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Tuesday, 29 May 1984
Page: 2070


Senator HARRADINE(9.47) —As gently as I can say it, I have rarely heard in this chamber a speech by a member of the Senate who has less grasp of a subject than that which I have just heard from Senator Mason. It is quite obvious that he has not read the report of the Standing Committee on Regulations and Ordinances. He, with the Australian Democrats, voted that the Customs and publications regulations and the publications ordinance be referred to the Standing Committee on Regulations and Ordinances to ascertain certain things. These are contained in the report. It is quite obvious not only that he has not taken the trouble to read the report but also that he has applied his preconceived ideas to this issue, blackguarding those of us who have studied this matter extensively and worked on the Committee to help bring down this report. Furthermore, having virtually denied us the opportunity of adequately debating this matter in the interests of the public, what did Senator Mason say? He said there would be consequences if we were to disallow the regulation, and he particularly pointed out the consequences which would flow if we disallowed the amendments to the Customs (Prohibited Imports) Regulations. Let me say that both the majority report and the dissenting report-that is to say the Senate as a whole except Senator Mason-


Senator Walters —And the Democrats.


Senator HARRADINE —I do not know about the others; they can speak for themselves . The Senate as a whole, except Senator Mason, said that the amendments restrict the power of the Commonwealth to control the importation of hard core pornography.


Senator Mason —Put it in context and read what is in the report.


Senator HARRADINE —I am about to read what is in the report. It is stated on page 6:

If it is assumed that the term--

that is the term 'hard core pornography'--

is equivalent to or covered by the old references to 'indecent or obscene' and ' unduly emphasise matters of sex' . . . or are likely to encourage depravity', then the lack of these words in the new law is a restriction.

That is to say, it is a restriction to the power that is in the old law. The majority report says more positively that these regulations legalise for the first time the unrestricted importation into Australia of all types of hard core pornography, including child pornography, and all publications, which includes videos, no matter how violent, how cruel, how blasphemous, indecent, obscene or likely to encourage depravity or incite a crime-except terrorism-provided that ' in the opinion of the Attorney-General' they do not contain a picture of a child depicted in such a manner as would cause offence to a reasonable adult person or a picture 'gratuitously' depicting violence or cruelty.

I turn to the document of the Attorney-General (Senator Gareth Evans) which outlines the comparison between the pre-existing law and the existing law that is being sought to be disallowed. Not only is it recognised by the majority report that the new law restricts the power contained under the pre-existing regulations-of course, as I have said, the dissenting report makes that crystal clear-but also the pre-existing law said that these were prohibited imports. It applied to goods that are 'blasphemous, indecent or obscene or unduly emphasise matters of sex, horror, violence or crime or are likely to encourage depravity and to advertising matter relating to such goods'.

None of that is in the new regulation, save and except pictorial child pornography and pictorial violence. I hope that Senator Mason might see his way clear to apologise to the Senate for the display of ignorance as to what is contained in the pre-existing law and in the existing law. In addition to that, the ultimate determinant for the pre-existing law was the courts. I refer, as my authority for that, to the book entitled Customs and Excise Law by E. J. Cooper. It is stated on page 100 quite clearly that the ultimate decision in respect of pre-existing regulation 4A will be made by the courts. Under the new regulation 4A the ultimate determinant is none other than the opinion of the Attorney- General. We, in the dissenting report, make it clear that it is totally unfair to have this issue the subject purely of administrative decision and not subject to judical review. That is a most important point and an important matter for the Senate to consider.

We made it perfectly clear in the dissenting report that we consider that the package of delegated legislation referred to the Committee introduces such fundamental change that it is more appropriate for parliamentary enactment. Senator Mason boasted about taking out the word 'violent'. That was the deal and the price of his lousy vote. In his Press statement he now says that he is not worried about that; he is going to agree to the further draft amendments by the Attorney-General which broaden the types of violent material that can come in. I might say that the majority report says, for the information of Senator Mason, that the draft amendments, which he said in his Press statement were okay with him, restrict the powers of the Commonwealth more so than the new law since the words 'detailed' and 'considerable' are proposed to be introduced. The big deal that he made with the Attorney-General is regarded, even by the majority report, as restricting the power of the Commonwealth to control the importation of the material to which he objects.

