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Tuesday, 23 October 1984
Page: 2183


Senator DURACK(11.12) — I take the opportunity of speaking on the appropriation Bills this morning to refer to a matter which I believe needs to be publicly exposed. In particular the Government's record and attitude in this matter need to be publicly exposed. I take this opportunity because of the refusal of the Attorney-General (Senator Gareth Evans) in the course of this year to answer reasonable questions and to respond to reasonable requests put to him over and over again in this chamber and elsewhere that he make public the Bill of Rights which he is working on, which he says is at an advanced stage of its preparation and which has been the centrepiece of the Australian Labor Party 's-in particular Senator Evans's-law and justice policies. In the last election campaign the Hawke Government made a promise regarding that policy to give priority to the enactment of a judicially enforceable Bill of Rights to set the general standards against which legislative enactments and Executive behaviour- that is Government behaviour-both at the Commonwealth and State levels would be decided. Officers were put to work on the drafting of that Bill, as I understand it, last year. At one stage last year the Attorney-General was promising that that Bill would be available before the end of the year. That was amended and it was to be ready early in 1984. Early in 1984 the Attorney-General was asked a number of questions about when that Bill would be made available and an exposure draft would be introduced into the Senate for us to study, as has been commonly done with many pieces of legislation in this Parliament in recent years, particularly ones of such importance as a Bill of Rights.

On 27 March this year in answer to a question from Senator Chaney the Attorney- General said that it was taking longer than he had anticipated and that the measure would in fact make sense only in the context of a package of legislation including the restructuring of the Human Rights Commission and amendments to the Racial Discrimination Act and the Sex Discrimination Act. He went on to say that it was believed that it would be possible to introduce the whole package during the autumn sittings and that although the Bill of Rights was close to fruition he hoped to have more substantial consultations with the States. He said that the other parts of the package were lagging and therefore he could not meet the second promise to introduce the Bill early in 1984. The first promise was that it would be introduced at the end of 1983. Then he made a remarkable statement. He said:

It became apparent that the whole package, including the machinery part of it, would not be ready for introduction until well into the Budget session.

That is the session that is now drawing to a close. He continued:

We would then be confronting a situation of an election year-

that was in March this year-

albeit, perhaps, an election for only half the Senate. But it would be a context in which passions could be expected to rage fairly high. In that anticipated hothouse atmosphere it was thought unlikely that here in the Parliament, let alone in the community at large, it would be possible to have a claim and rational debate on this measure that its significance and importance justifies. We will certainly be pursuing this measure because we regard it as being of quite fundamental importance . . . But we will be doing so at a later time than was originally anticipated.

The reason the Attorney gave for not introducing the Bill was two-fold. First, he said that it was part of a package with the restructured Human Rights Commission legislation and other pieces of legislation in the human rights field and, secondly, he did not want to introduce a Bill of Rights in an election atmosphere. As I said, he has been asked a number of questions on when the Bill will come into effect. It is now perfectly clear that it is not to be introduced and its details are not to be unveiled before the unnecessary premature election on 1 December. It will be introduced some time next year. The latest statement of the Attorney-General on this matter was in answer to a question from me last Wednesday. He said:

. . . there is no draft in existence in any final form, nor do I have back all the comments that I wanted to receive from various sources before I wanted to make the Bill public. It is certainly part of the Australian Labor Party's continuing policy commitment to have a Bill of Rights. I fully expect it to be part of our policy commitments for the new Parliament and to have the measure introduced into the Parliament for an ample period of public comment and reaction to it some time next year.

A promise was made during the election campaign in February-March 1983 that a Labor Government would introduce a national Bill of Rights as a centrepiece of its law and justice policy. It was stated that it would be available for public exposure and comment before the end of 1983. That was postponed to the beginning of 1984. At the beginning of 1984 it was postponed indefinitely because of the various matters to which I have referred, particularly the election. I emphasise that Senator Evans did not want to have the Bill exposed in an election atmosphere. He did not want the people to know what would be in the document so that they could make their own judgments during the election campaign. That is why we are not having it this year. The Attorney-General put up a smoke screen about it being part of a package with the Human Rights Commission legislation and other Bills. There was no substance to that argument because he has already introduced Bills to restructure the Human Rights Commission. The package argument did not stop him introducing that legislation but, of course, the package did not include an exposure draft of the Bill of Rights. Now we have the statement that, because of the discussions that have been going on, this Bill will not be introduced until next year.

