation in which one could have a conflict between human rights as one principle and federalism as another. Those two principles should not be brought into conflict. I believe that nothing that I will do in the course of moving amendments to this Bill will in any way cause such a conflict. I will come to that later because there is abroad an idea that somehow I am going along that road with my amendments. The truth is, of course, that that is not so.
I say let us take this course of establishing a Human Rights Commission, a body which will investigate and do many other things, and will tell us a lot more about human rights in this country. It may lead to something else. We must judge that after we have seen it in operation. I hope that we can make this an effective Bill. I realise that my colleague, Senator Lewis, proposes to move an amendment to insert a sunset clause. If we cannot create an effective measure I will certainly support his endeavours in that regard. That would at least ensure that in a few years we could look at the legislation again and would not be in the situation in which a government would, by inertia, just let matters go on and take no action because that would not be necessary.
– But if your amendments are not carried, if you cannot make it effective, would you vote for what would be an ineffective Bill?
– If my amendments are not adopted we will be passing something that will be a weak, sickly Bill. I would rather that that be done as a first step. At least we would learn whether the Bill can be effective. It is even possible that I could be wrong: that the Bill could be better than I now believe it to be. I am an optimist but I would rather see a commission of some weakness set up than nothing at all. I would also prefer something hanging over it. The approach of death, it is said, concentrates the mind wonderfully. If we could not get a really strong Bill it would concentrate the mind of government to have such a clause in the measure.
In 1977 we had introduced a Bill that was not debated because the Parliament came to an end. but negotiations with the States have proceeded since that time. I believe that substantially they have failed. The States were encouraged to have members on such a Commission, to bring their laws within its ambit, but they have not been willing to do that. However, they have left some finger marks behind because the present legislation contains amendments which were not in the 1977 measure. Some of them are dangerous and need the close examination of the Senate. One recognises that the States have taken their bat and ball and gone home so far as this Bill is concerned, and they are not participating in this legislation. Doubtless the Attorney-General (Senator Durack) hopes that they may still participate. That is yet another reason for having an Act in operation. In that situation negotiations can continue.
We must bear in mind that Article 50 of the International Covenant states that the Covenant applies to all parts of federal States, without limitation or exception; that they must be considered. We cannot escape our obligations, cannot derogate from the Covenant, by saying that we are just a federal State and are concerned with federal laws only. I do not believe the Bill could ever be adequate if if did not take consideration of State laws.
I repeat that representations have been made on the basis of the 1977 Bill. A few of them have been accepted and the measure contains some improvements, such as provision for conciliation proceedings, the setting of educational objectives, and opportunities for involving State governments. Some of these have merit, so something has emerged from the public debate that took place on the 1977 Bill. However, the present discussions show that the Bill is indeed still weak. I refer to a comment that has been made by Amnesty International, an organisation which made representations concerning both the 1977 Bill and the 1979 Bill. The national organisation of Amnesty International recently sent a telegram to the Prime Minister (Mr Malcolm Fraser) expressing its grave reservations about some aspects of the Bill. In more detail its New South Wales president, Mr J. S. Coombs, Q.C., wrote to me in these terms:
It has long been a policy of Amnesty International to support the establishment of a Human Rights Commission in this country and to press for the ratification of the international covenant itself, but if the present Bill were passed unamended, the Government would lay itself open to a serious charge of hypocrisy.
He proceeded to give a number of criticisms which in all cases are taken up by amendments that I intend to move. He defines the weaknesses of the Bill and illustrates the hypocrisy to which he refers. It is a serious charge but one to which we must lay ourselves open as senators if we do not consider carefully the representations that have been made. I have in mind the representations that have been made on the Bill by the Queensland Council of Civil Liberties, Amnesty International, the Australian Council of Social Service, the Australian Council of Churches, the Uniting Church, the senior and junior branches of the United Nations Association and Aboriginal organisations. In earlier days there was criticism by the Law Council and other legal bodiescriticism which I believe would be maintained today. Honourable senators should examine those criticisms because there exist serious weaknesses which we are in a position to repair.
I turn now to the main weaknesses, as I see them, in the Bill. I have engaged somewhat in the public debate that has been prompted by this Bill in the last few weeks and have forwarded to all honourable senators, as well as to many other people, a critique of the Bills setting out the matters which I believe require amendment. It might save some time if I were to seek leave to incorporate that document in Hansard. It sets out a number of the views to which I have referred.
The document read as follows-
By Senator Alan Missen on the terms of the 1979 Human Rights Commission Bill and Racial Discrimination Amendment Bill (As introduced in the Senate on 25 September 1 979)
Objectives of the legislation
The Human Rights Commission Bill creates a Commission designed to ‘protect and promote the observance of human rights throughout Australia within the limits of Commonwealth power’. It will investigate Commonwealth laws, and acts and practices under Commonwealth laws, and report on the extent to which they fail to comply with the human rights described in the International Covenant on Civil and Political Rights 1966 (which Australia has signed but not yet ratified).
The Bill differs in some degree from the 1977 Human Rights Commission Bill (which lapsed on dissolution of the Parliament), particularly in its provisions for involving States and State authorities in the performance of the functions. It also incorporates a number of minor but useful amendments, some suggested in representations made on the 1977 Bill and others subsequently by Government Members and Senators.
Unlike the Racial Discrimination Act 1975, the Bill does not formally approve ratification of the Covenant although the Government has expressed its desire for early ratification.
The Racial Discrimination Amendment Bill is a complementary Bill which will transfer the functions, now performed by the Commissioner for Community Relations (Dr
Grassby) to the Human Rights Commission while preserving only the Commissioner’s investigating and conciliatory powers. Those limited powers which he retains are to be performed thereafter under the ‘directions’ of the Commission.
Clauses of the Human Rights Commission Bill ( 1979)
Apart from minor or technical matters, the following provisions give cause for concern and I propose to seek amendment of them:
The ‘functions’ of the Commission are severely limited. Under clause (9) (d) reporting an action needed to be taken by Australia to comply with the provisions of the Covenant (or other relevant international instrument) is to be performed only ‘when requested by the Minister’. It should have power to present such reports on its own initiative and not be forced to await Ministerial instructions.
More fundamentally, the function of examining enactments or inquiring into acts or practices applies only to Commonwealth laws (Clause 3). The Bill does not permit the Commission to investigate any breaches of human rights under State laws. As probably 95 per cent of breaches take place under State laws (which cover most areas of the criminal law, police, personal rights, et cetera), the Commission will be dealing with a mere fragment of the relevant laws, acts and practices covered by the Covenant. (N.B. Article SO of the Covenant states that it ‘shall extend to all parts of federal States without any limitations or exceptions ‘).
Clause ( 10) (4) (f) empowers the Commission to decide not to hold an inquiry as a result of complaint if the complainant does not have a sufficient interest in the subject matters of the complaint’. It was pointed out by Amnesty International and other bodies making representations under the 1977 Bill (where this also appeared), that it should not be necessary to establish any ‘sufficient interest’ when a person or body is complaining of breaches of human rights. Whether the ‘sufficient interest’ is held to be financial or otherwise, the requirement is unnecessarily restrictive.
Clause 1 1
Clause 1 1 makes provision for ‘the Minister’ (presumably the Attorney-General) to make an arrangement with a State Minister (including Northern Territory) to perform Commonwealth functions or functions of the Commission relating to the promotion of the observance of human rights’. Clause 1 1 ( 1 ) (b) and (c) would accordingly enable the Minister to exclude entirely or by-pass the Commission (or the Commissioner for Community Relations) and allow State authorities to take over investigation of complaints or carry out its work. For example, the Minister could arrange for Aboriginal complaints in Queensland to be investigated solely by Queensland Government authorities and the Commission would be powerless to intervene. While this may not be the Government’s intention, the power is clearly there and the Commission (and Commissioner) would be effectively excluded. It is a dangerous diminution of the powers of the Commission and Commissioner for Community Relations.
Moreover, such ‘arrangements’ may contain ‘such incidental or supplementary provisions’ as the Federal and State Ministers ‘think necessary’ (11 (2)). They may be varied or revoked by the Ministers at will. They must be in writing and published in the
Gazette but are not subject to tabling or disallowance by any Gazette of the Commonwealth Parliament (as usually applies to regulations and other statutory instruments). It is a dangerously uncontrolled power.
Clause 12 enables the Commission to act informally and, quite properly, states that it is ‘not bound by the rules of evidence’. However, as there is danger that some complainants or witnesses (especially employees) may suffer victimisation because they give evidence supporting a human rights complaint, some restricted power should be given to the Commission to enable the anonymity of such complainants or witnesses to be preserved in necessary cases.
Clause IS contains unique features (not included in the 1977 Bill) which bear directly on the freedom of information debate in Australia. It anticipates the final form of the Freedom of Information Bill 1978, which is presently being investigated by the Senate’s Constitutional and Legal Affairs Committee, which will soon report to the Senate. Clause IS (2) creates a system of conclusive certificates which the AttorneyGeneral may sign, denying the Commission access to documents on grounds of security, defence, international relations; which may ‘prejudice relations’ between Commonwealth and a State; which may disclose deliberations or decisions of Cabinet or a Cabinet Committee; or which may otherwise be privileged injudicial proceedings. The system of ‘conclusive certificates’ has been widely criticised in public evidence before the Senate Committee.
Going further than this, Clause 15(3) and (4) create a further unprecedented restriction on the Commission in respect to documents that do not come under the categories described in Clause 15(2). In dealing with these other documents, the Chairman of the Commission is required to ‘pay due regard to any reason ‘ specified by the Attorney-General in claiming that disclosure would be contrary to the public interest. A new breed of ‘almost conclusive’ certificates is being placed in the path of the Commission.
It is relevant, at this stage, to refer to Clause 34, a secrecy provision which was not to be found in the 1977 Bill. It was apparently inserted to ‘enable the Commission to enter into effective working arrangements with State agencies ‘.It imposes prohibitions on past or present members or staff of the Commission from disclosing information relating to the affairs of another person, acquired in their office or employment by the Commission. Except when ‘necessary to do so for the purpose of this Act’ such information or documents cannot be divulged or produced to any court. It appears, therefore, that the results of Commission enquiries including admissions of breaches of Commonwealth laws will not be available for any subsequent prosecutions for such breaches- a grave restriction on the value of the inquiry to any public or private prosecution.
Secrecy’ clauses, in general, are at present being reconsidered by all Government Departments at the Government’s direction to see whether they should be preserved or not when the Freedom of Information Act comes into operation: yet, here we are creating a new secrecy clause. 1 propose that Clause 15 (2) (3) and (4) and Clause 34 should be deleted from the Bill, at least until the final form of our laws on disclosure of government information is settled.
Clause 16 (0 Enforcement of Human Rights. Clause 16 concludes the Commission’s investigation of complaints by providing that it will report to the Minister, with recommendations, any Commonwealth enactment or any act or practice inconsistent or contrary to any human right.
The Report would be tabled in Parliament within IS sitting days but thereafter the Commission’s functions cease.
This is the fundamental weakness of the Commission process. Publicity of complaints can achieve improvements, as the Ombudsman demonstrates, but action on reports to Parliament has, on many occasions, been delayed or found wanting. Moreover, the Ombudsman analogy is not a sound one. The Attorney-General, in his 2nd reading speech, asserts these reports, and the attendant publicity, will be its sanction as with the Ombudsman’. The Ombudsman works on Government Departments and they and their Ministers are certainly vulnerable to public opinion. But individuals who may breach human rights (an employer, a Union or a publican for example) may be determined on a course of discrimination and in no way susceptible to public or governmental pressure. Publicity is not enough.
Contrast this Bill with the Racial Discrimination Act, which provides various offences which may be prosecuted to ensure compliance with the ‘International Convention on the Elimination of All Forms of Racial Discrimination’, which we ratified in 1973. Under that Act, the Commissioner for Community Relations must first give a certificate that attempts at settlement have been tried, and then a private individual may prosecute and a Court can make the necessary orders. No such machinery exists under this Bill. Indeed, as I point out in paragraph (e) above, the Bill substantially inhibits the use of information obtained in an inquiry (Clause 34). When an individual therefore tries to prosecute for breach of a law, he may be worse off than if no Commission inquiry had taken place.
It is interesting that, while this restriction is placed in the way of prosecutors, the Bill (rather differently from the 1977 Bill) now includes a provision (Clause IS (8) excusing a person from answering questions before the Commission ‘that might incriminate him’. The balance seems to have swung sharply against the complainant who wants to prosecute a human rights violation.
At the very least there should be provisions in the Bill requiring reports to be considered by appropriate Parliamentary Committees and /or prosecutions launched where breaches of law involving human rights are shown. If the Government will not prosecute, the right of an individual to prosecute for breach of human rights should be specifically affirmed.
The Racial Discrimination Amendment Bill ( 1979)
This accompanying Bill, which had no 1977 counterpart, is subject to considerable objection and, unless it is substantially amended, I will oppose its passage.
The Racial Discrimination Act 197S was passed with the support of the ALP Government and the Liberal-Country
Parties, then in Opposition, but it was only passed after substantial amendments were agreed on. It established a workable method of compliance with the International Convention, which Australia then ratified. It has operated, overall, with considerable success under Dr A. Grassby as Commissioner for Community Relations and has contributed to a better community. As one who supported the Act strongly during and since its passage, I am not willing to support any amendments that weaken its operation.
The major objections to the present Bill, as I see them are:
It places the Commissioner under the complete control of the Human Rights Commission without making him a member of that Commission. Clause 7 of the Human Rights Commission Bill provides for a Commission of 5 to 9 members. The Commissioner for Community Relations, who already has specific responsibilities in the area of racial discrimination, is not named as a Human Rights Commissioner and it is clear to me that he will not be appointed to such a position. He will be a mere employee or agent of the Commission. There is indeed a case for amalgamating the operations concerning racial discrimination with other human rights (as the Galbally Report recommends), but not by downgrading the existing working operations of the Racial Discrimination Act and debarring its Commissioner from the policy determinations of the Commission.
All complaints will in future go to the Commission (Clause 6) and the Commissioner for Community Relations is to be confined to inquiring into alleged infringements and endeavouring to effect settlement of infringements. His existing functions of promoting an understanding and acceptance of, and compliance’ with the Act, and developing research and educational programmes including ‘promoting understanding, tolerance and friendship among racial and ethnic groups’ are to be taken from him (Clauses 4 and S). The idea that such functions can be entirely separated is preposterous. It is interesting to note that under Clause 1 1 of the Bill, there is a transfer, from the Commissioner to the Commission, of the right to receive advice and recommendations from the Community Relations Council. Yet the Community Relations Council, which was to be established under the 197S Act and could have performed useful work, has not been set up at all.
It is to be observed also that, even in his limited remaining functions, the Commissioner acts ‘subject to the directions of the Human Rights Commission’ (Clause 5). Note that this is not merely subject to general or overall policy directions but ‘directions’ in the broadest sense. At the same time, he has no right to take part in the determination of policies and has no equality of voice with other Commissioners.
The Commissioner for Community Relations ceases to have any staff (Clause 12) and will be totally dependent, for staff, on the Commission. As I anticipate that the Commission’s staff will be severely limited, particularly under existing staff ceilings, the work of the Commissioner for Community Relations in enforcing the Act must be expected to diminish.
The Commissioner for Community Relations will no longer deliver an annual report to the Parliament (Clause 16) and will accordingly be dependent on any reference that the Commission makes to his activities in its own annual report
Delegation of powers. Clause 13 gives the Commission the sweeping authority to delegate ‘all or any’ of the powers now to be exercised by it under the
Racial Discrimination Act. At the same time, the Clause restricts the Commissioner for Community Relations from any delegation of his powers except to a member of the Commission ‘s staff or any person the Commission approves. Bearing in mind the possibility of racial discrimination occurring in remote areas of the country, the contrasting power of delegation is significant.
It will be noted that the powers over racial discrimination now being transferred to the Commission are not ‘toothless’ but have been developed with limited facilities yet with overall success. On the other hand, the Commission’s powers in all other human rights areas are to be severely restricted as I have demonstrated above. If the powers are to be so variable, then the case for amalgamation is accordingly weakened.
We have protected individual rights and reformed outdated laws. The Ombudsman, and Administrative Appeals Tribunal protect basic civil liberties. We will establish a Human Rights Commission to expand that protection further and we will bring in freedon of information laws.’
The Government’s obligation is surely to create a Commission that is no less effective than had already been proposed under the 1977 Human Rights Commission Bill.
Alan Missen Senator for Victoria Telephone: 62 2521 2 October 1979 Commonwealth Parliament Offices, 400 Flinders Street,
-I thank the Senate. I will trace briefly the major areas that I believe demand action if we are to be satisfied with the Bill. As Senator Evans has said already, the Bill contemplates no examination of State laws, Acts and practices. However, the amendment that the Opposition has moved is one that I cannot support, because it goes much further than I would wish to go. The honourable senator wants to bring State laws right into the ambit of what is a Federal commission. It seems to me that if we are going to have a Commission which looks into human rights and violations in Australia, it must be in a position to examine the various aspects of those laws. It has got to be able to look at State laws. I will give an example of this. Let us say one of the areas in which there is considerable worry about our compliance with the international covenant is the area of the laws of assembly and procession in this country. Of course, there ought to be examinations of those laws. We ought to be in a position where this new Commission can compare the laws that operate in different States. They are not all bad. It is not just in one State. The Commission ought to look at those laws and compare them with the existing Commonwealth laws and overseas laws. It should report to the Parliament on them and try to reach some agreement or find some preferable type and operation of those laws. Therefore, to be able to look into that seems to me to be one of the objects that obviously should be within the powers of this particular Commission. That does not happen under the Government’s Bill. When one looks at the amendments which I propose to move, one sees that certainly it is only the power of inquiry into the laws that I am concerned to ensure that the Commission will have. Moreover, I tie that to relevance to other functions. But it should be relevant to the other functions which this particular Commission is carrying out. I want to make that very clear. I am not suggesting for one moment, nor do I think we ought to embark on or proceed into the areas where we try to either deal with State laws, or alter them. Maybe we could alter them under the terms of our external affairs power. I do not suggest that we pursue that course, nor that we do anything to take legal action against breaches in the States under the State laws.
