31st Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Condor Laucke) took the chair at 2.30 p.m., and read prayers.
– Honourable senators will be aware that because of an industrial dispute no services are available today in the Parliamentary Refreshment Rooms. The dispute arises from discontent by staff of the Refreshment Rooms with the non-provision of an in-charge allowance for senior full-time staff in a determination issued by the Public Service Arbitrator on 26 October 1 979. The Federated Liquor and Allied Trades Industries Employees Union has advised orally that an application will be filed with the Arbitrator to vary the determination.
-Does the Minister representing the Minister for National Development recall my question to him on 18 October 1979 in which I drew attention to information that was received by the Australian Government concerning increasing uncertainty in Iran over the question of oil production and supply, his subsequent answer to me on 23 October and the further clarification that I sought as a result of that answer? In view of the current events in that country, is the Minister able to give additional information now as to the possible implications for Australia?
– I am well aware of the questions which Senator Wriedt asked and my subsequent responses. I do not recall the exact dates. I accept the dates that Senator Wriedt mentioned. I have no further specific response to the question from Senator Wriedt. I will take the matter up again with the Minister for National Development. I agree that in view of recent developments the question should be answered promptly.
– I direct a question to the Leader of the Government in the Senate based on reports of the first of Mr Hawke ‘s Boyer lectures wherein he apparently advocated abolition of the States. Given the present Government ‘s commitment to an expanding role for the States and the benefits of decentralised decisionmaking and recalling that if a major political party campaigns against a constitutional amendment, the amendment has almost no chance of being passed, can Senator Carrick envisage any way that Mr Hawke ‘s proposal to abolish the States can succeed? Does the Leader of the Government see Mr Hawke ‘s comments as anything more than a rehash of one of Mr Whitlam ‘s discredited policies?
-I did see a report of Mr Hawke ‘s comments. I also noted that at the same time Mr Hayden was reiterating the intention of the Australia Labor Party to reduce the powers of the Senate. The two statements should be considered together because the Senate is a protector of States and State rights.
– What rubbish!
– Labor senators have said: ‘ Rubbish ‘. They came here -
Opposition senators interjecting-
– I raise a point of order, Mr President. I ask you to indicate in what way the question raised a matter which falls within the ministerial responsibility of the Leader of the Government in the Senate. If it does not fall within his responsibility, I suggest that you should rule it out of order.
– I have called the Minister to respond to the question as he thinks fit according to how the matter raised falls within his ministerial responsibility.
-Clearly, the Constitution of Australia and changes to the Constitution fall heavily within my ministerial responsibilities. I am sorry that I did not clearly recognise the interjecting voice earlier. The fact of the matter is that Mr Hawke is reiterating what was said by Gough Whitlam, who saw the destruction of the States, both in a direct and indirect way, as part of the central theme of Labor policy. Indeed, he used his centralist powers to weaken the States. Senator Thomas asked whether that can be done. It can be done in two ways. A centralist government, by seeking to weaken the States, by using section 96 powers so to do, can destroy the sovereignty of the States. It would be possible also if a centralist government were able to get the necessary referendum changes through so that a simple majority of voters rather than also a majority of States could have an effect. The best and sanest way in which to prevent that happening is to keep a Liberal government in power, which is exactly what will happen.
- Mr President, my question is directed to you. Has the ground floor security entrance to Parliament House been completed? If so, when will it be used?
– At this stage arrangements for the use of the entrance have not been determined and we are not yet in a position to put it into real effect. I cannot give a more precise answer than that at the moment.
-Has the Minister representing the Minister for National Development seen reports that the Premier of New South Wales, Mr Wran, would support the establishment of a nuclear research reactor at Jervis Bay? Has the Government considered such a proposal? In particular, has the Government recently reconsidered earlier suggestions that a nuclear reactor be constructed at Jervis Bay? Has any decision been made on, or is any further consideration to be given to, the matter?
– I can answer only in fairly general terms the question concerning the construction of a new reactor. The Minister for National Development has indicated that the design cost study for a new nuclear reactor, possibly to replace the reactor at Lucas Heights, is being undertaken by the Australian Atomic Energy Commission. Of course, that study will include consideration not only of environmental factors but also of possible sites and various other matters, such as the selection of a suitable reactor fuel element combination. I am informed that at this stage the study has not been addressed to the siting aspect, so I am afraid that I cannot give a specific answer to the question Senator Knight has raised.
– 1 direct to the Minister representing the Minister for Foreign Affairs a question which refers to the announcement last Friday by the Deputy Prime Minister that Australia will send a 1 10-man force to monitor the ceasefire in Rhodesia. Will this not be a very expensive exercise? Can the Minister advise me of the estimated cost and why similar assistance and funding has not been readily available for East Timor?
-Senator Mcintosh’s question seeks detailed answers in terms of cost. I suggest that he put the question on notice.
– Is the Minister representing the Minister for Industry and Commerce aware that statistics of experience in the United States indicate that six million jobs created in the non-government sector over the last 10 years have been in the small business sector while none of these has been created by the top 1,000 companies? Is he further aware that in Canada the number of jobs in the big company area has actually declined in recent years while small business has created all non-government jobs over that period? Does this support the contention that in times of widespread structural change the acknowledged flexibility of small business is a most significant factor in rapidly generating new jobs when unemployment is high? Will the Government consider improving facilities for delivering finance, whether by loan or equity, to small business to encourage this important trend further?
– I am sure that my colleague the Minister for Industry and Commerce will be aware of the sort of figures which have been put forward in the question from Senator Messner. The importance of small business in terms of employment is something which, I think, has been readily and frequently acknowledged by the Government. In Australia small business still employs a large proportion of the work force, as would be known to Senator Messner. For that reason that area of industry is extremely important to us. 1 will refer the particular suggestion from Senator Messner, that some assistance should be given in the area of finance, to the Minister for his consideration and for a reply to Senator Messner.
– My question is directed to the Leader of the Government in the Senate. In reply to questions from me and from Senator Wriedt last Wednesday which sought an unequivocal guarantee that the Government would stick to import parity pricing for Australian crude oil next year, the Leader of the Government in the Senate said that it was a policy matter which he would refer to the Minister for National Development, Mr Newman. Does he know whether Mr Newman said in the House last Thursday:
The Government has a view that import parity pricing is absolutely essential to this country if we are to have a viable and vigorous energy policy.
Can the Leader of the Government in the Senate assure us that Mr Newman’s statement is the definitive statement of Government policy?
-In order that there could be no doubt at all as to what was the Government’s policy, I referred Senator Walsh’s question and Senator Wriedt ‘s question to the Minister concerned. In due course I will get that answer. I will speed it up. I did not see Mr Newman’s answer and, therefore, I cannot respond first-hand. The best way to reply is to get the answer from the Minister concerned.
– My question is directed to the Minister representing the Minister for National Development. I draw attention to the statement made by the Premier of South Australia, Mr Tonkin, in his comments at the opening of Dartmouth Dam on Friday in which he highlighted the disadvantage suffered by South Australia because of the River Murray Commission’s lack of powers. Is the Minister aware that Adelaide last year drew some 87 per cent of its water requirements from the River Murray system? Is he further aware that the report of the Senate Select Committee on Water Pollution called for this approach to quality through the establishment of a national water commission? Will he give consideration to amending the agreement contained in the River Murray Waters Act to give the River Murray Commission control over water quality?
– It is hoped that some arrangements will be made with the States concerned to facilitate a meeting in the near future in relation to a new agreement governing the River Murray. Under the proposed amendments to the River Murray Waters Agreement, as already agreed in principle by four governments, the River Murray Commission will have an important co-ordinating role in respect of water quality. At a recent meeting in Melbourne all Ministers clearly indicated their willingness to meet whenever necessary to discuss important issues relating to the management of the River Murray. The Commission is aware of the necessity to tackle its water quality responsibilities. The Minister advises that the co-operation which has existed between the four governments in the last 64 years should continue and that these matters concerning river quality should be the subject of discussion. I repeat that the question is really whether the Act is to be amended to cover this area which is not specifically covered in the Act, but there is agreement in principle that it should be so amended.
– My question is directed to you, Mr President. I ask: In view of the reported Cabinet reshuffle which, due to a need for the Government to fill important overseas posts, is to take place during the coming parliamentary recess, is it correct that early in the new year you will be taking up the important post of Australian High Commissioner in London and that Senator Withers will be the Government’s nominee for the position of President of the Senate?
– I would say no, I am not going to London and I know nothing about the other matter.
-I ask the Minister representing the Minister for Trade and Resources whether the Australian Government agrees with the insanity prevailing in Iran, whose government is at present holding 100 United States citizens prisoner and also holding the world to ransom with respect to oil supplies. If not, will the Australian Government move, through the United Nations, to apply trade sanctions to Iran?
– I think the question is really more appropriately directed to the Minister for Foreign Affairs, to whom I shall refer it.
– I preface my question, which is directed to the Minister for Aboriginal Affairs, by reminding him that last week in a speech in this chamber I referred to correspondence between him and the Queensland Minister for Aboriginal and Island Affairs. I ask whether the Minister is aware that Mr Porter will be returning to Australia within the next week. What action does the Minister intend to take in relation to what now appears to be the lessthangenuine petition which was circulated at Yarrabah asking for the dismissal of the Council? Does the Minister approve the sacking of the Yarrabah Council and the installation of an administrator? Has the Minister had any consultation with officers of the Queensland Department of Aboriginal and Islanders Advancement in relation to the dereservation of Yarrabah and the declaration of the reserve as Crown land? Finally, has the Minister consulted the AttorneyGeneral in relation to the copying by officers of the Queensland Department of Aboriginal and
Islanders Advancement of confidential documents from the Federal Department of Aboriginal Affairs?
-The honourable senator has asked a series of questions. Yes, I believe that Mr Porter is returning to Australia in the current week. I certainly would not approve the sacking of the Yarrabah Council which, it seems to me, has shown remarkable steadfastness and patience in dealing with both the Commonwealth and Queensland governments. It certainly has my admiration for that. I trust that the information that the honourable senator has put before the Senate as to the existence of a petition proves to be inaccurate. I have not been able to confirm officially that it exists. I have not had any direct contact with the Department of Aboriginal and Islanders Advancement since the honourable senator made the speech and have not sought the opinion of the Attorney-General with respect to the copying of documents.
I read very carefully what Senator Keeffe said and I listened to him as he spoke. It is not clear how the material that is described as confidential got into the hands of the Department of Aboriginal and Islanders Advancement. One explanation contained in what Senator Keeffe put before the Senate is that a councillor, Mr Formile, provided one of the telegrams to the departmental manager. I do not know whether the Yarrabah Council chose to make copies of those telegrams available to the Department of Aboriginal and Islanders Advancement or not. I have had no complaints from the recipients of the messages as to whether they were treated by them in a confidential manner and at this time I do not believe that I have anything on which to go to the Attorney-General.
– I direct my question to the Minister representing the Prime Minister. Does the Commonwealth Government support the initiative of the Western Australian Government in arranging substantially increased carry-on loans on concessional terms by way of financial aid to farmers in Western Australia’s drought-stricken northern wheat belt? Has the Commonwealth agreed to an increase in the aggregate of drought loans which affected farmers are permitted, whilst still qualifying for further assistance? How many farmers are likely to qualify under new measures to be adopted?
– I understand that the Commonwealth Government has agreed to representations from the Premier of Western
Australia, Sir Charles Court, in connection with increased financial aid to farmers in Western Australia’s drought-stricken northern wheat belt. I understand further that the Premier of Western Australia issued a Press statement on 7 November confirming that the Commonwealth had approved the submissions from the Western Australian Government for an increase in the aggregate of drought loans which farmers are permitted whilst still qualifying for further assistance. The Premier has stated that the approved aid proposals for northern wheat belt farmers include an increase in the ceiling on individual concessional loans from $20,000 to $30,000 for the current financial year; an increase in the limit of total drought indebtedness by individual farmers from $60,000 to $70,000, with the condition that the higher figure applies only to farmers experiencing either their third or fourth year of drought; and subsidies for transport of stock to and from agistment and for transport of fodder, and assistance for water carting. The total assistance under the new basis has been estimated by the Western Australian Government to be in the order of $1 1.25m. I understand that this assistance will be financed under the joint State and Commonwealth aid scheme under which the State is required to meet the first $3m of natural disaster assistance in any one year plus 25 per cent of outlays above this level.
– I address my question to the Minister representing the Minister for Trade and Resources and the Minister for National Development. Is the Minister aware that according to an Australian Associated Press-Reuter message from Abu Dhabi yesterday, the Chairman of the Palestine Liberation Organisation, Yasser Arafat, plans to put proposals later this month to an Arab summit meeting for the use of oil supplies as a political weapon? Is it true that several major Australian companies are now preparing to spend many millions of dollars on the production of fuel ethanol to power motor vehicles in this country using known and proven technology? Since plainly the time left to us to provide indigenous petrol substitutes is now very short, will the Government now exert itself to legislate urgently for a pattern of incentives, guarantees and tax concessions which could encourage this new and vital industry, or at least give it some idea of what the ground rules are going to be over a period? Initially, will the Government consider making an early clear statement concerning reduction or elimination of excise duties on fuel ethanol, covering at least the next decade?
– The Government has already addressed itself to the broad problems covered in the question from Senator Mason and a wide-ranging statement in relation to the Government’s policies I think was made by the Prime Minister towards the end of June this year. I think I have had occasion to refer the Senate to that statement before. It does contain a package of proposals in relation to the conservation of oil, and the Government, of course, continues to take a very deep interest in this question. I will refer the specific aspects of Senator Mason’s question to the Minister for National Development and to the Minister for Trade and Resources as they may have further comment that they would like to make in relation to it.
– I direct my question to either the Minister representing the Minister for Foreign Affairs or the Minister representing the Minister for Post and Telecommunications. It relates to the siege of the United States Embassy in Tehran. I preface my question by pointing out that President Carter has appealed for calm in order to avoid any action which could inflame the situation in Tehran. However, we find that a member of the Australian Broadcasting Commission not only ignored Mr Carter’s appeal but also ran the risk of jeopardising the security of Australian citizens in Iran on Monday by ringing the United States Embassy there and speaking to one of the Iranian students, causing emotional irritation, the consequence of which was completely unpredictable. Can the Minister say whether there is any editorial control in this area of foreign affairs where matters are so sensitive?
– I am a little puzzled by the question. I heard the program referred to by Senator Walters in her question and I did not detect the irritation that she has described. I thought that the interview was quite low key. I would not have thought that it would have caused excitement in Tehran, the United States of America or, indeed, here in Australia. I continually answer questions stressing the independence of the Australian Broadcasting Commission. At the same time I would stress, in answer to this question, that I think in general the Commission shows a high degree of responsibility. I think that it would be concerned not to do anything which would endanger life or cause difficulties. As I say, I am a little puzzled by the question. I understand that the point raised by the honourable senator may be an important one because what is happening in Tehran is obviously a matter of great sensitivity and significance. I will examine the question carefully and if I think any representation to the ABC is warranted, I will refer it to the Minister for Post and Telecommunications.
– I wish to ask a supplementary question. I remind the Minister that the questioning included the statement: ‘Many people around the world see what you are doing as madness’. The answer from the student certainly indicated irritation.
– I accept that additional information and, as I said, I will examine the question.
– The supplementary question was not directly related to the original question.
– I direct my question to the Minister representing the Minister for Veterans’ Affairs. By way of preface, I refer to the rather lucid exposition made by Senator Grimes and me for the inclusion of partisan forces under our amended Repatriation Act. I now refer the Minister to the claim emanating from the Polish community, which is a perfectly laudable one, concerning repatriation eligibility of those people involved in the 93-day seige of Warsaw. I ask the Minister: In view of the rejection of our request on behalf of people from the Italian and Yugoslav communities who were in partisan forces, what are the implications of an article which appeared in the Canberra Times’! Does it indicate that the Minister is rethinking the position or is it just referring to an overture from the Polish community to the Minister? Will he include people from the Italian and Yugoslav communities in representations to widen the ambit of the Act?
– I am not able to provide the information sought by Senator Mulvihill. I will refer the question to the Minister for Veterans’ Affairs. I draw attention to the list of people who became eligible under the new arrangements. I will see whether the people about whom the honourable senator asks his question are comprehended in that list. If not, I will seek information from the Minister.
– My question is addressed to the Minister representing the Minister for Health. I draw the Minister’s attention to an Age report of 30 October 1979 relating to claims by
Commonwealth Scientific and Industrial Research Organisation scientists that long exposure to chemical odours could cause brain damage. Is the Minister aware of this report and the scientists’ claim that the effects they have discovered may have considerable significance for the safety of humans exposed to environmental and occupational chemicals? Will the Minister comment on this report and, in doing so, inform the Senate whether practices such as the odorising of airconditioning at present occur in Australia? In view of these claims, does the Minister agree that the Government should give more consideration to the environments in which people are continually exposed to odours? If so, will the Minister assure the Senate that any chemical suspected of causing atmosphere contamination will be banned until such time as investigations into its safety are conducted?
– The Minister for Health is aware of the report in the Age newspaper which concerned a report from scientists of the Commonwealth Scientific and Industrial Research Organisation. I understand that the Minister for Health has asked the National Health and Medical Research Council which, as honourable senators will be aware, is currently examining the possible health hazards of various atmospheric pollutants, to investigate this matter. I am unable to respond at this stage to the other points raised by Senator Missen. When the Minister has received the report from the National Health and Medical Research Council I feel sure that he would make reference to those matters raised with regard to the environment and the difficulties that can be experienced by people who live in an environment where there is exposure to chemicals. I will see that the Minister for Health gives this matter his urgent attention.
-In relation to the proceedings in a Sydney Court against some Greek migrants over alleged social security frauds, has the Minister for Social Security noticed the report in today’s Australian referring to Chief Inspector Don Thomas from the Australian Federal Police Force being warned by the magistrate that he did not have to answer questions if they might incriminate him? The report states:
Chief Inspector Thomas exercised this right repeatedly throughout subsequent questioning.
Does that indicate that the police acted unlawfully or that he may have brought himself in breach of the law if he answered the questions directed to him?
- Senator Cavanagh and others will be aware that this matter is within the court at present. In those circumstances it would be regarded as being sub judice. I would also draw attention to the fact that it is not within my ministerial responsibility to comment on matters within a court. The Attorney-General is the responsible Minister. I would regard it as entirely improper to make any statement regarding claims made in newspapers or statements made in the courts.
– I ask a supplementary question. Apparently I misdirected my question. Would the Minister for Social Security refer my question to the Attorney-General to see whether the matter I raised could affect the trial and whether it is in fact sub judice?
Senato DURACK-I will take note of the question that Senator Cavanagh has asked. I think I should look at the record of the proceedings before I say any more in relation to it.
– My question is directed to the Minister representing the Treasurer. Is the Treasurer considering a proposal for income splitting for tax purposes between husbands and wives with a view to helping the one income family unit? Is it a fact that such a scheme would be very regressive, of little value to a low income family, but worth more than $5,000 a year to a professional man with a taxable income of $50,000? What would be the cost to revenue of the income splitting proposal? Accepting the desirability of ensuring equitable tax treatment for the single income family, as I am sure all on this side of the chamber do, could not this result be achieved more simply, more economically and more equitably by increasing the tax allowance for a dependent spouse and making the allowance a tax credit rather than a deduction from taxable income?
– The Treasurer is very sympathetic to the difficulties faced by single income families under the present taxation arrangements. Various changes could do something about their position but the way they would do it and the precise effects they would have would depend on the nature of the particular proposal. Some income splitting proposals have been put to the Treasurer and he is having them examined. However, the proposals provide not merely that families may split their income for tax purposes while leaving everything else in the existing tax system unaltered. Without identifying precisely the various elements of a proposal it is not possible to say how much particular families would benefit or what the cost to revenue might be. Although an increase in the rebate for a dependent spouse would be a simple measure to implement it would not get at the underlying idea behind income splitting proposals except in a rather rough and ready fashion. Nor would it benefit low income families which are not able, because of the level of their income, to take full advantage of the rebate at its higher level. Nevertheless, I will refer the substance of Senator Hamer ‘s question to the Treasurer for his study.
– Will the Minister representing the Minister for Employment and Youth Affairs advise this Senate why, when there is high unemployment all over Australia and especially in the provincial centres, this Government has the Australian Embassy place advertisements such as it did recently with a daily newspaper in Hamburg, Germany, calling for immigrants in such classifications as computer programmers and operators, mechanical fitters, mechanics, turners and fitters, boilermakers, refrigeration mechanics, plumbers, carpenters, butchers, pastrycooks, bakers and ladies hairdressers? Why is it that we say, to quote the advertisements, that we will welcome inquiries from any other tradesmen not mentioned above when there are excellent young people here, especially in our provincial areas, where there is absolutely no job available to them, who are well educated, willing to work and, above all, anxious to learn a trade?
– I am not aware of the advertisements which were quoted by Senator Melzer. I gather they appeared in a West German newspaper. It is well known that there are areas of employment in Australia where there are shortages of particular skills. Indeed, that is a major element in determining whether somebody will be admitted to Australia as a migrant. The skilled persons who are sought or referred to in this advertisement are persons of whom I do not have any advice or knowledge. I will refer that question to the Minister for Employment and Youth Affairs to see whether he can provide a more specific answer than the one which I have given.
– My question is directed to the Minister representing the Prime Minister.
The Deputy Leader of the Opposition, Mr Lionel Bowen, was recently reported to the effect of advocating the abolition of the Senate ‘s powers. Does the Government subscribe to this view?
– That is not a factual report.
-I am relieved that Senator McAuIiffe has volunteered that it is not a factual report. I read that there was a decision by the Australian Labor Party, including Mr Hayden, that the powers of the Senate, particularly its power over money and finance, should be removed. If that is literally true and if it is intended that the Labor Party’s policy would be to remove the money power from the Senate, the policy would be one of total destruction of the Senate. The money power was the fundamental power built into the Senate in 190 1 to protect the four less populous States against the possible depredations of the two larger States in the lower House. Unless there was a final power in the Senate to act against that, then what is called the tyranny of numbers in the lower House would prevail and there would be a threat to the four less populous States. The fundamental structure of the Senate would be challenged. One cannot weaken the finance power of the Senate without, in fact, destroying the founding fathers’ concept of the Senate. It is well to remember that the States themselves would not come into the federation without the guarantee that there should be a Senate that had two ingredients- equal numbers from each of the States and a residual finance power.
-I ask the Minister representing the Treasurer whether the Government is satisfied with the level of Australian equity in the energy sector of the economy.
– That is an all-embracing question. I ask the Leader of the Opposition to put it on notice and I will get a detailed answer for him.
– Is the Minister for Aboriginal Affairs aware of a Press statement issued by the Executive of the National Aboriginal Conference concerning an agreement between the Government and Aboriginal people? If so, does he consider that the statement signifies any change in the National Aboriginal Conference ‘s approach to this issue?
-I am aware that the National Aboriginal Conference put out a Press release yesterday which relates in the main to something called ‘Makarrata’. The Press release goes on to say that that is an Aboriginal word for agreement. It signifies the end of a dispute between communities and between a community and an offender, and the resumption of normal relations. I do not think that the statement signifies a change in the National Aboriginal Conference ‘s approach so much as a quite welcome change in terminology. The Press release arises out of the views which have been expressed around Australia that there should be a treaty of commitment. I think that the expression ‘treaty’ has caused some alarm in some breasts on the basis that it suggests that we do not have a single Australian nation and that there is something potentially sinister in the idea. What the National Aboriginal Conference has come up with is its own Aboriginal word for an agreement, and the Press release indicates that the national Aboriginal Conference proposes to consult Aboriginal communities to see what might go in an agreement, and to consult the Government. I certainly welcome that development.
The Press release is also in the context of the Government’s proposal to introduce a development commission. The same Press release refers to the NAC’s willingness to collaborate with the Government in working on the Bill which is to be introduced in the current session- I hope in the next week or so. I think the approach which is evident in the Press release is very welcome. It indicates that the National Aboriginal Conference is anxious to have the views of Aboriginals around Australia and to work with the Commonwealth Government to reach an agreed position as to their situation in Australia. I welcome that development and I assure the Senate that the Government, in its turn, intends to work closely with the National Aboriginal Conference.
– I wish to ask a supplementary question. Will the Minister give consideration to the use of such a word as proposed by the National Aboriginal Conference as the title of or way of describing any such agreement that is under discussion?
-Certainly I would like to do that. I think most of the discussion to date has been fostered by non-Aboriginal Australians who are anxious to advance the interests of Aboriginals. They have put forward a series of names. The original advertisement that most honourable senators would have seen referred to a treaty, an act of commitment or a deed of settlement. Several expressions were used. If the Aboriginal people choose an Aboriginal word which they believe meets the situation, I think all honourable senators would welcome the Aboriginal choice and would be very happy to use it. As I indicated in my main answer, I think it gets over one of the worries abroad about the original proposal, namely, that there was something antiAustralian about it. I think the NAC has made it clear that, as Australians, they are anxious to achieve a better situation for the Aboriginal people and they are prepared to work to seek agreement with the Commonwealth Government on how that can be done.
-I refer the Leader of the Government in the Senate to my question to him last Thursday concerning allegations that two Queensland State members of Parliament and several Queensland police officers were involved in heroin smuggling, to which he replied that he would refer these extremely serious matters to the attention of the relevant Federal Ministers, and that he had no doubt that the Queensland Government would react to the report and determine whether it had any factual basis. I now ask: Is the Leader of the Government aware that, according to today’s Courier Mail, the Queensland Cabinet, meeting yesterday in Springsure, decided that it may investigate these claims providing more information from the Williams report is made available to the Queensland Premier? Will the Federal Government provide the necessary material to the Queensland Government as a matter of urgency so that the truth of these allegations can be determined?
-I have not yet seen this morning’s Courier-Mail, but I will look at the article. Actually, an answer concerning the provision of information should come properly from another Minister and not from me. However, I will refer the substance of Senator Elstob ‘s question to the appropriate Minister. I am quite sure that the Federal Government, if it is competent to do so and if a request is made, will assist the inquiries.
– Has the Minister for Education seen an article by Professor Karmel, who is Chairman of the Tertiary Education Commission, on ‘How to Cut the Teenage Dole Queue’. Is the Minister aware that in the article Professor Karmel refers to the relatively high level of juvenile rates of pay compared with adult rates, the low productivity of a significant number of young workers partly through lack of skills and partly through attitudes to work, the high cost of on-the-job training for young workers, structural changes in which the proportion of unskilled and semi-skilled jobs has been falling, plus many other matters including teaching basic skills to school children? Will the Minister have discussions with Professor Karmel to see whether some of the problems raised by him and which are having an adverse effect on the employment of young people can be overcome?
– I was happy to receive from Professor Karmel the full text of the speech that he proposed to deliver. So I have been able to see the speech in its entirety, quite apart from the newspaper reports of it. Some of the newspaper headlines were a little poetic in their interpretations. Professor Karmel is a universally well regarded educator. He has been part of the discussions and consultations that my Department and I have had in relation to the whole question of transition from school to work. He was present at and participated in the recent discussions of the Australian Education Council in which there was a common agreement amongst all States and the Commonwealth on various matters pertaining to juvenile unemployment.
It is not surprising that so much of what Professor Karmel has spoken and written about is also part of the evolutionary process of the policies of the State and Federal governments. For example, the question of basic skills was also reflected on by Professor Williams in his report. The Australian Education Council has undertaken to set up certain methods of testing skills at regular intervals and to do national sampling in order to put pressure upon the upgrading of skills. The experience of various youth employment schemes has shown the need for us to do very special things. The States will be looking back into the high schools to detect students at risk. The States will be assisted by the Commonwealth in these endeavours. We will be trying to improve the skills and the attitudes of young people and their adequacy in these areas. A wide range of transition programs from school to work is already being developed and further programs are under contemplation.
Senator Young mentioned high pay rates. It is true that employers, given the choice of a mature person or a juvenile, for a variety of reasons tend to choose the mature person. Whether that is due to mature delivery of work or to inequities in the pay rates, I cannot say. But an enormous amount of work is being done on this matter now. It was the kernel of the Williams Committee report. I am hopeful that in the weeks ahead we will be able to make progressive announcements on further work that we are doing.
-Is the Minister representing the Minister for Administrative Services aware that the Queensland Air Museum faces eviction by 31 March 1980 as the site presently occupied by it is required for the development of Brisbane Airport? Will the Minister ascertain from his colleague the Minister for Administrative services whether he will assist the Museum people by making available to them a site next to the Brisbane International Airport which I understand is regarded by them as suitable?
– I have to admit that I was not aware that the Queensland Air Museum faced eviction in the circumstances indicated by the honourable senator although, of course, I was aware that work was to be done at Brisbane Airport. I will ask the Minister for Administrative Services to consider the request made by Senator McAuIiffe and to let the honourable senator have a reply.
– Is the Minister representing the Minister for Primary Industry aware that a New Zealand inventor has produced and sold a device for measuring the fat cover on beef carcasses? Can the Minister advise or ascertain whether that equipment is yet in use in Australian trials on carcass classification? Will he endeavour to provide a report on the matter when it is available?
-My attention has been drawn to a suggestion- I think it came from Auckland- that there is an agreement to market a unit which might be able to measure fat. I am not sure whether that unit is being marketed, whether it is in Australia, or what its potential might be. I imagine that the Commonwealth Scientific and Industrial Research Organisation would have information on that because, as the honourable senator will be aware, it has been doing quite a deal of work on carcass classification at Cannon Hill in Brisbane. Indeed, I understand that some of the equipment, including computing equipment, the CSIRO has been using there is the most advanced equipment available in the world. I recognise the interest the honourable senator has in the matter and I will direct his question to the Minister for Primary Industry.
-My question is directed to the Minister for Science and the Environment and follows a question I asked him on 25
October relating to uniform Federal-State legislation and the need to compile a register of materials which are dangerous to the environment, just as a register of the National Estate has been compiled. In view of the very alarming situation which has arisen in Canada, where a railway truck carrying chlorine has caused tremendous concern to a very wide section of the Canadian community, has the Minister yet given consideration to my suggestion that the need for a national register of dangerous substances should be an agenda item for a Federal-State meeting which he indicated would be held in December? I remind the Minister that in my earlier question I referred specifically also to the problems of chemical and toxic wastes from industry. If the Minister will not give this matter the priority requested, will he seek for me from his Department further information on which authorities are required to be notified of the movement of dangerous substances? Does the Minister see any need for such a Federal coordinating role?
– I acknowledge that some time ago Senator O ‘Byrne raised a question concerning a need for a register of dangerous substances. I have put the matter under study within the Department of Science and the Environment. It was found that a number of State Ministers would not be available to attend a ministerial meeting in December. If Ministers are available it is proposed that the meeting will be held in the middle of February 1980. The honourable senator asked whether a register of toxic wastes might be kept. That matter has been the subject of some discussion. Currently the possibility of the vessel Vulcanus coming to Australian waters to dispose of toxic wastes stored in the various States is under study and is the subject of application to my Department. I am unaware of whether there would be wisdom in making a register of those wastes, but I believe that the States have lists of the potential hazards within their boundaries. I do not think there is a Federal list. The honourable senator asked which authorities should be interested in this matter.
– Which authorities should be notified of the movement of dangerous waste and dangerous substances.
– I will take that part of the question on notice. One can readily recognise that several departments, such as the Department of Health and the Department of National Development, may be involved in the problem. I think it would be the Department of Health, but I will have that matter investigated.
– Did the Leader of the Government in the Senate see the article in today’s Australian relating to a report yesterday from the Commonwealth Scientific and Industrial Research Organisation to the Senate Standing Committee on National Resources which called for much greater Australian use and, by implication, consumption of natural gas as opposed to exporting this valuable fuel? As this report from the CSIRO is so obviously relevant and correct, will the Government immediately increase the incentives for the use of natural gas and other hydrocarbon gaseous fuels in Australia so that a total embargo on the export of gaseous hydrocarbons can be brought down as soon as possible?
– I saw the article. It is an interesting article and an interesting statement. The substance of Senator MacGibbon’s question touches on matters of policy. Therefore, I think I should refer the question to the relevant Minister and seek a response on policy levels.
-My question, which is directed to the AttorneyGeneral, is related somewhat to the question asked earlier of the Minister for Social Security by Senator Cavanagh. Is the Attorney-General aware that a senior detective of the Australian Federal Police was reported to have told Sydney Central Court yesterday that the Federal Government was considering paying a Mr Chris Nakis a sum ranging from $200 to $200,000 to be ascertained on a realistic appraisal of the entire contribution of Mr Nakis? I do not ask the Attorney-General whether the evidence given is correct, but I ask him whether the report of the evidence given is correct. If so, has the AttorneyGeneral, as the first law officer of the Commonwealth, had any discussions on that aspect with any of his ministerial colleagues? If so, with whom?
– I am aware of the evidence that was given by Detective Chief Inspector Thomas in proceedings in a Sydney court yesterday in regard to the prosecutions referred to by Senator Douglas McClelland. I had no knowledge at any stage of the discussions in relation to any reward to be paid to Mr Nakis. I have had no discussions in relation to it with any colleagues.