It is simply not good enough for this Government in an election to say that it will have a Bill of Rights. That is what it said last time. The important thing is not whether it will have a Bill of Rights, but what is in the Bill of Rights. What does a Bill of Rights contain? How will it work? To what extent will it completely override the States under our federal system? Although the Government has not introduced that Bill of Rights, and thus has not let us see exactly what is contained in it, nevertheless, Senator Gareth Evans the other day challenged me to speculate on what would be in such a Bill of Rights. It is obvious what will be in the Bill of Rights because it will be based upon the International Covenant on Civil and Political Rights. It has to be based on that Covenant to make it an effective exercise of Commonwealth power under the external affairs powers of the Constitution. One does not have to be a wizard to understand what will be in the Bill of Rights or the way in which the Bill will operate. However , one would have thought that the Attorney-General, who put this matter at the forefront and made it the centre-piece of his policy in the last election and presumably will do so again at this election, would have wanted to have his Bill of Rights, drafted in his own words, available for public discussion particularly during an election campaign. So one must only speculate that the Government is simply not game to have a public debate about an issue of this importance during this election period.

I propose to help the debate along this morning. I will indicate the nature of Labor's proposed Bill of Rights, in broad terms, and how it will work. I think it will not be surprising to anyone to understand why the Attorney-General has been so coy about it and why he does not want the public to know all about it. Labor's proposed national Bill of Rights will turn the federal system of government in this country, as we know it under our Constitution, on its head. It will advance the cause of centralism in this country by light-years and make previous forays by the Whitlam and Hawke governments look decidedly puny.

It is little wonder in those circumstances that the Attorney-General-so unlike this great proponent of freedom of information-will not tell us what the details are. The reason is that the proposals are so controversial that Senator Gareth Evans and the Government want to keep the people in the dark about them during this election period. However, the Bill of Rights is, and must be, entirely based on the International Covenant on Civil and Political Rights. This will be implemented by virtue of the interpretation by the High Court of Australia of the external affairs power of the Commonwealth which it made in the Franklin Dam case. But the application of the external affairs power in a document such as a Bill of Rights will have a far more devastating effect on the federal system of government and will advance the cause of centralism by light-years compared to what was done in the Tasmanian dam case. On the other hand, the Opposition has given a clear undertaking not to use the external affairs power to override traditional areas of State law and powers.

In this current sitting of the Parliament I introduced a Bill designed to amend the Constitution, to cut back the external affairs power in a way which would prevent its use to give effect to treaties of this kind proposed by the Government. However, the present Labor Government and particularly the Attorney- General, Senator Gareth Evans, glories in these vast new powers which have resulted from the High Court decision in the Tasmanian dam case. The Bill of Rights will be a high water mark of such a policy. If it took effect vast areas of State law would be made subject to its overriding provisions and they could be struck down by a judge coming to a conclusion that they were not consistent with the vague and general provisions of the International Covenant. These State laws are ones which traditionally, under our Federal system, have been the province of the States. Broadly, they relate to matters such as freedom of speech and the relevance of defamation laws in that regard; freedom of religion, for instance, questions of rating on church properties; freedom of assembly; freedom of association and, in particular the general content and administration of criminal law and the criminal justice system of this country. State electoral laws will also be subject to scrutiny as to whether they meet provisions of the covenant and, in particular, whether they provide for equal suffrage, which is a guarantee of the covenant, such as, no doubt, the question of one vote one value . State electoral laws will certainly be able to be challenged if they are thought not to meet the principle of one vote one value.

When the Commonwealth and the State governments negotiated the ratification by Australia of the international covenant, during the life of the Fraser Government, State laws were put under the microscope to see whether they satisfied the tests of the international covenant. By and large State laws were judged to conform with it except in a few cases where reservations or declarations were made by Australia at the ratification of that covenant. One example of this is the requirement for the segregation of prisoners in State gaols and, in particular, where the covenant seeks the segregation of juvenile offenders from adult offenders in State prisons. As we all know we do not have Federal prisons in Australia; we have only State prisons. It was thought simply not practicable to expect the States to implement fully this ideal. Compliance with the covenant would force the States to go to vast expense immediately to observe that requirement. If one has a Bill of Rights that hedges these around with certain qualifications, the fact remains that great pressures would still be placed on the States to carry out this task, to force them to spend their funds in this way, to the exclusion of other priorities that they may have. That is only one example; there are several others.

By and large the State laws stood up extremely well to the very close scrutiny, the microscopic scrutiny, under which they were placed during this process which went on for about 18 months or so during the life of the Fraser Liberal Government. I am very familiar with it because I, as Attorney-General at the time, was responsible for all those negotiations with the States over that period. The fact of the matter is that it is simply not necessary to have an overriding Federal law in order to force the States to comply certainly with the spirit and, by and large with the letter, of this international covenant. Overwhelmingly, State laws do comply with the spirit of the covenant and they have done so for a long time. In the vast majority of cases they comply also with the letter of it. Where they do not the States are very conscious of the need to move gradually their laws and practices into conformity with it.

