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Tuesday, 28 September 1993
Page: 1288


Senator SPINDLER (4.58 p.m.) —The Senate is debating Senator Vanstone's disallowance motion relating to the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief proclaimed by the General Assembly of the United Nations. On this issue it is important to make an assessment on what the law is, not on what one fears the law might be or might become in the future.

  In response to literally hundreds of letters from people which testify to the level of misunderstanding of this issue that is prevalent in the community, I have made quite extensive attempts to research, to consult, and to seek advice on this issue. I have reached the conclusion that it would be wrong to support this disallowance motion. I find it a little difficult to understand—in fact, almost irresponsible—why this issue has been brought into the public arena by way of a disallowance motion. Clearly, this has unsettled literally hundreds, even thousands, of people who do not have access to the legal advice that all of us in this chamber have.

  It is unfortunate, therefore, that we do not take steps as individual members—and leave it to the government—to deal with the this issue. We all have a responsibility in this area to attempt to clear up some of the misunderstanding which is in the community, rather than foster it in this particular way.

  I turn to the substance of the issue. The former Attorney-General, Mr Duffy, signed the declaration under section 47 of the HREOC act on 8 February 1993, the day on which parliament was dissolved. As a result, this declaration has become part of the definition of `human rights' for the purposes of the Australian Human Rights and Equal Opportunity Commission Act 1986. In signing the declaration on that day, the former Attorney-General has ensured that, technically at least, his action did not fall within the previous government's caretaker period. However, I consider the timing was unfortunate in that it has prevented detailed parliamentary examination before today of this move and has given rise to concerns such as those I have adverted to before.

  The following points need to be made: the declaration is not legislation in itself but rather a more detailed definition of the matters already covered by the Human Rights and Equal Opportunity Commission Act. That definition already includes the International Covenant on Civil and Political Rights—as has been stated before—which gives the commission responsibilities through articles 2, 18, 26 and 27 of that convention to protect the freedom of religion. Article 18 includes the freedom `to manifest his religion or belief in worship, observance, practice and teaching'.

  The convention recognises also that parents have the right to have their children taught within the framework of their religion and to organise the lives of their families accordingly. This is strongly supported by the Australian Democrats, subject only to any laws which are necessary to protect public safety, order, health, morals or the fundamental rights and freedoms of others. That answers the point that Senator Vanstone made when she warned that the religious practices of some religions in Australia would not accord with community standards or would even be contrary to our laws. Quite clearly, such practices would fall foul of our legal system and, I think, would be condemned by all members of the community. However, I repeat that the Australian Democrats believe strongly that parents have the right to have their children taught within the framework of their religion and to organise the lives of their families accordingly.

  If we were not able to reach the conclusion that the declaration signed by the former Attorney-General did not support this or in any way damaged it or endangered it, we would today vote for the disallowance of this declaration. However, as I have said, we have reached the conclusion quite strongly that it does not.

  The declaration applies to the existing powers of the commission in relation to the acts, practices and legislation of the Commonwealth. As well, the commission is already empowered to inquire into `any act or practice that may be inconsistent with or contrary to any human right' and either to settle it by conciliation or `to report to the minister in relation to the inquiry'. That right already exists. It is not brought into existence by this declaration. It is noteworthy that the commission may not intervene in any other way, except to inquire and to report. In addition, the commission is to `promote an understanding and acceptance and the public discussion of human rights in Australia' and `to undertake relevant research and educational programs'. This is the addition, and the only addition, to the law as it stands by the incorporation of this declaration. This is an objective that hardly anybody could object to.

  The declaration does not confer any new powers on the commission but will make it possible for the commission to address freedom of religion in all its aspects and implications under its existing powers as set out in the declaration. It should perhaps also be noted that the declaration arose from the suggestion in 1991 by Sir Ronald Wilson, President of the Human Rights Commission, that the government should reassure Australians who profess the Islamic faith that harassment will not be tolerated. The action taken in no way limits similar protection afforded to people who practice the Christian or any other religion. This again is one of the fears in the community that has been fomented by this—I say advisedly—irresponsible action by the Liberal Party. In particular, it needs to be confirmed that Australia's international obligations cannot be used to limit the right of religious or charitable institutions to employ staff, including teachers, of their faith and to reject applicants who are not of their faith.

  In this area, the United Nations Human Rights Committee has adopted the view that the enjoyment of rights and freedoms on an equal footing does not necessarily mean identical treatment. This was confirmed in the case of Broeks v. Netherlands which established that differentiation based on reasonable and objective criteria will not amount to prohibited discrimination where the purpose is legitimate under the convention. Clearly, freedom of religion is one of the purposes which is legitimate under the convention. The declaration itself states in article 6 that the `freedom of thought, conscience, religion or belief includes the freedom to teach a religion or belief in places suitable for these purposes and to train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief'.

  Further, it should be noted that complaints under the general human rights provisions of division 3, part II are limited to Commonwealth employment acts and practices and do not apply to those of religious organisations. Where employment acts and practices are not so limited—and I refer to the equal opportunity and employment provisions of division 4, part II—the definition of discrimination specifically excludes cases where `a distinction, exclusion or preference is made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed'.

  The position could not be clearer. I really wonder at the motives of people who have access to this law, who have access to this advice and who have access to these provisions but who choose to ignore them and, for their own political purpose, unsettle people in the community and engender fear and misunderstanding. It is a reprehensible misuse of the political system. It need hardly be said that, on the basis of what I have said, the Australian Democrats cannot possibly support the motion for disallowance of the declaration.