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- Start of Business
TAXATION LAWS AMENDMENT BILL (No. 2) 1985
INCOME TAX (INDIVIDUALS) BILL 1985
INCOME TAX (COMPANIES, CORPORATE UNIT TRUSTS AND SUPERANNUATION FUNDS) BILL 1985
MEDICARE LEVY BILL 1985]
- TAXATION LAWS AMENDMENT BILL (No. 2) 1985
QUESTIONS WITHOUT NOTICE
FRINGE BENEFITS TAX
(Mr HOWARD, Mr KEATING)
GRUMMAN TRACKER AIRCRAFT
(Mr CHARLES, Mr BEAZLEY)
TAXATION: ENTERTAINMENT EXPENSES
(Mr SINCLAIR, Mr KEATING)
(Mr RONALD EDWARDS, Mr KEATING)
(Mr CARLTON, Mr KEATING)
AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION: DEREGISTRATION
(Mr PUNCH, Mr WILLIS)
(Mr HOWARD, Mr HAWKE)
(Mr GAYLER, Mr KERIN)
- FRINGE BENEFITS TAX
- DISTINGUISHED VISITORS
- PRIME MINISTER
- FILM CENSORSHIP BOARD
- AUSTRALIAN INDUSTRIES ASSISTANCE COMMISSION
- PERSONAL EXPLANATION
- National Flag
- Funding of Children's Services
- Military Aid to the Philippines
- International Year for Repairing the Earth
- International Year for Repairing the Earth
- Changes to Veterans' Entitlements
- Sugar Industry
- Funding for State Arts Councils
- Taxation: Private Health Insurance
- Australian Capital Territory Classification of Publications Ordinance
- Fuel Prices
- Pensions: Assets Test
- Discrimination against Women
- Identity Cards
- Compulsory Unionism
- Enterprise Migrant Hostel
- Nuclear Free Zones
- Plant Variety Rights
- National Flag
- TAFE Participation and Equity Program
- Proposed Airport at Badgery's Creek
- Compulsory Unionism
- Pensions: Assets Test
- National Flag
- Nursing Home Patients
- Procedural Text
- INTEREST RATES
- NATIONAL CRIME AUTHORITY (MISCELLANEOUS AMENDMENTS) BILL 1985
- STUDENT ASSISTANCE (LOANS GUARANTEE AND SUBSIDY) REPEAL BILL 1985
- STUDENT ASSISTANCE AMENDMENT BILL 1985
- AUSTRALIAN BILL OF RIGHTS BILL 1985
- HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION BILL 1985
- HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AMENDMENT BILL 1985
- HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 1985
- TRADE PRACTICES AMENDMENT BILL 1985
- HOME AND COMMUNITY CARE BILL 1985
- HOME AND COMMUNITY CARE (MISCELLANEOUS AMENDMENTS) BILL 1985
- SOCIAL SECURITY AND REPATRIATION (BUDGET MEASURES) AMENDMENT BILL 1985
- BROADCASTING AND TELEVISION LEGISLATION AMENDMENT BILL (No. 2) 1985
- STATE HEAD OFFICE BUILDING FOR TELECOM AUSTRALIA, SYDNEY
- FITOUT OF OFFICE SPACE AT CANBERRA NATIONAL CONVENTION CENTRE, CANBERRA CITY
- TELECOM AUSTRALIA-RESOURCES MANAGEMENT CENTRE, CLAYTON, VICTORIA
- STANDING COMMITTEE ON EXPENDITURE: INTERIM AND FINAL REPORTS ON THE INQUIRY INTO THE ABORIGINAL DEVELOPMENT COMMISSION
Wednesday, 9 October 1985
Mr LIONEL BOWEN (Attorney-General)(4.28) —I move:
That the Bill be now read a second time.
