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Friday, 19 April 1985
Page: 1225


Senator DURACK(9.10) —The Opposition has no objection to the broad terms of the reference that it is proposed should be put to the Standing Committee on Constitutional and Legal Affairs by Senator Tate's motion; in other words, that the Committee should give consideration to the concept of a Bill of Rights. No doubt there are various models that can be looked at. Senator Tate has referred to the traditional model and to the views of his colleague Senator Elstob in regard to a very different model from the traditional one. No doubt that sort of matter would be appropriate for the Committee's consideration. There is also, of course, as far as Australia is concerned, the very real question of how such a Bill would fit into the federal system; whether it would be proposed that an amendment be made to the Constitution, whether it would apply only to the Federal powers or whether it should apply to State powers, and so on. So there is a wide range of matters for consideration and certainly a wide range of matters of controversy in relation to a Bill of Rights.

The Opposition has, as I said, no objection to that matter being considered by the Committee in so far as it is on that plane and in so far as it is a matter for discussion about the broad nature of a Bill of Rights. The Opposition does not have any particular view as to whether in theory there should or should not be a Bill of Rights. It would not be contrary to our stance in relation to this subject for a Senate committee to look at the matter and come forward with various models. However, the Opposition is very firmly opposed to the introduction of a Bill of Rights in Australia by some back-door methods, which is precisely, of course, the way in which this Government has been considering the matter, and particularly the way in which the former Attorney-General, now the Minister for Resources and Energy (Senator Gareth Evans), has been pursuing this subject. Therefore, we are entitled, I think, to be suspicious as to the intentions of the Government in light of what the former Attorney-General said and did-or failed to do-over the course of the last two years. That problem has not been allayed by the present Attorney-General (Mr Lionel Bowen), who has talked about drawing up a Bill of Rights which he will presumably be proposing for consideration by this Parliament.

I remind the Senate of the course of events during the year before last when the Government was first elected. One of the centrepieces of its law and justice policy as propounded by Senator Evans at that time was the introduction of a Bill of Rights and use of the external affairs power of the Commonwealth-which has now been so widely interpreted by the High Court in the Tasmanian dam case-to introduce a Bill of Rights which is not an Australian Bill of Rights, or a Bill of Rights which would address current Australian interests and concerns, but a Bill of Rights which would simply give effect to the International Covenant on Civil and Political Rights. That Covenant is expressed in very old and traditional terms and represents the preoccupations of a number of largely Third World member countries of the United Nations which have had very little rights at all, and was supported by countries such as the Soviet Union which has had no civil and political rights at all. Therefore, it was not a satisfactory model. I was interested to hear Senator Tate say that Senator Elstob's views are very different from those propounded by the International Covenant on Civil and Political Rights. The other main objection the Opposition had to the proposal was the use of the external affairs power so that this Parliament-


Senator Elstob —It would be worth considering by the Committee, would it not?


Senator DURACK —The Committee can consider all options under this reference. The proposal was to use the external affairs power so that this Parliament would be forcing on the States, contrary to ordinary federal principles and structure, that model. It was notorious that legislation along those lines was being drafted. Despite Senator Gareth Evans's adherence to the principles of freedom of information when he was in opposition we could never get him to unveil the Bill of Rights. It was always going to be introduced in a few months time, but it never was introduced. Up to the period of the election last year there had been no Government admission that such a Bill had been drafted and prepared to such an advanced stage. It then emerged that the Bill had reached a very advanced stage and had been considered widely by everybody except members of this Parliament. As I said, I do not know what the state of play is in the Government in relation to the Bill. Certainly the present Attorney-General has expressed very publicly criticism of aspects of it. There are rumours that he is preparing his own Bill. So far this Parliament is no better informed about what the Government's present intentions are than we had been by Senator Evans for the last two years.

This is a matter of very grave concern in regard to the future system of government of Australia. If a firm proposal of some sort is ever determined by the Government, it is the duty of the Government to introduce it into Parliament so that we can debate its principles and approach. We are very concerned that the reference to the Senate Standing Committee on Constitutional and Legal Affairs should not be yet another back-door method of making major changes to our Constitution in the form of the Government submitting to the Committee a draft Bill and endeavouring to get the Committee's support and, thereby, bipartisan support, for it ahead of full and public debate in this place and in the community about the divisions and approach of the Government's proposals, if any proposals are finally determined. I am entirely satisfied by what Senator Tate has said in introducing his proposal that that is not his intention or the intention of those who support this reference. As I said, the Opposition members of the Committee will certainly not be seeking to use this reference for that purpose at all. On the face of it, there would never have been any objection whatsoever by the Opposition to this motion going through at this stage in its present terms, even without debate. I imagine that there would be very great debate ultimately on any report the Committee brought in on such a controversial subject. However, in view of what has gone on in the last two years, the Opposition is very concerned to ensure that any proposals by the Government are not simply put to the Committee so as to test them out before the Committee ahead of their being introduced into this Parliament as a Bill and of proper consideration being given to them before the Committee would look at them. In order to ensure that, I move the following amendment:

At end of motion add: ', but that the Committee, in the course of its inquiry, not consider the provisions of any Bill on this subject prepared by the Government unless such Bill has been introduced into the Senate and referred to the Committee by a further resolution'.

In other words, I envisage that the Government would introduce its measure into this place. We would have a full second reading debate on it. If the Committee were still considering various other options no doubt the Senate would determine whether this Government's proposal should be considered by the Committee. As I have said, the Government may never introduce such legislation. It may wait until the Committee reports. I do not know what the Government will do. We have never been able to find out what the Government intends to do and that is what is concerning us. For two years the Government has been keeping secret what its proposals are despite the noises that it makes about its support for a Bill of Rights. We want to ensure that if the Government ever comes to any firm decision on this matter it will make its position known publicly so that it can be debated in this chamber and not in the deliberations of the Committee. The latter would be a totally unsatisfactory approach to a matter of this kind.

As I have said, the Opposition is quite happy for the Committee to look at the subject of a Bill of Rights in very general terms but it demands that if the Government has its own proposal prepared and determined it should introduce it here first, and not to the Committee without giving the Senate or the Parliament an opportunity to debate it and determine whether it is a model which it will entertain or reject.