Let us go to the question of opening the floodgates. The only reason the material was let in was because the pre-existing law was not enforced. I go on to the next major change that was not addressed by Senator Mason at all. The next major change in the law is effected by regulation 3 of the Customs ( Cinematograph Films) Regulations (Amendment). This confines censorship controls, by way of licensing and registration, to films imported for public exhibition. I want Senator Mason to understand that all other imported films that he is complaining about, including videos, will now be free from the pre-existing licensing and registration requirements. Why does he not read what the Film Censorship Board Chairman, Mrs Janet Strickland, said in evidence to the Mahony Committee? I will not raise this matter unless the Attorney-General raises it.

Nothing that Senator Mason has said has been addressed in detail to the Ordinance that is the subject of his disallowance motion. The fact is that the new Classification of Publications Ordinance opens the way for the first time legally in the Australian Capital Territory for the commercial exploitation of hard core pornography. That is what he is voting for.


Senator Walters —He just doesn't understand.


Senator HARRADINE —Well, if he does not understand, let me explain it to him. Under the pre-existing law, as the dissenting report says, the sale, exhibition, display and distribution or production for gain of objectionable publications was prohibited. The new law legalises and permits this activity in respect of objectionable publications. Objectionable publications are defined in the new Ordinance. What is an objectionable publication under the new ordinance?


Senator Jack Evans —What was it under the old one?


Senator HARRADINE —If the honourable senator wants to know that, I shall tell him what it was under the old ordinance.


Senator Jack Evans —What it really was; not what you say it was.


Senator HARRADINE —I am not giving my opinion.The honourable senator is going to allow the Attorney-General to be the arbiter of public morals in the Australian Capital Territory, of all things. Senator Mason and Senator Evans have just told me that that is what they have not done. I will prove to them that that is what they have done.


Senator Jack Evans —You have not proven a thing.


Senator HARRADINE —The honourable senator should wait for a minute. He has asked what an objectionable publication was under the old law. In the old law, section 4 reads:

'objectionable' means obscene or unduly emphasising horror, gross cruelty or crimes of violence; 'obscene' includes unduly emphasising matters of sex;

Under the new law an objectionable publication is defined as follows:

'objectionable publication' means a publication that-

(a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that is likely to cause offence to a reasonable adult person;

For the first time in the Australian Capital Territory that material is legally able to be offered for sale or hire, per kind favour of the Australian Democrats .


Senator Jack Evans —How about some facts?


Senator HARRADINE —The honourable senator will vote for the Attorney-General to be the arbiter of public morals in the Australian Capital Territory. The Attorney-General knows who will be the arbiter. Let me prove that. Under the old law it was up to the courts to decide, under the Customs prohibited imports regulations, the issues of obscene or unduly emphasised sex, or this, that or the other. Under the old Australian Capital Territory ordinance it was likewise up to the courts to decide those issues. Now, under the new Customs (Prohibited Imports) Regulations, it will be up to the Attorney-General to decide those matters. Honourable senators should look at section 4A of the new Customs ( Prohibited Imports) Regulations.


Senator Jack Evans —It is not up to the Attorney-General; it is up to the Parliament, and that is what we are debating now.


Senator HARRADINE —The honourable senator proposes to give him the power. The people who will determine where to draw the line in the Australian Capital Territory will be persons appointed under section 7 of Part II of the Classification of Publications Ordinance, which deals with classification officers appointed by the Attorney-General.


Senator Jack Evans —And we decide the guidelines.


Senator HARRADINE —No, we do not decide the guidelines; they decide the guidelines, you stupid idiot.


Senator Mason —I rise on a point of order.


Senator HARRADINE —I am sorry, I withdraw that comment, and I apologise to the honourable senator. The duties of these people appointed by the Attorney-General will be to classify publications which are objectionable publications. The only ones that they can refuse to classify-it should be borne in mind that the Attorney-General has not fixed up the violence aspect of the ordinance-are as follows:

A classification officer shall refuse to classify a publication where he is satisfied that the publication describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a manner that it offends against the standards of morality . . .

The people appointed by the Attorney-General-and not the courts-will say what offends against the standards of morality. It goes on:

. . . decency and propriety generally accepted by reasonable adult persons to the extent that it should not be classified.

Those words 'to the extent that it should not be classified' are important. The criteria for classification are set out as follows:

A prescribed authority shall, in performing his or its respective functions under the Ordinance, give effect, as far as possible, to the following principles:

(a) that adult persons are entitled to read and view what they wish; and

(b) that all persons are entitled to protection from exposure to unsolicited material that they find offensive.

