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Friday, 19 April 1985
Page: 1228

Senator GARETH EVANS (Minister for Resources and Energy)(9.30) —I contribute briefly to the debate since my own contribution to the development of human rights legislation in this country seems to be somewhat in the eye of the storm at the moment. I approach this debate with some diffidence but want to make a couple of brief points. The first is that I can understand the concern that beats in the breasts of the Opposition that it is not appropriate that a Senate Committee approach the task of analysing a particular piece of legislation without that piece of legislation or proposed legislation being squarely before it in its terms of reference. To that extent I would not object to the general thrust of the proposed amendment to the reference going to the Senate Standing Committee on Constitutional and Legal Affairs. I rise, however, to enter one caveat, and it is this: I would think it unfortunate if the terms of this amendment were construed by the Committee as precluding it from looking at the terms of particular models that have emerged, officially and unofficially, in the past for translating Bill of Rights aspirations into legislative reality. If I have learned anything from my participation in this debate on and off over the last 14 years or so, it is that the most enormous difficulty one has in getting sensible debate on the Bill of Rights issue is getting people to focus on the actual issues of detail involved, and to stop simply swapping high level and high-blown rhetoric about the general principles involved. The whole art of translating the kind of aspirations contained in the International Covenant on Civil and Political Rights, for example, into domestic Bill of Rights legislation is to get the drafting language right and to create rights that are capable of enforcement in a practical way by the courts or by whatever other institution is created or modified for the purpose of giving those rights reality on the ground.

It is most important for the Committee to be able not just to focus on questions of general principle and the desirability or undesirability of Bills of Rights in the abstract; it should be possible for the Committee to address itself squarely to the kinds of practical difficulties involved in the drafting in legislative language of particular rights as well as simply identifying in general terms what rights might be appropriate for treatment in this way. Equally, it is also important for the Committee to be able to focus by reference to particular models that have emerged in the past, like the 1973 Murphy Bill or like other drafts that have been prepared around the place from time to time. One was introduced in New Zealand recently. That is another useful example. But equally there have been other drafting exercises conducted within government, including my own last year, which have addressed these problems and sought to resolve them.

I make the point as forcefully as I can that, though I do not think the Committee should regard its task as being to report on any particular piece of putative legislation to recommend its adoption or otherwise, it should be able to have before it any model that has been prepared in any context whatever so that it can come to grips in a systematic and intelligent way with the problems of drafting a Bill of Rights, getting the substantive rights properly identified and getting procedures for their recognition, declaration and enforcement which are workable and not counter-productive. To come to grips with those sorts of issues demands willingness on the part of the Committee to come to grips not only with matters of generality but matters of detail. That will demand some attention to a variety of models that have been prepared. With those caveats, I support the proposal and the amendment which has been moved to it.