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Tuesday, 28 September 1993
Page: 1290


Senator KEMP (5.10 p.m.) —I rise to support Senator Vanstone's motion to disallow the incorporation of the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief into the Human Rights and Equal Opportunity Act by the Attorney-General. My colleague Senator Vanstone has made it clear that the coalition thoroughly endorses the principle that everyone should have the right to freedom of thought, conscience and religion. Our fear is that the declaration which the Attorney-General seeks to incorporate in the HREOC act may well serve to restrict, not enhance, freedoms that we now enjoy and may even lead to new forms of discrimination.

  In view of the comments made by Senator Spindler and, I think, Senator Chris Evans, the point has to be made that the incorporation of the declaration in the HREOC act makes this legislation. I have actually sought advice on this, in view of Senator Spindler's comment. It is part of the legislative framework which guides the work of the Human Rights Commission. Why would Senator Spindler stand up in this parliament and say something which he was poorly advised on? This will now become part of the legislation which governs the activity of the Human Rights Commission.

  As Senator Chris Evans said, to a certain extent it will expand the powers of that commission. Why should we get bogged down with pretending, as Senator Evans did, that it was practically of no consequence whatsoever so why would one bother to oppose it, and with Senator Spindler pretending that this did not have any legislative effect at all? It is legislation that expands the power of the Human Rights Commission and allows people who have complaints based on the various articles of the declaration to bring actions against the Commonwealth or its agencies. To that extent, it is a significant act and an important one. In debating this issue, we should not stand up and try to demean it in that context.

  In his remarks, Senator Chris Evans referred to some earlier material that I have put out on the whole issue of international law. I know that Senator Chris Evans probably did not mean this, but to the extent that he tried to associate any views I have with support for the League of Rights, I find that absolutely appalling. I have nothing but contempt for the work of the League of Rights and I hope that Senator Evans was not attempting to slur my own character and my views.

  However, Senator Chris Evans raised an interesting issue about the whole nature of international law and the role that various UN conventions play in that area. It is true that over a very long period the Labor government has shown great enthusiasm for, and attraction to, ratifying and effectively incorporating in Australian law a whole range of UN conventions. We only have to look at the law relating to the environment, industrial relations and human rights to see that this has been a deliberate intention by the Labor government. I do not think Senator Chris Evans would deny that.

  My own party has been cautious when we have moved in this direction, wanting to make sure that before we ratified particular acts, conventions or declarations we had the support of the whole Australian community, particularly as expressed by state governments. Further, we have made it very clear that in the use of UN conventions we would not be prepared to use the external affairs power to upset the balance of the constitution. That is a very real issue which we should not skate over.

  There is a degree of irony here. Senator Chris Evans lauded the importance of international law and, of course, it does have importance, but in relation to Australian domestic activities, he highlighted one of the real dilemmas that the Labor approach has headed Australia towards. We are being told that the republican push is important because we need to assert our sovereignty and independence. Senator Evans is smiling at that because he understands the dilemma of the argument that I will be making to him. The problem with what the Minister for Foreign Affairs, Senator Gareth Evans, has described in his penultimate book on foreign policy in Australia as the `new internationalist agenda' is that it seeks to involve Australian law in the whole web of international UN agreements. Senator Gareth Evans is quite explicit on that and he does not resile from it.

  The Minister for Foreign Affairs made a very dramatic statement, and the Labor government did when, in 1991, it ratified the optional protocol and allowed Australian disputes to be taken offshore to be appealed to the UN human rights committee after they have satisfied all forms of appeal in Australia. Senator Chris Evans would know that this is a very important step by his government. It means that for the first time since the Australia Act 1986, Australian disputes can go offshore. I do not wish to explore this at any great length today but I point out to Senator Chris Evans that the nationalism with which he tries to promote the republican debate rings somewhat hollow when at the same time his own government is pursuing with great vigour and belief the need to involve international human rights committees, quasi courts and judges in Australian domestic affairs, which was quite contrary to the view that his party asserted as recently as 1986 in the Australia Act.

