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Wednesday, 11 May 1994
Page: 573


Senator SPINDLER (10.31 a.m.) —by leave—I move:

2.After clause 81, page 30, insert the following new Part:

"PART 7A—AMENDMENTS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ACT 1986

Object of Part

  "81A.The object of this Part is:

  (a)to enable Parliamentarians to request the Human Rights and Equal Opportunity Commission to report on proposed Commonwealth, State and Territory enactments;and

  (b)to provide that reports to the Minister or a Parliamentarian by the Commission be laid before the Parliament.".

  Principal Act

  "81B.In this Part, "Principal Act" means the Human Rights and Equal Opportunity Commission Act 1986.

  Functions of the Commission

  "81C.Section 11 of the Principal Act is amended by inserting the following paragraph after paragraph (1)(o):

    "(oa)the functions conferred on the Commission by section 11A.".

Parliamentarians may request the Commission to report

  "81D.After section 11, the following sections are inserted:

Parliamentarians may request the Commission to report on proposed Commonwealth, State or Territory enactments

"11A.(1)A Parliamentarian may request the Commission to report to the Parliamentarian on any proposed enactment of the Commonwealth, a State, or a Territory for the purpose of ascertaining whether the proposed enactment would be inconsistent with or contrary to any human right.

  "(2)In this section:

    "parliamentarian" means a member of the Senate or of the House of Representatives;

"proposed enactment" means:

    (a)a proposed law introduced into the Parliament of the Commonwealth or the legislature of a State or a Territory; or

      (b)a proposed law prepared on behalf of:

        (i)the Government of the Commonwealth or of a State, or the Administration of a Territory; or

        (ii)a Minister of State of the Commonwealth or a Minister of a State Government or a Minister of a Territory Administration; or

        (iii)a body established by law that has the function of recommending proposed laws of the Commonwealth, a State or a Territory; or

      (c)an instrument proposed to be made under a law of the Commonwealth, a State, or a Territory.".

Reports to the Minister to be laid before the Parliament

  "11B.(1)Where the Commission reports to the Minister or a Parliamentarian in accordance with section 11, or under an inter-governmental arrangement under section 16, or in accordance with section 11A, the Minister or the Parliamentarian, as the case may be, must lay the report before each House of the Parliament not later than 5 sitting days of that House after the Minister or the Parliamentarian receives the report.

  `(2)This section does not apply to a report to which subsection 29(5) applies.

   `(3)In this section "parliamentarian" has the same meaning as in section 11A.'.".

3.After clause 84, page 30, insert the following new Part:

"PART 8A—AMENDMENTS OF THE PRIVACY ACT 1988

"84A.The object of the Part is:

  (a)to enable Parliamentarians to request the Privacy Commissioner to report on proposed Commonwealth, State or Territory enactments; and

  (b)to provide that reports to the Minister or a Parliamentarian by the Commissioner be laid before the Parliament.

  Principal Act

  "84B.In this Part, "Principal Act" means the Privacy Act 1988.

  Definition

  "84C.Section 6 of the Principal Act is amended by inserting the following definitions in subsection (1):

`parliamentarian', for the purposes of section 27 and 31, means a member of the Senate or a Member of the House of Representatives;

`proposed enactment' for the purposes of a request by a Parliamentarian under paragraph 27(1)(b) means:

    (a)a proposed law introduced into the Parliament of the Commonwealth or the legislature of a State or a Territory; or

    (b)a proposed law prepared on behalf of:

      (i)the Government of the Commonwealth or of a State, or the Administration of a Territory; or

      (ii)a Minister of State of the Commonwealth or a Minister of a State Government or a Territory Administration; or

      (iii)a body established by law that has the function of recommending proposed laws of the Commonwealth, a State or a Territory; or

    (c)an instrument proposed to be made under a law of the Commonwealth, a State, or a Territory.".