– My question is directed to the Minister representing the Minister for Foreign Affairs or the Minister representing the Prime Minister. Representations have been made to the Prime Minister by Australian citizens of Hungarian origin that the Government of Romania is committing genocide against the three million strong Hungarian minority living in Romania by killing members of that group, by causing serious bodily or mental harm to members of that group and by deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. Does the Government of Australia have any evidence of such breaches of human rights by the Government of Romania along these lines? If so, is the Government intending to do anything about it?
– I do not have before me an up-to-date briefing on this matter, which is obviously one of considerable importance. Therefore, I think my best plan would be to invite my colleague the Minister for Foreign Affairs to take an early look at Senator Lewis’s question and to respond to it.
– My question, which is directed to the Minister for Social Security, relates to the question just asked by Senator Douglas McClelland of the Attorney-General in respect of evidence given yesterday in court in Sydney. I ask: Has the Minister had any discussions on this matter with any of her ministerial colleagues?
– I understand that the question asked earlier of the Attorney-General referred to a person who was mentioned in the Press today. That mention was the first knowledge that I had had of the name of a person concerned in this matter. I have not today had discussions in any detail on this matter.
– I ask the Leader of the Government: What damage to the national economy is likely to occur if the crippling transport strike in the city of Sydney continues? Is another oil refinery stoppage likely to affect the economy of New South Wales? Does it seem that the Wran Labor Government is able to control either industry or that its actions are contributing to the settlement or prolongation of the dispute? Will the Federal Government undertake to watch the situation closely in case it can render constructive assistance to help the Wran Government out of the industrial corner into which it seems to have painted itself?
-All Australians, whether from New South Wales or not, realise that at the moment that State is confronted by severe industrial unrest with the potential for causing damage, for not only disrupting transport in terms of human inconvenience in travelling to places of employment but also, in regard to an oil shortage, for the threat that that State, which is part of the Commonwealth, can be brought to a standstill. The fact is that there is emerging in New South Wales a chronic state of industrial unrest, one that shows no sign of being tackled or resolved. Certainly the Federal Government will be watching the matter. It is clear that if it can do anything helpful it will be willing to do it, but I must agree with Senator Baume that at the moment the situation is ominous in respect of what may happen if it is allowed to drift.
– My question is directed to the Minister representing the Prime Minister. Can he provide the Senate with any information in relation to a meeting between United States and Australian authorities on the claim for damages by Dillingham-Murphyores and, in particular, as to the level at which negotiations are taking place? Is it possible that, as a result of the negotiations, the Commonwealth Government is about to change its policy towards export restrictions on minerals mined on Fraser Island?
– I have no up-to-date information on this matter. I ask Senator Colston to put it on notice so that I may deal with it.
-I refer to the question asked earlier by Senator Lewis concerning the Hungarian minority in Romania. The Minister for Foreign Affairs advises that the Soviet Union and governments in Eastern Europe, including Romania’s, continue to deny fundamental civil and political rights to their citizens and that minorities often suffer most in this respect. In the case of Romania, the Minister is aware that for some years now the grievances of the large Hungarian minority of that country have been the subject of considerable concern in the West, particularly among people of Hungarian origin. He is well aware of the concern of the Hungarian community in Australia concerning the matter and of the statements of the Romanian Government, which insists that the Hungarians of Romania are treated no differently from other
Romanians; that they enjoy equal opportunities in such matters as employment, education, use of language and the pursuit of their cultural traditions and heritage. Australia is not in a position to make precise judgments about the condition of the Hungarian people in Romania, although we would very much hope that as a minority group they suffer no discrimination. The matter is basically one for discussion between the Governments of Romania and Hungary and it would not be proper for this Government to seek to intrude upon that interest. Australia deplores the continued denial of human rights to the people of Eastern Europe generally. Our views have been made abundantly clear to the Governments of those countries where human rights violations occur. The honourable senator directed his question more to the suggestion of direct genocide or murder. That is not contained in my brief. As to that aspect, I will direct it to the Minister concerned and seek a reply.
– I wonder whether I might just clarify an answer that I gave to a question that Senator Douglas McClelland asked me. I just wanted to make it quite clear that 1 heard of this matter yesterday. I think I may have indicated that I had heard of it only from what I read in the newspapers this morning. I did know of it yesterday.
-On 8 November Senator Walsh asked me a question relating to meat exports from Western Australia, suggesting that a Western Australian meat exporter had labelled finely cut mutton as beef. The Minister for Primary Industry has provided me with the following information.
The report in the West Australian is substantially correct. Acting on a report from the Commonwealth meat inspector in Perth, senior veterinary officers of the Department of Primary Industry discovered a number of cartons of meat which had been apparently mislabelled as beef when the contents were boneless mutton. The matter has been placed in the hands of the Australian Federal Police who are currently carrying out an investigation. Since the matter is still under investigation by the Australian Federal Police, the Minister for Primary Industry considers that it would be inappropriate to mention the name of the exporter concerned.
– Earlier today Senator O’Byrne asked me a question relating to hazardous chemicals. The meeting which I suggested might take place in February is not of the Australian Environment Council, which is the appropriate body to be discussing the concerns that Senator O’Byrne has mentioned. Council is expected to meet in early December. It is the body which has established the National Advisory Committee on Chemicals to implement the National Action Plan on Environmentally Hazardous Chemicals. The plan was released in 1 978. Details of these activities have been provided in A.E.C. documents entitled ‘Environmentally Hazardous Chemicals’ and ‘Disposal of Chemical Wastes’. It is through that forum that the Commonwealth is working closely with the States and industry to develop co-operative approaches to difficult chemical waste disposal problems.
– I move:
I have spoken in the Senate on matters pertaining to this issue in the past on four occasions and I have expressed concern over the conduct of the case involved since it first hit the public eye on 3 April last year. I am aware that at present there are 21 people still on trial in Sydney Central Court. I am aware that, therefore, one must do nothing to prejudice their cases or to prejudice the conduct of the case in general. But on the four occasions I have previously discussed this matter, the question of sub judice has never been brought up in anything I have said. I will continue in my attempts to avoid any reference to anything which would be considered prejudicial to the court case. I have no intention of touching on any matter which is sub judice.
I am concerned about the manner in which information was gathered, the methods which were used to gather information and the way in which this Senate has been misled, either deliberately or otherwise, by at least two Ministers over the last 1 8 months concerning the conduct of this case. This is important. It is worth suspending Standing Orders for and it is worth a judicial inquiry. It is important not only to the people of the Greek community in Sydney, but also it is important to the Australian community generally. It is made especially important by the fact that the people involved have recently been given the power to conduct investigations into narcotics trafficking in this country and have had their powers widened considerably by their incorporation into a much larger police force than existed before. The case has always been one of great interest since it first hit the light of the day. Detective Inspector Thomas announced to the Press and to the public of this country that 1 ,000 people were going to be charged and that 300 people were going to be extradited from Greece in what was considered to be a million-dollar court case.
- Mr President, I take a point of order in relation to the motion that Senator Grimes is moving. He has moved for the suspension of Standing Orders to enable him to move a motion. The terms of the motion seek a judicial inquiry to be instituted. I was not able to record the exact wording of it. However, it is quite clear from what Senator Grimes has said that the judicial inquiry he wishes to set up would be inquiring into the very matters that are the subject of the evidence in the proceedings in the Sydney Court of Petty Sessions which are being heard at this very moment and which have been going for some time. I have the wording of the motion in front of me now. The judicial inquiry would inquire into and report upon the obtaining of the evidence in relation to the prosecution in this alleged social security frauds case involving members of the Greek community, the circumstances relating to the use by the Commonwealth Police of listening devices and the interception of telephone conversations, the propriety of persons who authorised the use of such devices including the authenticity of the evidence relied on to support such use and interception and what moneys have been paid, or offered to be paid, to any person offering to give evidence, et cetera. It is quite clear from the terms of the proposed motion that it would become directly involved in the subject matter before the court. It involves the question of the evidence that is being given in that court.
- Mr President, could I raise another point of order?
– It must be related to this point.
– It is on that point and whether the point of order is in order.
– I will hear this point first and ask you, Senator Cavanagh, to speak next.
– There is, first of all, an inquiry into the obtaining of the evidence that is being -
– You are opposing the motion. It is not a point of order.
– The motion is to suspend Standing Orders so that the motion to which I have referred can be moved. I am saying that to move a motion to suspend Standing Orders is out of order because the mover is seeking to have the Senate inquire into matters which clearly would be sub judice.
– Wait until you hear his speech.
– Well, I listened to what he proposed to move. As I said, I now have the details of the motion in front of me. It is quite clear that the whole exercise would involve debate on and inquiry into the evidence given in this court case. I am aware of the fact that the sub judice rule is subject to some overriding public interest. By and large that principle is based on the fact that the Parliament may wish to discuss something of overriding public interest. If, incidentally, there are court proceedings going on the sub judice rule should not prevent the discussion of a matter of overriding public interest. What would really be embarked upon if Senator Grimes’s motion were adopted is a debate in this Senate which undoubtedly and inevitably must get right into the heart of the evidence and the proceedings that are currently taking place in a court.
– My contribution will be short because I think that all speakers on this point of order have been out of order. One takes a point of order to determine whether the Standing Orders have been broken. The motion before us is that Standing Orders be suspended. Senator Durack would have to argue that that motion is not in accordance with our Standing Orders. The reason for our seeking the suspension of Standing Orders is not under consideration at this stage. We may not suspend Standing Orders but if we do then that is the time to consider whether the proposed motion conflicts with another Standing Order. However, that matter is not before the Senate now. It is completely out of order to take a point of order at this stage on something that is in order and to discuss something that is not before the Senate.
– My contribution to this subject shall be very short. Standing Order 448 provides that ‘In cases of urgent necessity . . .’a Standing Order may be set aside. As I understand Senator Durack, he is saying that in no way can the proposed motion be regarded as a matter of urgent necessity. By the sub judice rule it cannot be debated anyway and therefore it cannot be a matter of urgent necessity. Standing Order 448 does not apply.
– I am tempted to support Senator Cavanagh ‘s point that there is no point of order because we are in fact debating a motion for the suspension of Standing Orders. I suspect that your ruling, Mr President, will hinge on whether you consider this as a matter of sub judice or not. I must therefore speak to Senator Durack ‘s points. Firstly, I point out that the first charges in this case were laid in May of last year and since then this House has debated the matter on at least three occasions. I have led the debate in each case. On no such occasion, despite the fact that prominent legal members of the Government were present each time, was the matter of sub judice raised. Secondly, I point out that I am not asking, as Senator Durack said, for a Senate inquiry. I am in fact asking for a judicial inquiry. Thirdly, I am not asking for an inquiry into the evidence. I am asking for an inquiry into the conduct of the Commonwealth Police, into the manner in which the evidence was collected, into the allegation that listening devices and telephone interception devices were used, and that moneys were paid, have been paid or will be paid by the Government to obtain evidence in this case.
This case has gone on since April of last year. It is estimated that the first. 2 1 people who have been charged will not have their hearing finished until May of next year. Another 1 30-odd people have been charged. Yet we have this very important matter of the Federal Police, it is alleged in evidence, using what we consider to be illegal and questionable methods of obtaining evidence. I suggest that the public interest far overrides the matter of sub judice. In any case, I certainly do not intend that I or any judicial inquiry should deal with the facts of evidence or interfere with the course of justice as it affects the prosecution or defence. What I am concerned about is that we set up an inquiry into the methods which have been used in this case and which have been widely publicised in the daily Press and over the media generally. I consider that if we are prevented from moving such a motion or, by implication, debating such a matter in this place until all these court cases are finished, justice not only will not be done to the people in the case but also will not be done to the community of Australia.
– I wish to support the submissions of the Attorney-General in relation to this matter. It seems that it would be impossible to have a judicial inquiry into the circumstances relating to the alleged use by members of the Australian Federal Police of listening devices and the interception of telephone conversations without involving that inquiry in the consideration of the credibility and veracity of the various witnesses who would need to be brought before it, who would have to be inevitably or substantially the same people whose credibility is at issue in the trials which are taking place. The moment there are two contemporaneous inquiries involving the same people and their credibility on issues which have a major overlap, the very situation is created which the sub judice rule considerations were intended to avoid.
The proposition which has been put by Senator Grimes that we could, without endangering the fair trial of the proceedings in relation to the dependents, conduct a separate but contemporaneous inquiry involving the credibility of the same people is a preposterous proposition which should not be considered for a moment. In relation to the other part, which is Senator Cavanagh ‘s submission, I will simply support what Senator Lewis said about the obvious intention of Standing Order 448, which is that unless the matter is of urgent necessity Standing Order 448 cannot be suspended. If this would involve the sub judice rule and should not be pursued, obviously it would not be of urgent necessity.
– I wish to speak to the point of order. The objections of the Attorney-General can only be that the very debate of this whole issue is sub judice. If his objection is to the inappropriateness or the impropriety of the terms of Senator Grimes’s proposition, his proper course is to oppose that proposition or seek to amend it when it comes to the substantive debate of the item. In that respect, I support what I took to be Senator Cavanagh ‘s contribution to this debate. If Senator Durack ‘s objection was, as Senator Lewis has suggested and as Senator Rae has added, under Standing Order 448, one might have thought it reasonable for Senator
Durack to make some explicit reference to that and to base his argument upon it. In any event, the proper answer would appear to be that the nature, the circumstances, and the timing of the revelations that are the subject of Senator Grimes’s proposition are such as on any view to satisfy the literal terms of Standing Order 448.
Let me concentrate my remarks for just a moment in further developing Senator Grimes’s argument as to why this should be construed as being quite outside the proper scope of the application of the sub judice convention. At pages 25 1 and 252 of Odgers’ Australian Senate Practice the present practice of the Senate with respect to the application of the sub judice doctrine is summarised very succinctly. In relation to the modern trend, Odgers states:
Mr President, it is important to appreciate both the status of the so-called sub judice rule and the rationale for that rule in any determination that you might be moved to make on this particular subject. On the question of status- this is a point that often seems to be unappreciated in parliamentary debates on the subject of sub judice matters- the situation is that the subjudice rule is not a rule in any sense at all; it is not a formal rule embodied in Senate Standing Orders and it is not a rule of any other legal force or effect so far as Parliament is concerned. Parliament is perfectly legally entitled to debate anything it chooses to debate. Of course, parliamentary practice has been to debate any such matter when it has taken the view that the public interest is of overriding significance. The rule, so called, is simply a practice or convention that matters which would otherwise, outside the parliamentary context, amount to a contempt of court ought not to be debated in parliament unless there is some overriding reason in the public interest.
– Lex parliamenti. It is part of the law of parliament.
– Indeed, it is part of the law of parliament but it is not something which is, properly construed, the subject of any legal rule such that any parliamentarian could be subject to any sanction before the courts of the land or in any other context for proceeding to debate the matter. It is entirely a matter of internal parliamentary practice. Perhaps more importantly than the status of the rule is the rationale for it, because that will determine how it is applied by you, Mr
President, in exercising your chairmanship when matters such as this are before the Parliament. The basic point to appreciate is that the subjudice doctrine, or rule, in fact is co-extensive in principle, even though not as a matter of law, with- as I have said- the notion of contempt of court. That is an important point to make because what has to be appreciated is that what is in issue here, and the basic underlying rationale, is whether the debate and the discussion of the matters in question would cause, as Senator Grimes said, prejudice to any of the parties to the litigation. That is the core concept of contempt of court in the outside law as applied through the courts and it is the core concept in the sub judice doctrine as it has been applied in Parliament. In civil litigation what matters is whether the interests of either the plaintiff or the defendant would be affected adversely by the public discussion of the matter. In a criminal prosecution the emphasis focuses squarely on whether the interests of the defendant to that prosecution would be prejudiced or adversely affected by the public discussion, analysis, investigation and inquiry into the matters in question.
This is the criterion which the Parliamentand you, Mr President, on behalf of Parliamentmust apply. With respect, it is the sole criterion which you ought to apply- whether, properly construed, the subject matters of the proposed debate would in any way prejudice the interests of the defendants to this particular prosecution. I put it to you that there is no conceivable way that the discussion in this Parliament of any of the matters in Senator Grimes’s motion could be construed as having that effect. The matters raised relate to the conduct of the police investigation leading up to the prosecution. They relate to the illegal, or allegedly illegal, use of telephone interception practices and listening devices and they relate to the payment or proposed payment of informers in circumstances which suggest that an entrapment exercise of quite gross impropriety was set in train. There are involved here questions not related immediately to the guilt or innocence of the defendants to this prosecution.
What could possibly emerge from the parliamentary or any other consideration of this matter would not be something which on any view could have an adverse prejudicial effect- the outcome of any such debate or discussion might have a contrary effect- on the defendants to this proceeding. It is a question which relates not to the immediate matters before the court such as those which would adversely prejudice or effect a particular litigant but to the administration of justice. It relates to questions about the conduct of the police and the prosecution which, unless they are satisfactorily answered, would confirm the serious doubts which are already held in the community at large about the quality of the administration of criminal justice by our federal agencies.
I put it to you, Mr President, that it is impossible to think of a matter more squarely within the public interest than these fundamental questions which are related to the administration of criminal investigation and criminal justice and which are involved in the motion moved by Senator Grimes. It is entirely proper that Parliament should debate this matter. I suggest further that is it entirely proper that Parliament should recommend the establishment of the inquiry in the terms that Senator Grimes has given. The timing of the inquiry is not something which is explicitly contained within the terms of the motion, despite what has been said by Senator Rae and others about the proposed contemporaneous aspect. The timing and terms of reference of the inquiry could properly be the subject of debate on the substantive motion which I hope will follow this debate. Surely, debate cannot be stopped on a spurious application of the sub judice rule at this stage.
In summary, I state the points that I have been trying to make about the sub judice principle. First of all, the sub judice rule, so called, is not a rule as you, Mr President, and the Parliament well know, but is simply a convention which can be by-passed and which has been by-passed on numerous occasions when Parliament thought it appropriate to do so. The second point is that the particular issues raised in the motion are not such as to prejudice the interests in any conceivable way of the defendants to this proceeding and as such the terms of the motion are, in any event, outside the application of the sub judice doctrine as it has traditionally been applied. The third point is that even if by some obscure process of reasoning it could be thought that the terms of Senator Grimes’s motion were such as to bring it within the sub judice rule there is a clear case, in my submission, for the application of the motion that there is overriding public interest nonetheless in the discussion of this matter.
– I support Senator Grimes in seeking the suspension of Standing Orders. Firstly, I shall deal with Senator Rae’s remarks. Mr President, as you would know, the question is not whether the proposed judicial inquiry might interfere with the course of justice in the events before the courts in Sydney but whether a debate in this chamber would so interfere. That is the only matter to which I will refer in my remarks. The sub judice rule is designed simply to ensure that a matter awaiting a judicial decision should not be the subject of debate in this chamber. The matter awaiting judicial decision in the courts is to do with the innocence or guilt of certain applicants for social security benefits who are alleged to have conspired to obtain those benefits unlawfully.
There is no question before a court and no matter awaiting a judicial decision as to the legality or otherwise of the obtaining of evidence by the use of certain means, namely, the tapping of telephones or the payment of moneys to an informer. Therefore, my simple submission is that the sub judice rule is not in prospect of being breached by allowing the suspension of Standing Orders to permit Senator Grimes’ motion for a reference of the matter to a judicial inquiry to be moved. Mr President, even if you happen to rule that I am wrong in that submission and that the matter is sub judice, I would nevertheless argue that the matter is of sufficient public importance for you to regard the public importance as overriding considerations of sub judice. That is quite a separate matter. I would indicate not only the gravity of the matters outlined in Senator Grimes ‘ motion as being the proper subject of a judicial inquiry but also the fact that this chamber has received- I am being careful- from the relevant Minister a denial that any such phone tapping took place. I say that merely to indicate that there is a broad question for the Senate to consider. The Senate ought to be able to debate these matters despite the fact that you, Mr President, might regard the matter at first glance as sub judice.
– The Australian Democrats will be reluctantly supporting the Government in respect of this motion. We are not reluctant to support the Government for the sake of supporting the Government. Nobody in this chamber wants an inquiry into the Commonwealth Police more than I do. Speaking on the question -
- Mr President, I raise a point of order. Are Senator Chipp ‘s comments relevant to the point of order which is being discussed?
– We are discussing the matter of suspension of Standing Orders for a certain purpose.
- Mr President, could you give me some guidance? Are we speaking to the point of order or to the motion to suspend Standing Orders?
-Honourable senators are speaking to the resolution to suspend Standing Orders and to the matter of sub judice.
– Am I not permitted to speak to the motion before the Chair that Standing Orders should be suspended?
– The honourable senator is permitted to speak to the motion for the suspension of Standing Orders and the matter of sub judice at this stage. I have heard wide ranging argument. I call Senator Chipp.
– After hearing Senator Evans and Senator Tate I thought I might be permitted at least to speak a little more broadly than to the point of order. As Senator Evans and Senator Tate canvassed the whole question I think it is rather strange for members of the Australian Labor Party to pull me up on some piddling point of order to try to gag me from speaking to the same subject on which they have been speaking. I will speak to the point of order to satisfy the expansive mind of Senator Walsh. I believe that there is some validity in Senator Cavanagh ‘s point of order. But as there will be only one vote, we will be placing ourselves on the side of the Government. It would be inconceivable that, if such a public inquiry or a judicial inquiry was held, the interests of the parties involved would not be prejudiced, to use roughly Senator Evans’ words. I was amazed to hear Senator Evans, after saying that the only criterion should be whether the interests of parties is prejudiced, go on to say that such a judical inquiry would not prejudice the interests of the parties. I invite him to look, if at nothing else, at paragraph (c) of the proposed motion. I imagine that that would go right to the heart of the interests of the parties involved. Having been involved as a Minister with several royal commissions, I know that royal commissions get very juicy headlines. No other news seems to get juicer headlines than that of a royal commission. The terms of paragraph (c), let alone the other two paragraphs would be front page news for days. I ask how the interests of the parties would not be prejudiced if that was so. That is the view of the Australian Democrats on the question.
– I have not heard the whole of this debate but I certainly heard what was said by Senator Evans and Senator Tate. I was greatly surprised to hear them make the allegations they made. Clearly this must be shown as a case of urgent necessity. Senator Evans maintains, despite Standing
Order 448, that it would not matter whether the terms of reference of such an inquiry were decided later. No question of urgency was raised by him at all. It is not urgent to set up this inquiry at present. But it would seem to me that this whole debate, as Senator Chipp has said, must inevitably affect the credibility of witnesses and the evidence which is being given in proceedings that are going on at present. It is scandalous that it should be suggested that this matter should be debated at this time. To do so could only have harmful effects. That cannot be judged, but you can judge, Mr President, that to debate this matter would interfere with court proceedings which are presently proceeding in New South Wales. I suggest that, clearly, this debate should not be allowed to proceed.
– Having listened to the debate, I do not uphold Senator Cavanagh ‘s point of order to the effect that at this stage it is not appropriate to raise the matter of sub judice. I take the view that I must regard the motion in toto as far as the issue of sub judice is concerned.
- Mr President, I assume that as you have not ruled that I cannot continue, I can do so. The three matters which it is asked be investigated -
– I raise a point of order, Mr President. I understand that you have not yet ruled on the point of order.
– I have given a ruling. I am sorry if I have not been very clear. I have ruled that I do not uphold the point of order raised by Senator Cavanagh. In respect of the point of order raised by the Attorney-General concerning whether this matter is sub judice, I now rule, having taken the motion in toto, that I uphold that point of order. We shall now proceed to the presentation of papers.
– In accordance with the provisions of the Audit Act 1901, I present the supplementary report of the Auditor-General on other accounts for the year ended 30 June 1979.
– On behalf of the Minister for Education, Senator Carrick, and pursuant to section 33 (2) of the Australian National University Act 1946, I present the annual report of the Australian National University 1978.
– On behalf of the Minister for Education, Senator Carrick, and pursuant to section 30 of the Canberra College of Advanced Education Act 1967,I present the report of the Council of the Canberra College of Advanced Education 1978.
– On behalf of the Minister for Education, Senator Carrick, and for the information of honourable senators, I present a report entitled ‘Australian Students and Their Schools’.
– On behalf of the Minister for Education, Senator Carrick, and pursuant to section 14 of the Income Tax Assessment Act 1936, section 140 of the Taxation Administration Act 1953 and the corresponding provisions of the assessment Acts relating to sales tax, payroll tax, estate duty and gift duty, I present the 58th report of the Commissioner of Taxation dated 1 November 1979.I present also taxation statistics for 1977-78 dated 1 November 1 979, supplement to the . 5 7th report of the Commissioner of Taxation.
– For the information of honourable senators, I present the Department of Social Security annual report 1978-79.
– For the information of honourable senators, I present a report of the Committee on Nursing Personnel Survey ‘Nursing Personnel- A National Survey’.
-For the information of honourable senators, I present a report entitled ‘Health Promotion in Australia 1978-79’.
– Pursuant to section 34 of the Services Trust Funds Act 1947,I present the report by the trustees of the Royal Australian Navy Relief Trust Fund 1978.
– by leave- I move:
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
– Pursuant to section 34 of the Services Trust Funds Act 1947, I present the annual report of the Royal Australian Air Force Welfare Trust Fund 1978.
– by leave- I move:
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
– Pursuant to section 34 of the Services Trust Funds Act 1947, I present the annual report of the Australian Military Forces Relief Trust Fund 1978.
-by leave- I move:
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
Senator DURACK (Western AustraliaAttorneyGeneral) Pursuant to section 58 of the Administrative Appeals Tribunal Act 1975,I present the annual report of the Administrative Review Council 1 979.
– by leave- I move:
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
Senator DURACK (Western AustraliaAttorneyGeneral) For the information of honourable senators, I present papers and summary of discussions on the Sixth International Trade Law Seminar held in Canberra in April 1979.
Senator DURACK (Western AustraliaAttorneyGeneral) Pursuant to section 45 of the Pipeline Authority Act, I present the annual report of the Pipeline Authority 1979.
-by leave- I move:
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
Senator DURACK (Western AustraliaAttorneyGeneral) Pursuant to section 20 of the Coal Industry Act 1946, 1 present the annual report of the Joint Coal Board 1978-79.
– by leave- I move:
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
Senator DURACK (Western AustraliaAttorneyGeneral) For the information of honourable senators, I present the fifth annual report of the National Training Council 1 978.
Senator DURACK (Western AustraliaAttorneyGeneral) Pursuant to section 31 of the Atomic Energy Act 1953, I present the annual report of the Australian Atomic Energy Commission 1979.
-by leave- I move:
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
– Pursuant to section 44 of the Australian Film Commission Act 1975, I present the annual report of the Australian Film Commission 1978-79.
– For the information of honourable senators, I present the report of the Department of Housing and Construction on ‘Project Management and Other Options for Public Works’. The Joint Committee on Public Works referred the subject to the House of Representatives Standing Committee on Expenditure and the report was prepared by the Department at the request of the Chairman of that Committee.
– For the information of honourable senators, I present the report by the Australian Ionising Radiation Advisory Council on radiological safety and future land use in the Monte Bello Islands.
– For the information of honourable senators, I present the text of a statement on policy on assistance to public libraries.
– For the information of honourable senators, I present the agreement on fisheries between the Government of Australia and the Government of Japan.
– by leave- I move:
I wish to make a few remarks about this subject. It will be recalled that in the Senate last Thursday I expressed my concern that a motion requesting that a matter be referred to the Senate Standing Committee on National Resources, standing in my name on the Notice Paper, would not be brought forward for debate. I express that concern again because last week, when I spoke to that motion, I indicated that the motion stood on the Notice Paper as Notice of Motion No. 112.1 see that in today’s Notice Paper it has been relegated to Notice of Motion No. 1 13. Apparently, the Government has no concern at all for an inquiry to be held into the Australian fishing industry.
The agreement has been a matter of grave concern within the Australian fishing industry. That concern has been expressed in no uncertain terms by people associated with the industry. In the Age of 26 October this year there was an article headed ‘Fishermen sold out: Opposition’. That article referred to a motion moved in the Victorian Parliament by the Opposition’s spokesman on agriculture, Mr Bill Fogarty. I wish to quote from that article. It states:
Victorian fishermen believe they have been sold out by the Commonwealth’s fishing agreement with Japanese companies, Parliament was told.
The Opposition spokesman on agriculture, Mr Bill Fogarty, moved an adjournment motion censoring the Government’s ‘failure to protect the interests of the Victorian fishing industry and consumers ‘ ‘.
He called on the Government, to exercise greater control over joint fishing ventures.
The former Conservation Minister, Mr Borthwick, defended the joint operation.
The Australian industry had much to gain from the system, he said.
He said the Japanese were providing $ 1 20,000 for equipment to train Australian fishermen and the Japanese research vessel would be available to the Commonwealth next year with Australian officers on board.
The National Party voted with the Government and the Opposition motion was defeated on party lines.
On page 16 of the Age of the same date we find an article headed ‘Japanese Fishing Pact Blasted ‘, which states:
Canberra- The recently signed Japan-Australia fishing agreement was strongly attacked by the Australian Fishing Industry Council yesterday.
The Council said the agreement- which allows Japanese fishermen into Australia’s 200 mile fishing zone- was made without consulting the Australian industry.
The council yesterday sent a telegram to the Federal Minister for Primary Industry, Mr Nixon, expressing its ‘gross dissatisfaction with the Japanese-Australian fishing agreement and the subsidiary agreements’.
One agreement covers access given to Japanese long-line tuna fishermen in the new zone for a year.
Australian tuna fishermen say the Japanese will take up to 6,000 tonnes of southern bluefin tuna from waters in the new zone- fish that otherwise would be available to Australian fishermen.
The federal president of the fishing council, Mr F. Connell, said yesterday the Japanese annual take was worth about S30m on the Japanese market, not $1.4m as the Government had claimed.
He said the council had not been consulted on the agreement and the concessions to the Japanese contained in it were ‘totally unacceptable to the Australian fishing industry’.
The council was formed in 1967 at the request of the then Federal Government, which wanted a federal body representing fishermen to consult with it on industry matters.
We know that the Government in 1967 was a Liberal-Country Party coalition government. I want to quote from various parts of the Agreement that has been put down today. It was unfortunate that the Opposition’s spokesman on primary industry, Senator Walsh, was not provided with a copy of this document. If it had not been for the fact that the other place sat 1 5 minutes before we sat, we would not have had a copy of it either, but we were able to get a copy. A quick perusal of this document in the short time I have had it shows that it is very illuminating. I refer to Article I, which states:
The Government of Australia and the Government of Japan undertake to ensure close co-operation between the two countries in matters pertaining to the conservation and optimum utilisation of the living resources of the sea. They shall endeavour to facilitate such co-operation and shall continue to consult and co-operate bilaterally or multilaterally, as appropriate, with a view to achieving common fisheries objectives.
There is no mention at all of consultation with the Australian fishing industry. That has been completely overlooked and neglected. Article III states:
. The Government of Australia shall, in the exercise of its sovereign rights in respect of the living resources within the Australian fishing zone, determine annually, subject to adjustment when necessary to meet unforeseen circumstances.
Honourable senators will recall that the Australian Fisheries Council has had some complaint about the amount of the allowable catch and nowhere in my quick perusal of this Agreement can I find anything setting out the allowable catch. In the few moments I had to look through it I found no mention of that. The Article continues:
allocations, as and where appropriate, for fishing vessels of Japan of parts of surpluses of such stocks.
Again there is no mention at all of consultation with the Australian fishing industry. On page 6 of the document tabled clause 1 of Article VII states:
The Government of Japan shall co-operate with the Government of Australia in the conduct of scientific research for the purposes of the effective conservation and optimum utilisation of the living resources within the Australian fishing zone.
Again there is no mention of any consultation with the Australian fishing industry. On page 7 in Article IX we find the following:
The Government of Australia and the Government of Japan shall hold periodic consultations regarding the implementation of this Agreement.
Again there is no mention of any consultation at all with the Australian fishing industry. When we look right through this document we find that the Australian fishing industry has been completely ignored and that all that the Australian Government is doing is entering into consultations with the Japanese Government, which most surely will be looking after the interests of the Japanese fishermen; that is almost certain. If we look at Article XII we see that clause 1 states:
This Agreement shall enter into force on the first day of November, 1979.
As I pointed out earlier, on the 25th of this month a motion was moved in the Victorian Parliament criticising the Government for entering into an agreement with the Japanese. There was plenty of time for the Government then to postpone the signing of this Agreement and to have consultations with the Australian fishing industry, but it did not see fit to do so. Clause 2 of Article XII states:
This Agreement shall remain in force for a period of two years and shall continue in force thereafter until the expiration of twelve months from the date on which either Government shall give notice to the other of its intention to terminate this Agreement.
That means in effect that the Agreement is valid for three years. That is the way that I read it. If we look further on in this document which has been tabled we find that, under the heading Subsidiary Agreement between the Government of Australia and the Government of Japan concerning Japanese Tuna Long- Line Fishing’, Article I states:
The Government of Australia shall, in accordance with the provisions of the Head Agreement, issue licences for the vessels, the number of which shall not exceed 350, subject to payment to the Government of Australia of a fee of one million four hundred thousand Australian dollars for all the vessels to be licensed and for the period of validity of this Subsidiary Agreement.
– An armada.