The amendments which I propose in regard to civil rights procedures and which I set out in detail, give teeth to this particular Bill. They are not those that suggest that the Commission should be dealing with State laws, State Acts and practices. One will see by the definition in the Bill that the definition of ‘acts and practices’ is confined to federal laws. In this area one might say it is only a timid step into the area of enforcement. But it is one that is not there at the moment. I will come back to that in a moment, because the lack of any enforcement power is one of the great weaknesses of the Bill.
In my statement I have drawn attention to the fact that there is a requirement that persons who make a complaint must have ‘sufficient interest’ in the subject matter of the complaint. The Amnesty organisation and other organisations have protested against this provision against this requirement which was in both the 1977 and 1979 Bills. Interest is generally understood by the lawyers as being something concerned with financial or property interest. Why should one, in dealing with human rights, have to show that interest? The mere existence of these respectable and responsible organisations and the fact that they want to make complaints, should be quite adequate. Any person who is prepared to go to the expense, trouble, risk and the unhappy experience of a great fight, will go ahead. Because he believes he should continue with his complaint should be sufficient and should not require the proof of sufficient ‘interest’. I believe also that this Commission should have power to make reports on its own initiative, whether it is in regard to international documents we are examining, or whether it is in regard to complaints. I believe that its report should not depend upon its being asked to do this by the Attorney-General. The situation should be such that it can go ahead and give reports to the Parliament on its opinion as to the enforcement of international covenants.
Senator Evans has already referred to clause 1 1 which I regard as one of the most potentially dangerous clauses in the Bill. The by-passing of the Commission or the Commissioner of Community Relations is there on the face of the clause. No suggestion has been made that this clause will be amended. If, in fact, this clause means an agreement is made by some Commonwealth Minister of the future with a State Government, allowing it to take over some of the Commission’s functions it can therefore by-pass the Commission altogether. If instead the Commission had to approve any such agreement, if it had to be laid before this Parliament so that we were in a position to disallow such an agreement, that would be a different matter. We must surely write into the Bill those provisions so that this bypassing cannot be done and the small powers which the Commission has at the moment, cannot be eaten away by a State which wants to do the investigation itself and to cut out the Commission from its area.
It is necessary, in this Bill, to do something to protect the anonymity of people who complain and who find their positions have worsened. Therefore, they will not complain if the Commission can give them no protection. There is an area in this Bill in which was mentioned this week when we presented to this House a very substantial report on freedom of information, that has not yet been debated by us. We have provisions in this Bill which speak of conclusive certificates and which make provisions whereby documents will be able to be withheld from the Commission by the fiat of the Attorney-General and by his decision which is unexaminable by any court. These are matters which have been greatly criticised in the report to which I have referred.
We have provisions in regard to secrecy. I believe that clause 34 is not only one that ought not to be preserved in that form or rather not be created in that form as a new secrecy provision but also it seems to me that there is a grave difficulty that arises for people who may want to take action, who have suffered a breach of some human right and who will find that evidence that is accumulated by the Commission will not be able to be used, because the officers of that Commission will not be able to give evidence before courts. Therefore people may be worse off than if there were no Commission at all. I say that the final and major weakness in the Human Rights Commission Bill is the fact that it stops at a report. A report comes into the Parliament and those of us, who have been here a few years, know that that often means very little action takes place. All the investigation has been done. It has been proved that there is a breach of human rights and there it stops. There are no teeth. It is no good stating: ‘Well, the particular person who was concerned in this will take action immediately and will remedy the situation. ‘ Very often he will not. If people have some strong objection to some human right, if they victimise somebody, there is no reason to say that without some legal proceedings they will not do anything. I am afraid that is a weakness in the Bill. I hope to put forward a proposal to provide for individuals a right, particularly in Commonwealth matters, so that they will be able to take some action following on the report. At the present time there is nothing at all in the Bill.
I turn now to the Racial Discrimination Amendment Bill because that is a Bill which amalgamates the operations which have been effectively going on for a number of years under
Dr Grassby. The Bill will turn the operation into part of the works of the Human Rights Commission. The weaker Commission will accumulate the greater powers which, at the moment, the Racial Discrimination Commissioner has. As has been pointed out, Dr Grassby ‘s work will be greatly emasculated by that. Quite recently we had the delivery of the fourth annual report of 1 979 by Dr Grassby. I regard it as a magnificent document. It is a record of dealings with nearly 1,000 complaints which have been made over the last year. There have been something like 3,000 to 4,000 complaints since he has been in operation. There is an enormous amount of work and he is under enormous pressure with very little staff, very often without a successful final outcome because he could not proceed with the complaint.
Dr Grassby and his staff deserve the credit and praise of this Parliament for the efforts they have made. For the $300,000 a year that it is costing this country to have that report alone is a gold mine, indicating areas where people have been disadvantaged. I regret to say that when that report came down the Minister of Immigration and Ethnic Affairs, Mr MacKellar, proceeded to attack Dr Grassby rather strongly on the program AM. On 10 October 1979 he expressed the view that there were many ‘seeming inaccuracies’ which gave an impression that it was not in accord with the facts. When honourable senators look at the matters he raised they will see that there were only two points he talked about. One matter was the Galbally report. Mr Grassby in his annual report said that it ‘committed ‘ the Federal Government. Well it did not, because the Federal Government committed itself. This sort of semantic argument was one of the two matters which was criticised in the interview.
The second matter related to Asian residents. It concerned complaints in a country town. There was a difference of view between Mr Grassby and the departmental officials as to whether they had been co-operative. I would not care if in that instance Dr Grassby was wrong.
- Mr Grassby.
-Dr Grassby; he obtained an Italian award a few months ago. The fact is that criticisms such as that are unnecessary and they fail to recognise the enormous area of work which he has covered over the years. From my experience of seeing him at many ethnic functions, I can only say that his work is extremely good. I have never seen any cause for complaint. I have no doubt that he has made mistakes. I know of one or two instances where people have submitted complaints which are not related to racial matters. Perhaps they have got away with that, but that is not the point. The point is that he has managed to satisfy a tremendous need and to obtain a great deal of support from people because he, with his staff, has been fighting their battles effectively.
There has been reference to the various consultative committees which he set up- there are 32 of them in all- and which may well disappear with the taking away of Dr Grassby ‘s functions. If Dr Grassby is left only with investigation and conciliation functions and his duties of promoting education and understanding in the community are taken away, will these committees continue to function? Recently I received a letter from the Brisbane Consultative Committee of Community Relations, which said:
The Committee expresses its concern that the Human Rights Commission Bill and the Racial Discrimination Amendment Bill, which are currently before Federal Parliament, would reduce the chance for such activities as those in Queensland to be documented and brought to the attention of the public.
That Committee was highly critical of the amalgamation of the two operations and the taking away of Dr Grassby ‘s powers. Likewise the Australian Council of Churches said:
Most of the functions of the present Commissioner for Community Relations are to be transferred to the Human Rights Commission. This appears to be a downgrading of the Commissioner as he will no longer be able to report directly to Parliament, will have less control over fewer staff, and will be under the supervision of the Commission. Assurances have been given that this supervision will be of a general kind and that he will continue to deal with most if not all complaints under the Racial Discrimination Act. However, the legislation does not give any clear guarantees that this will be the case.
On the contrary the legislation makes it clear that he will be under the direction of the Commission. That word ‘direction’ has a wide meaning, covering, whatever direction the Human Rights Commission may choose to give. This is the worst insult and the worst mistake in this Bill; it is one which I find unforgivable. He is not to be a commissioner; he will not even be one of the seven commissioners. It is not that he should dominate the Human Rights Commission as one Commissioner but as a Commissioner of Community Relations he will be an employee. He will get directions. He will have no staff. He will not even receive the complaints that he will be dealing with.
He will not bring any more of these reports to the Parliament. He may get a little niche in the report that is written by the Human Rights Commission. It may, of course, be written by someone else, but he will no longer be able to draw to the attention of this Parliament the matters that are so necessary for us to know. I have said that his functions will be divided and some of them could well die. I am not satisfied that that division of functions will work. When one looks at the situation in New Zealand, one finds that the Race Relations Commissioner, Mr H. L. Dansey, is a Human Rights Commissioner. They have no doubt in New Zealand that the two positions must be put together. In New Zealand one man deals with race relations- a very important part of human rights in New Zealand- yet at the same time he is a commissioner. Why should this not be the situation in Australia?
Sitting suspended from 6 to 8 p.m. (Quorum formed).
– Before the suspension of sitting, I was dealing with what are in my opinion defects in the Racial Discrimination Amendment Bill. I pointed out that quite curiously there is such a difference between what we are proposing to do in Australia where Dr Grassby, the Commissioner for Community Relations, is not to be a member of the Human Rights Commission, and the position in New Zealand where the Race Relations Commmissioner, Mr H. L. Dansey, is of course a Human Rights Commissioner. I pointed out that that is the desirable course and one that should be followed here. For that reason, among others, I am in complete disagreement with what the Bill proposes.
I also mentioned that I think one of the significant developments which Dr Grassby has initiated is the formation of the 32 consultative committees which have been set up throughout the country and which have been inspired by his operation. I fear that, if he is submerged in the Human Rights Commission, they will die away. I think that they are most useful in view of the very small amount we spend on that operation. The fact that we have public spirited citizens throughout Australia who are prepared to join these committees and who have done a lot of work in support of the operation of the Commissioner over a number of years is something that we have to face if we are not to run a risk that by submerging the Commissioner in the Commission we may find that these committees will die away. We know that the council which was to be set up has not been set up at all. So, it does not matter whether we send its control from one area to another- from the Commissioner to the Commission. It in fact has not been established although the Act calls for it. But certainly the consultative committees should be considered as important and we should not jeopardise their operation.
In regard to the Commissioner for Community Relations, there is another important aspect which I think must be considered by this chamber. That is that there is a possibility of a constitutional challenge to the whole operation of the Racial Discrimination Act. Unquestionably it is under challenge. If one reads the most recent report from the Commissioner, one will see that the Queensland Government has denied that the Act is constitutionally valid. It is known that certain citizens- the Winchinam group from Aurukun- have indeed sought legal aid from the Attorney-General so that they can pursue their claims that may ultimately lead to a challenge from the Queensland Government to the validity of the Racial Discrimination Act. I put to this chamber that this is no time for us to change the operation of the Community Relations Commission. This is no time for us to make a major change in the Racial Discrimination Act when a challenge is about to be launched which will determine whether the Racial Discrimination Act is valid.
I note that even tonight we received from the Commissioner for Community Relations an information paper. It is an interesting paper which I have briefly read. It points out these facts and the constitutional validity which is under challenge. It is, I think, therefore very inauspicious that we should be considering changing and probably reducing the powers and effectiveness of the operation of the Commissioner for Community Relations at this time when that challenge is about to be launched. The fact is that in a letter to the Attorney-General dated 22 October 1979 Mr M. J. Foley, the Secretary of the Brisbane Consultative Committee for Community Relations, referred to and supported the application for legal aid by the Winchinam group, which application I have also supported. He had this to say:
The case is all the more important because of the attitude expressed by the Queensland Government in the letter of the Queensland Crown Solicitor to the Commissioner for Community Relations dated 17 July 1979. It is indeed an extraordinary situation where the Government of Queensland openly disputes the validity of the Racial Discrimination Aa of 1 975 and the Aboriginal Land Fund Act of 1 974.
He of course there seeks among other things the support of the Commonwealth Government in defending the challenge- in other words, in defending the right of the Commonwealth to have taken the action under the International Convention and to have proclaimed and to have operated the Racial Discrimination Act. I think that it is most important that we support the validity of that Act of this Parliament. I think that to change the Act at this time when that challenge is about to come before the court is a most unwise act for this Parliament.
I take a fundamental view in regard to the Racial Discrimination Act. Back in 1975, this Act was a matter of discussion between the Government and the Opposition. I was in the then Opposition which was insistent that certain amendments ought to be made to the Bill which the then Whitlam Government proposed. There were discussions. Arrangements were made and agreements were reached between the Government and the Opposition. The Bill went through the Parliament ultimately with the support of both the Government and the Opposition. I strongly supported that Bill at that time and I spoke in favour of it. Nothing will make me remove myself from that support. I believe that the operations of the Racial Discrimination Act since have been very good. There are indicated weaknesses. This position paper which I mentioned tonight indicates that probably there are amendments that could be made to the Act and it would be desirable to have that Act improved. Nonetheless, it is an Act to which I stand committed and nothing will persuade me to support any amendment to that Act which will weaken it.
I therefore believe that the second Bill which is before us tonight, the Racial Discrimination Amendment Bill, will weaken the operation of the present Act. I believe that if we take the office of the Commissioner for Community Relations, which has a certain amount of power, and put it into a Human Rights Commission, which on its present base is relatively weak, we will weaken the operation of the Commissioner. I am not satisfied with the amount of expenditure on and the amount of staff employed in the area of racial discrimination. At the moment it is not anything like adequate. I am certainly not satisfied that it is proposed to have sufficient staff to cover the whole operation of the Human Rights Commission plus the area of racial discrimination, and that the staff will in any way be even as adequate as is presently existent for the Commissioner for Community Relations. I am certainly not going to support any Bill which has that weakening effect of losing the present operation of the Commissioner for Community Relations in a relatively powerless Human Rights Commission. That this view is held by other people is quite evident. I refer to remarks which were made by the United Nations Association through its national president of the time, Mr Richard Alston. He is not now the president. He is now the president of my own State branch of the Liberal Party. Speaking last year about the operations of the Commissioner for Community Relations, he said:
It will no doubt seem anomalous to some that while the Federal Government has set up an Industrial Relations Bureau to prosecute union officials, it has not established an Office with the necessary resources and authority to take racists to court. To this day there is no properly constituted Office of Community Relations and only the Commissioner has any statutory authority. His two deputies are on loan from other Government departments, and all matters pertaining to racial discrimination are handled by a skeletal staff: eight in the Canberra office and one representative in Melbourne and Sydney. The Commissioner has no representative in Western Australia, Queensland and the Northern Territory, where some of the worst instances of racial discrimination have been alleged. Neither has a Community Relations Council been set up in accordance with Part V of the Racial Discrimination Act 1975.
Mr Alston went on to say:
In view of the weaknesses of the Act, the limited scope allowed the Commissioner for Community Relations, the failure to establish either a Community Relations Office or Council on a statutory basis, and the reality of racial discrimination in Australia, there are strong grounds for asking whether the Australian Government is serious in its commitment to fight for racial equality.
That is a very strong statement. He went on to say that it may be said that the Bill is being undermined and the Government appears to have been sitting on its hands for more than three years. These statements were made by a man who is not hostile to the present Government. He is a man of great integrity and ability for whom I have a great deal of respect. His statements are strong support for the view that this is no time for us to be sabotaging the operation of the Commissioner for Community Relations. I also draw the attention of the Senate to the remarks made by the Uniting Church in Australia in a letter which was distributed to all honourable senators this day. The Church says, among other excellent statements, the following:
The Commissioner for Community Relations is brought under the direction of the Human Rights Commission without being made a member of the Commission, and is therefore debarred from any part in the policy-making of the Commission. He becomes an employee only. His freedom to act independently from the political pressure of the government of the day, and from the power of the bureaucracy must be preserved.
I suggest that these are statements by responsible and sensible people in our community. We must take some action by throwing out this Bill to ensure that we do not damage the operation against racial discrimination in this country.
In conclusion I say that we must surely ensure no cosmetic approach to human rights generally. As Chairman of the Parliamentary Amnesty group, I am concerned that we should have the same genuine approach to human rights in this country that we have in relation to human rights in other countries. We have heard today from Senator Wheeldon about the report from the Joint Committee on Foreign Affairs and Defence on the Soviet Union, which is obviously an excellent and most interesting report. We should be concerned with the sufferings of people who have defended human rights in that country. We must be even more sure that in this country we take genuine and practical steps; that they are not cosmetic steps which do not really do anything. If we do not do this we will have delay and a period in which nothing much will happen. We will have cynicism developing by those people who take complaints before a commission only to find it does not have very much power to do anything at all. We will lose the real achievements which we made against racial discrimination if we merely submerge operations of the Commissioner for Community Relations in the Human Rights Commission.
I cannot support the Australian Labor Party’s amendment because I do not believe that the way of a Bill of Rights is the right one; nor do I believe in the head-on fight that it might well develop with the States. The would be counterproductive and useless. I have defended for many years the concept that we ought to have a Human Rights Commission and that this is the right way to go, but only if such a Commission has within its powers the ability to carry out a really genuine compliance with the International Covenant on Civil and Political Rights. Therefore, I shall certainly proceed with all the amendments that I have foreshadowed. I will put all the strength I can into the fight to try to win their acceptance. I will, if I fail, support a limitation to the Human Rights Commission Bill. I will oppose the passage of the Racial Discrimination Amendment Bill because I believe it is contrary to what I have fought for in this Parliament and what I have voted for in this Parliament. I believe that the members of this Parliament have to stand up and be counted.