  Senator Chris Evans has to recognise the contradiction with which his leaders are taking his own party. That is why I say to Senator Evans that when he extends the arguments that he is running for the republican debate to the new internationalist agenda, as defined by him in his book, there is a major contradiction.


Senator Chris Evans —The converse is true of your sovereignty argument.


Senator KEMP —On the contrary, because under the constitutional monarchy, the constitutional monarch and her appointee must act on the advice of Australians, whereas judges and members of the UN human rights committee do not. There is a fundamental difference. Senator Chris Evans would do well to read more of my articles on this particular issue so that he does not fall into such obvious traps.

  If we were going along what I would describe as a more preferable route, as an Australian nationalist and someone who is proud of my country and my parliament, when we wish to change the law of this country it is far preferable that we change it through the traditional democratic ways through the parliamentary processes. As I said to Senator Spindler and Senator Chris Evans—Senator Evans will respond, as we are debating this act in the parliament, but I put it to him—had this been drafted as separate legislation, no minister would have been prepared to put his name to it and no parliamentary draftsman would have been prepared to serve up a draft which has so many problems. Senator Vanstone referred to that in her speech.

  Let me illustrate some of those problems. Senator Bolkus will stand up and tell us how important this particular item is and how it should be incorporated in the HREOC act. Can Senator Bolkus tell us what the act means by the two fundamental words `religion' and `belief'? I do not think Senator Bolkus can, because the guiding statement in the declaration does not define what these two significant words in its title actually mean. I think that underlines the continuing weakness in the act.

  Senator Chris Evans tended to sneer at mention of ambiguities in the act but they are very real and very important. Senator Vanstone provided us with an example of the problems with this act and the rights of the child. As Senator Vanstone indicated, this provision gives parents the right to bring up their children according to their own beliefs, and I strongly support that view. But nowhere does the act mention the right of the child to his or her own beliefs. In other words, what is the critical age?

  If Senator Chris Evans wishes to read more on these dilemmas, I draw his attention to an article written by Donna Sullivan and published in the American Journal of International Law. Over many pages she outlines that the declaration is vague and that it is unclear what particular articles may mean. When we are making law in this country, when that law has to be interpreted and when people want to make appeals in relation to that law, they are entitled to know what those laws mean. Senator Chris Evans should not dismiss that sort of criticism as trivial.

  Interestingly, the article also outlines the conflicts that the declaration which we are debating in this parliament today has with other UN conventions. I am mindful of the fact that yesterday Senator Reid launched a book entitled Trust the Women. It was interesting to read in Donna Sullivan's article that the declaration to end discrimination against women does conflict in some areas with the declaration that the government is asking us to incorporate into law today. That is why I say that, if this provision was independently drafted and brought to this chamber by Senator Bolkus, there would have been a very real attempt to sort out these very serious dilemmas.

  The declaration is ambiguous in many areas; it is vague in many areas; and it conflicts in a number of areas with other UN conventions which this government and other governments have ratified. When that occurs, it may take decades for this to start to wash through the system. But we are incorporating into the law of the land legislation which I believe we do not fully know the meaning of. If Senator Chris Evans had read this article, he would have understood that the case law, particularly in relation to a number of these UN conventions, is very new. The various UN human rights committees are now starting to build up case law as to what clauses mean and how they will be interpreted. Because of the vagueness of quite a number of these articles, we will not see for quite a long period how the international community interprets the meaning of these clauses.


Senator Boswell —We are in the hands of the unknown.


Senator KEMP —We are in the hands of the unknown, and my colleague makes an important point. I suspect that Senator Chris Evans, as a nationalist, would be very cautious about putting the interpretation of law—law that will purely affect domestic disputes in this country—into the hands of UN committees, of which at best we may appoint one member. In relation to the UN human rights committee, we happened to appoint one out of the 18. Such UN committees will be interpreting UN conventions and human rights laws which will ultimately have an impact on our own society. I would have thought that Senator Chris Evans, as a strong republican, would object to that as I, as a strong constitutional monarchist, would equally object to it.