– It does not need any stretch of the imagination to visualise how much Australian fish will be taken from our waters by an armada of 350 vessels, as Senator Primmer said. They will denude our waters of fish. The Australian fishing industry has been completely ignored by this Government and has been criticised by the Australian Fisheries Council, a body set up by the Federal Government in 1 967. It is no wonder that the Australian professional fishing industry is up in arms about the way it has been treated by this Government. It is no wonder that the Australian fishermen who contact me are up in arms against this Government because it will not see fit to bring forward in this Parliament a motion which w3l take only five minutes to debate. It will not see fit to bring forward the motion which I moved on 10 October, 13 months ago, and which was that the Commonwealth’s responsibility for the development of the Australian fishing industry, following the declaration of the 200-mile off-shore limit, be referred to the Senate Standing Committee on National Resources for inquiry and report back to the Senate. Here we have a government completely ignoring the Australian fishing industry and entering into an agreement with the Japanese, who are expert fishermen and who no doubt will exploit our waters to the fullest with these 350 vessels. Furthermore, it has completely ignored the request of the fishing industry which I put forward here with the concurrence of the Federal Parliamentary Labor Party for the Senate Standing Committee on National Resources to conduct an inquiry. This Government has shelved this inquiry. It is not prepared to have an inquiry so that we can bring before the Committee all the fishing interests in Australia and, no doubt, representatives of the Japanese Government to give evidence as to how much fish Japanese fishermen will take from our waters.
On looking further through this Agreement we find that the Japanese will be able to take martin from our waters. The taking of black marlin from Australian waters is a matter that Senator MacGibbon has raised in this Parliament, and there has been criticism of that in the other place. By this Agreement the Japanese will be allowed to take not only tuna but also all other sorts of fish out of Australian waters. This will be not only to the severe detriment of the livelihood of Australian fishermen but also to the detriment of the Australian consumers, who no doubt in the very near future will find themselves not able to buy Australian-caught fish but having to buy fish which is caught in our waters, taken to Japan, processed and then brought back here to be sold at a highly inflated price to Australian consumers. The Government should be condemned, on the first hand, for entering into this agreement and, on the second, for not agreeing to the inquiry being referred to the Senate Standing Committee on National Resources. I seek leave to continue my remarks later.
Leave granted; debate adjourned.
-by leave- I wish to speak only briefly on this matter. I had intended to move that the Senate take note of the paper, but that has already been done. I wish to refer first to the fact that although this report has been presented, honourable senators cannot get hold of it. I have been asking to see it ever since the Senate met today but it has not yet come to my desk. It seems to be a rather strange situation that an important report of this kind can be actually presented to the Senate yet not be available, even some time after such presentation, for perusal by honourable senators. I put that aside because the matter to which I refer is ‘ one of direct and continuing concern to the Australian Atomic Energy Commission and one which I note occurs in every one of its reports. It is not possible that it has not been mentioned also in this particular report, which we do not have before us.
I refer to the technical knowledge and expertise that, to my knowledge, only the Atomic Energy Commission possesses, being applied to a more active extent in ensuring the safety of the increasing numbers of persons who are engaged in uranium mining in this country. Very considerable sums of money are being paid to those persons. I heard of a case in which a man and his wife were earning $ 1 ,000 a week. In these days of high unemployment such income presents an almost irresistible temptation to people to engage in this work, whether there be risks attached to it or not. It behoves this Parliament and the Atomic Energy Commission to ensure that such risks as there might be are minimised.
Recently the committee of which both you, Mr Acting Deputy President, and I have the honour to be members, visited this area. I was concerned not so much with the degree of the monitoring of gamma radiation, which seems to be not a problem. It has been said to those who visit these areas that gamma radiation is monitored regularly. All workers wear dosimeters which record progressively the amount of gamma radiation that they receive. Even at Nabarlek, which is processing a very intensive ore body, in the sense that the assay shows a very high uranium oxide content, the greatest degree of gamma radiation incurred by any worker was something like 480 millirems over six months. That worker then approached closely the 500 millirems in one year total that is regarded as the maximum acceptable dosage for members of the general public, but did not approach the considerably higher figure of five rems, which workers in the industry are supposed to be able to absorb.
Therefore, in our uranium minesremembering that in others the assay shows a much smaller concentration- the question of gamma radiation although important, is not necessarily the most important consideration. That, it seems to me, is alpha radiation which, as honourable senators will know, is very shortrange radiation and will cause damage within only a centimetre or so of the source of origin. This does not mean that it is not a danger. In fact, quite the converse is the case. That is the reason why the control of radon gas and its so-called daughters, particularly polonium and radium isotopes, are a matter for discussion. From the discussions that I had there seemed to be no real monitoring, of which I could see physical evidence, of alpha radiation affecting workers in our uranium mines. On the contrary, there did seem to be an immoderate amount of dust around, particularly at the Ranger site where the tailing dams are being completed. The statement was made that there was no mineralisation at that point, yet at another place in that uranium province I was told that especially close to the main ore bodies, there was no question of there not being mineralisation which might create a danger from alpha radiation.
One school of thought has it that an assay of anything under .2 per cent is automatically to be regarded as not dangerous. This is a matter to which the Atomic Energy Commission should address itself. The assertion would appear to be complete nonsense. At another site an expert whom I shall not name, but who seemed to be very well qualified, said that dust was dangerous anywhere in the area; that any amount of dust taken into the lungs by a worker is dangerous.
As I have said, at the Ranger site the main tailing dam embankments are under construction. Despite the watering that was taking place I saw enormous amounts of dust being created. I am not attacking the Ranger administration on this matter. I am merely saying that a sufficient effort is not being made to monitor accurately the amounts of alpha radiation to which our workers are exposed. We learn that at Ranger no effort will be made to ventilate the open cut pits; that natural convection will be relied upon to clear radon gas. It is a fact that the daughters of radon, if they remain in the lungs for continuous periods, can cause permanent physical damage and even death because of the attack by alpha radiation on the cells in the lining of the lung.
I should like to mention another matter, because I think it is important. Although the underground mine proposals for Jabiluka do seem to be good and to be designed to keep the workers away from the pitchblende ore as much as possible, the management appears not to want to instal proper water scrubbing, filtering or other means of eliminating dust from the exhaust outlets of the proposed mines. The Senate might well suggest that the Atomic Energy Commission consider that aspect closely. The dust is an alpha emitter and, in certain weather situations, would I think certainly reach the Jabiru township, which is now being built to house 10,000 people, including the womenfolk and children of workers. It seems to me to be an unsatisfactory state of affairs that it should merely be said that the dust will be blown through the mine. If the exhaust system is to do its job huge quantities of dust must certainly be a part of that exhaust emission.
It is not sufficient that it should be permitted merely to fall at will, wherever the wind takes it, certainly not when a whole town is being built quite close by. That matter also relates to what I have taken as my theme: The question of a proper monitoring and supervision of the amounts of alpha radiation to which the workers are subject. I ask that the Atomic Energy Commission direct its attention urgently to this matter, expecially since the levels of alpha radiation that can be regarded as safe are very much a matter of dispute.
– Pursuant to section 23a of the Commonwealth Electoral Act 1918I present a copy of the report of the distribution commissioners for Western Australia, together with the maps referred to therein and a copy of the suggestions, comments and objections lodged with the distribution commissioners pursuant to sections 1 8a and 2 1 of the Commonwealth Electoral Act.
In accordance with the procedure outlined to this chamber on 3 April 1979,I present also for the information of honourable senators a paper prepared by the Australian Electoral Office which reconstructs the results of the 1974, 1975 and 1 977 House of Representatives elections in terms of the proposals contained in the report of the distribution commissioners for Western Australia which I have just tabled.
Senator WALSH (Western Australia) by leave- I move:
I seek leave to continue my remarks later.
Leave granted; debate adjourned.
-For the information of honourable senators I present a report entitled Towards a More Effective Commission- The Australian Film Commission in the 1980s’. Copies of this report are available from the Parliamentary Library.
-Mr President, on behalf of the Joint Parliamentary Committee of Public Accounts, I present the 1 78th report of the Committee.
Ordered that the report be printed.
– by leave- Mr President, the 178th report relates specifically to evidence taken in connection with items of expenditure from the Advance to the Minister for Finance in 1978-79. As honourable senators are aware, after the close of each financial year the Minister for Finance submits to Parliament a statement of expenditure from the Advance to the Minister for Finance showing allocations to heads of expenditure made by him under section 36a of the Audit Act. It is a long-standing practice of this Committee to report upon the use of the advance during the Budget session. The Committee received explanations from departments on each item shown in the Minister’s statement. In all, we examined 106 departmental explanations and sought additional information from seven departments. Twenty further explanations were obtained from departments and authorities in respect of a submission from the Department of Foreign Affairs relating to an overseas imprest account. Four items were selected for further public examination. A submission was also obtained from Telecom in relation to explanations from six departments concerning billing cycles.
A number of drawings from the Advance were for salaries and allowances which fell outside the ambit of section 5 of Appropriation Act (No. 1 ) which was first included in 1 973-74 to reduce a very heavy use of the Advance to satisfy salary determinations. The introductory chapter of this report gives a more detailed explanation of the operation of this section which provides a special appropriation authorising the Minister for Finance, during a particular financial year, to issue out of Consolidated Revenue Fund such amounts as he determines to be necessary to meet estimated increases in salaries and wages, and payments in the nature of salary for which provision is made in Schedule 2 to the Act; and which become payable during that year in accordance with a law or an award, order or determination under a law.
In examining expenditure from the Advance to the Minister for Finance, the Committee sought to ascertain whether or not expenditure from the Advance to the Minister for Finance had been confined to urgent and unforeseen requirements for which provision could not have been made in the original and additional Estimates. The Committee also sought to ascertain whether or not the departments concerned had maintained efficient administration in the expenditure under the item selected for inquiry. Evidence taken during this inquiry has shown there were cases of clerical error, administrative oversight, procedural weaknesses within departments and inadequate estimating. Attention has been drawn to these inadequacies where they have been discovered. The Committee found that, generally, expenditure from the Advance was confined to urgent and unforeseeable requirements for which provision could not have been made in the appropriation Acts. The policy of financial restraint imposed upon departments over the last few years has required departments to apply greater care to ensure that their financial requirements are met within the approved appropriations. Whereas in previous years the Committee found evidence that some departments believed the Advance to the Minister for Finance was a simple means of covering shortfalls in their estimating performance, there has been a marked improvement in departments ‘ estimating which has meant less demands have been made from the Advance to the Minister for Finance, except in those cases which were urgent and unforeseen.
In the report the Committee has emphasised that departments or authorities which receive a reimbursement claim in respect of overseas transactions have a clear responsibility to make payment as soon as possible. The Committee expressed concern that debtor departments are frequently delaying reimbursement of claims because of a shortage of funds in the relevant appropriation. It is the Committee’s view that the payment of any account should not be delayed because of lack of funds and that departments should be encouraged to apply for funds from the Advance to the Minister for Finance for this purpose. The Committee believes that the Commonwealth should pay its bills promptly. Failure to do so could cause liquidity problems for others. On 9 November 1974 the Prime Minister issued instructions that the Commonwealth should as a matter of policy satisfy its creditors as quickly as possible. We believe that financial obligations should be settled by Commonwealth departments and authorities within the normal 30-day business cycle or earlier if incentive discounts are available for prompt settlement. A detailed explanation of the development and use of the Advance to the Minister for Finance is provided in Chapter 1 of the Committee’s 173rd report which was tabled at this time last year. A report from the Senate Standing Committee on Finance and Government Operations in August 1979 provides additional background.
The Senate Committee in that report concluded that the current system for the use of the Advance is satisfactory. However, it recommended:
That expenditure from the Advance in addition to items already appropriated for, or new items be permitted only in urgent and unforeseen’ circumstances; that the above criteria be set out in the finance regulations made under the Audit Act; and that the explanations accompanying the Appropriation Bills, which are examined by Senate Estimates Committees, be accompanied by a separate section of each department showing the funds which have already been provided from the Advance.
The Public Accounts Committee agrees with these recommendations. The Senate committee also recommended:
That the amount appropriated to the Advance in Appropriation Acts Nos 1 and 2 be limited to 2.3 per cent of the total of the previous year’s general Appropriation Acts. If the amount is exceeded, then the matter should be referred to the Senate Standing Committee on Finance and Government Operations and the House of Representatives Standing Committee on Expenditure.
The Public Accounts Committee would agree that the amount appropriated for the Advance to the Minister for Finance should be kept to a minimum. However, we have reservations about applying any arbitrary limit based on historical expenditure patterns as the Advance is specifically designed to finance urgent and unforeseen expenditure. The Senate Committee’s final recommendation is:
That a statement of approvals of expenditure from the Advance be published at the end of each calendar month and then tabled in Parliament at the earliest opportunity. The statement should indicate into which category each item of expenditure falls, that is, whether it is expenditure to fund payments pending the issue of Governor-General’s Warrants, to make advances which will be repaid within the financial year, to make moneys available for supplementation of existing appropriations for specified purposes or to make moneys available for new services for which no specific appropriation has been made. The statement should show all expenditure but only expenditure above $50,000 for the other categories.
The Public Accounts Committee supports the need for keeping the Parliament better informed.
However, the Committee believes that the administrative arrangements to provide such a statement for parliamentary review purposes may not prove to be cost-effective. Nevertheless, the recommendation should be seriously considered. The Public Accounts Committee has traditionally examined the Advance to the Minister for Finance in detail and intends to continue its long-standing practice of reporting during the Budget session on the use of the Advance to both Houses of the Parliament. It is appropriate for matters relating to the Advance to the Minister for Finance to be referred to the Joint Committee of Public Accounts.
-by leave-I want to make a short statement to support the statement made by Senator Lajovic. One reaches a stage at which one remembers that one comes from Queensland where a Public Accounts Committee is neither encouraged nor allowed so that the type of scrutiny that we see in this place is not carried out. I refer in particular to three itemsfirstly, the Advance to the Minister for Finance. I can recall what happened in 1975 when we were having troubles in this House trying to get a Budget approved. A great deal of criticism came from people who were then in the Opposition and who are now members of the Government about the amount made available for the Treasurer’s Advance, as it was known in those days. I think it is timely that the Public Accounts Committee should have incorporated these remarks in a report to indicate the value of the Advance in the first instance and the way that it ought to be distributed. I quote from the Joint Parliamentary Committee of” Public Accounts:
In examining expenditure from the advance to the Minister for Finance, the Committee sought to ascertain whether or not expenditure from the advance to the Minister for Finance had been confined to urgent and unforeseen requirements for which provision could not have been made in the original and additional Estimates. The Committee also sought to ascertain whether or not the departments concerned had maintained efficient administration in the expenditure under the item selected for inquiry.
Evidence taken during this inquiry has shown there were cases of clerical error -
The report goes on to list a number of things which the honourable senator has referred to. Because of the scrutiny of the Committee most of these problems have been overcome. The report continues: the Committee has emphasised that departments or authorities which receive a reimbursement claim in respect of overseas transactions have a clear responsibility to make payment as soon as possible.
The Committee goes further than this because it suggests that the Department should be encouraged to apply for funds from the Advance to the Minister for Finance for this purpose- that is, for the clearing up of debts. I have had people come to me over the years- small business people and in particular small contractors- who are not able to pay their bills. They are not able to satisfy their creditors because various Commonwealth departments have not paid their debts. I am not going to name the departments now because a lot of them have corrected their shortcomings. Consequently, these firms have had severe liquidity problems and in some instances have had to go out of business because they either could not get a progress payment or could not be paid for the total job.
If one owes the Government money, the bill is usually forthcoming very smartly and if it is not paid within a reasonable time the reminder note comes through equally smartly. I am aware, of course, that there are some problems in the Department of Administrative Services. Currently this seems to be something of a bottleneck. Possibly it is necessary for the Department to be able to scrutinise properly all accounts supplied to it to ensure that only the correct payments are made. Nevertheless, those sorts of delays become embarrassing to the person who incurs the expense and become more embarrassing to the person who needs the reimbursement. Some of this delay might be caused by the matters to which reference is made in this report.
The only other point I want to make reference to is the recommendation from the Senate Standing Committee on Finance and Government Operations. I will quote from the report of the Joint Committee of Public Accounts: . . a report from the Senate Standing Committee on Finance and Government Operations in August 1979 provides additional background . . .
The Senate Committee in that report concluded that the current system for the use of the advance is satisfactory. However, it recommended that-
Expenditure from the advance in addition to items already appropriated for, or new items, be permitted only in ‘ urgent and unforseen ‘ circumstances.
That- the above criteria be set out in the finance regulations made under the Audit Act.
That is a further recommendation.
And that- The explanations accompanying the Appropriation Bills, which are examined by Senate Estimates Committees, be accompanied by a separate section of each department showing the funds which have already been provided from the advance.
Incidentally, the Public Accounts Committee agrees with those recommendations.
I believe if those recommendations were instituted it would further streamline the payment and collection of government finance. I hope that in this report the Government will take note of the recommendations that have been made and where they are listed as semi-urgent that they will be instituted as soon as possible.
-by leave- The Senate will recall that the Privileges Committee recently submitted its fifth report. Subsequently, I have had a message from Senator Georges indicating that he is confined to hospital and expressing a wish that consideration of this report take place upon his return. 1 just wish to inform the Senate that it is our intention to accede to that request.
– In accordance with the provisions of the Public Works Committee Act 1969, 1 present the report relating to the following proposed work:
National Biological Standards Laboratory (NBSL) and Australian Dental Standards Laboratory (ADSL) at Symonston, Australian Capital Territory.
– On behalf of the Joint Committee on the Australian Capital Territory I present a report on the proposals for variations to the plan of layout of the city of Canberra and its environments, 68A series, together with extracts from the minutes of proceedings of the Committee.
Ordered that the report be printed.
– I seek leave to have incorporated in Hansard a statement relating to the report.
The statement read as follows-
This report relates to the Committee’s report on the 67th series of variations. While the Commonwealth of Australia Gazette notice described the variation as a minor modification of a previously gazetted alignment between the old Canberra Brickworks and the Royal Canberra Golf Club it generated considerable community interest. Nine objections to the proposed variation were lodged and 12 witnesses appeared before the Committee. The modification is to a road which was recommended by the Committee in its report on the 67th series of variations to the plan of Canberra. The Committee has approved this variation but is concerned that little progress has been made with the recommendations in our report on the 67th series. That report recommended that proposals be presented by now which would provide for the development of Royal Canberra Golf Club to appropriate national and international standards. The Committee suggested the use of parts of the Yarralumla nursery and Lees paddock.
The Committee also suggested that detailed discussions be held on Stage 2 of the West Yarralumla Tourist Road with CSIRO, the Royal Canberra Golf Club and the Department of the Capital Territory as the authority responsible for the Yarralumla nursery. The Committee considers that too little attention has been given to these recommendations and that this amounts to neglect of the findings of the Committee and the Parliament. The Committee must again express its concern at the delay. With this decision now having been made on Stage 1 of the West Yarralumla tourist road steps should be taken to ensure that planning proceeds on Stage 2 in accordance with the recommendations made by this Committee some six months ago.
The Committee understands that the road dealt with in the variation which has now been approved is scheduled for construction in the financial year 1980-81. It therefore questions why this variation was brought to the Committee now, with an apparent degree of urgency, particularly as a limited number of parliamentary sitting days remain, and as the number of days for objections to be lodged was restricted as a result. I make the point again that this Committee expects the planning authorities to ensure that variations are put to us early in each parliamentary sitting period, that 21 days should be provided for objections and that ad hoc variations such as the one considered in this report should be avoided unless there are extenuating circumstances. The Committee is not satisfied that such circumstances existed in this case.
Motion (by Senator Walsh) agreed to:
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.
Bill presented, and read a first time.
– The Bill has passed the first reading stage.
– I seek leave to make a short statement.
-Is leave granted?
– No, leave is not granted.
Motion (by Senator Walsh) agreed to:
That the second reading be made an order of the day for the next day of sitting.
– I shall now proceed to the placing of business. Is it desired to postpone or re-arrange the business?
Senator DURACK (Western AustraliaAttorneyGeneral) I would just like to provide some information for the Senate about the Government’s legislative program. It has been arranged so that the Senate may complete consideration of the various Bills during the week ending Friday, 23 November and avoid the need to sit after the House of Representatives has risen. It is proposed that the Senate will sit from 10.30 a.m. on Monday, 19 November and, if possible, conclude the sittings on Thursday, 22 November. However, the Senate may sit on Friday, 23 November, as well. That depends, of course on the will of the Senate. I understand that a program of legislation for this week has already been circulated. The Government will provide- I think this will be done later todaythe Senate with a statement on the program for next week. The Senate will have that program as soon as possible.
– by leave- The Opposition accepts the fact that the Government has a program to get through but I want one thing to be clearly understood in the light of what the AttorneyGeneral (Senator Durack) has said, which, I understand, means that the Government now intends to get all legislation through this week and next week. We will sit next Monday and we will work through the program. Presumably, if need be, we will sit through to the small hours of the following Saturday morning. I want it to be understood by the Attorney-General and the Government that we on the Opposition side do not feel that we should be inhibited or restricted in debating most of the legislation that is still to be dealt with. There are a lot of important Bills. The Appropriation Bills are still to be completed. There are matters to be raised on the Estimates and this other legislation should be given thorough consideration. We ought to consider that we are wanting to get out virtually in the middle of November -
– The Government is.
– That is what I mean, the Government wants to get out in the middle of November.
– Twenty-three November.
– Yes, but it is still really four weeks away from the end of the year. In view of the fact that the Government has brought this legislation into the Parliament it is incumbent upon the Government to ensure that the Parliament sits for sufficient time to debate it properly. I have no desire to be difficult- nor, I think, does anyone on the Opposition side- or to prevent Government legislation getting through but that ought not preclude proper debate by any member of this Parliament or this chamber who wishes to involve himself in debating the various Bills and matters that come before us. I am just indicating to the Government that although the statement has been made, let it be clearly understood that we do not intend to be hustled out of this place simply because the Government wants to cram a very large amount of legislation in a space of time that is not reasonable in the light of the matters that have to be dealt with.
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 Webster) read a first time.
– I move:
I seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows-
This Bill will amend the Sales Tax (Exemptions and Classifications) Act to provide a number of new exemptions. Included in the Budget proposals were expanded sales tax exemptions for goods for use by blind or deaf persons. These proposals would have called for a widening of the present exemptions for certain types of goods used by blind or deaf people to cover all classes of goods that are designed and manufactured expressly for use by blind persons or deaf persons and which are not of a kind ordinarily used by persons who do not suffer from these disabilities.
Since the Budget was announced the Government has given further consideration to the plight of the handicapped. In addition to the blind and deaf there are many other people suffering from serious disabilities who have to use special devices or appliances. Technical advances bring forth new aids for the handicapped but because of the specific terms of the present exemptions, these new devices often fail to qualify for exemption. The Government has every sympathy for handicapped people in their efforts to cope with their disabilities in their daily living. This Bill will accordingly provide for several new exemptions for goods for use by the handicapped. These will cover not only aids for the blind and deaf, but also aids for persons with other disabilities.
A major exemption in this category will apply to goods designed and manufactured expressly for use by persons suffering from any type of sickness, disease or disablement, provided that the goods are of a kind not ordinarily used by persons who are not suffering from sickness, disease or disablement. A further exemption relates to medical or surgical appliances for the handicapped. A range of specified types of medical and surgical appliances is exempt under the present law but this new provision will complement these by exempting any medical or surgical appliance which is of a kind used exclusively or principally by persons suffering from sickness, disease or physical impairment for the purpose of alleviating or treating the sickness, disease or impairment or its effects.
Although these two exemptions will overlap to some extent, the first, which can apply to goods that are not medical or surgical appliances, is restricted to goods that are of a kind not ordinarily used by persons who are not suffering from sickness, disease or disablement. The second is for goods in the nature of medical or surgical appliances but can apply to these where they are of a kind used principally by the sick or disabled even though they may have some use by persons who are not sick or disabled.
Exemption is proposed also for wigs and hairpieces for persons who are clinically bald. Certain diseases, or the drugs used in their treatment, cause complete or partial loss of hair. This can have a severe psychological effect, especially on women and children. It can be countered by the wearing of wigs or hair-pieces. As the exemption will be restricted to persons who are clinically bald, as distinct from those with naturally occurring baldness, it will be conditional on the certification by a legally qualified medical practitioner that the loss of hair by the person concerned was due to sickness or disease or the effects of its treatment.
The physically handicapped will benefit from two other exemptions in the Bill. These will apply to battery chargers for use exclusively or principally in recharging the batteries of electric wheel chairs and invalid chairs and to motor vehicle hand controls and similar devices which enable disabled persons to drive motor vehicles.
Included in the Bill are exemptions designed to give effect to the sales tax measures announced in the Prime Minister’s statement of 27 June detailing the Government’s energy policy. These are aimed at assisting the fulfilment of the objective of encouraging conservation of energy- in particular, liquid fuels other than LPG- and promoting the use of alternative energy sources such as natural gas, LPG, coal-based electricity and solar energy. These provisions will exempt goods for use in the conversion of internal combustion engines to liquefied petroleum gas or natural gas operation; non-oil burning domestic space heating appliances; and various solar energy appliances. These exemptions are to have effect on and from 28 June 1979, the day after the Prime Minister’s announcement.
As compressed natural gas is emerging as an alternative motor vehicle fuel, it is proposed that the exemption for engine conversion kits apply to goods for use in conversions to natural gas as well as to conversions to LPG. It will also apply to goods for use in converting marine engines or stationary engines to LPG or CNG operation.
Domestic space heating appliances of the built-in type are largely exempt from sales tax under the existing law. Portable domestic heating appliances are taxable at 2!6 per cent. The exemption for non-oil burning domestic space heating appliances will apply mainly to portable domestic space heaters, other than kerosene heaters. It will not apply to household air conditioners. These and household kerosene heaters will remain taxable at 2lA per cent.
Solar energy is rapidly becoming an alternative energy source, particularly for water heating systems. Household water heating and hot water systems of the fixture type, including solar water heaters, are already exempt from sales tax. The new exemption for solar energy equipment will apply to devices such as solar collectors, absorbers and concentrators which are essential to the effective use of the sun as a source of heat energy, and to photovoltaic cells which convert solar energy to electricity. Thus solar collectors, absorbers and concentrators which are for use in industrial installations or in heating water for swimming pools will be covered by the exemption.
Other measures proposed in the Bill will benefit the crafts and other small manufacturing enterprises. Under the present law exemption is provided for goods manufactured by persons in small businesses. These exemptions are based on annual turnover or prospective tax liability. One exempts goods manufactured by a person in his own home if the average annual turnover from his or her sales of all goods does not exceed $1,000. Another exempts sales by retail of products made otherwise than in the home by a person whose average annual turnover from sales of all goods does not exceed $ 1,400.
These turnover levels have remained unchanged since 1941 and the Government proposes that they should be raised to a level more commensurate with present day prices. These exemptions based on turnover will be replaced by a single exemption for goods produced by a person whose average annual turnover from sales of all goods does not exceed $12,000. The distinction between those manufacturing at home and other small manufacturers will be abolished.
The present exemptions contain provisions which lay down the rules to be followed for the purpose of determining the average annual turnover. These provisions will remain but a further provision will be included to enable the annual turnover to be determined by reference to arms length prices where sales are made at depressed prices between parties not at arms length.
The exemption based on tax liabilities exempts goods manufactured by a person if the sales tax that would otherwise be payable by that person would not exceed $100 per annum. This figure was set in 1957 and it is proposed that it be raised to $250. The changes in the exemptions in favour of small manufacturers are to be effective from the date of royal assent to the Bill.
The government’s Budget proposals on sales tax included two further exemptions for imported antiques, that is, goods which are more than 100 years old, and for player piano rolls. Australian antiques are not subject to sales tax and imported works of art are generally exempt also. The new exemption for other imported antiques puts them on an equal footing with Australian antiques and imported works of art.
Player piano rolls are currently manufactured by only a few companies in the world, one of which is in Australia. This company undertakes valuable work in preserving the works and playing styles of many great pianists. This new exemption will assist this highly specialised activity.
The exemptions related to goods for use by the sick and disabled are to be effective from 22 August 1 979, the day following the introduction of the Budget. The exemptions for imported antiques and player piano rolls are also to be effective from that date. An explanatory memorandum explaining the provisions of the Bill in more detail will be made available to honourable senators. I commend the Bill to the Senate.
Debate (on motion by Senator Walsh) adjourned.
Bill received from the House of Representatives.
Ordered that the Bill may be taken through all its stages without delay.
– No, the Sales Tax Bill was introduced on its own.
– Is it correct that the taxation Bills will be introduced shortly?
– I understand that they are not ready yet and that they will be coming in at the appropriate time.
– Can the Government Whip give an undertaking to give the Opposition some notice of when they will be coming in?
Bill (on motion by Senator Webster) read a first time.
Senator WEBSTER (Victoria-Minister for
Science and the Environment) (5.5)- I move:
I seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows-
Over the last 200 years, except for brief periods of war and economic recession, Australia has been a country of large-scale immigration.
During the past 30 years we have experienced one of the great mass migrations of history. Over three and a half million people from more than 100 countries have made Australia their home in a magnificent saga of voluntary, planned migration. The United Kingdom has remained our chief source of migrants with just over 40 per cent of the post-war intake of 3.5 million. The remaining 60 per cent have come from well over 100 sources, with Italy, Greece, Yugoslavia, Germany and the Netherlands prominent for most of the post-war period. In more recent times there have been intakes of immigrants from other areas including Latin America, Asia and the Middle East.
Australia has succeeded in maintaining social harmony and national cohesion throughout this period of immigration. This has been achieved by adjustments on the part of the host community and of the new settlers themselves. The Australian born population has shown itself remarkably adaptable by progressively accepting many of the cultural values the newcomers have offered this nation, without significant racial antagonisms and tensions which have marred life in some other nations. Migrants themselves have made adjustments in order to adapt to life in their new country.
Because of the Government’s concern to ensure that the changing needs of migrants are met as effectively as possible within the limits of available resources, it decided late in 1977 to commission a review of post-arrival programs and services for migrants under the chairmanship of Mr F. E. Galbally, C.B.E. The Galbally report tabled in May 1978 expressed the view that Australia is at a critical stage in the development of a cohesive, united multicultural nation.
One of the specific findings of the Galbally report was that there was very little information available on multicultural developments in Australia and overseas. Yet there was a need to assist the development of a multicultural society on the basis of skilled research and on lessons to be learned from experience overseas.
Honourable senators will recall that the Minister tabled in the House of Representatives on 7 June 1979 a paper entitled ‘Multiculturalism and its Implications for Immigration Policy’. When tabling the paper the Minister said that it illustrates the number of concepts of multiculturalism which presently exist and canvasses both the good and potentially undesirable effects of some forms of multiculturalism.
The Galbally report recommended that the Commonwealth provide $ 1 .8m over a three-year period to establish an institute of multicultural affairs to provide advice and information on multicultural development and multiculturalism in Australia, including aspects of migrant settlement, ethnicity and the maintenance of the cultural heritages of ethnic groups. This recommendation, in common with all recommendations of the Galbally report, was accepted by the Government.
The purpose of this Bill is to establish the Australian Institute of Multicultural Affairs. One of the first tasks facing the Institute undoubtedly will be to clarify the meaning, limits and implications of ‘multiculturalism’, for it is essential that there be general community understanding of the concept and acceptance of its objectives and implications. The Institute will have a key role in promoting that understanding.
To provide guidance in that difficult task, the broad objectives of the Institute are included within its legislation. These objectives, which embody the principal aims of the policy of multiculturalism, are set out in clause 5 of the Bill. They are; firstly, to develop among the members of the Australian community an awareness of the diverse cultures within that community that have arisen as a result of the migration of people to Australia and an appreciation of the contributions of those cultures to the enrichment of that community; secondly, to promote tolerance, understanding, harmonious relations and mutual esteem among the different cultural groups and ethnic communities in Australia; thirdly, to promote a cohesive Australian society by assisting members of the Australian community to share with one another their diverse cultures within the legal and political structures of that society; and, fourthly, to assist in promoting an environment that affords the members of the different cultural groups and ethnic communities in Australia the opportunity to participate fully in Australian society and achieve their own potential.
The institute will be empowered to discharge this role by: Commissioning and conducting research and studies; furnishing reports to the Minister; making information available to members of the Australian community, and to particular bodies, organisations or groups within that community; conducting promotional and community educational activities; establishing a repository of literature and other material relating to the diverse cultures of members of the Australian community.
In order to carry out its research programs, the institute will draw on expertise in the universities, colleges of advanced education and other educational institutions, community bodies and individuals. This approach will enable best use to be made of scarce skilled resources and will minimise the institute ‘s own staffing needs.
Nevertheless, to be able to commission or conduct appropriate research, the Institute will require a staff of skilled and knowledgeable experts. It will require the capacities to identify needs and priorities for research, to prepare briefs for external researchers and to monitor progress. Importantly, it will need capacity to appraise and use the results of the research programs as a basis for its community education programs and for developing reports and advice to the Minister. Clearly the development of such an expert staff calls for flexibility and a measure of independence. Therefore, the Bill provides for the Institute to engage its own staff. However, coordination of terms and conditions of employment with other Commonwealth Government bodies is provided by the provision in the Bill that Public Service Board approval of terms and conditions of employment is required.
