Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Wednesday, 29 September 2010
Page: 291


Senator SIEWERT (4:12 PM) —I present the explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Restoration of Racial Discrimination Act) Bill 2010

The Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Restoration of Racial Discrimination Act) Bill 2010 is designed to ensure the Racial Discrimination Act and relevant Northern Territory anti-discrimination laws apply to the three pieces of legislation that implemented the Northern Territory Intervention -

  • Northern Territory National Emergency Response Act 2007;
  • Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007; and
  • Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007.

The Racial Discrimination Act 1975 is the implementation in Australia of our international obligations recognising the basic human right not to be discriminated against on the basis of race.

In June 2010 the federal parliament passed the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill 2010 which subsequently received Royal Assent. This legislation deletes the provisions in the above-mentioned Acts that suspended the operation of the Racial Discrimination Act and relevant Northern Territory anti-discrimination laws.

However, the Government’s legislation only goes part way to restoring the Racial Discrimination Act 1975 to the Northern Territory Intervention and does not ensure that the Racial Discrimination Act actually applies to the measures and actions undertaken pursuant to the Northern Territory Intervention legislation.

Social Justice Commission Report

In his 2007 Social Justice Report, the Social Justice Commissioner, provided a human rights analysis of the Northern Territory Intervention.

The Report raises significant human rights concerns with the Intervention legislation and proposes a way forward to ensure that the Northern Territory Intervention is consistent with Australia’s human rights obligations as embodied in legislation such as the Racial Discrimination Act 1975.

The Report makes it quite clear that it was entirely unacceptable to remove the protection of the Racial Discrimination Act 1975 for any acts performed for the purposes of the Northern Territory intervention legislation and notes that the exemption from the Racial Discrimination Act 1975 means there can be no challenge to any exercise of discretion by officials purporting to act in accordance with the legislation.

The Report concludes that the provisions exempting the Racial Discrimination Act 1975 should be immediately repealed and be replaced with a new clause requiring all acts authorised under the legislation to be undertaken consistently with the Racial Discrimination Act 1975. This new clause should be unequivocal that the provisions of the Northern Territory Intervention legislation are subject to the provisions of the Racial Discrimination Act 1975.

The need for a ‘notwithstanding’ clause

During the course of the inquiry into the Government’s Welfare Reform and Reinstatement of Racial Discrimination Act Bill 2010 by the Senate Standing Committee on Community Affairs a number of submissions and witnesses (including Australian Human Rights Commission, Law Council of Australia, Law Society of Northern Territory, Northern Territory Legal Aid Commission, Northern Australian Aboriginal Justice Agency, Northern Land Council, Central Land Council, Human Rights Law Resources Centre, and Amnesty International) supported the inclusion of a ‘notwithstanding’ clause to expressly state that, in the event of any uncertainty or contradiction between the Northern Territory Intervention legislation and the Racial Discrimination Act, the provisions of the Racial Discrimination Act should prevail.

The intent of this Bill is to provide for the inclusion of a “notwithstanding clause. Without the inclusion of such a clause the Australian Human Rights Commission argued before the inquiry that “... any provision of the amended emergency response legislation that is inconsistent with the RDA will still override the RDA”. As such, without the inclusion of a ‘notwithstanding clause’ or some functionally equivalent mechanism the Government legislation can only represent a partial reinstatement of the Racial Discrimination Act and does not deliver on the Government’s promise to fully restore the Racial Discrimination Act.

In light of the singular nature of the suspension of the Racial Discrimination Act, and the widespread condemnation of the Parliament for enacting such legislation, it is unfortunate that the Government has chosen to eschew an approach to legislative drafting which would enhance certainty and minimise the potential for dispute.

http://www.aph.gov.au/Senate/committee/clac_ctte/soc_sec_welfare_reform_racial_discrim_09/report/footnotes.htm - d02f21 

“Special measures”

The government cannot and should not rely on the actions undertaken in pursuit of the Northern Territory Intervention being considered to be special measures.

Special measures are a form of positive discrimination whereby a group defined by race receives beneficial treatment. Such beneficial treatment is then not considered discriminatory under the Racial Discrimination Act 1975.

The notion of a “special measure” under the Racial Discrimination Act 1975 comes with a body of law behind it defining what it means.

There are certain criteria that have to be met for a “special measure” including:

  • provides a benefit to some or all members of a group based on race;
  • has the sole purpose of securing advancement of the group so they can enjoy human rights and fundamental freedoms equally with others;
  • is necessary for the group to achieve that purpose; and
  • stops once their purpose has been achieved.

Additionally where a measure negatively impacts on Indigenous people it must be done after consultation with and the consent of the people affected to qualify as a special measures. This was clearly not done in relation to the Northern Territory Intervention. The Social Justice Commissioner Report notes that measures cannot meaningfully be said to be for the advancement of a group of people if they are taken without consultation or consent. 