I hope that honourable senators on this side of the chamber will read the documents. I hope that they will get the material that is coming in from the community. I hope that they will not- as I have sensed with some of them- take the opportunity of putting aside the Bill and saying: ‘I do not know about human rights. I have not read the material. I wish I had ‘. Let us be honest with ourselves. Let us read the material and make up our minds as to whether the arguments that I have circulated throughout this country and which there has been some response to are sound. I have not heard anyone suggest any unsoundness. Perhaps the Attorney-General, when he makes a reply, will show that I have been unsound. In all the newspapers of the country there has been a lot of comment on this matter. Nobody has yet suggested that the things that I have suggested in my critique and other things that I have written are unsound. Let us hear if there is another answer. Let us take human rights seriously in this country and ensure that we produce Bills of which we can be proud. (Quorum formed).
– I do not intend to speak for as long as my colleague Senator Evans, or the first speaker on the Government side, Senator Missen.
– Hear, hear!
– If a couple more honourable senators say ‘Hear, hear’ I will go on for the full hour. The Human Rights Commission Bill 1979 and the Racial Discrimination Amendment Bill 1979 are being debated together. I was interested in the last few words of Senator Missen when he talked about human liberties and civil liberties. I think this is probably the whole crux of the situation. Civil liberties today are under assault throughout the world, Australia included. One has only to live in Western Australia, or Queensland in particular, to see how far civil liberties have been eroded and how the continuing erosion is making life more difficult for people who do not have the economic background or the economic resources to be able to fight matters out in the courts.
In my approach to the debate I probably will not be quite as academic as my colleague, Senator Gareth Evans. I am putting this in purely technical terms because it is unnecessary for me to go into all the detail that Senator Evans went into. I want to begin by reading an item of correspondence which I received today from the Uniting Church in Australia. I think this sums up the rank and file or grass roots feeling of a whole lot of people in this country. The letter commences:
We understand that the Human Rights Commission Bill and the Racial Discrimination Amendment Bill will be before the Senate in the immediate future.
I want on behalf of this national commission-
That is the Commission for World Mission of the Uniting Church- which is responsible for handling Aboriginal, Migrant and Ethnic Affairs in the Uniting Church in Australia to express our strong opposition to the Bills in their present form, for the reasons outlined below.
I might say that that is the attitude of the Opposition to both of the Bills. I was interested also in hearing the leading speaker for the Government agree largely with what the Opposition was trying to do. The letter continues:
Whilst recognising the neatness of bringing all the human rights mechanisms under one Commission, we submit that these Bills, if passed, will make almost totally ineffective the operation of the Racial Discrimination Act (1975). The new legislation will prevent the Commissioner for Community Relations from reporting directly to Parliament, from receiving any complaints directly from persons in the community, or from developing programmes aimed at raising the awareness of Australians about the reality of our multiracial multicultural society.
Here I want to interpolate to say that it is amazing that the Australian Government firstly, should have introduced amendments to the Racial Discrimination Amendment Bill 1979, and, secondly, should have introduced the Human Rights Commission Bill 1979 at this particular point in our history. Both of these Bills, of course- through the amendments in one case and the Bill in the second case- are in one instance watering down existing laws and in another area restricting laws. One often wonders how far democracy is going to the extreme right of the political spectrum, and undoubtedly under this Government assaults are being made on democracy. The next paragraph of the letter reads:
The Commissioner for Community Relations is brought under the direction of the Human Rights Commission without being made a member of the Commission, and is therefore debarred from any part of the policy-making of the Commission. He becomes an employee only. His freedom to act independently from the political pressure of the government of the day and from the power of the bureaucracy must be preserved.
When the community relations organisation was set up, it was set up with the specific task of eliminating racial discrimination in Australia so far as it was humanly possible to do so. I want to say quite unequivocally that a long way along the road has been traversed by the Commissioner and by his organisation, even with his restricted staff. I will point out later in the debate some of the achievements of the Community Relations Office. The letter continues:
The functions of the Commission will be limited to the investigation of complaints of racial discrimination. This will be divorced from the community education work which has rightly been pan of the Commissioner’s role until now. To separate the two is to destroy the effectiveness of both.
As this particular lobbying letter says, this brings the Commissioner back to the situation where he will be merely an employee. If this takes place we might just as well eliminate the Community Relations Office altogether, because its effectiveness, its political teeth and its administrative teeth will be effectively drawn by the amendments to this particular Act.
– It is to put teeth in it.
– Goodness gracious me. If the honourable senator made a statement like that in South Africa he would be in real trouble. That might be appropriate there, but it is not appropriate in this country, where we are trying to get rid of racial discrimination. The letter continues:
The powers of the proposed Human Rights Commission are very limited. These powers are limited to Commonwealth legislation only. It has no power to investigate the violation of human rights under State legislation, and this is where most violations are currently occurring.
Of course if one looks at Queensland, and I say that because that is the area with which I am most familiar, there have been such attempts. In fact the Queensland Premier and some of his Ministers and senior officers have refused to confer with the Commissioner for Community Relations or any of his officers. That is not an unusual thing so far as the Deep North is concerned. I can recall that when I was Chairman of the Standing Committee on Social Environment a number of years ago when we had a senior official from the Department of Aboriginal and Islander Advancement before the Committee- admittedly both sides of the Committee, members of the Liberal Party and the Labor Party, by this time were obviously pretty good cross-examiners- our reward for the further cross-examination of DAIA officers was an instruction from the Premier that never again was any member of his Department of Aboriginal and Islander Advancement to appear before that particular Committee. As far as I am able to ascertain, he has applied this ruling to most committees of the Federal Parliament, set up under either the Labor Government or the Liberal Government, when they have visited Queensland and sought to cross-examine people associated with the State Government.
The need for an office of community relations to continue to exist without any deletion or any watering down of its powers is greater now than it was five years ago. The letter from John Brown, the General Secretary of the Commission for World Mission, Uniting Church in Australia continues:
Indeed it appears that the legislation is particularly designed to prevent the Commonwealth Government coming into any conflict with a State government over a possible human rights infringement under State legislation.
I think this is probably the kernel of the situation because there is a fear, and there has been a back down by this Federal Government on numerous occasions when the Queensland State Government has decided that its course of action is to be a confrontation. This has spread even further. It has now gone to the Western Austraiian arena and, if Sir Charles Court sneezes, everybody in the Cabinet at Canberra catches a very severe bout of pleurisy and pneumonia.
In the Northern Territory, of course, that great democrat, Mr Everingham, being the Chief Minister, is now able virtually to run the place without any interference at all from the Federal Parliament or the Federal Government. That is not the spirit of any of the legislation carried in either chamber of this Parliament, which conferred State-like powers on the Northern Territory. I suppose the land rights legislation is a typical example. When the land rights legislation was going through this chamber in late November or early December 1976, we moved some 30-odd amendments, all of which were rejected by people on that side of the chamber. I think from memory there were something like 26 divisions where everybody on the other side of the chamber had to stand up and be counted to show where he stood on Aboriginal land rights legislation. That is recorded in Hansard, of course, and it will go into history.
The excuse that was used at the time was that complementary legislation would be enacted within the Northern Territory Legislative Assembly and this would dovetail with the land rights legislation which was put into law by both chambers of the Federal Parliament. We were told by the spokesmen on that side of the House that the Federal Government would maintain an overriding interest, that nothing would be changed in the Northern Territory without consultation with the Federal Minister and the Federal Government. In practice, of course, this did not work out, so that first of all there was an argument about how far off the coastline around the tribal areas the water would remain the property of those people who for years had exercised their rights to use that water. We had a problem with the national parks and the preservation of sacred sites. It finally reached the stage where they extended the suburbs of Darwin, by Northern Territory legislative action, down to somewhere near the Adelaide River. People from Darwin are not going to live in that area as a suburb of Darwin for probably the next 200 years, unless there is another Cyclone Tracy which by the force of its winds shifts the homes and business places of Darwin down The Track. The same thing applied to Borroloola. Action was taken in order to protect the interests of Mount Isa Mines Ltd. The area was extended, again by similar legislative action, and called a town area.
We now hear about what has happened at Kakadu National Park. By absolute local action of the Northern Territory Legislative Assembly whole areas have been declared a town area without consultation and discussion with this Parliament. The declaration happened one night when the moon went down; now it is a matter of law. I noted on the program AM this morning or PM last night that the Chief Minister of the Northern Territory at this belated stage had come to consult with the Acting Prime Minister; I am sorry, with the Deputy Prime Minister (Mr Anthony)- the Prime Minister (Mr Malcolm Fraser) has not left Australia; he is only down at Nareen- on the legislation after it had already become law.
In fact, this Government has backed down in three parts of Australia. I submit, with great respect, that the amendments to one Bill and the introduction of a second Bill are a backdown to politically stronger organisations outside the Federal Parliament. John Brown’s letter goes on:
Our Commission has applauded the efforts of the Prime Minister and the Minister for Foreign Affairs in action against racial discrimination in Africa recently. But neighbouring peoples rightly ask us, ‘What is your government doing about racial discrimination in Australia?’ We do not want to have to reply that our government has emasculated the only effective piece of racial discrimination legislation that we had. We submit that for the Parliament to proceed to pass the Human Rights Commission Bill while amending the Racial Discrimination Act in the way proposed, will serve to prove to the world that the Human Rights Commission Bill is just a piece of window dressing.
In its current words that is precisely what the Bill is. The Prime Minister of this country wants to be able to parade on the stages of Africa and in forums around the United Nations and say that there is no racial discrimination in our country. He wants to say that we lead the world. What actually happens while he is putting up this facade of political window-dressing in these areas is that racial discrimination in this country, because of the amendments in the one case and the new Bill in the second case, will be aggravated. The final request of the letter reads:
We respectfully urge you, Senator, to refuse to pass the legislation without radical amendment.
That is the kernel of what the Labor Party is trying to do. We believe that unless the legislation is radically amended it will be a very dangerous thing for this country. The amendment that was moved by my colleague, Senator Evans, to the motion that the Bill be now read a second time states:
Leave out all words after ‘That’ insert ‘the Bill be withdrawn and re-drafted to provide for:
Specific adoption in judicially enforceable form of the rights specified in the International Covenant on Civil and Political rights along the lines of the 1973 Human Rights Bill.
Senator Evans pointed out some of the requirements of the Bill in that respect. The amendment continues:
We can also remember how 17 of the 19 Northern Territory House of Assembly members came down to Canberra to make a massive demonstration. They said that if the Government did not change the Bill there would be real trouble in the Northern Territory. They could have saved the taxpayers’ money which was spent on their fares. They did not have to come down in that manner at all. This Government very abjectly caved in during the course of the year after the Northern Territory land rights legislation came law.
– Why don’t you speak for Queensland? Why don’t you have land rights in Queensland?
-I spoke here the other night on behalf of Queensland. Seeing that my friend who is known as the political shifter because he switches from party to party wants to interject at this point may I ask him how he attended a demonstration -
The ACTING DEPUTY PRESIDENT (Senator Robertson)- No, Senator Keeffe, you cannot. You must direct your remarks through the Chair.
– I am sorry, Mr Acting Deputy President. Through the Chair, I ask Senator Kilgariff about his attendance at a meeting of a large crowd of Aboriginals at Alice Springs who were protesting because they wanted land rights. He agreed publicly with them that they required land rights and he said that he would do everything possible to assist them. Because he was suddenly frightened of what his political bosses would say he went home, locked himself in his bathroom and wrote a Press statement repudiating what he had said in front of about two and a half thousand people and had it published in the Press. That is true. I have quoted the honourable senator’s statement here before. If the honourable senator wants to read back through the Press of the day he will see that he repudiated his remarks made in front of some 2,000 people at a public demonstration by going home and making a statement on behalf of the mining industry of Australia. He repudiated his remarks made to the black people; that is what he did.
The ACTING DEPUTY PRESIDENT-
Order! Senator Keeffe, you will direct your remarks to the Bill.
- Mr Acting Deputy President, I raise a point of order. Of course, the honourable senator is using his imagination -
The ACTING DEPUTY PRESIDENT-
What is the point of order?
– The honourable senator is telling an untruth. I suggest that unless he can back up his statement in black and white he should withdraw it.
- Mr Acting Deputy President, I raise a point of order. What point of order was Senator Kilgariff taking?
The ACTING DEPUTY PRESIDENT- I asked that question.
– I suggest, under Standing Order 418, that the comments, imaginary or otherwise, of Senator Keeffe are derogatory of Senator Kilgariff and are therefore highly disorderly. He ought to withdraw them.
The ACTING DEPUTY PRESIDENT-
Order! If Senator Kilgariff claims to be misrepresented he can make a personal explanation at the end of Senator Keeffe ‘s speech.
– I have been misrepresented.
The ACTING DEPUTY PRESIDENT-
Order! When Senator Keeffe has finished Senator Kilgariff will have the opportunity, if he feels that he has been misrepresented, to make a personal explanation.
-Thank you, Mr Acting Deputy President. Before the provocative interjection by Senator Kilgariff, I was referring to the amendment which the Opposition has moved to the second reading stage of the Bill. If honourable senators on the other side of the chamber pursue a line similar to that which they pursued earlier today with respect to the matter of public importance which was raised, undoubtedly they will reject our proposed amendment to the motion for the second reading of the Bills. If that happens, the Opposition intends to move a whole number of amendments in the Committee stage of the Human Rights Commission Bill 1 979. 1 hope that at that time enough honourable senators on the other side of the chamber will be able and prepared to look into the future and see what they will be doing to Australia in trying, in one Bill, to amend an existing Act and, with the other Bill, to introduce new legislation which, as the Uniting Church of Australia has said, is a lot of window dressing.
This afternoon I received a telegram. If we did not have the Office of Community Relations the situation outlined in the telegram will occur unchecked. The telegram concerns a character named John Singleton, who wanders around the country. First of all, he wrote a story on the Kimberleys for the Sydney Bulletin. It was a shameful piece of journalism, if it could be called journalism.
– Is that a telegram?
– I think my colleague on the other side of the chamber would do better if he devoted his attention to his original occupation of fang pulling because, in his attempts at perception, he always speaks at least five minutes after any speaker in this House has spoken. So I suggest that he might keep his interjections to himself. A similar sort of story was published on the area ranging from Yarrabah through to Edward River, Lockhart and Bamaga on Cape York. This is what the Race Relations Committee in Townsville said in its telegram today:
Following text of telegram sent today to the Press Council of the Commissioner for Community Relations.
If the amendments contained in this Racial Discrimination Amendment Bill are carried, the Commissioner for Community Relations will only be able to read these types of things and pass them on to the too hard to answer file because he will have no authority. The telegram continues:
Deeply offended by the tenor of John Singleton’s article A Happy Story About Aborigines’ the Bulletin 13 November 1979. Previous article ‘The Real Story Behind WA’s Race Riots’ the Bulletin 9 October 1979 equally offensive. Both articles in our view are grossly inaccurate racist and demeaning to Aboriginal people. They portray our people in worst possible light especially because of false generalised statements regarding social security benefits and work attitudes will promote racial dissension. Request Press Council take urgent action prevent recurrence this type article and ensure publishers allow equal space for accurate rebuttal.
Two of us are writing a reply to the Singleton story. In the second part of the telegram the Committee stated:
Deeply offended by tenor of the Bulletin’s articles 9 October, 13 November 1979 “The Real Story Behind Western Australia’s Race Riots’ and ‘A Happy Story About Aborigines’. These articles are grossly inaccurate racist and demeaning. Because of false and inaccurate statements especially regarding social security benefits and work attitudes -
- Mr Acting Deputy President, I raise a point of order under Standing Order 419. The honourable senator is not addressing himself to the motion before the Chair.
The ACTING DEPUTY PRESIDENT (Senator Robertson)- I do not believe that that is a point of order. Senator Keeffe is addressing himself to the Racial Discrimination Amendment Bill, which is being discussed.
-Thank you, Mr Acting Deputy President. I feel that I ought to read Standing Order 419 to clarify the fact that I am speaking to the matter before the Chair in the contribution I am endeavouring to make in this debate, in spite of the numerous interjections which are being made by Government senators. Standing Order 4 1 9 states:
No Senator shall digress from the subject-matter of any Question under discussion; nor anticipate the discussion of any subject which appears on the Notice Paper.
Provided that this Standing Order shall not prevent discussion on the Address-in-Reply of any matter; and provided further that if a period of four weeks shall nave elapsed since any Notice of Motion-
The ACTING DEPUTY PRESIDENT- The point of order has been ruled on, Senator Keeffe.
– I realise that, Mr Acting Deputy President. What I am trying to point out to my friend on the other side of the chamber who made his rather distorted interjection is that he does not even know the Standing Orders. The Standing Order to which he referred does not give him reason to raise a point of order. If he wants to do so, there is another Standing Order which he can use for that purpose, but it will take him from now until Christmas to find it with his ability to read the Standing Orders. I return to the telegram, which went on to state:
He was referring to the articles to which I referred-
Believe these articles deliberately designed promote racial tension. Despite their gross inaccuracies and blatant racism they do point up the continued deficiencies of the Commonwealth in Aborignal Affairs . . .
For a long time that Committee has discussed other issues. That is part of a continuing battle which is going on in Queensland. That brings me back to an interjection made by Senator Kilgariff when he asked why we do not do something about land rights in Queensland. The party to which he once belonged runs Queensland. So, if he has any influence, we would be delighted if he would exercise his powers within the party to do something about the matter. When the land rights legislation was manipulated by the uranium mining companies to reach an agreement which was less than fair to most of the Aborigines in the uranium provinces of the Northern Territory garrulous statements were made by honourable senators on the other side of the chamber about what a fair deal it was.
I have some documents, which have been shown to the President and the AttorneyGeneral (Senator Durack), which I shall seek to have incorporated in Hansard. They include references to the backroom discussions which were going on at the time. Yesterday in this chamber the report of the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill was presented. It is a wideranging and very comprehensive report. I doubt whether this Government will ever implement the recommendations contained in it. If it were to implement legislation of the nature recommended by the Committee it would be frightened of its own shadow. I am suggesting that even if we had freedom of information legislation similar to that in America it would enable people- the Aborigines and negotiating parties- to gain access to information such as that contained in these documents, which never sees the light of day. I have received the approval of the Attorney-General and the President to the incorporation of these documents. I now seek leave of the Senate to have them incorporated in Hansard.