The Government considers it important that the Institute should work to infuse into every level of Australian society a tolerant and enlightened approach to cultural differences and to Australian unity in its diversity. Therefore, it intends that the Institute adopt a practical educational and action-oriented approach. The Institute will consult widely, collect, analyse and disseminate information on ethnic cultures and backgrounds. It will foster the development of special knowledge and skills in this area of intercultural differences and the application of this knowledge to everyday life. It is not to be a negative body merely emphasising differences in pursuing the objective of promoting a cohesive Australian society. It will also be cognizant of the similarities, the common values and the aspects of life in Australia that, irrespective of our ethnic backgrounds, we treasure and want to preserve.
The Government’s view is that the institute should have a major role in providing advice on all aspects of multiculturalism. In addition to advising the Minister on any matters related to the Institute’s functions, it should also be available as a source of information and counsel to government and non-government bodies and to groups within the Australian community. It is expected that the Institute will come to be regarded as a national resource centre on the cultural backgrounds of Australia’s migrant peoples. Advice and assistance will be available from it in situations where cultural differences and the lack of understanding of them are causing or have the potential to cause, serious community problems.
Additional to these three major areas of activity will be an ancillary, but nevertheless significant function of acting as a repository for ethnic and cultural literature and material. Given that the post-war migration program has been operating for over 30 years, it is timely to commence a collection of material which records the culture and backgrounds of the many diverse migrant groups who have made a contribution to the development of Australia over this period, and in earlier times since 1788, before the material becomes lost to posterity. The institute could well act most effectively in this role by recommending methods of collecting and hold ing such material in conjunction with existing collections and museums, as well as advising on an ethnic heritage component in any future national museum for Australia.
To carry out its mission by pursuing this wide range of activities, it is apparent the Institute will have to work closely with a wide variety of key organisations throughout the nation, as well as developing and maintaining international contacts. Because of its likely high public profile as a national resource and advisory centre the Institute will need to develop and demonstrate considerable expertise in a complex environment. At the Commonwealth level, the Institute will need to work closely with the Department of Immigration and Ethnic Affairs and with advisory bodies, such as the Australian Ethnic Affairs Council, and with a number of other Commonwealth Departments of State.
Honourable senators will note that the provisions of the Bill have given the Institute of Multicultural Affairs wide powers to carry out its functions. However, the Institute will not overlap the functions of the Department of Aboriginal Affairs or of the Australian Institute of Aboriginal studies. That Institute’s role is directed towards research and study in relation to the Aboriginal people of Australia, whereas the Institute of Multicultural Affairs will be concerned with undertaking research and studies primarily directed towards the awareness of, and understanding of, non-aboriginal cultures and the promotion of harmonious relationships among all elements of our community. Nevertheless, the concept of multiculturalism does embrace all cultures in a nation and the Aboriginal people are an integral part of the Australian multicultural society. Indeed, when considered from an international standpoint, it is imperative that the Aboriginals be included within the total framework of Australia’s multicultural policies. Therefore, while the Institute will not direct its research programs into Aboriginal issues, it is clear that a close co-operative working relationship with the various organisations involved in Aboriginal issues will be highly desirable, and that joint programs and projects, particularly in community education, could well eventuate from such relationships.
In addition, the Institute will undoubtedly develop and maintain contacts and co-ordinate its activities with a wide range of other organisations, both in the Government and private sector. The Institute will be assisted in this task of communication and contact with organisations by the general membership of the Institute. The Government believes the Institute is a new development with immense potential to benefit all Australians in the continued development of a cohesive, multicultural society, a goal which we in the Government believe all members of this Parliament will agree is worth striving for.
I now turn to some of the specific provisions relating to the structure and management of the Institute. Clause 10 provides that the Institute consist of a governing council and a general membership of not more than 100 members appointed by the Minister. When appointing members of the Institute, the Minister will be required to consult with the council. Institute members will comprise people experienced in multicultural matters drawn from a wide range of backgrounds and expertise. They will provide a source of advice to the council on specific topics and act as channels of contact between the council and the general community. The council of the Institute will be responsible for the conduct and control of the affairs of the Institute. It will consist of a chairman, the director of the Institute, the Secretary to the Department of Immigration and Ethnic Affairs and not fewer than three, or more than six, other members appointed by the Governor-General.
Under clause 1 8 the council will be obliged to comply with any directions given to it by the Minister in writing and to have regard to such policies of the Government as are communicated to the council by the Minister. The council will be required under clause 49 to set out in its annual report all directions given to it by the Minister and policy communications referred to it by the Minister. Under the Bill the affairs of the Institute are to be managed by a director appointed as a statutory officer who will be the executive member of the council. He will be required to act in accordance with any directions given to him by the council.
I commend the Bill to the Senate as a most important step in building the type of society we want the Australia of the future to be. I am sure all senators support the determination to promote a cohesive Australian society- a society knowledgeable about and tolerant of its own ethnic diversity; an Australian nation in which all members have, whatever their origin, equal opportunity to achieve their full potential within its legal and political structures.
Debate (on motion by Senator Walsh) adjourned.
Debate resumed from 8 November, on motion by Senator Durack:
That the Bills be now read a second time.
Upon which Senator Evans had moved by way of an amendment:
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. ‘ (Quorum formed).
-In my notable speech to the Senate last Thursday on the Human Rights Commission Bill 1979 and the Racial Discrimination Amendment Bill 1979-1 will be concluding my speech with only a few short remarks- I pointed out the basis of my grave misgivings concerning the Government’s good faith even in presenting this human rights legislation to this Parliament. I remarked that, on the face of it, it appeared to be in harmony with the movement to secure human rights which had swept the world, particularly after the Second World War in reaction to the excesses of the totalitarian regimes in Germany and Japan. I noted that the movement had embraced countries as diverse as the democracies of Western Europe and the totalitarian dictatorships of the proletariat of Eastern Europe and that in all cases the International Covenant on Civil and Political Rights had served as a criterion by which government action in this field could be judged. I think that on Thursday I indicated to the Senate why it was unfortunate that the Australian Government had not proceeded beyond that Covenant as the basis for the work of the Human Rights Commission as outlined in this Bill. The reasons for my misgivings can be very quickly indicated by a brief glance at some provisions of that Covenant. Article 1 9 states:
Nevertheless, one finds certain riders, certain exceptions, such as the provision that the right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary for the protection of national security or of public order, public health or morals. The International Covenant on Civil and Political Rights being, as it is, the product of consultations between governments and bearing none of the marks of having been generated in a crucible of conflict between the oppressed and a government of totalitarian complexion or the marks which characterise the United States Bill of Rights, for example, which did emerge from people who felt themselves to be oppressed, it is not surprising that the so-called rights said to be secured are, in fact, constantly modified and eaten away by exceptions in favour of government regulation on grounds as vague as public health or morals. Given the fact that the Government is not attempting to reach into the States’ sphere, is not attempting to use any special constitutional power, such as the external affairs power, in order to reach into State jurisdictions, which is where most breaches of human rights in Australia occur, it is unfortunate that the Government did not take the opportunity to set itself the very difficult task of defining for its own laws and territories those human rights which ought to be secured without the sort of modifications and reservations which are expressed in the International Covenant which is taken now as the document of criteria of the Human Rights Commission.
To say that the Bill does not attempt to reach into State jurisdictions is immediately to point to one of its two fundamental weaknesses. The International Covenant, in Article 50, demands of parties to it that the Covenant be applied throughout a federal system. That Article of the Covenant is being ignored in this Bill, which purports to implement the Covenant throughout Australia. I am sure that Senator Hamer would be interested in that point. It is a fact, as has been pointed out by honourable senators, that most violations of human rights- perhaps up to 95 per cent, according to documents circulated by Senator Missen- occur within State jurisdictions and have to do with freedom of assembly, freedom of speech, the rights that one has when a criminal investigation is carried out by the police, and that type of situation. That is one fundamental weakness of the Bill and the reason why the Opposition is quite unhappy with it.
The second weakness, as I have pointed out, is that there are no judicially enforceable remedies to secure the rights- -ubi jus, ibi remedium; where there is a right there is a remedy. Chief Justice Holt, who at the age of 23 years ascended to the bench and who was on the bench for 42 years, very strongly opposed the persecution of witches and very strongly tried to modify the effects of those laws which required compulsory attendance in certain churches and denied rights to members of other, even Christian, communions. He was a man who nevertheless was very hard on sedition and treason. In other words, he was not a woolly-minded academic, but a practical working judge who understood the rule of law and what the common law requires, namely, that if a right is to be a right and not merely a privilege enjoyed with the consent and even at the whim of the majority for the time being, then it needs to be judicially enforceable, that there needs to be a remedy given; and that there needs to be a capacity in the courts, once a breach of the right is found to have occurred, to grant an injunction to restrain further breaches of that right, to give directions to enable the person whose right has been infringed to be put as far as possible in the position that he ought to have been in had the right been secure. For example, the human rights legislation which was introduced by the then Senator Murphy went further with certain judicial and effective remedies, such as preventing evidence obtained in contravention of a Bill of Rights being effectively used in a court. That is a very salutory way of ensuring that in the course of a criminal investigation the police do not abuse the human rights of those who are involved in the investigation.
It is because the Bill does not reach into State jurisdiction which is where it needs to reach if it is to do most good for the Australian people and indeed which the Covenant demands of this Government, that we oppose the Bill. Is it because that demand will not be fulfilled that the Covenant has not been ratified? This is a further point which I made last Thursday. The Government has had ample opportunity and has vaguely indicated in a subsidiary amendment which was circulated late last Thursday that, at least on a superficial reading of it, it might be about to ratify the Covenant. Why have we not in this chamber had a token of good faith from the Government before the presentation of this Bill whereby it says to the world community: We will be bound by the International Covenant on Political and Civil Rights’. It is amazing that on the very day that this Bill was introduced, Senator Wheeldon, on behalf of an Australian parliamentary committee, was able to criticise the breach of human rights within the Soviet Union which his committee, the Joint Committee on Foreign Affairs and Defence, concluded had occurred. He was able to do that because the Union of Soviet Socialist Republics had gone into the world community at Helsinki and said: ‘We will be internationally bound. We see it as a matter of international and legitimate concern that we secure and respect the human rights of persons within the USSR’. This worldwide movement has reached the stage where the totalitarian dictatorship felt obliged to go into the international community and make that concession. Why has the Australian Government not gone into the world community and bound itself internationally to the observance of the human rights which it has given the Commission by this Bill as the criterion for its operation?
I do not want to traverse all the ground that I dealt with last week. I might perhaps say for completeness of this part of the Hansard record that I believe that Senator Puplick and Senator Missen, in their remarks on the judicial enforceability of a Bill of Rights, were directing their remarks only to the need, with which I agree, to have a list of human rights which is sufficiently precise, comprehensive and free of ambiguity that it amounts to a direction by the elected representatives of the people to the courts that these are the rights to be secured. It ought not to be left to the courts to have the freedom to interpret very widely and vaguely drawn expressions of human rights which might be compatible with some philosophical treatise expressing the yearnings of the human spirit that were dwelt on by Senator Puplick for the greater part of his speech. What we need is an Australian government, or an Australian parliament, which is prepared to say that we are the elected representatives of the people and that these are the rights which ought to be secured, as appropriate to the Australian context. A non-elected bench of justices, an impartial body, should then have the task of enforcing them by means of directions, injunctions, disallowing of evidence and so on. If that were the case we would have human rights legislation which would receive the full support of this side of the chamber.
There are various other matters with which I will deal briefly to enable other honourable senators to speak on this important legislation. I am rather disappointed that the Commission, whose integrity and impartiality is beyond reproach, is to report to the Minister and thence to the Parliament 15 sitting days later. I thought that the elected representatives should be in some way made more responsible for securing any particular human right which is said by the Human Rights Commission to have been violated. It is true that the tabling of the report in the 1 5 sitting days after it is received by the Minister will be a tremendous aid to the securing of the human right concerned but there are people, corporations and institutions which may well find it beneficial to ignore whatever public abuse may be piled on their heads by honourable senators or parliamentarians from the other place as a result of reading that report. Nevertheless, they may be obdurate and give no relief to the person whose human right is said to have been violated, as reported on by the Commission.
In that situation it might have been thought that if it were framed with enough precision, the finding of the Commission ought to have force to the effect that until the Parliament voted to affirm the violation of the right then, there being an inconsistency between a human right and the action of, for example, some government department, the relevant law upon which the government department was relying ought to have no force or effect whatsoever as against the person whose right is said to have been violated. The Parliament should be forced to make a declaration that the action of the department concerned should continue or should be effective notwithstanding the inconsistency with the human right which has been violated. I may not be expressing that according to a formula which would find ready translation into the Bill.
– Are you saying that if the Commission says the law infringes the covenant it should automatically be not operative?
– Yes. I am saying that the elected representatives, on the tabling of that report, ought to be faced with the difficult decision of either affirming the law or saying that, an inconsistency with a human right having been revealed, it ought not to operate. In other words, the tabling ought to lead to a decision by the elected representatives as to which will prevailthe law which authorises the action or the human right of the person concerned.
Another matter is the provision for aid to enable people to press their case before the Commission. I could not see that this was covered in the Bill. I recall that in the then Senator Murphy’s Bill, in the sections dealing with the right to a fair trial, amongst other things it was provided that proper financial support be provided to enable a person to secure his right to a fair trial; in other words, the ability to finance an appearance before the Commission and to establish the breach of a human right is as important as the human right said to have been breached. There is an old saying, ‘Guilty until proved wealthy’. That was met in the Labor Party program of 1972 by the establishment of the Australian Legal Aid Organisation. Some such equivalent phrase might be thought to be operative here. All I am saying is that in order to secure the human rights with which this Bill is concerned, it may be necessary to provide financial support for those who wish to appear before the Commission and to fight for the right to be recognised.
I wish now to refer to clause 15 of the Bill, to which I think Senator Puplick drew attention. Under clause 1 5 of the Bill there is the situation that conclusive certificates of the Minister are to have effect. This covers situations where the Commission has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relevant to a matter under examination or inquiry under the Act. Clause 15 (2) states:
Where the Attorney-General furnishes to the Commission a certificate certifying that the disclosure of information concerning a specified matter … or the disclosure of the contents of any documents would be contrary to the public interest -
There is then reference to four reasons- then … a member is not entitled to require a person to furnish any information concerning the matter, to answer questions concerning the matter or to produce those documents.
I will not go into the full details of that clause; there will be an opportunity to do that at the Committee stage. What it does is to rely on an understanding of the law, which was perhaps excusable even at the time of the drafting of this Bill and of the Freedom of Information Bill; namely, an understanding as to the almost sacrosanct character of the conclusive certificate issued by the Executive such as would prevent an independent, impartial body such as a court or commission from inquiring into the reasons which might have led the Executive to decide to withhold a particular document from that court or commission. In the case of Sankey v. Whitlam that particular theory was subject to a large degree of modification. In the freedom of information report recently tabled by the Senate Committee on Constitutional and Legal Affairs, in relation to clauses which were of similar structure in that they simply relied on conclusive certificates of the Executive to prevent documents being obtained under the Freedom of Information Bill, it was decided by the Committee that nevertheless reasons for non-disclosure need to be given to an impartial tribunal so that it can decide on the relative strength of the claims made by the Executive for non-disclosure as against, in that case, the need for a full disclosure in accordance with freedom of information philosophy; in other words, let an independent tribunal judge where the public interest lies. In the case of clause 15, I think one need to go no further than to ask the Government, as representd here by the Attorney-General (Senator Durack), not to proceed with this clause until it has come to a publicly announced response to the findings and recommendations of the Senate Committee in relation to freedom of information.
– In this particular clause there is another odd type of almost conclusive certificate brought into it; something quite new.
– That is right. The clause is totally drafted on an understanding of the law, we might say prior to 12 months ago. It is a view of the relationship between the Executive and independent tribunals which has been challenged at the highest level of the judiciary of this country, namely, the High Court of Australia, and at the highest political level in this country, namely, a Senate standing committee. Therefore, in the face of these indications of opinion by the other two arms of government, namely, the judiciary and the Parliament, indicating that the balance of power between the Executive and members of the public needs to be altered in favour of the member of the public or at least that an impartial tribunal should make the judgment and not the Executive by way of a conclusive certificate the Government ought to withdraw clause 15 of the Bill.
The Bill is unsatisfactory for the reasons that I have outlined. It goes no further than a cosmetic fulfilling of the Government’s election promise to secure human rights within Australia. The Government is nowhere near as definite in its fulfilment of its international obligations as would be a Labor Government if it were in a position to introduce such legislation into the Parliament. The Leader of the Opposition, Mr Hayden, has made it abundantly clear, as indeed does the Australian Labor Party’s platform adopted recently at its 33rd national conference in Adelaide, that we would produce and introduce into the Australian Parliament a Bill of rights which would be effective and would reach into the whole of each Australian jurisdiction in which rights might be violated. In other words, it would regard, as I think Senator Puplick put most eloquently, rights as being an inherent attribute of being fortunate to the resident within the Australian democracy and that State boundaries and State jurisdictions and the accident of birth and the accident of residence should play no part in the question of whether an Australian resident is entitled to vindication in an impartial court of his rights. Both those elements are important to any Australian Labor Party view on the protection of human rights in Australia. Human rights should reach into all State jurisdictions and should be judicially enforceable. Because this Bill fails lamentably to meet those requirements which are the only requirements which will secure human rights in Australia, the Opposition maintains its total opposition to the Bill as introduced.
– I join the debate on the Human Rights Commission Bill 1 979 and the Racial Discrimination Amendment Bill 1979. It is always easy to criticise and, in the tenor of the present debate, to criticise indiscriminately without providing an alternative to what we seek to destroy. Whilst I see the need for a human rights Act, I feel that the Government, if it is not prepared to accept its responsibilities and to carry out in full the provisions of the United Nations International Covenant on Civil and Political Rights, is just whistling in the dark. The Government will perhaps accomplish with the Bill in its present form another toothless tiger such as the Racial Discrimination Act 1975. As we know, that Act, which was passed by the Federal Parliament, can be and has been ignored and, in some cases, has been held up to ridicule by people throughout the length and breadth of this nation but particularly by people in my State of Queensland.
Let me give a classic example. The help of the Commissioner for Community Relations was sought some time ago by members of an Aboriginal group in north Queensland who wanted to purchase a large cattle property through the Aboriginal Land Fund. The Premier of
Queensland and his Ministers were able to prevent that from happening purely and simply on the ground that the people involved were Aborigines. When the Commissioner tried to intervene and bring the parties together he was quite firmly told that neither the Ministers nor the Premier would entertain the idea of even talking with the Commissioner whose responsibility it was under the terms of that Act to try in the first place to arbitrate, conciliate or bring the parties together. The Ministers were not even prepared to do that. Of course, it is no wonder that the Act, as I said, is a toothless tiger. The Commissioner has no powers to prosecute anyone who offends against the Act. People can break the provisions of the Act or do what they like, but all the Commissioner can do issue a certificate which states that the person who has been offended against can prosecute. In most of these cases, particularly where racial discrimination or breaches of human rights occur, it is the most unfortunate people, economically, educationally and in other ways, who would not have the wherewithal to be able to carry out that kind of prosecution.
At this stage, I congratulate the honourable Al Grassby for the manner in which he has performed the duties of Commissioner for Community Relations. I believe that he has promoted cultural and racial awareness, throughout the nation. I believe that what he has achieved is most creditable when one considers the blunt tools he was given to operate with in the first place. As I have already said, he was working under the terms of this Act which I claim again is a toothless tiger. Whilst I support the broad concept of this Bill, it requires, in my opinion, quite a number of amendments before it will achieve what appears to be the goal of the Government. I will discuss these matters later on.
If this Government is to establish the necessary machinery to enforce the human rights of people in our nation, it must be, I believe, forthright and incorporate the very spirit of the International Covenant, and not merely enact some milk-sop legislation as we see now which pays only lip service to the principles. Unfortunately, as the Bill stands now it is merely windowdressing. It will not deceive neighbouring developing nations whose lack of human rights we in this country too freely, too often and too quickly criticise. Yet we are not prepared really to grab the bit in our teeth and do the job as I believe it should be done.
If the Government cannot set up a commission which will have the necessary teeth to ensure human rights, the proposed Human Rights Commission will be just another useless bureaucracy. Heaven help us all; we certainly have enough of them. I believe that the very essence of human rights is, in the final analysis, the understanding of another’s point of view and the awareness of another’s culture and customs. It is typified in our much vaunted Australian saying of giving a fair go. I suppose that that is what human rights are all about- giving a fair go. I believe that this will not be achieved by this Bill.
Whilst I will support the Bill with certain amendments, in truth I would rather see the money being spent in a different way altogether. I would like to see it spent in setting up some kind of an education program so that our young people could be educated to understand other people’s cultures. I have always subscribed to the principle that only through knowledge will come understanding. Therefore, as I said, this Government should move to promote greater racial, cultural and ethnic awareness throughout the nation. To achieve that, as I said before, I would rather see the money spent in helping to educate people- not only children but all people. I would envisage racial and cultural programs at schools to develop in our young people an awareness of the richness of the cultures of minority groups which presently make up our nation. We are becoming a multiracial society because people are coming here from all parts of the world.
I believe that racial stability and cultural understanding cannot be enforced, but they can be taught. We can be taught to appreciate the cultures of other people. We can do that through a learning process which will impart the necessary knowledge to all people, particularly the young. Perhaps it would be a little more difficult to teach the older generations of Australians because we are too set in our ways now and the prejudices we feel are too deep in our minds and hearts. But I believe that we can help to change the attitudes of our younger people, our children, through a program of education in the schoolsthe primary and secondary schools, even going on to the tertiary institutions- to impart a greater knowledge and understanding of other peoples. That would be a way of overcoming some of the racial prejudices which exist and the lack of human rights in certain areas.
The greatest weakness in the Bill, as I said earlier, is that it does not ratify the International Covenant on Civil and Political rights of 1966. We are told that Australia has signed that Covenant but has not yet ratified it, although we are told it will be ratified soon. In the Bill, the functions of the Commission are severely limited, as I said earlier. The Bill provides no real machinery to investigate the great majority of violations of human rights in Australia. I believe that the weakness is in the narrowness of the scope of the Commission, limiting its activities to investigating acts done or practices engaged in by the Commonwealth or under legislation of the Commonwealth. I believe that that provision emasculates the proposed Commission because, as has been said here time and time again, most breaches of human rights occur under State laws. That is in conflict with Article 50 of the Covenant- I think Senator Tate mentioned this in the course of his contribution to the debatewhich states:
The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.
Of course, that will not happen under this Bill. I believe that the areas which will fall within the province of the Commonwealth will be negligible, as presently State laws cover most of the areas in which breaches of human rights and discrimination occur. From my reading of the Bill, the Commission will have no power to initiate reports when human rights violations occur; it will have to await a request by the Minister. I believe that the Commission should have the power to move on its own initiative and to instigate such reports, rather than it having to wait for instructions from the Minister.
I believe that the requirements under clause 10 (4) (f) that a complainant must have sufficient interest in the subject matter of a complaint to initiate that complaint will preclude complaints being made by human rights organisations throughout the country, such as Amnesty International. Again, I believe that requirement is unnecessarily restrictive. It should not be necessary for a person or body to establish sufficient interest when breaches of human rights are involved. Clause 1 1 makes provision for the Minister to arrange with a Minister of a State or the Northern Territory to perform Commonwealth functions or functions of the proposed Commission relating to the promotion and observance of human rights. That would permit the proposed Commission and/or the Commissioner for Community Relations to be bypassed. It would allow the States to carry out investigations of complaints whereas the Commissioner for Community Relations has been able to do that.
I believe that a situation could arise in which the ministry could arrange for the Queensland Government authorities to investigate Aboriginal complaints in my State. That would be rather ludicrous because it is under State laws, particularly in my State, that most of the discrimination against Aboriginal people occurs. In lots of cases in my State it occurs as a result of the discriminatory provisions of the Queensland Government’s Acts and policies, particularly under the Aborigines and Torres Strait Islanders Acts. Clause 1 1 says also that such arrangements between the Minister of the Commonwealth and the respective State Ministers can provide for such incidental or supplementary provisions as they think necessary to apply. Those arrangements could be varied at will and would need only to be gazetted. Because of that, they would not be subject to tabling in, or variation or disallowance by, this Parliament. Such a power could have very wide implications and, I believe, is extremely dangerous.
Clause 12, which will enable the Commission to act informally and not be bound by the formal rules of evidence, in itself is quite good, but I believe it should go further and allow for complainants to be protected in certain areas or cases in which they could suffer victimisation. Clause 15, which provides for conclusive certification which the Attorney-General may sign to deny the Commission access to documents on a number of grounds, I believe in itself is another dangerous area. It seems to pre-empt the report of the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978. That clause, as well as clause 34, which is a secrecy provision, should be deleted from the Bill until the laws governing disclosure of government information are settled.
Clause 16 does not provide the Commission with enforcement powers by way of legal action when all avenues of conciliation have failed. What is the use of bringing people together and trying to conciliate and arbitrate when if the people concerned go ahead and blatantly break the law, offend against the Act, that is the end of it and no other course of action can be taken? I believe that such a provision is completely unacceptable if we are to have fair dinkum legislation in relation to human rights and racial discrimination. The Attorney-General (Senator Durack) remarked in his second reading speech that the Commission would not need enforcement powers of the type vested in the courts and that sanctions of a legal kind ‘may even provide antagonism ‘-antagonism, mind you- ‘rather than a spirit of co-operation which is so central in matters of reciprocal rights and obligations’. I find that pretty difficult to understand. The Attorney-General said that it may invoke antagonism. My God! If someone is being discriminated against, if someone is suffering because of a denial of human rights, and he takes strong steps against the person concerned, he will antagonise that person! What about the poor fellow who is discriminated against? What about the person who is suffering because of denial of human rights? If someone is really suffering and understands what it means to be discriminated against, with all the degradation that it can cause, he would not care about antagonising somebody. All he wants to do is to be free from that kind of attitude, that kind of discrimination and that kind of oppression. That is all he wants. He will not worry about whether he antagonises somebody, because that is not what the law is for. That is why I believe we should have legislation which gives power to prevent people continuing this kind of oppression.
I believe strongly that the proposition that publicity will be a deterrent is erroneous, as there are some people and organisations to which the publicity, rather than being considered damaging, could be welcome. The more publicity that the Ku Klux Klan has the better it likes it. The Nazi party, whose members strut around wearing armbands, seeks publicity. There are many other ratbag organisations which flout all the principles of human rights. I do not think a little publicity will deter them in any way. I believe that in both these pieces of legislation there should be provision for prosecutions for breaches of human rights, regardless of the kind of discrimination there may be against a person or persons.
I also criticise as being too restrictive the provision that only a judge, a barrister or a solicitor can be appointed as the Commission’s chairman. There are many community leaders without legal qualifications who would be well suited to take on the responsibility of chairman. I have already mentioned one person who would be quite capable of doing the job. I refer to the Honourable Al Grassby who has had experience for the last four years as Commissioner for Community Relations.
– Oh, no!
– I mean it. I have seen the work that the man has done. I have had cases before him- cases that he has handled very well. I have said time and time again that in relation to stamping out discrimination the Racial Discrimination Act of 1975 has always seemed to me to be a toothless tiger as I have always felt that in most instances discrimination is a state of mind, an inherent belief, which can be eliminated only by reason, greater knowledge, tolerance and understanding. I do not think that we can really force people to change. We can stop them from doing something for a time, but we cannot change their attitudes or their state of mind.
I am confining most of my remarks to the racial discrimination aspects of these two Bills. As I have said time and time again, there is no power in them to stop people committing the kinds of stupid acts committed by a man such as John Singleton. He wrote an article for the Bulletin in which he criticised and insulted people time and time again. He wrote that he visited communities. He made all sorts of derogatory statements about not just one person but also whole communities. He criticised the Yarrabah community, the Bloomfield River Mission, the Hope Vale community, Bamaga, Weipa and so on. What can the Commissioner for Community Relations do about some of the remarks he made about people? He can probably talk to this chap, find out why he did it and then say: ‘Naughty, naughty, do not do it again’. I am disgusted that this man can get away with this. I have always felt that the Bulletin is a good publication- I read it myself- but I do not know how it could allow somebody to publish such an article which says so many things about so many Aboriginal people.
I believe that this legislation will be watered down and will be worse than it was previously. I say that because I disagree with the amendments to the Racial Discrimination Act which will bring the Commissioner for Community Relations under the new Commission. He will not be a member of it. It will be an entirely new commission to which he will be responsible. He will have no way of doing things on his own behalf, as he has been doing by travelling around the country and setting up in different towns voluntary organisations of groups of people who are interested in looking into acts of racial discrimination. All that will go because now he will come under the umbrella of this new Commission. I believe that the Government is not being fair dinkum in this respect. Because I believe that something is better than nothing, I support the Bill in principle, but I will also be supporting some of the amendments that my colleague Senator Missen will be moving. I will also certainly be supporting the amendment containing what are called sunset provisions which will be moved by another colleague.
– The Senate, in debating the issues of racial discrimination and human rights, is really beginning to concern itself about democracy and about the interpretation of democracy as it is applied. We, of course, claim to be a democracy. The word itself needs quite a degree of analysis to see whether in fact our understanding of it is acceptable, because clearly democracy means different things to different people, to different groups and certainly different parties and to different governments. Consequently, if we were to follow through that thinking we could probably come to some interesting conclusions, particularly in relation to what Senator Bonner has just said about how those who are discriminated against would see what democracy is really about. It is because of the deficiencies in democracy, as we practice it, that government, responding to some degree of public pressure and demand, has the need to introduce legislation that would extend the principles of democracy and make it a much more meaningful form by which society shall function.
I am sure that the concept of democracy of the Premier of Queensland, Mr Bjelke-Petersen, would differ from the concept of democracy of Senator Bonner. I believe that the concept of democracy of Senator Missen would differ fundamentally from the concepts of democracy of even members of his own party. I find that I have a broader concept of what democracy is about than some members of my own party. If we apply the yardstick of what democracy is really about, we need to analyse society itself to see whether in a democratic society power is shared and whether there is a means by which citizens can feel that they participate in the affairs of society and of government, whether it be in the form of representative democracy or participatory democracy. We need to analyse the role that a Lang Hancock has in democracy, as defined in this country, and compare it with the roles of a black or migrant woman or the roles of other disadvantaged groups. Senator Bonner referred to an article in the Bulletin written by John Singleton. I would say that John Singleton is a person whose concepts of democracy would differ from mine.
Sitting suspended from 6.1 to 8 p.m.
– f Quorum formed). Before the dinner break I was speaking about the need to see these pieces of legislation in the context of democracy within our country and the fact that we had to introduce such legislation being an indication of some of the deficiencies within our society. The demand for legislation to deal with racial discrimination and human rights is synonymous with demands that are being made in many countries in the world. I believe that we should analyse why this is so. The yardstick that has been applied in almost every country is that there should be a respect for human rights. That movement is perhaps one of the unique developments of the last decade or so. It has been elevated to a much more important principle as far as the rights of citizens are concerned.
As previous speakers have indicated, this movement has found expression in the Helsinki Accords and in various steps taken by other countries, for instance, at the Bandung Conference. One can go back in time and recall the Bill of Rights and the United Nations Covenants, all of which embodied the concept of the rights of the individual. Despite all of those pronouncements of the past by various countries there is still need to examine human rights more closely and to legislate in order to guarantee them.
Democracy requires respect for human rights, as it requires acceptance of the rule of law. If we analyse democracy a little further we see that it also demands a society of equality, of a degree of equity for all of its citizens. It requires, too, a degree of tolerance that is not readily found throughout the world, and certainly not in our own country. It requires that we recognise the right of dissent, the right of minorities to exist. The fact that we have to legislate to that end is something of an indictment of those who merely speak of democracy in parrot fashion. We have seen growing evidence of the emergence of a concept which is rooted in the principle that the majority is always right. One is reminded of the oft-used phrase, the tyranny of the majority, the situation in which the majority rides rough-shod over the rights of the minority. We see that happening in Parliament itself. So when we speak of human rights we must examine a wider application than merely the rights of an individual. Individuals come together and then, collectively, their rights are affected by the way in which society operates, the way in which parliament operates, the way in which organisations operate, when the rights of individuals are neither clearly denned nor respected. If one examines the role of the Senate, of the Parliament itself- and one could probably include the State parliamentsone sees a growing example of the tyranny of the majority. I suppose that is why people such as Mr Killen and Senator Puplick in recent times have pointed out how fragile is our democracy, how the scars remain after certain events. I refer to the occasion on 1 1 November 1975 when the act of one man, coupled with those of a few others, was able to make a great impact upon the political life of this country.
