Tuesday, 18 March 1986 The PRESIDENT (Senator the Hon. Douglas McClelland) took the chair at 2 p.m., and read prayers. The Clerk —Petitions have been lodged for presentation as follows: To the Honourable the President and members of the Senate in Parliament assembled: The humble petition of the undersigned citizens of Australia, respectfully showeth: That the proposed Australian Bill of Rights Bill 1985 will endanger the Federal system in Australia, the State and Federal criminal justice systems, the State and Federal Police Force, the State and Federal education systems, the independence of the churches and religious associations, marriage and the family, children, the unborn, the handicapped, the aged and the infirm, employer and employee relationships and Australian society generally. Your petitioners therefore humbly pray: That your Honourable House defer debate on the Bill for twelve months and circulate the Bill for twelve months for the widest possible debate, scrutiny and discussion, and your petitioners as in duty bound will ever pray. by Senators Michael Baume (from 18 citizens) and Richardson (from 18 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The petition of the undersigned Australian citizens respectfully showeth: That human embryos deserve legal protection to enable the development of their full human potential. Your petitioners humbly pray that the Senate pass Senator Harradine's Bill to prohibit experiments involving the use of human embryos. And your petitioners as in duty bound will ever pray. by Senator Sir John Carrick (from 37 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The petition of the undersigned shows: That human embryos deserve legal protection to enable the development of their full human potential. Your petitioners request that the Senate should: Pass Senator Harradine's Bill to prohibit experiments involving the use of human embryos created by in vitro fertilisation. And your petitioners as in duty bound will ever pray. by Senators Hill (from 397 citizens) and Vigor (from 120 citizens). To the Honourable the President and members of the Senate in the Parliament assembled. In this session of Parliament the proposed Bill of Rights will come before the Senate to be debated. We, the undersigned, would like to voice our protest at the proposed Bill. 1. Because of the haste and secrecy with which this legislation was passed through the House of Representatives despite the fact that it will adversely affect areas of immense importance to liberty and freedom and is contrary to the spirit of the Australian Constitution. 2. The Bill is based upon the United Nations International Covenant of Civil and Political Rights which has been rejected both by the United States of America and Great Britain but accepted by the Warsaw Pact countries. We therefore believe there is a potential threat to our national security through making treaties of this kind with foreign nations, many of whom do not practice the principles that they have covenanted to uphold. 3. Because our Australian Constitution states that `whereas we the people' give you the government these rights, the Constitution limits the right and power of government. The proposed Bill of Rights reverses this totally and states that `we the government, give you the people these rights'. This totally reverses the nature of government in this country. 4. Our rights and the principles of freedom are now protected by current legislation, Common law and the present Constitution. 5. Because it transfers the power of interpretation of legislation from the Parliament of Australia (the democratically elected institution) to the Courts (unelected body of people). 6. Because the Bill of Rights will be administrated by the Human Rights Commission which is an unelected body of people with powers which are outside and not subject to the normal processes of law-no appeal, closed hearings, no legal representation. 7. That the implementation of the legislation through a process of new educational initiatives will result in the centralised control of education and this will inevitably lead to the destruction of States' rights and just as inevitably the centralised control, by government, on human behaviour. We therefore request that you vote to reject this proposed Bill of Rights in any shape or form being introduced in Australia. Yours humbly by Senator Hill (from six citizens). To the Honourable The President and members of the Senate in Parliament assembled. The petition of the undersigned shows: Re: Proposed Australian Bill of Rights 1. We believe as a matter of faith and judgment that the proposed legislation is anti-God and its implementation will result in attacks on the Christian church and the promotion of a State religion based on secular humanism; 2. That there is no need for legislation of this kind since the principles of freedom are already enshrined in Common Law and that it will cause more problems than it seeks to solve; 3. That there is a potential threat to our national security through making treaties of this kind with foreign nations, many of which do not share a common heritage and do not practice many of the principles that they have covenanted to uphold; 4. The methods being used to introduce this legislation are secretive and a blatant misuse of the external affairs powers under Section 51 of the Australian Constitution and that furthermore are contrary to the spirit of the Constitution; 5. That the implementation of the legislation through a process of new educational initiatives will result in the centralised control of education and this will inevitably lead to the destruction of States' rights. And your petitioners as in duty bound will ever pray. by Senator Maguire (from 14 citizens). To the Honourable the President and members of the Senate in Parliament House assembled. We, the undersigned citizens of Australia, humbly pray that the parliament act to outlaw the practice of the large petrol companies also controlling petrol retail outlets in competition with independent petrol distributors and retailers who they supply, thus acting in a position of unfair competition, and leading to the large companies exerting unconscionable pressure on those independent distributers and retailers. And your petitioners as in duty bound will ever pray. by Senator Vigor (from 36 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth: That in November 1978 more than sixty two per cent of the voters of the Australian Capital Territory in a Referendum rejected the introduction of Territorial Government or Local Government in the Australian Capital Territory. That until the Government's decision on the Commonwealth Grants Commission Inquiry into Australian Capital Territory finances have been made public and there has been a Referendum of the Australian Capital Territory as to their attitude to Territorial or Local Government. Your petitioners most humbly pray that the Government take no further action or legislation in respect of Territorial or Local Government in the Australian Capital Territory. And your petitioners as in duty bound will ever pray. by Senator Vigor (from 53 citizens). Petitions received. Senator MICHAEL BAUME(New South Wales) —I give notice that, on the next day of sitting, I shall move: That the Senate- (a) notes the alarming amount of waste of public money involved in the Hawke Government's big spending programs as revealed in the first report of the Federal Opposition's Waste Watch Committee; (b) regrets that the Minister for Employment and Industrial Relations (Mr Willis) has instructed his department not to provide Senator Michael Baume with information relating to Community Employment Program funding or performance and that all inquiries must be made through his office; (c) regards this as a politically motivated attempt to limit the exercise of a Senator's duty; and (d) calls on the Federal Government to provide proper reporting to the Parliament of those projects which it promotes publicly through press releases with a great fanfare but whose performance it refuses to make equally public. Senator McINTOSH(Western Australia) —I give notice that, on the next day of sitting, he will move: That the time for the presentation of the report of the Standing Committee on Foreign Affairs and Defence on the acquisition of land for the Army be extended to 31 August 1986. Senator ROBERTSON(Northern Territory) —On behalf of Senator Aulich, I give notice that, on the next day of sitting, he will move: That so much of the Standing Orders be suspended as would prevent the Joint Select Committee on an Australia Card meeting during the sitting of the Senate on Wednesday, 19 March 1986. Senator REYNOLDS(Queensland) —I give notice that, on the next day of sitting, I shall move: That the Senate condemns the Queensland Cabinet for- (a) banning Her Majesty's Opposition from publicly debating the extent of mismanagement in that State; (b) misusing public funds to bring defamation action against Opposition members and media outlets; and (c) threatening freedom of speech in Queensland in order to hide the extent of corruption in the National Party Government. Senator JONES(Queensland) —I give notice that, on the next day of sitting, I shall move: That the Senate, noting that- (a) despite the provocative action of the European Commission in cancelling the annual trade talks with Australia because of its displeasure with what it describes as Australia's strong criticism of Europe's trade in subsidised agriculture, the Prime Minister (Mr Hawke) has nevertheless decided to go ahead with proposed talks with the officers of the Commission; (b) the aggressive and ever-spiralling protectionist policies of both Europe and the United States are already having a serious effect on Australia's trade, particularly in agricultural products; and (c) only by pressing Australia's case in the strongest possible terms in the United States and in Europe at the highest possible level can Australia's traditional share of the market, particularly in wheat, be maintained, congratulates the Prime Minister on his decision to negotiate and expresses the hope that his mission to the United States and Europe will produce success in the necessary quest to protect Australia's rural sector. Senator BUTTON(Victoria-Leader of the Government in the Senate) —I table papers in accordance with the list circulated to honourable senators. With the concurrence of the Senate, I incorporate the list in Hansard. Leave granted. The list read as follows- 1. Commonwealth Accommodation and Catering Services Ltd Annual Report. 2. Australian National Gallery-Annual Report 1984-85-Pursuant to Section 42 of the National Gallery Act 1975. 3. Anglo-Australian Telescope Board-Annual Report 1984-85-Pursuant to Section 19 of the Anglo-Australian Telescope Agreement Act 1970. 4. Arbitration Inspectorate-Annual Report 1984-85-Pursuant to Section 125 (12) of the Conciliation and Arbitration Act 1904. 5. Stevedoring Industry Finance Committee-Annual Report 1984-85-Pursuant to Section 30 of the Stevedoring Industry Finance Committee Act 1977. Senator CHANEY —My question is addressed to the Minister representing the Minister for Housing and Construction, who would be aware of the developing crisis in the rental accommodation market, borne out by statistics which show a decline in the vacancy rate in State capital cities between November last year and January this year. She may not be aware that during January two cities, Perth and Sydney, had a rental vacancy rate of less than one per cent, causing great distress to many thousands of people both in terms of lack of places to rent and the higher rents which inevitably follow such a shortage. Does the Minister agree that the Government's proposed capital gains tax and the abolition of negative gearing on new investment will only worsen the situation? I further ask whether, as part of its consideration of possible assistance to the home building industry, home buyers and renters, the Government will agree to abandon or modify both or either of these new taxation measures. Senator RYAN —Of course the Government is aware of the pressure on the housing market generally and on the rental market. The Government is also aware that that pressure is greater in some cities than in others. However, the answer to the final part of Senator Chaney's question as to whether we are prepared to abandon elements of the tax reform package is no. It is also the case that the Cabinet has been considering a number of measures which would alleviate that problem. Senator CHANEY —I thank the Minister for that answer but ask a supplementary question. Is she saying in that answer that the Government is specifically considering some measures to assist people seeking private rental accommodation? Senator RYAN —I simply say that the Government is seriously considering a range of measures to assist the housing industry generally, not only the plight of people seeking rental accommodation. Senator Chaney —But including? Senator RYAN —Yes, including those people. Senator McKIERNAN —Has the Minister for Veterans' Affairs seen yesterday's Press reports claiming that two Swedish experts have written to the Governor-General alleging that the Royal Commission on the Use and Effects of Chemical Agents on Australian Personnel in Vietnam report misinterpreted and lied about the evidence they gave the Commission? Senator GIETZELT —Yes, I have seen the media speculation in the Press reports to which Senator McKiernan refers. Members of the media spoke to me on quite a number of occasions on the weekend seeking comment on the matters raised. All I can say at this stage is that I have asked the Secretary of my Department to give me an urgent report on the grave allegations that have been made by scientific persons and also on the fact, I understand, that a scientific person has written to the Governor-General making certain statements and allegations about the Royal Commissioner's report. However, as these matters have not been referred to me specifically at this stage, until I have a response from my Department I cannot comment further about media comments, in regard to criticisms of the Royal Commission's report. Senator PETER BAUME —I draw the attention of the Minister for Education to reports that more than 33,000 people, including 477 working apprentices, have been turned away from technical and further education courses this year in New South Wales. I ask the Minister: Is she prepared to continue to allow such numbers to be turned away from TAFE courses, especially working apprentices who may well lose their apprenticeships if they do not get admitted to a TAFE course, or will her Government take positive action now to help to make sure that places are available for these apprentices and those requiring technical and further education? I ask the Minister further: Is the turning away of 477 working apprentices from TAFE another indication of the failure of the Priority One scheme to deliver what is needed for youth? Are the Government and the Minister prepared to tolerate a situation in which, due to the indifference or incompetence of the Labor Government in New South Wales, young Australians are not getting the chance to improve themselves? Senator RYAN —I have seen no properly documented account supporting Senator Baume's claims about the numbers of young people who cannot get into TAFE courses, and in particular the number of apprentices in training who cannot get TAFE places. However, I am aware that there is likely to be a shortfall this year, as there has been in the past and as there will be in other years. However, that shortfall ought to be much less than it has been in previous years because one of the consequences for tertiary education of last year's Budget was the funding of an extra 15,000 TAFE places throughout Australia. I am not quite sure what proportion of those would have gone to New South Wales but I am sure a significant proportion would have done so. The situation is certainly much better than it has been but I expect that, when all the tertiary entrants' places have been allocated, there will be a shortfall. I hope that the shortfall will be less than it was last year. In response to Senator Baume's question, I can say that it is a matter of concern that there will be a shortfall. As Senator Baume will be very well aware, in the TAFE sector the Commonwealth's contribution is about 30 per cent of the total and that of the States about 70 per cent. Most of the Commonwealth's contribution to TAFE under present arrangements is through the capital program which has been greatly expanded over recent years. I hope that that expansion will continue. It is also the case that some TAFE facilities are under-utilised because the recurrent funding is not adequate to utilise fully those facilities. This is a matter of concern to us and it is something that we will discuss with State governments in the near future. Senator Baume will be aware that the Commonwealth, through the Commonwealth Tertiary Education Commission, has initiated a review of the Commonwealth's role in TAFE. As a result of that review, we will expect more co-operation with the States so that the funds that we make available through the capital program can be better utilised by an increased effort by the States in their recurrent contributions. But it is certainly not the case that we regard unmet demand in TAFE as any sort of sign that Priority One is not working. Were it not for Priority One-were it not, for example, for the great increase in places in higher education and for the increased education allowances that enable children from less affluent families to study-we would see a much worse situation. We are confident that Priority One is working, particularly insofar as the education element is concerned. Participation rates in upper secondary schools are up in all parts of Australia, including New South Wales. That is partly because we have targeted those groups for greatly