The documents read as follows-
RECORD OF RANGER NEGOTIATIONS
Round Seven- Darwin
First Day, Thursday August 24. 10.00 a.m.
The usual Govt. negotiating team led byO ‘Donovan
The NLC negotiating team was led by Blitner, accompanied by Zorn, Bishaw, Dick (Council Member) and McGill
O’Donovan- You mentioned the confidentially of the proceedings. He said there were two outstanding issues-
. The Atomic Energy Act- he said that the most that can be done is a memorandum from the Secretary of the Attorney-General’s Department, Mr Harders.
There were certain additional and new figures to be filled in to monetary clause of Section 44 Agreement. They had only been dealt with in principle last time. Folder of complete documents as at the 24 August was then handed over. O ‘Donovan said the following figures should be pencilled in to clause 3. He gave the following figures so that the respective clauses would read as follows: (Insert 3.2. and 3.3. of A ‘mem) 3.2 The Commonwealth shall also pay to the Council the sum of $ 1 , 300,000 payable in five instalments as follows-
$200,000 within 7 days after the execution of the Agreement;
$200,000 within 30 days after the date of issue of the Authority;
$300,000 within 30 days after the date on which the last pour of concrete for the primary crusher concrete structure at the truck tipping level is made;
$300,000 within 30 days after the completion of commissioning of the power generation plant;
$300,000 within 30 days after the date on which the total quantity of U3O8 in uranium concentrates produced in the first treatment plant to be constructed in the Ranger Project Area reaches- (i)500 tonnes of U3O8 in uranium concentrates of design specification, or
1000 tonnes of U3O8 in marketable uranium concentrates, whichever is the earlier. 3.3. Within 30 days after the commencement of the twelve month period commencing on the date of issue of the Authority and within 30 days after the commencement of each of the next succeeding 3 twelve month periods, the Commonwealth shall pay to the Council an amount of $150,000.
He then said that the negotiators should get clear their respective authorities. He continued:
I have authority to bind the Govt., subject to ratification only.’
Zorn-‘ My instructions are to negotiate an agreement. The Council cannot delegate its power to sign agreements and must pass a resolution. But I can recommend. ‘
O ‘Donovan- ‘Would you see that we can make an announcement? I emphasise that we can’t disclose the documents until they are signed. ‘
O’Donovan- ‘We could initial documents with covering note.’
O ‘Donovan- ‘Then let us cross out three and threequarters royalty and put in 4¼%.
Zorn- ‘Surprise! We will retire. ‘
RECORD OF CONFERENCE BETWEEN NLC NEGOTIATING TEAM AFTER FIRST MEETING WITH GOVERNMENT NEGOTIATING TEAM ON THURSDAY 24 AUGUST
Present: Yunupingu, Blitner, Zorn, Bishaw, McGill.
Zorn-‘ Unless you have a reason to oppose the project as a whole, then you must accept it or you might lose it. That was not true up until now. ‘
Blitner-‘ That’s what I feel’.
Yunupingu- ‘Can we go a bit further?’
Zorn- ‘Unless you’re sure the Council is prepared to be very tough then we cannot go further. ‘
Yunupingu- ‘That is very frightening. They are putting that figure close enough in waiting for us to say yes. What about another half?’
Zorn- ‘They have never changed their position during the course of a meeting. ‘
Blitner- ‘If you made a new suggestion then they would go away and come back with arbitration. If they put us back to arbitration then we have no say at all. ‘
Yunupingu- ‘They are the Government and they know what they are gonna do. ‘
Blitner- ‘You have the power from the traditional owners. ‘
Zorn-‘ Unless you and Yunupingu agree then I won ‘t go on.’
Yunupingu- ‘We are talking all around to come to some solution.’
Zorn-‘ I am not gonna go in there and do something unsatisfactory to the Council and in particular to you people. ‘
Blitner- ‘It would mean a confrontation. Those figures how much?’
Zorn- ‘It is an average of $14m per year. $10m in the earlier years and $20m later on. Queensland Mine is a quarter of a per cent more. It is in fact a good precedent because Queensland Mines will be more later and thus you have an increasing precedent. Queensland Mines will in fact be between 5 per cent and 7 per cent because of the different calculation.
You cannot get more money. If you want to hold out there might be other reasons such as: stopping uranium mining or setting a pattern for the Council being tough in future. ‘
Yunupingu- ‘What is the possibility of that figure we mentioned last night- four and three eights per cent? ‘
Zorn- ‘It is half-way between the last two positionsQueensland Mines and Ranger. My judgment is no. Only if what you are doing is responding to a traditional owner’s request.’
Blitner- ‘AH of Australia is watching to see what happens.’
Zorn- ‘NLC has delayed it twelve months already.’
Yunupingu-‘ We will look stupid. ‘
Zorn- ‘No we won’t. This is a start towards better agreements. All these agreements will have to be re-negotiated. Four and a quarter per cent is respectable and will in Australian terms leave us in a good position. ‘
Yunupingu- ‘I think you are scaring me to. You can’t call it a reasonable negotiation and we are coming to the end of it. Why can’t we go on a little bit more. I know we are asking for trouble. But the public are watching us. We are going to look stupid because we accepted it. ‘
Zorn- ‘I don’t follow it. I agree that it is not as good an agreement as I would like to see. What we have to do is weigh the advantages and disadvantages. There are three possibilities-
they have authority to go up further
they don’t know what would happen.
we go to arbitration.
I don ‘t like any of them. ‘
Blitner- ‘If we can’t get a decision then we will call Council.’
Zorn-‘ They won ‘t let you do that. ‘
At Zorn’s suggestion Yunupingu and Zorn then went for a walk to discuss the matter. Blitner, Bishaw and McGill remained.
Blitner- ‘We have got an extra $30m by held the project up for two months. I am hearing from the bush about what is the holdup. It confuses people.’
Bishaw- ‘That’s what the Narbalek people said. ‘
Blitner- ‘Results of this meeting should be taken to Council. ‘
Bishaw- ‘I think Zorn is prepared to recommend that it be accepted. That’s clear but there are wider things in it. ‘
Blitner- ‘This thing about stopping uranium mining. It would make us look stupid. ‘
Bishaw- ‘That would be true if you tried and did not stop it. It has been said that this issue is like Vietnam. To my mind that is not so.’
Zorn and Yunupingu returned and Yunupingu said:
We have to talk about it some more. ‘
Yunupingu said to Blitner:
You have responsibilities to think one step beyond the motion.’
Zorn- ‘It is important to take a day to discuss it so we will all agree.’
Ranger Negotiations- Round Seven- Thursday 24 August
The NLC returned to the negotiating room at approximately 11.00 a.m.
Zorn said that his reply to the two issues were as follows:
Firstly, the Atomic Energy Act Memorandum would be okay. Secondly, the Council would give its answer on the issue of money on the following morning. ‘
O ‘Donovan replied:
I will prepare some material for if we arrive at an agreement.’
Ranger Negotiations- Round Seven- Friday 23 August 9.00 a.m.
The Commonwealth negotiating team led by O’Donovan.
The NLC negotiating team was led by Blitner, accompanied by Zorn, Bishaw and McGill.
Zorn- ‘As far as the substantive issues go I think we’re done.’
O’Donovan- ‘Thank you. What about the press statement. This is something more than the recommending stage. All offers are withdrawn if it does not arise for discussion at the next NLC meeting. You will be happy to initial it?
Zorn- ‘Yes.’ (A discussion of the content of the press statement followed.)
O’Donovan- ‘The Commonwealth is concerned to maintain the “without prejudice” nature of the agreement until the formalities are complete. Until the text is released, it is to be regarded as confidential. The danger of it being a public document is that it can be debated publicly before it is binding.’
Zorn- ‘From the Land Council’s point of view, it would be better to have it debated. I will agree not to confirm speculation.’
O ‘Donovan- ‘Then you are agreeable to a press statement?’
NOTES ON NORTHERN LAND COUNCIL STRATEGY
Stephen Zorn 31 March 1978
Review of Existing Position
Some negotiation has already occurred with respect to three issues surrounding the uranium mining plans of the federal government, namely:
the lease for Kakadu National Park (Stage 1 ), which has been largely agreed with the Director of National Parks, along the lines set out in the NLC draft of 1 1 March, as further discussed between the NLC and the traditional owners on 1 6- 1 8 March.
The agreement for the Nabarlek mine. The NLC has submitted a draft to Queensland Mines, and has received a formal reply from QML, which does not include any of the financial points sought by the Council on behalf of the traditional owners. No substantive negotiations have been held, but with the exchange of drafts it is possible to start these on fairly short notice.
The agreement for the Ranger project. The NLC submitted a draft to the Commonwealth Government, which is negotiating on behalf of the Peko-EZ joint venture, in October 1977. As yet no reply has been received, although there has been substantial discussion of the NLC proposals in the press.
No negotiations at all have taken place with respect to the Jabiluka project, in view of the inadequacy of Pancontinental ‘s environmental impact statement.
Government Policy and Legal Status
In August 1977, the Commonwealth Government announced that it would approve plans for uranium mining, including, in particular, the Ranger and Nabarlek deposits. Approval was said to be subject to completing the necessary legal requirements, including establishment of environmental safeguards and the reaching of an agreement with the NLC, on behalf of the traditional owners.
Under the Land Rights Act, mining project developers are required to negotiate suitable agreements with the NLC for projects on aboriginal land. If, however, the NLC refuses to negotiate, or if the Minister (for Aboriginal Affairs) considers that the NLC is taking an unreasonable position in the negotiations, the Minister has the authority to set up an arbitration procedure to determine what would be a ‘reasonable ‘ agreement and to enforce it on the NLC.
Aboriginal Negotiating Position
As I understand it, the following is the position of the traditional owners, as expressed to the NLC, on the Ranger and Nabarlek projects.
Nabarlek: the traditional owners are willing, although reluctantly, to alow mining to proceed, subject to satisfactory social and environmental safeguards being agreed, to satisfactory financial arrangements, and to agreement on details of the mining plan. I understand that this position is not unanimously held, and that there might be sentiment favouring a relatively short-term agreement.
Ranger the traditional owners basically opose the mining development, and are more concerned with delaying or stopping the project than with the details of an agreement.
There appear to be three basic options for the NLC at this point:
to adopt a position strongly opposed to uranium mining, along the lines outlined in the letter drafted by Dr Coombs. This option would presumably imply that the NLC would not seriously pursue negotiations of the Ranger agreement, that it might take actions such as a court challenge to mining on freedomofreligion grounds, et cetera (although some room would remain for agreement only on the Nabarlek project).
to accept that the Commonwealth Government is committed to uranium mining, and that the government would be prepared to enforce an agreement on the NLC in the absence of negotiations, and therefore to seek the best possible deal within the framework of reasonable’ negotiations. Such a deal would, of course, have to include social and environmental safeguards as well as monetary provisions.
In between these two positions there appears to be a third alternative- to continue to negotiate, but with the aim of delaying the Ranger project as long as possible. Such a policy might well include a series of public statements by the NLC Chairman on the evils of mining, and at least tacit support for efforts by others (trade unions, environmental groups) that had the effect of delaying a decision. At the same time, by not actually refusing to negotiate, the NLC would make it more difficult for the government to claim that negotiations had broken down, and therefore to send the issue to arbitration and impose a settlement on the NLC.
The Issues Involved
There can be little disagreement that large-scale mining is not in the best interests of aboriginals at present, no matter what financial arrangements can be worked out. The only hope for the re-establishment of an identifiable aboriginal cultural and social structure lies in deflecting the full impact of the white society, particularly as it is typically felt in mining projects, from the aboriginal community. Delays in bringing mining projects into production would therefore be desirable.
At the same time, the government has a commitment to uranium mining. I find it hard to believe that the government is not already considering the use of the arbitration provisions in the Land Rights Act if it appears that an NLC refusal to negotiate would halt work on the Ranger project.
It should be kept in mind that the NLC is dealing with at least three different ‘publics’ or ‘audiences’ in its negotiations. First, there are the mining companies and the government agencies with whom negotiations are being carried out. Second, there is the arbitrator or court that may ultimately be asked to rule on the reasonableness of the NLC’s position. And third there is the general public. Care should be taken to ensure that strategy and tactics aimed at one of these publics does not have undesired effects on another. i think it is possible that the third option described aboveattempting to delay Ranger as long as possible without actually breaking off negotiations- offers the best chance of presenting the most favourable case to each of the relevant publics, while at the same time accomplishing the real aim of slowing down the process of rnining development to a pace that will not disrupt aboriginal society. Such a strategy would, on the one hand, allow the NLC chairman to preserve his role as an articulate spokesman for the aboriginal point of view, by continuing to speak out against the dangers of mining, while on the other hand not doing irreparable damage to the NLC’s position in a possible arbitration proceeding, when and if the government decides to invoke the arbitration provisions of the Land Rights Act
The following actions would seem to be appropriate for this sort of strategy.
– I thank you, Mr Acting Deputy President, and the Senate. I want to quote from a document to which Senator Missen referred. I also have a copy of it. It was put out by the Office of the Commissioner for Community Relations and it refers in particular, naturally, to the Racial Discrimination Act 1975 and what this Bill seeks to do to that Act. I think that a couple of these points were quoted by Senator Missen, but I propose to quote all of them. The first page of the document states:
The following are the key points made in this paper.
The constitutional validity of the present Racial Discrimination Act is under challenge.
That is precisely what the Opposition says-
Its validity cannot be resolved by superior Courts unless an aggrieved party initiates action under the Racial Discrimination Act 197S. Aggrieved parties are most frequently Aborigines or members of other oppressed groups.
They include, of course, small ethnic groups. You might recall, Mr Acting Deputy President, that two nights ago in this chamber I referred to a letter which had been written by Mr Porter, the Minister for Aboriginal and Islander Affairs in Queensland, in which he made some very cynical remarks about the Racial Discrimination Act 1 975 without actually naming the Act. He said that it had not yet been tested in a court of law. Sure, it has not been tested; neither has the 1967 amendment to the Constitution been tested in a court of law. But I think that the Senate Standing Committee on Constitutional and Legal Affairs said quite early in its recommendations in its report on legislation associated with Mornington Island and Aurukun that the Constituion would stand up to a constitutional challenge. I submit most respectfully, Mr Acting Deputy President, that if Mr Porter, Sir Charles Court or anybody else- even the other Mr Everingham- want to test the Racial Discrimination Act 1 975 they will find that it will stand up to a High Court challenge also. The document goes on to say:
Doubts have been raised whether the Act can apply to State Governments and State officials.
The Act needs to be amended in the light of four years ‘ experience in administering it.
That is fair enough, but the amendments should go forwards and not backwards, as these amendments go. The paper continued:
Such amendments need to relate to the powers of the Consultative Committees on Community Relations currently assisting in the administration of the Act throughout Australia; the outlawing of publishing and disseminating racist material;
I suppose that all honourable senators have received a copy of that very fine piece of publishing put out recently by the League of Rights which urged that the Vietnamese be sent home, that no more blacks be let into Australia and that Australia be kept white and pure! That is the sort of thing that has been distributed by the League of Rights.
– They are associated with the National Party, aren’t they?
– I understand the League of Rights is a subsidiary of the National Party, or maybe the National Party is a subsidiary of the League of Rights. It is a bit like the Birch Society and the Ku Klux Klan. To continue: the outlawing of publishing and disseminating racist material; group actions by discriminated parties; and wider power for the Commissioner for Community Relations to pursue actions where aggrieved parties are intimidated.
That is what we ought to be doing. We ought to be upgrading the legislation and not downgrading it. The working paper continues:
People suffering discrimination need the support of an independent Government agency.
That is precisely what the Office of the Commissioner for Community Relations is all about. It ought to be devoid of any political pressures from either side, whether it be from the Left or from the Right. It ought to be able to make its own decisions. It ought to have the power to make its own decisions. It ought to have the power to prosecute where necessary. It ought to have the power to subpoena witnesses and to carry out investigations on the spot. A Senate standing committee or a select committee has this power. But now this Government, of course, has decided that the Office of Commissioner for Community Relations ought not to have that power and will whittle it away basically because of its fear of the Northern Territory Government and two State governments. The working paper then refers to the four annual reports of the Commissioner under the heading ‘The reality of racial discrimination’. These reports have been very comprehensive. They have covered a wide spectrum. I think it was the 1 978 report which referred in particular to the many acts of discrimination which are suffered by Aborigines and other minority groups in Queensland. It made an analysis of the apartheid-like Acts to which Aborigines and Islanders in Queensland are subject. The working paper continues:
Racial prejudice and discrimination particularly affect the lives of the Aborigines and other coloured groups but ethnic groups also are victims.
During the four years’ operation of the Act, 30.6 per cent of the 2,818 written complaints lodged have involved Aboriginal people.
Basically one-third have involved the indigenous group of this country. So, if for nothing else, the Office of the Commissioner of Community Relations ought to be allowed to continue unmolested and unamended by the amending Bill which has been placed before this House of the Parliament. The report continues:
The remainder have spanned every other racial and ethnic group in Australia. (Quorum formed). The report continues:
Racial prejudice has led to infringements of human rights and restrictions of fundamental freedoms as spelt out in the International Covenant on which the Act is based. Such prejudice and discrimination affects the daily lives of people in such areas as:
The administration of justice.
The maintenance of law and order.
The provision of public services by Governments, including social services, housing, education.
