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Wednesday, 17 November 1993
Page: 3067


Senator KEMP (6.52 p.m.) —I rise to speak on a number of issues which were canvassed during the Estimates Committee A hearing, in particular, but I will touch briefly on a number of other matters which came up in other estimates hearings I attended. I read a comment in the press, and one journalist made the point to me, that there was concern that the estimates committees were a bit of a loose cannon which should be reined in, and which concentrated on what at least one journalist described to me as trivia. I simply do not accept that the values of the Prime Minister (Mr Keating) and the way he conducts himself are, in fact, trivia.

  The point I really wish to make is that, particularly in Estimates Committee A, a very wide range of issues was covered—issues which I think are important, and issues which to my knowledge were not closely examined or, at least, reported on by the press. I wish to draw out some of these issues in my remarks.

  One issue which particularly concerned me—I am sure it would be of equal concern to you, Madam Acting Deputy President—was the tragic case of Mrs Gillespie and her two children who were kidnapped from this country. At estimates hearings there has been fairly prolonged discussion about the nature of the government's response to this tragic case and whether in fact the government could have done any more.

  I do not propose to canvass those wider issues. I happen to think the government could have done more, but the point I wish to make to the chamber this evening is that one of the issues which is of particular concern to Mrs Gillespie is her desire to meet with our Minister for Foreign Affairs (Senator Gareth Evans). That is not a big request, I would have thought, for any Australian, particularly an Australian who finds herself and her family swept up in these tragic events.

  I asked Senator Gareth Evans a number of times during the hearings whether he would meet with Mrs Gillespie. Each time I felt that he fudged the issue and found it difficult to give me a direct answer. I think it is fairly clear from a fair reading of the Hansard of the Estimates Committee A hearing that Senator Evans in the end said that he could see no purpose in seeing Mrs Gillespie.

  I put it to you, Madam Acting Deputy President, that there are at least four reasons why Senator Evans should see Mrs Gillespie. Firstly, she is an Australian with a right to speak to her foreign minister about a matter which comes within his ambit and to explore with him any possible future options. Secondly, I believe that such a meeting would give a very strong signal to the Malaysian government and to the wider Australian community that Senator Evans takes this case particularly seriously. I think it is a great pity for that reason that no such meeting has taken place. Thirdly, a little girl who has her Australian passport has been kidnapped from this country. Fourthly, a little boy, her brother, also has been kidnapped.

  So there were very good reasons for our foreign minister to meet with Mrs Gillespie. On each occasion that I have asked Senator Gareth Evans to meet her, he has refused. Senator Evans says that he is unhappy with some of the comments that Mrs Gillespie has made. I will not go into that matter, but let me say that however bruised the ego of Senator Evans might be, it is nothing like the pain Mrs Gillespie feels. I would urge Senator Evans to reconsider this decision he has made and to meet with Mrs Gillespie.

  Another matter which was extensively canvassed at the Estimates A hearings concerned the Mabo case. The committee spent some two hours on 8 November canvassing some of the problems and issues which have emerged. There were two particular issues that I sought to press Senator Evans and his advisers on which I felt were of great concern to the Australian people. The first one was what proportion of the land mass of this country, in the government's opinion, may possibly be validly claimed under native title. I think that is a very important question. Is it correct that some 40 per cent of Western Australia may be claimed? Senator Collins and Senator Tambling would certainly wish to know how much of the Northern Territory may be claimed under native title.

  The second question I pressed Senator Gareth Evans on was compensation. What is the government's estimate of the compensation possibly payable under this bill and which will flow from the High Court's decision on native title? I received no answers to those fundamental questions.


Senator Collins —How could you, Senator?


Senator KEMP —I can tell Senator Collins that, interestingly enough, when I suggested to Senator Evans that these outcomes were important to the future of the nation, and when I pressed him as to whether any work would be done on these two issues, Senator Evans told me pretty curtly that no, there would not be.


Senator Collins —How could there be?


Senator KEMP —I think a lot of work could very easily be done on this matter. Indeed, there should have been a significant number of public servants directed to work on it so that we could ascertain the effect of this bill that the government has brought into this parliament. The government was not only not interested but also refused to undertake such work. The government has a duty to the Australian people to provide them with the full facts of this case. I was concerned that no such interest was shown by Senator Evans in what I would consider to be two significant and important questions.

  The next matter I raised concerned the $107 million paid to the government of Nauru. I asked whether Senator Evans could supply me with the legal advice to explain why the taxpayers should have paid out what honourable senators will agree is a very significant sum. Interestingly, I received from Senator Evans the counter-memorial—the original submission that the government put to the International Court of Justice opposing Nauru's claim. The counter-memorial put a very strong case why no such compensation should be paid.

  I am faced with the problem that I have the government's reasons why it should not pay the money, which seem to me to be well argued and sensible. One particular item of information which came to hand—I do not know whether you are aware of this, Madam Acting Deputy President—is that two-thirds of the mining took place after Nauru became independent in 1968. I understand that not one dollar of profit has been spent on the rehabilitation of the islands. As the counter-memorial said, if Australia's hands are dirty in this case, the hands of Nauru are equally dirty. It does not come with cleans hands to this issue.