increased allowances under the secondary allowances scheme. There are many more places in universities and colleges of advanced education and this relieves the pressure on TAFE. As I have said, we have committed ourselves to an extra 15,000 places over the triennium. There is no doubt that we are making inroads into the unmet demand in those areas and we will continue to do so. With regard to the specific numbers cited in Senator Baume's question, I will ask the Tertiary Education Commission to comment on the accuracy of those claims. Senator ELSTOB —My question is directed to the Minister representing the Minister for Foreign Affairs. I refer to the Government's program for the International Year of Peace. Has the Minister given consideration to a national `Australia for peace' campaign in which more Australians are encouraged to donate to or to sponsor a needy family in a third world nation? Does the Minister agree that such a project will enable people to feel that they have actually contributed to world peace as part of the Government's Year of Peace program? Will the Minister consider giving a public reassurance that donations or sponsorships through inter- national relief groups will in fact be spent on the people for whom they are given? Senator GARETH EVANS —That is a very interesting suggestion from Senator Elstob. No specific consideration has been given to a national Australia for peace campaign of the kind he has suggested but I shall certainly draw the attention of the Minister for Foreign Affairs to the proposal. The Government acknowledges that many Australians are already assisting needy families in Third World nations through various Australian and international relief groups and we do welcome the contribution that this makes to peace in the broadest sense of that term. Of course we are undertaking a national communications campaign to raise public awareness of the many different dimensions of the International Year of Peace. We believe that this effort will be of assistance to the many existing campaigns being run by Australian and inter- national relief groups. Finally, the Government respects the autonomy of the relief groups, which generally have a sound reputation. However, it does not become involved in the internal workings of these organisations and has no authority to monitor the expenditure of privately raised funds. Senator CHIPP —I ask a question of the Leader of the Government in the Senate. I preface my question by reiterating that the Australian Democrats are not siding with either the Broken Hill Proprietary Co. Ltd or Mr Holmes a Court with regard to the proposed takeover. I ask: Is it fair to agree with the opinion expressed in today's Age editorial that a decision to split the trade practices legislation would inevitably amount to Government support for the Holmes a Court bid? As the proposed trade practices legislation has become so entangled with the takeover and as the Australian Democrat attempt to provide for a neutral approach via a public inquiry has been defeated in this chamber, will the Government now drop its pretence of non-involvement and agree to hold a public inquiry, possibly involving the Foreign Investment Review Board, into any detriment which may result from the success or failure of the Holmes a Court bid? Senator BUTTON —The short answer to both parts of the question is no; that is to say, firstly, the Government does not agree with the opinion expressed in today's Age editorial about the splitting of the trade practices legislation and, secondly, the Government will not agree to an inquiry of the kind suggested by Senator Chipp. Senator Missen —What have you got to hide? Senator BUTTON —Senator Missen asks what we have to hide. The answer is that we have nothing to hide, but the more important question we have to address is whether it is appropriate for the Government to involve itself in these matters. If we go down the course of involving ourselves in these matters, Senator Missen's question will be a legitimate one-what has government to hide by holding or not holding an inquiry. It becomes a legitimate question if governments involve themselves in these matters. I would have thought in relation to the second part of Senator Chipp's question that the Government's attitude on this has been quite clear. Senator Chipp —With great respect, you have changed your mind once on the legislation-quite commendably. Senator BUTTON —I thank the honourable senator. Recycling a course of action which the Government has already addressed is perhaps attractive to the Australian Democrats but not to us. Senator McINTOSH —Has the attention of the Minister for Finance been drawn to plans to `expose examples of waste and inefficiency in government . . . and lay the foundations for the expenditure control and expenditure reduction plans of the Opposition'? Can the Minister say whether the Government supports such a campaign? Senator WALSH —My attention had already been drawn to this matter even before Senator Michael Baume gave his notice of motion at the beginning of this sitting. Before getting to the substance of the question I should firstly correct a couple of factual errors. One of the examples of alleged waste cited by Senator Baume referred to a community employment program project to train four people to become professional clowns. I would have thought a stint with the Liberal Party of Australia in opposition would be the best training they could get for that. Leaving that aside, the fact is that no such funding was provided under the CEP. However, a clown training project was funded, involving an amount of $86,324, in the electorate of Gippsland under the coalition Government's wage pause program. So it was the coalition Government, not the present Government, which funded the clown training project. The CEP has funded more than 17,000 projects, of which about half a per cent have been criticised by the Opposition. The project for four people to train with a clown was approved on 14 December last year but did not commence and therefore it received no funding. That is factual error No. 1. Factual error No. 2-I am not suggesting that this is an exhaustive list of factual errors in the clown's statement of alleged waste-was a conference which, according to some newspaper, Senator Michael Baume alleges did not take place at Wollongong University. It did take place, in fact, on 16 and 17 March and it was attended by 130 delegates. I do not know what Senator Baume's source of misinformation was but it seems to me that he must have picked up the information from one of his old Patrick Partners prospectuses or some other similar fictional source. I return to the other matters. If Senator Michael Baume is concerned about waste, I can tell the Senate that a lot of pensioners wasted their life savings on investments with Patrick Partners when he was writing their prospectuses. Senator Michael Baume —Mr President, I take a point of order. The Minister's remarks are part of a campaign of personal denigration of me. I suggest to you that this follows a pattern which is clearly evident. It is a cracked record played by a worn needle in an old wind-up gramophone. It goes round and round getting nowhere and has long since lost its point. It is running down and requires increasing-- The PRESIDENT —Order! The honourable senator is entitled to make a point of order, not a statement. Senator Michael Baume —Thank you, Mr President. As I was saying, this is part of a long term campaign which seems to be running out of steam. Mr President, I ask you to ensure that the Minister is prevented from continual personal denigration and abuse of members of the Opposition. The PRESIDENT —Order! If the honourable senator takes personal objection to the statement, as I understand he has, under standing order 418, I ask the Minister to withdraw it. Senator WALSH —Certainly, Mr President. I have not even said anything about the bottom of the harbour schemes yet. The PRESIDENT —Order! Will the Minister come to his answer to Senator McIntosh's question. Senator WALSH —Certainly, Mr President. Leaving aside the factual errors and the clownishness with which the Opposition presented its proposals to eliminate waste, I welcome the proposition and the Opposition's interest in it. I first invited Mr Howard on 1 August last year to nominate the areas in which he would cut expenditure. Until yesterday-other than his threat last November to cut the level of unemployment benefit and supporting parent's benefit-I have not heard him say a word about where expenditure should be cut. Last week, for example, I incorporated in Hansard a list showing that various members of the Opposition had promised to increase outlays by $1.4 billion a year and to forgo revenue of $3.6 billion, the effect of which would be to increase the deficit by $5 billion. That list was not exhaustive but it showed that the Opposition would double the level of the Budget deficit. It did not, for example, count the $500m which the Opposition has promised to spend on a Northern Territory railway. The aggregate level of cuts, even counting the false assertions and the errors, with which the Opposition could come up amounted to $25m compared with $500m on a Darwin-Alice Springs railway alone. However, if the Opposition wishes to concentrate on small items-I do not ridicule attempts to concentrate on or to look at small items-I suggest that Mr Howard instruct his Deputy to cut back his $10,000 a month car bill; in other words, to be a bit less self-indulgent. As I have said, I do not scoff at small attempts to reduce expenditure and for that reason I decided today to reject a request from the Deputy Leader of the Opposition for remission of a freedom of information charge for FOI information. I am satisfied that the request he made does not fall within the guidelines for remission of charges for FOI and I will be issuing a statement later today providing full details of that request. Mr Neil Brown showed in that request that he regards the freedom of information procedures as a free research service, as did a former Liberal Party Minister who is no longer a member of this Parliament, who put in, in one department alone, requests under the Freedom of Information Act and sought remission of charges-requests that required 300 hours of work within the bureaucracy to answer. Therefore I and the Government are anxious to reduce the costs of providing free research services for failed politicians through the Freedom of Information Act. Indeed, last year we attempted to choke off some of that sort of demand-an attempt that was torpedoed by the Opposition and the Australian Democrats in the Senate. I expect that, in view of the Opposition's conversion-- Senator Walters —Mr President, I take a point of order. If the Minister is referring to a member of the other place who resigned, not failed, he ought to withdraw. The PRESIDENT —Order! There is no point of order. I ask the Minister to bring his answer to a hasty conclusion. Senator WALSH —I thank Senator Walters for identifying Mr Newman, the former honourable member for Bass, as the failed politician who put in that request. On the subject of examining these small items of government expenditure I can also tell members of the Opposition-I am sure that they will welcome this piece of news-that I am informed that when that same Mr Newman's wife enters the Parliament as a senator from Tasmania, should her spouse croak at some time after that, under the present legislation she would qualify for-- Senator Walters —Mr President, I take a point of order. The PRESIDENT —Order! I suggest that the Minister leave out the personal references and come to the answer as far as wasteful expenditure is concerned. Senator WALSH —Should Mr Newman-- The PRESIDENT —Order! Under the existing Standing Orders I cannot request the Minister to withdraw, but I ask him not to engage in personal references unless he finds it absolutely essential. Senator WALSH —I am surprised at the lack of interest displayed by members of the Opposition in a proposition to watch small items of expenditure. I am advised that, should Mr Newman die after his wife enters the Senate, under the present arrangements Mrs-and by then Senator-Newman would be entitled to receive a reversionary benefit of 67 per cent of her husband's salary as well as her salary. Senator Walters —Mr President, I take a point of order. Does the Sex Discrimination Act apply to Ministers answering questions in this place or is this place completely debarred from anything to do with the Sex Discrimination Act? A senator coming to this place is a person in her own right and is not considered as the wife of anyone. She is a senator of this place and the Minister must withdraw. The PRESIDENT —Order! Senator Walters is entitled to take a point of order but she is not entitled to make a statement. There is no point of order. Again I ask the Minister to bring his answer to a conclusion. He has been speaking now for the best part of 12 minutes and there are a lot of questions to be asked. Senator WALSH —I shall be very brief, Mr President. I would have finished in five seconds. On the question that I just raised about the present law entitling someone, in particular circumstances, to receive a parliamentary salary as well as a reversionary benefit, I will be examining it and seeking to address it in the near future. Senator Sir JOHN CARRICK —My question, which is directed to the Leader of the Government in the Senate, relates to the Holmes a Court bid to control the Broken Hill Proprietary Co. Ltd. I ask: Firstly, has the Government sought any assurances from Mr Holmes a Court on this matter; secondly, if so, what is the nature of the assurances sought and what specific undertakings were given; and thirdly, how is it possible for such assurances to be guaranteed in a public company responsible to the decisions of its Board and its shareholders, and to changes of directors? Senator BUTTON —The answer to the first part of the question is yes, the Government has sought assurances from Mr Holmes a Court. The assurances which were sought, while fairly wide reaching, were essentially directed to those areas in respect of which the Commonwealth Government has a particular interest on behalf of taxpayers in the affairs or takeover of BHP. The first of those issues to which we particularly directed attention was the future of the steel industry in respect of which the Government has substantial commitments arising from the steel industry plan. The second area in which we sought assurances related particularly to protection of Commonwealth revenue. I was next asked whether I will publicise the nature of those assurances. The answer to that question is: Not at the present time. Assurances have been given not only orally but in writing by both BHP and Mr Holmes a Court. We sought assurances from both of them. It is not appropriate for us to disclose the details of those assurances while an action is currently proceeding in the Supreme Court of Victoria dealing with very similar matters. I must say that the parties sought some indulgence from the Government on that question which I am sure Senator Sir John Carrick would fully understand. The next part of the question was: How is it possible for a public company like BHP to make sure that the assurances given will be met? That is a very complex question to answer, but let me say that all the anxiety about this takeover assumes that Mr Holmes a Court would, to put it mildly, be in an immensely influential position in the affairs of BHP if his bid succeeded. It is in dealing with that assumption that one has to seek assurances in the manner in which the Government did. I conclude by saying that in respect of assurances of that sort, I doubt whether the fact that they are given to a particular individual or a particular tribunal of inquiry or to the Government makes very much difference in respect of the last part of the question. Once power or influence in a public company of that kind resides in a particular set of hands, either singular or plural, the test of whether those assurances are carried out remains the public credibility of the person or persons who gave the assurances. Senator Sir JOHN CARRICK —I ask a supplementary question of the Minister. Do I take it that when the matter is concluded before the Supreme Court the Government will make those undertakings public? Secondly, am I to understand that what in fact is said by the Minister as to the enforceability of the assurances is that virtually there is no enforceable way of guaranteeing the undertakings given? If so, why ask for the assurances at all? Senator BUTTON —I thought that I had answered the last part of the question already. The question arises from a lot of shared anxiety and concern in some quarters of the community about the present management of BHP and in other quarters of the community about the possible management of BHP under a new regime which might result from a successful takeover bid by Mr Holmes a Court. The answer to that question is that it is in respect of those sorts of concerns that assurances were sought. Senator Sir John Carrick also asked me whether the Government will publish those undertakings given in writing on completion of the Supreme Court case. I think the best way I can answer that is to say that it is the Government's intention to do so, subject to the deletion of matters which either of the parties regard as commercial in confidence, and I think that before we publish that material we would, again, have to consult the parties, although they understand that it is our intention to do so in due course. Also, on that question, the essential nature of the assurances given in respect to the steel industry plan has already been published. Senator COOK —My question is directed to the Minister for Resources and Energy. Now that the Government's decision to reduce the price of oil has taken effect at the petrol pump, is the