There are numerous examples of that which can be documented whenever necessary and which show that there has been total discrimination in each of these areas. The report goes on to say that there has been discrimination in employment, the provision of goods and services, the availability of accommodation, freedom of association and the use of facilities available to the public. I know of at least two instances where the white partner of a marriage has made the appropriate representations to secure accommodation in a flat or a house on a rental basis. After the couple moved in, the landlord or the agent discovered that there was a black partner in the marriage and every conceivable method was used to remove that family from that accommodation. In one case of which I heard and which I am sure would be backed up by statutory declaration the agent found out, after having granted permission for the couple to move in and after having accepted their bond and their first rental money, that one partner in the marriage was black. He then forbad that couple to continue with their agreement to rent or lease that property. This sort of thing is still happening, despite the existence of the Office of the Commissioner for Community Relations. If we cut the wings of the Office and take away the powers of the Commissioner we will be back to the old law of the jungle whereby if someone is less than white he or she is less fairly treated than any other member of the community. The working paper continues:
Many matters in these fields have come within the scope of the Act in the last four years. In the main, a satisfactory resolution of the issues has been achieved … the Commissioner for Community Relations draws attention to the need for the Act to be strengthened. The experience gained by the Commissioner, his officers, and the community organisations assisting him needs to be seriously taken into account at a time when the Act is facing amendment.
The constitutional validity of the Racial Discrimination Act 197S has been questioned since it became law on 31 October 197S. Claims have been made that the Commonwealth is not empowered to legislate in the field of human rights and fundamental freedoms. Objections of this type have been raised directly with the Commissioner for Community Relations during his investigation of complaints.
One eminent jurist has advised the Commissioner that provisions of the Act, including certain prohibition provisions, cannot be supported by Commonwealth constitutional powers since they are not directed to people of a specific race. The Racial Discrimination Act applies equally to all residents of Australia and her external territories.
The same jurist has cast doubts upon the validity of key sections which, in his view, cannot be supported by the external affairs power, or any other legislative power of the Commonwealth.
– The Senate committee does not agree with that.
-Of course, the Senate committee does not agree. 1 think that every eminent lawyer in this country does not agree with that sort of interpretation. I have quoted it because I thought it needed to go into the record. I believe that the great majority of the people in this country believe that this legislation will stand up to constitutional challenge. A whole series of other questions is raised on both sides, but as I promised Senator Hamer, before he went for his supper, that I would allow him to get on fairly early I do not want to continue to quote from this working paper.
I reiterate that Australia and this Parliament cannot underestimate the danger of passing these amendments to one Act and thus introducing a new Act which has no teeth and which is merely a window dressing exercise which the Prime Minister (Mr Malcolm Fraser), on his recovery from flu and pneumonia, will be able to take back to Lusaka and parade on the stages of the world, saying ‘There is no racism in my country’, while the people of this country, including those who are less than white, those who are part of the more ethnic minorities and those who are refugees in this country, will continue to suffer. If these measures, as proposed to be amended, are carried through in their entirety, we will have left no laws with any teeth for the protection of the rights of minorities, particularly the coloured minorities, of this nation.
I hope that at some point during this debate sanity will prevail and the whole situation will be re-examined. I ask: What is the great urgency to push these measures through in the dying days of this session? Why could we not have referred them to a committee for further discussion and postponed their consideration until the autumn session to give all honourable senators on both sides an opportunity to study in detail the ramifications of these dictatorial amendments and these laws that the Government is now endeavouring to impose upon the people of Australia? The erosion of freedoms that will be suffered by minorities is implicit in the very wording of the proposed amendments to the legislation. 1 hope that somewhere along the line sweet reason will prevail and consideration of the legislation will be postponed until next year. Of course, next year is an election year and the Prime Minister might say: ‘I will put them off until after the election’. After the election the Australian Labor Party will be in office and we can kiss goodnight both the amendments and the Act. (Quorum formed).
- Mr Deputy President, I wish to make a personal explanation.
The DEPUTY PRESIDENT- Does the honourable senator claim to have been misrepresented?
– Yes. I claim to have been misrepresented by Senator Keeffe from Townsville, who stated that my bosses were the mining companies and that, following demonstrations in Alice Springs, I made a statement on behalf of the mining companies and then hid from sight. That statement was of course absolute rot. The truth of the situation is that on the day on which a demonstration took place in Alice Springs I was present and spoke to the Aboriginal people and was with them for much of the time. I know many of them. They are my friends. I made no statement on behalf of the mining companies. There was no reason for me to do so, as they exert no pressure on me, nor are they my bosses, lt was most ridiculous to say that I was hiding but, in view of where the statement came from, I can understand it being made.
Senator KEEFFE (Queensland )-I wish to make a personal explanation.
The DEPUTY PRESIDENT- Does the honourable senator claim to have been misrepresented?
– I have been misrepresented by Senator Kilgariff. I admire the degree of political licence that he took but I think that if we compare his statement and mine in Hansard it will be found that his account did not resemble the statement that he claims I made.
– I rise to address my remarks to the Human Rights Commission Bill and, to a much lesser extent, the Racial Discrimination Amendment Bill. Human rights, and respect for human rights, are in fact a precondition of democracy and a precondition of the rule of law. In fact, it is the respect for individual human beings and individual human rights that makes democracy possible and the rule of law an achievable aim of civilised societies.
In some ways the one thing that has not been clearly presented in this debate is an answer to the fundamental question why it is that human rights ought to be an issue, why it is that the legislative protection of human rights ought to be a matter of concern, not simply to the Australian Parliament but to any democratic parliament and to any democratic citizen. I have researched the history of a number of debates that took place in Europe in the post-war period at a time when the nations of Europe were coming to grips with the European Convention for the Protection of Human Rights and Fundamental Freedoms. (Quorum formed). I was saying that one of the things we ought to do is to have some indication of the arguments that have been clearly presented about the need for human rights legislation in some form or other. I turn to a debate which occurred in the European Consultative Assembly in August 1949 which was discussing the European Convention for the Protection of Human Rights and Fundamental Freedoms. Monsieur Pierre-Henri Teitgen, a leader of the French republican movement and a former Minister of Justice, in his speech to that Assembly, commented as follows:
Many of our colleagues have pointed out that our countries are democratic and are deeply impregnated with a sense of freedom; they believe in morality and in natural law . . . Why is it necessary to build such a system?
Democracies do not become Nazi countries in one day. Evil progresses cunningly, with a minority operating, as it were, to remove the levers of control. One by one, freedoms are suppressed, in one sphere after another. Public opinion and the entire national conscience are asphyxiated. And then, when everthing is in order, the ‘Fuhrer’ is installed and the evolution continues even to the oven of the crematorium.
It is necessary to intervene before it is too late. A conscience must exist somewhere which will sound the alarm to the minds of a nation menaced by this progressive corruption, to warn them of the peril and to show them that they are progressing down a long road which leads far, sometimes even to Buchenwald or to Dachau.
When the Committee of Ministers met in Rome in 1950, Mr Sean MacBride, the Irish Minister for External Affairs, commented:
The present struggle is one which is largely being fought in the minds and consciences of mankind.
That is a comment which evokes a great deal of what Senator Wheeldon was saying this afternoon. Mr MacBride continued:
In this struggle, I have always felt that we lacked a clearly defined charter which set out unambiguously the rights which we democrats guarantee to our people. This Convention is a step in that direction.
Monsieur Robert Schuman, one of the great Europeans, said:
This Convention which we are signing is not as full or as precise as many of us would have wished. However, we have thought it our duty to subscribe to it as it stands. It provides foundations on which to base the defence of human personality against all tyrannies and against all forms of totalitarianism.
It ought to be recalled that democracy, civil liberties and human rights are a fragile flower. It is not something which stands a great deal of buffeting and it is something which is easily subverted. In the publication prepared for the Conservative Party in the United Kingdom by Peter Wallington and Jeremy McBride entitled ‘Civil Liberties and a Bill of Rights’, this was clearly spelled out. In advocating a Bill of rights in the British system the authors said:
The main argument for a Bill of Rights rests on an assessment of the present state of civil liberties in Britain. Although in practice we enjoy a remarkable level of tolerance (at least by the standards of other countries) of individual behaviour, there are serious gaps, and the tolerance itself is fragile. Respect for individual liberties often seems to stop short at members of unpopular minority groups, and hostility and prejudice over immigration have fostered a climate where it is difficult, even if the effort is made, to ensure that elementary considerations of humanity extends to the procedures for deciding applications to enter the country. Tolerance is also fragile because it is not always protected by law. Civil liberties frequently have a precarious legal status in that they exist only so long as the law happens not to trample on them, and they have no autonomous legal muscle to assert against whatever other, and more authoritarian pressures may happen to intervene.
In exactly the same vein the most distinguished Lord Chancellor of Great Britain, Lord Hailsham, has this to say in his recent biography entitled ‘The Door Wherein I Went’:
What is needed is an explanation of rights which are universally acknowledged to exist both in the individual and the State, and some guidance of what these rights are and what is to happen when there is a conflict of interest . . .
That is what I believe this Bill is a first step in seeking to achieve. The debate over rights as an issue is one that I think legitimately could detain this Senate for a few moments. The issue of rights is an issue which has been debated in political philosophy as long as there has been debate on political philosophy. It has varied from one extreme to another. Plato, in his discussion of rights, said simply something along these lines: Philosopher Kings are possessed of the ability to determine what is the ideal for which we should all strive; therefore, they have the right to impose upon others conformity to their will. It was not until a later stage, until Aristotle and Cicero started trying to formulate some sort of conception of natural rights, that is, rights inherent in every human being, rights without which the definition of the term ‘human being’ ceased to have any meaning. One of the great rennaissance philosophers, Delia Mirandola, writing in I486 attempted to come to grips with this definition of right and asserting the political principles of rights from what he saw as a theological base, in relation to the description of mankind, wrote as follows:
A limited nature in other creatures is confined within the laws written down by us. In conformity with thy free judgment, in whose hands I have placed thee, thou art confined by no bounds; and thou wilt fix limits of nature for thyself . . . Thou canst grow downward into the lower natures which are brutes. Thou canst again grow upward from thy soul’s reason into the higher natures which are divine.
This idea of attempting to make some definition of what it is that the term ‘rights’ means, what it is we are talking about when we are talking about rights, is what we have to come to grips with in understanding whether a debate about human rights and human rights legislation has a particular place in Australia today. We have known, for instance, that assertions of rights have been fundamentally important principles in determining the course of history. The Americans were able to write:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
They were making a statement about rights, about an attitude towards human beings and about an attitude towards the position of the human being in society which is fundamental to the democratic process. I know that Senator Evans displayed some testiness in other people attempting to give what they consider lengthy but perhaps valid dissertations on this matter. Perhaps that principle would have more respect on this side if he applied it equally on both sides of the chamber. It does not deter me from saying that I think, in determining what we mean by rights, will take us a long way towards determining our attitude to human rights legislation as such. Undoubtedly, the most perceptive critic or the most perceptive writer on the question of rights during the course of development of this idea among the English speaking people was Edmund Burke. He dealt with this subject in a number of his writings, for instance, the Speech on Fox’s East India Bill, his Reflections on the Revolution in France, on Letters on a Regicide Peace and the Appeal from the New Whigs to the Old, and many others.
– Didn’t he say: ‘For evil to prosper, it is necessary only for good men to do nothing’?
– Something along those lines, senator. He had a great deal to say on the question of rights and he was particularly concerned to try to balance what I believe this Bill is a first tentative step in balancing. A legislative framework to provide for the protection of human rights based upon the belief that simply stating that rights exist and hoping that somebody else at some other time will act to protect them is, in fact, an insufficient way of securing those rights. He particularly talked about the pretended rights of man in one of his works. He said:
The pretended rights of man which have made this havoc -
He was referring to the French revolution- cannot be the rights of the people. For to be a people and to have these rights are things incompatible.
He was trying to make the point that we do ourselves no great service in simply making assertions that rights exist and then expecting that we can build a whole edifice upon that. On this vein the classic basis of people stating that Bills of Rights ought to be written and ought to present the answer to all these problems- that is not a point of view that I hold- was stated by Jeremy Bentham. In talking about the written Bill of Rights and why he rejected it, he said:
Look to the letter, you find nonsense- look beyond the letter, you find nothing . . . There are no such things as natural rights- no such things as natural rights opposed to, in contradistinction to legal . . . Natural rights is simple nonsense: natural and imprescriptible rights, rhetoric nonsense- nonsense upon stilts.
If we are to come to grips effectively with these problems, we will have to do so by a more precise definition of what we mean by rights, a more precise definition of those rights that we expect to be protected by and a more precise definition about how we expect those rights to be protected. If people are interested in following this even further, I think the most perceptive thing written recently about this matter was published in 1977 in a book entitled Individual Liberty and the Law, The Tagore Law Lectures delivered by the now Governor-General, Sir Zelman Cowen.
It is equally important to distinguish between rights and needs. The simple assertion that certain things are needed is not the same as the assertion that one has rights to a certain thing. This leads us to the situation in which two alternative approaches, are presented to the way in which human rights can be secured. It is said that either one can rely exclusively upon the operation of the common law and the common law will provide the protection of one’s rights, or that one can go to the other extreme and have a written Bill of rights and a written Bill of rights will be sufficient. I believe that neither of those is an effective solution; neither of those brings us to the position of providing an adequate protection of the rights of the Australian people in the 1 980s and beyond. For instance, many people who believe that the common law is quite sufficient to provide for all one’s purposes, say: ‘We have the Magna Carta, we have the Bill of Rights, we have habeas corpus and all the law that goes with those and that is sufficient’. I think the mistake that they make is to overestimate exactly what those fundamental laws really mean. It is fashionable to talk about Magna Carta, yet there are only two out of the 63 parts of Magna Carta that are still applicable in law today. One of them, Chapter 9, relates to the protection of debtors. The only part of the Magna Carta which still stands as statute law is Chapter 8. 1 suppose those people interested in the feminist movement would be interested in this fact because that Chapter of Magna Carta reads:
It is small comfort to believe that the protection of widows is the only part of Magna Carta that still exists in statute law. The Bill of Rights is essentially a protection not for the rights of citizens but for the rights of members of parliament. Apart from the qualifications about the elections of parliament, the Bill of Rights is a statement about the powers of parliament. The Chief Justice of Australia, Sir Garfield Barwick, in presenting his 1979 Bentham Oration, was moved to make this point:
These foundation documents asserted existing rights and claimed their Royal recognition. Those instruments were not sources of individual rights.
That is a point that I think needs to be made and to be made over and over again. One knows that even habeas corpus has been suspended from time to time in situations of emergencies or when governments essentially felt it necessary and proper. It is interesting to reflect that for those who believe that the common law is all that one needs, one would have expected to find that this proposition was most vehemently defended in the United Kingdom, and in the United Kingdom most vehemently defended by members of the Conservative Party. But that is certainly not true. For instance, Lord Hailsham, the current Lord Chancellor, has written in his latest book about a need for a Bill of rights because he fears the elective dictatorship of parliament. In his Menzies Oration delivered on 12 May 1978 in Sydney, he warned about the problems of centralised democracy which required us to write down limitations upon the power of the Parliament.
Sir Keith Joseph, who I think would not be taken as a blushing radical among the conservative Administration at the moment, has been moved to write as follows:
Which brings me back to natural justice and the need to embody it in law. Until recently, people of all classes regarded the law as basically just. The Marxist minority would call it ‘class law ‘ more out of habit than from immediate conviction, but the public was not with them. Today the law is becoming a party-political football. If we are to save the law from Parliament, and Parliament from itself, we need a new safeguard.
Mrs Thatcher has gone on record as supporting the need for a Bill of rights. Sir Leslie Scarman, as he then was, in presenting his Hamlyn Lecture entitled ‘English Law- The New Dimension’ in 1974 said:
When times are normal and fear is not stalking the land, English law sturdily protects the freedom of the individual and respects human personality. But when times are abnormally alive with fear and prejudice, the common law is at a disadvantage: it cannot resist the will, however frightened and prejudiced it may be, of Parliament.
He went on to say that he sees: no reason why a curb should not be placed on Parliament herself when the issue is one of human rights.
Finally, Sir Norman Anderson again presenting a Hamlyn Lecture entitled ‘Liberty, Law and Justice’ was at great pains to spend part of his discussion on illustrating why he believed the state of the common law in Great Britain was such as to require, in that country, the enactment of a Bill of rights. I have said previously that I do not support the concept of a Bill of rights. I think this part of my argument demonstrates that the proposition that people can rely upon the operations of the common law, leave it to judges, to tradition, to history and to the good sense of people in the community simply does not exist when there are pressures- the pressures against blacks, the pressures against Vietnamese refugees, the pressures of unemployment or anything else- because one of the first things that is sacrificed when those sorts of conditions prevail are the human rights of other people and essentially the human rights of voiceless and defenceless minorities.
I wish to say something about the Bill of Rights debate in Australia. I have listened with great care and interest to Senator Evans’ speech this evening but I was even moved to spend some time reading an article by, as the lawyers would say, Mr Evans as he then was. That article occupies a full 30 pages in the Australian Quarterly of March 1973.
– You really will get a good mark for this speech.
– I am distressed that as an academic the honourable senator would be prepared to give good marks simply because the examiner was being flattered. In coming to his conclusion Senator Evans at the end of that article said:
Any supporter of a bill of rights who retains his objectivity must concede that there are difficulties and uncertainties surrounding this method of protecting fundamental rights. But such difficulties as there may prove to be with a bill are as nothing compared with those involved right now in getting parliaments and the courts to recognise the importance of these rights, and to go on respecting them in practice. At present there are no effective constraints at all on their action, and no clear principles to guide them. It is hard to imagine that a bill of rights would make no difference.
This is the old Jewish joke about chicken soup- it cannot do any harm. Frankly, if that is the best that can be adduced for a Bill of rights I think that it still requires us to view that matter with some degree of scepticism.
– You need to read the rest of my collective works on this subject.
