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Wednesday, 26 November 1986
Page: 2809


Senator HARRADINE(5.56) —The Senate is debating amendments put forward by Senator Durack on behalf of the Opposition which go to the problem in the Human Rights and Equal Opportunity Commission Bill of the definition of `discrimination'. The definition is on page 3 of the Bill. `Discrimination' is defined as:

Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

any other distinction, exclusion or preference that-

has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and has been determined by the Minister under sub-section 31 (2) to constitute discrimination for the purposes of this Act,

but does not include any distinction, exclusion or preference in respect of a particular job based on the inherent requirements of the job;

Sub-clause 31 (2) of the Human Rights and Equal Opportunity Commission Bill states:

The Minister may, by notice in writing publish in the Gazette, determine that a distinction, exclusion or preference that has the effect of nullifying or impairing a quality of opportunity or treatment in employment or occupation constitutes discrimination for the purposes of this Act.

The explanatory memorandum talks about matters which could be the subject of elaboration by the Minister by gazettal such as personal attributes, nationality, trade union activities, physical disability and sexual preference. One wonders whether the sexual preference of paedophilia would be covered by the phrase `sexual preference'. Let me go to the question of trade union activities. So far as trade union activities are concerned, the Bill enables a Minister-not only this Minister but a Minister in any future government to determine that certain trade union activities could be regarded as discrimination for the purposes of this legislation. I have pointed out in this chamber that one of the problems with the Australian Bill of Rights was that preference causes in trade union awards could well have been seen to be under attack. As we all know, these preference clauses support the foundation of a reasonable and responsible system of conciliation and arbitration. This provision enables a Minister to gazette the fact that trade union activities-presumably, the seeking of preference clauses and the like with employers-could be regarded as discrimination. That would therefore be regarded as interference in the system of conciliation and arbitration.

The Minister is now saying: `We will go along with the Democrats' proposition. We recognise that this is a Henry VIII clause'. First, why did the Government not recognise this in the first place? In other words, the Parliament is being asked to give the Executive Government full control over the future of the legislation. That is the essence of a King Henry VIII clause. The Government says: `Now that you have found us out we will go along with what the Democrats say'.

The Democrats are saying that perhaps the Parliament ought to have some say in the matter. They want the Minister-this Minister and every future Minister-to have the right to make a regulation extending the definition of discrimination. Having that in a regulation would enable the regulation to be disallowed by either House of the Parliament. That proposition by the Democrats is quite inadequate. It is a denial of the right of this Parliament to ensure that matters of substance such as this are maintained in the hands of the Parliament. I will give an example of what has transpired with regulations of this character. I refer to the Australian Capital Territory Classifications of Publications Ordinance 1983. Honourable senators will recall that the Australian Capital Territory ordinance for the first time in this country legitimised the sale and hire of hard core pornography. This was the first time in law that this had happened. The Parliament, having had the matter brought before it, had what options? I remind the Parliament that this is the option that has been given to us now. We could attempt to disallow the regulation. That was the only option that this Parliament had.


Senator Mason —With respect to you, Senator Harradine, that is nonsense. It would have left nothing in its place.


Senator HARRADINE —What the Government was bound to do in my view was bring substantive legislation before this Parliament on that subject because it was a subject of great importance. Instead, it has chosen the route of subordinate legislation. What happened with that subordinate legislation? Attempts were made in this chamber to disallow it in an attempt to get the Government to present the substantive legislation. I remember that debate very well as will many honourable senators.


Senator Walters —I remember it well.


Senator HARRADINE —I was pointing to the fact that what the Government was doing was legitimising hard core pornography. I recall very well the comments that were being made at that stage. Honourable senators were worried about a girl in a bikini. Not one member of the Government supported the motion to disallow the ordinance. The Democrats supported the Government. Subsequently, the Senate passed a motion on 10 May 1984 referring the matter to the Standing Committee on Regulations and Ordinances. Government members on that Committee had certain things to say which tended not to recommend against the ordinance. Others on the committee-Senator Archer, Senator Sir John Carrick, Senator Harradine and Senator Lewis-recommended very strongly that this was a matter of such substance that it ought to be the subject of substantive legislation. That report was tabled in the Parliament. Later a Senate select committee was established. By a majority of seven to one the Select Committee on Video Material recommended--


Senator Zakharov —One was worth the seven, wasn't it?


Senator HARRADINE —Senator Zakharov was the one dissenting. It recommended a ban on X-rated material--


Senator Zakharov —A moratorium.


Senator HARRADINE —A moratorium on X-rated material and a tightening up of violence. It also recommended that action be taken by the Government on access of the material to children and on material being sent through the post. I have had a complaint recently that circulating throughout Australia is a magazine advertising videos depicting incest. We are a long way from a girl in a bikini! We have hard core X-rated material which depicts incest, approved of by the Film Censorship Board under the guidelines laid down by this Federal Government.


Senator Zakharov —Purporting to depict incest.


Senator HARRADINE —It depicts incest. The honourable senator says that it purports to depict incest. The film shows actors. This material is in a number of videos classified as X. The actors are depicting incest. I do not know whether the so-called daughter in the film happens to be the daughter of the other actor. That is beside the point. The point is that the film depicts incest.


Senator Zakharov —Have you seen these films?


Senator HARRADINE —Yes, I have, and the honourable senator knows it. I have distributed a letter to all honourable senators today. I hope that the honourable senator will read it because it discusses a very important question. I give the Democrats and the Government the benefit of the doubt. I believe that they are not aware of the material that is available and that the bulk of the material is in the X category is able to be described properly as non-violent, dehumanising or degrading material-and beyond the pale. My letter shows clearly that one can get material off the shelves in Canberra which if possessed for distribution and circulation in Canada would be determined as being an offence.


Senator Zakharov —So what?


Senator HARRADINE —Senator Zakharov says: `So what?'.


Senator Zakharov —Different country, different standards, probably.


Senator HARRADINE —I viewed one of those videos from start to finish. It was one which Wagner, in the case of R. v. Wagner in Canada, was convicted of possessing. There is no doubt that I certainly agree with the judge. That was supported on appeal. The point I am making is that we have a similar situation in which people are saying that it ought to come under delegated legislation. It is an important matter, and this Parliament should not let out of its grasp that important matter by handing it over to the Government, because it is very difficult to disallow delegated legislation.