It is with great pleasure that I move the introduction of the Australian Bill of Rights Bill. This Bill will provide real and significant protection for rights and freedoms essential to real democracy and to the respect for human dignity in Australia. The rights and freedoms established by the Australian Bill of Rights are those rights and freedoms internationally recognised as the minimum standards to which governments should conform in dealing with individuals within their jurisdictions. I stress that a Bill of Rights only provides minimum rights which are fundamental. Other legislation in different areas can, of course, build upon these rights.
The centrepiece of the Bill is the self- contained Bill of Rights in clause 8, which further implements the International Covenant on Civil and Political Rights 1966. Before turning to the details of the Bill and of the Bill of Rights, I think it is vital to recall the genesis of the Bill and the history of Australia's approach to human rights issues.
Background to the Bill of Rights
The starting point is the establishment of the United Nations under its charter in 1945 and the United Nations Universal Declaration of Human Rights of 1948. The Universal Declaration is widely known and quoted. It sets out, in simple and inspirational terms, fundamental human, civil, political, social and economic rights. In the aftermath of the Second World War, it marked a new stage in the development of international law, dealing with the rights of individuals themselves and not just nation States. It was agreed by all who signed the Declaration that human rights could no longer be treated as merely internal matters but were now matters of concern to all humanity. However, the Universal Declaration was not a legally binding treaty. Accordingly, using it as a starting point, work began under the auspices of the United Nations to develop more detailed and legally binding treaty obligations by which States agreed to guarantee more rights and freedoms to individuals within their borders.
On the initiative of the Menzies Government, Australia was elected a member of the relevant UN agency, the Commission on Human Rights, in the 1950s and as such participated in the work of developing and negotiating what became the International Covenant on Civil and Political Rights. The text of the International Covenant was unanimously concluded by Australia and 105 other countries on 16 December 1966. Honourable members will note therefore that both the Holt and Menzies governments participated in the development of the Covenant. Australia signed the Covenant on 18 December 1972 and began work on the steps leading to ratification. This was a matter on which there was bipartisan policy. The Fraser Government announced early its intention to ratify the Covenant and eventually, after several postponements, it ratified the Covenant in 1980.
As part of the process preparatory to ratification of the Covenant and with the intention of bringing Australian law into conformity with its standards, Attorney-General Murphy introduced an Australian Human Rights Bill in 1973 designed to implement the Covenant. This Bill lay on the table but did not formally progress. Nevertheless, it marked the commencement of the debate about the feasibility and form of a Bill of Rights for Australia. The first Attorney-General of the Fraser Government, Mr Ellicott, introduced a Human Rights Commission Bill in 1977 as an alternate means of attempting to fulfil the obligations of the Covenant. The planned Human Rights Commission was to be part of the establishment of `systematic and comprehensive' procedures to protect the rights and freedoms of Australians. As such, the first Fraser model for the Human Rights Commission was to have wide powers to administratively encourage observance by both the Commonwealth and States of the standards established by the International Covenant. The 1977 Human Rights Commission Bill did not progress either. Extensive consultations with the States were entered into. Although several States, under both Labor and conservative Governments, enacted their own equal opportunity legislation, the then Commonwealth Government was not able to secure agreement and did not take legislative action until 1981 when the Human Rights Commission Act was passed, establishing the present Human Rights Commission. Even then, in our view, the Commission, which was restricted to the Commonwealth sphere, did not have adequate powers or terms of reference to properly allow it to guard and promote human rights. Nevertheless, the achievements of the previous Liberal-National Party Government, in creating the Human Rights Commission and appointing its members, must be acknowledged. Accompanying this Bill is a Bill to reform and improve the Human Rights Commission, which will be renamed and reconstituted as the Human Rights and Equal Opportunity Commission.
