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Friday, 28 November 1986
Page: 2961

Senator DURACK(9.59) —Just before the gag was so disgracefully moved on a human rights Bill, of all things, by the Minister for Resources and Energy (Senator Gareth Evans) who was at the table, supported even more disgracefully by the Australian Democrats, who make such a great song and dance about human rights issues and so on--

Senator Walters —The hypocrisy of it all.

Senator DURACK —Total hypocrisy of the worst kind. It was certainly the end of a black day for the Democrats. They had lost their Deputy Leader earlier in the day and then they obviously jettisoned the attitude of their former Leader and founder, Don Chipp, who said that they were here to keep people honest. The first thing that rabble of representatives who are interested only in single issues did was gag debate on a human rights Bill. Before that disgraceful episode the other night I was about to seek leave to incorporate in Hansard a letter from Mr Thomson of the Human Rights Commission to the President of the Proportional Representation Society of Australia in which the Commission gives an opinion in relation to the question of what `universal and equal suffrage' means. We were discussing the phrase `universal and equal suffrage' at the time the gag was imposed on the Democrats' amendment.

Senator Evans in his reply seemed to be under the impression-for some reason he thought this was irrelevant to the matter in issue-that the letter from the Human Rights Commission was some sort of working paper prepared by an officer of the Commission. What I want to make perfectly clear for the record is that this was no such thing. This was a view expressed by the Commission itself as is clear in a letter to Senator McIntosh in his capacity as Chairman of a Senate Estimates committee from Mr Thomson. In that letter Mr Thomson says:

At its Meeting . . . held on 26-27 August 1982, the Commission considered and approved a draft reply to correspondence from the Proportional Representation Society of Australia which had written to the Commission expressing the view that the Australian method of electing Members to the House of Representatives is inconsistent with Article 25 of the ICCPR. The draft was prepared by legal staff of the Commission and may, therefore, be said to contain a legal opinion on that question.

It is perfectly clear that although the letter may have been prepared by legal staff of the Commission it was in fact considered and approved by the Commission itself. So this was a decision by the existing Human Rights Commission given at the end of August 1982 and conveyed to Mr Wright, the President of the Proportional Representation Society of Australia, by letter dated 1 September 1982 and signed by Mr Thomson on behalf of the Commission. I have already quoted from that letter and I do not want to waste the time of the Committee today by quoting from it again. I therefore seek leave to have the letter incorporated in Hansard.

Leave granted.

The letter read as follows-

Dear Mr Wright,

I refer to your letters of 29 March and 9 May concerning your Society's view that the Australian method of electing members to the House of Representatives is inconsistent with Article 25 of the International Covenant on Civil and Political Rights.

Broadly, you seem to be taking issue with the voting process itself, and you then specify three ways in which you believe the electoral system fails to satisfy Article 25.

We have examined the working papers of the international committee that worked on this Covenant to try to find the exact intent of specific words and phrases. These working papers are recorded in the travaux of the 1096th and 1097th meetings of the Third Committee of the Sixteenth Session of the United Nations General Assembly, and in some annexes and agenda to these meetings. I have enclosed photocopies for your information. The Article 23 referred to is the present Article 25 of the Covenant.

From these records, it seems 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. The provisions of Article 23 (then) should have universal significance and be valid for all countries, regardless of their electoral systems. The choice of electoral systems should be left to individual Governments (see paragraphs 11, 18 and 50, and the Annexes: summary of issues discussed).

The first way in which you say the electoral system fails to meet the requirements of Article 25 is that while sub-paragraph (a) of Article 25 refers to the right of every citizen to take part in the conduct of public affairs, directly or through freely chosen representatives, some voters, namely those who do not vote for the winning candidate, do not have freely chosen representatives.

Discussion about the sub-paragraph concerned the significance of the word ``directly'' which was taken to mean ``unhindered in their right to stand for election or nominate others''. There was concern that there be plurality of political parties, as this was one way of guaranteeing that representation be ``direct''; but no concern was expressed that every voter should have a freely chosen representative.

The question would appear to turn upon the meaning of the phrase ``freely chosen''. Clearly having regard to the nature of an election, this cannot mean that every voter shall be represented by the person of his or her choice. In the Commission's view, that phrase means that the process of choosing a representative shall be unfettered. This is, of course, to a significant extent, secured by the concept of secret ballot as well as by the general electoral process obtaining in Australia. This approach is consistent with the discussion mentioned above concerning the significance of the word ``directly''.

Your second concern was that the words ``universal and equal suffrage'' in sub-paragraph 25 (b) should be taken to mean that each vote should have equal value, and that under the present system of elections, this is not so.

