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Tuesday, 5 November 1985
Page: 1572


Senator PUPLICK(9.13) —It was not my intention to participate in the debate this evening but four points were made by Senator Boswell in his contribution to which I wish to reply because they either misstate the facts or they misrepresent the Standing Committee on Constitutional and Legal Affairs. I do not think that his remarks should be allowed to pass without comment. The four points that he made were as follows: First, he said that the proposed Bill of Rights-whatever he means by that-would override State laws. The Committee did not discuss and has not reported upon the Bill which is in the House of Representatives. As a simple matter of fact the Bill which is in the House of Representatives specifically excludes the Bill of Rights having reference to State laws. That is the first misstatement of fact. He misstates the fact as far as the Bill that is in the House of Representatives is concerned and he misrepresents the position of the Committee which did not discuss and does not report upon the Bill which is in the House of Representatives and simply canvasses arguments about the validity of the Bill of Rights which might or might not impinge upon State laws.

Secondly, he asks what is the good of having some adherence to an international covenant when rogues and villains are adherents to the same covenant. The Committee specifically addresses this matter. In paragraph 3.56 we draw attention to the report of the Joint Committee on Foreign Affairs and Defence in 1979 on `Human Rights in the Soviet Union'. This deals specifically with the fact that the Soviet Union being a signatory to some covenant means in itself absolutely nothing about the protection of human rights in that country. Senator Boswell's argument fails to acknowledge the criticism which the Committee itself directs to those people whose adherence to the International Covenant on Civil and Political Rights is purely a token gesture to the international community and is not something meaningful.

The third point that Senator Boswell makes touches upon the opting out provisions. He advises and proclaims that all the States of the Commonwealth should take the opportunity to opt out because not to opt out is to admit to an extension of Federal power which is undesirable in a federation. The provinces of Canada are no less jealous of their status as members of the Canadian Federation and those provinces were provided under the Canadian charter of rights with a means by which they could opt out eventually of the Canadian bill of rights proposals. Only one province in Canada decided to opt out, and that was Quebec. It opted out for reasons which are obvious, which are historical and which do not need elaboration this evening. I note that Senator Bolkus in his remarks referred on three occasions to Queensland as `that country' as distinct from `that State'. Perhaps there is some lesson in that freudian slip on his part, as indeed there may be some lesson in the Canadian situation in which Quebec really feels that it has so little in common with the rest of Canada or so much to fear from the rest of Canada that it must opt out of the system. Nevertheless, let it be said that there are provisions in the Canadian system which prevent Canada from derogating from the electoral rights which are provided or the guarantees on the linguistic integrity of the Canadian federation which need to be borne in mind.

The fourth point Senator Boswell made was in regard to the use of the external affairs power. May I say that the Committee in its report deals at length with heads of power questions. It acknowledges fairly and squarely that the use of the external affairs power is a partisan, political, sensitive issue and it seeks to draw to the attention of the Senate the fact that that is the case and to put squarely to the Senate that to embark upon that road would involve a degree of political animosity within the federation which is undesirable. It is for that reason that the Committee's preferred model is not to use the external affairs powers; rather, to enact some form of domestic legislation and to establish, without going down the whole of the sorry track--


Senator Boswell —How are you going to do that?


Senator PUPLICK —Senator Boswell asks how are we going to do that. May I say with the greatest of respect to Senator Boswell that those of us who have spent several months on this inquiry, who have read the 168 submissions, who have sat for hours, who have listened to witnesses, who have gone through innumerable drafts, are entitled to respond to Senator Boswell by saying: `Senator, read the report'. It is not for me to answer the question tonight when a document which answers the questions has been presented to the Senate. I do not intend to go through the length of that argument when the honourable senator has been presented with the arguments cogently put, I hope, and argued in such a way that those of us-and let me make my own position clear-who do not believe in the use of a Bill of Rights are nevertheless able to come to the Senate with a unanimous report which is an exposure report, bringing the issues before the Senate; attempting to present them, to present the arguments, and to bring about a situation in which the Committee report does not make recommendations on the threshold question of whether we should have a Bill. That is left as an open question because that was not the purpose of the report. The purpose of the report was to answer, for those who are prepared to read it, the questions which Senator Boswell raised in tonight's debate.

I think therefore that one needs to see this report for what it is. It is an attempt to put the issues squarely on the table. It is an attempt to say to honourable senators that this is a most difficult and complex question. The way in which one goes about the fundamental protection of human rights is an open question. My own preference happens to be for specific legislation. I believe there ought to be specific legislation on questions such as the protection of privacy. I happen to believe that as matters are identified as being under threat or under challenge-to find from the courts, for instance, something of which I was not aware until we got into this debate, that there is absolutely no common law protection for the free exercise of religious freedom in Australia-we have to try to expose what the weaknesses of the common law are and at the same time to acknowledge the very real strengths of the common law, which have been built on a tradition dating back beyond Magna Carta. There are the questions of the relationship between parliament and the Crown and parliament and the Executive. There are the questions of whether parliament is properly to be regarded as an absolute sovereign in terms of the definition of rights, the relationship between parliament and the judiciary and between elected and non-elected officials in the protection of human rights. All this exposure report attempts to do is to leave those questions open to the judgment of honourable senators and to people in the wider community who are interested in this debate.

As Senator Cooney said in his remarks, the debate on this matter will be lengthy. I hope it will be a debate which will stretch beyond simply the involvement of honourable senators within this chamber. If, after all, we are talking about the rights of ordinary Australian citizens, they cannot be represented simply by the 168 people who put submissions to us. There will be wider views in the community to be considered when specific legislation comes before us. This report seeks simply to present issues, arguments and, above all, facts. To that extent I believe that the Committee has discharged the responsibilities which the Senate imposed upon it. It has confined itself properly to the terms of reference. It has not strayed beyond those. It has not considered what it was prevented from considering by Senator Durack's amendment-namely, any specific legislative proposals.

I hope, therefore, that when the debate comes on, in whatever fashion and on whatever piece of legislation it comes on, this report will have served a useful purpose in presenting facts and arguments to honourable senators. If honourable senators are going to criticise either the legislation of the Committee report I hope that they will do their colleagues the elementary courtesy of reading it first.

Question resolved in the affirmative.