Finally, it is important to recognise developments at State government level. Since 1977, the majority of States have become significantly involved with questions of basic rights in the areas of equal opportunity, sex discrimination and race discrimination. Now most States have their own legislation aimed at preventing specific forms of discrimination. Each of those jurisdictions has its own complaint investigation and dispute resolution machinery. Recognising the value and importance of these State laws and procedures, this Government has developed new relations with the States on human rights questions. Co-operative mechanisms to streamline the processing of complaints and inquiries under State and Commonwealth laws by the Human Rights Commission and like State bodies have been introduced. Agreements were signed with Victoria in 1983. New South Wales in 1984, and South Australia and Western Australia earlier this year. In passing, I note that the Commonwealth Government is willing to sign such an agreement with Queensland, the Northern Territory and Tasmania as soon as those jurisdictions enact their own human rights and equal opportunity legislation. Existing State co-operative arrangements will continue under the new Commission.
I have traced these developments because there needs to be an understanding of the significance which successive governments from both sides of politics have placed on human rights at both the international and domestic level generally, and of the importance of the International Covenant and the aspirations and obligations it embodies in particular. Liberal-National Party governments, both recently and earlier, have espoused similar principles concerning human rights as have the Australian Labor Party governments. However, this Government came to office pledged to more fully implement the terms of the International Covenant and my immediate predecessor set to work to prepare a draft Bill of Rights for this purpose. I welcome most gratefully the great assistance this has provided for this Bill.
The Need for a Bill of Rights
The assumption of international obligations under treaty is a solemn and significant act. In becoming a party to the International Covenant, Australia bound itself by Article 2 of the Covenant to respect and to ensure to all individuals in Australia the rights in the Covenant. Unlike the previous Government, this Government has never been satisfied that administrative mechanisms, particularly of the limited kind which eventually emerged under the 1981 Act, were the only means by which Australia could or should carry out such a clear undertaking. What is equally significant so far as the introduction of this Bill is concerned, is that the Covenant itself specifically commits Australia to adopt legislative measures to give effect to the rights it contains-Article 2:2. A strategy of compliance with international human rights standards which does not involve legislative definitions of rights must be half-hearted and hollow, if not suspect. Those who argue that our existing legal and social institutions make a Bill of Rights unnecessary, overlook that the common law does not offer clear or wide-ranging statements of an individual's freedoms and liberties; at best, the common law offers remedies in a haphazard and incidental way often only after satisfying complex procedural requirements; the power of the Parliament to confine or withdraw totally common law `rights'-this may occur unintentionally and even unnoticed by the public at large; the fragility of community attitudes and pressures on which so many of what are popularly regarded as individual freedoms rely. In the light of this, the Government does not believe that it is sufficient or appropriate to rely on administrative measures alone and those aspects of our common law or general culture which recognise rights here and there.
Furthermore, the enactment of a Bill of Rights has a vital educative function. It has the capacity to inspire respect for fundamental freedoms and libterties by setting out rights in positive, declaratory form. It is a broadly based declaration drafted in Australia for Australians, in conformity with international standards. Alternatives whether reliance on the common law, particular legislation or administrative mechanisms and programs without more do not spell out and proclaim key rights and concepts in the same way as does the Bill of Rights. This approach was recognised in the Parliament in 1977 when former Attorney-General Ellicott spoke of the importance of such a charter. He said, as set out in House of Representatives Hansard, volume 107, at page 2511:
I think there is one aspect at which we should be looking, and that is whether there could be evolved a declaration of human rights that could be adopted by this Parliament and also by every other parliament in the country. Honourable members will know that in Canada there is a declaration of human rights. It is, in effect, part of Canada's constitutional documents. It would be a good thing in this country if we were able to use the covenant on civil and political rights to formulate legislation which formed the basis of a declaration of human rights in this country. It could then act as a guide to legislation in this Parliament and in every other parliament in the country. It could, in effect, be a broadly based, broadly stated document. It could, in effect, be almost a constitutional document . . . it would be a step a very significant step towards getting a broadly based system in this country.