Parliamentarians may request Commissioner to report on proposed Commonwealth, State or Territory enactments

"84D.Section 27 of the Principal Act is amended by inserting `or a Parliamentarian' after `Minister' in paragraph (1)(b).

Reports to the Minister or a Parliamentarian to be laid before the Parliament

  "84E.Section 31 of the Principal Act is amended by inserting the following subsections after subsection (3):

  "(3A)Where the Commissioner reports to the Minister or a Parliamentarian in accordance with paragraph 27(1)(b) the Minister or the Parliamentarian, as the case may be, must lay the report before each House of the Parliament not later than 5 sitting days of that House after the Minister or the Parliamentarian receives the report.".

    `(3B)Subsection (3A) does not apply to a report to which subsection 33(4) applies.'.".

This amendment has some history. The chamber will recall that I approached the Privacy Commissioner because I had some concerns about the amendments which I sought to delete just a few minutes ago. I received a response from the Privacy Commissioner saying that he had provided comments on the Law and Justice Legislation Amendment Bill to the Minister for Justice (Mr Kerr). He said further that it was not his practice to canvass with non-government members concerns or otherwise about bills, but indicated that non-government members should make requests to the relevant minister for access to the Privacy Commissioner's comments.

  It must be said that the Privacy Commissioner was simply implementing the rules which govern his conduct. The provisions in the Human Rights and Equal Opportunity Commission Act 1986, I believe, are similar to those governing specifically the commissioner's conduct in the privacy legislation. Subsection 11(1)(e) of the act says that, amongst the functions the Human Rights Commissioner has to fulfil, the following is included:

To examine enactments, and—

and this is the telling phrase—

(when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments, as the case may be, are, or would be, inconsistent with or contrary to any human right, and to report to the Minister the results of any such examination.

There is no provision in the relevant two pieces of legislation to enable either the Human Rights Commissioner or the Privacy Commissioner, who are both statutory officers, to provide their advice to this parliament or to members of this parliament, be they senators or members of the House of Representatives.

  I then wrote to the minister requesting that the advice he had received from the Privacy Commissioner should also be provided to me. The minister—and I am grateful for his action—did so. He provided me with a copy of the letter he received from the Privacy Commissioner and also a copy of the letter he wrote in reply to the concerns the Privacy Commissioner expressed. The Minister for Justice in his cover letter said:

I have consulted the Privacy Commissioner about the release to you of this correspondence. The Commissioner has agreed to its release and I enclose a copy of the letter I received from the Commissioner together with a copy of my reply to the Commissioner.

That is fine. The Privacy Commissioner has agreed to it. But the point is that, whether the Privacy Commissioner had agreed or had not agreed, the decision rested with the minister. So to that extent the minister's cover letter, courteous though it is, is misleading. It ignores the fact that it was not the Privacy Commissioner who made the decision to disclose his advice to me as a senator of this parliament, it was the minister who decided that he would provide that advice to me. The minister would have been within his legal rights to say, `No, go jump in the lake. I will not let you have the advice I have received from the statutory officer, from the Privacy Commissioner.'

  We have seen in the last half hour, during the debate on the contents of those provisions, that the legislation is flawed, that the advice from the statutory officer helped to draw attention to that and helped to point the direction the amendments should take. It is very clear indeed, if one needed any detail to support the obvious principle, that members of this parliament should have access to advice from statutory officers, such as the Human Rights Commissioner or the Privacy Commissioner, on legislation before this chamber.

  Very clearly, we are charged with a duty to assess government legislation. We are charged with a duty either to amend, reject or pass it. Surely we must be able to do that on the basis of the best advice available and not have a political consideration interfering with that to enable the minister to say, `The advice you might get from the Human Rights Commissioner, the advice I have received, may contain some political embarrassment. I'd rather not let you have it.' Under the present state of the legislation, that is the end of the matter. A member of parliament would not be able to obtain that advice from a statutory officer.