I suppose that what this legislation is really about is the effort to create in our country conditions that will diffuse power at the top and develop it more strongly at the lower levels of our society. At present it operates against individuals. The rules, traditions and processes of our society operate against the rights of the individual, against minority groups in the community. That is why earlier I referred to the discrimination that existed and the power that, because of the way in which our society is structured, flowed from that discrimination. One cannot say that we live in a democracy or equal society when, for example, even in the reporting of the debates of the Parliament, one person sitting up in the Press Gallery can be said to have a lot more power than one who sits at the table itself, inasmuch as what the former decides to report plays a part in disseminating what is said in this place. Obviously, more power resides in that area. How much more is this true of those who stand behind the one or two journalists who may sit in the Press boxes reporting the affairs of the Parliament and its debates. It is epitomised even more in the power that is concentrated in the media of this country. We witness a concentration of power not only in the newspapers but also in the radio and television stations, a power that spills over into sections of our manufacturing and mining industries.
Therefore, one cannot say that a black, a migrant or a disadvantaged person has the same rights as has a Lang Hancock, a Fairfax, a Murdoch, a Norman Young or many of the others in places of high importance in the industrial and commercial centres of our society. Even if we look at the way in which the Parliament operates, we can ask what right, really, does a back bencher of a government have in the parliamentary sense in respect of the Executivemembers of his own Party- when compared with the power that a John Stone, for example, wields in the Treasury. Much more power is centred in the hands of those who occupy such important positions in the bureaucracy itself. There is a need to recognise the deficiencies that exist in the society and the need for some public debate, some legislative action, and some better understanding within the community about the power disposition, the power discrimination and the inequality that that brings to the average person in the Australian community. It is small wonder that we have this phenomenon, as I suggest we do have, of a great deal of alienation within our society with people who are not even part of a process by which they can make an impact on the decision-making areas of our society. Of course, they have very little opportunity to have their views heard in the places where decisions have to be made. We know only too well how limited our power is within the Parliament itself, particularly within the constraints which are imposed upon us as members of political parties.
So there would be no question that we have a very long way to go in really applying the fundamental principles of democracy and of overcoming all the inequalities that exist within our society, of providing a basis by which minority views are heard, listened to, and often understood and acted upon, a basis on which we set ourselves the objective of building a much more tolerant sort of society. I am not suggesting that Australia is any different from any other country, because I think what we have witnessed in recent times is this tremendous world movement towards human rights and against discrimination, and the struggle of the Third World countries to be recognised in the same way as other countries, the realisation that the superpowers should not have the sort of powers that they have to make decisions over life and death, peace and war. So we have a long way to go if we are going to bring about properly a well ordered society in our own country and on a world scale.
The Government has of recent times taken a very public and, I believe, a very pious stand on human rights. One could give many instances of its different attitudes and double standards in this matter. The Prime Minister (Mr Fraser) and the Minister for Foreign Affairs (Mr Peacock) trip all around the world, Mr Fraser at Lusaka and Mr Peacock at the United Nations, preaching the cause of human rights. That is very laudable. It is a very good objective that we should put our case for human rights, wherever we may be. But we must be concerned about the human rights of people wherever they are- not only a lack of human rights in Czechoslovakia or Kampuchea, but also in Timor. I find it quite hypocritical of some members of the Government parties whose prinicipal interest is to concern themselves with human rights in one particular group of countries and not concern themselves about human rights in other countries. Like peace, human rights are indivisible. One cannot have in one’s own country a standard that one cannot apply on a world wide scale, and it is those sorts of philosophies that prompt the Labor Party from time to time to take the Government to task about its inability to solve the problem ‘s of Aborigines in our two way-out States of Western Australia and Queensland. It is the Governments posturing on these matters on the domestic scene that causes many people to make the obvious comment that this posturing smacks of some hypocrisy.
How can our Government talk about human rights and preach human rights to other countries when we have such a blatant abuse of human rights in our own country. I can give instances of this. I can remember Senator Murphy, when he was Attorney-General, contemplating this type of legislation in the early days of the Whitlam Administration. We were at a convention at Parliament House in Sydney concerned with the Constitution. While we were there we met a deputation of Aborigines. They put it to Senator Murphy and me that we should come down on a Friday night to have a look at what happens in the pubs around Redfern, and that they should show us exactly how the law operates in terms of discrimination against the human rights of blacks. We saw with our own eyes that at 10 o’clock, when the pub closed, it was the whites who walked away just as much under the influence of alcohol, but it was the blacks who were arrested and charged with being under the influence. Despite the fact that the law stated that every person who is in that state of alcoholism is liable to be arrested and charged, it was not the whites who were taken but, rather, the blacks.
Of course, we know that this form of discrimination which takes place within the States themselves has been a running sore for a considerable number of years. The treatment of Aborigines in Australia for many years- for the 200 years that we have been on this continent- has been a national disgrace. We are still not satisfied with the way in which this Government has approached the problem in Queensland, particularly in relation to Aurukun and Mornington Island, or that the rights of the Aborigines there have been properly recognised and the obligations of the Federal Government accepted. They have been denied the basic rights of selfmanagement and self-government. That is because the Government has not been prepared to take on the Queensland Government whose attitude towards Aborigines is one to be deplored. One does not need to labour that point, because we are aware that even within the Government there is concern about this. From Senator Bonner’s contribution this afternoon we know the extent to which police persecute Aborigines in Western Australia. We know how electoral laws in Western Australia are designed principally to discriminate against Aborigines. It was the substance of a notice of motion by my colleague today. It is a form of discrimination, and yet this legislation does nothing to overcome the obstinacy and the refusal of State governments to come into line on the question of human rights and against racial discrimination.
We can give many examples of this. I remember the first occasion, when I was the President of a shire which had to make a moral decision whether the beach at North Cronulla should be available to a South African surf lifesaving club. I was part of the decision that was made by the Sutherland Council at the time to deny the members of the club the use of the beach on the basis that their country practised apartheid. There was conservative criticism in this Parliament about the decision that that council took. It was the first such decision taken by a public body in this country. Subsequently we have seen this Government move to a position where it takes the view that there should be no relationship with governments that practise that type of violation of human rights. This is something that has happened only in the last dozen or so years. So while the Opposition recognises the tentative step that this Government has taken in this legislation, we nevertheless feel that it is purely a first step in a very long march towards an understanding of human rights and ending racial discrimination. I am one who appreciates the fact that we have senators such as Senator Missen, Senator Puplick and Senator Bonner, and I would hope Senator Hamer who will follow me in this debate, and maybe one or two other senators, who will take that extraordinary step that is necessary to strengthen the legislation and to make it just that little bit more effective.
I appreciate that that is not an easy decision for honourable senators to make. When we have an autocratic Prime Minister and when we know that the party makes decisions, it takes some courage for members to decide to support amendments. However, I suppose I am a little sad that whilst the honourable senators of whom I have spoken have made their effective criticism- in particular a couple of honourable senators who spoke earlier in the debate have been very critical of the Attorney-General (Senator Durack) and Mr Ellicott about their attitudes- nevertheless they have decided to support the Bill. At least they are going to support amendments and I suppose we should be thankful for small mercies. We appreciate that we have a very conservative wing in the Liberal Party and that there are not a great number of its members who are really liberal.
It is because we are unhappy with the Bill that we are taking a critical stance. It is but a pale shadow of the legislation that we introduced in 1973. This legislation has very few supporters in the Australian community. This is because of the deficiencies that are recognised in the legislation. The legislation has been criticised from all sides. One would have thought that the Government would have taken steps to strengthen the legislation, particularly on the basis of its own party critics. Complaints have come from civil liberty groups, employer groups, church groups, the United Nations Association of Australia, trade unions, a number of important citizens in our community and people in the legal fraternity who know what discrimination means because they have to deal with the rough side of discrimination almost every day in the law courts.
A close look at this Bill reveals that the proposed Commission will have little practical power to guarantee human rights or to ensure that existing laws are brought into line with the International Covenant on Civil and Political Rights which the Australian Government is on record as saying that it proposes to ratify this year. I know there is a school of thought that suggests that the Commonwealth has limited powers in this area. I suggest that that is a school of thought that ought to be put aside. We ought to say that ratifying the Covenant means that it will be applied and will require the States to apply its basic principles. It is not much use adopting legislation that is concerned only with the Australian Capital Territory. We are concerned about those areas where there is most blatantly a need for legislation and for protection of human rights. To limit the legislation to Commonwealth territories and to free the States of their obligations, to make them immune from the activities of the Commission that it is proposed to set up, is a great weakness and one which renders the legislation largely ineffective.
It is true that the moral question will be there and that the community will have to take it up at that level to see that the States are finally brought or whipped into line and forced to recognise the logic of the objectives which have been set in the Bill and have been recognised in the international community. We know that 95 per cent of human rights violations take place in the States. It is under State laws that discrimination finds its reflection. It is under State laws that Aborigines are discriminated against and it is under State laws that there is discrimination against women. State laws also discriminate against low income groups. Whilst we can recognise that some progress has been made in some areas to improve the inequalities that exist in those lower strata of society we still recognise that the problem exists and is going to continue to exist because of the deficiencies of this legislation. It might be worth while bringing to the attention of the Senate that it is only within the last 80 or 90 years that State legislation was placed on the statute books which gave women the right to own property. Prior to that they were not permitted to have title to property. We have not moved that far in terms of evolution and technological change when we still have areas of discrimination within society.
There is a very important quotation that ought to be put into the Hansard record. It is a letter received from the Commission for World Mission of the Uniting Church in Australia, which states:
I want on behalf of this national commission 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.
The Commission goes on to single out the limited jurisdiction of the proposed Human Rights Commission for particular criticism. It states:
The powers of the proposed Human Rights Commission are very limited. Its 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.
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.
When I was expressing my views, I was expressing views that are held by one of the most important church organisations in the country. The letter accurately reflects the fear of this Government in respect of certain State Premiers. We know we have two maverick Premiers in Western Australia and Queensland, the States where foreign influence is most pronounced and where mining interests are hell-bent on developing those States. It seems to be of some significance that it is in those two States that we have Premiers and governments that criticise the slightly left of centre position that this Government sometimes finds itself in on matters of national and international importance.
We have a position in which a lot of concern is being expressed in the community about how far this piece of legislation will go. This is because groups have been set up within the organisations that I have referred to to study the legislation. They believe that it is an important piece of legislation. Whether it be the United Nations organisation, church groups or trade union groups, they have set up groups for the purpose of studying the legislation. They have come to the view that because the Commission has no enforcement powers, merely a conciliatory role, the worst it can do is to make a report to the Minister. The Attorney-General said in his speech that legal sanctions:
May even provoke antagonism rather than the spirit of cooperation which is so essential in matters of reciprocal rights and obligations.
The Attorney-General seems to believe that all violations of human rights are committed by a mistake, or happened unnecessarily, that one has only to point out to the violators the error of their ways and they will desist. This, of course, is a
Utopian, idealist view of the world. It is certainly an idealist view of the conditions in our own country. We all know, if we know anything of the way officialdom has dealt with the problems of Aborigines in the back-blocks of Australia, that the person at the level of making the decision is the one who often practices the discrimination. We all know the same thing applies with regard to minority groups. We say that most violations of human rights are committed with a deliberate and malicious intent and that no amount of persuasion and argument will deter the offenders. The ultimate power of legal penalty must be vested in the Commission for it to have any effectiveness. If one has a problem of discrimination, it has to be examined to see why that power is exerted in such a way to create the act of discrimination. Discrimination is created because it is inherent in the very system in which we live. Those who have more than others must, perforce the whole process, get it from others. Those who exercise more power than others must have it to laud it over others. That is the process by which our society operates.
To suggest that we should enact legislation at the Commonwealth level without following it through right down the line in a way that makes the practising of discrimination and denial of human rights an offence is to forsake our responsibilities. I would hope that there is a majority of people in Australia who would accept the principle that the human being is more important than the State. Human dignity has to be recognised as the principal objective. Laws should be made to place those principles in the forefront of the way this society operates. The theories of democracy and the way democracy operates ought to be examined in the light of the thousands and thousands of cases of discrimination that appear.
I just draw the attention of the Senate to the case involving the young lady in Melbourne who wants to become an airline pilot. She had to take on one of the big corporations in the country. She had to have the courage to take on the Ansett empire. She won some proceedings in her legal struggle and was then taken to another jurisdiction. Is it suggested that an equal fight, an equal struggle, is being waged in this case and that she has the same rights as the management of Ansett? Of course she does not. Ansett has resources, hundreds of millions of dollars, behind it.
– Ansett still has not guaranteed her a job.
– That is right. It still wants that whip hand despite the favourable decisions she won in legal jurisdictions. Of course, as Senator Puplick has rightly said in this debate, we do not want to be in a position where these matters are resolved in just a purely legal way. We have to fight for the principle of equality and the rights of the individual. These things should become an automatic process, not a process that has to be worked out and which involves spending $10,000, $15,000 or $20,000 to establish what ought to be the fundamental principle of any decent democratic society. All the unfavourable publicity that goes with that deters other people from exercising their democratic rights. So, when we talk about human rights we are not just talking about some nebulous, airy-fairy pieinthesky; we are talking about a fundamental aspect of the way society ought to operate.
One could go on to talk about the various objectionable clauses in this legislation. Clause 10 (4) (f) states that the Human Rights Commission may decide against an inquiry if ‘the complainant does not have a sufficient interest in the subject-matter of the complaint.’. That will give some nebulous group or person the opportunity to make it even more difficult for the ordinary citizen to become involved in an inquiry when he or she suffers from discrimination. Clause 15 (2) (b) allows the Attorney-General to withhold evidence. Surely the public interest rather than the political interest or the so-called national interest, or maybe even the political prejudice, should be seriously considered in this legislation.
Are we to be confronted with what is now happening in the case involving the legal wrangle over social security frauds in respect of which Federal police admitted to breaking the law and admitted to the fact that they did things that were not authorised? If other citizens commit these misdemeanours they have to pay the price. Where is the equity in that sort of situation? Sooner or later we must reach a stage in our society whereby those who break the law no matter what position they are in or for whatever reason must pay the penalty. So often it is those at the lower end of the scale who are discriminated against. On the other hand, an inspector of police, or a person holding some other senior position, or some unknown person, as happened in the case of the Australian Security Intelligence Organization Amendment Bill introduced by this Government, is given the right to sit in judgment upon his fellow citizens and determine the rights and wrongs of his actions.
– With no scrutiny.
– With no scrutiny at all. Not even the Attorney-General or the Parliament have to be consulted. By this legislation I recognise that we are taking a very limited step. That is all it is. To say that it is more than that would be to gild the lily very considerably because this legislation will not put an end to racial discrimination. This legislation will be no more than a moral decision by this Parliament to establish some broad principles about what should be the human rights of individuals in our country.
– Forced and immoral decisions.
– Yes, that too could be the case. If we pride ourselves on having a democratic society we have to accept the obligations that that places upon us. We have to look at all the established practices, traditions and processes by which society operates if we want to be able to stand up in this place and say that we perform properly and adequately. We have an obligation to define the areas of discrimination and the areas in which human rights are threatened and prejudiced as a result of the way our society operates. If we do that then maybe we can look ourselves in the face and say that we have really carried out our pioneering job of establishing legislation which will generate, in the grass roots of our country, in our communities and in the organisations that our community produces, the sort of understanding that will bring about a much strengthened type of democratic society. We ought to be seeing this legislation purely as a bit of pioneering work that ultimately has to be supplemented and complemented by State legislation. All of us, whatever political party we belong to and whatever label may be pinned upon us, have an obligation to see that we carry out our responsibilities and that the States ultimately pass the sort of legislation that makes ratification of covenants on civil and political rights not just a stamp on a piece of paper. This step is being taken to bring about a realisation in the Australian community that all people, as stated by so many international decision-making bodies, such as the United Nations in its Universal Declaration of Human Rights and so on, are born equal. All people have to be treated properly. All people are entitled to engage in legitimate political activity. All people have a right of free assembly, a right to express themselves and a right to participate in all of the important decisions that determine their fate. If this Bill plays some minor part in achieving that I suppose we can be thankful. The Opposition sees the deficiencies and weaknesses in the Bill but we have finally come to the realisation that with the support of a few of the Liberals in the conservative parties we might strengthen it by passing some of the important amendments we intend to move during the Committee stage.
-So far this debate has been very unusual. Apart from the Attorney-General (Senator Durack), I am the eighth senator to speak- there have been four speakers from the Opposition side and four from the Government benches- and so far everyone except the Attorney-General has criticised the Human Rights Commission Bill 1 979 and the Racial Discrimination Amendment Bill 1 979. 1 do not propose to break the pattern. As a matter of fact, I get the impression that no one, including the Attorney-General, likes the Human Rights Commission Bill very much. The best that its supporters can find to say for it is that we need it so that we can ratify the International Covenant on Civil and Political Rights of 1 966 and that although it will not make a significant difference to human rights in Australia, most of which are governed by State legislation anyway, the present Bill is as far as we can reasonably go under our federal structure. Both of those propositions may be true but we should not accept them without the closest examination. I should like to deal with each of them in turn.
As I have said, the relevant United Nations covenant is the International Covenant on Civil and Political Rights. An Australian delegation, led by the then Attorney-General, Mr Nigel Bowen, took a key part in its design. Australia signed the Covenant in December 1972 but it has not yet ratified it. Why not? I think that it is partly because we tend to assume that we have an impeccable system of legal protection for human rights which is second to none in the world. We think of our legal protections for the human rights of Australians as a happy blend between British justice and the Australian ‘fair go ‘. As has been pointed out by Mr Justice Kirby, the
Chairman of the Australian Law Reform Commission, this is a dangerous illusion. There is no doubt, he says, that our legal protections fall short in many respects of internationally accepted standards. That is not to say that we are significantly worse than most countries in the protection of human rights- far from it. But there is no room for complacency.
It is worth pointing out some of the key provisions of this United Nations Covenant. For our present purposes, the most important is Article 2 under which, if we ratify the Covenant, we should commit ourselves to taking the necessary steps in accordance with our constitutional processes to give effect to the requirements and rights recognised in the Covenant. The Bill presently before us stems from that requirement. I shall turn in a moment to the question of whether the Bill adequately meets the requirement, particularly in view of Article 50 of the Covenant, which provides that the Covenant shall extend to all parts of federal states without any limitations or exceptions.
Firstly, I should like to deal with some of the rights laid down in the Covenant, some of which we may have difficulty in meeting. Article 2, for instance, would commit us to ensuring that everyone enjoys the rights laid down without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. We certainly have some way to go here. Article 3 of the Covenant provides for equal rights for men and women. Article 7 prohibits torture or cruel, inhuman or degrading treatment or punishment. I think that many, perhaps all, of our present prisons and some of our mental institutions could be regarded as inhuman and degrading. Article 1 1 forbids imprisonment merely on the ground of inability to fulfil a contractual obligation. In some parts of Australia people are still imprisoned for civil debts. Article 1 2 states that everyone shall be free to leave any country, including his own. It will be an interesting day when this is effective in communist countries, many of which have ratified the Covenant- the Soviet Union, for instance.
I do not want to go through all the rights which are contained in the first 27 Articles of the Covenant. On the whole, the rights outlined in the Covenant are well established in this country, although we do have some surprising shortcomings. I have pointed out a few. There are others. I do not want to represent to the Senate that this Covenant is perfect. It is far from perfect. It bears strong traces of its origin. Governments are the great infringers of human rights, whether by action or by inaction. This Covenant, as I have said, bears strong marks of its origin. The United States Bill of Rights was imposed by the community- perhaps more accurately, by an articulate minority of the community- on the Government. The Covenant is an agreement between governments. One finds throughout this Covenant ringing statements of liberty that are immediately qualified by remarks recognising administrative convenience. I will take just two examples. Article 12 of the Covenant, in paragraph 1 , states:
Everyone lawfully within the territory of a Slate shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
That is a fine statement. It is qualified in paragraph 3 by the administrative convenience of saying:
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 -
The French expression of ‘ordre public’, which is much more extensive than our interpretation of public order, is then used. It continues: public health or morals or the rights and freedoms of others . . .
That is a very severe restriction on the rights established in paragraph 1 . Article 1 8 states:
That is a fine ringing statement. It is qualified in paragraph 3, which states:
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law -
Prescribed by law in Iran, perhaps- and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
There are, as I am sure honourable senators can see, very serious defects and very substantial grounds by which administrative procedures can limit the rights of the Covenant. It is a fairly good document, I think one could say, but it is in no sense a perfect declaration of human rights.
If we already meet, and in some cases exceed, the requirements of this Covenant, why do we bother to ratify it? After all, those who have ratified it are a very mixed crew. So far 57 countries, including Australia, have signed the Covenant and 58 countries, not including Australia, have ratified it. The discrepancy in numbers is caused by the fact that some countries have ratified it without signing it. Among the countries that have ratified it are Bulgaria, Chile, Czechoslovakia, East Germany, Hungary, Iran, Poland and the Soviet Union. Who would give much for human rights in Iran today? Only a few days ago in this chamber we heard a report on the state of civil rights in the Soviet Union. They are the countries which have ratified this Covenant. All of them are countries which are notorious for their ignoring of human rights. Their ratification of this Covenant must have been purely cynical. Do we want to join them, bearing in mind the obligations that we would be accepting and in our case would, I am sure, intend to meet? I think we do.
The Attorney-General argued in his second reading speech that some countries in our region have not yet ratified the Covenant- I might say that they certainly have not applied the principles- and should be encouraged to do so and that if we do not ratify it ourselves we have no influence. Moreover, as a member of the international community in good standing and also as a recently elected member of the United Nations Human Rights Commission, it is very embarrassing for us not to have ratified a covenant on human rights. I think that the Attorney-General is right; that we should ratify the Covenant. As I pointed out earlier, this involves us in taking effective steps- not just steps for show- to ensure that the United Nations rights are effective here both federally and in the States- throughout the federation- without any exemptions or exceptions. I would not want to be a party to passing legislation with a view to enabling us to ratify the Covenant if, like some of the others who have ratified it, we have no real intention of meeting our obligations under the Covenant.
The Human Rights Commission Bill is the third attempt to give legislative effect to this responsibility. The first was the Human Rights Bill, introduced in 1973 by Attorney-General Murphy, with his customary panache and sloppy administration. The concept behind this Bill was to produce an Australian Bill of rights which embodies the rights laid down in the United Nations Covenant. By virtue of section 109 of the Australian Constitution, anything in State legislation inconsistent with the provisions of the Bill would have been inoperative to the extent of the inconsistency. The provisions of the Human Rights Bill would have overridden inconsistent provisions in Commonwealth, State and Territory laws. The Bill also provided for the appointment of a human rights commissioner whose function would be to investigate infringements of the guaranteed freedoms and conciliate them if he could. If necessary, civil proceedings could have been instituted in the Australian Industrial Court, which could have granted a variety of remedies such as injunction, damages or the quashing of a conviction.
I do not want to digress to the question of whether a Bill of Rights would improve or worsen our civil and political rights. I think we should have a Bill of Rights, provided it is adequately entrenched in the Constitution so that the rights cannot be taken away at the whim of a single parliament. This was one of the defects of the Murphy Bill. It was an ordinary Act of Parliament and could always have been amended by another Act. The more serious practical problem of the Murphy Bill was that it would have vastly extended Federal powers at the expense of the States. The constitutional justification of this was the external affairs power; the doctrine that if we enter into a valid external treaty that obliges us to do certain things, the existence of the treaty gives the Commonwealth Parliament the powers necessary to give effect to the treaty, even to the extent of powers which would otherwise be beyond Commonwealth competence. This power has been the subject of several High Court cases.
The latest case on the subject was the 1975 High Court decision on the Seas and Submerged Lands Act, which does not help us much because it was not concerned with the internal scope of the external affairs power, although Justice Murphy did state a wide view of the power. Indeed, it is clear that if section 5 1(29) is to have any meaning at all as an independent head of power, it must give the Commonwealth at least some power to intrude into State fields.
As long ago as 1936 the High Court in the Burgess case rejected the view that section 51(29) was limited to the external aspects of matters covered in other paragraphs of section 5 1. All the members of the court were then in agreement that the Commonwealth Parliament could give effect to a treaty whose implementation would require legislation affecting the domestic order of the Commonwealth; that is, where necessary, intruding into State fields. However, the actual decision in the Burgess case was that the regulations were invalid because they had departed from the strict terms of the international treaty. This strict interpretation was eased somewhat in Poole’s case in 1939, where it was accepted that legislation giving substantial effect to a treaty might be upheld even though there was not exact compliance with the treaty in matters of detail.
In the more recent Airlines case of 1965, there is little discussion of the external affairs power, although Justice Menzies did say that under section 51 (29) the Commonwealth has power to make laws that carry out international obligations under a convention with other nations concerning external affairs. This may well be the key. The agreement must concern external affairs. With the current world-wide concern about human rights, there is little doubt that the United Nations Covenant would meet this requirement. I believe we must accept that there can be no doubt that we have the power, although there are many uncertainties about its limits. For one thing, the international treaty would almost certainly have to be honestly entered into; for another, the High Court will probably be cautious about how far it will let this power be used for fear it will get out of control. It might even go some way to reviving the old concept of implied prohibitions, the notion that the Commonwealth cannot act so as to interfere unwarrantably with the functioning of the States or to threaten their independence. To my mind, the fundamental defect of the Murphy approach was that a Bill of Rights based on the United Nations Covenant would quite possibly be constitutional, under the external affairs power, but it would be in many ways less than our present rights. But attempts to extend the provisions in the Bill to cover the rights we have and should have would probably be unconstitutional. So it is a very awkward dilemma.
I mention this external affairs power because it is vital to our consideration of the present Bill. There is no real doubt that the power exists. It may not be politically or administratively sensible to use it, but we must not pretend that it does not exist. Since the failure of the Murphy Bill there have been two other attempts, including the present one, to draft a Bill to give effect to the United Nations Covenant. There is no difference in principle between the 1977 Bill, which lapsed on dissolution of Parliament, and the present Bill. A most important difference in the present Bill is the provision for co-operation with the States. Senator Missen has pointed out some substantial procedural defects in the present Bill: The lack of any enforcement power by the Human Rights Commission; the power given to the Minister to by-pass the Commission and give its power to the States; the possible conflict of the revised Freedom of Information Bill which I thought dealt very effectively with the undesirability of conclusive certificates by Ministers; and the undesirable introduction in the Human Rights Commission Bill of the legal concept of standing to preclude people without sufficient interest from making a complaint. These are all significant defects which no doubt will be fully debated in Committee. However, for the moment I want to concentrate on the key issue- the scope of the Bill.
Like its predecessor, the present Bill avoids the Bill of Rights approach. Instead, a Human Rights Commission is to be set up to draw the attention of the Government and Parliament to areas where action seems necessary to make our civil and political rights effective- draw the attention, not take action. This only applies to Commonwealth laws. State laws, where most of the problems occur, will not be covered. Does this really meet our obligations under articles 2 and 50 of the Covenant, if it is ratified? The Bill attempts to cover this in clause 1 1 by providing for the making of co-operative arrangements with the States. There is something to be said for this approach. Surely we should be able to cooperate effectively in this matter of human rights. After all, as has been pointed out by Justice Kirby, despite the great differences of history, culture and language, European countries have been able to produce a European Convention on Human Rights and the Council of Europe has produced more than 100 conventions on such diverse subjects as extradition, the legal status of migrant workers, transplantation laws and suppression of terrorism.
Can we accept in our Federal system that we can achieve less than could a formerly disunited Europe? I think not, though it must be admitted that the present approach to this Bill is rather timid. Even if joint Commonwealth-State organisations are set up, they will not necessarily deal with the civil and political rights of State laws. They may, but only if the States concerned want them to. Moreover, the Attorney-General ‘s confidence in the workings of even such limited cooperation seems slightly tepid. He said in his second reading speech that already there are prospects of achieving such arrangements in some States and the Northern Territory. That is fine. But what happens if other States do not agree to State laws being covered? For how long is it reasonable for us to accept this? For how long would this failure be compatible with our responsibility under the Covenant to take the necessary steps to give effect to the rights recognised in the Covenant in all parts of the Federation without any limitations or exceptions? We have the power to override the States to make these rights effective. We must not hold ourselves out to the international community as being powerless in this respect. We may not choose to use the power but we certainly should have it if we want it.
In this fundamental respect I think the present Bill goes as far as is politically feasible at the moment. But that is not the end of the matter. The history in this country of this type of co-operative approach is not very encouraging. There have been successes, but not many. As a State Senator I am an ardent defender of the decentralisation of power where it is appropriate for administrative efficiency or political freedom. But when a State is abusing civil or political rights or is refusing to have examined whether it is abusing them, I believe this Parliament has a right and a duty to act. I would like an assurance from the Attorney that, if after a reasonable time- say, three yearsthe arrangements contemplated by clause 1 1 have not been achieved with all States, including the coverage of State legislation, he will be prepared to extend the operations of the Bill, which are at present limited to Commonwealth legislation, to cover State legislation as well. He would certainly be entitled to do this under the external affairs constitutional power. As a member of the international community in good standing, to use the Attorney’s own words, I do not see how we can do less.
If the Attorney-General is willing to give this assurance I am prepared to support the broad thrust of this Bill as an honest and potentially effective means of improving our civil and political rights and of meeting our obligations under the United Nations Covenant. But if the Attorney is unwilling or unable to give me an assurance of his determination to make the principles of this Bill effective throughout the whole Commonwealth, I am not prepared to support it for it would be a hollow sham. It might enable us to ratify the United Nations Covenant but we would not be behaving honourably.
I understand that Senator Lewis will be moving an amendment to make the Human Rights Commission Bill sunset legislation. If it is not reenacted it will lapse in 1985. 1 do not oppose this concept but it does not really solve my problem. For one thing, 1985 is too far off. If we are to ratify the Covenant honourably, we must plan to make our legislation effective long before 1985. Worse still, what happens if the Government allows the Act to lapse in 1985 or introduces the same legislation again even though State cooperation had not been forthcoming? What would we do then? To withdraw formally from the UN Covenant on human rights that we had ratified would be acutely embarrassing internationally; but to continue when we were not meeting its obligations would be in some ways even worse. As a parliament and as a legislature we should avoid at all costs being confronted with this dilemma.
Before we pass this Bill which is openly intended to enable the Government to ratify the UN Civil and Political Rights Covenant- if the amendments moved by Senator Missen and Senator Evans are accepted that would be made explicit- we must be sure that the Government is prepared if necessary to use its constitutional power within a reasonable time to ensure that the Bill is effective in all parts of the Federation without any limitations or exceptions. Without an unequivocal assurance to this effect from the Attorney-General, the Human Rights Commission Bill had better not be passed, and I shall vote accordingly.
– When I first prepared notes for this debate, which must have been four or five weeks ago, I had enough notes to speak for at least an hour. But because of the stage of the debate I find that 75 per cent of what I had to say has already been said in the truly good speeches that have been made in this place from speakers on both sides of the House. If other honourable senators do not mind, I single out Senator Missen and Senator Evans as having made speeches of great worth to the Senate. The Australian Democrats concur with almost everything those honourable senators said. Therefore, I will limit my remarks to much less than an hour. After all, what is the use of speaking for so long? There are seven honourable senators in the chamber, two members in the Press Gallery and hardly a soul in the public gallery. The proceedings are not being broadcast. I wonder why honourable senators feel impelled to address the nation for an hour in such circumstances.
The Australian Democrats are very disappointed with the Human Rights Commission Bill. We welcome the setting up of this Commission as a modest step in the right direction and agree essentially with the thrust of Senator Missen ‘s arguments. We disagree with one of Senator Missen ‘s arguments and agree with an argument put by Senator Evans concerning a Bill of rights. I think that is probably the big point on which Senator Evans and Senator Missen disagree. They agreed on almost everything else. For many years I have agreed with Senator Missen who asked: Does the Bill of rights really produce something that is constructive, real and helpful to human freedoms? I always came to the view that it did not. For example, a Bill might contain words which state that every citizen has a right to good health. What does that mean? It cannot be defined.
But the more important objection I had to a Bill of rights was that one could argue that what was contained in a Bill of rights was the right of a citizen. But we live in a dynamic and changing society. If some need arose for the preservation of a human right because historical events had changed and certain aspects were not catered for in the Bill of rights, there would be no protection for the individual because of the change of circumstances. For example, automation and computerisation could well render 30 per cent of our work force out of jobs through no fault of its own within the next four years. I changed my mind on this matter when I heard a magnificent lecture- I believe that Senator Evans was on the platform with me at the time- by Mr Justice Kirby. While fulfilling the non-political role of his position he virtually said that there should be no need for a Bill of rights if certain criteria were being met. He listed the criteria of which I can remember three or four. It was crystal clear to me that those criteria were not being met in our political or social life. Therefore, I changed my mind. In fact, the adopted policy of the Australian Democrats is for the introduction of a Bill of rights.
One of the criteria which Mr Justice Kirby mentioned was that we do not need a Bill of rights if the electorate is informed and active. I wonder whether, in the circumstances of today, the electorate can be informed. There are so many things on which even we, as senators sitting in this chamber or as senators on committees where we have the right to cross-examine public servants cannot be informed ourselves. We cannot be informed ourselves; so what hope has the electorate of being informed?