Legislative protection of human rights is of fundamental importance in assuring full democratic processes in Australia. It is vital to realise that the common law provides no guarantees of important rights such as freedom of expression, movement or peaceful assembly or the right to a speedy trial, legal aid or many other rights in the administration of criminal justice. Cases continually demonstrate the weakness of the common law in defining and protecting rights. For example, it has been held that the common law has never contained a fundamental guarantee of the right of religious freedom and expression. Such a right is included in the Australian Bill of Rights. Even where common law or statutory remedies exist, these can, in the absence of a Bill of Rights, be set aside by Parliament or by subordinate legislation. A Bill of Rights acts as a check upon possible excess by the government of the day. It provides a positive means of guiding the actions of legislators, administrators and public officials. It applies also as a guide to the courts in determining the common law from time to time. In summary therefore, the Australian Bill of Rights Bill provides legislative recognition and protection and judicial enforcement of human rights. It also provides administrative measures for investigation and conciliation by the proposed Human Rights and Equal Opportunity Commission.
Scope of the Bill of Rights
In turning to the Bill in detail, it is important to emphasise the different levels of operation of the Bill of Rights and the functions which the Parliament, the Human Rights and Equal Opportunity Commission and the courts are to have in relation to the rights and freedoms set out in the Bill of Rights. The Parliament in passing this Bill will spell out the legal meaning for Australian citizens and residents of the obligations assumed by the nation as a party to the International Covenant. The Parliament is the forum to which the Commission will report; the Parliament will also have the role of acting on reports of the Commission which identify areas of law or governmental practice which breach the Bill of Rights, by framing specific laws as necessary to ensure compliance with our obligations. In legal proceedings concerning Commonwealth and Territory laws the courts will be able to protect individuals whose rights or freedoms have been trammelled, by referring to the Bill of Rights.
The Commission and its delegates in the States will have the role of investigating and conciliating at the administrative level complaints by individuals against governments. The Commission will also have a central role to play in changing those attitudes that result in the denial of rights. By the development of programs of education and research, the Commission should make the public more aware of the need to respect human rights.
The operation of the Bill with respect to governmental practices and legislation is structured in the following way:
As to Commonwealth laws generally (earlier and later than the Bill of Rights), the Bill of Rights will act as a guide to construction and interpretation;
as to later Commonwealth laws, the Bill of Rights will as far as possible (subject only to an explicit intention to the contrary) render inconsistent laws inoperative;
as to earlier Commonwealth laws, after five years from commencement it will be able to be called upon to override inconsistent laws;
as to Commonwealth and State laws and practices these may be referred to the Commission for inquiry, and conciliation where appropriate, and for study and report to Parliament.
The Australian Bill of Rights consists of 32 articles, contained in clause 8 of the proposed legislation. It attempts to avoid the sometimes difficult language of ordinary Acts. It has been drafted in succinct and understandable terms with the objective of providing an inspirational and educative charter that can be used separately from the Act. The embodiment of rights in such a Bill will make people more aware of their rights and make infringements more obvious and conspicuous. The scope of the Australian Bill of Rights is designed to protect individuals against violations of their rights by the impact of laws or by the actions of governmental institutions. It does not affect the rights of individuals in relation to each other.
While not able to guarantee human rights, the common law has designed mechanisms to provide some limited protection or recognition of rights. Article 2 of the Bill of Rights provides that existing rights and freedoms will not be diminished or denied on the basis that they are not included in the Bill of Rights. Thus the Bill of Rights operates in addition to, and not in substitution for, any protection provided by or under any other law, which includes the common law.
The six Divisions of the Australian Bill of Rights protect a wide range of fundamental and political rights. Article 1 guarantees the rights of equality before the law and to equal protection of the law without distinctions. The right to privacy, the right to marry and found a family and the rights of the child are protected under the Bill-Division 4. Freedom of movement and choice of residence are guaranteed to every person lawfully in Australia-Division 5.
The Bill sets out the political rights and freedoms fundamental to a free, democratic society in Division 3. They include the right of every Australian citizen to participate in public life, to vote and to be elected at genuine periodic elections and to have access on general terms of equality to public employment. Freedom of expression, including freedom of the Press, is guaranteed under the Australian Bill of Rights as are the rights of peaceful assembly, freedom of association, freedom of thought and conscience and freedom to adopt a religion or belief.