-I doubt that there is anybody with either the time or the patience to read the rest of Senator Evans’s collective works on this or any other subject, although I do regret to say that I will be coming back to one of them later on in my speech.
It will be recalled that when the Law Reform Commission legislation was first being debated in this place Senator Greenwood on this side introduced a proposal to require the Law Reform Commission to ascertain whether legislation that came before it for consideration was in fact compatible with the articles of the International Covenant on Civil and Political Rights. Of that piece of legislation, he said in the Senate on 6 December 1973:
I think there is some novelty in the provision relating to the articles of the International Covenant on Civil and Political Rights. Its use as a standpoint from which all legislation which is being reviewed could be tested in order to ascertain whether it accords with those principles is also a desirable function of the Commission to have in mind.
One of the tests which is now constructed in the piece of legislation before us is to measure against an objective set of criteria derived admit.tedy outside Australia but adhered to by Australia whether in fact the laws of Australia can stand test against that piece of legislation.
As my colleague Senator Missen has already indicated, the Turner Memorial Lecture delivered by Mr Justice Kirby- I think it was printed in the University of Tasmania Law Review in 1 976- again canvassed this issue in some considerable detail. I have said and Senator Missen before me this evening said that one of the things that those of us who are not attracted-
– But Mr Justice Kirby favours a Bill of rights.
-I appreciate that, senator. (Quorum formed). I was saying that one of the reasons for my not supporting the idea of a Bill of Rights is the extent to which it makes the rights of individual citizens dependent not just upon the views of the judiciary but upon the views of the particular judges of the day. If one could be assured that there was some degree of continuity, that rights once defined and laid down by the judiciary were to remain without change one would have a little more confidence in a Bill of rights. But one knows from the Australian experience that a case which may be regarded as the precedent may be overthrown and an entirely new precedent established in terms of things like the immunity of instrumentalities with the case of D ‘Emden and Pedder being overthrown by the Engineers case or in terms of the corporations power with the case of Huddart Parker and Moorehead being overthrown by the Rocla Concrete Pipes case.
One can look for instance at even a judicial expression of the fact that the judiciary will itself from time to time vary the way in which legislation is to be interpreted. Mr Justice Mason in giving his judgment in the case Victoria v. Commonwealth and Hayden in 1975 said:
No doubt there are other enterprises and activities appropriate to a national government which may be undertaken by the Commonwealth on behalf of the nation. The functions appropriate and adapted to a national government will vary from time to time. As time unfolds, as circumstances and conditions alter, it will transpire that particular enterprises and activities will be undertaken if they are to be undertaken at all, by the national government.
Frankly, I am not impressed with the idea of making the fundamental human rights of Australian citizens dependent upon what the judiciary says will vary from time to time, as time unfolds, and as circumstances and conditions alter because I do not want human rights in Australia to be dependent upon time and circumstance.
The Americans have found this to their great cost. One looks at the American Constitution and the variety of interpretation. Who would have thought that Article 1 of the United States Constitution, which makes the statement that it is necessary to have a well regulated militia should be used as the basis for striking down all gun control legislation in the United States or indeed that the provisions of Article 1 which relate to free speech should be used in the case of Buckley v. Valeo as the basis for saying that there can be no limit on election campaign expenditure. Who would have thought that Article 14 of the American Constitution, which is the equal protection clause, in terms of education could be interpreted in 1 896 in Plessy v. Ferguson as saying that separate educational facilities could be equal and then be overturned in Brown v. Topeka in 1 954 which said that separate facilities are inherently unequal.
Who would have thought that the equal protection clause in Article 14 dealing the voting rights could be held in 1926 in Fergus v. Marks as being purely a political issue and by the time it had come round to 1964 in Reynolds v. Sim it was found that the American Supreme Court said:
Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.
As a result, the argument was that the courts had the right to interfere in apportionment matters. Who would have thought that Article 5 in regard to self-incrimination could have been so far extended perhaps at the high water mark of Miranda v. Arizona to prevent almost any form of police investigation. One would have thought, for instance, that Article 1 makes it absolutely clear that Congress should impose no limitations on the freedom of the Press. Yet recent decisions even this year, by the American Supreme Court in cases such as Hutchinson v. Proxmire or the Progressive Case have made it clear that the courts are now prepared to erect barriers to investigative journalism or that the right of public trial specified in Article 6 should have been in July of this year defined by the American Supreme Court in a case involving De Pasquale to say that the public has no constitution right to attend criminal trials; or that the American Constitution should have been found so deficient in its legal interpretation to require it to be altered on no less than four separate occasions- in 1 870, 1920, 1964 and 1971- to try to secure voting rights for all adult Americans over the age of 1 8.
We know that in Australia the debate whether Australia should have a Bill of rights is one that preoccupied the Founding Fathers of the Australian Constitution. Professor La Nauze in his book The Making of the Australian Constitution indicates quite clearly:
The Convention did, however, discuss almost to the end the most celebrated of American ‘rights’, and there were more reasons for discarding or diluting them than an unshakeable faith in parliamentary democracy. (Quorum formed).
It has been said that there were three fundamental rights written into the Australian Constitution. They are to be found in section 80, which provides for jury trials; section 116, which prevents the Commonwealth from enacting laws establishing religion; and section 1 1 7, which provides basically that citizens in any State should not be subject to any disqualification or discrimination which would not be equally applicable to them were they subjects of the Queen resident in such other State. Those three rights have turned out to be fairly illusory protections in the Australian Constitution. Professor Sawer writing in his book entitled Australian Federalism in the Courts has described section 80 regarding trial by jury as worthless in practice. We know that section 1 16 is a matter of some disputation before the court at the moment. Section 117 appears to have done precious little to secure the rights of Aboriginal citizens of Australia who happen to be resident in the States of Queensland and Western Australia and in the Northern Territory. We are therefore brought to a situation in which adopting the International Convenant on Civil and Political Rights appears to be a weak middle ground between these two extremes. I say that it is weak and I regret that, as a covenant, it is not a stronger document. If one looks at Article 4 one finds that there is one form of limitation on fundamental rights. Those rights can be abrogated provided that such measures are not inconsistent with other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language or social origin. Article 4 states: the State Parties to the present Covenant may take measures derogating from their obligations under the Present Covenant to the extent strictly required by the exigencies of the situation.
There is a qualification in Article 9 which says:
No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
I suppose law in the Soviet Union has a different meaning. There is a qualification in Article 12 which says:
The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order . . . public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
There is a further qualification in Article 18 which says:
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
The document in that sense is in many ways an extremely weak document. I regret that we have not sought to use the test of the European Convention for the Protection of Human Rights and Fundamental Freedoms which I consider to be a much more powerful and much more appropriate document in current circumstances. I seek leave to incorporate in Hansard the text of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the protocols attached to it.
The document read as follows-
The Governments signatory hereto, being members of the Council of Europe,
Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948;
Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared;
Considering that the aim of the Council of Europe is the achievement of greater unity between its Members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of Human Rights and Fundamental Freedoms;
Reaffirming their profound belief in those Fundamental Freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend;
Being resolved, as the Governments of European countries which are likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration,
Have agreed as follows:
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
For the purpose of this Article the term ‘forced or compulsory labour’ shall not include:
Article5 of this Convention or during conditional release from such detention;
No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law;
the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
Everyone charged with a criminal offence has the following minimum rights:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Nothing in Articles 10, 1 1 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.
The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.
To ensure the observance of the engagements undertaken by (he High Contracting Patties in the present Convention, there shall be set up: 1, A European Commission of Human Rights hereinafter referred to as ‘the Commission’;
The Commission shall consist of a number of members equal to that of the High Contracting Parties. No two members of the Commission may be nationals of the same State.
The members of the Commission shall sit on the Commission in their individual capacity.
Any High Contracting Party may refer to the Commission, through the Secretary General of the Council of Europe, any alleged breach of the provisions of the Convention by another High Contracting Party.
The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
The Commission shall not deal with any petition submitted under Article 25 which
In the event of the Commission accepting a petition referred to it:
After it has accepted a petition submitted under Article 25, the Commission may nevertheless decide unanimously to reject the petition if, in the course of its examination, it finds that the existence of one of the grounds for non-acceptance provided for in Article 27 has been established.
In such a case, the decision shall be communicated to the parties.
If the Commission succeeds in effecting a friendly settlement in accordance with Article 28, it shall draw up a Report which shall be sent to the States concerned, to the Committee of Ministers and to the Secretary General of the Council of Europe for publication. This Report shall be confined to a brief statement of the facts and of the solution reached.
The Commission shall meet in camera.
Subject to the provisions of Article 29, the Commission shall take its decisions by a majority of the members present and voting.
The Commission shall meet as the circumstances require. The meetings shall be convened by the Secretary General of the Council of Europe.
The secretariat of the Commission shall be provided by the Secretary General of the Council of Europe.
SECTION rv Article 38
The European Court of Human Rights shall consist of a number of judges equal to that of the Members of the Council of Europe. No two judges may be nationals of the same State.
The Court shall elect its President and Vice-President for a period of three years. They may be re-elected.
The members of the Court shall receive for each day of duty a compensation to be determined by the Committee of Ministers.
For the consideration of each case brought before it the Court shall consist of a Chamber composed of seven judges.
There shall sit as an ex officio member of the Chamber the judge who is a national of any State party concerned, or, if there is none, a person of its choice who shall sit in the capacity of judge; the names of the other judges shall be chosen by lot by the President before the opening of the case.
Only the High Contracting Parties and the Commission shall have the right to bring a case before the Court.
The jurisdiction of the Court shall extend to all cases concerning the interpretation and application of the present Convention which the High Contracting Parties or the Commission shall refer to it in accordance with Article 48.
The Court may only deal with a case after the Commission has acknowledged the failure of efforts for a friendly settlement and within the period of three months provided for in Article 32.
The following may bring a case before the Court, provided that the High Contracting Party concerned, if there is only one, or the High Contracting Parties concerned, if there is more than one, are subject to the compulsory jurisdiction of the Court or, failing that, with the consent of the High Contracting Party concerned, if there is only one, or of the High Contracting Parties concerned if there is more than one:
In the event of dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.
If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.
The judgment of the Court shall be final.
The High Contracting Parties undertake to abide by the decision of the Court in any case to which they are parties.
The judgment of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution.
The Court shall draw up its own rules and shall determine its own procedure.
On receipt of a request from the Secretary General of the Council of Europe any High Contracting Party shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of this Convention.
The expenses of the Commission and the Court shall be borne by the Council of Europe.
The members of the Commission and of the Court shall be entitled, during the discharge of their functions, to the privileges and immunities provided for in Article 40 of the Statute of the Council of Europe and in the agreements made thereunder.
Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.
Nothing in this Convention shall prejudice the powers conferred on the Committee of Ministers by the Statute of the Council of Europe.
The High Contracting Parties agree that, except by special agreement, they will not avail themselves of treaties, conventions or declarations in force between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of this Convention to a means of settlement other than those provided for in this Convention.
Done at Rome this 4th day of November 1950, in English and French, both texts being equally authentic, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General shall transmit certified copies to each of the signatories.
Entry into force: 3 September 1953
1 As amended by Protocols Nos. 3 and 5, which entered into force on 21 September 1970 and 20 December 1971 respectively. 2 As amended by Protocol No. 5, which entered into force on 20 December 1971. 3 As amended by Protocol No. 3, which entered into force on 21 September 1970. 4 As amended by Protocol No. 3, which entered into force on 21 September 1970. 5 As amended by Protocol No. 5, which entered into force on 20 December 1971. 6 Greece denounced the Convention 12 December 1969 but ratified again on 28 November 1974.
The Governments signatory hereto, being Members of the Council of Europe.
Being resolved to take steps to ensure the collective enforcement of certain rights and freedoms other than those already included in Section I of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as ‘the Convention ‘),
Have agreed as follows:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
Any High Contracting Party may at the time of signature or ratification or at any time thereafter communicate to the Secretary General of the Council of Europe a declaration stating the extent to which it undertakes that the provisions of the present Protocol shall apply to such of the territories for the international relations of which it is responsible as are named therein.
Any High Contracting Party which has communicated a declaration in virtue of the preceding paragraph may from time to time communicate a further declaration modifying the terms of any former declaration or terminating the application of the provisions of this Protocol in respect of any territory.
A declaration made in accordance with this Article shall be deemed to have been made in accordance with Paragraph ( 1 ) of Article 63 of the Convention.
As between the High Contracting Parties the provisions of Articles 1 , 2, 3 and 4 of this Protocol shall be regarded as additional Articles to the Convention and all the provisions of the Convention shall apply accordingly.
This Protocol shall be open for signature by the Members of the Council of Europe, who are the signatories of the Convention; it shall be ratified at the same time as or after the ratification of the Convention. It shall enter into force after the deposit of ten instruments of ratification. As regards any signatory ratifying subsequently, the Protocol shall enter into force at the date of the deposit of its instrument of ratification.
The instruments of ratification shall be deposited with the Secretary General of the Council of Europe, who will notify all Members of the names of those who have ratified.
Done at Paris on the 20th day of March 1 952, in English and French, both texts being equally authentic, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General shall transmit certified copies to each of the signatory Governments.
Switzerland: (not ratified)
Entry into force: 18 May 1954
France: (not ratified)
Entry into force: 2 1 September 1970
The Governments signatory hereto, being Members of the Council of Europe;
Being resolved to take steps to ensure the collective enforcement of certain rights and freedoms other than those already included in Section 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as ‘the Convention ‘) and in Articles 1 to 3 of the First Protocol to the Convention, signed at Paris on 20 March 1952,
Have agreed as follows:
No one shall be deprived of his liberty on the ground of inability to fulfil a contractual obligation.
Collective expulsion of aliens is prohibited.
In witness whereof, the undersigned, being duly authorised thereto, have signed this Protocol.
Done at Strasbourg, this 16th day of September 1963, in English and in French, both texts being equally authoritative, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General shall transmit certified copies to each of the signatory States.
Austria: 1 8 September 1 969
Belgium: 2 1 September 1 970
Demark: 30 September 1964
France: 3 May 1974
Federal Republicof Germany: 1 June 1968
Iceland: 16 November 1967
Ireland: 29 October 1 968
Luxembourg: 2 May 1968
Norway: 12 June 1964
Sweden: 13 June 1964
Entry into force: 2 May 1 968
-I thank the Senate. The test of the bona fides of the Government in this matter will be whether we are prepared to extend the operation of this legislation to take care of State legislation, not to override State legislation, but simply to allow the Commission to pronounce upon State legislation. Mr John Dowd, M.P., a Liberal member of the New South Wales State Parliament and President of the Australian section of the International Commission of Jurists wrote to the Sydney Morning Herald. His letter published on 16 November 1979 said in part:
The Australian section of the International Commission of Jurists is deeply concerned at the inadequacy of the Human Rights Commission Bill at present before the Australian Senate.
Governments are the greatest violators of human rights and in the Australian Federal system the overwhelming majority of these violations occur under State law.
Let me give honourable senators a few illustrations of that. Arrest without warrant is provided for in the Crimes (Powers of Arrest) Act of Victoria, section 459; in the Criminal Code of Tasmania, section 27; in the Criminal Code of Western Australia, section 5; in the Criminal Law of Queensland, section 5; in the Police Offences Act of South Australia, section 75; and in the New South Wales Crimes Act, section 352. The extraordinary business in this day and age of the imprisonment of people for being in debt is provided for in the Local and District Criminal Courts Act of South Australia, section 1 80; the Local Courts Act of Western Australia, section 130; the Debtors Act 1870 of Tasmania, section 3; and the Imprisonment of Fraudulent Debtors Act 1958 in Victoria. The reverse onus of proof is paraded through the Criminal Code of Western Australia, section 407 (c); the Criminal Law Consolidation Act of South Australia, section 172 (b); the Criminal Law of Queensland, section 425 (c). The power to interfere with the correspondence of citizens in Australia who happen to be in mental institutions- the power of a superintendent to decide that it may not be delivered to them or from them- is provided in the Mental Health Act of Western Australia, section 59 (2); the Mental Health Act of Tasmania, section 109 (2); the Mental Health Act of Victoria, section 79 (2); the Mental Health Act of South Australia, section 72 ( 1 ); and the Mental Health Act of Queensland, section 53 (2).
People want to come into this Parliament and say that a Human Rights Commission designed to investigate and report upon breaches of human rights should have this great swag of State legislation- I have qouted in relation to only four parts, namely, offences against Articles 9, 11, 14 and 17 of the Convention which we are now putting into this Bill- not subject to the investigation of the Commission. What sort of bona fides does this represent by a government that says that it is prepared to have a commission to investigate breaches of human rights provided the breaches of human rights are not those flagrantly, blatantly and continually undertaken under State legislation? It is for that reason that I will certainly be voting for the amendments foreshadowed by Senator Missen to extend the scope of the investigations of the Human Rights Commission to look at those activities undertaken by the States which constitute ongoing and flagrant breaches of human rights in Australia. I am not prepared to wear the argument that the Attorney-General puts forward in his second reading speech when he says:
There have been suggestions that a Bill of Rights which is enforceable in the courts should be developed for Australia. There are a number of objections to such a course. First, it would have serious implications for our Federal system of government.
I say to the Attorney-General that much as I am one who admires the federal system and federal principles, if a decision has to be made between the principles of federalism and the principles of human rights, I do not think the principles of federalism are worth a brass razoo. If that is to be used as the feeble and facile argument to say that the human rights of citizens in Australia are less important than the attachment to a political ideology regarded as federalism, it is an argument that I am not prepared to wear in any circumstances. I can assure the Attorney and members of the Government that the majority of people in the Australian community are not prepared to wear it, and if it is paraded in the Australian community as a legitimate reason for not extending the scope of this Bill it will deserve the reaction from the Australian community that certainly will be forthcoming.