  It is on that basis that I am moving my amendment. The objective of the amendment is, as stated:

(a) to enable Parliamentarians to request the Human Rights and Equal Opportunity Commission to report on proposed Commonwealth, State and Territory enactments; and

(b) to provide that reports to the Minister or a Parliamentarian by the Commission be laid before the Parliament.

I have already pointed to the section which currently prevents that from happening. Further in my amendment, clause 11A(1) states:

A Parliamentarian may request the Commission to report to the Parliamentarian on any proposed enactment of the Commonwealth, a State, or a Territory for the purpose of ascertaining whether the proposed enactment would be inconsistent with or contrary to any human right.

I emphasise that this is the section of the amendment which deals with the Human Rights Commission. It also includes a definition of `proposed enactment'. It defines it as legislation introduced into the parliament, or a proposed law prepared on behalf of the government of the Commonwealth, a State or the administration of a Territory, and it includes an instrument proposed to be made under the law. In other words, it includes regulations.

  There is also a provision for the advice provided to the minister or a parliamentarian to be tabled within five sitting days. Similar provisions in the amendment apply to the Privacy Act 1988. The amendment seeks to deal with both the Human Rights Commission and the Privacy Commission. I will not go through these amendments. They are similar in intent and largely in detail to the ones that I have outlined to the chamber.

  I acknowledge my appreciation of the speedy drafting that was provided on this occasion by the Clerk of the Senate and the Clerk Assistant (Procedure). I am not putting that on record to suggest that their service at other times throughout the year is anything but 105 per cent, but I am conscious that on this occasion, because of the way in which the matter arose, I had to have this drafting done in double quick time. I am very grateful for the excellent drafting and the speed with which the material was provided. It might have been a little too fast—not for the clerks, but for the opposition and, apparently, the government—because it seems that I am not going to get support for this amendment from either the government or the opposition.

  The principle is acknowledged, I understand, that parliamentarians should have access to the best possible advice that is available when they consider legislation before parliament. But all sorts of difficulties are discovered in the proposition that I am putting in this amendment. I understand that there are some concerns on the opposition side about including state legislation. We do have on record legislation passed. We have, for instance, the juvenile justice legislation in Western Australia; the Crimes Act amendments on police powers to demand names and addresses, obtain forensic samples and undertake fingerprinting in Victoria; and the indeterminate sentencing legislation in Victoria. These are all pieces of legislation which are in breach of Australia's obligations under international conventions which we have signed and ratified.

  It would be ludicrous to say that we should not be able to obtain advice from the Human Rights Commission or the Privacy Commissioner on state legislation which should properly be overridden by legislation in this Commonwealth parliament. But that seems to be a difficulty. Indeed, one has noticed a distinct reluctance by the Commonwealth government to take action to override state legislation that is not in keeping with our obligations as a Commonwealth and as the Australian nation. The real test will come on whether this government has the courage to do something about the Tasmanian laws making homosexual behaviour a criminal offence following a view expressed by the United Nations human rights committee that that legislation is indeed contrary to our obligations.

  A lot of almost fraudulent argument has been in the newspapers recently about that, notably by Senator Kemp, suggesting that this is an infringement of our sovereignty. Unfortunately, in making that claim, Senator Kemp omitted to mention that the United Nations human rights committee did not make a ruling that is legally binding on Australia. All it did was to provide a view—that is the word used. Whether the Commonwealth government and this parliament decide to do something about the obnoxious legislation in Tasmania is, and remains, a decision of this parliament.

  I am looking forward to the day when this legislation is before us so that we can determine whether we wish to accept the advice of the United Nations human rights committee. To present that as an infringement of our sovereignty is little more than fraudulent. In my discussions with the government other reasons were given as to why this amendment should not proceed, such as the workload of the officers concerned—

  The TEMPORARY CHAIRMAN (Senator Calvert)—Order! Senator Spindler, your time has expired.