If a measure does not meet these criteria it is not a “special measure”.

The Australian Greens agree with the conclusion of the Social Justice Report that the Intervention measures are not “special measures” according to the Racial Discrimination Act 1975. The Report recommends that the relevant provisions in the Intervention legislation be amended to:

  • clarify that the measures in the legislation are intended to qualify as special measures; and
  • require that in implementing the provisions of the legislation all actions must be undertaken consistently with the intended beneficial purpose of the legislation.

The Bill enacts the recommendations of the Social Justice Commissioner on how best to reinstate the Racial Discrimination Act 1975 and relevant Northern Territory anti-discrimination laws and comply with our international obligations. The Bill will therefore require that actions taken as part of the Northern Territory intervention need to be to the benefit of Aboriginal people to be compliant with the Racial Discrimination Act 1975.

International Obligations

On his to Australia in 2010, United Nations Special Rapporteur Professor James Anaya found that the Northern Territory Intervention, in its current form and in its delivery, “is incompatible with Australia’s obligations under the Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights. Australia is

a party to both treaties. The intervention is also incompatible with the Declaration on the Rights of Indigenous Peoples, which Australia supports”.

There is no doubt that the Northern Territory Intervention legislation, in suspending the operation of the Racial Discrimination Act 1975, was contrary to Australia’s international obligations and harmed our reputation overseas.

However, without explicitly stating that the Racial Discrimination Act 1975 applies to measures or actions undertaken in accordance with the Northern Territory Intervention legislation, there is the potential for the Intervention legislation to continue to be discriminatory. 

This Bill ensures the Racial Discrimination Act 1975 and the relevant Northern Territory anti-discrimination legislation applies to Aboriginal people in the Northern Territory as it does to all other people in Australia. It will ensure Australia is complying with our obligations under international conventions. And it is the morally and ethically correct response to the continued human rights concerns in the Northern Territory.

I commend the Bill to the Senate.


Building and Construction Industry (Restoring Workplace Rights) Bill 2010

The Building and Construction Industry (Restoring Workplace Rights) Bill 2010 provides for the repeal of the Building and Construction Industry Improvement Act (BCII Act) 2005 and the Building and Construction Industry Improvement (Consequential and Transitional) Act 2005.

These laws are some of the most pernicious ever to have passed through this place. They strip away internationally recognised rights of workers in the building and construction industries.

This bill is intended to ensure such laws no longer exist in Australia.

A consequence of the repeal of the BCII Act is the abolition of the Australian Building and Construction Commissioner (the ABCC). The ABCC has sweeping powers that have no place in the regulation of workplaces.

It is an affront to democracy to have workplace relations laws that take away the right to silence, deny people their choice of lawyer, provide powers to compel evidence with the possibility of gaol for non-compliance, and impose severe restrictions on the rights of workers to organise and bargain collectively.

The ABCC has coercive powers to compel a person to provide information, produce documents, or attend to answer questions at an examination. Persons face fines of up to $20 000 or a gaol term if they do not comply with a request from the ABCC. Lawyers have a limited role and the Commissioner determines his own practices with a high level of secrecy.

Building and construction workers are being denied basic democratic rights to procedural fairness and natural justice that the rest of us take for granted. These workers - who have not been charged with anything and may only be suspected of knowing about an offence committed by someone else - are being treated with fewer rights than someone who has committed a very serious criminal offence.

It is not appropriate to regulate the relationship between employers and employees in a quasi-criminal way. If there is criminality on a building site it should be dealt with by the criminal law.

A consequence of the operations of the ABCC is that building workers may be too intimidated to speak out about health and safety issues for fear of being investigated. In an industry that has such a high rate of workplace injuries and death, any laws or regulations that provide a disincentive to speak out about safety issues are unacceptable.

The bill repeals both Acts in their entirety. There is nothing to be salvaged from these pieces of legislation.

The International Labour Organisation has repeatedly commented that the BCII Act breaches international labour conventions to which Australia is a signatory. The ILO is a tri-partite body and it has found these laws breach the right to organise and collective bargain and the right to freedom of association.

Sometimes it seems almost old-fashioned to talk about the human rights of workers in a time when our public narrative is so focused on economic indicators. But human rights do matter. They matter whether it is refugees being sent to detention centres, whether it is so-called anti-terror laws or whether it is our rights at work.

This is the former Government’s Work Choices agenda at its most extreme and no-one that purports to be bringing fairness back to Australian workplaces could support the BCII Act or the ABCC continuing any longer.

The ABCC should be abolished and the building industry regulated just like any other industry—in a fair and just manner that balances the needs of productivity and the economy with the health and safety and democratic rights of workers.

I commend the bill to the Senate.


