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Thursday, 18 November 1993
Page: 3143

Senator SPINDLER —My question is directed to the Minister representing the Attorney-General. I refer to my letter to the Attorney-General of 12 November 1993 raising the Australian Democrats' concerns about the Victorian Crimes Amendment Bill 1993. First, does the minister agree that the Victorian bill contravenes the International Covenant on Civil and Political Rights—

Senator Panizza —Sit down, you fool!

The PRESIDENT —Order! I ask that that be withdrawn. It is not parliamentary to call someone a fool. Senator Panizza, you said, `Sit down, you fool', and I ask you to withdraw it.

Senator Panizza —I withdraw.

Senator SPINDLER —Does it contravene that covenant as well as the international covenant on the rights of the child? Secondly, has the minister referred the bill to the Human Rights and Equal Opportunity Commissioner? Thirdly, is the minister prepared to take action to override those elements of the bill which are in contravention of Australia's international human rights and judicial process obligations under the conventions we have signed and ratified?

Senator BOLKUS —I thank Senator Spindler for bringing the Senate back into the mainstream of public debate, raising an issue which is really of relevance to people and dissociating himself, and the Democrats in the process, from the sorts of diatribe and trivialities we find from the other side. Senator Spindler raises a question which is of concern. It is of concern not only to Senator Spindler but also to the government.

  Mr Kerr, the acting Attorney-General, in fact has written to the Hon. Jan Wade raising this government's concern at both the totality of the legislation and specific aspects of it. He is concerned that the legislation, though still in its second stage, has the potential to infringe Australia's international human rights obligations under both the ICCPR and the convention on the rights of the child. In particular, the government has a whole raft of concerns which have been raised with the Attorney-General of Victoria. We are concerned about—

Senator Kemp —It should not have been passed by this parliament.

Senator BOLKUS —Senator Kemp would not be concerned. He would not know what to be concerned about. He should sit there in his isolation and vacuum and let us in this part of the parliament get on with the real issues.

  The government is concerned in particular about issues such as the abolition of the requirement of a court order to permit police fingerprinting, regardless of whether or not a person has been charged with an offence. This may breach article 17 of the ICCPR and article 16 of CROC, as well as principle 4 of the UN body of principles for the protection of all persons under any form of detention or imprisonment. We are concerned also about the treatment of children under the age of 15 and above as adults for the purposes of fingerprinting. The concern of the Attorney-General is that this could be contrary to articles 24(1) of the ICCPR and article 40 of CROC.

  There is further concern about the abolition of the judicial mechanism whereby children aged under 15 years and over 10 can challenge the reasonable grounds under which police can take fingerprints. The concern here is that this may be in contravention of article 12(1) of CROC as well as articles 42(4) and article 14(3)(e) of the ICCPR.

  There are other concerns. There are concerns about the court's discretion in limited circumstances to admit fingerprints in evidence, even when the procedures for taking those fingerprints or their destruction were not followed. The concern here is that this may breach article 17 of the ICCPR and article 16 of CROC.

  As can be seen, these are not all the concerns. Others have been raised in correspondence with the Victorian Attorney-General. Mr Kerr has also raised with the Victorian government whether it proposes to make any further changes to the bill to take into account these human rights concerns.

  The second part of the question concerns HREOC. As Senator Spindler will understand, the human rights commission has already examined a draft of the legislation. It is having a continuing interest in the bills and the government is keen to see that interest continue. The government is also keen to see that all governments are concerned that they comply with our international obligations when it comes to these sorts of provisions.

  Mr Kerr is having his department prepare an options paper to examine the possible measures to ensure that all states are meeting such obligations. In the meantime, we are concerned to ensure that the legislation that is being introduced complies with those obligations.

Senator SPINDLER —Mr President, I ask a supplementary question. With respect, the minister has not answered the last question. Could he please advise the Senate whether, in the event that the Victorian government does not change the bill to ensure that it complies with human rights obligations, the federal government is prepared to override it.

Senator BOLKUS —The advice that I have is that the Acting Attorney-General is preparing an options paper for the government to consider what further action can be taken. I will have to leave it at that.