Minister satisfied that the reduction in price per barrel has been fully passed on to the Australian motorist? Will the Government be enlisting the support of relevant State government authorities to monitor price changes to make sure that there is a real and enduring cut? Can the Government identify for consumers those products and services which should fall in price because of the oil price cut to make sure that the downstream effect is properly reflected in the consumer price index and in consumers' pockets? Senator GARETH EVANS —The Prices Surveillance Authority, of course, sets the maximum wholesale price for petroleum products for each capital city. These maximum wholesale prices were reduced on Friday, by 5.77c per litre for motor spirit, producing the result that in Sydney the maximum wholesale price is now 47.55c per litre, in Melbourne 48.34c, in Brisbane 43.82c, Perth 45.99c, Adelaide 46.64c, and Hobart 47.15c. Retail prices are set by the refining companies in the first instance, then by distributors and agents; a combination of the two produces the final result. The normal retail margin is somewhere between 1c and 5c, depending on gallonage through the particular site, and, in addition to that, of course, one has to take into account the transport costs, which are much greater for country and provincial areas than they are in the capital cities. It is not the case that any of these matters are now the responsibility of the Commonwealth Government or any of its agencies, particularly the Prices Surveillance Authority, to monitor, but I think that I can make some comments about the retail price situation as follows in terms of when the price drops I have mentioned are likely to come into effect. The first point would be that in areas in which retailers were paying the maximum or near the maximum wholesale price, consumers could expect the price of petrol to fall immediately by between 5c and 6c per litre, and most country areas and those cities in which there has been no significant discounting in the past clearly fall into that category. The second point I would make is that prices could be expected to fall fastest in areas where competition is high, in the major cities, and slower in country areas, where retailers will undoubtedly try to retrieve some of their costs of existing stocks; but within 10 days of the announcement, all consumers should see some drop in the price of oil. Certainly they should be asking their retailers why there has been no drop if some price effect has not shown up by the end of this week or early next week. The final point I would make about all this is that in areas in which discounting has been prevalent-and that has certainly been in Sydney, Melbourne and Adelaide in recent times-some consumers may not see a 5c or 6c per litre fall. There has been some evidence that discounting in the places I have mentioned has been much less in the last fortnight, as refiners and, to a much lesser extent, retailers have sought to scramble to recover some of their stock loss. So, to the extent that discounting has been less in the last two or three weeks, then the price effect of the wholesale reduction I have mentioned should be greater. I should make the point that the existence of discounting in the past is evidence that the industry competes fiercely for market shares, and one result of that is likely to be competition to force the retail price down the full 5c or 6c per litre, particularly in areas where there has been that pattern of discounting. As to the implications for prices in the shops, again that is not a matter which the Commonwealth Government has any capacity or constitutional power to monitor. It is unlikely that retailers of consumer goods will actually drop the price of their commodities or be under pressure to do so unless the commodities in question have a very high energy input or very high transport costs associated with them. I simply express the hope on the part of the Government that those shops and supermarkets in the past which have put up their prices because of alleged increased transportation costs will follow the logic of that position under consumer pressure and will now bring down the prices in question. The effect of the drop of fuel prices is more likely to flow through into consumer prices generally as the reduction in the consumer price index from the reduction in fuel prices takes effect. I remind the Senate, finally, that that reduction is expected to be of the order of half a per cent in the first instance, with second round indirect effects of at least another half a per cent and probably, in the longer run, substantially more than that. Senator PUPLICK —I ask the Minister representing the Minister for Defence whether his attention has been drawn to reports about the behaviour of certain members of the Royal Australian Air Force at the Williamtown base in New South Wales in which, in what was alleged to be a series of instructions to `toughen the moral fibre' of the Royal Australian Air Force personnel concerned, they were required to maltreat kittens, in the first instance by attempting to pull their claws out with their teeth and, if that failed, using pliers; secondly, to stamp on the heads of a number of kittens; thirdly, to break the kittens' legs with pliers; and fourthly, to put them in clothes dryer machines, turn them on full, and in effect cook the animals. Has the Minister noted that these accusations of the behaviour of members of the Australian armed forces have now been substantiated? Will the Minister give some undertaking that those responsible for giving the instructions and those responsible for carrying out the acts on these animals will be dismissed from the RAAF, or does the Minister consider that such personnel are fit to serve in the armed forces of the Commonwealth of Australia? Senator GARETH EVANS —I have heard the reports to which Senator Puplick refers and, I imagine in common with every other Australian, have been appalled by what I have heard. I have no brief on the matter at this stage because the truth of the matter is still being sorted out. No doubt it will be possible to say something on the matter quite soon when the Department of Defence finds out what has happened and can brief the Minister and me accordingly. I simply say that I have an absolute incomprehension, combined with disgust, that such things could possibly have occurred-if, indeed, they did occur. I do not think it is appropriate for anyone to jump to conclusions until the facts of the matter are know; but if it should prove to be the case that behaviour of that kind occurred, I do not think there would be anyone in this Government or any part of the country who would resist the course of action which Senator Puplick obviously thinks would be appropriate. Senator FOREMAN —I draw the attention of the Minister for Resources and Energy to statements made by Sheikh Yamani about oil prices dropping to $US8 a barrel. Will the Minister state what impact such a development could have for Australian oil if Australia followed this price for its crude? Will the Minister also state what will happen to the ratio mix of imported to locally produced oil and whether a development along these lines will adversely affect this mix in favour of imported oils? Senator GARETH EVANS —It is the case that Sheikh Yamani has suggested that prices might go even lower than they are at the moment-perhaps, as Senator Foreman said, to $US8 a barrel or less. No doubt Sheikh Yamani was making that comment in the context of the current meeting of the Organisation of Petroleum Exporting Countries in a desire to put the squeeze on his mavericks, as well as to send appropriate signals to North Sea and other non-OPEC producers. It is certainly possible that prices could fall that low in the short run, but I do not think that anyone thinks that the market forces would operate in such a way as to allow prices to stay at that low level indefinitely. At that price level the pressures on producers around the world-the Gulf states excepted-would be absolutely enormous and we could expect consequential production cuts to bring prices up to more acceptable levels. Australian producers will not be immune to these pressures and Australia can expect to see some reduction in production levels flowing from the present price situation. It is also the case that producers and governments will suffer revenue losses through lower prices for as long as they persist. If extremely low prices do persist for some time we could expect to see these production cuts and, more importantly, cuts in exploration flowing from reduced cash flow to producers leading to a decline in Australian self-sufficiency, combined with the corresponding increase in petroleum imports. That is one of the reasons why I and the Government have constantly reiterated that, despite some of the superficial attractions of lower oil prices, in the longer run anything much less than around $US20 a barrel as the prevailing world price is not in the interests of this country. Senator SANDERS —I ask the Minister representing the Minister for Primary Industry: Is the Minister, Mr Kerin, proceeding with his stated intention of arranging urgent talks with Premier Gray of Tasmania on the threat to Tasmanian forests? If so, what is the purpose of these talks? Has there ever been a written agreement between the Tasmanian and the Commonwealth governments relating to the woodchip export licence renewals, including the prohibition of logging of the National Estate? If there was a written or partly written agreement, will the Minister table the document or documents? Senator WALSH —I am advised that Mr Kerin and Premier Gray are arranging to have a meeting as part of on-going negotiations to reach an agreement on woodchipping export licence renewals. Negotiations have been going on for nearly six months and have resulted in a number of discussion papers. The Premier has also waved in public a copy of a document prepared by his officers but which has no status. Because only working papers exist, I am advised by Mr Kerin that he does not propose to table them. Senator JONES —Has the attention of the Minister representing the Minister for Employment and Industrial Relations been drawn to the latest figures, produced this morning, by the Commonwealth Bureau of Statistics on working days lost because of industrial disputes in Australia in the 12 months to November 1985? These show Queensland's performance to be far worse than that of any State, with 427 days lost per 1,000 employees, followed by Victoria with 247, New South Wales with 214, Western Australia with 198, Tasmania with 147 and South Australia with 54, producing an Australian-wide average of 237. Further, has his attention been drawn to the fact that the number of working days lost in Queensland because of industrial disputes in the 12 months to November 1985 rose by 48 per cent from the figures for the preceding 12 months? I ask: Is this not yet another indication of the divisive industrial relations policies and attitudes of the Bjelke-Petersen Government and is it causing great harm to the economic efforts of Australia as a whole? Senator WALSH —I do not have all the detailed statistics regarding days lost through industrial disputes on a State by State basis but the figures that Senator Jones has quoted put Queensland, firstly, as the State with the highest figure of all the States and, secondly, at a figure which is nearly double the national average, which sounds about right to me. That is about where Queensland has been for some time on this issue; that there are twice as many industrial disputes in Queensland as there are in the country as a whole and that there are more in Queensland than there are anywhere else. On the more general question of time lost through industrial disputes, for Australia as a whole the number of days lost through disputes in the year ending November 1985 was less than one-third of the number of days lost in 1979 and 1981. Of course, it would have been lower still had it not been for Queensland keeping the average up in this case. Usually Queensland drags the rest of Australia down on economic questions but on this occasion-that is, the number of days lost through industrial disputes-it has taken the national average up. It is often argued-indeed, it is argued now by the Queensland Government-that export performance would be better if overseas buyers were more confident that their orders would be filled. For that reason the Queensland Government is embarking on confrontationist tactics which sit uneasily with, indeed in total contradiction of, support for a strike-the coalminers strike-which the Queensland Premier was giving vociferously in 1980. However, he apparently believes that it will win him applause in Queensland. The Queensland industrial record is more likely to weaken the confidence of overseas buyers. In a more general sense, I note for the Federal Opposition that the Leader of the Opposition recently said that he wanted to see a thousand Mudginberri disputes in Australia and five years of industrial warfare. All that has been tried before, in the late 1970s or early 1980s. In spite of the vast number of industrial disputes which were recorded at that time, that still did not stop wages explosions of 13 per cent in 1981 and 14 per cent in 1982. I find it quite astounding that anyone would want a repeat of that experience. Senator HILL —My question is directed to the Minister representing the Treasurer. When will legislation be presented to the Parliament to give legislative effect to the 150 per cent research and development expenditure deduction announced on 29 May 1985 and effective from 1 July 1985? What guidelines are currently available to enable business decision making in this legislative vacuum? Is it a fact that some 19 items of tax legislation are still outstanding, having been announced up to 18 months ago, and still awaiting legislation to give them effect? Finally, when will the Government end this farce? Senator WALSH —I do not think that any member of the Opposition should be too critical of delays in introducing tax legislation because I remember the eagerness with which a former Prime Minister in July 1982 announced what became known as the five:three depreciation package, among other things. That package, along with a lot of other tax legislation, was never enacted by that Government. It was enacted by this Government even though we disapproved on policy grounds of some of those provisions. We enacted it for the 1982-83 year and repealed it as from 1 July 1983, in some cases. To return to the opening part of the question, I do not know when the 150 per cent research and development deduction is due to be introduced. I will get an answer from the Treasurer and supply it to Senator Hill. Senator BLACK —The Minister for Veterans' Affairs would be aware of a fierce storm which lashed parts of Brisbane and adjacent shires on the evening of Sunday, 9 March this year and led to the declaration by Queensland authorities of the affected regions as disaster areas. Will the Minister take action to have the Defence Service Homes Corporation's insurance office expedite claims for damages? Can the Minister indicate the approximate cost of these claims. Finally, can the Minister confirm that defence service homes insurance rates are substantially lower, especially in Queensland, than competitors' rates? Senator GIETZELT —It is true that a very serious storm affected parts of Brisbane and parts of the shires of Redland and Moreton on the evening of 9 March. Winds reached 110 kilometres per hour and were accompanied by torrential rain. As a result, the Queensland Government declared it a disaster area. It is true, as has happened on previous occasions in Queensland at about this time of the year, that the Defence Service Homes Corporation was required to respond to storm damage having regard to the large number of homes that it services in that area. The Brisbane office of the Defence Service Homes Corporation opened at 7.30 the following morning and, according to information available to me, close to 300 reports of damage have been received. The worst affected homes were inspected within hours of the damage and emergency measures were carried out in order that we meet our commitments as to the insurance of those homes erected by the home owners with the support of the Defence Service Homes Corporation. It is estimated that the cost of repair of those insured homes will be somewhere in excess of $225,000. Of course, Senator Black will be aware that the insurance scheme operated by the Defence Service Homes Corporation operates without cost to the Budget and without government guarantee. It is managed very efficiently and is able to offer home owners cover at a very low premium. For example, in the Brisbane area the premium per annum is $45.50 to insure a $60,000 timber home, which is about 50 per cent less than that required by other major private or government home insurers. That scheme is a very attractive one from the point of view of the ex-service community. I have figures here, which I asked my Department to prepare, giving the comparative rates of insurance between the Defence Service Homes Corporation insurance scheme and other insurance organisations. I seek leave to have this list incorporated in Hansard. Leave granted. The list read as follow- PREMIUM COMPARISONS WITH PRIVATE INSURERS-CAPITAL CITY RATES STAMP DUTY INCLUDED As at February 1986 Sum insured $40,000 $60,000 $80,000 $100,000 Sydney- G.I.O. (b) brick... 77.65 98.90 120.15 141.40 G.I.O. (b) other... 102.65 133.90 155.15 196.40 N.R.M.A. (c) brick... 73.90 96.40 118.90 141.40 N.R.M.A. (c) other... 98.90 131.40 163.90 196.40 C'wealth Bk (a) brick... 71.40 96.40 121.40 146.40 C'wealth Bk (a) other... 100.15 131.40 161.40 191.40 D.S.H.... 42.48 53.69 64.90 76.11 Melbourne- S.I.O... 118.00 158.00 198.00 238.00 New Zealand... 90.63 123.00 155.36 187.73 RACV (a)... 