Nothing in this Bill of Rights which the Government is proposing will do other than create confusion and doubts as to the way in which those State laws can be brought into conformity with the covenant. The main point is that the State laws overwhelmingly comply with the covenant and the States are conscious of the need , where necessary, to bring even the letter of State laws into conformity with it. I believe that it is totally insulting to the States for a Federal government to impose such unnecessary rules with this holier than thou attitude towards the States exemplified by the policies of Senator Evans and the Labor Government.

It is ironical to note that the policies which will be imposed by this Bill with such self-righteousness just happen to coincide with the particular pre- occupations and interests of Senator Evans in particular and the beliefs of a Labor socialist Government. However, many other important issues of human rights are ignored in the covenant and will be ignored in this Bill. There is nothing in the international covenant which guarantees the right to own property and not to have it confiscated without compensation, as the Wran Labor Government did in 1981 with its infamous coal acquisition Act, which deprived thousands of people of their rights to the coal under their land with no compensation paid-an outright piece of confiscation by the Wran Government. What sort of attitude is that to a very important human right to own property and not to have it resumed without fair compensation?

The international covenant does not protect people from being forced to join trade unions, even though it gives a guarantee that people may form trade unions and may join trade unions. It does not contain a guarantee to protect people from being forced to do so by direct or indirect means. There is a very interesting contrast between the international covenant and the provisions of the Universal Declaration of Human Rights in respect of that matter. Clearly, the laws which the Labor Party espouses so strongly about preference to unionists will be entirely unscathed by the Bill of Rights. I point out, as I did the other day in this chamber, that the Opposition, in its industrial relations policy, will remove from the Australian Conciliation and Arbitration Commission the power to impose preference to unionists. A decision taken by this Parliament is the best way of ensuring that human rights are effectively determined in this country rather than by vague, general provisions such as a Bill of Rights.

Although the international covenant protects the rights of the child it does not guarantee any rights of the child before its birth. The Bill even leaves open to challenge the provisions of the Marriage Act which define marriage as a union only between a man and a woman. However, we can all be assured that there is one comfort arising out of this Bill of Rights and on which I am sure we can all agree. If this Bill is brought into effect, from then on in Australia no person shall be held in slavery or in servitude. It is really a burning issue in Australia today-whether or not we ought to be in slavery or servitude! I am not sure whether the Attorney believes that in State laws or maybe even in Federal laws there are really threats of this kind to us; I do not know. But at least when this Bill of Rights comes into force it will protect us from that fate that apparently awaits us!

As I have said, we have this self-righteous, holier than thou attitude of the Attorney-General to the laws of the States of this nation. He wants to bring in a Bill of Rights so that the States will be brought into conformity, not by the decisions of the people of the States, not by the decisions of the parliaments or the governments of the States, but by the decisions of some judge who is asked to determine whether a particular State law conforms with the vague and general provisions of the international covenant, a covenant which, in itself, provides for many exceptions to its general rules but whose general rules are themselves stated in very vague and general terms. This proposed national Bill of Rights will mean that Federal laws will override State laws. It cannot override Federal laws, no matter what attempts are made to say that Federal laws must comply with it, because this Parliament could always change Federal laws or the Bill of Rights if it wanted to do so. I think that reveals the real mockery of this exercise. It is simply an exercise in overweaning centralist power, another strong dose of centralism in this country. It will advance that cause by light years compared to any action taken by previous Labor governments, even the Whitlam Government, and even this Hawke Government in Tasmania last year. That is what this proposed Bill is all about. It will impose those attitudes, preoccupations and policies on the States, whereas, as I have said, the State laws have traditionally and overwhelmingly complied with these principles of the International Covenant on Civil and Political Rights. This is of course a major document and is meant to exhort people throughout the world to observe the basic principles of human rights. Those basic principles have, I believe, been developed largely by our systems of government, by the rule of law, and by free and democratic institutions which we have enjoyed in this country and which we inherited from the United Kingdom.

The international covenant is really based upon principles which have animated our legal system and our democratic institutions. There is no need whatever to have this Parliament impose those principles upon State parliaments, which have also inherited that tradition and whose laws overwhelmingly comply with those principles. It is simply unnecessary and it is insulting, and as I have said, it is an exercise in self-righteousness for this Parliament to move towards implementing a Bill of Rights of that kind. I believe the Attorney clearly knows that because he refuses to make the details of his Bill known to us and to the people of Australia before the election on 1 December.