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Monday, 22 November 2010
Page: 3244


Mr MELHAM (7:23 PM) —I rise to support the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010. In his second reading speech, the Attorney-General pointed out that the changes in the framework involved in these bills, which are the legislative elements of Australia’s Human Rights Framework, are aimed at enhancing understanding of and respect for human rights in Australia and ensuring appropriate recognition of human rights issues in legislative and policy development. The minister went on to say that the bills contain two important measures that are designed to improve parliamentary scrutiny of new laws for consistency with Australia’s human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development.

I think it is worth going to the explanatory memorandum to get in effect the nub of what is in the bills. Part 1 of the Human Rights (Parliamentary Scrutiny) Bill 2010 deals with preliminary matters, including commencement and definitions. The bill will define human rights as the rights and freedoms recognised or declared by the seven core United Nations human rights treaties as they apply to Australia. These treaties include the International Convention on the Elimination of All Forms of Racial Discrimination, which I will come back to; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; and the Convention on the Rights of Persons with Disabilities. Part 2 of the bill establishes the Parliamentary Joint Committee on Human Rights and sets out the functions and administrative arrangements for the committee, and part 3 of the bill introduces a requirement for statements of compatibility to be prepared for all bills and legislative instruments subject to disallowance.

I think this is a very important bill, for a number of reasons. I have been in this place for just over 20 years, so I have seen legislation by a former Labor government and I have seen legislation by the former conservative government. This government, both in the last parliament and now, has not had a lot of time to do a lot of legislation because we are still at our infancy as a government. What annoyed me most in previous years was how on very important issues where this nation had signed up to the International Convention on the Elimination of All Forms of Racial Discrimination I found myself over a 20-year period seeking to defend the Racial Discrimination Act from being overridden or suspended in relation mainly to Indigenous issues because governments saw it as a way of undermining court decisions that had been made in favour of Indigenous people, and particularly in relation to native title. I can remember the former Keating government initially proceeding down a path because it was then advised that it was necessary to suspend the Racial Discrimination Act to guarantee certainty post the Mabo decision. Fortunately the Keating government did not go down that road; it complied with the Racial Discrimination Act and the convention and its legislation was enacted in conformity with the Racial Discrimination Act.

The Howard government, however, post the Wik decision engaged in a deception of the electorate. In its response to the Wik decision we had bucketfuls of extinguishment, as the then Deputy Prime Minister, Tim Fischer, described it; we had schedules that had predicated or in effect decided that any of those titles that were on the schedules would be deemed to extinguish native title. Throughout the whole period there were Senate hearings. I can remember, being on the then Joint Standing Committee on Native Title, a number of lawyers gave evidence to a roundtable hearing in relation to the constitutionality of the proposed revisions, but throughout the whole of that period the Howard government hid behind the facade that it was not overriding the Racial Discrimination Act and it hid behind the facade as to the impact of what would happen with the overriding of the Racial Discrimination Act.

The Human Rights (Parliamentary Scrutiny) Bill 2010 would have inserted into that process a procedure that would have had the parliament, parliamentarians and professionals involved, who could have looked at the interaction of that legislation, its detrimental provisions and its lack of conformity with the racial discrimination convention and honestly reported to the parliament at the time. It would not have stopped the parliament from overriding it because the parliament has the constitutional power to act in a discriminatory way. Without the parliamentary committee it was left to Indigenous people to appeal to the United Nations. Indeed, it was the human rights subcommittee of the United Nations that belled the cat in relation to the discriminatory provisions of the Howard legislation and its impact on native title.

If we sign up to conventions like the ones that I have read out, it is my firm view that as a parliament we should abide by the spirit of those conventions. We should not be enacting laws that are discriminatory, particularly towards Indigenous people in this country. But, if a future parliament wants to do that, then a parliamentary committee with specialist expertise should expose what the government of the day is doing.

It is well known that I was one person within my own party who was not happy with the intervention in the Northern Territory because of what happened in relation to the Racial Discrimination Act. I did not raise my concerns in a public way. I argued those concerns within the party room. It is something that, at the time, I was not proud of. Let us be very clear: the unfortunate point was that, irrespective of whether the Labor Party had adopted my position or not, the then government had a majority on both houses of parliament.

What was said at the time was, however, a lot more honest than what had been said during the Wik debate because, I think, there was an acknowledgement that there was a winding back of the Racial Discrimination Act for particular purposes. It does not make it any better, but at least it was a more honest approach by the then government that they were doing this because they felt it was necessary. I have the view that you can protect and save children and you do not have to do it in a discriminatory manner.

The problem has been in the past that, without something like parliamentary scrutiny or a specialist parliamentary committee, governments of all persuasions have taken the easy route. That is why I believe this legislation is very important legislation because it draws a line in the sand. It basically says that we have the objectives, that we are going to have a situation where we outline the treaties we are involved in and, as it says in the explanatory memorandum:

… the Bill introduces a requirement for statements of compatibility to be prepared for all bills and legislative instruments subject to disallowance.

What I want to see, if this bill passes both houses, is that we have honest statements in relation to compatibility, not weasel words and not statements that necessarily squib the issue. In relation to all pieces of legislation we have an honest assessment before the parliament as to what it actually means in an international sense.

This country’s history deserves something like that because our Constitution still has very discriminatory sections in it. Whilst it has not been decided by the High Court, it is pretty obvious the direction it is going. As a result of the 1967 referendum, despite the 90 per cent support for passage of the amendment to the Constitution, overwhelmingly, the public thought that they were acting in a way which meant the government could only act in a beneficial way to Aboriginal people as a result of the passage of that referendum. As a result of the Hindmarsh Island bridge case, we know that there are some judgments which point to the fact that any future interpretation by a High Court of the race power takes it back to the meaning of the race power at the time the Constitution was enacted, which means that it is open for a Commonwealth parliament to discriminate in a very negative way towards Indigenous people and to do so within the constitutional framework. That is why this legislation is important as a safeguard mechanism so that legislators are able to have independent professional advice before them as to the consequences of particular legislation being considered before the parliament.

The truth is—and I do not say this as a criticism of advisers or the public service—that executives in the past have squibbed in relation to the consequences of legislation and its impact. There is weasel room in a number of instances. I am quite happy to support this legislation. I commend the Attorney and the department for framing this legislation and for bringing it before the parliament because I think it is important.

My experience over 20 years has been, frankly, that we could have done with this for the last 20 years. We could have done with this legislation at the time of Mabo, we could have done with this legislation at the time of Wik and we could have done with this legislation at the time of intervention in the Northern Territory, just to name three instances, because the parliament would have had in front of it, hopefully, more independent advice as to the consequences for Indigenous people of the legislation it was then considering.

I do not say this necessarily in criticism of everyone on both sides of politics. Most people are not lawyers. They take advice. They believe what prime ministers tell them and what ministers tell them, and it is not necessarily always the case that they tell the truth.