Clearly, the words 'to the extent that they should not be classified' are qualified by those criteria for classification, and those criteria for classification are absolute nonsense. Although it says 'that adult persons are entitled to read and view what they wish', the Attorney-General now says that that is not true, that a line must be drawn. Whose line is being drawn? It is his line and the line of his appointees.


Senator Jack Evans —Are we appointees or is the Attorney-General?


Senator HARRADINE —Do not sidetrack me, please. The second principle to which a prescribed authority shall give effect is this:

(b) that all persons are entitled to protection from exposure to unsolicited material that they find offensive.

What a lot of tripe that is in this day and age of high technology. How am I going to protect my kids from exposure to this extreme material, these objectionable publications? We are talking about objectionable publications that are offensive to a reasonable adult person. That is the definition given in the ordinance. How am I to protect my kids from exposure to that?


Senator Mason —A girl in a bikini.


Senator HARRADINE —Senator Mason does not understand. We are talking about objectionable publications as defined, which for the first time he is going to allow to be commercialised in the Australian Capital Territory. As I said, the second principle to which a prescribed authority shall give effect is this:

(b) that all persons are entitled to protection from exposure to unsolicited material that they find offensive.

Section 58 abolishes the common law offence of obscene libel, to the extent to which it applies to objectionable publications and the common law offence of conspiring to corrupt public morals. So (b) is up the chute, too. Criterion (b) is not worth talking about.


Senator Gareth Evans —What do you mean '(b) is up the chute'?


Senator HARRADINE —Correction; for the sake of Hansard, I should say that 34 (2) (b) is inadequate in that situation. I really feel that all of this builds up to the fact that the rights of individual citizens and the community to the protection of the law are being diminished. This further restricts the ability of parents to protect their children from exposure to the type of material that is contained in publications classified as objectionable by any persons. The only people children are protected from are the managers of restricted classification areas. The Committee has examined this matter very thoroughly and has put down a number of points. It has addressed the point as to whether this issue is of such an important character that it should be dealt with by parliamentary enactment, not by subordinate or delegated legislation.

We say at point 13 that the Senate must view very seriously any legislative changes which drastically alter the character of censorship law. We point out that film censorship, especially censorship of imported films, is a matter of grave national importance. We refer to the fact that previously the Committee had considered this matter and in its very first report had said that 'the determination of public policy on a matter of such moment should not be accomplished by departmental regulation' and that the policy 'should be set out in substantive regulation'. That is even more important because the Attorney- General has said that the Classification of Publications Ordinance is 'model legislation'. All citizens of Australia will have the right to have their State Parliaments deal with such matter by parliamentary enactment. The only people who will not be able to do so will be people in the Australian Capital Territory ; they will be denied the right to have us examine the matter with full parliamentary procedures, motions and amendments in the Committee stage. Rather, such matters will be dealt with by Executive government decree. That is not fair to them; and it is certainly not fair on the rest of Australia.

Three Australian States have intimated that they will ban X-rated videos and the type of classification 2 publications that are now being dealt with. Yet by these regulations, which we now apparently are not going to disallow, the Government will let those publications into this country. What can be done with the material? It will be sold in the Australian Capital Territory if all the other States knock it back. What a load of rubbish it is. Senator Mason is pre- empting the decision of the New South Wales Parliament in respect of that matter , and he is a senator from the State of New South Wales.

This Senate faces a problem tonight. We have been painted into a corner; we have until only 10.30 p.m. to discuss the matter and then to vote on it. We have recommended that the matter contained in the new law be the subject of parliamentary enactment. We have pointed to the fact that the Senate Standing Committee on Constitutional and Legal Affairs, in its report, stated that in relation to legislation of a particular territory, which is socially innovative or which affects fundamental rights and liberties, the Committee recommends to the Senate that if the Regulations and Ordinances Committee reports that an ordinance is of this nature, then such ordinance should be made subject of a substantive debate in the Senate. I strongly believe that this ordinance most definitely affects the fundamental rights and liberties of citizens, nationally and in the Australian Capital Territory. It is socially innovative and ought to be the subject of full and open parliamentary debate and, if necessary, ought to be disallowed. I put it to the Democrats that there is a disallowance motion in the House of Representatives. The Attorney-General can repeal the regulation and replace it if he wishes; but let us allow the due parliamentary process to run its full course without truncating it tonight.