98.00 142.00 186.00 230.00 C'wealth Bk (a) brick... 84.53 124.12 162.11 198.49 C'wealth Bk (a) other... 96.30 134.82 173.34 211.86 D.S.H.... 42.12 53.24 64.35 75.47 Brisbane- S.G.I.O. brick... 86.00 112.00 138.00 164.00 S.G.I.O. t'ber... 130.00 171.00 212.00 253.00 R.A.C.Q. (c) (d) brick... 112.70 162.78 223.39 281.74 R.A.C.Q. (c) (d) t'ber... 176.28 264.40 350.55 440.70 C'Wealth Bk (a) brick... 80.15 100.15 125.15 150.15 C'Wealth Bk (a) other... 121.40 157.65 201.40 245.15 D.S.H....36.00 45.50 55.00 64.50 Townsville- S.G.I.O. brick... 148.00 194.00 240.00 286.00 S.G.I.O. t'ber... 214.00 284.00 354.00 424.00 R.A.C.Q. (c) (d) brick... 136.12 244.21 328.54 410.30 R.A.C.Q. (c) (d) t'ber... 298.34 447.52 596.69 745.86 C'Wealth Bk (a) brick... 127.50 172.50 218.13 265.63 C'wealth Bk (a) other... 180.10 258.60 332.60 406.60 D.S.H.... 36.00 45.50 55.00 64.50 Adelaide- S.G.I.C.... 121.90 149.80 177.70 205.60 J.M. Insurance... 84.37 111.58 138.80 166.02 Lumleys... 107.00 144.00 182.00 219.00 C'Wealth Bk (a)... 75.60 110.16 144.45 177.93 D.S.H.... 43.92 55.51 67.10 78.69 Perth- S.G.I.O.... 90.83 122.43 151.83 181.23 R.A.C.... 74.55 101.50 126.80 152.10 Westsure... 93.74 123.98 154.22 184.46 C'Wealth Bk (a) brick... 78.75 110.25 141.75 173.25 C'Wealth Bk (a) other... 92.40 132.83 168.00 201.60 D.S.H.... 50.40 63.70 77.00 90.30 Hobart- T.G.I.O.... 77.00 97.00 117.00 137.00 New Zealand... 74.56 99.45 124.31 149.18 C'Wealth Bk (a) brick... 67.73 97.83 127.93 158.02 C'Wealth Bk (a) other... 86.00 124.70 162.86 199.41 D.S.H.... 36.00 45.50 55.00 64.50 Canberra- G.I.O. (b) brick... 36.38 51.36 66.34 81.37 G.I.O. (b) other... 57.78 82.39 107.00 131.61 N.R.M.A.... 62.78 88.46 114.14 139 82 N.R.M.A. (c)... 47.08 66.34 85.60 104.86 C'Wealth Bk (a)... 51.36 66.88 83.62 102.45 D.S.H.... 36.00 45.50 55.00 64.50 Senator GIETZELT —The list shows the remarkable difference in cost to the ex-service community. Senator MISSEN —My question is directed to the Minister representing the Prime Minister. I refer the Minister to my speech on the Senate adjournment of 13 March 1986 in which I drew attention to the gross discrepancy between the fine words of the Minister for Foreign Affairs, Mr Hayden, and the intimidatory actions of the Minister for Immigration and Ethnic Affairs, Mr Hurford, and his Department regarding their treatment of Sri Lankan Tamils seeking permanent residence in Australia. I ask, firstly, whether Senator Button recalls giving his undertaking to Sri Lankan Tamils, on behalf of the Prime Minister, in answer to my question of 5 December 1985, that `Temporary entrants to Australia who had fears about returning to Sri Lanka have been permitted to extend their entry permits and they will not be threatened with deportation'. I repeat the words `they will not be threatened with deportation'. Secondly, is the Minister aware of the gross intimidation, bluff and threats of deportation detailed in my speech and since made by the Department of Immigration and Ethnic Affairs in complete disregard of the Prime Minister's undertaking? Thirdly, has the Hawke Government so little self-respect that it relies on the subservient media not to disclose these allegations rather than to try to show some explanation for this record of cynical hypocrisy? Senator BUTTON —I do not recall the details of the answer that I gave to the honourable senator but, in terms of what he has put in his question, I recall an answer of that kind. I assume that that is correct. I go on to say that I have heard nothing about threats of deportation and the other matters about which Senator Missen complains-I use the word `complains' advisedly-in his question. I will endeavour to get a very early answer to the question he has raised. In terms of the Government's self-respect on the matter, that will be illustrated by how promptly I am able to obtain an answer for him. Senator MISSEN —I ask a supplementary question. Will the Minister show the Prime Minister the speech in which I detailed these complaints last Thursday? Senator BUTTON —I am not sure that that is the most effective way to get effective action on the problem that the honourable senator addressed. If I showed the Prime Minister every speech that alleged-- Senator Missen —Not every speech; that speech. Senator BUTTON —If I showed the Prime Minister every speech that alleged difficulties or maladministration in government, he would spend all of his time reading and would go blind for reasons other than those normally attributed to people. That would only make the situation worse. I will raise with the Prime Minister the point that Senator Missen raised and provide an early answer. Senator ZAKHAROV —My question is addressed to the Minister representing the Minister for Community Services. Has the Minister seen reports in the Melbourne Sun News-Pictorial of 15 March and today alleging that an aged persons' hostel in Victoria is denying its residents access to each other's rooms? If the allegations are correct, can the Government take any action to protect residents' basic rights? Senator RYAN —I am aware of the articles, referred to in Senator Zakharov's question, which allege that two residents of Euroaville, a hostel run by the Euroa Shire Council, had been prevented from visiting each other's rooms and sitting together for meals. I am advised by the Minister for Community Services that this practice is contrary to his Department's policies. Hostels are an accommodation option for the aged in which residents should be able to enjoy normal social relationships and activities. Residents should be able to receive in their own rooms at any reasonable time visitors both from within their hostel community and from the wider community. The Department's policy is that hostels should be homelike and that residents should have a high degree of privacy and independence in their daily activities. Officers of the Department are holding talks with the Euroa Shire Council, which is considering amending the hostel's rules so that residents can enjoy normal social rights, including privacy and access to each other's rooms. Senator WALTERS —Can the Leader of the Government in the Senate inform the House how much of taxpayers' funds has been spent by the Department of Social Security publicising the social security amnesty? How many overpaid recipients of government social security benefits have responded to the publicity campaign? What is the net saving to the Commonwealth as a result of the responses his Department has received? Is the Minister aware of any obvious cases of fraud? Does the Minister really expect the amnesty to be cost effective? Senator BUTTON —I do not know what attracted Senator Walters's ire towards me at this stage of questions on a Tuesday. As the questions should all be directed to the Minister for Social Security, whom I do not represent in this chamber, and as they are all appropriate matters to be placed on notice, I suggest that she do that. Senator REYNOLDS —Is the Minister Assisting the Prime Minister on the Status of Women aware that the Queensland, Tasmanian and Northern Territory governments have failed to implement women's policy through administrative and advisory structures as adopted in all other States for many years? In fact, Queensland seems to have more policies directed towards animals than women. How can the Federal Government's national agenda campaign assist these women whose governments continue to neglect women's needs in education, employment, health, housing, welfare and legal status? Senator RYAN —It is certainly true that because of the negligence of those non-Labor governments instanced in Senator Reynolds's question women in those States are not benefiting as much from the improved policies for women as many other women throughout Australia. For example, in the State of Queensland the only legislation that assists women who are discriminated against is the Commonwealth Sex Discrimination Act, but I am pleased to say that that Act is operative in Queensland and it is giving some assistance to women, although women who are employed, for example, by the Queensland State Government have no protection at all because it is necessary for the State Government to legislate in that area. Similarly, although we have established in Brisbane a women's information service to give better information to the women of Queensland about their entitlements under various Commonwealth programs, it is true to say that they are very much at a disadvantage compared with women in the Labor States. However, in order to provide further opportunities for Queensland women and women in the non-Labor States to have an input into Commonwealth Government policy we are planning a series of consultations throughout those States so that those women can participate in the formation of the national agenda for women, which will be a program for improving the status of women from now until the year 2000. It is without doubt the most ambitious program of consultations that any government has undertaken. I think it will establish very clear directions for our Government on the needs of Australian women as identified and articulated by them. We are determined that Queensland women and women in the other non-Labor States will not be excluded from this but that a high priority will be given to organising consultations with them and taking account of their views. One major consultation for women of the west in Queensland has already taken place in Mount Isa and I understand that it was extremely well attended. It was an extremely active conference where women from all kinds of areas-country areas, remote areas, towns-from different ethnic groups-- Senator Boswell —Organised by the Labor Party candidate. Senator RYAN —Senator Boswell seems to be making some sort of snide remark but I can assure him that women of Australia, regardless of their political affiliation or their affiliation with community organisations, have welcomed this opportunity to make input into Commonwealth Government policy. Some of the consultations in which I have been personally involved have been attended by women from Opposition parties and they are welcome to attend these meetings. We are not discriminatory in these matters; we are genuinely seeking the views of Australian women, who may participate in this exercise along with all other women. In answer to Senator Reynolds's question, I believe that the program of national consultations for the national agenda for the year 2000 will be a most welcome opportunity for Queensland women otherwise having enormous difficulties in making their voices heard to put items of concern to them on the national agenda. Senator GARETH EVANS —During Question Time Senator Puplick asked me a question about alleged incidents at Williamtown Royal Australian Air Force base. I have sought further information from the Minister for Defence and I am able to advise the honourable senator as follows: A Royal Australian Air Force internal disciplinary inquiry is currently under way. The RAAF has pointed out that the alleged incidents, to the extent that any such incidents may have occurred, were not carried out at the direction of, or with the knowledge of, RAAF officers. Apart from that it would be inappropriate to make further comment until that disciplinary process has been completed. Senator MACKLIN(Queensland) —by leave-I give notice that, on the next day of sitting, I shall move: That regulation 5 of the Student Assistance Regulations (Amendment), as contained in Statutory Rules 1985 No. 354 and made under the Student Assistance Act 1973, be disallowed. Senator WALTERS(Tasmania) —Mr President, I seek leave to make a personal explanation. The PRESIDENT —Is leave granted? There being no objection, leave is granted. Senator WALTERS —During Senator Walsh's personal abuse of Senator-elect Newman, I took a point of order which you no doubt correctly ruled was not a point of order. I would like to explain to the Senate the reason that inspired my anger. Senator Walsh, in his usual cowardly fashion, took the opportunity-- The PRESIDENT —Order! The honourable senator cannot use adjectives of that nature. I ask her to withdraw that remark. Senator WALTERS —I withdraw those words and just say `his usual fashion'. Senator Walsh took the opportunity of attacking a new senator before she has even entered this place. The attack was not on anything that the senator had done but was made just because she is a woman and is married to a former member of the House of Representatives. I believed that Senator Ryan, as the Minister who is supposed to be in charge of equal opportunity in this place, may have taken the Minister to task. However, as she obviously had very selective views in this area and chose not to do so, I took the opportunity of raising a point of order. I can assure Senator Walsh that when Senator Newman comes into this place tomorrow she will effectively deal with him. The PRESIDENT —Order! The honourable senator is no longer making a personal explanation. Senator COLLARD(Queensland-Leader of the National Party of Australia)(3.10) —I move: That the Senate take note of the paper. One of the first things that one notices in the beginning of the Australian National Gallery report is a reference to some of its exhibitions. I wish to put on record the fact that the Gallery, in putting together these exhibitions and in bringing in paintings and other items of note in the world in the visual arts scene, is opening up vast opportunities for the Australian public to partake in viewing the works of masters of the world. Page 9 of the report mentions the Great Impressionists exhibition. It also mentions the fact that 200,000 people saw that exhibition, and most of them were visitors to the national capital. Indeed, the report goes on and states that it is estimated that the exhibition contributed about $15m to Canberra's economy. I think the Gallery is to be commended for putting together these exhibitions. Currently, the Twentieth Century Masters exhibition is running until about 27 April and it will then move on to Queensland. The second point on which I commend the Gallery is that not only is it putting these exhibitions together but also it is making them available to galleries in other States. As I have indicated, the Twentieth Century Masters exhibition goes on to Queensland and I think the Great Impressionists exhibition went either to Sydney and/or to Melbourne. I think the Entombed Warriors exhibition also travelled this nation. I commend the Gallery for putting together these exhibitions, for making them available and for advertising them and letting them be seen by as wide a range of people as they can. In so doing, the Gallery is making itself out to be a truly national gallery. Senator COONEY(Victoria)(3.13) —Art is essential to the welfare of the community. A considerable amount of time is spent in the Parliament in economic debate. There is a perception that, if the economic mechanism is correctly structured and maintained, society will prosper and be happy. Clearly, this is not so. In the end it is the spirit, the aspirations and the determination of a community that count. Those elements are the product of culture, not of economics. A whole mathematics of economics can be created. An equation can be constructed showing that, if costs are lowered, wages are reduced, exports are increased and restraint is exercised, inevitably production will expand, the level of exports will rise and the balance of payments will adjust in our favour. In reality, the economic machine will falter unless the community has the will and the way to drive it as it should be driven. The quality of the will and the way in any community, in particular our community, is determined by the character of the community. That character, in turn, is determined by our culture. Anything that adds to the quality of our culture makes for the well-being of the community. A great painting, a great drawing and a great sculpture do that. The various galleries around Australia make them available, and the Australian National Gallery is an outstanding example of that. I do not want all this to be taken to mean that culture exists for the economy. The reverse is the reality. The economy has to be seen as the support for the culture within which we live and, hopefully, that culture will be based on high aspirations, benign intent and productive activity. Great art will encourage that. Pages 18 and 24 of the Australian National Gallery report refer to the purchase by the Gallery of both Australian and international art. Both are essential to this society. We are a nation in a world where internationalism is more and more a factor. We need to be conscious of what and where we are and what and where we may be hereafter. I note that much of the money used to purchase works has been raised by the Gallery itself. That should not lead the Government to give less than it otherwise would. The present exhibition at the Gallery is a great one, and it is a good thing that hereafter it will be going to Queensland. Senator JONES(Queensland)(3.15) —I will be brief, but wish to make one or two comments on the Australian National Gallery and its annual report. It is obvious from a perusal of the report that the standards within it are similar to the standards maintained by the Gallery itself. When one examines the report of the chairman and directors, it is clear that the National Gallery has become international. The Gallery emphasises Australia's position in the art world through exhibitions of world art and culture. The wealth of knowledge in the Gallery, its exhibitions and the way in which works of art are displayed to the public, as well as the talent of the Gallery staff in preparing exhibitions and placing them before the public, are unequalled in the world. Perhaps the Gallery itself and education centres should seek to extend what is happening in the art world. They should use the Gallery and its expertise and knowledge of art to train