The delegate from Great Britain raised the question of this interpretation (Agenda Item 28, Part 1, Annexes, Tenth Session, Document A/2910, Addendum 1 to 6, Observations by Governments). Great Britain's note stated that ``the reference to `equal suffrage' might be taken to mean conditions which ensure that every vote has equal weight; the fulfilment of such a requirement might involve the institution of some form of proportional representation, as well as, in many countries, some rationalisation of the size of constituencies''. Great Britain therefore suggested as an amendment the deletion of the words ``shall be by universal and equal suffrage''. However, at the 1096th Meeting of the Third Committee, at which suggested amendments were discussed, the British delegation said they would no longer maintain their amendment, if it were made clear that the word ``equal'' did not imply that ``each vote should be guaranteed identical weight by means of some kind of proportional representation in the electoral system. . . . Each vote carried equal weight in the sense that there was only one vote per person and it was cast for a member . . . who had exactly the same rights and duties as any other member'' (para. 9). The point was emphasised again by the delegates of the Union of Soviet Socialist Republics (para. 44) and France (para. 50). Subsequent voting indicates that the Committee accepted and agreed with that interpretation of the word ``equal''. The Commission, in the light of that discussion, takes a similar view on the meaning of that word.

Your third concern was that the words ``guaranteeing the free expression of the will of the electors'' should be taken to mean that the will of the people should not merely be recorded but also put into effect, and that while the votes of many people are ineffective, this cannot be so.

There was considerable discussion of the issues involved in sub-paragraph 25 (b), and it was held that ``genuine periodic elections'', ``universal and equal suffrage'' and ``secret ballot'' were the elements of genuine elections which in turn guaranteed the free expression of the will of the electors. Discussion was lengthy, without ever raising the inference that ``free expression'' necessarily involved the ``putting into effect'' of the will of the people. (Paragraphs 4, 26, 31, 49, 55, 59, 73 and 70 refer.) This would not appear to be an inappropriate construction to be placed on sub-paragraph 25 (b).

In view of the above, there would not appear to be any inconsistency in terms of your letter between the existing process of voting under electoral legislation in Australia and Article 25 of the International Covenant on Civil and Political Rights. Should you wish, however, to take further with the Commission any of the matters discussed above, we should be glad to hear from you.

Yours sincerely,



Mr J. F. H. Wright,


Proportional Representation

Society of Australia,

G.P.O. Box 3058

SYDNEY. N.S.W. 2001.

Senator DURACK —The position, of course, becomes quite clear when one reads the letter that the Prime Minister (Mr Hawke) wrote to the Australian Democrats on 12 March 1986. This letter, which has also been referred to in the debate, states:

Specifically I confirm that the Government will ask the Human Rights and Equal Opportunity Commission-

that is the new commission-

to inquire into existing State electoral laws. Should the Commission find that Queensland's electoral distribution contravenes the International Covenant on Civil and Political Rights and should the Queensland Government not agree to reform that distribution, the Commonwealth will legislate pursuant to its external affairs power.

When that undertaking was given by the Prime Minister which followed undertakings given by the Attorney-General (Mr Lionel Bowen), and by Senator Evans on behalf of the Attorney-General, they must have known or should have known that the existing Human Rights Commission itself had adopted a quite different interpretation of the meaning of `equal suffrage'. This reveals how absolutely hollow was the undertaking that the Government gave on 12 March. I think the Democrats realise now how hollow it was, and this may be one reason why they wanted to cut short the debate the other night. Not only has the Human Rights Commission formed this view but also, as I said, this view was expressed by leading international lawyers in the authoritative work on the International Covenant, titled The International Bill of Rights, which contains a series of articles on the Covenant and which discusses various aspects of it. I do not propose to take time quoting from this work, but I refer honourable senators, if they are interested, to pages 241 to 245, which I have already referred to, and particularly to page 242. That view is expressed there and it has also been expressed recently by a leading Australian constitutional lawyer, Professor Winterton.

I have absolutely no doubt that on 12 March of this year the Government would have had either advice or opinion from its own constitutional lawyers on the likelihood that the Human Rights and Equal Opportunity Commission, unless it was stacked by the Government to get that opinion, would accord with the opinion given by the Human Rights Commission and would accord with the current opinion of international lawyers as to what this provision in the covenant means. This has been a totally hollow exercise by the Government. It is clear from what Senator Evans said in the chamber the other night that the Government is backing away from that position as fast as it can. In any event, whatever is decided in this matter, it will clearly be decided by the High Court of Australia.

There is a whole series of reasons why the Government is not going to succeed in this endeavour that it has embarked upon, including the reasons which Professor Winterton expressed in the interview on the AM program, which I have referred to, when he said that there are other good reasons why the High Court is most unlikely to find against the State and this would probably be held to be discriminatory legislation directed against the State. Clearly the price that the Government is paying for these undertakings, which were given purely to buy the Democrats' support for the Bill of Rights Bill, is becoming more and more devalued over time. I leave it at that for the moment. I want to raise another matter, but perhaps somebody else wishes to speak on this point.