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Wednesday, 24 August 1994
Page: 201


Senator ABETZ (12.45 p.m.) —I rise to address certain elements in the media who are incapable of grasping the debate over Tasmania's criminal code. It is more to do with our federalist system of government and states rights and Australia's sovereignty as opposed to what two people may or may not want to do in the privacy of their own bedroom. In particular, I refer to Margo Kingston's commentary in today's Canberra Times which was under the heading `The Senator might like to reconsider'. I took up her invitation to reconsider. All it has done is confirm that the views expressed by me were appropriate; the arguments that she sought to throw up against me were incapable of damaging the argument that I had put forward.

  The second paragraph of her commentary makes the bold assertion that the Tasmanian laws allegedly deal with oral sex. Clearly they do not; there is a decided case in the Tasmanian Supreme Court—a decision of Mr Justice Underwood—which clearly says they do not. Yet for some reason best known to herself she makes that assertion. I know that assertion has been pedalled by certain other elements but clearly it is incorrect. If somebody ought to be reconsidering, possibly it ought to be Ms Kingston.

  What follows after that glaring error is, with respect, an erudite summary of mainstream thought on this issue. In case colleagues do not realise, what she did was quote my media release in full and for that I thank her. After quoting my release, she continues her commentary. With her assertive heading asking me to reconsider, I read with interest that there was no basis for me to reconsider and simply confirmed that the opposition to the views expressed was bereft of principle or logic.

  She attempts slight sarcasm by referring to me as a man `skilled in legal reasoning' who may be willing to reconsider some errors in his release. Let us consider them. She says the law of incest is completely untouched by the reform. I simply ask: how does she draw that conclusion? The Attorney-General's media release states:

The government will introduce a Human Rights (Sexual Conduct) Bill to ensure that the privacy of sexual conduct between consenting adults is protected from unreasonable legal interference.

It does not say that the Attorney-General and the Labor government are specifically going to exclude incest. If we are going to rely on this overriding right to privacy, surely incest must be allowed as well.

  Where I have got one over Ms Kingston is in the capacity to think laterally and to interpret and consider the consequences flowing from changes to law or annunciations of a so-called unfettered right. It is interesting to note by implication that Margo Kingston would also continue to outlaw incest. On that, she and I are in agreement. The question arises, and I pose it: if there is this inalienable right to privacy, surely incest and drug taking in private ought to be decriminalised as well? There needs to be a consistency in the reasoning. What we need to comprehend is that the law is based on moral codes and principles. Because of that, there are obviously going to be disagreements.

  The question arises: who is best suited to determine the moral code of Tasmanians? Who is best suited to make the decisions as to how Australians or Tasmanians or people in the various states ought to live? Is it the champagne charlies of the United Nations? Is it the unelected people on the human rights commission or ought it be the people of Tasmania? I declare unashamedly my commitment and bias towards democracy as opposed to the thought police of the United Nations.

  The second point of criticism is that poll after poll has shown that the majority of Tasmanians support the repeal of the state's unnatural sex ban. Let us examine Ms Kingston's assertion that poll after poll has shown that the majority of Tasmanians support a change in the law. There are no polls that show such a support for change other than polls commissioned by the Tasmanian Gay and Lesbian Rights Group. Its latest poll has shown a five per cent decrease.


Senator Margetts —How awful!


Senator ABETZ —The Green senator interjects and says, `How awful.' Let us talk about a truly independent and authoritative poll. The ABC and the University of Tasmania commissioned a poll recently. We could hardly call either of those bodies hotbeds of homophobics or states rightists. Those bodies commissioned the poll on a professional basis. It was a very illuminating poll. The questions asked included:

Do you believe the current Tasmanian laws relating to homosexual acts are fair or unfair?

The poll shows that 49.2 per cent believed they were fair, 46.1 per cent argued they were unfair and 4.7 per cent were unable to comment. The next question was:

Do you think these laws should be changed?

The poll shows that 50.7 per cent said no. Those who said that the laws ought to be changed were then asked:

How should they be changed? Toughened or liberalised?

Some of those who sought support for a change to the law were arguing that the laws ought to be toughened up. When that percentage is taken into account, 54 per cent of Tasmanians want the law to remain as it is.

  But the fundamental question, and this is the point that I have been addressing time and time again, was:

Do you believe the Commonwealth government should enforce the UN resolution on gay law reform if the Tasmanian government does not act?