The pluralist and multicultural nature of Australian society is also recognised in Division 3 of the Bill of Rights. That Division includes the rights of persons belonging to ethnic, religious or linguistic minorities, in community with other members of their own group, to enjoy their own culture, to profess and practise their own religion, and to use their own language.
The rights affecting the administration of criminal justice, often called the `due process rights', are set out in Division 6 which deals with life, liberty and criminal processes. They include the right to be informed of reasons for arrest and of charges, the right to consult with a lawyer and to remain silent, the presumption of innocence and the right to be tried within a reasonable time.
In criminal proceedings in the exercise of federal jurisdiction and in Territory courts, the courts will be required to exclude evidence obtained in contravention of the Bill of Rights unless it is demonstrated that the admission of the evidence would substantially benefit the public interest in the administration of criminal justice, and that that benefit would outweigh the infringement of rights involved.
The Government takes the view that such an approach is preferable to the United States position where there is a blanket exclusion of evidence obtained in contravention of the Bill of Rights. The test for the admission of evidence obtained in contravention of the Bill of Rights will be clearer and wider than that developed in the High Court in Bunning v. Cross.
Limitation of Rights
The Bill recognises that rights cannot be absolute. They must be balanced against other rights and the general welfare of the community. The Covenant itself qualifies many of the individual rights with elaborate limitation provisions. These provisions permit a wide range of exceptions and restrictions on such grounds as the necessity to protect national security, public order, public health or the rights and freedoms of others. Many such limitations are obviously necessary in terms of practical realities. Some may also have been necessary to achieve the wide range of international support from countries with differing political and legal systems and social values.
The desire to have in Australia a broadly worded inspirational charter led to the inclusion in this Bill of a general test of permissible limitations on rights. By Article 3 the rights and freedoms in the Bill of Rights are `subject only to such reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society'. In addition, they shall not be limited to an extent greater than that permitted by the relevant Covenant provisions. This approach, which is similar to the one adopted in the 1982 Canadian Charter of Rights and Freedoms will allow all reasonable limits necessary in the interests of the community generally and of other individuals. The approach also allows some flexibility and adjustment to current community standards in the limitations which should be permitted in relation to any particular rights.
The Bill of Rights will, of course, operate only as ordinary Commonwealth legislation. It will be able to be overridden by future Commonwealth legislation. We have endeavoured, in clause 12 of the Bill, to provide a mechanism so that any such overriding of the Bill of Rights in future will not happen by accident. Rather, it will only happen when the Parliament has clearly adverted to the possibility of conflict and, by clear words in the relevant new legislation, has indicated its intention that the provisions of the legislation, to the extent that they are in conflict with the Bill of Rights, are to prevail over the Bill of Rights.
The Government is committed both internationally and nationally to promoting the fundamental civil and political rights detailed in the Covenant and implementing those standards in Australia. Naturally, it is our intention to hold those standards high and we would not lightly wish to diminish or override them in the future, or to see future governments do so.
The Bill of Rights Bill will not be able to override existing Commonwealth or Territory legislation until five years after the commencement of the Bill. This period will permit an orderly examination of Commonwealth and Territory legislation to see if it might be in breach of the Bill of Rights. In that period we might expect some amendments to legislation which will utilise clause 12 and make certain provisions apply notwithstanding the Bill of Rights.
We do not anticipate that much Commonwealth legislation will be found to be in breach of the Bill of Rights. However, the results which might flow from the invalidation of some aspects of Commonwealth legislation, particularly that with appropriation implications, may lead the Government to spell out, if only from an abundance of caution, that a small range of legislation may need to operate notwithstanding the Bill of Rights. A situation where this might occur might be the maintenance of military discipline and certain essential elements of government immigration policy. All such areas would no doubt be areas where the Government was itself of the view that the restrictions it wished to impose were `demonstrably justified in a free and democratic society' within the terms of Article 3, but because of the nature of the legislation, wished to put the matters beyond doubt.