  I have from the government the reasons why it should not pay the money. Nonetheless, I am now faced with the problem that it will not give me the reasons why it should have paid the money. I am sure Senator Carr will agree that it is an extraordinary case. Again, I press Senator Evans to supply this legal advice so that we are better able to judge whether the taxpayers' money has been responsibly spent.

  Another issue that came up at the hearing is the fact that Australia accepts the jurisdiction of the International Court of Justice without reservation.


Senator Carr —This is the funny names people again, is it?


Senator KEMP —I will come to that issue in a minute. I asked Senator Evans how many countries accept the jurisdiction of the International Court of Justice without reservation. In the last hour, Senator Evans's office supplied me with the names of the countries. Indeed, it is a lonely group of countries that are prepared to accept the jurisdiction of the International Court of Justice without reservation. The UK, the US, Canada, France and Germany—in fact, most of the major countries—do not follow Australia's course.

  I thought Senator Evans gave rather good reasons why one should be a little cautious, given the fact that international law seems to be highly variable in these cases and to have left Australia, despite all previous precedents, enormously exposed in the case of Nauru.

  Senator Carr was kind enough to raise implicitly, in a rather unpleasant manner and with overtones that I do not accept, the issue of another very dramatic step that Senator Evans, one of the leading republicans, has taken in allowing Australian human rights cases to be ultimately complained to a number of UN committees. As would you understand, Madam Acting Deputy President, this overturns the philosophy of the Australia Act, whereby the Australian government severed ties with the Privy Council.

  Madam Acting Deputy President, one of your former leaders, Mr Gough Whitlam, put it quite well when he said that it was not appropriate for Australians to litigate their differences before foreigners and that it was appropriate that the Australian legal system be self-contained. That is how Mr Whitlam justified the Australia Act. Frankly, I think that statement had a lot of merit.

  Five years later, the Labor government has opened up appeals to three UN committees. I do not plan to go through what I would regard as a fairly comprehensive adjournment speech given on this issue on 26 October 1993. However, the interesting thing is that, when I pressed Senator Evans as to whether he was aware of concerns which had been expressed about the functioning of these committees, I thought he seemed genuinely surprised. Indeed, I was a little surprised that some of the public servants advising him seemed to be genuinely surprised.

  As I have said before, I do not think it is appropriate for any government to overturn the philosophy of the Australia Act. Mr Whitlam was right when he said that the Australian legal system should be self-contained. But those who accept, like the good republicans Senator Carr and Senator Collins, that Australian cases should be appealed offshore have a responsibility to make sure that these committees are appropriately structured to hear complex cases.

  I will run through some of the criticisms of the UN committees. Firstly, a number of the members of the committees are not seen to be independent of their government. Some of them are employed by the governments that nominate them to the committees. Allied to that point is the fact that, frankly, many of the governments represented on these committees are not democracies. In other words, they have not reached that appropriate structure in their community which allows freedom and liberty to flourish. So we have people who are not independent being nominated by governments that are either not free or are partly free.

  Secondly, the committees do not adopt what we regard as proper processes. In other words, people's standing before the committees is restricted. Their hearings are often held in camera and they are dependent on finance from the UN and sometimes governments. These committees are associated with a range of problems, all of which compromise their independence and mean that they do not meet proper standards of legal processes.

  If the government were going to open up Australia's legal system to another plane of law, I would have thought it would have at least done its homework and made sure that these committees met the appropriate standards of independence, due process and legal process that we regard as fundamental to our legal system. Senator Evans did none of this work, and that is a great pity.

  Another issue of concern is that not only are these Australian cases able to be complained to these committees, but the Australian government reports to these committees. I have made the point before that Jim Scullin, Ben Chifley, John Curtin, Robert Menzies and Billy Hughes would never have reported, particularly before the war, to, for example, the British colonial office on any matter in the way that Senator Evans and Mr Keating report to the UN. The affection that any Australian pre-war monarchist may have felt for the British empire is literally nothing compared with the adoration that Senator Evans and Mr Keating feel for the United Nations.

  The government presented a report to the United Nations committee on the elimination of all forms of racial discrimination. In this document, public servants were asked to quote evidence of an inquiry which overwhelmingly demonstrated that:

. . . racist attitudes and practices (both conscious and unconscious) against Aboriginal people pervade Australian institutions.


Senator Carr —Is that true or not?


Senator KEMP —Senator Carr says that is true. I simply do not believe it. I hold greater respect for our people than he does. I think we have created a remarkably free and tolerant society. I happen to be proud of Australia. He is not. He is a typical republican who wears the old black arm band of Australian history, accepts the overturning of the Australia Act, and bags our people—past and present. I do not. Public servants simply should not be asked to write this type of material.

  If Senator Evans shows such a fundamental lack of pride in his country, he should let his own political staff write about it. He should not go to the Department of Foreign Affairs and get public servants to churn out this type of material which has no sense of balance and no sense of national pride. In future years, these sorts of reports will come back to haunt this country. It is a great pity and it is sad that such things happen.

  I had wished to raise a number of other matters, but time is certainly on the wing. One of those matters—on which I would have hoped to have got some support, even from Senator Carr—relates to the ABC and the need to decentralise the activities of the ABC away from Sydney. Senator Zakharov, as a Victorian, and Senator Carr, as a Victorian, could understand the great concern amongst ABC people in Melbourne—and in all other states—about the total expenditure of resources in Sydney and the control of virtually all activities of the ABC from one particular capital.