and develop younger members of the community. They should not only procure and exhibit their work but allow them to learn from the experience of the Gallery. Certainly the Canberra School of Art should use expertise and knowledge that is available at the Gallery to further extend the training of all those young people who study at the School of Art in Canberra. The school should seek to extend its courses to enable its students study the development of galleries throughout Australia. There is surely no better place available to young people for such study than the Australian National Gallery in Canberra. Question resolved in the affirmative. Senator ARCHER(Tasmania)(3.18) —I move: That the Senate take note of the paper. I wish to make a few comments on this report of the Anglo-Australian Telescope Board because of the organisation's significance and importance. It is now 10 years since the organisation was formed and 20 years since it was first discussed. The Anglo-Australian Telescope Agreement was signed in 1971 and the unit itself, a 3.9 metre telescope, was built at a cost of about $16m. The operation has been and still is funded jointly by Australia and the United Kingdom and at present costs each country about $1.8m a year to operate. The telescope is located at Siding Springs, which, until the last couple of months, may not have been heard of by many people. Siding Springs has a great advantage in that it is so located as to be virtually free of what the report terms light pollution. It is interesting to note that the report comments about this, saying: . . . the Board and the Australian National University are very pleased that an environmental study will be undertaken by the New South Wales Government to consider long term measures for protecting the very dark sky conditions at Siding Spring Observatory. It is important that protection measures be introduced before the problem of light pollution becomes a serious threat to the site. For the operation of a telescope such as this, which, of course, works primarily at night, it is a very important matter. The future of the telescope operation has been under some discussion. Astronomy, of course, is very much pure science and, as such, not many people involved in the monetarist situations which seem to pervade the world at present, in both Australia and the United Kingdom in this case, really understand the value and virtue of the science of astronomy and in turn, of course, the telescope. It looks to many people as though it is just an expense item. The Siding Springs organisation has done a lot of work in connection with the comet. I think it is in that regard that so many people have suddenly heard of this place called Siding Springs. The work that has been done there has been of a very high standard. It is an excellent operation and something of which we in Australia can be very proud, because it is producing results that are very useful all over the world. I need to say again how disappointed I am that, in connection with this, the Kuiper airborne astronomy observatory that was supposed to be fitting in with all this and operating out of Australia was forced to go to New Zealand when we could not even provide the resources to see that it was able to land at Richmond over the period of the watch. I hope that we will be able to rethink our attitude towards matters such as this and ensure that if we are going to play a part in the scientific world, we pull our weight and in future do not let ourselves be put down among the insignificant countries because of our refusal to participate in matters such as this. Senator VIGOR(South Australia)(3.23) —June 1985 marks 10 years of technical and scientific co-operation between the British and Australian governments on this project. I believe that we should be encouraging more co-operative projects of this nature. The benefits of co-operation can be seen in the shared cost of research, the shared know-how and the coverage which our scientists and British scientists can obtain in both the northern and the southern hemispheres. There is a net gain to scientists of both countries from the interaction on the different enterprises. We offer unique conditions, facing as we do the Milky Way, and Australia's scientists can gain enormously from the break from the isolation in which they normally have to work by having scientists coming into Australia to use facilities such as the Anglo Australian Telescope. We also have a severe lack of resources for investment in research, and we are not participants in an active space program such as those which have helped a number of astronomers in other countries. This means that Australia would suffer the loss of competent scientists in the field of astronomy to overseas projects if we did not have such exciting projects as the Anglo-Australian Telescope. As well as this, it gives a background for the testing and development of innovative new surveyance instrumentation. That is one of the areas in which we should develop closer interactions between our research establishments and our high technology industry. Australia is very vulnerable, in defence and trade, to the loss of top scientists and of technical experts. Projects such as this form a focus through which those people can congregate and do exciting work. Australia's vulnerability has several causes. We have a huge ocean border surrounding a continent which has only widely spaced centres of population. We have a very small population spread over the whole area. So effective defence and manufacture require automation and high technology. We are isolated from overseas suppliers and have very vulnerable transport links, so we need a high level of self-sufficiency in the manufacturing and maintenance of equipment, If we have more joint projects in which foreign countries can invest in Australian research, we can keep the high technology viable in Australia and develop it further. These factors combine to make Australia's defence and trade problems unique. The solution depends heavily on keeping projects such as the Anglo-Australian Telescope going. In particular, research projects such as the Anglo-Australian Telescope give Australian scientists contacts with the most advanced space and surveillance technologies. They also maintain in Australia a pool of world class scientists and technicians. The bringing together of previously separate techniques to solve problems in modern astronomy will, I trust, become a model for most research developments in pure science. Increasing specialisation is productive only for limited periods, but it is very important that our science and technology span broad areas. The greatest scientific advances come from laterally applying well developed techniques in new contexts. Innovative engineering and development programs in industry use multi-discipline groups for problem solving-to great effect. I commend the AAT project for its high level of innovation. It was the first large optical telescope to use computer control in all its routine functions. I am pleased to note that it is now concentrating on adopting standard interfaces and common software environments for all instrument control and data handling. It has also been involved in pioneering multiple optical fibre in measuring optical and spectrometric data from space. If we can mesh this with what is going on in our own Telecom Australia laboratories which have developed very efficient gallium fluoride fibres, we can gain enormous increases in efficiency and probe the universe even deeper. Similar innovative developments and the concentration of top astronomers from all over the world have made the Anglo-Australian Telescope a world class project. I commend the project and the report to the Senate. Question resolved in the affirmative. Senator FOREMAN(South Australia)(3.28) —I move: That the Senate take note of the paper. I take this opportunity to make a few remarks on the annual report of the Arbitration Inspectorate because of the importance of the report and the work behind it. The report details the work of the Arbitration Inspectorate in the financial year 1984-85 and lists areas of concern such as the number of award investigations carried out by the Inspectorate. At the heart of the report is the maintenance of Federal awards. At present, 1,676 awards are in force federally and, of an estimated 5.6 million wage and salary earners, some two million are presently covered by Federal awards. In my State of South Australia the percentage of wage and salary earners covered by Federal awards is 33.9 per cent, or slightly more than one-third. This percentage is smaller than the percentage of State awards, which for 1984-85 was 52.8 per cent of the work force. Yet the number of South Australians covered under Federal awards was significant and appeared to have been growing in 1984-85. Some 224 new Federal awards were sought. The vital task of the Inspectorate is to scrutinise the awards closely. Its job is to ascertain whether awards are maintained in all the relevant areas and to investigate complaints relating to employer non-compliance. The Opposition, of course, has a problem in this area of awards, according to its public pro- nouncements. It believes in flexibility-the flexibility to dissolve awards or for opting out so that legitimate wage justice can be white-anted. Australians from all walks of life and over many years have seen the necessity to have awards in place. In this sense a fair day's work results in a fair day's pay. Workers under the arbitrated award system receive commonality of pay and conditions and the strength and popularity of the arbitration system have resulted from general public acceptance and perception of the basic fairness of industrial awards. The Inspectorate was established in 1928 to ensure compliance with awards. The arbitration system goes back to 1904, or three years after Federation. Since this time the Inspectorate has been the instrument to enforce legitimate award entitlements for workers. In 1984-85 some 24,236 breaches of awards were reported, as compared with 24,021 cases in 1983-84. The enforcement of awards resulted in $3,721,578 being paid to employees and this shows an increase of over $209,275 over the previous year. The report, I am pleased to say, shows that the Inspectorate has obviously established a good working relationship with employers and employees alike. The overwhelming number of award violations by employers was rectified voluntarily. In fact, in 1984-85 3,830 employers agreed to rectify the matter before other machinery came into force. The machinery to enforce legitimate awards is and has been in place for many years. It is pleasing to note, though, that this machinery is becoming more effective. In 1984-85 17 employers were referred for prosecution and all prosecutions were upheld by the court. The actions involved some 123 breaches of awards. In the previous year the record was still a sound one but not quite as complete with 91 out of 94 breaches being legally rectified. One of the major functions of the Inspectorate is the provision of information. Many inquiries are made of the Inspectorate, of which the majority indicate no breaches of awards. I note in the report that in respect to award complaints and inquiries, 61 per cent of formal complaints were upheld in 1984-85, as opposed to 54 per cent in 1983-84. It is my view that it is important to have a well oiled piece of machinery to enforce legitimate wage and salary awards. The ACTING DEPUTY PRESIDENT(Senator Elstob) —Order! The honourable senator's time has expired. Question resolved in the affirmative. Message received from the House of Representatives acquainting the Senate that it had agreed to the amendment made by the Senate to the resolution agreed to by the Senate and the House of Representatives on 29 November 1985 and 13 November 1985 respectively, relating to the appointment of a Joint Select Committee on an Australia Card. Motion (by Senator Gareth Evans for Senator Gietzelt) agreed to: That, in accordance with section 5 of the Parliament Act 1974, the Senate approves the following proposal contained in the report of the Joint Standing Committee on the New Parliament House presented to the Senate on 12 March 1986, namely: The construction of carpark lighting at Section 21, Parkes, adjacent to the Administrative Building. Motion (by Senator Jones for Senator Tate) agreed to: That the time for presentation of the Report of the Select Committee on the Human Embryo Experimentation Bill 1985 be extended to 5 June 1986. Consideration resumed from 12 March. AUSTRALIAN BILL OF RIGHTS BILL 1985 Clause 8 (Australian Bill of Rights). Article 2 (Effect of Bill of Rights on existing rights and freedoms). The CHAIRMAN —The Committee is considering the Australian Bill of Rights Bill 1985 and it has agreed to take the articles in clause 8 separately. (Quorum formed) I will explain again to the Committee that the Committee is considering the Australian Bill of Rights Bill 1985 and it has agreed to take the articles in clause 8 separately. The question is: That Article 2, as amended, be agreed to. Senator Sir JOHN CARRICK(New South Wales)(3.41) —During the previous debate on Article 2, a number of honourable senators referred to the American Bill of Rights and saw in it a useful model for an Australian Bill of a similar nature. The fact is that those who have done so, in my view, have little or no knowledge of American history. To draw attention to the American Bill of Rights and see virtue in it is to fail to understand, for example, that under that Bill of Rights for centuries the American negro was not regarded as a human being and was not allowed the right to marry. The whole persecution and ill-treatment of negroes, blacks, happened under the American Bill of Rights. There was no recourse. I referred previously to two other matters. I referred to what people ought to know as the yellow dog contract which, under the Hoover regime, was an outrage. The contract was also called the iron clad contract. People who wanted jobs were forced to sign a contract saying that they would not join any association. This was under the Bill of Rights that is held up to us as a classic preservation. It gave no protection at all for blacks. We now see that it had no protection for those in the work force. I drew attention to another case. It was outstanding. From my memory, it happened in the early 1920s and was known as the Sacco and Vanzetti case. It concerned two illegal Italian aliens, Nicola Sacco and Bartolomeo Vanzetti, who were charged with murder of a pay master. Their case drew on, without ordinary recourse to habeas corpus, over many years. They were ultimately executed. The strong belief prevailed that it was not the test of their guilt as murderers which resulted in the execution but the fact that they were alleged to be anarchists and therefore should be punished. Individuals' freedoms were absolutely denied in that time. The Sacco and Vanzetti case became a cause celebre throughout the United States of America and is in most of the text books of political science relating to that time, and to the Hoover period. Those who understand the Roosevelt period of the New Deal could scarcely believe that there could be any protection in the Bill of Rights. I have reminded the Senate that President Roosevelt, who succeeded Hoover, had to change the whole of the Supreme Court Bench to get a new interpretation, so the yellow dog contract could be rejected. Those who understand the force of the irony of the situation know that he appointed as a chief justice, Mr Hugo Black, who turned out to be a member of the Ku Klux Klan. For those who admire the American Bill of Rights against that background I quote a very distinguished President of the United States of America, Woodrow Wilson. I quote his words about rights because they are fundamental. He said: Liberty has never come from the government. Liberty has always come from the subjects of it. The history of liberty is the history of residence. If Woodrow Wilson had believed that liberty came from the Bill of Rights why would he say that? He was the World War I President of the United States of America, who had behind him the whole of American history and the tremendous civil war in America. The fact is that, as President and knowing all those things, he said that liberty has never come from the government. That is the truth. Liberty has come from the community and is protected by the community. I do not criticise the United States of America. The 350 years of the history of the United States of America is the history of the emergence of freedom. But to go further, if people regard the American Bill of Rights as something that we should use as a model I simply say that under that Bill of Rights segregation occurred, not only prior to the civil war, not only before blacks had the right to citizenship, but also in world wars, when negroes were segregated in their battalions. There was a situation in which, although fighting racism, racism was entrenched. Fundamentally, I rose to continue the point that must be made in any discussion of whether there ought to be a Bill or Rights. Rights are not entrenched by a document. Rights are entrenched when a community cherishes liberty and is willing to fight to defend that liberty. Lenin, who knew something about rights, said: It is true that liberty is precious-so precious that it must be rationed. Who better than Nikolai Lenin would have understood the rationing of liberty? Of course, that is exactly what has happened in the USSR, where when liberty is written down, it is rationed. Again, the whole basis of this matter must be to look at why we want this Bill. It is no use looking at written documents. It has been said in the debate that socialist countries, Iron Curtain countries, have written bills of rights-but they have not conveyed any rights. What is important is whether in the community, the parliamentary system, the