  I note Senator Vanstone's comments. She felt that a lot of the letters that she received were misconceived in some of the fears that they raised. For my own part I received a lot of very thoughtful and intelligent letters. They were not just random letters of which people send out bulk copies; they were not the sorts of letters that are signed by various electors and posted back to parliamentarians. Indeed, I was quite impressed by the number of individual and thoughtful letters I received on this issue.

  Why is there this wide concern? There is a growing nervousness in the community about the impact of UN conventions on the Australian community. Many people in the Labor Party have strongly supported such conventions but no-one would deny that they are having an important impact. I know from my own studies that no other comparative country has the same huge enthusiasm for UN conventions and instruments as the Australian Labor government. Other governments have special procedures in place—for example, Canada, whose approach to UN conventions is probably the closest to Australia's. Canada has a number of procedures in place which ensure that the various provinces have a say and a real impact when the central government decides to sign a UN treaty. West Germany in relation to the Lander, its own states, has similar processes. In the United States the Senate requires a two-thirds majority to ratify a treaty.

  I believe that the Labor government—and this is a reflection of the whole approach of the Labor Party—has shown huge enthusiasm for the various conventions and declarations that the UN has adopted, and many would have no great objection to them as generalised aims. But when we see them being incorporated into a country's domestic law, where precision is required, and when they are used as a battering ram through the external affairs power to overturn key elements of the constitution, I believe this is the reason that we are seeing emerging in this country quite a degree of nervousness with respect to the UN conventions and the whole internationalist approach of Senator Gareth Evans.

  As I referred to earlier, Senator Gareth Evans and colleagues stood up in this parliament in support of the Australia Act and said that Australian law must be self-contained: it is our law; it is our country; and our courts must be the highest courts to which Australians can appeal. That was the whole philosophy underlying the Australia Act. Senator Chris Evans's colleagues—Senator Chris Evans was not in this parliament; therefore, there is no reason for him to shoulder the blame—have completely reversed that philosophy. That is precisely what they have done.

  I say to Senator Chris Evans, Senator Spindler, the Australian Democrats and the Greens that certainly many of the intentions underlying the declaration which has come before the parliament today are worthy and ones which we would support. But as elements of Australian legislation, of legislation under which particular actions will be taken by individuals, the declaration is unsatisfactory for the reasons that my colleague Senator Vanstone has outlined: the contradictions, vagueness, conflict with other UN conventions—which the Labor Party has endorsed—and ambiguities.

  I believe that we should always enhance religious tolerance in this country. I think Australia has generally—I do not say there are not the occasional problems—created a very tolerant, peaceful and fair society. But if one wishes to buttress that and enhance those very desirable values, in my view, one should not go down this route. The government should bring before the parliament proper legislation which reflects the values of the Australian community and any special problems in it. It can then put its name to it and, if it is good enough, we will also put our name to it.

  The government is doing here what it has done so often—pulling a Labor Party stunt. Just before the election a whole rash of these international conventions were signed. This is only one of them. Three or four major ones were signed in relation to the ILO to buttress the position of the government's union mates. It is international law. If the government is going to fight political battles, it should fight them here in Australia, not in Geneva. That is the point I put to honourable senators opposite.

  The government also signed a number of other optional protocols and procedures which opened up Australian appeals to other UN committees—against the advice of some of the states. So I have to put it to honourable senators that we have here a declaration with some very real problems, which we do not believe will enhance tolerance in this community.

  It also raises the wider issue of just what approach a sovereign, proud, democratic country should be adopting in relation to UN conventions and how best we can enhance those values which we hold precious in this society. Surely it is better that we follow proper democratic, conventional routes rather than go down the route that Senator Bolkus and his colleagues wish to take us today.