Title 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
AUSTRALIAN BILL OF RIGHTS BILL 1985
In Committee
Database Senate Hansard
Date 26-11-1986
Source Senate
Parl No. 34
Electorate TAS
Interjector The CHAIRMAN
Senator Durack
The CHAIRMAN
Page 2823
Party IND
Speaker Senator HARRADINE
Context Bill
System Id chamber/hansards/1986-11-26/0124


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 - AUSTRALIAN BILL OF RIGHTS BILL 1985 - In Committee


Senator HARRADINE(9.10) —The reason that this amendment was put forward by Senator Durack was to ensure that any definition or extension of discrimination would come back to this Parliament in the form of substantive legislation. This is a question of great importance for this chamber. Senator Gareth Evans stated that the legislation was drawn in a detailed and qualified way. Those were Senator Evans's words. But when we looked at the legislation we saw that clause 31 (2) enabled the Minister-in conjunction with the definition of discrimination-to extend the definition of discrimination merely by gazetting the extension. That is known as a Henry VIII clause. It is one which is looked at with great disdain by the Standing Committee for the Scrutiny of Bills. Incidentally, it is one that, when it is found, is almost invariably rejected by this Parliament. Is that the detailed and qualified way in which the Minister says that the legislation is drawn? Of course, it is not.

Senator Durack is attempting, by moving to delete clause 31 (2), in conjunction with the other part of his amendment, to ensure that the rights of this Parliament are paramount and that, in regard to matters of importance and of substance, the Government has the responsibility to bring those matters forward by way of substantive legislation. In so doing, the Government would then enable the Parliament to debate such legislation clause by clause. It would enable individual senators and members to put forward amendments to the legislation. It would enable a second reading debate to take place in which the principles to be considered could be addressed. It would enable a substantial Committee stage debate. During that Committee stage it would be open to any senator, not only Opposition senators, but also the Australian Democrats and independent senators-whose numbers seem to be growing at a rather rapid rate; a third one has joined us today-to participate and to move amendments.

That is not the case in regard to the proposition that will soon be put forward by the Democrats. The Democrats are hand in glove with the Government over this issue. They are hand in glove with the Government in relation to this proposition, because they are attempting to deny the Parliament, in a matter of substance, the Parliament's rights and responsibilities. If that is keeping the Government honest, I do not know about it. I am sure that no other senator knows what the definition of honesty is, if that is their definition of honesty. The Senate, being the House of review, has Standing Orders and procedures which would enable the Parliament to keep the Government honest. But this will be denied to the Senate by the proposition which will be put forward by the Democrats.

Their proposition, although it is an advance on what was contained in the Bill-the proposal which was sneaked through the Parliament-enables the Minister to extend the definition of discrimination, not simply by gazetting it, but to extend it by regulation. What right does this Parliament have? It merely has a right of disallowance. There would be no opportunity to make amendments. The Government can put into that regulation an extension to the definition of discrimination, 80 per cent of which I or the Senate would agree with-or 48 per cent of the Senate may agree with it-while we may not agree with the other 20 per cent of it. Many reasons could be put forward by the Government to ensure that that regulation was not disallowed and to ensure that the Government's members were kept in line.


Senator Durack —The Democrats would fall for that, too.


Senator HARRADINE —That is exactly and precisely what happened in regard to the Australian Capital Territory Classification of Publications Ordinance. What should have happened there was that the matter, which was a very substantive matter, should have been brought before the Parliament by way of substantive legislation. A Bill should have been introduced into the Parliament which would have enabled amendments to be moved. How many honourable senators would have approved of such a Bill if, as is the case now, the material that was incorporated into that subordinate legislation-that ordinance-by the Government included material which was dehumanising, degrading and beyond the pale, the possession for distribution and circulation of which was outlawed in, say, a place such as Canada, which is not prudish, by decision of the court in R v. Wagner? The material, which is on the shelves, promotes incest. That is a challenge to this Parliament. That material is there. It was known to be there at the time. Yet when I tried to disallow the Ordinance, what did the Democrats say? I said:

We are talking about objectionable publications that are offensive to a reasonable adult person. That is the definition given in the ordinance. How am I to protect my kids from exposure to that?

Senator Mason said:

A girl in a bikini.

I said:

Senator Mason does not understand. We are talking about objectionable publications as defined, which for the first time he is going to allow to be commercialised in the Australian Capital Territory.

I sincerely acknowledge that Senator Mason did not understand what was in the material. He could not have. He would have an abhorrence of the bulk of that type of material now available. But it is an example of what we have attempted to do. We tried to disallow that regulation. I do not think that the Government even gave its members a conscience vote on that matter; I do not know. Now that the thing has been exposed it is about time that the Government used its own conscience and did something about the material that is there, about which the complaint has been made, about which I have sent a letter to every member of the Parliament. I defy any member of the Parliament to challenge a single word of what I have put in that document.


The CHAIRMAN —Senator Harradine, I have allowed considerable leniency in your explaining of the example of the use of the delegated legislation power but you must not develop this into a debate on the subject of censorship of pornography. You must confine yourself to the question of whether the thing should be done by regulation. The question before the Chair concerns Senator Durack's amendment No. 3, to leave out sub-clause 31 (2).


Senator HARRADINE —That is a typical example. We have gone through the attempt to disallow the regulation. We have attempted to do it through the Senate Standing Committee on Regulations and Ordinances. In that Committee there was a substantial minority which said that we ought to have substantive legislation on the matter. This is all in the report of the Committee. I shall not go into it. Later the Senate Select Committee on Video Material said that there should be a moratorium on the material whilst a joint select committee looked at it. The Government has not accepted the Senate Committee's recommendation on the joint select committee. All I am saying to you, Mr Chairman, and to other honourable senators is that it is most difficult for the Senate to overcome a policy decision of the Government which is incorporated into a regulation as compared with the Senate acting as a House of review when substantive legislation comes before it.