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Wednesday, 26 November 1986
Page: 2826

Senator MACKLIN(9.31) —by leave-I move:

(1) Page 4, sub-clause 3 (1), definition of ``discrimination'', leave out sub-paragraph (b) (ii), insert the following sub-paragraph:

``(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act,''.

(3) Page 24, leave out sub-clause 31 (2).

Essentially these items refer to a question which has already been canvassed fairly widely in debate, and that concerns the question of delegated legislation. Some fairly wild and extraordinary statements have been made and I have no intention of responding to those except to say that this morning there was a vote in which we sought precisely to get rid of a series of regulations in respect of the Australian Capital Territory. That was defeated by the Opposition parties voting with the Government. In fact, every time that such a regulation is sought to be disallowed and is defeated, it is done so by a majority of this chamber. It is a failing, if one likes, of the democratic process that the majority finally makes the decision. I find it very difficult to understand why, by latching on to one particular item where one may fail to have been on the winning side-I can remember quite a number in recent days-that one would then move against the motion of seeking to regulate delegated legislation in this manner.

We considered the Opposition's amendment which sought to use another track. We considered this particular method and it seemed to us, in terms of the various points that were raised, that this particular method was adequate to the task that was involved in the Human Rights Commission. I think we are all very much aware that the essential difference, in terms of votes, is one. To be able to get a Bill through this chamber there has to be a majority of the chamber. To be able to get a disallowance of regulation through the chamber, there has to be a majority of the chamber as well. So the difference essentially is one vote, if the same topic is both in a Bill and in a regulation. I am willing to admit that on certain occasions a vote of one is certainly a determining factor. It was yesterday and I imagine it will be on other occasions.

A very interesting report, which has the support of my Party, was delivered to this chamber some years ago now with regard to delegated legislation. We have expressed the opinion on a number of occasions that it is a pity that the chamber has never seen fit to pursue the re- commendations of that committee that looked at delegated legislation. The report was brought down under the Fraser Government and no progress was made. No progress has been made under the Hawke Labor Government. Nevertheless, the Australian Democrats support the re- commendations of that committee, which essentially sought a positive vote with regard to regulations rather than the negative vote which is implied in the manner in which we have dealt with them up till now. That is what we are doing; that is the area in which the activity can take place. The Human Rights and Equal Opportunity Commission is essentially a relatively weak instrument in respect of the promotion of human rights, and fairly obviously the Commission, in terms of the human rights section, that the current Commission does not have. Of course, the equal opportunity part, particularly with regard to sex discrimination, is a new item under such a commission. When one looks at the powers set out in the Bill one realises that most of those are taken from the current Bill, under which the current Human Rights Commission operates. I think that essentially we will see much the same type of activity in the future. I think it is well to remember that this Commission was meant to be part of an overall package. It has now been plucked out with substantive amendments and essentially, on its own, it is a very weak instrument in the promotion of human rights in this country.

The only other thing I want to say with regard to this matter of delegated legislation and the Human Rights Commission is that I think it is a pity, in terms of the general community debate, that the debate has been conducted at the level at which it has been conducted. There are a great deal of concerns within the community about the denial of human rights. I think that it is important that governments respond to these concerns. There can be debate, as there has been, on whether or not this is the most appropriate method for dealing with that, but in general I think this is the method by which it should take place.