The second criterion, as I remember what Mr Justice Kirby said, was that a Bill of rights was needed if politicians voted on issues and not according to party direction. Do we really have that situation in the National Parliament? I do not say this in order to make a point against Senator Puplick, but at the conclusion of his hour-long speech the other night he issued a rather historic admonition to the Senate- that it is the role and the responsibility of this Parliament to debate and vote on violations of human rights wherever they occur. I hope Senator Puplick will forgive me if I do not quote him verbatim but I think he will agree that that is the basic thrust of a sentence he uttered late in his hour-long speech last Thursday night. On that very day, in the morning, he voted against this Parliament, this chamber, voting on the violation of the human rights of human beings in Timor. One wonders about the capacity of this chamber and of this Parliament to comply with Mr Justice Kirby ‘s criterion that politicians should vote on issues as they see them and not vote on party lines.
The third criterion that Mr Justice Kirby mentioned was that every individual, no matter how underprivileged or how lacking in affluence, should have the right to sue, the right to legal action. At the moment in this country that is a joke. My colleague, Senator Mason, who recently was abused and defamed in a weekly national journal for an alleged lack of diligence as a senator- he and I were jointly accusedvisited counsel and solicitors on, I think, four or five occasions. The sum of the fees for those four or five visits amounted to several thousand dollars- about $7,000. Justice had its way and the weekly national settled out of court.
– It was worth being abused, was it?
– I do not want to canvass that because that is a matter between Senator Mason and the people involved. No, it was not worth being abused. If Senator Puplick had the guts to outlay $7,000 of his money to preserve his honour, I would respect him more than I do for his action or lack of action in the Senate after stating some fine words last Thursday. Does the right to sue really exist in Australia? After looking at Mr Justice Kirby ‘s criteria, I find that Australia meets none of them at this stage. I now find myself at a point where I disagree with Senator Missen and agree with Senator Evans on only one issue. It is not that I disagree with what Senator Evans said, but I believe that in this debate it would be a pragmatic decision, on balance, to support Senator Missen ‘s proposed amendments because to support Senator Evan’s proposed amendment one would have virtually to start from scratch. I say that in courtesy to Senator Evans, whose proposed amendment we respect.
The main reason we are unhappy and disappointed with the Bill is that it does not contain powers to enforce respect for human rights, or to change any law found to be in contravention of human rights, or to prosecute any person found to be violating human rights. The proposed Commission will be able only to examine legislation, inquire into acts and practices, investigate complaints and then report to the Minister. Such reports must be tabled in the Parliament, but there is no provision for any further action. Therefore, the Commission’s function will be purely advisory. The Minister will be free to decide whether to take remedial action; therefore, it will be a political decision. I ask the AttorneyGeneral (Senator Durack), in his response, to deny the charge that any action taken under this Bill must be a political decision.
That to me is anathema to preserving human rights. If we are to preserve human rights or to prevent violations of human rights, the whole subject must be taken out of the political arena. But this Bill puts it there. For example, if the subject of a complaint is a Commonwealth Act- for instance, the Act relating to the powers of the Australian Security Intelligence Organisation and its violation of someone’s rights- it would be equivalent to appealing against the AttorneyGeneral to the Attorney-General. My stating that points up the absurdity of the legislation when it purports to be a protector of human rights.
It has been argued that the publicity involved in an adverse report is sufficient sanction, as occurs with the Commonwealth Ombudsman or with the Prices Justification Tribunal. I concede that that is a respectable argument with the Prices Justification Tribunal and the Ombudsman. Neither of those bodies has great teeth, but both of them do seem to have some effect, in their reports, in holding back people who want to charge outrageous prices or to do outrageous acts. But, as Churchill once said: ‘Beware of the false analogy’. In this case I believe it is a false analogy. What about hotel licensees who refuse to serve Aborigines in their dining rooms, lounges or bars? What about a trade union which refuses membership to Vietnamese refugees? What about the activities of the neo-Nazi fringe groups? Will they be worried about adverse publicity? I would have thought that those were the very groups which would welcome the kind of publicity that the Bill will bring about. They would revel in the publicity. It would add to their popularity and it would allow them to assume the role of” martyrs.
Worse still, these powers, weak as they are, apply only to the Commonwealth law and to the Australian Capital Territory. I will not go into that issue because Senator Missen, Senator Evans and almost every other speaker have stated that the Bill is not applicable to 95 per cent of potential breaches of human rights. Where are breaches of human rights taking place today? I will name just a few and I say that the Bill will allow those breaches to go untouched. For example, the Queensland street march law is an outrage to any liberal, whether he belongs to the Australian Labor Party, the Liberal Party of Australia, the National Party, or any other party in the country. The Queensland legislation is an outrage to any person of liberal thinking. The
Western Australian public assembly law is similarly outrageous, as is the Queensland and Western Australian industrial legislation. They represent a massive invasion of civil liberties. The Western Australian electoral Act changes will make it very difficult for Aborigines and migrants to cast valid votes.
Other examples are the allegations made against police in all States and the interception of confidential telegrams from the Minister for Aboriginal Affairs (Senator Chaney) to residents of Queensland reserves. There is also the matter of police surveillance of the Minister’s departmental officers. I do not know whether all members of the Liberal Party have read or have informed themselves of the matter of interception of telegrams. This was done quite blatantly in Queensland. I quote from the Melbourne Age of 8 November, which states:
The Queensland Government has monitored cofidential telegrams from the Minister for Aboriginal Affairs, Senator Chaney, to community leaders on State Aboriginal reserves.
Also State police were used for surveillance of Federal officials visiting reserves.
Documents leaked from the State Department of Aboriginal and Islander Advancement show that telegrams from Senator Chaney and his Department to the Aboriginal Council at Yarrabah, near Cairns, were read to the State Minister, Mr Porter, by State officials.
That constitutes a massive infringement of civil liberties and of civil rights. Yet that sort of action can be quite untouched by this legislation. All these notorious and controversial issues will be outside the scope of this legislation. They cannot even be investigated by the proposed Commission, nor reported to this Parliament. So why are we wasting so many hours on these Bills? If human rights legislation cannot deal with such cases, what on earth is it for? According to this legislation, the co-operation of the States will be sought. No doubt we can expect the same kind of co-operation as the Commissioner for Community Relations has received, and that was indignant denunciation by the Premiers of Queensland and Western Australia. Worse still, the Minister can make arrangements for a State or Northern Territory Minister to peform the functions of the Human Rights Commission. That power is contained in clause 11(1). Thus the Commission may well be bypassed and powers to investigate, for example, Aboriginal complaints in Queensland could be delegated to the Queensland authorities. What an unthinkable proposition!
The cognate Bill, the Racial Discrimination Amendment Bill, can be seen as a comment on the thinking behind the Human Rights Commission Bill. Under the Racial Discrimination
Act there are powers covering State law. These are also powers to prosecute as a last resort if conciliation fails. The enforcement of this Act will be greatly reduced by subjecting the Commissioner for Community Relations to the direction of the Human Rights Commission and by depriving him of staff. The Human Rights Commission is to be responsible for the very worthy functions of research, education, promoting respect for rights, et cetera, but what use is it if it is not provided with staff? There is no guarantee in this legislation that it will be provided with anything near adequate staff, just as the Commissioner for Community Relations has never been provided with it. The Australian Democrats join Senator Missen in rejecting the Racial Discrimination Amendment Bill unless it is substantially altered.
I suspect that the Federal Government has clearly yielded to pressure from the State government of Queensland and Western Australia and perhaps also from right wing organisations. For the record I want to read into Hansard- on which note I shall conclude- the frightening number of right wing racial organisations in Australia right now which propagate racial prejudice with the help of massive resources of money from unknown sources and against which this Human Rights Commission will be virtually powerless. They include: The National Socialist Party of Australia; the White Christians League; the Hungarist Movement- the World Association of National Socialist Hungarians; and the Australian League of Rights and its related bodies such as the Christian Institute for Individual Freedom. Why in the name of God these people who disseminate hate always use the name of God or Jesus Christ goes beyond my comprehension, but they always seem to do so. These creatures in the League of Rights who give out this garbage disseminating anti-semitism and racism always seem to invoke the name of Christianity somewhere along the line.
– You are not going to deny them the right of freedom of expression, are you?
– Of course not, but I wish I had some time to read some of the inflammatory propaganda that they put out about people of different colours, different religions and different skins which I would have thought was the anathema of the principles espoused by Jesus Christ. Senator Sheil, for whom I have an enormous respect and affection, has challenged me by asking whether I deny these people the right to disseminate that sort of propaganda. I answered his interjection by saying that I do not, but I think there must be a limit. As Senator Sheil will well know, I am not notorious for taking a procensorship stance in this country. In fact I think I came under some friendly fire from Senator Sheil with regard to liberalising censorship. But I have always said that there is a case for censorship in this country, particularly for the very young.
In answer to Senator Sheil’s specific objection I would say that in our imperfect society there is an unanswerable case for preventing organisations such as the League of Rights and all these other twisted people from, say, taking advertisements during children’s hour on television saying: ‘You must hate Negroes, Jews, Muslims, Catholics or whatever’. That would be unthinkable, and to that extent I believe that there must be some sort of censorship of these kinds of extremist groups in an imperfect society. If we had a perfect society in which every mother and father had children with whom they conversed and discussed these issues, surely we could have all sorts of garbage through the medium of television or propagated to them at any time, but we do not have that sort of society. Australia has come to the situation which is right for the racist, the extremist, the total fruit cake to exploit racial and religious divisions in our midst.
– The Covenant does allow for a limitation where incitement to race hatred is concerned in Article 20.
-I thank Senator Evans for his contribution. I conclude on this note. Other bodies related to the League of Rights are: The Voters Policy Association; the Electors Associations; the Australian Heritage Society- rather a quaint name for an avid racist group; LILAC- is not that beautiful?- Ladies in Line Against Communism; and the Conservative Speakers Clubs. Then there are other bodies such as the Immigration Control Association; the Immigration Restriction Council; the British Australian Association; the Ku Klux Klan, Melbourne branch; the Conservative Party (Western Australia) Inc.; Women Against Asian Immigration Committee; Westralian Nationalist Movement; National Australian Association; Truth and Liberty Mission; British-Israel World Federation; and the Children of God.
Some of the above organisations are well established with a vigorous record of publishing and disseminating extremist material, both white supremacist and anti-semitic. Others have enjoyed a more tenuous existence- forming, merging, reforming, dissolving. At any one time some of them may be inactive, others dormant, while still others may be in formation or in embryo. In 1979 these new stars hit the horizon:
The Second Front- Jennifer McCallum, Melbourne; the National Front; the Australian National Alliance- ‘Audacity’; the National Resistance- ‘Advance’; the Divine People Movement, Sydney; the Campaign Against Illegal Immigrants, Perth; Awake Australians Campaign to Help Save South Africa; Zimmunism; Rights for Whites- that is a cute one; and One Law for All. I can go on by reading into Hansard some of the vicious and malicious sewer-like material that these twisted minds give out. The thing that makes me sad as I speak on this Bill is that the emasculation of the Racial Discrimination Act will do nothing to fight the garbage, the hatred, that is being put out by these twisted people.
-This has been a considerable debate. There are some points on which we obviously all agree. We agree that the Human Rights Commission Bill is edentulous and that the amendments to the Racial Discrimination Act will emasculate it. Another thing on which I think we could all agree is that the biggest violators of human rights are governments. Apart from the intra-Australia problems we have heard about, in this regard we only have to look to our north, to Timor, to New Guinea, to Indo-China, to China itself and to Russia. A report on human rights in the Soviet Union was brought in just recently. In fact just today the Inter-Parliamentary Union brought out its report on the infringement of the human rights of politicians in several countries in Central and South America. We may look at India, at almost any country of Africa, at Romania, Iran, the Middle East and find that human rights are being violated by governments, which are the biggest infringers. We can also agree, as has been said today and as was said last week, that human rights are indivisible and should be the same for men and women, black and white, child and adult, whatever one’s race, religion or social or national origin may be. There is no need for dissension on that at all.
I have noticed that although for more than 30 years we have had the United Nations and its agencies cranking out human rights declarations and convenants they have not once actually defined the term ‘rights’. Even today we have no such definition before us. At times descriptive definitions have appeared in the various declarations- as in the international covenant on civil and political rights- but there has not been an actual definition of rights. Until we arrive at such a definition I do not see how we can have human rights that apply equally to every person on earth. I would like to attempt to draw up such a definition because I believe that a right is a moral principle which dennes and sanctions the way in which we behave towards each other in a social context. If we are to define rights in that way, we may start with one that is absolutely fundamental to us all. That is the right to our life. Other rights would spring from that right, for example, the right to property and to liberty.
All people possess rights by virtue of their nature. In other words, a right can be a claim to an action but it cannot be a claim to a thing. For example, one could not give people the right to food, to clothing, to shelter, because if a right involves forcing someone else to provide a certain thing it infringes the right of that other person. One example would be the suggested right to free medical care. Its provision would infringe the rights of someone else, who would have to provide the care and those of yet another person who would have to foot the bill. Similarly, one cannot have a right to a job because that would mean someone’s having to provide the job whether he wanted to or not. He might choose not to do so.
I am concerned particularly that under the Human Rights Commission Bill the Minister is given permission to bring forward other international instruments on human rights. There are plenty about, including those of the United Nations and its agencies; for instance, the instrument on the International Year of the Child and that of the International Labour Organisation. There is also the work of the European Human Rights Commission. Instruments could be drawn up by the Inter-Parliamentary Union or the Commonwealth Parliamentary Association. In other words, the work of the Human Rights Commission could grow like a cauliflower.
I would like to give an example. This year we have celebrated the twentieth anniversary of the International Year of the Child and of the United Nations Declaration on the Rights of the Child. In regard to those rights in particular, recently I ran into trouble in trying to explain to people just what was involved in granting rights to all- in this case to children. The United Nations Declaration claims ten rights for children. They have, it claims, the right to affection, love and understanding; to adequate nutrition, medical care and free education; to full opportunity for play and recreation; to a name and nationality; to special care if handicapped; to be the first to receive relief in times of disaster; to learn to be a useful member of society; to develop individual abilities; to be brought up in a spirit of peace and universal brotherhood; and to enjoy all of those rights regardless of race, religion, colour, sex and national or social origin. No one would deny that children need all of these things, but to make them a right is a different matter altogether.
– They didn’t ask to be born; surely they have some rights?
– No; the parents have a duty to provide those advantages.
– The children didn’t ask to be bom.
– That is no answer to the problem. If one goes against nature one might as well forget the whole box and dice. Parents have the duty to provide most of these things for children; the fact that the child did not ask to be born is irrelevant.
– For the child?
– It is irrelevant to declare certain things to be a right. It is not irrelevant to say that a child needs these things, but it is the duty of parents to provide them.
– Is not the duty of parents correlative to the right of the child? Are they not two different aspects of the one social situation?
– No; there is a big difference between a duty and a right. It is the duty of parents to provide most of these things. They should not be written into law as a right, which infringes other people’s rights because they would have to provide, say, the affection, love and understanding; the nutrition, medical care and education. Having the rights to full opportunity to partake of play and recreation is also a dicey proposition. It implies that someone has to provide it. The right to a name and nationality can be granted because it does not infringe any one else’s rights. The handicapped certainly need special care but it should not be a right which obliges someone else to provide it. Again, children are said to have the right to be the first to receive relief in times of disaster. I see that as infringing somebody else ‘s rights.
Children are said to have the right to learn to be useful members of society. That right can be granted because it does not infringe the rights of anyone else. Again, it is said that children have the right to be brought up in a spirit of peace and universal brotherhood. I have just cited a number of nations where one cannot even find that set of circumstances. The tenth suggested right is the right to enjoy all of the foregoing rights irrespective of race, religion, colour, creed and national or social origin. That implies that all of the other proposals are to be considered rights, which is not correct, so the tenth proposition is also, in my book, not a right.
Before I discuss the Bill I would like to consider human rights in another perspective. It is the most important subject with which a government can deal. In fact, if a government does not handle its human rights correctly it can wind up having civil wars and revolution. One has only to consider the great civil wars and revolutions of history to note that they were all fought over human rights. Britain had a blood-curdling civil war over the rights of the sovereign, the parliament and the people. It ended with the king’s being beheaded. The United States of America had a war of independence which was based on the slogan ‘No taxation without representation’.
– And a civil war over slavery.
– That is so. Many years later it had a civil war over human rights. France had a revolution in which the cry was for liberty, equality and fraternity. China and Russia both had revolutions which, similarly, were designed to throw off autocratic and aristocratic governments. Such momentous events should make us examine very carefully the origin, nature and implementation of human rights.
– Is it not a challenge just to provide them, so that we do not repeat history?
– If we fly in the face of history we will find that course disastrous. Since the beginning of time people have sought the good life, liberty and human rights. Those principles have been known about and fought over for centuries and centuries. But man has always known that those values needed qualification. As we rose above the law of the jungle and gave powers to parliament our rights were curtailed. The early Jews, Christians and Moslems valued obedience to the law, both human and divine, above individual rights. In other words, if one had privileges one knew that they carried with them certain responsibilities. Even in ancient days people recognised that citizenship of the world could dispell discord, even between hostile peoples. They even tried to establish a classless and raceless society with equality for women. All these different systems crashed into the Inchape Rock of human nature, because they needed goodwill to implement the policies that they wanted. One cannot legislate for goodwill. In other words, written constitutions did not guarantee political rights to anybody.
As time went on we got to feudalism, where property became the obsession of the ruling classes. This was a big block to the progress of freedom. It resulted in Magna Carta, which was mentioned here. But Magna Carta was no declaration of human rights at all; Magna Carta really established the significance of charters in our legal processes. There is a copy in Kings Hall for people to read.
– Some of our rights have come from it.
– Yes. The right of no taxation without representation, for example; the right of trial by jury. In fact, taxation is one of the root causes of the demand for human rights in our society today. But even after Magna Carta, it took people a long time to realise that liberty was an essential element in civilisation, and it was not until Charles I assented to the Petition of Rights that the idea of government by deliberation became feasible. The Bill of Rights was to object to enforced loans, to the enforced billeting of soldiers on the people, and wrongful arrest. But it was here that we had individual liberty ranged against the rights of Parliament and the absolute sovereignty of the King. But after that there was war and bloodshed for another 150 years, and that was not settled to any great extent until the American Declaration of Independence.
For some time international law has been recognised as a means of determining human rights. But people found that these laws were not enforceable in the international sphere. That does not mean to say that the rights do not exist. They exist through nature, and God. The rights were recognised as a common law that was independent of parliaments. I am sure that most people in the world want to live in peace. They want to have agreeable associations with others, whatever their political or religious beliefs. But all political beliefs as well as the sacredness of treaties are meaningless without goodwill, and it is impossible to legislate for goodwill. Governments have to wrestle with opposing forces. For example, the contest between wealth and rank and intellectual vigour goes on for years. But the government of any nation must come from the social, economic and political circumstances of its own people, if they are to be truly free people. As I said before, to arrest the historical process is futile. There has to be a contract between the governor and the governed if the people are to be free, and people must have the ability to dismiss their government if it is not providing a rule that is suitable to them. But any political passion for equality wrecks any hope of freedom because natural law springs from two principles; firstly, self-preservation; and, secondly, a natural repugnance to unwarranted infliction of pain and death. People feel things. They have goodwill in their hearts: it is not in the heart of any government, and morality rarely occurs in nature. It is largely a quality of people. It is certainly not a quality of governments to any great extent that I can see, and certainly not in the international world.
– Conversely, immorality never occurs in nature either. That is from Mark Twain.
– That could be so. But morality is largely a quality of human beingsnot governments, but individuals- and inequality is also brought about because people have different talents and have different wants and different needs. Laws enforcing equality merely show up different talents. The signs of inequality are four: Riches, rank, power and merit. Without these, no human development is possible at all.
If I could come back now to the American Declaration of Independence, the undying words were written:
The men who wrote those undying words were slave owners. So they saw a difference between the people that they were writing for. It was not until the American Civil War, years later, that all men were created equal and endowed with those rights, but they got them. So the people who wrote those words did not see anything inconsistent with what they were doing.
– Only amongst humans.
– Were they right or wrong, though?
– Their sentiments were right, but they were slave owners to boot.
– And that was wrong?
– Of course it is wrong.
– It is immoral.
– Yes. But the point I am making is that the men who wrote it saw nothing inconsistent with their ideas. People invent governments to do things for them that they cannot do for themselves, and the government has to be for the benefit of the people. Any government which can alter its constitution unilaterally is a government of tyranny, and I think human rights are justifiable if they are confined to the agreed amenities which the government is to provide for the people. But of course we have activist groups all around the world, and here, wanting the governments to provide more and more amenities to get money for their little neck of the woods. They trade on the gullibility of politicians, and the ambitions of bureaucrats too, and probably the apathy of the majority.
Since the Second World War human rights have been bursting out of the United Nations without any questioning of their viability in international law, or without questioning their conflict with the sovereignty of different states. These documents are couched in terms which are almost the same as propaganda rather than common sense. There was the United States Declaration of Independence, and then its Constitution, and then the ten amendments which was actually the United States Bill of Rights. They were embodied in the Constitution as the ten amendments. Only four of those affected legal processes. This gives strength to the English law contention that the judiciary, by expounding the law, characterises it a lot more effectively than does the legislature.
I should like to look at those ten amendments which came from the Bill of Rights. The first was for religious toleration, freedom of speech, and the right of assembly. The second was the right to bear arms. The third was the inviolability of private property in times of peace in regard to billeting. The fourth was immunity to search and seizure. Fifth was the immunity to criminal indictment except by grand jury and the right to refuse to testify against oneself. The sixth was the right to speedy public trial for criminal offences before an impartial jury and with counsel. Seventh was the right to jury trial in civil suits of more than $20. Eighth was protection from heavy fines, excessive bail, and cruel and unusual punishment. Ninth was that the rights conferred by the Constitution were not to inhibit the rights of other people. That is an important one, and I do not think that effectively that part of the Bill of Rights is used in the United States.
Tenth and lastly, the powers that are not delegated nor by the Constitution prohibited to individual States are reserved either to those States or to the people themselves. After the American civil war those rights were extended to the Negroes and people of other races and colours. It was not until 1 920 that all those rights were extended to women in the United States of America. The rights were of a practical kind and arose from the experience of the people in the United States itself. The validity of the rights was determined by the people’s interest. They were therefore subject to the will of the state. That there was a declaration obviously by no means implied that people could enjoy the rights so named. In international law individuals do not get much of a say except in the most exceptional circumstances. It is only states that are recognised in international law and if a state wants to bring an action it has to do it on behalf of an individual. I suppose that it is a convention that individuals get very little say in international law.
Yet here we are moving to ratify international convenants and put ourselves at the mercy of being complained about by other nations and brought into international courts. The convention has been weakened by the concept of such things as crimes against humanity and that has been recognised in the Atlantic Charter. Recently created states are using the United Nations Universal Declaration of Human Rights in their constitutions. They now contain items of novel interest like the right to marry and found a family, the right to free education and the right to free elections although very few of them can enjoy any of those things. The people who are including this Declaration in their constitutions are arguing that by some miraculous process they are somehow going to preserve world peace by legal means when actually the best method of destroying the human right is to declare its existence in a constitution. Either the declaration is so abstract as to be meaningless or its legal effect would be to impose too great a restriction on the operations of the government. For example, I cite the gun laws in the United States. On top of all that, once one defines human rights, governments maintain they are all the rights one has and that anything else is not a right. This in itself is a restriction of human rights.
Some articles in the United Nations Universal Declaration of Human Rights are actually in conflict with laws of member countries. A particular example today is that of asylum for the Shah of Iran. He sought asylum in America. He is now being taken out of that country despite the United States asylum laws. The United Nations Universal Declaration was propounded and promulgated in 1948 and contained 30 articles, more than ever defined before. But the preamble to the Declaration requires that it promote friendly relations between nations and that it seek a common standard of achievement for all peoples to be promoted by teaching and education. The articles themselves are to be regarded as guiding principles and not laws. Many nations do not accept the Declaration. Nonetheless, the United Nations has now taken action against nations that are regarded as backsliders as though the Declaration was law. It has taken the action against nations that have signed the Charter, but not the Declaration.
Article 55 of the Charter binds all members to the principle of equal rights, self-determination of peoples, human rights and fundamental freedoms for all without distinction as to race, religion, sex or language. Article 56 pledges all nations to co-operate with the United Nations. The Charter says nothing about how these laws or human rights are to be implemented. Article 2 prohibits the United Nations from interfering in the domestic affairs of any nation except under Chapter 7. Chapter 7 powers may only be exercised by the Security Council in which the great powers- the United States, the Soviet Union, the United Kingdom, China and France- have a veto. Of course, they have established a convention of abstaining on momentous decisions such as the imposition of sanctions. The fact that they abstain is not taken as a negative vote when in reality they are all supposed to concur when major decisions are being taken.
Under Article 39 the Security Council will intervene only if the defiance of human rights is a threat to world peace or constitutes an act of aggression. However, the United Nations Declaration has gradually gained force and now it has some impressive teeth. It is not a treaty and, therefore, involves no legal obligations but the persistent floutings of the Declaration have changed the tempered attitude of conciliation to one of confrontation by the United Nations itself. The Charter is part of international law and the articles of the Declaration spring from it. The Declaration of Human Rights is couched in ambiguous terms partly because it was meant to be a set of guiding principles and not laws. To remedy that and to beef up human rights, the United Nations passed four other declarations and convenants. The first was the Declaration of the Granting of Independence to Colonial Countries and Peoples in 1 960. It resulted in the formation of the Organisation of African Unity which became a powerful force and directed international affairs for 15 or more years. It had to be considered in all international agreements on the basis of African nationalism. We know there is no such thing as African nationalism. Nationalism is not the thing in Africa, it is tribalism.
The second was the Declaration on the Elimination of all Forms of Racial Discrimination in 1963. That was directed fairly and squarely at apartheid in South Africa. The third was the Covenant on Economic, Social and Cultural Rights in 1966. Again in 1966 we had this current Covenant that we are moving to ratify, the Covenant on Civil and Political Rights. The United Nations’ dynamic approach has been coloured by partisanship and inconsistency. For example, I consider mandatory sanctions an extreme measure to impose on any country. Where is the common understanding mentioned in Article 56? Is it fair for the United Nations to expect cultural transformations in people overnight when it has taken centures in other countries to achieve these changes? For example, women are not allowed to vote in Nigeria, Jordan and Kuwait. Saudi Arabia governs without any elections at all. The United Nations gives some attention to over-population, food production, pollution, poverty and unemployment but not much is heard of these now; most of the international conferences on them failed. The emphasis now is on armaments, political and human rights and material assistance given to terrorists in the guise of liberators. With the full knowledge of the United Nations, terrorists are trained in member states. I think that that is contrary to the whole spirit of the Charter. The entire problem is bedevilled by the fate of various minorities in Europe, Asia, Latin America and Africa. Whatever happened to the pigmies? Has anyone wondered about them or the Masai?
– There are certain majorities in Africa that also suffer.
– They are the survivors, not the knockers like you.
– 1 think it is the decline in the democratic systems that has been the most momentous event in our time and the clamour for voting rights is not going to stop that. In view of the time I had better move on. Turning to the Bill itself, I will summarise what we have rights to. We have a right to our life. We have a right to anything we have earned and paid for. We have a right to anything that is freely given to us. Then we have a right to certain things that the Government vouchsafes us. There are certain ways by which governments can give us rights. We can have them in the socialist way, as people do in the Soviet Union where the Government has given people the right to think their own thoughts, to meet, to work- all sorts of things. Just as in this Convenant, their Government has confined the right by saying that they have the right to those things provided they do not break any law. Their Government can then pass laws to effectively rob them of those rights. If honourable senators believe the people there can think their own thoughts without the Government knowing, they are wrong. The Government can tell from what a person reads, who he talks to, what shows he sees. If it thinks a person has subversive thoughts, that person can be gaoled.
– That is not socialism; that is a dictatorship.
– That is in Russia. There one is given the right to work provided one does not break any law. If one goes on strike one is infringing someone else’s right to work and can go to gaol for that. That is the socialist way. That is what is in this Covenant. All over we have heard complaints that each one of these rights is controlled by provisos. On the other hand, the United States of America entrenched a Bill of Rights into its Constitution. It said that no law shall be passed to infringe those rights. Of course, everyone takes the fifth amendment, gun law rules the streets and the country is bound down by endless litigation. Australia is a common law country. We make up and expose our laws as we go. I think that that is the best system for Australia despite any shortcomings it has. In dealing with this Bill we are discussing another system. An international body has created a whole lot of human rights and has then imposed them on a country that is a signatory to its charter. In other words, we have an international body determining what laws we shall pass in our country.
The reason for the introduction of the Bill is merely that the Executive of the Government made a promise. It is one of the promises that it is not going to break. It wants to improve its image in the world, to be a leader, to show that Australia is aware of human rights. It wants to maintain that position. A conference will be held next July in Luxembourg and I am sure that it will be announced there that we are moving right along with this human rights legislation. My main objection to this Bill is that an outside agency is determining the laws to be passed in this country. All the definitions of the rights that are in this Covenant are qualified by the proviso that one does not break any law. The Bill is unnecessary. This is virtually conceded by the Government. I quote from a document entitled Short Digest of Bill ‘. It states:
This course of action is partly as a reult of severe constitutional question marks over the Federal Government’s powers to legislate to protect and enforce human rights as well as the Government’s belief that the guaranteeing of these rights does not require a Bill of Rights and the accompanying judicial powers of enforcement, believing instead that the present law adequately protects these rights and that Parliament is the more appropriate body to ensure the continued protection of these rights.
That protection is in the Bill. I think that this Bill represents an extension of the colonial type government that we had. We then moved to cooperative federalism. Now we are moving to coercive federalism. After 1 5 months of negotiation the States have not agreed in any substantial way to this Human Rights Commission. The weakness of it has been pointed out in debate here. As I have said, the work of the Commission is designed to grow. Another thing I do not like about it is that the officers who are to administer this law and their papers are to be removed outside our processes of law. In effect we would have an international body determining what the laws in the country are to be and the officers removed from our own legal processes.
– In what way?
-It is in the Bill. I am afraid I must hurry along, Senator. The fact that any international instrument can be incorporated is, I think, a danger. To conclude, some honourable senators see this Bill as the sunrise of enlightenment in the country so long as it gets some teeth. Other honourable senators support a sunset for the legislation. For me, tomorrow evening will be soon enough for that sunset.
– I rise to support the Human Rights Commision Bill 1 979 and the Racial Discrimination Amendment Bill 1 979. 1 think that after I do not know how many hours of debate I am the first speaker in the Senate to support it, apart from the AttorneyGeneral (Senator Durack). Some honourable senators have criticised this Bill for not going far enough. Others- really the only speaker has been Senator Sheil but I know he represents a number of my colleagues- criticise this Bill for going too far. My colleague Senator Hamer spoke very well in favour of not passing the legislation. I do not think he had the same reasons for criticising the legislation as Senator Sheil. I think Senator Hamer ‘s criticism is that the Bill does not go far enough for him either. I think Senator Sheil made an excellent speech in support of his proposition that the legislation ought not be passed and that we would be better off if it were withdrawn. He said that we would be better off if the sunset provision ended tomorrow night.
To be critical of people who have expressed views along the lines expressed by Senator Sheil is easy, but quite frankly- I say this to some of my colleagues on the other side who were interjecting when Senator Sheil was speaking- I recognise the sensibility of those who openly admit that if we are to continue with our way of life, with our freedoms, it may be necessary for there to be some legislation in Australia which infringes upon this covenant. I congratulate them for freely admitting that fact. They may be right; they may be wrong. But fortunately, in Australia, they are entitled to hold that view and they are entitled to express it. That is one of our freedoms. I do not believe that their view is unreasonable. I say that also to some of my colleagues on this side of the chamber who have expressed views about what should happen to this Bill, and to all in this chamber who have been critical of this Bill for not going far enough, the ‘progressive reformists’ in this Parliament. I accept at face value the concern for humanity which they have expressed, but I do not concede that they have a monopoly on human compassion. The best men are not necessarily those who talk about goodness and denounce evil.
It is not unreasonable to suggest that those who are cautious about change may ultimately contribute more than those whose response is far more dramatic, those whose minds are already made up and those who know they are right. One only has to look dispassionately at the current state of affairs in Iran to know where dramatic moves for reform can lead the people of a country. On the other hand, I ask my more cautious colleagues to recognise the need to protect the people of Australia from the extremes of both the right and the left. Many may like the way we are going in Australia, as expressed by Senator Sheil. Parliaments debate the legislation and those debates are open. The people are informed of the matters which members of Parliament consider to be wrong with the legislation. The legislation is exposed and in this way our rights are protected.
I recognise that there are merits in both sides of the argument. In particular, I recognise the very great merits in the arguments put by my colleagues Senator Missen and Senator Puplick, and the criticism that this legislation will have no applicability to the States. Of course, if there are infringements on human rights in Australia, the probabilities are that they will be from State legislation. I recognise the limitations in the legislation because there are no enforcement provisions. I also recognise the very serious criticism by Senator Missen of the bypass provision of clause 1 1 . I listened very carefully to my colleague Senator Bonner in his description of this legislation as a toothless tiger. In particular, I listened to his criticism of the racial legislation and its effect on the Hon. Al Grassby. On the other hand, I listened very carefully to what Senator Sheil had to say and I openly admit that in many ways he made some good sense to me. I do not know which view is right. I heard Senator Missen acknowledge that he did not know in his speech. I think he was the only speaker of those who have criticised this Bill for not going far enough to openly admit at one stage that he did not know which view was right.