judicial system and the evolution of common law the general social and cultural values of the people are so entrenched that governments will not encroach on or take away from people more and more liberty. One of the great defenders and philosophers of liberty Salvador de Madariaga, a Spanish philo- sopher, in recent decades said: Liberty of thought means liberty to communicate one's thought. That means the absolute freedom to communicate one's thoughts. This Bill of Rights quaintly says that we are guaranteed freedom of thought. I would not have thought that in any document that emerged in Australia it would be thought necessary to write the principle of freedom of thought. What kind of a community envisages that people are not free to think as they like? One ought to have the true freedom to understand that one may have to observe relative values, judgments and truths in one's walk in life alongside others. But one is allowed to look in the wider sphere, even in the more anarchic sphere of freedom, in one's mind. One should be able to fly free in one's mind. There is no need in the world to write those absolutely unnecessary words into the document. The more one looks at a situation, particularly in the history of America, the more one comes to understand that nothing in the journey protected the people of America under the Bill of Rights. I remind the Senate that I commented very briefly upon the committee which was set up in the late 1960s by Lyndon Johnson to look into violence. The committee was asked to find out why violence and trouble had occurred amongst the blacks. The committee comprised eminent persons-members of Congress, heads of the police forces and others-and concluded that in fact Americans had created the situation by breaking up the tribal systems from Africa; by bringing people to America as slaves; by refusing even to let them establish the smallest unit of a tribe, a family, by denying them marriage; by urging them to breed so that they could get a capital gain; by separating them in the various plantations. All this took place under a Bill of Rights which was absolutely useless in that regard. Even after the Civil War, when a war had been fought to free the slaves and won by those from the north, the blacks were still under heavy penalty. It has been stated that the laws passed in America during that time helped to free the blacks. Those laws did not protect the blacks in any way; it was attitudes of mind. I referred to a particular zoological garden that was closed down because the law said that it had to be shared. I remember when there was a particular part for blacks and a particular part for whites in the buses in America. The law said that this was no longer to be the case so the whites did not ride on those buses but arranged their own transport. Nothing by way of law brought freedoms to the blacks in America. What happened was that gradually, over a period of decades, the American conscience was alerted. Gradually the truth emerged of what had happened-a white race impinging upon the blacks with slavery and then serfdom. Gradually the conscience built up to do something and that is precisely what happened. But certainly nowhere in that journey did the American Bill of Rights protect the blacks. Nowhere in the journey did the American Bill of Rights protect all of the people of America during the Great Depression of the 1930s. How was it that that Bill of Rights allowed the Supreme Court of America to declare as unconstitutional Roosevelt's National Labor Recovery Act? How was it that all that New Deal legislation-the Agricultural Adjustment Act, the NLRA and all those New Deal Acts-resisted by the Supreme Court and yet there was a Bill of Rights? They did not need to amend the Bill of Rights; they had to change their judiciary to get the National Labor Recovery Act and the New Deal legislation passed in America. So, fundamentally, do not let us use words simply to support an argument. There is no justification for saying that the American Bill of Rights has of itself ensured the freedom of the people of America. It certainly entrenched a series of things. The right to carry arms has been entrenched in the American Constitution. Whether that has been a good or a bad thing is for those to test. But, in the end, we come back to the simple question of what is liberty. George Bernard Shaw said: Liberty means responsibility; that is why men dread it. I conclude on this aspect by reminding the Senate that Woodrow Wilson, who knew the history of the Bill of Rights, had no reliance on government in the preservation of liberty and freedom. He saw liberty and freedom as a yeasting, a vital movement within the community itself and not something entrenched by words. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(4.55) —We are but 15 minutes back into this debate and already I feel a clammy, oppressive sense of deja vu. We have been here before and we have had this debate on the second reading. We have had a very substantial slab of this same debate under our earlier discussion of Article 2, and here we are having it again. Mr Chairman, I urge that, despite the ambit of Article 2 to which you drew our attention on a previous occasion, it might be helpful if we were to go on to some of the more specific matters in this Bill and abandon some of the more repetitive discussion that we now seem to be embarking on once again. With all the persistence of a rhetorically inclined terrier, we had Senator John Carrick come back to this issue of-- Senator Sir John Carrick —Only because you raised it. Senator GARETH EVANS —I was responding to a previous argument, and it seems that I need to do so once more, albeit very briefly. Senator Sir John Carrick argued that a Bill of Rights did nothing to protect the rights of Americans in general or blacks in particular until the 1950s. There is a lot to be said for the truth of that assertion. I think he and I agree-I have tried before to point out the area of our agreement-that a Bill of Rights by itself will not do the job of the protection of rights. One does need a spirit of the times abroad in a country that is sensitive to human rights issues and willing to support the kinds of guarantees contained in a formal document. There is no such spirit of the times abroad in the Union of Soviet Socialist Republics or many other countries that have bills of rights, whether of a declaratory or purportedly enforceable kind. It is the case that that spirit was quite conspicuously lacking in the United States of America for the first century and a half of the operation of the Bill of Rights. A whole series of doctrines, substantive due processes and the like did operate, arguably in a way that was no help at all to liberty as well as, of course, being of no help to blacks in the context of the equal protection law. But the point that I keep coming back to-it is a very important one-is that one can acknowledge all that and yet still argue very successfully for the utility of a Bill of Rights as an incentive for particular developments to take place faster, in perhaps different directions and with a greater effectiveness, than they otherwise would. In the 1950s it was very difficult to argue that the spirit of the times then existed for the kind of massive stride that was made by the United States Supreme Court in Brown v. Board of Education, the watershed case in 1954. The Supreme Court was ahead of the population then and it was the capacity of the National Association for the Advancement of Colored People and its predecessor organisations to use in a visionary way the terms of the Bill of Rights to wrench America out of the lethargy and apathy that had afflicted it in that area of enormous human rights damage being incurred to black American citizens. It was the Supreme Court that led the way. The Supreme Court for more than a generation has been leading the way in a number of human rights areas. It cannot be said that it is just limping along in the rear in the wake of developments that would have occurred anyway to the same extent and with the same effectiveness. It is a long argument and we have obviously canvassed both dimensions of it. But I draw attention once again to the difference between necessary and sufficient conditions. Nobody argues that a Bill of Rights by itself is a sufficient condition for the long protection of liberty. But a Bill of Rights properly drafted, sensitively drafted, can make a good society better. It can make a just society more just if it is structured in such a way and reflects the spirit of the age and the country in such a way that it simply gives added leverage and added force to currents of opinion broadly evident in that community as a whole. That remains the rationale of a Bill of Rights for Australia. I do not seek to put it on any higher or more magical ground than that. I do not seek to contest the force of much of what has been said by Senator Sir John Carrick in his commentary on the United States situation. But I do think that the difference in perspective between us is really very important and bears repetition on this occasion, even though I had hoped that we would be able to get back to the substance of the Bill rather more swiftly than seems likely to be the case. Senator HAINES(South Australia)(4.00) —I too would like to make some comments on what Senator Sir John Carrick had to say about the deficiencies with regard to the United States Bill of Rights, and I do so in the context of the comments made in the Senate Standing Committee on Constitutional and Legal Affairs Exposure Report: A Bill of Rights for Australia on whether or not Australia should have a Bill of Rights. As Senator Evans has quite rightly said, Senator Sir John Carrick is correct in his statement that the US Bill of Rights did not of itself protect the rights of Americans, either as a group or as sections of Americans. One of the reasons that it did not do that was that, as the Constitutional and Legal Affairs Committee pointed out, the American Bill of Rights is drafted in generally unqualified terms. Only a few rights are stated specifically and in limited terms in the American Bill of Rights and as a consequence the Bill and its contents are subject to interpretation by the courts. As most of us are aware, the American judicial system is a far more political one than the Australian judicial system. As the Committee reports: But it places on the judiciary a heavy burden of determining through interpretation and implication how rights may be qualified. The Committee regards this as unsatisfactory. It is also undesirable to have a text which, by making such limited reference to qualifications, implies that most rights and freedoms can be exercised even in totally irresponsible ways. The other problem that lies in the United States Bill of Rights approach is that it is entrenched in America's Constitution and can be amended only by a fairly tortuous process. That means that, again as Senator Sir John Carrick pointed out, it is not always appropriate to the conditions of the times. He mentioned the rights to bear arms, which was certainly appropriate when it was inserted-it was put there for a very good reason-but it has caused immense problems in the twentieth century. Senator Gareth Evans —But the courts have never interpreted that as a guarantee of the right to carry small arms and rifles, despite the NRA. That ought to be put on the record. Senator HAINES —Fair enough, but it is constantly waved about by various pressure groups in the American community. Senator Gareth Evans —But it has no legal force in this context. Senator HAINES —Certainly; nevertheless, it is used to whip up some sort of frenzy about their rights to get the sort of public opinion that Senator Sir John Carrick was talking about as being appropriate to establishing what rights are. I imagine this is one of the reasons why the Committee did not recommend a change to the Constitution with regard to this Bill of Rights. It said that it recognised that most rights and freedoms cannot exist in absolute or unqualified terms in the manner in which they apply in the United States Bill. It is recognised that there would be occasions when some individuals' rights or freedoms would have to be qualified so as to protect other individuals' rights and freedoms or even so as to protect some general public interest. It gave some greater approval to the Canadian Charter of Rights and Freedoms than it gave to the United States Bill of Rights, but in the long run it considered that: . . . if a Bill of Rights adapted to Australia's circumstances is contemplated it should be drafted in a way which vitalises Parliaments by keeping them aware of fundamental rights and freedoms and sensitive to the effect of their activities on such rights and freedoms and which requires elected Parliaments to take public responsibility for their adherence to or departure from any of the provisions of such a Bill of Rights. So the onus is on the parliaments to ensure, as they should, that people's rights are protected. There is a belief in the community that this is not necessary because our rights are already protected by everything from the Magna Carta through to common and statute law. The Committee's report ends that myth for all time by referring to a range of common or statute law provisions which the community generally believes exist and which in fact do not. These range from the principle of habeas corpus, which it deals with in paragraph 2.32, through to the fact that a recent South Australian Supreme Court decision determined that religious freedom does not exist in absolute terms, referring in a number of places to the Grace Bible Church v. Reedman case. It pointed out in paragraph 2.35 that in fact we do not have the right to privacy in this country as we believe we do, that we do not have under the Constitution an absolute right to vote, and that the absolute right to legal representation at a trial was overruled by the High Court of Australia decision in the McInnis case. It refers to that at some length in paragraph 2.27. Similarly, the right to own private property is limited under the Federal Constitution to the right to not have that property unjustly acquired, but certainly that does not extend to the States since no State constitution contains a similar clause. Interestingly, and rather ironically, the fact that this Bill itself does not extend to cover the States means that any amendment which does insert the right to own private property and not to have it unjustly acquired as a part of the Covenant will not achieve anything that is not already achieved by the Federal Constitution until and unless the Bill itself is extended to apply to the States. So certainly most of us would agree with Senator Sir John Carrick that the United States Bill of Rights is a very poor peg on which to hang the Australian Bill of Rights and, quite rightly, the Government chose not to go in that direction but instead to follow more closely the route taken by Canada when it chose to introduce its Charter of Rights and Freedoms. In doing so it has enshrined in a legislative process for the first time some of those principles that people have mistakenly believed were held under common law-the right to religious freedom, the right to privacy, the right to legal representation, the right to vote, the right to freedom of thought and conscience, including the right to hold opinions without interference, and a number of others. I would have thought that, in a democracy at least, Senator Sir John Carrick and others would have held dearly to that particular right since it would be appalling if at any stage we lived in a country where people's right to hold opinions, their right to freedom of thought and conscience, was derogated from in any way at all. The Government has attempted to avoid some of the worst deficiencies in the United States situation by adopting this method, by not attempting to enshrine such provisions in legislation, where change is extremely difficult, but to leave them in the hands of elected representatives by putting them in a Bill which can be adjusted as times change so that we do not run into the sort of situation that Senator Sir John Carrick raised where a right, such as the right to bear arms, which is appropriate at one time in a country's history, comes into play quite inappropriately at another period in that country's history. Senator WALTERS(Tasmania)(4.10) —Does Article 2, the right of freedom existing under any other law, apply to State public servants? Does the Bill, in total, apply to any State public servants? Senator Gareth Evans —I am sorry. Can you be more precise? What aspect are you suggesting is or is not, might or might not be, applicable to a public servant? I cannot quite work out what you are saying. Senator WALTERS —I am just asking a general question. Does this Bill apply to any State public servant? Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(4.11) —As I have said on numerous occasions, the Bill is not, in terms, applicable to the States. An alleged breach of one of these provisions by a State Government or a State public servant can, using the appropriate procedure in the Bill, be the subject of an investigatory exercise and reporting by the Human Rights and Equal Opportunity Commission. But there is no question of a State law authorising the behaviour of a State public servant pursuant to that law being overridden because the Bill is not applicable to the States in its present form. Senator WALTERS(Tasmania)(4.11) —With the sanction of the Minister, the actions of a State public servant can be investigated. Is that correct? Senator Gareth Evans —Yes. Senator WALTERS —I thank the Minister. Can the Minister tell me why the Attorney-General in the Age of 15 March, in answer to my letter in the Age of 8 March, stated very clearly that I was wrong? He also stated: The . . . Bill . . . does not empower the Commission to investigate the private actions of individuals. Nor can it investigate the actions of State public servants. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(4.12) —The private actions of individuals are clearly outside the scope of the Bill. The actions of State public servants can be the subject of investigation only to the extent that they are covered by the terms of the Bill, and that concerns behaviour pursuant to some official function or official statutory role. I would like to see the particular letter to which the honourable senator referred before this debate proceeds further. What has this to do with Article 2? We will have about three hours of debate to come on the enforcement provision. Senator WALTERS(Tasmania)(4.12) —I have now presented the Minister with the letter to which I referred. Can he verify his answer to my question? Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(4.13) —Obviously I will need to take up with the Attorney-General what was intended by that article and whether it represents an accurate position of what he may have signed. Senator WALTERS(Tasmania)(4.13) —The article containing the letter of the Attorney-General to the newspaper is in front of the Minister. Does the Minister really need it interpreted? Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(4.14) —Many things appear in newspapers which do require subsequent checking. I will be happy to do that. Mr Temporary Chairman, this discussion has nothing whatever to do with the clause before us. This debate is enough of a shambles already, with honourable senators using every clause as a vehicle on which to hang every private obsession they wish to pursue. Can we have some discipline back in the debate, particularly so far as Senator Walters is concerned? I am perfectly happy to deal with that point or any other point she raises at the appropriate time but it is a difficult problem of debate management if one is able to leap in and out of the fray with things that have nothing to do with the subject matter under discussion. Senator DURACK(Western Australia (4.15) —I am forced to my feet by Senator Evans's outburst. The fact of the matter is that the Government, under the responsibility of the Attorney-General, has introduced this legislation. We are being given all sorts of advice about what it does and does not mean and about what it does and does not do. We may be talking about Article 2 but this has been one of the most difficult clauses so far because of the debate that has ensued. Senator Walters has raised the most extraordinary statement made by the Attorney-General about what the effect of this Bill will be. The Attorney-General's understanding of this Bill is totally wrong, judging from the letter of 15 March that he wrote to the Age. Senator Walters is entitled to raise this matter because it goes to the very heart of the Government's and the Attorney-General's understanding of their legislation. Senator Evans has already indicated, quite clearly, that this legislation can apply to State public servants. However the Attorney-General in his letter states: Nor can it- that is, the Human Rights Commission- investigate the actions of state public servants. That is a totally wrong statement. He continued: Except for the provisions on electoral laws, the Government's Bill of Rights will apply only to Commonwealth Government agencies not the states. That is a second totally false statement. He does not know what he is talking about. The Government, through the Minister representing the Attorney-General in this place, is telling us what this legislation is supposed to do and not do and what it is supposed to mean; yet the Attorney-General is making completely wrong statements. This matter is highly relevant to the extent to which we can seriously consider anything that the Government or its Ministers are saying in relation to this measure. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(4.16) —I think confusion has probably crept in because certain capacities are available to the Human Rights and Equal Opportunity Commission under its own motion; certain other capacities are available to it only with the consent and authorisation of the Minister, that is, the Attorney-General. Also, certain capacities and powers are available to the Human Rights and Equal Opportunity Commission under its own Bill. Certain additional capacities and powers of investigation are vested in it under the Australian Bill of Rights Bill. It may well be that some confusion has crept in somewhere along the line because someone has written a sentence, perhaps in the original draft, in the context of the Human Rights and Equal Opportunity Commission Bill powers but not in the context of the ABR. It may be that the saga of Shirley Citizen, Ann Kafoops or Betty Bureaucrat or whoever was the product of Senator Walters's plagiarised letter and the context of that excursion into which Mr Lionel Bowen replied, were in relation to the powers of HREOC pursuant to the HREOC Bill. I am happy to check out the circumstances in which the letter was written. That is why I say it is not screamingly evident that there has been any mis-statement. It all depends on the particular context one is talking about, which piece of legislation one is talking about and whether one is talking about the HREOC powers by themselves or the HREOC powers with the direction of the Minister. That is the matter that needs to be resolved. I repeat that, whatever the intrinsic fascination of this discussion might be for the Opposition, it is out of order in the context of Article 2. Mr Temporary Chairman, I ask you to rule accordingly, otherwise this debate will ramble and sprawl all over the place and we will never get the key issues resolved. The TEMPORARY CHAIRMAN(Senator Elstob) —Article 2 is somewhat all-embracing. Perhaps it may be more beneficial if what Senator Walters raised-- Senator Sir John Carrick —Mr Temporary Chairman, I put it to you that on your own wording Article 2 is all-embracing and therefore there has been, and rightly so, a general debate. What Senator Walters is arguing is pertinent. After all the Attorney-General saw fit to contradict publicly something that Senator Walters had asserted. She has a right and it seems to me that under this umbrella Article that should be acceded to. She should be given that chance. The TEMPORARY CHAIRMAN —I will not rule at this time. As I have said, the matter is all-embracing and it may be better raised when we are debating the enforcement provisions. Nevertheless, I will hear further argument. Senator WALTERS(Tasmania)(4.21) —If the Minister reads the letter he will see that the Attorney-General quoted the section of the letter that I wrote and the Minister is commenting on. So there can be no confusion at all by the Attorney-General or by me because he quoted that part of the letter. I said `and a citizen, perhaps a junior State public servant'. I believe that, before we go any further in the debate on this Bill, it is very necessary for us to know whether the Attorney-General understands his own legislation. I think it is also very applicable to ask the Minister handling this legislation: When he says that it does not apply to an individual citizen, would this scenario work? If the Minister listens, I will put the scenario to him. If a government paper has been leaked to a journalist and the journalist publishes that story-- Senator Gareth Evans —Mr Temporary Chairman, on a point of order, I insist that you rule appropriately. Senator WALTERS —You cannot insist. Senator Gareth Evans —Mr Temporary Chairman, I put the point very strongly to you that this series of matters that is being raised has regard to the enforcement of provisions of the Bill. Whatever else these matters have to do with-I am perfectly happy to answer questions on them in whatever detail is necessary when we get to them-they have nothing whatsoever to do with Article 2. This debate will be turned into a charade as long as it is possible for these points to be raised and reraised in the circumstances that I have mentioned. Senator WALTERS —The question I am asking now is about existing rights. Would the Minister answer the question I am about to ask? A government document has been leaked to a journalist and that journalist makes a story of it. Citizens say that their privacy and their rights have been abused under this Bill. Is it a fact that that journalist and the government employee would be brought before the Commission? In other words, would that journalist-not a Commonwealth public servant, a State public servant or their agent-be brought before the Commission to answer the allegations? Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(4.23) —I have no intention whatsoever of addressing that question because it is not germane to Article 2. Senator Walters —I really wonder what the Minister is trying to hide. Senator GARETH EVANS —Mr Temporary Chairman, I would appreciate the Chair ruling accordingly. The TEMPORARY CHAIRMAN —I have been asked for a ruling. It is true that Article 2 is very wide. I rule now that the matter that is being addressed would be better addressed under the provisions-- Senator Walters —Mr Temporary Chairman, I am speaking about existing rights. I am talking about the existing rights of a journalist at this moment. The existing rights of a journalist at this moment are that if he receives a government document leaked to him he is entitled to print a story. The TEMPORARY CHAIRMAN —Order! I rule that the question Senator Walters is raising would be better raised under Part V of the Bill, which deals with the functions of the Human Rights and Equal Opportunity Commission. Senator DURACK(Western Australia)(4.25) —When we were debating this clause a few days ago-I refer to last Wednesday-Senator Vigor moved an amendment on behalf of the Australian Democrats. His amendment was to leave out Article 2 and to insert in its place the following Article: Nothing in this Bill of Rights shall be taken to diminish, derogate from or prevent the exercise of any right existing apart from this Bill of Rights. When Senator Vigor spoke to this amendment he inspired what I think was a very interesting and important debate about the very nature of the Bill of Rights. He was at great pains to point out in his speech that he was anxious to ensure that we should not be doing anything to the rights that may exist apart from the rights in this Bill of Rights. He was not so much saying that these rights should be entrenched but that this Bill of Rights should not in any way be meant to take anything away from those rights, freedoms and so on that exist quite apart from the Bill of Rights. Senator Vigor went to the heart of the question of why we should have a Bill of Rights at all and his amendment and his speech emphasised very clearly that we have acquired in this country a whole host of rights and freedoms that have not been handed down to us by governments, parliaments, or indeed by courts, but have emerged from the life of the community over a long period. It may well be that Senator Vigor's amendment was not felicitously or clearly enough expressed. I think he was unfortunately diverted by the Minister representing the Attorney-General into putting forward another form of amendment. The Minister persuaded him to add the words `convention or custom' after the words `any other law' in Article 2. I think that was the actual amendment that Senator Vigor moved and which the Committee agreed to. But Senator Vigor obviously kept open a more fundamental amendment than that which was much more in line with his original amendment which, incidentally, he put forward on behalf of the Democrats. The more debate that took place on that amendment and the more thought that we were able to give it, the clearer it seemed to me that Senator Vigor was seeking to make a more important point. He was taken up on this point by Senator Harradine. Senator Harradine, when speaking in the Committee debate, said that he did not see much point in adding the words `convention or custom' and I think I would agree with that. He went on to say: If one were fair dinkum about it one would have taken out the words `by reason only that the right or freedom is not set in this Bill' and would have put in the legislation words to this effect: Senator Harradine suggested that Article 2 would then state: A right or freedom existing under or recognised by any other law, convention or custom shall not be taken to have been diminished or derogated from by this Bill of Rights. Senator Vigor said, and I quote from page 911 of Hansard: I am willing to support your amendment. Unfortunately, debate proceeded on other matters, and before Senator Vigor could give weight to what he had said and indicate his willingness to support this amendment, we ran out of time and the Senate adjourned. Nothing more was able to be done. However, Senator Vigor put forward an amendment that provoked considerable debate on Article 2. He does not seem to be here today, which surprises me because it is his amendment that we are still considering. It seems to me that it would give far more effect to a lot of views expressed in this Committee if the words `reason only that the right or freedom is not set out in' were deleted from Article 2. The Bill would then read in the way in which Senator Harradine suggested would be appropriate, and in light of the views expressed in Committee and the view Senator Vigor said he would be willing to support. I do not know why Senator Vigor is not here now to debate this matter, which is of great significance to the whole Bill, but I do not think we should leave consideration of Article 2 without resolving this question. In the absence of Senator Vigor, I move: Page 8, lines 23 and 24, leave out `reason only that the right or freedom is not set out in'. Article 2 would then read: A right or freedom existing under, or recognised by, any other law by convention or custom shall not be taken to have been diminished or derogated from this Bill of Rights. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(4.32) — The amendment is not acceptable, for the reasons that were fully explained by me when the matter was debated on 12 March. I believe that Senator Vigor has now fully appreciated the reasons I advanced on that occasion and is not present in the chamber because he sees the force of the argument. No doubt he can speak for himself if he wants to, but I do not think Senator Durack's exercise in pointing to alleged inconsistencies in approach stands up for a moment. There is a strong and rational argument for not supporting Senator Durack's amendment. In short, it is once again as follows. The difficulty about the language of Article 2, if left in the form in which Senator Durack proposes, is that it would have the effect of preserving all existing rights, including those that are actually addressed as to their subject matter by the present Bill of Rights. If the language is left as it is, the only rights which are clearly left standing are those which are not addressed in the Bill of Rights. That is an important difference for the following reason-and I give again the illustration I gave before as the best way of making the point. Let us take, for example, the rights of criminal suspects. At common law we have a package of protections-rather ill-expressed protections known as the judges rules-which go some of the distance down the track of the articles in the Bill of Rights dealing with suspects' rights but by no means all the way. They amount to a lesser protection than the protections contained in the Bill of Rights. Accordingly, they have lesser obligations and lesser duties attached correlatively to them than do the rights contained in the Bill of Rights. If Senator Durack's amendment is passed, not only the greater protections contained in the Bill of Rights will be left standing, but also the lesser protections that exist at common law; not only will the greater obligations in the Bill of Rights be left standing, but the lesser obligations of policemen under common law will also be left standing. If Senator Durack's amendment is passed, the reality is that the lesser protections, lesser rights and lesser obligations will all remain on foot, and with them the prospect of not only considerable confusion for the courts in working out which right is to prevail, the greater or the lesser, but also a real prospect of only the lesser rights and the lesser obligations prevailing at the end of the day. That is the technical reason, and essentially it is a technical point that I am making, for wanting the language of Article 2 to remain expressed in its present form. I remind the Committee that it is as follows: A right or freedom existing under, or recognised by, any other law convention or custom shall not be taken to have been diminished or derogated from by reason only that the right or freedom is not set out in this Bill of Rights. That last part of the clause is very important to maintain the principle that the greater protection, the greater right in this provision, subsumes the lesser. The point that Senator Vigor was concerned to make in his initial contribution to this debate about the need for rights to be protected not only insofar as they involved existing laws and regulations but also insofar as they involved claims of rights under international conventions and so on, as I understood it, was the main point of his original amendment. That point had been accommodated by the terms of the amendment we have already passed. I commend the Article in its present form and believe that there are very strong reasons for not going down the track on which Senator Durack has now embarked. Amendment negatived. Article, as amended, agreed to. Article 3 (Permissible limitations). Senator Sir JOHN CARRICK(New South Wales)(4.38) —Article 3 raises grave questions as to the constitutionality of the whole legislation. Indeed the Law Council of Australia had recommended that