The advantage of the approach taken in Article 3 is that there is a reverse onus on those who would limit the basic rights in the Bill of Rights. Similarly with clause 12, a government would need to justify to the Parliament the need to override the Bill of Rights.
Judicial and Administrative Enforcement of Bill of Rights
Under Parts III and IV of the Australian Bill of Rights Bill, the Bill of Rights will operate as a rule of construction in relation to Commonwealth and Territory legislation. It will have statutory force in that it will, five years after its commencement, deem any existing inconsistent Commonwealth enactment to be repealed. As discussed above, it will render inoperative any future inconsistent Commonwealth legislation which is not expressed to operate notwithstanding the Australian Bill of Rights. However, it will not operate to override any State law or Northern Territory law. The Bill of Rights is to be a shield and not a sword. It may be called in aid in any federal or Territory proceedings whether criminal or civil; however it cannot of itself be used to found proceedings.
Under Part V the Australian Bill of Rights Bill, the Human Rights and Equal Opportunity Commission will have the function of examining and reporting on both Commonwealth and State legislation which conflicts with the Australian Bill of Rights. It will recommend to Parliament legislation needed to prevent any such conflict.
The Commission will be empowered to inquire into the acts and practices of Commonwealth and State departments and statutory authorities, and local government councils, for possible infringements of human rights. It is to inform the responsible State or Commonwealth Minister when it decides to proceed with an investigation. It will conduct inquiries when requested to do so by the Minister, when a complaint is received, or when it appears to the Commission to be desirable to do so. However, it will not be able to commence an inquiry into State matters without receiving the consent of the Commonwealth Attorney-General.
The Commission's role when a complaint is first received is to attempt to conciliate the matter between the parties concerned. The Commission will be able to require witnesses to give evidence and documents to be produced. The Commission may include in a report to the Minister, a recommendation that compensation be paid, or that remedial action be undertaken, when loss or damage has been suffered as a result of an infringement of a human right.
Where possible, the Government will develop co-operative arrangements with relevant agencies of the States and the Northern Territory concerning the investigation of complaints under the Australian Bill of Rights Bill on behalf of the Human Rights and Equal Opportunity Commission. This will facilitate the continued development of `one-step shopping' by which persons concerned about breaches of human rights need only have their complaint dealt with by one agency.
The Government has chosen to limit the extent of application of the Bill of Rights to the States, not because of any doubts concerning constitutional power, but in order to achieve if possible a co-operative approach to human rights protection.
However, the Commonwealth expects the States and the Northern Territory to take action to amend or repeal legislation which offends human rights and also it is hoped that at least some States will enact their own Bill of Rights. The Government wishes to make it clear that if such action on the part of the States is not forthcoming, the Commonwealth reserves the right to enact specific overriding Commonwealth legislation and to extend the operation of the Bill of Rights to the States.
The cost of implementation of the Bill is expected to be $0.35m this fiscal year and $1.4m for the next two years. The cost of administrative enforcement will be included in appropriations for the Human Rights and Equal Opportunity Commission. There will be additional costs associated with the appointment of full time commissioners to the new Commission. I deal with those costs in my second reading speech on the Human Rights and Equal Opportunity Commission Bill. There will be some costs of judicial enforcement, including legal aid, which are difficult to estimate at this stage.
The Australian Bill of Rights represents a very significant step forward in the protection and promotion of respect for human rights in Australia. It will act as a yardstick against which legislative and administrative intrusions on basic rights can be measured. It will provide a source of education and inspiration about the importance of fundamental rights and freedoms in a democratic society and it will enhance Australia's international reputation in the field of human rights. I believe it is a Bill of historic importance to Australia. I commend the Bill to the House.
Debate (on motion by Mr Spender) adjourned.