The BUI is deficient also in terms of the provisions for enforceability and it is deficient in terms of the problems which an individual citizen, unless this legislation is amended, will find in terms of establishing before the Commission his standing in order to have matters brought to attention and brought to a situation where the Commission can take some activity in that matter. The Australian Law Reform Commission in Discussion Paper No. 4 ‘Access to the Courts: Standing Public Interest Suits’ has indicated a number of occasions where lack of standing as interpreted by the courts, or the failure of the Attorney-General to provide his fiat for suits to go on, has prevented people from taking action. On pages 9 and 10 it mentions cases concerned with the Antarctic Expedition and the tenders called for the supply of helicopters in 1961, the problems arising under the Sugar Agreement and the environmental controversies arising in 1 972 as far as Lake Pedder was concerned and in relation to the mining of recreation reserves in Queensland, where the fiat of the AttorneyGeneral was not granted. One could now add to that the failure of the Attorney-General, without explanation to this Parliament or anybody else, to grant his fiat to the Australian Conservation Foundation to pursue its interest in the Iwasaki development in Queensland.
The Law Reform Commission has indentified why this occurs. It occurs as the Law Reform Commission says in this sentence:
Finally, Australian Attorneys, much more than their English counterparts, are politicians first; they generally sit in Cabinet. Very often they have made their names as politicians rather than lawyers; some State Attorneys have not been qualified lawyers.
The fact that throughout recent times we have found situations in which we have said that we have erected pieces of legislation designed to protect the public interest, and then excluded individual members of the public from pursuing that interest, is something which ought not to be tolerated and which I hope will be picked up in terms of amendments which can be made to this Bill when we get to the Committee stage. The criticism that Senator Missen has made in a critique which is now part of his speech in Hansard under the heading ‘clause 16 (f): ‘Enforcement of Human Rights’ is an area which bears further study by all honourable senators.
The final thing that I say on this particular point is that if one turns to the recently produced magnificent volume entitled Freedom of Information brought down yesterday in the Parliament, one will find on pages 60 to 62 a discussion about conclusive Ministerial certificates. One would hope one would plead with the AttorneyGeneral, that, having this report before him now and having before him a report from the Senate Standing Committee on Constitutional and Legal Affairs- which seeks in terms of the Sankey judgment and other matters to argue as precisely as it can argue on those pages against the system of conclusive Ministerial certificatesunless he expects the members of the Consitutional and Legal Affairs Committee and other members of the Senate not to believe that this report is being treated with monumental contempt, he will make some sort of attempt to come to grips with the question of whether conclusive certificates, which this Committee recommends, ought to be subject to a number of qualifications and appeals which should not appear in the Freedom of Information Bill or the Archives Bill and, equally should not appear in the Human Rights Commission Bill. I appeal to the Attorney, in terms of making a response to the considered argument of the Senate Committee on the question of conclusive certificates, that he now has an opportuniy at a early stage to say whether the Senate committee, having laboured for a year and more, was in fact simply wasting its time and public money, or whether the recommendations that it has made are recommendations that the Government is prepared to consider.
There are a couple of very quick subsidiary issues that I wish to raise. One concerns the constitutional power of the Federal Parliament to enact human rights legislation. In a speech which the former Attorney-General- (Quorum formed) I was saying that there was some debate as to whether the Commonwealth possesses the constitutional power to enact human rights legislation which might have any effect whatsoever upon the States. On 9 August 1976 Mr Ellicott, the then Attorney-General, addressing the Citizens Welfare Service of Victoria, said: my own view is in favour of each arm of government maintaining its traditional role; the Executive should make policy, the Parliament should legislate and Judges should judge.
He went on to say:
Leaving aside the serious doubts which I share as to the power of the Federal Parliament to legislate on the matter for the whole of Australia (there would appear to be no constitutional difficulty associated with the Commonwealth and each State legislating for Bills of Rights in their respective areas of responsibility), there are other difficulties which I see.
With great respect to Mr Ellicott, I think the majority of people who write on this subject do not appear to share his particular concern in that matter. Lumb and Ryan writing in the book Constitution of the Commonwealth of Australia make it quite clear.
But despite the fact that Commonwealth governments have made it a practice in relation to some conventions not to use s 51 (xxix) to create intrusions into fields of State legislative authority, and have looked to the States to pass implemental legislative measures, it would seem clear that if s.51 (xxix) is to have any meaning whatsoever as an independent head of power, then it does give the Commonwealth at least some power to intrude into “State” fields, so far as this is necessary for the implementation of its foreign affairs commitments.
Professor Sawer goes on to make the same point, saying:
Australian governments sometimes use the Federal difficulty as an alibi for not committing the country to agreements when the government dislikes the agreement on policy grounds but does not want to say this, whether for external or internal political reasons.
I said that I would even have the temerity once again to quote. As I say, the devil may quote scripture for his own purposes. I quote from a book of which Mr Evans, as he then was- now Senator Evans- turned out to be the editor, entitled Labor and the Constitution, a chapter of which I am sure Mr Crommelin had more hand in writing that did Senator Evans.
– It depends on how flamboyant the prose was.
-That is why I judged it was obviously his, because he said quite clearly:
It is now clearly beyond doubt that the external affairs power, whatever else is within its reach, extends to the domestic implementation of international treaty obligations.
I am hopeful that the Government will also be prepared to see that taking this first step ought to lead it a little further. For instance, I would be grateful if the Attorney-General would inform me in his reply to the second reading debate whether it is the intention of the Australian Government, when proceeding to ratification, to ratify also the Optional Protocol to the International Covenant on Civil and Political rights adopted by resolution 2200 (XXI) at the General Assembly on 16 December 1966. It provides for a human rights committee to be set up in consequence of Part IV of the covenant which appears as the Schedule to the Bill. Article 1 of the optional protocol provides:
A State Party to the Covenant that becomes a party to the present Protocol recognises the competence of the Committee to receive and to consider communications from individuals subject to its jurisdiction, claiming to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a party to the present Protocol.
I seek leave to have the whole text of that Protocol incorporated in Hansard.
The document read as follows-
Adopted by Resolution 2200 (XXI) of the General Assembly, 16 December 1966. 2 1 GAOR, Suppl. No. 16 (A/6316), at 59-60.
The States Parties to the present Protocol,
Considering that in order further to achieve the purposes of the Covenant on Civil and Political Rights (hereinafter referred to as ‘the Covenant’) and the implementation of its provisions it would be appropriate to enable the Human
Rights Committee set up in part IV of the Covenant (hereinafter referred to as ‘the Committee’) to receive and consider, as provided in the present Protocol, communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant.
Have agreed as follows:
Article 1. A State Party to the Covenant that becomes a parry to the present Protocol recognises the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction, claiming to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol.
Article 2. Subject to the provision of article 1, individuals claiming that any of their rights enumerated in the Convenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.
Article 3. The Committee shall consider inadmissible any communication under this Protocol which is anonymous, or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of the Covenant.
Article 4.- 1. Subject to the provisions of article 3, the Committee shall bring any communications submitted to it under the present Protocol to the attention of the State Party to the present Protocol alleged to be violating any provision of the Covenant.
Article 5.- I. The Committee shall consider communications received under the present Protocol in the light of all written information made available to it by the individual and by the State Party concerned.
The Committee shall not consider any communication from an individual unless it has ascertained that:
Article 6. The Committee shall include in its annual report under Article 45 of the Covenant a summary of its activities under the present Protocol.
Article 7. Pending the achievement of the objectives of General Assembly resolution 1514 (XV) of 14 December 1960 concerning the Declaration on the Granting of Independence to Colonial Countries and Peoples, the provisions of the present Protocol shall in no way limit the right of petition granted to these peoples by the Charter of the United Nations and other international conventions and instruments under the United Nations and its specialised agencies.
Article 8.- 1 . The present Protocol is open for signature by any State which has signed the Covenant.
Article 9.- 1. Subject to the entry into force of the Covenant, the present Protocol shall enter into force three months after the date of the deposit with the SecretaryGeneral of the United Nations of the tenth instrument of ratification or instrument of accession.
Article 10. The provision of the present Protocol shall extend to all parts of federal States without any limitations or exceptions.
Article 1 1 .- 1 . Any State Party to the present Protocol may propose an amendment and file it with the SecretaryGeneral of the United Nations. The Secretary-General of the United Nations shall thereupon communicate any proposed amendments to the States Parties to the present Protocol with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that at least one third of the State Parties favours such a conference the Secretary-General of the United Nations shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.
Article 12.- 1. Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations. Denunciation shall take effect three months after the date of receipt of the notification by the Secretary-General of the United Nations.
Article 13. Irrespective of the notifications made under article 8, paragraph 5, of the present Protocol, the SecretaryGeneral of the United Nations shall inform all States referred to in article 48, paragraph 1, of the Covenant of the following particulars:
Article 14.- 1. The present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.
-Article 50 of the present Covenant extends the obligation to all parts of federal States once this convention is ratified. It reads:
The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.
I wonder whether the Government will have the courage also to ratify the optional protocol which it seems to me would allow individuals to appeal to the human rights committee set up as a consequence of Part IV of the principal Covenant in order to receive complaints from individuals about acts of discrimination by State parties which take place as far as they are concerned. I say that there is a demonstrable need for the legal protection of human rights which are all too subject to the whim of the majority of the day, to the most base and ignorant predjuices of the day and the situations where minorities receive as limited an amount of protection from majorities as can possibly be eked out by the inadequate measures that we have at the moment. That is not satisfactory. The present reliance upon the common law is increasingly irrelevant and inadequate. I dislike Bills of rights as a fundamental solution to this matter. I believe that this is a first step in a long journey in which we will still have a great road to travel to provide proper protection of civil liberties. This could be better legislation if the amendments, particularly those circulated by my colleague, Senator Missen, were agreed to. I am still undecided on the question of the second reading of the Racial Distrimination Amendment Bill and I am waiting to be persuaded by spokesmen for the Government’s point of view about the validity of that piece of legislation.
Finally I say that this Parliament has no role which is legitimate if it is not the role of protecting the rights of individuals and representing them. It has no role unless it, as the sole possessor of the legitimate means of coercion in the State, is prepared to use those means not to coerce but to protect. It has no more important role than the role that it plays in debating legislation like human rights and racial discrimination legislation.
– Is that why you voted against a vote being taken this morning on a motion concerning Timor? That was a total contradiction of what you just said.
-It means that the Parliament has a genuine role to play in these things and not a one-off bleeding heart headline grabbing role which anybody can get with a quick resignation at any time. This is something that requires serious consideration by the Parliament. While I am prepared to vote and work for those amendments which have been put forward to attempt to strengthen this piece of legislation, if they are not successful I will nevertheless give my support to the legislation. I believe that it is a first step which governments, as they progressively realise their responsibilities and as they change to get themselves more and more into line with the views that the majority of the people in this community hold, will be able to build upon this piece of legislation to ensure that the protection of human rights and civil liberties is recognised as being a significant role which the Parliament of the Commonwealth of Australia has to play. (Quorum formed).
-The Senate is engaged tonight in a most auspicious enterprise. We, as the elected representatives of the Australian people, are involved in creating for the first time an Act relating to human rights. The Human Rights Commission Bill will become law perhaps with some slight amendments. Therefore, unlike some projects which have been in this Parliament on previous occasions to do with human rights, this legislation has a particular import and we have to approach it with some gravity and even goodwill. On a first glance one would say that this Bill is part of that world wide enterprise that has had particular force since the Second World War when nations in reaction to the Nazi and the general Axis tyrannies decided that documents needed to be drafted which set forth as clearly as possible that human beings had certain human rights which should be respected by whatever form of government had control of their country, be it a Communist socalled dictatorship of the proletariat or a Western democratic model.
Whilst the Bill before us appears to be in line with the world wide enterprise I regret to say- it is a cause of genuine regret for me- that an examination of it proves it to be purely cosmetic. It is not exactly deceptive but one is led to have suspicions about the real commitment of this Government to the securing of human rights within Australia. To put it briefly, when reading the Bill one finds that the Bill specifically disables the proposed Human Rights Commission from dealing with those very areas that Senator Puplick outlined, namely those coming within State jurisdictions, where breaches of human rights most commonly and notoriously occur within this nation. Where the Act concerns itself with rights it in no way secures them on behalf of individuals by providing appropriate and effective remedies to ensure that they are really rights and not merely privileges enjoyed at the grant and the whim of the majority for the time being.
One is immediately alerted to the fact that the Bill may not achieve what its proponents claim can be achieved. Even the preamble speaks of the International Covenant on Civil and Political Rights having been opened for signature on 19 December 1 966 and of having come into force. But where is the statement that this nation has gone into the international community and ratified that covenant. There is no such statement because no such ratification has occurred.
This morning Senator Wheeldon, in the presentation of a report, as a citizen of Australia was able to talk about the violation of human rights in Russia because since the Second World War the Union of Soviet Socialist Republics has been moved, however reluctantly, by the international movement of which I spoke, to go to Helsinki and to say to other nation states: ‘Human rights, though affecting individuals within our jurisdiction, are of sufficient international concern that we will bind ourselves to respect them’. That undertaking was given between nation states. We have not joined the international community as we ought to have done and said that we will be bound in that way. We have not ratified that treaty. Even in the proposed amendments circulated a few moments ago by the AttorneyGeneral (Senator Durack), one finds no clear indication that that is even about to occur. We may get a statement that it might occur before Christmas. Why has it not occurred in the years since 1966? Why has it not occurred in the past couple of years? Why has it not preceded this Bill coming into the Parliament, as a token of the good faith of the Government?
Even accepting that the Bill does intend to aid the civilising of Australia in the activity of government, government officials and others, and comes into some harmony with the International Covenant, one is entitled to think that the Bill is inadequate. I shall read from a statement made by no less a person than the Federal President of the United Nations Association of Australia, a Mrs C. Storey, in a media release of 2 October 1979. That Association is a voluntary group, a non-government organisation in Australia concerned particularly to ensure that United Nations covenants such as the one we are discussing do find effective implementation within national communities. The Federal President, after a detailed criticism of the Bill, concluded the media release with these words:
An overall assessment of the legislation currently proceeding through Parliament must conclude that it is not strong enough to bring the human rights situation in Australia into line with the International Covenant on Civil and Political Rights.
It is a cause of regret that I have to agree with that statement. I will outline why that happens to be true. But there is a reason even more inherent in my status as a senator that I find I cannot accept that the Government has a total commitment in this matter. A full year ago, on 23 November 1978, the Senate Standing Committee on Constitutional and Legal Affairs presented to this Parliament a report on the scrutiny of Bills. In that report we, as a parliamentary committee, in a bipartisan, unanimous resolution, recommended that a parliamentary committee should be established to maintain a watching brief on all Bills introduced into the Parliament to highlight the provisions which had an impact on persons, either by interfering with their rights or by subjecting them to the exercise of undue delegations of power.
We reasoned that, having been alerted by such a committee to a deficiency, danger or jeopardy in a proposed piece of legislation, the Parliament, with that recommendation of the committee before it, could make a judgment on whether to proceed with the Bill as drafted on the basis of countervailing considerations or whether to accept the recommendation of the committee that the Bill should be withdrawn in that it did, as the committee judged, put into jeopardy the human rights of an individual. In 1 2 months the Government has made no response to that Senate Standing Committee recommendation. On that basis, I certainly find it difficult to believe that the Government is really committed to the proposed Commission’s working effectively when in the Bill it is stated that the Commission may have before it proposed laws; that is, Bills. If the Government refuses in the course of a year to come into the Parliament and say: Yes, we agree that a parliamentary committee should have Bills before it in order to inform the Parliament, before it passes those Bills into law, that those Bills might place in jeopardy a human right’, what confidence can we have that the Government will put before the proposed Commission Bills, or even enactments, which may have such a dangerous effect on human rights in Australia?
I must say that I regret that this Bill in no way, despite its pretensions, falls into the general movement for the protection of human rights which has swept the world since the Second World War. I suppose that the major deficiency is that there is a lack of remedy for the rights which are outlined as the concern of the Australian community and which are to come within the jurisdiction of the proposed Commission. There is a very old legal maxim: Ubi jus, ib remedium- where there is a right there is a remedy. That is an ancient part of our law. Chief Justice Holt, a great chief justice, born in 1642, Chief Justice at the age of 23 years, Chief Justice for 41 years- not some woolly-minded academic- a man who was harsh on treason and sedition but who held out against the prosecution of witches, who adopted a liberal construction on statutes compelling church attendance, a man who was concerned with human rights and who used his unparallelled position as Chief Justice for 41 years to secure them, said of that elementary maxim: ‘Whenever the common law gives a right it also gives a remedy’. He said, in Ashby v. White:
If a man has a right he must have a means to vindicate and maintain it and a remedy if he is injured in the exercise and enjoyment of it. Indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal.
There is no doubt that this Bill is totally deficient according to the traditions of our rule of law when, in setting out rights, it fails to provide adequate and effective remedies such as were contained in the Human Rights Bill put down in this place in 1973 by the then Senator Murphy. One will recall that that Bill contained detailed provision concerning civil proceedings which allow for injunctions to restrain a defendant from repeating the relevant act injuring a human right. It contained provisions allowing the direction of the defendant to do a specified act to place the complainant in a position which he ought to have been in had his right not been violated. It contained provision for damages against the defendant in respect of loss he might have suffered and that loss was quantifiable. It included also provision for loss of dignity, humiliation and injury arising from the fact that he had been denied a human right.
The Bill contained various other provisions, including the very important one that, when evidence was obtained as a consequence of contravention of a human right, such evidence would not be admissible to a court or tribunal for any purpose. That is a very salutary and effective means of preventing, for example, an abuse of human rights which should be enjoyed while a criminal investigation is under way by the police force. As I said, that part of our rule of law is completely ignored by the Bill which is before us, which makes the Bill so deficient that one must query whether in fact it is any more than windy rhetoric.
