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Wednesday, 26 November 1986
Page: 2829

Senator DURACK(9.53) —It is perfectly clear now that the Government is going to run away from the commitment of Prime Minister Hawke of 12 March. From the answer that we have just heard, it is quite clear that the Government does not now need to be buying the lousy little votes of the Australian Democrats as it was on 12 March. It gave this commitment in circumstances in which it desperately sought to get the support of the Democrats for the Bill of Rights. Of course, now that it has abandoned the Bill of Rights it is not particularly interested in this question. It does not have to pay this price. It is now cheaper for the Government than it was earlier in the year.

In the years that I have been here I have never heard such a miserable retreat by any Minister in this chamber. This is not a question of what the Attorney-General (Mr Lionel Bowen) thinks. With all respect to the Attorney-General, it is very difficult to understand what he thinks from week to week. The background to the letter from the Prime Minister was that both the Attorney-General and Senator Evans as the Minister representing the Attorney- General put their position in the Parliament but the Australian Democrats, very wisely after what we have just heard, were not prepared to accept the statements by the Attorney-General and Senator Evans about what would happen. Don Chipp wanted a cast iron guarantee from the Prime Minister. How wise the Democrats were. It is no good Senator Gareth Evans saying that this is his current understanding of the situation and that he will have it confirmed, or maybe denied or maybe qualified, by the Attorney-General. When are we to be told that?

Senator Walters —I hope you heard him say that it is quite possible that it would be denied.

Senator DURACK —Of course it would be denied. Mr Bowen denied it the other day. He said that it was for Queensland to decide. It is obvious that the only way to solve this problem is for Senator Gareth Evans to tell us, on behalf of the Prime Minister, or for the Prime Minister to tell us on his own account, that the commitment of 12 March stands or does not stand. That is really all we need to know. I think we ought to be told before we proceed any further in this Committee just what is the position of the Government. I would like to make one or two comments on Senator Gareth Evans's statement. He says that the situation has changed since 12 March.

Senator Giles —Well, well!

Senator DURACK —It has; he said it. Did the honourable senator not hear him? He said that the situation has changed since the Prime Minister--

Senator Giles —How can you deny that it has changed?

Senator DURACK —Senator Evans said it; I did not. It has changed because the Australian Bill of Rights Bill has not been passed. The Bill of Rights had not been passed on 12 March either. The position is that the power of the Parliament to pass the Bill of Rights depends upon the provisions of the Covenant. The fact that the Bill of Rights has not been passed does not affect the external affairs power. That depends upon the Covenant. The Covenant is still there, ratified as it was some time ago. Whatever constitutional power there is to carry out this exercise, the Government has that power. The only change in the circumstances is that the Government does not now want to buy the Australian Democrats' votes for the Bill of Rights because it has abandoned it. That is the only thing that has changed-the Government does not now need to buy the Democrats' votes. The Prime Minister and the Attorney-General do not need to reaffirm that, and they are trying to skrimshank out of it, as clearly Senator Gareth Evans has been doing tonight.

Another interesting factor might have influenced the Government, and this may be a new factor which was not known to any of us when the matter was being debated in the Senate in March this year. At the Senate Estimates committee hearings in April this year, following the debate we had here, Senator Walters and I asked some questions of the representatives of the Human Rights Commission. They revealed some interesting information-in particular, that the existing Human Rights Commission had been asked to give an interpretation of the provisions of article 25 of the International Covenant, the one about equal suffrage. Mr Thomson, the Secretary to the Commission, wrote a letter to Senator McIntosh dated 11 April 1986 and enclosed a series of documents revealing the results of investigations by the Human Rights Commission in relation to a matter which had been raised with the Commission by the Proportional Representation Society of Australia which asked to have investigated whether the method of electing members to the House of Representatives is inconsistent with article 25 of the International Covenant. The reply to Mr Wright, the President of the Proportional Representation Society of Australia, from Mr Thomson was dated 1 September 1986. In that reply Mr Thomson, on behalf of the Human Rights Commission, said that the Commission had examined the working papers of the international committees that worked on the Covenant to try to find the exact intention of the specific words and phrases. He went on to say that from the records it seemed clear that the intention of the United Nations General Assembly was that the final form of the Article should make allowance for different electoral systems in various parts of the world and that the choice of electoral systems should be left to individual governments.

Further he refers to views that were expressed in what are called the working papers of the preparatory committee's working on the Covenant, and so on. The British delegation informed the 1,096th meeting of the third committee at which these matters were discussed that it would no longer maintain its amendment if it were made clear that the word `equal' did not imply that each vote would be guaranteed identical weight by means of some kind of proportional representation electoral system, and that each vote carried equal weight in the sense that there was only one vote per person and it was cast from a member who had exactly the same rights and duties as any other member. The general tenor of this reply from the Human Rights Commission was to reject the claim that the guarantee in the Covenant of universal and equal suffrage does not mandate some proportional representation system by force of that reasoning and certainly does not mandate any one vote, one value system. It seems that the most it can guarantee is one person, one vote, although it really does not mandate any particular electoral system. It leaves that for final determination by the States concerned.

It is on the basis of that very limited definition of equal suffrage that the Government apparently was going to refer this to the new Human Rights Commission. It may well be that the Government has now decided that, on the basis of findings already made by the existing Human Rights Commission, there really is no substance in the argument that the international Covenant, and by force of that, the Bill of Rights which sought to guarantee equal suffrage, guarantees one vote, one value. It is even doubtful whether it guarantees one person, one vote, because the electoral systems essentially are left to the determination of the States concerned.

The major textbook on the international covenant, titled the `International Bill of Rights', edited by a prominent international lawyer called Louis Henkin and which is contributed to by a number of international lawyers, also discusses this matter, and on page 240 the same conclusion is expressed. For good measure, after we last debated this matter the question was also the subject of views expressed by a quite prominent Australian constitutional lawyer, Professor Winterton, who on the AM program in April this year also expressed considerable doubts as to whether the Covenant could be used to mandate or require assistance for one vote, one value.

The upshot is that the letter that the Democrats got from the Prime Minister is of doubtful value or significance and was probably due to the fact that the Government has learnt a little more about what the Covenant means and the value it can be put to. It has probably had some legal opinions in addition to these, which it will not let us have, which have convinced the Government that the likelihood of even the new Human Rights and Equal Opportunities Commission which will be set up by the Government, coming to any other decision than the existing Human Rights Commission on what the Covenant means is most unlikely. Frankly, I am not surprised that Senator Evans is trying to back away from the commitment that his Prime Minister gave in such unequivocal terms to Don Chipp, the former leader of the Democrats, in the letter that has been referred to.