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Tuesday, 23 August 1994
Page: 91


Senator CHAMARETTE (7.01 p.m.) —I welcome this report. I support Senator Spindler's comments that it shows up the narrowness of the federal government response to the provisions in the Tasmanian criminal code.

  Honourable senators interjecting—

  The ACTING DEPUTY PRESIDENT (Senator Calvert)—There is too much discussion from both sides of the chamber. Senator Chamarette did not interject while the two previous speakers were speaking, so I hope that she can be heard in silence.


Senator CHAMARETTE —I am more concerned about losing the time, Mr Acting Deputy President, but thank you. I was pointing out the narrowness of the federal government response to the provisions in the Tasmanian criminal code, which are shown in this report by the Human Rights Commissioner. While we are yet to view the legislation, it seems that the legislation put forward by the Attorney-General will rely on the privacy issue, which will put Australia in breach of articles 17 and 2.1 of the ICCPR. Senator Abetz's comments give an illustration as to why it might have been far better if the federal government could have taken the third avenue available to it, which is the right to equality before the law and equal protection of the law.

  This report and the legal advice that the Greens (WA) have received indicate that the parliament can enact legislation to ensure that there is equality before the law for lesbians and homosexual men. The combined effect of section 26 of the ICCPR and the external affairs power of the Commonwealth gives the government the legislative power to pass such legislation.

  It would certainly be a more constructive step which would allow Australia to embrace the positive concept of equality before the law for everyone, rather than having a federal act based on age of consent—which, of course, we know is a shambles, with different ages for males and females across the different states—and on the right to privacy. The right to privacy can be called in only as a defence, but it will not necessarily protect individuals from legal action either in Tasmania by the state government for the articles that are under consideration, or in Western Australia because the age of consent in that state is 21 for adults in relation to homosexual behaviour.

  It would be regrettable if the issue were used politically as a states' right argument. I think Senator Abetz needs to know that it was quite within the grasp of the commissioner. In the report of the Human Rights Commissioner, he actually referred to the measures that Senator Abetz said that he had not. I believe that the Tasmanian laws as set out in the report were applied inappropriately. Section (e) on page 14 of the report, says:

The laws are applied in cases involving sexual activities with minors, non-consenting sexual activity and sexual activity in places to which the public have access.

The Commission notes that these activities are also prohibited by other laws but that, apparently for technical reasons, charges have been laid on the basis of Sections 122 (a) and (c) and 123 rather than on the basis of the other laws. The Commission considers that the existence of the other laws make it unnecessary to maintain Sections—


Senator Abetz —You don't understand, do you?


Senator CHAMARETTE —I understand perfectly. Senator Abetz is implying that there is not cover under the paedophilic law and other laws within the criminal code, and that is absolutely untrue.


Senator Abetz —Not before 1987.


Senator CHAMARETTE —That is quite true, but how many people who were sentenced before 1987 are of any threat to the community? I think that is actually a misleading argument and should not go uncorrected. The laws that are there in Tasmania's case have not been applied appropriately. If they are applied appropriately, fortunately, they will now be in breach of more progressive federal legislation and, therefore, they will hopefully fall. The case which is presented by this report still remains; it would have been far more beneficial if the federal government had taken the more open role of embracing equality before the law for everyone. That is the point that this article presents very fairly and very accurately.

  Question resolved in the affirmative.