When Senator Puplick was speaking, as he did for some time, on the history of the human spirit in trying to secure human rights, he mentioned in particular the experience of the European community after the Second World War as something which appealed to him in its fruition in the European covenant. But, of course, that very example to which he pointed does contain effective remedies, in that a complainant can go to a court, can go to a commission, and get a judgment against his government, against his nation state. Lord Hailsham, coming from a different common law tradition distinct from the civil law tradition of those whom Senator Puplick quoted earlier, stated, according to Senator Puplick, that there is a need for any statement concerning human rights to include what is to happen when there is a conflict between the rights of the community in general and the rights of the individual. This Bill does not say what is to happen by way of resolution of that conflict. It simply sends it to the proposed Commission for comment which will find its way into a report to the Minister and thence to the Parliament. There is no attempt to carry out the difficult task of deciding which right ought to prevail.
This point is very important because Senator Puplick and Senator Missen too, I think were at pains to emphasise that we want to talk about rights which inhere in the individual despite the will of the majority for the time being. Unless we have a legally enforceable right, we will have merely a privilege existing at the whim during the concurrence of the majority for the time being. It is not democracy to have such a situation. Democracy obviously does not exist simply where the majority for the time being makes the law. That can be a very simple formula for tyranny. It exists where the rights of minorities to dissent by way of verbal expression and even by way of practice, as long as it is nonviolent, are ensured. In this Bill we have no notion of right in that strong and necessary sense. The international Covenant on which the Government relies so much for so-called inspiration requires this Government to provide effective remedies. In article 2, clause 2- and this is perhaps why it has not been ratified- it requires the Government to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the Covenant.
It is of no use the Government’s saying ‘we cannot affect matters within State jurisdiction’ or we are not going to go so far as to give a judiciary enforceable right’. The Government is required to give effect to the rights recognised. It goes on to say that persons are to have an effective remedy. The possibilities of judicial remedies ought to be developed. The competent authorities shall enforce such remedies when granted. Here a confusion, I must say, entered the remarks of both Senator Missen and Senator Puplick because, in saying that a judicially enforceable Bill of rights is perhaps not the immediate answer to Australia’s situation, I agree only in a sense of that expression, namely, that the judges should not be given as their basic raw material a Bill of rights which is drafted so widely, so ambiguously, as to allow them the freedom of interpretation which was the concern of both Senator Missen and Senator Puplick.
– Is that not unavoidable?
– No. That is quite different from the proposition I am putting that one needs a judicial Bill of rights or list of human rights in the sense that, once they are denned with as great a precision as is possible by the elected representatives, an independent and impartial tribunal, a judiciary, ought to be given the power to enforce them. What this Government has failed to do is to go through the hard exercise of developing a list of human rights appropriate to the Australian situation, detailed as unambiguously as possible, and then to say to the judiciary: ‘We have done our part as elected representatives in identifying the rights necessary for Australians in a democratic society; you develop the remedies and apply them, whether by way of injunction, direction, damages or whatever’. Therefore, I would say that, given that understanding, perhaps both Senators Missen and Puplick could agree that a judicially enforceable Bill of rights, tightly drafted and perhaps of greater length than the traditionally rhetorical Bills of rights which grace so many modern constitutions, should be judicially enforceable. Remedies need to be provided and disposed of by some sort of impartial arbiter.
That brings me to a strange anomaly. If the Government is not relying on the external affairs power for the provision of this Bill- I will give the reasons why I do not think it needs to- why has it neglected to do this difficult task of compiling an indigenous list of human rights? There is no need for it, if it is not attempting to reach the States, to rely on an international covenant on human and political rights. If it is affecting only its own laws, or the territory as a geographical entity, I do not see why it cannot do that simply by exercising its power to make the laws concerned. There is no need for it to rely on this vague international covenant.
– It shows what a cosmetic exercise it is.
– Yes. If there had been some attempt to bring the States within the purview of the Commission, I could understand why there has been no attempt to take on the hard constitutional question whether we could have judicially enforceable rights which could be won when at variance or inconsistent with State laws. But since that enterprise is not undertaken by this Bill, I cannot really see any excuse for the Government’s not providing effective legal remedies for violations of human rights, even as measured by the international covenant. As I said in my opening remarks, the Bill deliberately disables itself from dealing with that area of greatest and most constant violation of human rights within Australia, namely, within the State jurisdictions.
I turn now to the International Covenant on Civil and Political Rights. Given my previous remarks, I feel free to say that this covenant ought not to have been used as it has been used by the Government. I say that for much the same reasons as Senator Puplick outlined, although he did not go far enough. Unfortunately the covenant, despite the fact that it arises out of the holocaust of the Second World War, bears all the marks of compromise and ambiguity which will occur when nations with different forms of government, different social systems, some totalitarian and some democratic, get together and try to formulate rights which can be won by citizens against governments.
There is nothing in the International Covenant as one reads it which gives any evidence of its being fired in some sort of crucible of conflict between the ruled who experience some oppression against a totalitarian regime or even against a fairly democratic regime which acts in a totalitarian manner from time to time. There is none of that tension and none of that overcoming of a situation of oppression which, for example, characterises the United States Bill of Rights. What one has in the international covenant is an agreement between representatives of government. For that reason one constantly finds certain very destructive riders which will negate the rights which are granted. What the left hand gives, the right hand takes away.
A clear example of that would simply be Article 1 8 which in clause 1 states:
Everyone shall have the right to freedom of ought conscience and religion.
But clause 3 provides:
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
That is a very wide provision which is at variance with the human rights that are said to be guaranteed.
Ethylene Glycol: Alleged Effects on Health
– Order! It being 10.30 p.m., in comformity with the sessional order relating to the adjournment of the Senate, I formally put the question:
That the Senate do now adjourn.
– I will be relatively brief. We have been talking about human rights. I raise a matter on behalf of the Australian Licensed Aircraft Engineers Association, one of whose members made a claim against Trans-Australia Airlines for compensation in a case which may have some sinister health implications, regarding the effects of a compound known as ethylene glycol.
Earlier I showed the relevant documents to Senator Chaney as the Minister representing in this House the Minister for Transport (Mr Nixon) with a view to seeking leave to have them incorporated in Hansard. I do so on the basis of the assurance that I have received from Senator Chaney that the documents will be handed to the Minister for Transport with a view to speeding up resolution of the matter, which has been subject to unpardonable delay. The first of the documents that I seek leave to incorporate is a letter from the Federal Secretary of the Australian Licensed Aircraft Engineers Association, Mr J. C. Hardy, which outlines the procedure to be followed by the member concerned. The second is the response of that member, with a claim for compensation. The third document represents advice given by W. C. Taylor and Scott, Sydney solicitors who specialise in compensation claims.
The fourth is the answer received by my colleague in the other place, Mr Tom Uren, from the Minister for Health (Mr Hunt) to Question No. 2893 on the effects of exposure to ethylene glycol. I seek leave to have those documents, which will speak for themselves, incorporated in Hansard.
The documents read as follows-
24 Station Street, Kogarah 22 1 7
MrD.F.Beacroft, 34 Hannaford Street, Page, A.C.T. 2614
I am in receipt of correspondence from Tom Uren and a further letter from Dr Pembrey. I have also spoken to the doctor and to our Workers’ Compensation specialist in the Association’s firm of Solicitors. Your contact is Mr David Coleman, of W. C. Taylor & Scott, Solicitors, 181 Elizabeth Street, Sydney.
He suggests that you immediately file a Workers’ Compensation claim against T.A.A. Would you contact the Canberra Manager of T.A.A. to pick up the forms and return them to him for internal company action. I would appreciate a drop copy of this form.
David advises that the process of assessing your case could be sped up if we know when and where it has been lodged.
Taylor and Scott cannot get into the act until the Commonwealth formally reject your claim for compensation.
The reason for this claim is that from 1974-1977 I was chronically exposed to a 50-50 mix of Boiling water and AEROSHELL COMPOUND 7’ applied in an aerosol form for the removal of hoar frost.
Mr doctor is R. G. Pembrey, M.D., F.R.A.C.P., F.R.C.P.A., Senior Specialist Clinical Haematology & Medical Oncology, Woden Valley Hospital, Canberra, A.C.T.
(Question No. 2893)
Mr UREN asked the Minister for Health, upon notice on 17 November 1978:
Mr HUNT; The answer to the honourable member’s question is as follows:
Initial symptoms of acute poisoning resulting from ingestion of a massive dose (in excess of 100 ml in a single dose) are those of alcoholic intoxication. These symptoms soon progress to vomiting, cyanosis, headache, abnormal respiration, pulmonary aedema, stupor, anuria and unconsciousness with convulsions. Death may occur within a few hours from respiratory failure.
Patients who have prolonged coma or convulsions may incur irreversible brain damage.
Question resolved in the affirmative.
Senate adjourned at 10.32 p.m.
The following answers to questions were circulated:
asked the Minister representing the Minister for Post and Telecommunications, upon notice, on 4 April 1 979:
What studies have been carried out to assess: (a) any possible loss of revenue by Telecom that would result from the introduction of a National Communications Satellite; (b) the impact which any loss of revenue would have upon the amortisation of Telecom’s capital stock and long-term debt funding; and (c) the impact which loss of data, facsimile and private network traffic to a separate satellite authority would ha ve upon Telecom ‘s long-term equilibrium pricing policy.
– The Minister for Post and Telecommunications has provided the following answer to the honourable senator’s question:
The Government has decided in principle to proceed with the establishment of a domestic communications satellite system for Australia and, as I indicated when I announced that decision, further advice is being sought on the options available for the management and control of the system. For that reason, it is premature to speculate now on the effect on Telecom ‘s revenue and pricing policies of the introduction of a ‘National Communications Satellite’. The effect, if any, will only be determined after final decisions have been taken on the detailed design of the satellite facilities and the structure for the management and control of the system.
asked the Minister representing the Minister for Post and Telecommunications, upon notice, on 28 August 1979:
– The Minister for Post and Telecommunications has provided the following answer to the honourable senator’s question:
Normally, some 10 per cent of calls are necessarily reverted for one reason or another, e.g. where no free trunk line is immediately available or the called number is engaged or not answering and this serves as a continuing check on the correctness of calling numbers. Other calls are deliberately reverted at randomly chosen times.
asked the Minister representing the Minister for Foreign Affairs, upon notice, on 12 September 1979:
What United Nations agreements, conventions and other similar agreements has Australia signed but not yet ratified, and when was each signed.
– The Foreign Minister has provided the following answer to the honourable senator’s question:
Australia has signed, but not yet ratified, the following conventions and agreements in respect of which the Secretary-General of the United Nations or one of the Specialised Agencies of the United Nations performs depository functions:
Conventions in respect of which the Secretary-General of the United Nations performs depository functions-
Conventions and Agreements in respect of which Specialised Agencies of the United Nations perform depository functions:
asked the Minister for Social Security, upon notice, on 12 September 1979:
– The answer to the honourable senator’s question is as follows:
asked the Minister representing the Minister for Post and Telecommunications, upon notice, on 12 September 1979:
What action is proposed to ensure that the strict provisions of the Broadcasting and Television Act 1942 are applied in relation to cricket advertisements by Benson and Hedges Limited.
– The Minister for Post and Telecommunications has provided the following answer to the honourable senator’s question:
The question of controls over cigarette advertising, including peripheral advertising given to cigarette manufacturers, has been taken up in the context of the Government’s consideration of the report of the Senate Standing Committee on social welfare entitled ‘Drug Problems in Australia- an intoxicated society?’
The Minister for Health as the Minister responsible for the carriage of the report, expects to announce the Government’s response to the recommendations contained in the report shortly.
Following the Government’s decision, any matter to be dealt with under the Broadcasting and Television Act 1942, will be considered at that time.
Australian Wildlife in Foreign Zoos (Question No. 1946)
asked the Minister representing the Minister for Foreign Affairs, upon notice, on 12 September 1979:
Has the Minister received reports from the various Australian Embassies, in countries where Australian wildlife is domiciled in local zoos, concerning the living conditions of the kangaroos, wallabies and other marsupials in those zoos.
– The Minister for Foreign Affairs has provided the following answer to the honourable senator’s question:
In a letter to the honourable senator on 29 June 1979 I advised that the Department of Foreign Affairs was not the appropriate authority to advise on the suitability or otherwise of overseas zoos for Australian native fauna. Australian Embassies are asked to complete questionnaires when required for onforwarding to the Bureau of Customs when an Australian Customs Officer is not available.
I also refer the honourable senator to my reply to his question No. 1834 (Hansard, 23 October 1979, page 1663).
Post Office at Greenvale (Question No. 2029)
asked the Minister representing the Minister for Post and Telecommunications, upon notice, on 9 October 1979:
Does Australia Post operate the Post Office at Greenvale, Queensland; if not, who operates it.
The Greenvale Post Office is operated as a non-official post office, on behalf of Australia Post, by an employee of Queensland Nickel Pty Ltd.
asked the Minister representing the Minister for Foreign Affairs, upon notice, on 18 October 1979:
What action is proposed by the Government in relation to the recent proposal of Prince Sihanouk that a new Geneva Conference on Kampuchea be constituted with a view to seeking, as a matter of urgency, a settlement of the present tragic situation in that country.
– The Minister for Foreign Affairs has provided the following answer to the honourable senator’s question:
Prince Sihanouk has been calling for an international conference on Kampuchea for some time, but is reported to have acknowledged recently that such a conference could not take place while Vietnam, the USSR and China continued to oppose it. The Australian Government also believes that, regrettably, there seems little prospect of an international conference on Kampuchea being convened in the near future. Nevertheless, the Government continues to believe that only a negotiated settlement, in which all sides are involved, can bring peace and stability to Kampuchea. To this end, it is important to encourage international support for the ground work and principles for such a settlement, essentially the withdrawal of external forces and selfdetermination by the Kampuchean people.
Australian Visit by United States’ Ambassador to Japan (Question No. 2094)
asked the Minister representing the Minister for Foreign Affairs, upon notice, on 17 October 1979:
– The Minister for Foreign Affairs has provided the following answers to the honourable senator’s questions:
asked the Minister representing the Minister for Foreign Affairs, upon notice, on 23 October 1979:
– The Minister for Foreign Affairs has provided the following answer to the honourable senator’s question:
Ranger Uranium Mine
– On 21 August 1979 Senator Coleman asked me, as the Minister representing the Minister for National Development, the following question without notice:
I refer to the recent announcement that the Government intends to sell its share in the Ranger uranium mine. Will the Minister indicate who will then be responsible for the monitoring of safe working conditions at Ranger and who will be responsible for the safe storage and transportation of the product of the mine?
The Minister for Trade and Resources has provided the following answer to the honourable senator’s question:
The Government has not yet made a decision on whether or not to dispose of its interests in the Ranger uranium project. Should the Government decide to dispose of its interests, the Government would ensure that the environmental requirements of the project were fully carried out.
For the most part the direct supervision and regulation of uranium mining developments at Ranger are presently being carried out by officials of the Northern Territory Government in co-operation with Commonwealth authorities. Most of these controls are implemented through the administration of Northern Territory laws. Any disposal of the Government’s interests in Ranger would not affect these arrangements.
Trade Office: Taiwan
-On 11 September 1979 Senator Rae asked me as Minister representing the Minister for Trade and Resources the following question without notice:
What progress has been made towards the establishment of a trade office in Taiwan on a similar basis to that used by the United States, the United Kingdom, Japan and many other major trading nations.
The Minister for Trade and Resources has provided the following answer to the honourable senator’s question:
The terms of Australia’s recognition of China preclude any official contacts between the Australian Government and the authorities in the province of Taiwan. The Government is fully aware of the trading opportunities presented by the rapid growth of Taiwan’s economy, and there are no obstacles to the business community taking full advantage of these opportunities. At my direction the Department of Trade and Resources has consulted a range of companies known to have a significant interest in exports to the area. The views of these companies on whether some form of nonofficial representation in Taipei would assist Australia’s exports are being assessed.
Use of Distillate
– On 30 August 1979 Senator Walsh asked me, as Minister representing the Prime Minister, the following question without notice:
My question, since it covers more than one ministerial area, is directed to the Leader of the Government. I refer to the Deputy Prime Minister’s guarantee given a couple of weeks ago that farmers would receive adequate supplies of distillate if rationing was introduced. Can he tell us which of the other distillate users- miners, fishermen, heavy transporters, foresters or power generators- will be deprived of supplies if that guarantee to farmers is to be fulfilled?
Senator Walsh also asked me the following supplementary question: . . The groups I named are the only significant consumers of distillate. If rationing is to be introduced, by implication somebody will be forced to reduce consumption. Which one of the groups that I named will be forced to reduce its consumption?
The Deputy Prime Minister has provided the following information in answer to the honourable senator’s questions:
I think that the honourable senator was referring to statements I made in connection with the Government’s decision to establish the National Petroleum Advisory Committee to advise it on the allocation of fuel in the event that we do experience shortages. The Minister for National Development made a statement on 6 September 1979 regarding membership of the Committee.
The Committee’s purpose is to advise the Government on appropriate arrangements for the equitable allocation of liquid fuels during any period of supply shortage. Priorities for allocation will accord most closely with Australia’s overall national interest and be based upon the essentiality of the sectors involved. The Government will ensure that the end result of such allocations will be a more rational and equitable sharing of the available supplies of liquid fuels during any possible future periods of shortage.
Naturally the Government will as I have indicated, accord a high priority to the needs of agriculture and other essential industries.
Cite as: Australia, Senate, Debates, 8 November 1979, viewed 22 October 2017, <http://historichansard.net/senate/1979/19791108_senate_31_s83/>.