The answer here was overwhelmingly against the federal government becoming involved at a ratio of more than two to one—that is, two-thirds of Tasmanians oppose federal intervention. I have quoted my source. I challenge Ms Kingston to quote her source. She of course conveniently does not do that in her article; she simply makes the bold assertion.

  Ms Kingston then deals with the question of Tasmanian democracy. She says that twice in the 1990s the Tasmanian lower house introduced and passed a repeal law that was then knocked back by the Tasmanian upper house. That is what happens with a bicameral system of parliament: that is the process of democracy. However, she failed to tell her readers that the government that introduced that legislation in Tasmania was swept from office by a landslide victory to the Liberal government which went to the people on a policy of retaining the current law. At the end of the day, that is democracy; is it not?

  I happen to believe that the people of Australia made a huge mistake at the last election by re-electing the Labor government, but I accept that. I did not run off and squeal to some international court saying, `I don't like the democratic process in Australia. I don't happen to agree with the result and I want you to overturn it.' This is a very real threat to our democracy. When the will of the people is overturned by an unelected group not responsible or accountable to the people, it provides fuel to the fire for those radical elements within our community who would like to see the overthrow of democracy, and who can point to issues such as this and say that they voted for a government that supports this type of legislation. Be it right, wrong or indifferent, they have elected this government but the democratic process has been subverted and therefore democracy has been undermined.

  There are some fundamental tenets of democracy. First, when the people make their decision collectively in an election, they are allowed to make the wrong decision. As I pointed out, the people of Australia made the wrong decision by re-electing the Labor government federally but we are stuck with it until the next election. The second fundamental tenet of democracy is that the people can change their parliament, their government. They can elect a new government to change the laws.

  In Tasmania, by February 1996 they will have had the opportunity to elect a new government on a policy of repealing these laws if that is what the people of Tasmania want. The third fundamental point of a democracy is that if a judiciary makes a ruling with which people disagree, then it can be overturned by legislation or referendum; but now, with the United Nations and its rulings, we in Australia can have 1,000 elections, we can have 2,000 referenda, and still not overturn the United Nations decision. According to international lawyers we cannot change the UN ruling and covenant without the consent of the world body. That is why I said it is an affront to an Australian democracy.

  Indeed, let us listen to Gough Whitlam. What did Gough Whitlam say in arguing against appeals to the Privy Council? Gough Whitlam said it was entirely anomalous and archaic for Australian citizens to litigate their differences in another country before judges appointed by the government of that other country. I ask the senators opposite, the Greens, the Democrats and the Labor Party: what is the difference between the United Nations and foreign countries in being unelected and unresponsive to the people of Australia? There is absolutely no difference. We would hardly call Gough Whitlam a homophobe or a states rightist, would we?

  The Labor decision is also representative of the breathtaking arrogance of Labor in its attitude that all wisdom resides in Canberra and in the United Nations committees. I unreservedly say that wisdom lies with the people. At the end of the day I suppose I will be condemned for being an old-fashioned type of guy with an outmoded view because I believe in democracy and its processes.

  The third comment of Ms Kingston was that the proposed law does not override Tasmania's law. I am sure that would come as a shock to the Democrats, the Greens and the Labor Party. Everybody would acknowledge that the law will override Tasmania's law. If it did not, why on earth introduce it? Yet for some reason that completely escapes me, that assertion is made.

  The commentary then deals with the right to privacy. I simply say that an article in the Herald Sun is well worth reading today. In relation to privacy it is simply a question of where we draw the line. There will be argument and debate over that, that is fine. But the question is: who should resolve that conflict and draw the line? I unashamedly say it ought to be the people. In a country that professes multiculturalism and cultural diversity, Tasmanians are not allowed to have laws that meet their needs and requirements.

  Ms Kingston's final paragraph is particularly distasteful. In political debate one always accepts that one will be attacked, vilified and criticised. That is what politics is. But I say to her and to every journalist in this country: leave my family and children out of it. For the record, I say that my children will always have my unconditional love, no matter what; but what my newly born son has got to do with this issue is absolutely beyond me.

  One thing I do hope, Madam Acting Deputy President, is that my children will inherit an Australia where if they want to they can change the democratic laws of their country or their state through its own sovereign and democratic processes, and not be thwarted by the thought police of the United Nations. It is heart-warming to see that there are some serious journalists in this country, including some from the Financial Review, who are capable of long-term vision and who see the full consequences of the proposed laws. (Time expired)