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Tuesday, 23 August 1994
Page: 90


Senator ABETZ (6.56 p.m.) —I also wish to comment on the Human Rights and Equal Opportunity Commission report on certain provisions of the Tasmanian criminal code. The report carries in it all the flawed logic employed by the United Nations Human Rights Committee. Its recommendation on page 19 of the report is very simple. It simply says that sections 122(a) and (c) and 123 of the Tasmanian criminal code should be immediately repealed. On page 14 of the report the commission states:

The Commission considers that the existence of the other laws make it unnecessary to maintain Sections 122 (a) and (c) and 123 of the Criminal Code.

I can tell Senator Spindler, the United Nations Human Rights Committee and the Human Rights and Equal Opportunity Commission that they are wrong in that regard. I have no less support than the Tasmanian Gay and Lesbian Rights Group, which issued a media release on 7 July 1994, which said:

The Flinders Island case—

That was a recent case in Tasmania where those sections of the code had been enforced—

has shown that if sections 122 and 123 are repealed there may be a loophole in the law for those cases of male paedophilia which occurred before the age of consent laws were made gender neutral in 1987.

It is abundantly clear that the human rights commission did not consider that aspect of the Tasmanian law and the consequences of its recommendations. It is absolutely shameful for the human rights commission to give a report such as this without considering the social impact that may have. If this report were to be adopted by the federal government, it would mean that anybody who had committed paedophilia before 1987 and had not been caught up to this point could no longer be charged. Is that what Senator Spindler and the Australian Democrats want? Is that what the human rights commission wants? Is that what the UN Human Rights Committee wants?


Senator Spindler —That's a furphy.


Senator ABETZ —Senator Spindler says it is a furphy. I can tell him that the Tasmanian Gay and Lesbian Rights Group, in a press release on 7 July 1994, did not consider it a furphy and considered it appropriate to comment on it. Clearly the human rights commission did not consider the situation.

  The human rights commission also mentioned that possibly this legislation outlaws oral sex. Once again, if the commission had done its research it would be aware of the case of Swingells, a decision of the Supreme Court in Tasmania in 1989 by His Honour Mr Justice Underwood, which made a specific ruling in that regard. Once again, that is completely ignored and it simply pulls out of the air that this law might have such and such an impact without looking at the decided case law in Tasmania. If we are to take the human rights commission seriously, we have a right to expect that it would review and do its research in an appropriate and mature manner and not simply regurgitate the pathetic decision of the United Nations. That is really what it has done.

  The fact that the Human Rights Commission has made its report, relying very heavily on previous United Nations and European court decisions, raises the question why Australia abolished appeals to the Privy Council. We abolished those appeals because we wanted Australian law determined in Australia by Australians and not by a foreign body in London. We have simply changed the venue with these reports now.

  Instead of having the decisions made for us in London by the Privy Council, we are going to Geneva. What is the difference, other than the fact that the Geneva based body does not have the legal expertise of the former Privy Council? At the end of the day, it is a question of who ought to be deciding the moral code for Tasmanians, and I unreservedly say that it ought to be the people of Tasmania. (Time expired)