I support the Bill. I support it simply because I do not see why the views expressed here by those who say that the Bill does not go far enough or by those who, like Senator Sheil, say that the Bill goes too far, ought to have any more merit than the views of the Government which, after many months and perhaps years of consideration, has introduced this legislation in its current form. For all I know, the Attorney-General and the Government may be just as right as any of the speakers from either side of the chamber who have criticised the Bill. As I have said, I do not know which view is right, but I do know that I want to have another look at this legislation. This Commission will develop a life of its own. It will go along the track, taking steps, and after a while we will be able to see whether this legislation should be amended one way or the other or whether the Commission’s life should be terminated. I acknowledge that there may be difficulties about the termination of the Commission’s life, if that be the case, especially if by then we have ratified this Covenant. Nevertheless, as a legislator, as a member of the Senate, I say that I want to see this legislation again. I would like the opportunity to consider it after I have seen how the Commission progresses.
I draw the Senate’s attention to the fact that the Family Law Bill was supposed to be an advance at the time of its introduction. As a result of what has happened under the Family Law Act, we have all decided that we want to have a second look at that legislation. I say to the Senate that the only way in which the Parliament can ensure that a statutory authority which the Parliament creates can be looked at again is if there is a sunset provision. If there is a provision which requires the Government to bring in legislation to extend the term of the authority which it creates, the Parliament is given an opportunity to take another look at it. For that reason, I have circularised an amendment which I propose to move in the Committee stage of this Bill. I draw the Senate’s attention to the substitute amendment which has been distributed tonight and which adds a new clause, clause 36, as my amendment instead of the original amendment which I circularised and which seeks to amend clause 2 of the Bill. It is now my intention, as a result of some advice which has been given to me tonight, to introduce in the Committee stage the substitute amendment.
For the term of the sunset provision, I have chosen a period of five years. Representations have been made to me by many honourable senators to reduce that term to three years or to extend that term to seven years. I accept the arguments of the Attorney-General that a term of three years would be too short for a Commission to be established, to set itself along the road which it intends to take and to demonstrate to the people of Australia its worth or lack of worth. It would in effect, having been created, spend almost all of its entire time trying no doubt to justify its existence. With a term of five years there is an opportunity for the Commission to take a course, for it to settle down and for the people in the States to observe its effect.
I hope that many people will change their minds about the Human Rights Commission. Those who are critical of it may see much merit in it. Those who presently do not think that the legislation ought to be amended along the lines suggested by the amendments circulated today may very well think that some of those amendments will be worth while in due course. I hope that at some stage during that term of five years the States will decide to go along with the Attorney-General’s representations to them to be a part of this Commission. I recognise that there are difficulties for the Attorney-General and the Government in relation to my proposal because the Bill provides that the officers of the Commission may be appointed for a term of up to seven years, which would make it somewhat difficult if the Commission were to come to an end at the expiration of five years. However, that is a matter which I have no doubt the Government, in its wisdom, will be able to resolve in due course. For those reasons, I shall be moving the amendment circularised in my name. In general, apart from that amendment, I will be supporting the Bill.
– This has proved to be a rather extraordinary debate, as Senator Hamer commented several speakers ago and as Senator Lewis repeated when he spoke. There does not appear to be very much support for the measure in the Senate. I must say that I am grateful at long last to have had a supporter in the person of Senator Lewis. In the circumstances, as revealed by this debate, someone who has had the strength of purpose and interest in the subject to listen to it all or read all about it may well forgive the Government if it decided that it would not proceed with its attempt to take some steps to enhance the observance of human rights in Australia. Obviously the path of any government attempting to take any action whatever in this field is fraught with difficulties. I think the history of attempts that have been made in this matter by governments would bear that out. However, the Government is not prepared just to sit back and do nothing and not pursue any steps in relation to this most important subject. That is why the Government believes that this measureeven though it was hoped that it would have a wider application in Australia than it does have- is still worth while pursuing; to establish, if we can get the support of this Parliament, a Human Rights Commission and to continue to support the principle and related activity in the years ahead in the hope that, as time progresses, we will be able to add to those efforts now being made to give the Commission a wider role than it is accorded in this legislation.
The subject of human rights is very much a question of respect for one’s neighbour, for the other fellow. In Australian terms, as Senator Bonner put it, it is very much a question of giving people a fair go. As it is a subject which is of that character, the strength of the protection of human rights is very much a question of attitude of mind and commitment to a principle of respect for the other fellow; for the individual as such. Because it is a subject of that kind the strength of the human rights movement in any country depends in the end on education, on promotion of those principles and on the philosophy of people. Therefore, in the end the importance of observing these matters is in the area of education, of conciliation and of understanding, and not so much on simply legislative or judicial dictate. Of course, the method by which this attitude of mind of community members is effected and its success are traditional within the community and are determined certainly to a very great extent by the resolution people have to ensure that these rights are protected, and by the institutions that have developed in any particular community to protect them. So long as man has been associated in society, he has made attempts to achieve a better working relationship with his follow members of that society and it is as a result of that that we have developed our legal and political institutions, right back to the Dark Ages. Anybody who has studied the history of government and of law is well aware of the fact that over the millennia of his existence man has made attempts- some successful and some not so successful- to improve his lot and the lot of his fellow men, as well as the rights of his fellow men.
It is not by any means a coincidence that the International Covenant on Civil and Political Rights should have been developed in 1948. That date is significant because it is within the memory of people who remember that these great principles and beliefs were grossly abused and destroyed during the 1930s and 1940s. Those beliefs and principles are not new or modern; they go back for centuries and probably for millennia. In the wake of peace and the development of the United Nations, we then had a very strong worldwide belief that there was a need to set down and enshrine in some international document the principles which were thought to be the basic principles of human rights. I think that is a major achievement of the new international community that was brought into being in the wake of this terrible era of abuse and destruction that is in people ‘s minds.
The Covenant was developed and first adopted in 1948. The principles of that Covenant are ones to which we, by our traditions- the philosophy of our people, but given practical effect by our political and legal institutions- can readily subscribe. Indeed, the principles in that Covenant are based very much upon the principles of democratic countries, to which we can be proud to belong. Those principles were able to be set down in 1948 because through the development of democratic societies, parliamentary democracies and of countries with a live commitment to and experience of what we call the rule of law, there was in that experience and over those years certain principles which could be readily brought to mind and written down as the basic principles for the protection of the rights of individuals living in a society.
A lot has been said in this debate about the way in which these rights can be protected. It has been said that the common law- our tradition of legal development- has now failed, or at least has exhausted its powers of development in this field and that therefore we need a completely new approach to the subject. I reject the motion that that is the reason why the Government is proceeding with legislation in this field, I believe that the common law has been very notable in this period about which I have been speaking in the development and promotion of human rights, but I also believe that it has been necessary from time to time for those rights to be given further, better and perhaps more particular expression through the parliamentary process. So, when we are talking about our traditions in this field I think we ought to be according recognition to both the development of the common law and the development of our parliamentary democracy.
– That would be more critical if you would introduce legislation like the criminal investigation legislation.
– These are matters which have been developed over time.
– Order! It being 10.30 p.m., in conformity with the sessional order relating to the adjournment of the Senate, I formally put the question:
That the Senate do now adjourn.
Question resolved in the negative.
– Let me mention some of the great achievements. I think that we can too readily forget them. Some of the major developments of the common law of our courts include the writ of habeas corpus, freedom from arbitrary arrest, the presumption of innocence and trial by jury. On the other hand, parliament has been active. As Senator Missen said during the course of the debate, the abolition of slavery was an achievement of parliament. Of course, the principles of universal suffrage, the Bill of Rights enacted in 1688 and freedom of religion are some of the great achievements of parliament and parliamentary democracy.
Let us be proud of our traditions. Let us acknowledge the fact that we have very strong traditions and that we have developed strong institutions in our parliamentary democracy, in our courts, in our rule of law and in what we still call in many ways the common law. So, we do have these very strong traditions. I believe that we can still rely on these institutions, as we have in the past, to provide the legal framework and the legal sanctions which may be required to protect and enhance human rights. That is why the Government rejects the all-embracing solution which has been propounded in this debate, I suppose more particularly by Senator Evans, that we now need, because of the failure of or the retreat by the courts in this direction and because of the failure, as Senator Evans sees it, of parliament in these areas, some new approach altogether, namely a Bill of rights in line with the American model. That is the adoption of an overriding law by which parliament is governed and by which its decisions can be judged, challenged and struck down, by which the courts are also governed and by which, apparently, their decisions can be struck down.
But the one great failing that the Government sees to this solution is that under such an overriding law unelected judges will strike down laws of other judges and of parliament. Indeed, if the American experience is to be followed, these people will be not only striking down laws but also giving directions as to what laws should be passed, how governments should proceed and, indeed, in what way and how much money needs to be raised to pay for the rules that the unelected judges will lay down. As I have said, the Government rejects that approach for two reasons. First and foremost, we have a very firm faith in our existing institutions of parliament and our courts to continue to develop, enhance and promote human rights. We are not prepared to place ourselves in the position where a court will interfere with parliament and say not only what it can do but also, on the American experience, what it ought to do.
However, this Bill recognises the fact that standards have already been developed in the International Covenant to which I have referred. Alternative standards could be developed. I am quite interested in Senator Tate’s view that we should be looking at the development of some standards- call it a Bill of rights if you like- to which courts and parliaments can refer in deciding what decisions they will make. I believe that there is great merit in having a Human Rights Commission. It will be a sort of watch dog to look at and to promote the standards which are adopted. In this case we are adopting standards of the International Covenant.
The functions of the Commission, as set out in the Bill, are ones of education and promotion, of investigation and inquiry by reference to the standard of the Covenant set out and adopted by the international community. The Commission is to draw matters to the attention of Parliament and, although it is not stated specifically, to the courts. By carrying on its investigations, inquiries and recommendations- these will be made public- it will undoubtedly influence not only the decisions of Parliament but also, I am sure, in due course, the decisions of the courts. What we come back to is the very firm faith in the view that the decisions will be made in accordance with out existing institutions- that is primarily and in the long run by Parliament.
That is the rationale of this Government’s proposal to establish this Human Rights Commission. I acknowledge that our responsibilities, if we are to ratify the Covenant, must be to have regard to Australia as a whole. That is why we are discussing with the States the extent to which and on what terms we would be able to ratify the International Covenant. But we are not prepared to impose powers on the States which it may be doubtful we have at all. I am putting aside the question of legal power. I am basing my statement on political philosophy. We are not prepared to impose on the States, given our belief in our federal system, our will and the will of this Parliament as to what they should do in areas which have been clearly and traditionally State areas.
Let me say to those who have criticised the Government for this approach that a federal system of government is one of the traditions and one of the institutions by which human rights can be preserved. One of the more fatal threats to human rights is the concentration of overweening power in one place and amongst a few people. The dispersal of power which a federal system involves is one of the bulwarks by which human rights can be preserved and enhanced. Let us not forget the fact that a federal system of government- a system whereby the people are close to the individual government making decisions about them- is one of the important institutions by which human rights can be preserved.
– Such as in Queensland?
– It is up to the people in the States to decide what government they want. As I said, the Government is not prepared to impose its views on the States, irrespective of whether it has the legal power to do so- I put that aside. It is not prepared to behave so absolutely contrary to our principles of federalism and our belief in a co-operative federalism, which is absolutely fundamental to our philosophy. That being the case, what we are seeking to do with the States is to involve them in discussions in relation to human rights matters and to hope that by this means- I think there is reason to hope that this will happen in the course of time- the States will become more and more involved in an Australia-wide forum for the discussion and promotion of human rights.
I might say that I was well prepared for the debate here on this legislation by the debate I had with the States for 12 months. In those debates some people wanted to go in the direction suggested by Senator Evans and the views of other people accorded more with Senator Sheil ‘s approach. We had extremes of views in the States, just as we have here in the Senate. But despite the fact that we could not reach agreement on a joint Federal-State commission to proceed in these matters, we have now achieved an agreement to hold ministerial meetings on the subject. Since reaching that agreement, we have held meetings in May, July and October this year in which we have discussed the ratification of the Covenant and very great progress indeed has been made. I am not in a position to report on what has happened because no final decisions have yet been made at those meetings. But I hope that quite shortly decisions in relation to the terms under which the Covenant should be ratified, which are acceptable to all the States, will be made. Of course, the decision on whether we ratify the Covenant will be made by the Commonwealth Government. All the States agree to that.
The establishment of the Human Rights Commission will be one step further along the road of observing our international commitments. But I and the Government do not put the proposed Human Rights Commission forward as something which must be established as part of our ratification of the Covenant. Obviously, to have a specialist institution which has a responsibility as a watchdog over that Covenant in the country concerned is an important step to take in exercising the international responsibilities which we will assume when we ratify the Covenant. The proposed Human Rights Commission will be a valuable institution irrespective of whether we ratify the Covenant. As I said, deciding to establish the Commission is only one of the ways in which we can observe our responsibilities.
The only other matter I wish to mention relates to the proposed amendments to the Racial Discrimination Act. I think those amendments have been misunderstood. They will preserve the powers of the Commissioner for Community Relations in relation to investigations of complaints about racial discrimination. They will preserve the existing powers to give certificates by which people can take proceedings if they believe it is necessary to do so. In seeking the establishment of the proposed Human Rights Commission, we want to rationalise the relevant institutions at Commonwealth level. If there were other legislation in this field we would want to see that legislation come under the broad aegis of the Human Rights Commission. The Human Rights Commission will be assigned the role of undertaking educational and promotional activities. To that extent, those powers will be taken from the Commissioner for Community Relations. Certainly, if the office of Commissioner is vacant or if the Commissioner is absent, the Human
Rights Commission will be given a right to exercise the relevant powers. But the existing powers of the Commissioner for Community Relations will remain, subject to the changes I mentioned and subject to general directions given by the Human Rights Commission.
– Specific directions. Where did you get that from?
-The powers will remain subject to directions given by the Human Rights Commission, but obviously those powers of direction will be exercised only in a general way because the existing powers of the Commissioner for Community Relations will remain and will not be replaced in the Human Rights Commission exercising those powers. As I said, this proposal to amend the Racial Discrimination Act is designed simply to rationalise the machinery so that, when the proposed Commonwealth institution, which will have an overriding position in relation to human rights, is established, it will have that power in relation to the Racial Discrimination Act and in relation to other specific Acts in that area which might be passed by the Parliament.
– Why not make him a commissioner for human rights?
- Senator Missen asks: Why not make him a commissioner for human rights’. We do not believe that the Human Rights Commission should be made up of various ex officio people who have a special role to play in this area. We want to have a body of people with a broad interest in and responsibility for human rights generally. If we have a commissioner for racial discrimination on the Commission, people will want various other specialist areas to be represented specifically also. If we have a human rights commission made up of a group of specialists, I and the Government do not believe that it will be the sort of body which will have an overall responsibility for human rights generally. That is the sort of body which we feel that the Human Rights Commission should be.
I do not think that I have anything further to say. There will be a Committee debate in which matters which have been the subject of debate already no doubt will be raised more specifically. I hope that the Senate will agree that the step which the Government proposes to take with this legislation is a step worth while taking; that it will reject the proposition put by the Opposition that this Bill should be withdrawn and redrafted along quite different principles from those which I have been seeking to espouse in this debate; and that before much longer we will have this legislation on the statute books and a human rights commission established in this country.
– Order! At the outset of this debate it was agreed that the questions on the two Bills should be voted upon separately. I shall therefore put the questions in relation to the Human Rights Commission Bill 1979. Senator Evans moved an amendment to the motion that this Bill be now read a second time. The question therefore is that the words proposed to be left out by Senator Evans’s amendment, be left out.
That the words proposed to be left out (Senator Evans’s amendment) be left out.
The Senate divided. (The President- Senator the Hon. Sir Condor Laucke)
Question so resolved in the negative.
Original question resolved in the affirmative.
Question put. The Senate divided. (The President- Senator the Hon. Sir Condor Laucke)
Question resolved in the affirmative.
Bills read a second time.
Human Rights Commission Bill 1979
Clauses 1 and 2- by leave- taken together, and agreed to.
Clause 3. Interpretation.
The effect of this amendment is to extend the definition of the phrase ‘act or practice’ beyond acts or practices done by or within the Commonwealth itself, or other Commonwealth territories, to the notion of acts or practices by States or within- in addition to the ordinary territoriesthe Northern Territory. Its real significance can best be appreciated when it is read in conjunction with the further amendment that is to be moved by both myself and in identical terms, Senator Missen, to insert new clause 16A. That new clause is directed to providing an enforcement mechanism for persons who are found by the Commission to have been on the receiving end of acts or practices which are in breach of human rights. As the proposed new clause 16a is set out it refers only to acts or practices which take place at the Commonwealth or immediate Commonwealth territory level; that is, the Australian Capital Territory and other Commonwealth territories apart from the Northern Territory. Unless the definition of ‘act or practice’ in clause 3 is changed the enforcement mechanism in proposed new clause I 6a will be something of a damp squib. It will be confined solely to the enforcement through the courts of breaches of human rights at the Commonwealth level.
Therein lies the difference between the approach of Senator Missen and the approach of the Opposition in this respect. Senator Missen has made great play of his enthusiasm for extending the scope of this Bill to the States and to the Northern Territory. Indeed, there are some provisions, notably his proposed new paragraph 9 ( 1 ) (ha), which would allow the Human Rights Commission to investigate acts or practices within the States and within the Northern Territory. But that is as far as Senator Missen would have us go. He retreats from the prospect of actually enabling individuals who are aggrieved by offensive acts or practices within the States or within the Northern Territory to have a court remedy. Senator Missen is happy for the Human Rights Commission to investigate such alleged breaches and to report thereon to the Federal Minister. But he does not want to create any right of enforcement once such a finding or determination is made by the Commission. The Opposition, on the contrary, does want there to be such an extended power or right of enforcement in this particular area. We take the view that this is entirely consistent with what most speakers said during the second reading debate, when it seems it was universally acknowledged that the great bulk of offensive intrusions on human rights takes place at the State level.
That is not to make any concessions about the offensiveness of a number of acts and practices, laws and pieces of Executive behaviour which operate at Commonwealth level. Indeed, we have spent a good deal of time this session with Australian Security Intelligence Organisation and Customs legislation protesting against such intrusions of civil liberties at the Commonwealth level. But as we all know, the reality of the matter is that the real offensiveness, the great bulk in volume terms, of the offensive intrusions on civil liberties is taking place at the State level. It is a matter which is common to all the States, although some States single themselves out for special attention. In no State is there satisfactory provision, legislative or otherwise, for the control of police behaviour in criminal investigation. New South Wales has recently enacted legislation relating to complaints against police, but that is as far as it goes. Elsewhere there is a huge vacuum.
No State, again with the possible exception of New South Wales, has anything like adequate legislation or machinery relating to invasion of privacy. Most States, not only Queensland and Western Australia, although they have become the most notorious in this respect, have on their statute books legislation which, if enforced in a ham-handed way, is manifestly offensive to rights of public assembly and freedom of association, assembly and political protest in the public domain. Queensland inevitably comes in for a special degree of singling out and treatment because of the extraordinary width and diversity of the intrusions upon individual liberty that have become characteristic of that State. Even the shortest catalogue of intrusions upon civil liberty in Queensland would necessarily number a dozen major items. There is the treatment of Aborigines and Torres Strait Islanders in the text of legislation and in the circumstances of Executive behaviour and in expressions of governmental attitude. There is also the treatment of trade unions, which is quite offensive to the historical notion of freedom of association of labour which has manifest itself in a number of ways, most recently in the essential services legislation in that State. Some grotesque intrusions have been made into the freedom of political belief in the conduct of the education system in Queensland. It has been commonplace for candidates for political office who have been forced by constitutional provisions to resign in order to contest elections and who have failed to secure election, thereafter not to be reappointed. There is a political gerrymander which operates in Queensland offensive to any concept of equality of voting rights, which is probably the most spectacular in the country. There is a long history of peculiarly venal behaviour in this respect in Queensland, and I certainly do not exempt historically Labor governments from that particular charge. But there is no doubt that at the moment the kind of intrusion on the voting rights which exists in Queensland is the most cynical, the most blatant, the most unself-conscious and the most complete in the Commonwealth.
The behaviour of the police in Queensland, which I mention in general terms, necessarily is the subject of a particular comment, particularly in relation to the findings of the Lucas Committee of Inquiry into the Enforcement of Criminal Law in Queensland. The conduct of the Government in relation to emergency legislation again has been a running sore in Queensland politics for the last decade or more. We had the Mount Isa mines strike in the 1960s, the Springbok visit in 1970, the use of the emergency powers of the transport Act to impose a blanket military-type curfew operation under those circumstances, and now again emergency legislation embodied in the most recent essential services legislation. There is the firearms and offensive weapons legislation which has only recently been introduced into the Queensland Parliament and which entitles the most extraordinarily wide powers of search and seizure, detention on suspicion and the formation of vigilante groups with official State sanction to take place. It is an astonishing piece of legislation. There was the amendment to the Justices Act which achieved notoriety earlier this year which would have removed entirely the traditional right of individuals, without the necessity of government consent, to pursue private prosecutions in criminal courts. So it goes on.
In his speech earlier this evening, Senator Chipp repeated a similar litany. It is a familiar one in any discussion on human rights in this country. Queensland happens to be a special case, but it is only a special case because of the quantity of its offensive legislation and Executive behaviour. It is not especially different qualitatively from the situation which prevails in other States. For that reason it is crucial, if this legislation is to have any utility at all, that it be extended into the State domain, using all the constitutional power that the Government can utilise obviously under the external affairs power. It is not enough, in the view of the Opposition, for the extension of the legislation to take the form simply of enabling the new Commission to engage in inquiries and reports. We are not sufficiently confident of the utility of report and publicity associated with breaches of human rights. There have been reports and innumerable publicity in recent years relating to the situation in Queensland and elsewhere. But regrettably the situation has remained unchanged. The Opposition takes the view that if one is going to be serious about this and serious about improving standards within the States, there must be some kind of enforcement teeth in the legislation itself. It is for that reason that I have moved the enforcement provision amendment in clause 16 (a). I have moved the amendment to clause 16 (a) to give that clause bite and effect in the States and the Northern Territory.
I conclude by saying that the Attorney resisted any suggestion that the legislation should have any effect on the State arena at all by saying that it was really a matter of accepting the federal tradition of this country and in particular accepting the view about the inappropriateness of the Commonwealths entering in any intrusive or forced kind of way into areas of jurisdiction which had belonged traditionally to the States. It seems to me and to the Opposition that one cannot go on then to claim, as the Attorney did, that federalism was its own guarantee in a sense of human rights and that somehow that principle of federalism on which he relied to justify the nonextension of the Bill into that area was itself a human rights guarantee of a kind.
The Opposition takes the view that the whole history of federations- I refer not only to Australia in this respect but in particular to the United States- is that they simply cannot be relied upon to protect through the participation of their member units the civil rights of individuals. It has been a classic phenomenon in the American experience that the worst breaches of human rights, particularly in the racial discrimination area, were in the State area in the South. It was necessary for federal legislation to be enacted to overcome them. Similarly, in Australia it is obvious that the Federal principle of letting the States do their own thing has produced nothing but a continued record of disaster with regard to civil liberty principles. There is a conflict between the federalist principle and the human rights principle. The Attorney and the Government cannot have it both ways. They have to choose. They have made clear their choice. They have chosen the federal principle rather than the human rights principle. Let that be openly and overtly acknowledged for the sellout that it is by a government which claims to be genuine in its protection of human rights. For so long as it maintains this resistance to the extension of federal legislation into the areas where the real problems are it cannot credibly and respectably hold up its head internationally or within Australia as a defender of human rights.
-I oppose this amendment. It takes us into a different field altogether. (Quorum formed). In opposing this amendment I trust that I will be shorter than Senator Evans was in supporting it. I believe that Opposition senators have fallen into the usual lemming-like trap.
– What is a lemming-like trap?
-I am glad that Senator Wheeldon wants to know. I would not like him to face the position of being one of the Opposition senators to go forward over the cliff one after another. They have done it earlier. Senator Murphy did it with his Bill. He took on the States and found that the States would not have a bar of it. Rightly, of course, they were worried by the provisions that he put forward. If this amendment were carried, the same problem would arise again. What it does in effect is to redefine the acts or practices in the Bill. It would have the effect that the amendment which I propose to move later to enable those acts or practices to be investigated and reported on by the Commission would also relate to the State acts or practices. It is quite clear that if that happened we would have the same row with the States. It is all right for Senator Evans to say one has to choose between the federalist principle and the human rights principle. He is insisting on these two coming into conflict. (Quorum formed). To add this definition and to bring the States into this will mean that one would have an obvious war, a fight between the federalist principle being espoused by the States and the human rights principle. They should not be brought into conflict. We should avoid that as far as possible. If, in fact, the Senate carries my amendment this will enable the Acts and practices of the Commonwealth to be investigated. It may be that as a result of investigations of the powers of the Commission and subsequent investigations, or the operation of a sunset clause, the legislation will be found inadequate and that we will have to go further.
Let us start by looking at the Acts and practices of the Commonwealth, those that are within the jurisdiction and control of this particular Parliament. (Quorum formed). I appreciate the avid desire of the Opposition to give me a sound audience but it is not easy to keep the line of one’s argument in these circumstances. I think the position here is quite clear. I seek to improve this Bill, to move a step further so that we investigate the great mass of complaints in this country. We should not rush headlong into an area where we are starting to change the laws and to enforce State laws, thus inviting an unnecessary battle with the States. Because of the distinction between these things and the situation we are in, because of the unreality of the proposal that Senator Evans and the Labor Party put forward here, I urge that this amendment be rejected.
– I enter this debate with some trepidation, being a humble railwayman and not a legal man. I think it is an opportunity to raise a couple of issues.
– You don’t have to be humble as a railwayman.
-1 will accept that. I want to refer to Senator Missen ‘s idea. I suppose his text for the day would be: ‘Hasten slowly.’ If Senator Durack, the Attorney-General of Australia- I know that he reads extensively- had read much about the career of Bobby Kennedy when he was the Attorney-General of the United States of America and a student named Meredith who was seeking to enter the University of Alabama, he would have seen the difficulty. If the Missen posture had been adopted the approach would have been: ‘Let it coast along for a couple of years until we get harmony’. There is no way that one would get harmony with the Deep South mentality.
Without quarrelling with honourable senators from Queensland, there is a distinct affinity between that example and the attitude of Queensland Ministers. This was borne out by Senator Bonner some months ago. If one of these confrontations occurs- and it will- and the legislation is diluted and does not have the teeth that Senator Evans is trying to put into it, we will have one of those American stand-off situations. I am still of the opinion that if Mr Porter and other people in the Queensland Parliament had faced federal action, they would have been much more docile in response to the aims of Senator Bonner and the Opposition. That is the first point that I make.
Secondly, without getting too partisan about the First World War conscription legislation, the fact of the matter was that the conservative elements of this country were confronted with
State defiance in response to the conscription referendums. The then Prime Minister- I think he held the portfolio of Attorney-General at various times, although he was not a legal man- William Morris Hughes, created the Commonwealth Police. There are minuses and pluses. Senator Chipp would probably agree on this point. Why have two bites of the cherry? The amendment that is proposed by Senator Evans anticipates a situation that can and will occur. It brings the Parliament into ill repute when we bring down legislation that has no bite and that fails in its objective. It is on those two particular grounds that I support the amendment proposed by Senator Evans.
– I support Senator Evans. I do so by way of reply to Senator Missen. It seems to me that Senator Missen is somewhat inconsistent in his approach. Within the amendments he has circulated, he has made it quite clear that the political possibility of confrontation exists on the very scheme which he is putting forward to the Senate. He has indicated that he would wish this chamber to enable the Human Rights Commission to examine Acts or enactments of States or the Northern Territory. He wishes the Commission to inquire and to report to the Minister and thence to the Parliament on State enactments or Acts or activities engaged in by State authorities under State laws which infringe upon human rights. In the very proposals put forward by Senator Missen is the possibility of confrontation and the generation of political ill will.
– The possibility, not the certainty.
– No more or less certain than in the proposal put forward by Senator Evans. It is simply that where the activity, engaged in by a government authority under or by authority of a State law is identified as being in conflict with human rights, is reported to the Minister and that information is laid before the Parliament 1 5 sitting days later- which is all consistent with Senator Missen ‘s approach- we say that we should go one step further and ensure that there is a mechanism available whereby rights can be enforced. Senator Missen is in favour of rights being enforced in the Commonwealth sphere. We say that to be consistent he ought to enable rights to be enforced when they are found to be in jeopardy because of some action under State law.
– I have an open mind on this. Both Senator Mason and I have been persuaded by Senator Evans to vote for the amendment. I have an enormous respect for the legal ability, knowledge and humanitarian motives of Senator Missen. But he failed to persuade me that this proposal is a lemming-like act of the Australian Labor Party. Although I did a few years study of law I am so rusty now that I often speak in ignorance when talking about legal matters. I remember- my memory was jogged by Senator Evans during his speech- that one of the most inhuman, unchristian and rotten things to have been done in this country in recent years against human rights was done by Mr Bjelke-Petersen at the last federal election when, for political purposes or reasons, he denied to helpless and harmless Aboriginal people the receiving of eye treatment. I think that that act is totally indefensible. In standing up here and pretending that we are concerned about human rights we should not be as concerned about the kind of people who are articulate and who can make flowery speeches as we are about the little guy, the person who cannot battle for himself, such as the helpless, illiterate Aborigines who have a serious eye disease that might send them blind. With my limited knowledge of the law, I would say that Senator Evans’s amendment would at least allow the Human Rights Commission to inquire into that. Opposing this amendment would preclude the Commission from inquiring into and acting upon those sorts of things.
– Not at all.
– I confess that it is quite possible that I have misunderstood the situation because I am not a lawyer, but for the reasons I have outlined the Australian Democrats will support Senator Evans’s amendment.
– The Government is opposed to the amendment. The reasons for the opposition to it were outlined by me in my response to the debate on the motion for the second reading of the Bill. I do not see any good purpose in reiterating the principles of federalism under our Constitution which this Government espouses. Our adherence to that dictates our opposition to this amendment.
Clause agreed to.
Clause 4 agreed to.
– I move:
Page 4, clause5, lines 1 and 2, leave out ‘but does not bind the Crown in right of a State or the Northern Territory’, insert ‘and of each State and the Northern Territory’.
This amendment would have the effect of amending the terms of clause 5 so that it extends to bind not only the Commonwealth but also the Crown in right of any State or of the Northern Territory. The amendment is a corollary of the previous one that I moved. The reasons to be advanced for it are exactly the same as those I indicated with respect to the previous amendment. So there is no necessity for me to speak further to the amendment.
– The Government opposes the amendment for the same reasons as I gave in opposing the previous amendment.
Proposed new clause 5a.
– I move:
Page 4, after clause 5, insert the following new clause: 5 a. Approval is given to ratification by Australia of the Covenant.’.
It seems to me that it is quite important that in passing a Bill like this we ought to place on record the approval which the Parliament gives to the ratification of the International Covenant on Civil and Political Rights. I agree, of course, that it is not essential for the Government to do this by way of Executive act as it can do it by way of Executive act if it is motivated to do so, but I believe that it is high time that we placed on record, in passing this Bill, that we desire that to be done. This is, of course, not binding on the Government as to the particular time at which it does it or, necessarily, to the possibility that the Government may not agree to be bound by every one of the Articles. Nonetheless, it would be an indication of the Parliament’s general approval. This Bill would show a general desire to ratify the Covenant. The precedent for this action is very obviously the Racial Discrimination Act of 1975 when precisely the same clause was carried. We there approved and set up a system whereby we were to enforce a different international covenant, but in that Act we expressly made the provision that would authorise and indicate the desirability in the Parliament’s thinking of the ratification of the Covenant. I believe it is desirable and it may well expedite the actual ratification of the Covenant.
One hears vague statements made about the difficulties of that ratification. There seems to be some thought that, because our laws do not accord entirely with the provisions in the
Covenant, somehow we are not in a position to ratify it. I believe that it is not so, and I doubt very much whether our laws ever will- certainly not in the foreseeable future- entirely accord with the Covenant. So, that cannot be a reason for not ratifying the Covenant. We have gone past the 25th anniversary, the 30th anniversary, and I think we are getting close to the 31st anniversary of the opportunity of ratifying the Covenant and we have not done it. I believe that, in passing this Bill, we should indicate that the Parliament has a view on the subject of ratification. It is for those purposes that I move this amendment
-An amendment in identical terms has been circulated by the Opposition. For that reason we support Senator Missen ‘s amendment, as indeed we will be, I take it, ad idem, on a number of other matters during the remainder of this evening. The importance of the amendment is, as Senator Missen said, essentially symbolic. It is acknowledged by the Opposition, as it was by Senator Missen, that a provision of this kind, albeit that it does appear in the Racial Discrimination Act, is not technically necessary. In Australia the Executive can, quite without any parliamentary approval, ratify international treaties, unlike the situation in the United States where any treaty ratification has to be with the advice and consent of the Senate.
