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Wednesday, 27 March 1985
Page: 875


Senator HARRADINE(12.32) —I wish to take just a moment to deal with a couple of matters to which Senator Jack Evans addressed his mind. He seemed to give rather fulsome support to having a Bill of Rights as a bicentennial project. It seemed to me that Senator Jack Evans was suggesting that the rights of individual Australian citizens would not be properly guaranteed unless such a Bill of Rights were passed through this Parliament or, indeed, it formed part of the Constitution. Without going into the relative comparison of the rights of individuals in Australian society or in the United Kingdom as compared with the rights of individuals in, for example, the United States of America, or to use an odious comparison, rights in the Soviet Union-which has a very interesting Bill of Rights-and without going into the question of what Senator Jack Evans means by rights, whether he means fundamental human rights, natural rights, or claims that are sometimes masqueraded as rights, I remind him that in 1973, the then Attorney-General, Senator Lionel Murphy, introduced a human rights Bill. That Bill somehow got lost in the hectic years of 1974-75, but an analysis of it indicated that it sought to implement the International Covenant on Civil and Political Rights, but with important differences. One change involved the family and its protection. Article 23 (1) of the Covenant states:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

This matter was completely omitted by the Murphy Bill, as were certain provisions in Article 13, which protects parents' rights of freedom of choice in education. The 'right to life' in Article 6 of the Covenant also underwent some subtle rewriting. The question is: What type of Bill of Rights is required? But that is not the only question that should be addressed. We should also examine whether the passage of such legislation would unduly strike at the principle of near democracy; that is to say, that power in a democracy ideally should reside with those groups capable of efficiently performing the functions for which the power is acquired, so that those over whom the power is exercised have closer and more direct control over those who exercise it. In the instant case an overriding Bill of Rights could do just that; it could override certain rights which are traditionally those of State government authorities, State elected parliaments or elected municipal representatives. Of course, this would be striking at the principle of near democracy. I think we should be aware of that fact.

Naturally, one must balance the claim, in a democratic society, of 'the majority rules' with the importance of preserving the individual rights of the minority. Possibly the first duty of the majority in a democracy is to the preservation of the rights of the minority. We should also be concerned if a Bill of Rights extends the scope of the non-elected High Court of Australia to impose on the people judge-made laws relating to cherished values or social and community standards, and worse still, if it clothed the non-elected non-judicial Human Rights Commission or similar bodies with these powers, also accompanied by unprecedented investigative powers. I raise these as cautionary questions before we go overboard on a Bill of Rights.

Late last year I referred to the fact that the Attorney-General of the time had withdrawn certain reservations to an important treaty. Those reservations were withdrawn without reference to this Parliament or to the people-in fact, unbeknown to the people. It now appears-I believe this is the first time that this has been made public-as stated in the Australian Foreign Affairs Record, on page 1274, that the Commonwealth Government is considering:

. . . Australia becoming party to the Optional Protocol to the International Covenant on Civil and Political Rights which gives individuals the right to take complaints of breaches of the Covenant directly to the United Nations Human Rights Committee after exhausting domestic remedies.

If that is the case, does that take out of the hands of Australia's democracies and institutions the ultimate control of where we are going and the ultimate responsibility that those institutions should have over the preservation of human rights in this society?


Senator Jack Evans —Is that clause included or excluded?


Senator HARRADINE —At present, under the International Covenant on Civil and Political Rights, there is an optional protocol which, if it is signed by the treaty state, enables its citizens to go outside the jurisdiction of this country-for example, that of the High Court-and to appeal directly to the United Nations Human Rights Committee. Considering the composition of the United Nations Human Rights Committee, one would not want to allow it to define what human rights are in the first place. Certainly, any country would have to be careful about allowing such a body with such disparate views, some of its members coming from countries which systematically deny human rights, to determine the future of human rights in a country such as Australia.

The other point I make is in respect of retrospective legislation. I have given the matter a great deal of consideration. Many unfounded accusations about tax avoidance and tax evasion practices have been hurled around over a fair period. My background makes those practices anathema to me. As Senator Jack Evans would appreciate, I voted to outlaw such practices, but I would not vote for legislation which applies a new tax retrospectively on the innocent and guilty alike. The question of certainty before the law is an important one for a democratic society. If we allow people to get away with imposing legislative retrospectivity, we allow any future government to engage in applying retrospectivity in ways contrary to the interests of the people about whom I am mainly concerned, the workers of Australia. For example, if we apply retrospectivity to legislation, we could enable State governments, or indeed the Commonwealth Government, to delete from workers compensation legislation scheduled injuries or scheduled diseases, retrospectively. Where does that leave the rights of individual workers?

I give an example that illustrates the ludicrous nature of such legislation. If a person blows in the breathalyser bag and is recorded as having an alcohol reading of 0.07 per cent when the legal limit is 0.08 per cent and the law then reduces the maximum limit to 0.05 per cent, that person does not expect the cops to go through the books and charge him for blowing into the bag with a 0.07 per cent alcohol reading. That is a clear example of the effect of retrospective legislation.

I turn to the Speech of the Governor-General. I deal particularly with the burning question of youth unemployment and the fact that consecutive governments have not really faced up to this problem. Before I elaborate on that, I note that Senator Aulich is in the chamber. I congratulate all new senators on their speeches. I note that Senator Aulich bemoaned the fact that we will have a new senator from Tasmania, Dr Norm Sanders. I point out to Senator Aulich that Dr Sanders will come to this Senate by kind favour of the Australian Labor Party in Tasmania by reason of the fact that the Tasmanian Labor Party allocated preferences to Dr Sanders. Kath Venn, a longstanding labor movement supporter, had over many years served this movement and the nation. She got the third highest vote of any candidate. What killed her was the block vote of the Labor Party going to a person who had destroyed the Labor Government in Tasmania.

Debate interrupted.

Sitting suspended from 12.45 to 2 p.m.