Environment Protection and Biodiversity Conservation Amendment (Prohibition of Support for Whaling) Bill 2010

This bill was introduced by the Australian Greens in the 42nd Parliament. The following second reading speech reflects the debate at the time of the bill’s original introduction.

Once again this summer, Australians were outraged by the killing of whales in the Southern Ocean. Many Australians were further appalled when it was revealed that Australian air services were used by a company with connections to the whalers to assist in the slaughter.

The assistance provided to the whalers was to track the main protest vessel of the Sea Shepherd Conservation Society so that a ship from the whaling fleet could hinder the Sea Shepherd’s pursuit of the main fleet. Without the Sea Shepherd on its tail, the main whaling fleet could undertake its mission of killing whales more easily.

In response to the information that the Japanese whaling fleet had hired Australian planes from Hobart and Albany to track the Sea Shepherd ships’ movements, Senator Bob Brown announced that the Greens would introduce a bill banning activities associated with whaling in Australia.

The Environment Protection and Biodiversity Conservation Amendment (Prohibition of Support for Whaling) Bill 2010 (the Bill) fulfills this commitment. The Bill amends the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to create a new offence related to providing assistance for whaling.

Currently the EPBC Act provides for a series of offences related to whaling. Division 3 of Part 13 creates the offences of:

  • killing or injuring a cetacean,
  • intentionally taking, trading, keeping, moving or interfering with a cetacean, and
  • treating or possessing a cetacean that has been killed contrary to the Act or unlawfully imported.

The above offences are punishable by 2 years imprisonment or a maximum fine of $110 000.

However, there is no offence of providing services, support, or resources for the killing of whales. The Bill seeks to rectify this serious omission.

The Bill creates a new offence of providing any service, support or resources to an organisation engaged in whaling. Whaling is subsequently defined broadly to mean any activity undertaken as part of a venture, the intention of which is to kill, injure, take, trade, or treat whales for commercial purposes or other purposes. The definition includes the intention to contravene the offences already in the EPBC Act mentioned above and any activity undertaken by or on board a foreign whaling vessel.

The penalty for the new offence is consistent with the other penalties in the Division, that is, 2 years imprisonment or a maximum fine of $110 000.

The amendments will not make unlawful the provision of assistance to vessels in an emergency. The exemptions contained in section 231 of the EPBC Act relating to when certain actions are not offences will apply to the new offence. Section 231 includes circumstances such as where an action is reasonably necessary to deal with an emergency involving serious threat to human life or property, or an action reasonably necessary to prevent a risk to human health.

The intention behind the new section 229E is to make unlawful the provision of any assistance to a whaling venture, including surveillance information, communication, financial and material support. The provisions are designed to be sufficiently broad to capture the type of situation that prompted that Bill, that is, the hire of air services in Australia by a company which then provided the information gathered to a vessel which was part of the whaling fleet.

There is broad community support for the measures contained in the Bill. An on-line petition on the Australian Greens website received over 3500 signatures supporting the ban on activities associated with whaling. A number of signatories left comments on the website expressing their support. The depth of feeling on this issue is captured by comments such as:

 “I still remember with horror inspecting the whaling station in Albany.  Such slaughter now continuing with impunity in Australian Antarctic waters and in a whale sanctuary, at that, makes a mockery at any pretence that the Government is upholding relevant laws. Please ensure that the proposed law prohibiting support for whaling is passed, implemented and that compliance is monitored and enforced.”

 “It is totally inappropriate and unacceptable for our country to provide any support to those carrying out such barbaric slaughter of whales.”

 “I support the introduction of a bill banning activities associated with whaling in Australia - please ensure whales are protected in Australian waters.”

 “To object to commercial whaling, but to continue to permit support to be provided from Australia for whaling activities would be the height of hypocrisy. I therefore fully support the proposed ban. I also feel that the government could and should be more pro-active in its opposition to whaling world-wide, and should take specific action to prohibit whaling in waters over which it claims jurisdiction.” 

 “Please stop allowing the ongoing slaughter of whales in Australian waters and make it illegal for Australian businesses and organisations to be involved in supporting these activities either logistically or financially.”

 “It should be illegal for any Australian national, either at home or abroad, to assist in the hunting of whales, no matter what the stated purpose of such activity, in any way.  This should also include the leasing or use of assets such as aircraft and ships, or facilities, such as airfields and ports, to another individual or group for the potential use in aiding, either directly or indirectly, the hunting of whales.”

The Australian Government must do all it can to prevent the killing of whales in our territories. The Bill fixes a glaring gap in our current laws and is a necessary measure to ensure that those responsible for the slaughter of whales in our Southern Ocean receive no assistance from Australia.

I commend the Bill to the Senate.


Senator SIEWERT —I seek leave to continue my remarks later.

Leave granted; debate adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.