The real significance, as the Opposition sees it, of this particular clause is that its enactment by the Parliament would represent an absolutely unequivocal commitment by the Parliament to the ratification of this covenant, which is an important matter to be accorded legislative form given, as Senator Missen said, the long and unhappy history of Australia’s failure so far to ratify the Covenant despite numerous promises to do so in 1973, again in 1978 to coincide with the 30th anniversary, and presumably again this year. There has been an awful lot of fiddling and fussing about done by the Commonwealth Government in this respect. It is important that finally a firm decision be taken to proceed with the ratification and that be given explicit legislative form.
I notice that the Attorney-General (Senator Durack) has circulated his own amendment, a proposed new clause 3lA which provides, in effect, for the public notification of the terms of Australia’s ratification of this Covenant and indeed our accession- if that ever happens- to other international instruments. May I suggest, with all respect, that if this is intended to be some kind of sweetener for the Government’s rejection of this proposed new clause 5a, it certainly does not have that effect so far as the Opposition is concerned. We regard the proposed new clause 3 lA as a piece of empty nonsense, given that the terms of the ratification could be normally expected in the ordinary course to be publicised in the Gazette, if not elsewhere, and for this particular provision to appear in the statute in these terms appears to us to add absolutely nothing of substantive significance or effect. Certainly it is not of the same significance or effect as the kind of provision that we are seeking to incorporate.
On the subject of the Covenant and its ratification, none of us ought to be under any illusions about what ratification by itself will actually achieve. Certainly it will help, just as every accession by another country does, to give extra weight and status to the Covenant and thereby help give some strength and credence to the international human rights movement. I suppose it will do something to burnish Australia’s image internationally and help to justify our rather undeserved place on the United Nations Human Rights Commission, and perhaps enable us to earn one in due course under the Human Rights Committee which is established under this Covenant. Of course, ratification does not necessarily mean that this will have any direct and immediate effect on the rights and liberties of ordinary Australians.
Ratification of the Covenant does no more than oblige Australia to report periodically to the Treaty Committee. By itself it does not mean that Australia is in any way subject to critical investigation by international agencies either at the instigation of some other national party to the Covenant or some individual petitioner. It is only if we accede in addition to the Covenant to the optional protocol that goes with it, which does not seem, regrettably, to have been seriously proposed hitherto by any government, Labor or Liberal, that there would be any really significant implications associated with attachment to international machinery, because accession to the optional protocol would mean that individual human rights grievances could be the subject of complaint, investigation and report in the international forum.
I foreshadow something of a continued prodding over the next few months and years on the Government on the subject of the optional protocol because I genuinely believe- I hope the Opposition will be with me in this respect- that the optional protocol is perhaps the most significant part of the International Covenant on Civil and Political Rights. All that said, nonetheless I repeat that the ratification of the Covenant has an obvious symbolic significance in all sorts of ways. Governments of both colours have been mucking about long enough on the question of ratification. There is no legal hindrance, as Senator Missen has said, to our ability to ratify the Covenant, whatever the State of Australian law and whether this Bill is passed and in whatever form. For that reason we support quite strongly Senator Missen ‘s amendment.
– I support the amendment that Senator Missen has put forward for the ratification of the Covenant at this stage. As has been rightly pointed out, the Covenant can be ratified at any stage by Executive action. Presumably that Executive action can be a qualified form of action; that is to say, the Executive can ratify this with qualifications attached. Article 4, paragraph 2 of the Covenant itself, reads:
No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, IS, 1 6 and 1 8 may be made under this provision.
I am concerned that a clear statement ought to be made. If it is not a statement of intent, I would prefer a statement by way of amendment to this legislation that we intend to ratify this Covenant without any derogation from Article 50 which makes the terms and conditions of the Covenant binding upon all parts of federal states without any limitation or exception. I am concerned that the Parliament should state clearly that it believes that the convention should be ratified in an unqualified fashion, so that no attempt is made to derogate from the effect of Article 50 extending the operations or the coverage of the Covenant to all parts of the federal state. Nothing would constitute a greater betrayal, in my judgment, than to ratify this convention and at the same time seek to make some derogation from the provisions of Article 50.
The Attorney-General (Senator Durack) in his response to the second reading debate tonight raised a number of matters which relate directly to this in terms of the way in which he structured his argument about political philosophy and the federal principle. I think we on this side of the chamber are all aware of the importance which all of us attach in varying degrees to the federal principle. This has not stopped previous governments from acting in a way that sought to override State legislation. The Commonwealth Electoral Act has been used to override legislation in Queensland and has been upheld in that regard by the High Court. The Conciliation and Arbitration Act has been used to override the New South Wales factories and shops legislation. The accession of the Commonwealth to an international obligation as far as civil aviation is concerned by the passage of the Air Navigation Act, was used by the Menzies Government to override the provisions of the New South Wales legislation in relation to the control of civil aviation. I do not think anybody would have believed that the Menzies Government was not a government which placed a high value on the concept of federation or federalism.
If one looks at the Senate Hansard of 27 November 1974 one will see a second reading speech made by Senator Cavanagh, the then Minister for Aboriginal Affairs, on a Bill entitled: Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Bill 1974. Senator Cavanagh said:
The purpose of this Bill is to supersede certain provisions of the laws of Queensland that discriminate against Aborigines and Torres Strait Islanders and deny them basic human rights. (Quorum formed). It will be seen on page 3191 of the Senate Hansard of 5 December 1974 that Senator Rae, leading the debate for the then Opposition, recognised the import of the Bill. He said:
The Bill with which we are concerned will override certain Queensland legislation relating to Aboriginal people in that State.
On page 3281 of the Senate Hansard on 10 December 1974 it will be seen that the Bill passed through the first two stages and was read a second time without any dissent. So the parties on this side of the chamber, who then constituted the Opposition, had absolutely no problem with the federalist principle when it came to specifically overriding discriminatory laws which sought to deny human rights to Aboriginals in Queensland. I believe that the import of this matter is, as Senator Evans indicated, partly symbolic as well as having some statement to make. I believe that the symbolic gesture of saying that we are establishing a human rights commission and that its job is to monitor compliance with the international covenant should be followed by the third step of saying that we now ratify the International Covenant on Civil and Political Rights and give a clear expression of our bona fides in this matter. It is for those reasons that I support the amendment moved by Senator Missen.
- Senator Sheil, in his speech on the second reading, led honourable senators into some rather strange and tempting territory. I do not really believe and the Australian Democrats do not really believe that we have anything other than a responsibility to ratify the Covenant because, if nothing else, it is a forcible example that this country can exert in its own region and in the world. I do not agree with Senator Puplick that there is any need for a qualification of ratification; we are not being drawn into some terrible international net of intrigue by ratifying this Covenant after all this time. Finally, I say on behalf of the Australian Democrats that if this cosmetic Bill- for it will be that if it does proceed without amendment and certainly it will proceed without substantial amendment- is to go through in its present weak and flabby form it might as well achieve its primary function, which is presumably a lead-up to the ratification. Why not let us have it here and now in the Bill?
– I oppose this amendment, though I was rather tempted by Senator Puplick ‘s ingenious attempt to link ratification with a specific reference to clause 50 of the Covenant. As I stated in my speech on the second reading, my worry is that if we as a Parliament give an imprimatur to ratification we should first be satisfied that the Bill is effective. I am far from satisfied that it is or will be effective. The decision to ratify the Covenant is an Executive one. The AttorneyGeneral (Senator Durack) has outlined the measures he will take to try to ensure that it is honourably entered into. I do not think that as a Parliament we should give our imprimatur to that ratification of the Covenant because I do not believe the present Bill is an adequate means of ensuring the provisions of the Covenant are implemented in Australia.
– I support the amendment moved by Senator Missen because I believe the words are not as strong as Senator Hamer indicated in his remarks. All that is stated is that approval is given to ratification by the Parliament. It seems to me that those words bear a couple of senses. One is that it is an expression of a hope or desire by this Parliament that approval will be given and notified to the Government and that not hindrance will be put in the way of government ratification by this Parliament. Perhaps more importantly, the second sense is the ambulatory one, that whenever ratification is entered into by the Executive, approval by this Parliament attaches to that act of ratification. I think that that establishes a very important principle that we should try to establish by practice and convention, namely, that when the Australian Government enters into treaty commitments either bilaterally or multilaterally, as is the case here under the aegis of the
United Nations, this Parliament ought to be involved and a practice ought to grow whereby this Parliament, whilst recognising that entering into treaties in our tradition as opposed to that of the United States is a matter for the Executive, nevertheless ought to give its approval to such ratification.
I believe that this is the weakness of the circulated amendment of the Attorney-General (Senator Durack) to introduce a new clause 3 1 A, which leaves the whole process of ratification and its notification to the Australian public simply within the counsels of the Executive government. I believe the merit of Senator Missen ‘s proposal, which is in similar terms to the proposal put forward by the Labor Party and endorsed by the Australian Democrats, is that it may, along with the similar clauses in the Racial Discrimination Act and the proposed similar clause in former Senator Murphy’s Bill on Human rights, build up a practice whereby this Parliament is involved in the process of telling the international community that we will be bound in some particular manner.
In conclusion, I simply wish to endorse the remarks of Senator Puplick and to express the same fear that I expressed in my second reading speech, that perhaps we have not yet had ratification at this date because the Government is unable or unwilling to go to the international community and say that it will endorse the Covenant as a whole, including Article 50, which requires of this Government that it ensures that these human rights are effectively guaranteed throughout the length and breadth of Australia, in a sense without regard to its specific federal characteristics. In other words, from the point of view of other nation states, we go into the international community as an unitary state guaranteeing that wherever human rights are violated in Australia they will effectively be remedied in accordance with the criteria set up by the Covenant. For those reasons I support the amendment.
– I trust I will be able to close this debate. If so, we might be able to close the Senate shortly afterwards. The Government is opposed to this amendment. The position is that the ratification of treaties is an Executive act, not a legislative act. The terms in which ratification is made are a matter for the Executive. I have explained in the debate the position which the Government is taking. We are taking the view that the International Covenant on Civil and Political Rights should be ratified as an Australia-wide responsibility and adopted as such by the States as well as by the Commonwealth Government. There are certain difficulties in respect of some clauses which would be problems whether we were a federal or a unitary state. When the United Kingdom ratified it did so on certain terms. We are considering what are the minimum terms on which we can achieve that Australia-wide acceptance of the Covenant.
As I said, these are matters on which I cannot yet report to the Parliament because considerations have not been completed. No decisions have been made. As soon as they are those decisions will be conveyed to the Parliament. Passing this amendment would be purely a pious exercise because the Parliament would only be expressing approval. This amendment would not ratify the Covenant. The ratification is an Executive act.
– You did not oppose it in the Racial Discrimination Act in 1 975.
– It had been ratified when the Racial Discrimination Act was passed. I am advised that the International Convention on the Elimination of all Forms of Racial Discrimination had then been ratified. As I said, we are in the process of trying to seek terms on which it can be ratified. That is an Executive act. The Government’s view is that it ought to remain in accordance with the constitutional principles. For those reasons the Government opposes the amendment.
Wednesday, 14 November 1979
That the words proposed to be inserted (Senator Missen’s amendment) be inserted.
The Committee divided. (The Chairman- Senator D. B. Scott)
Question so resolved in the negative.
Motion ( by Senator Durack) proposed:
That the Senate do now adjourn.
-I rise very briefly simply to record a matter in which I was involved in Sydney this morning and which is of some importance. At 10 o’clock this morning I was at a Press conference at which a petition relating to marihuana law reform was presented to a member of the New South Wales Parliament for presentation to that Parliament this afternoon. The petition had been circulated in New South Wales by a group of volunteers since early February of this year. In the course of that mere 10 months that group had obtained some 160,000 signatures, which I think is an extraordinarily dramatic indication of the support for marihuana law reform by a very wide range of people in that State.
– This was to smoke pot?
– It was not so much to smoke pot. For example, I signed the petition, yet I do not advocate smoking marihuana; nor, of course, do I smoke it. But the object of the petition is twofold. Firstly, of course, it seeks simply to remove the criminal stigma from many hundreds of thousands of Australians- panicularly young Australians- who find that they are vulnerable and defenceless in the face of a decision by the police to enforce this law against them. It affects only those people who are particularly vulnerable and defenceless. The statistics I compiled in Tasmania in 1976 showed that one-half of those people convicted for marihuana related offences were either labourers or unemployed. If one looks at the number of person who actually engage in the use of marihuana, there is no doubt that one-half of users simply are not unemployed or labourers. Of course, that partly explains why I believe that a party which espouses the cause of those who are vulnerable to the use of legalised force in the community ought to be involved in measures for law reform in this area.
It is a fact that many young Australians have their careers blighted, have years of training undone, and have the acquisition of skill negated by a conviction which may have the effect of either requiring their suspension from the work in which they are involved or inhibiting a potential employer from taking them on. For that reason alone one should support moves which seek the removal of criminal penalties from this area of recreational drug use.
But secondly, and more importantly, the petition advocates that a cannabis control board be established in order that the Government may authorise the distribution of this drug. This would have the effect of smashing the criminal rackets which Mr Justice Woodward has revealed exist. All that the present law does is to ensure that hundreds of thousands of Australians are forced into a semi-criminal sub-culture to conduct their furtive dealings, within which they are vulnerable to those unscrupulous traders who have an interest in moving them onto the consumption of harder drugs to the traders’ great profit. It is a fact, as I have said, that this law ensures that a ready amount of funds continues to flow to those unscrupulous traders, who will then use those moneys for more nefarious and damaging activities in the community. I believe that for those two reasons this type of petition ought to be supported. They explain the widespread support it received in the community.
Thirdly, I believe that the petition received support because there is a widespread feeling in society that, while there is a certain hypocrisy in society, while the brewery barons and the tobacco tycoons are showered with honours and society turns against users of marihuana with this repressive legislation, there will be no widespread community support for a proper drug abuse education program. In other words, when there is a feeling of unfairness among hundreds and thousands of Australians whereby they see on the one hand, society authorising, legalising and making big money by way of excise and normal company and income taxation out of the circulation of authorised drugs, such as tobacco, alcohol and analgesics, and, on the other, repressive legislation which characterises the attack on marihuana users and which Mr Justice Woodward recommended ought to be strengthened in its penalties, it is no wonder that there is no widespread community support for what ought to be the situation, namely, an evenhanded attack on drug abuse, of whatever character, which is occurring throughout the Australian community. There is no doubt that, as Senator Baume ‘s committee reported, we do live in a drug ridden society.
It is not my intention to go over those arguments. What I think is important to note is simply that, despite the alienation of marihuana users from the police and court authorities, despite their disillusionment with the fact that Parliament has not acted to relieve them of a criminal status which they do not deserve because, in all other respects, they are honest, decent, generally hard-working citizens, marihuana users, who must number many thousands of the 160,000 people who signed the petition, have said to the New South Wales Parliament, and I believe it could be said by marihuana users in other State jurisdictions to their parliamentarians: ‘We will give one last chance for nonviolent social change to work ‘.
I believe the significance of this petition lies in the fact that it is signed by probably the most widespread grass roots movement for nonviolent social change since the peace marches of the late 1960s and early 1970s. I believe that the petition is saying to the parliamentarians concerned: ‘We are utilising this ancient democratic privilege of presenting a petition to the Parliament, and we are doing so in our hundreds of thousands, because we want social change to occur through the normal political processes. Despite the fact that we have been harrassed by the law year after year, despite the fact that our careers have been put in jeopardy, we will not do anything more drastic at this stage than to indicate to the Parliament the widespread support for social reform in this area’. For that reason, it was very disappointing that the Australian Broadcasting Commission was the only section of the media represented at the launching, although, I believe, all sections of the media had been contacted by the marihuana petition organisation leaders.
– What was launched? Was it the launching of a petition?
– It was the culmination of the gathering of signatures for a petition which was presented to the New South Wales Parliament this afternoon. It seems to me to be a cause of regret that the media did not perceive in this petition a very democratic and a very widely supported mechanism for achieving social change. I believe that the media were remiss in not being present in order to report to the New South Wales and the Australian public about this very important event. I pay tribute to the three principal organisers of the Marihuana Petition Organisation- Neil Hutchinson, Burke Rhys and Tony Kew- who over the last year have carried a tremendous burden of organisation, to the detriment of their careers and their health, and certainly to the detriment of their general wellbeing. I believe that they have acted extremely responsibly and in a way which perhaps gives the lie to those who think that all marihuana users are apathetic moral destitutes. These people, seeing a social problem, did not merely whine about it or resort to some sort of cop-out from society. They utilised democratic forms in order to bring their case for reform before the New South Wales Parliament. I hope that the parliamentarians involved will take note not only of the substance of the petition but also of the tremendous number of signatures- some 160,000 were gained in about 10 months in New South Wales alone- and respond in a democratic fashion which is tolerant and will demonstrate to the petitioners that we have a robust, tolerant society which can contain within it minority groups pursuing beliefs and practices such as alternative drug use, as long as they do not involve violence to others.
– It was not my intention to speak, but I could not allow Senator Tate ‘s remarks to go unchallenged. We frequently hear references to the legalisation of marihuana by some means or other, and of course a large group of Australians believe that it should be legalised. But is it right? That is the question. If people wish to smoke marihuana, should we prevent them from doing so? Is it harmful? All the inquiries that have been conducted, and I was a member of a Senate committee which inquired into drugs, and all medical opinion states that it is harmful or at least indicates that the harmful effects of marihuana are not known. Whilst it can be said that at this stage marihuana is no more harmful than beer or tobacco, research is not sufficiently advanced for us to know the harmful effects it may have in the years to come. The fact is that marihuana does have some harmful effects in regard to driving and so on. The method of taking the drug- inhaling the smoke and discharging itmust have some effect.
The important thing is that, whilst we know that tobacco and alcohol are dangerous drugs, they are drugs that society has accepted. They have been advertised and pushed so much that most people who drink and smoke at the present time started doing so in the belief that it was not harmful. Now it is suggested that we license a drug that at present is not licensed, encourage promoters to advertise it, and make it regularly available to innocent people, who may adopt the habit without knowing what the consequences will be in future years. Of course, marihuana is already available on a large scale, and in that regard the report of the Woodward inquiry set out what happened in the Riverina. To suggest that the Government should set up a shop to issue drugs to those who want them, even though the drugs may not be addictive, is beyond my comprehension.
Whilst I do not want to take the matter any further, I agree that we should not make criminals of the innocents who smoke it. I think that the use of marihuana should be decriminalised, although we cannot do that with justification without imposing some penalty where there has been a breach of the law. The committee of which I was a member recommended a reduction in the penalties for the use of marihuana. But for God ‘s sake do not let us bring into our society another harmful drug for the purpose of illtreating future generations, as we have been illtreated by other interests’ selling tobacco and liquor.
Question resolved in the affirmative.
Senate adjourned at 12.21 (Wednesday).
The following answers to questions were circulated:
asked the Minister representing the Minister for National Development, upon notice, on 20 March 1 979:
– The Minister for National Development has provided the following answer to the honourable senator’s question:
1 ) Eric White Associates were appointed by me following consideration and recommendation of officers of the Commonwealth and State Governments. Eric White Associates have advised:
asked the Minister representing the Minister for Transport, upon notice, on 7 June 1979:
– The Minister for Transport has provided the following answer to the honourable senator’s question:
Importation of World War II Artillery Weapons (Question No. 1744)
asked the Minister representing the Minister for Business and Consumer Affairs, upon notice, on 22 August 1 979:
Why has the Government not forbidden the importation of World War II artillery weapons, namely the five shot German-made 7.92 millimetre Granat Buchse and .55 millimetre single-shot Boys, which are being marketed by IOPA Imports Limited, and which could be utilised by terrorist groups.
– The Minister for Business and Consumer Affairs has provided the following answer to the honourable senator’s question:
Boys’ Anti-Tank rifles of .55 inch calibre have been imported by IOPA Imports, Brisbane. A sample only of the 7.92 mm ‘Granatbuchse’ Anti-Tank rifle has been imported.
Prior to importation the importer submitted a sample of each weapon to both Commonwealth and Queensland Police who indicated that they had no objection to the importation.
The ‘Boys’ rifle is an extremely large and awkward model to handle and is claimed to be of little practical use. It is regarded as an obsolete model with ammunition being no longer freely available and the rifles were imported therefore as collectors ‘items.
Under a proposed amendment to Queensland law, any future importation of the ‘Boys’ and ‘Granatbuchse’ rifles will be permitted only for sale to genuine collectors and subject to the agreement of the State Police authority.
Unemployment Benefit: Work-test (Question No. 1842)
asked the Minister representing the Minister for Employment and Youth Affairs, upon notice, on 29 August 1979:
– The Minister for Employment and Youth Affairs has provided the following answer to the honourable senator’s question:
Croatian Language: Recognition as Community Language (Question No. 1843)
asked the Minister representing the Minister for Immigration and Ethnic Affairs, upon notice, on 30 August 1979:
Constitution of the Socialist Republic of Croatia, and by several Australian State Governments.
– The Minister for Immigration and Ethnic Affairs has provided the following answer to the honourable senator’s question:
There are also circumstances in which the use of Croatian in spoken form can assist communication. An example is its use in ethnic radio.
When considering the languages to be used for spoken or written communication between departments and authorities and various groups of people within the Australian community, it is necessary to have regard to the purpose and content of the material and the circumstances in each case. Factors to be weighed include the number of languages to be used, their effectiveness in communicating with the groups most in need of the specific services or information and the overall costs. There is no ‘official ‘ list of languages used for all purposes.
Excise on Spirits (Question No. 1867)
asked the Minister representing the Minister for Business and Consumer Affairs, upon notice, on 30 August 1979:
– The Minister for Business and Consumer Affairs has provided the following answer to the honourable senator’s question:
Normal commercial practices (which must comply with State legislation) attesting to spirit strength, and thus duty liability, are accepted by the Department where such have been assessed as being suitable. This does not however preclude Customs from initiating its own analysis to verify spirit strength and compliance with provisions of the Spirits Act and Regulations pertaining to the quality of spirits. Analysis, initiated on a selective or needs basis, is directed towards either bulk or bottled stock.
and (4) In the vast majority of cases, blending and bottling of spirits from bulk stocks occurs in warehouses licenced in terms of the Customs Act. However, Customs legislation does not prevent any operator, large or small, from removing bulk spirit from bond after paying duty, and then bottling the spirits outside Customs Control. This commercial practice does not relieve the owner of a responsibility to comply with the provisions of the Spirits Act and Regulations. There have been successful prosecutions and seizure of spirits mounted against companies which bottled adulterated spirits out of bond and breached provisions of the Spirits Act.
asked the Minister for Social Security, upon notice, on 12 September 1979:
– The answer to the honourable senator’s question is as follows:
In Statement No. 3 attached to the 1978-79 Budget Speech it was stated that approximately half of the estimated gross savings of $ 100m in 1978-79 stemming from the review of my Department’s systems and procedures were reflected in that year’s unemployment benefits estimate. The additional staff and other resources required to achieve the total savings were estimated to cost $6. 7m in 1 978-79.
It is not possible to quantify in monetary terms the actual effect that the procedural changes stemming from the review had on my Department’s expenditures but available information indicates that savings of the order of $100m were achieved.
In the unemployment benefit area, indications suggest that the incidence of fraud, abuse and error has moved firmly downwards. There have been fundamental changes in my Department’s methods designed to prevent false claims, such as interviewing applicants before benefits are approved. The numbers of staff available to prevent false claims have been increased.
As a direct result of the increased workloads associated with the implementation of these new procedures, the recruitment of some 47S additional staff, in the following functional areas, was justified during the course of the 1978-79 financial yean
The additional 475 staff would have been attached to organisational units which already included numerous staff performing similar duties; all of these staff would have contributed to some extent to the performance of both the new tasks and normal ongoing tasks.
Other associated administrative costs met by my Department related directly to this staff were in the order of $0.2 m.
The additional staff did not commence duty until late in the financial year and on average were employed for only the last four months of the year.
asked the Minister for Education, upon notice, on 12 September 1979:
– The answer to the honourable senator’s question is as follows:
asked the Minister for Science and the Environment, upon notice, on 10 October 1979:
Has the Commonwealth Scientific and Industrial Research Organisation undertaken any research on the black marlin in Australian waters; if so, what are the details.
– The answer to the honourable senator’s question is as follows:
CSIRO has not undertaken research on the black marlin in Australian waters.
Following discussions with the Department of Primary Industry, it has been agreed that the CSIRO Division of Fisheries and Oceanography will sample waters within the Coral Sea for eggs and larvae of black marlin, commencing towards the end of 1979. This study will assist the Australian authorities to monitor the effect of Japanese longline fishing activities in Australian waters off the coast of northern Queensland.
asked the Minister representing the Minister for Business and Consumer Affairs, upon notice, on 1 1 October 1979:
Senator Durack the Minister for Business and Consumer Affairs has provided the following answer to the honourable senator’s question:
End use controls and expert knowledge of potentially toxic industrial chemicals rest with other Commonwealth and State departments and authorities. Those bodies bring to the notice of the Department of Business and Consumer Affairs cases where sampling may be required or positive import restrictions and prohibitions should be introduced.
asked the Minister representing the Minister for the Capital Territory, upon notice, on 16 October 1979:
What are the estimated costs of fixtures and fittings in office suites for the Chief Justice and each other High Court Judge, in the High Court building presently under construction in Canberra (see Part 4 of the answer to Senate Question No. 19 12, Hansard, 9 October 1979, page 1127).
– The Minister for the Capital Territory has provided me with the following answer to the honourable senator’s question:
The estimated costs of fixtures and fittings in office suites for the Chief Justice and each other High Court Judge in the High Court building are:
Chief Justice’s Suite-$36,000.
Justice’s Suite 1- $35,100.
Justice ‘s Suite 2-$38,900.
Justice’s Suite 3-$26,500.
Justice ‘s Suite 4-$32,700.
Justice’s Suite 5-832,100.
Justice ‘s Suite 6-$46,400.
The differences in costs arise mainly from different layouts, and from variations in timber used.
Share Speculation by Consulting Geologists (Question No. 2076)
asked the Minister representing the Minister for Business and Consumer Affairs, upon notice, on 16 October 1979:
– The Minister for Business and Consumer Affairs has provided the following answer to the honourable senator’s question:
The ICAC Companies Acts contain provisions regulating the offering of shares, debentures and interests to the public. This regulation is found in what are known as the prospectus provisions (Division 1 Part IV). In general, these provisions seek to ensure that there is adequate information contained in a prospectus and that that information is accurate.
The ICAC Securities Industry Acts prohibit the dealing in securities by persons who possess price sensitive information that is not generally available to the public.
Prior to its introduction into Parliament, it is expected that the substantive legislation under the co-operative companies and securities scheme will be exposed to the public for comment.
Petrol Sniffing by Aboriginal Children (Question No. 2088)
asked the Minister for Aboriginal Affairs, upon notice, on 17 October 1979:
– The answer to the honourable senator’s question is as follows:
asked the Minister representing the Minister for Defence, upon notice, on 1 8 October 1979:
– The Minister for Defence has provided the following answer to the honourable senator’s question:
Housing Program at Wreck Bay (Question No. 2102)
asked the Minister for Aboriginal Affairs, upon notice, on 1 8 October 1 979:
– The answer to the honourable senator’s question is as follows:
Right Hon. I. McC. Sinclair (Question No. 2104)
asked the Minister representing the Minister for Administrative Services, upon notice, on 1 8 October 1 979:
Did the Minister write to the Member for New England informing him of arrangements for vacating his ministerial office and the removal of other ministerial privileges including the retention of staff; if so, when.
– The Minister for Administrative Services has provided the following answer to the honourable senator’s question:
Yes, on 27 September 1979. In accordance with established practice when a Minister resigns I informed the Member that I had approved the usual two weeks winddown arrangements.
I wrote again on 12 October 1979 confirming the availability of alternative electorate office accommodation for the Member and future employment arrangements for his former ministerial, and continuing electorate, staff.
asked the Minister representing the Minister for Business and Consumer Affairs, upon notice, on 24 October 1 979:
1 ) While some quota holders are known to be manufacturers, records are not held which identify the type of business conducted by each quota holden
On 1 7 August 1977 in the Joint Statement on Government Policy on the textiles, clothing and footwear industries it was announced that local firms which had previously invested in off-shore production facilities would receive allocation from the special quota reserve for anomalies:
Some companies have successfully applied for entitlement to additional or new quota under the quota trading arrangements announced by the Minister for Business and Consumer Affairs on 8 March 1979:
and (b) See 1(b).
Facilities at Deakin Telephone Exchange (Question No. 2126)
asked the Minister for Science and the Environment, upon notice, on 23 October 1979:
– The answer to the honourable senator’s question is as follows:
This centre, which is known as the NASCOM Switching Centre, is staffed and operated by officers of the Department of Science and the Environment. The Centre has also been used occasionally as a focal point for the dissemination in Australia of satellite re-entry information and for the coordination of departmental activity regarding the re-entry of satellites such as Skylab and Pegasus 2.
Inquiry into Development of Drama in the Australian Capital Territory (Question No. 2129)
asked the Minister representing the Minister for the Capital Territory, upon notice, on 24 October 1 979:
– The Minister for the Capital Territory has provided the following answer to the honourable senator’s question:
I am informed by my Department that:
1 ) The Drama Inquiry Committee has completed its public hearings but has not yet produced a report.
The Drama Inquiry Committee will report to the ACT Committee on Cultural Development. The Drama Inquiry Committee has indicated that it will complete its report in the next few weeks and I understand the Cultural Development Committee will release the report for public debate.
See ( 1)and (2)above
asked the Minister representing the Minister for Defence, upon notice, on 25 October 1979:
– The Minister for Defence has provided the following answer to the honourable senator’s question:
asked the Minister representing the Minister for Transport, upon notice, on 23 October 1979:
Did a severe shortage of Avgas, combined with unreliability of supply, cause the Melbourne-based company, Bizjets, to abandon passenger services to Smithton, Queenstown and Strahan on the Tasmanian West Coast; if so, will the Minister have this matter investigated, with a view to finding a solution to this problem.
– The Minister for Transport has provided the following answer to the honourable senator’s question:
In October of this year Bizjets sought and were given approval to cease operating to the Tasmanian ports of Smithton, Queenstown and Strahan. This was a commercial decision taken by the company and I understand that the uncertainty of Avgas supplies in Tasmania was a compounding factor.
Issues relating to the supply and distribution of petroleum products come within the responsibility of my colleague, the
Minister for National Development and this question has been brought to his attention.
Energy: Jojoba Plant
-On 18 September 1979 Senator Messner asked me, as the Minister representing the Minister for National Development, the following question without notice:
I draw the attention of the Minister representing the Minister for National Development to an article appearing in this morning’s Australian relating to the first conference on the jojoba plant to be held in Australia, at Bathurst this week. I ask whether the Minister is aware of the remarkable claims which have been attributed to this plant in terms of its being one of the viable answers to the world energy crisis, as well as being a substitute for whale oil? If that is so, can the Minister indicate what research on this plant has been carried out by the Australian Government and whether the Government will consider making special grants to firms interested in developing such projects under current energy development programs or, alternatively, to progressive State governments such as that in South Australia for such purposes?
The Minister for National Development has provided the following answer to the honourable senator’s question:
My attention has been drawn to the claims made with respect to the jojoba plant as an alternative energy source. The oil from the jojoba plant is a high grade lubricant and a source of hard wax, and is seen as an economic alternative to sperm whale oil. It is not a substitute for petrol or other liquid fossil fuels and its future as one of the answers to the energy crisis must be held in question. Current claims for the jojoba plant appear to be prematurely optimistic owing to considerable technical and economic problems in both the growing, harvesting and marketing of the plant and its oil that are as yet unresolved. The transition of jojoba from a wild plant to a cultivated crop has been the subject of considerable research in both the United States of America and Israel since the late fifties and more recently in Australia. With the New South Wales Department and other State Government Departments of Agriculture, the CSIRO is currently undertaking field trials over a wide range of soil and climatic conditions across Australia. Being a slow growing shrub, it will be many years before their potential in these sites can be evaluated. Work is currently underway to select suitable plant types for fuel evaluation in conjunction with State Departments of Agriculture, and with industry. To date no commercially viable plantation exists in the world, although many have been recently established. These have yet to produce and be evaluated.
In answer to the second part of your question concerning the provision of special grants for research projects relating to the energy potential of the jojoba plant, I consider that such grants would be best considered within the existing framework of energy R&D funding of the National Energy Research, Development and Demonstration Program. Interested parties including private firms and State Government Departments are eligible to apply.
Human Rights Legislation
-On 17 October 1979 Senator Missen asked the following question without notice:
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? If so, is he prepared to make those submissions available to members of the Senate so that they will be better informed about those matters before the debate resumes in the Senate?
The answer to the honourable senator’s question is as follows:
I have received representations from many organisations, including Amnesty International and the United Nations Association of Australia, concerning the Human Rights Commission Bill 1977 and also the current Human Rights Commission Bill and the Racial Discrimination Amendment Bill. I do not think it is appropriate for me to release these representations. However, should these organisations with their views to be made known to members of the Senate, it is open to them to make copies of their representations available to senators.
Cite as: Australia, Senate, Debates, 13 November 1979, viewed 22 October 2017, <http://historichansard.net/senate/1979/19791113_senate_31_s83/>.