for a variety of reasons Article 3 (1) be deleted. To understand this it is necessary to point out that the Government has said that the Australian Bill of Rights Bill is modelled on the International Covenant on Civil and Political Rights, but in fact it wanders from that Covenant in many respects. The departure from the terms of the Covenant raises questions as to the constitutional validity of the Bill of Rights itself. The Covenant provides throughout its articles quite a number of qualifications; the Bill that is before the Committee does not recognise quite a number of them. As a result, in relation to Article 3 of the Australian Bill of Rights, the Law Council of Australia describes two hurdles which must be satisfied, in its words, if a limitation on a right or freedom set out in the Bill is to be permissible. I quote from the Law Council of Australia: By means of Article 3.2 the Australian Bill of Rights incorporates by reference the limitations and qualifications contained in the Covenant. This is not the most satisfactory method of dealing with the question, because it does not specify which of the relevant articles should be qualified, nor in what way they should be qualified. In the explanatory memorandum it is explained that these qualifications have not been reproduced because of the perceived need `to produce an inspirational charter of rights in a simple declaratory style'. The Law Council goes on: The Law Council does not support the use of a simple declaratory style if it would lead to uncertainty. It goes on to say: Further and more importantly, Article 3 (1) adds another hurdle which has no counterpart on the covenant. Apart from any constitutional question which might arise from the addition of Article 3 (1), Article 3 (1) creates a test for permissible limitation which is extraordinarily difficult to prove. A limitation will be permitted only if it `can be demonstrably justified in a free and democratic society'. This criterion is extraordinarily uncertain. What is a democratic society? By what criterion does one judge whether a society is free and democratic? The burden of proving that the particular law is `demonstrably justified' suggests that it must be patently clear. Is it required to be so certain as to admit of no qualification? That is the end of the quotation from the Law Council of Australia. If I may say so, that is a pretty persuasive argument. Senator Gareth Evans —It is persuasive if you have no legal imagination whatsoever. Senator Sir JOHN CARRICK —The Minister will get his chance to reply. This is a body of law. It is true that it is the only one in step in the regiment. That is not unusual. This is a body which represents 20,000 lawyers. I know that a narcissus complex can override that, but I think it is worth considering that what the Law Council of Australia says is relevant to this may bear some relevance, even though we have the arrogance of expression already today from the Minister. I draw the Committee's attention to, and quote from, Article 3 (1). This article ought to be the haven for lawyers for generations to come. It says: The rights and freedoms set out in this Bill of Rights are subject only to such reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society. Is not the Law Council of Australia right to ask what these words can mean-these declaratory and very imprecise words? What is `a free and democratic society'? How can one argue what that means? Canada could say that it is a free and democratic society; the United States of America would say so; Australia would, and the United Kingdom would, also-but all within their own boundaries would have different meanings and different nuances regarding freedoms. So, quite rightly, the Law Council of Australia says that so imprecise are these terms that the article ought to be looked at in terms of deletion. But the Law Council goes on to get to questions of the onus of proof. It says: The addition of this second hurdle goes beyond the Covenant and may require a person seeking to reply on a limitation or qualification permitted by the Covenant to discharge this uncertain and perhaps shifting onus of proof. For example, laws of libel which qualify the freedom of opinion in speech protected by Articles 7 and 8 of the Australian Bill of Rights are recognised in Article 19 (3) of the Covenant. However, if the laws of libel are challenged as being contrary to Articles 7 and 8, a person seeking to rely on them will have to be able to discharge the onus of proof in Article 3 (1). The difficulty of doing so is illustrated by the inability of the Standing Committee of Attorneys-General to agree and adopt the Australian Law Reform Commission's report proposing reforms to the laws of defamation. I pause there. If this is so, how unreal is Article 3 (1)? The Law Council of Australia goes on: The libel laws of the Australian Capital Territory are subject to this Bill and the laws of the Northern Territory and the States may also be affected if the operation of those laws is investigated by the Commission. Article 22 of the Australian Bill of Rights provides another example. Laws enabling courts to order Penalties of imprisonment with hard labour and community work orders are recognised as appropriate limitations on the right not to be held in slavery for servitude contained in Article 8 of the Covenant, but if a challenge to such laws is made in reliance on Article 22 of the Australian Bill of Rights, the person seeking to answer the challenge will have to satisfy Article 3 (1) in addition to relying on qualifications contained in Article 8 of the Covenant. A consideration of the qualifications to other Articles in the Covenant will reveal further illustration of the same difficulty. The Law Council of Australia submits that for these reasons and because it is such a vague and uncertain criterion, Article 3 (1) should be deleted. Here is a clear statement by the main spokesman body for the legal profession of Australia, saying that this clause, the key test clause of the whole of this Bill, ought to be deleted. Senator Harradine —It provides a reverse onus of proof. Senator Sir JOHN CARRICK —Senator Harradine says that it provides a reverse onus of proof. That is absolutely true, and that is what the Law Council of Australia has said, and it gets right to the very heart of the problems of the laws of defamation and libel in this matter. We have this extraordinary situation-and I have raised this before in the Senate-in which the Government comes before us and says `Here is a Bill which is based on an international covenant' and then in fact brings in a Bill which uses the Covenant when that suits it and does not use that when that does not suit it. We pointed out in respect of the previous article that the Government puts in those parts of the Covenant that suit the Government; it leaves out those that do not. Above everything, the Government leaves out qualifications that the Covenant makes. The Law Council of Australia goes right to the heart of this matter, when it comes to that, and says, because of this: This departure from the terms of the Covenant raises questions as to the constitutional validity of the Australian Bill of Rights Bill. Here is an extraordinary situation. Clause 2 of Article 3 says: A right or freedom set out in this Bill of Rights shall not be limited by any law to any greater extent than is permitted by the International Covenant on Civil and Political Rights. There is a direct reference to the Covenant, although the Law Council of Australia finds some disability in its presentation in this way. But the Article says that there cannot be any limit other than those limits put on by the Covenant. Senator Harradine —Well, any restrictions. They can have extensions. Senator Sir JOHN CARRICK —Any restrictions, yes. The fact of the matter is we then have this extraordinary Article 3 (1) and we are asked in this clause to say that rights and freedoms are subject, first of all, only to reasonable limitations. What are reasonable limitations? Here is a Bill of Rights that is supposed to be precise. Everybody in Australia is supposed to know where their rights and freedoms stand. It ought to be designed precisely, because it is very precious. Does anyone in Australia, any court of law, understand what the phrase `reasonable limitations' means, described by law? The situation will be that the courts will interpret and make decisions on this, decisions which are basically political decisions, decisions which are the decisions of the Parliament and ought not to be the decisions of the court. We shall have a situation here of having the same very bad journey that happened in the United States Supreme Court, where case after case of interpretation was overthrown by another interpretation because of a change in the judiciary, because some government had changed the judiciary, and different results came about. I ask again: What does the Senate understand to be `reasonable limitations prescribed by law'? What do the Senate and the Australian people understand as the meaning of the words `demonstrably justified in a free and democratic society'? What can that possibly mean? The Government ought not to bring to the people of Australia a Bill of Rights with uncertain meaning in it. As we are told by the Minister, the whole aim of the Bill is to prescribe people's rights so that everyone will know the rights they have, so that they will have no doubt at all about the width of their freedoms-- Senator Sheil —It proscribes. Senator Sir JOHN CARRICK —Indeed, this written Bill fossilises rights and by doing so, it limits them. As we have been reminded, it also does worse. It decides what rights it will put in and what rights it will leave out. It makes the value judgment that the rights it leaves out really do not matter, although the Government says in a catch-phrase: `We have not forgotten those rights; they are still there'. The Bill leaves out some of the most valuable rights that there are. Having fossilised a few rights, particularly those that suit socialist and communist governments on the international scene, the Bill uses extravagant and declaratory phrases. It is a travesty of justice to inflict upon the Australian people a form of legislation which uses words which have no clear meaning at all and which force people who want to define where they stand to spend thousands and thousands of dollars going to the courts to litigate to determine their freedom. What kind of country is it whose socialist government invents a Bill which says: `If you want to find your freedoms, litigate them'? I suppose that one would expect that from a socialist government, which thereby creates a government industry. The fact is that Article 3 (1) renders the whole Bill ineffective because it cannot be precise in what it means. Because it goes enormously wider than Article 3 (2) it almost certainly, in the eyes of the lawyers of this land, renders the Bill unconstitutional. I suppose that the majority of Australian people would devoutly hope that it does. How can one have, on the one hand, Article 3 (2) saying `here are the rights under the Covenant' and, on the other, Article 3 (1) saying `I want to remind you that you may fly as high and wide as you can, subject only to such reasonable limitations demonstrably justified in a free and democratic society'. The CHAIRMAN —Order! The honourable senator's time has expired. Senator HARRADINE(Tasmania)(4.54) —I would be most interested to hear the comments of Senator Gareth Evans in respect of those questions. Some of them were the questions I was going to ask. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(4.55) —I would have thought that Senator Harradine was perfectly well equipped to give us the first of his 15-minute bursts on the subject without a preliminary springboard from me. However, let me at least go to some of the questions that have been raised so far and other points I can no doubt pick up in the course of debate. It is the case that in many ways Article 3 (1) is probably the most controversial Article in the Bill of Rights. That was the claim I was originally prepared to make, although maybe I will have to adjust it in the light of the three or four hours we seem to have taken on Article 2 so far. Article 3 (1) uses unusual language and an unusual drafting style and, as such, has attracted a degree of resistance from a number of quarters of a fairly predictable kind. However, I make the point right at the outset in passing that the criticism of the Law Council of Australia of this clause was not quite the root and branch comprehensive analysis that I had rather been led to expect from Senator Sir John Carrick's contribution-of which there were really only two or three sentences buried in the text-raising the point rather than coming out with a great deal of virility in support of a different formulation. Let me explain the rationale for Article 3 in its present form. In order to achieve a Bill of Rights drafted in relatively simple terms that was readily separable from the rest of the Act in which it was contained-that is to say, a group of articles-the drafting device of having one general limitation provision was adopted in preference to specific limitations being set out in the individual articles. Article 3 (1) is that general limitation provision. The Attorney-General (Mr Lionel Bowen) dealt with this matter in his second reading speech, in language that I think bears repetition, when he said: The desire to have in Australia a broadly worded inspirational charter led to the inclusion in this Bill of a general test of permissible limitations on rights. By Article 3 the rights and freedoms in the Bill of Rights are `subject only to such reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society'. In addition, they shall not be limited to an extent greater than that permitted by the relevant Covenant provisions. This approach, which is similar to the one adopted in the 1982 Canadian Charter of Rights and Freedoms, will allow all reasonable limits necessary in the interests of the community generally and of other individuals. The approach also allows some flexibility and adjustment to current community standards in the limitations which should be permitted in relation to any particular rights. The terminology of Article 3 (1) has been adopted, as I have just indicated, from the Canadian Charter of Rights and Freedoms, section 1 of which is in more or less identical terms. I also indicate that it bears a family resemblance to a number of clauses of the European Convention which talk in terms of `such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety' and various other values which are there set out. It also bears a family resemblance to clauses, as I recall them, in a number of Bills of Rights-I think of Nigeria in the first instance-which were drafted in association with the British Foreign Office during the stage of Constitution making in the 1960s and subsequently. So the language of this Article is by no means the product of invention by the draftsmen. It has considerable pedigree. Article 3 (1) has been criticised for introducing a considerable uncertainty into the operation of the Bill of Rights. Senator Sir John Carrick was keen to make that point, the corollary of which is that it places too much power, I suppose the argument goes, in the hands of the judiciary. The Senate Standing Committee for the Scrutiny of Bills made criticisms of this kind in pages 6 to 8 of its Alert Digest No. 12 of 1985. However, several points can be made in response. I make the point right at the outset that the criticisms by the Scrutiny of Bills Committee were very effectively countered, I believe, by the Senate Standing Committee on Constitutional and Legal Affairs which concluded in its consideration of this general issue in paragraph 3.55: . . . the appropriate solution for an Australian Bill of Rights is to deal with derogation expressly in one discrete section . . . It further concluded in paragraph 3.57: . . . wording similar to that of Section 1 of the Canadian Charter of Rights and Freedoms is appropriate. In respect of the criticism of uncertainty, I think there are two particular points that are worth making. The first point is that in the vast majority of cases what is a reasonable limitation prescribed by law, demonstrably justifiable in a free and democratic society, will be readily ascertainable from the nature of the limitations permitted by the Covenant itself. Article 3 (2) directs attention, of course, quite explicitly back to the language of the Covenant. It will be also ascertainable from the existing case law in Canada, which is already developing quite rapidly, not yet much at the Supreme Court level but certainly at a number of provincial and regional courts-I will be happy to give some illustrations of how that has developed in the context of obscenity law in Canada if that point is raised, as I suspect it might be, in the course of this debate-- Senator Harradine —I am already on top of that. Senator GARETH EVANS —I simply make the point in general terms that the Canadian- Senator Harradine —I will take it up; don't you worry about that. Senator GARETH EVANS —If Senator Harradine takes it up I will deal with it, but let me just make the point in general terms at the moment that the Canadian courts which have so far dealt with issues of that kind, admittedly at a lower court level only so far, have had no difficulty whatsoever in applying the Canadian equivalent of this language in order to uphold the validity of censorship laws of a kind which there would be general community acceptance here in Australia ought to be upheld. Senator Harradine —That is not true, you know. Senator GARETH EVANS —We will deal with that when we get to it. Maybe Senator Harradine can make that one of his contributions to the debate if he is looking for a peg on which to hang it. Another point that I would make in response to the uncertainty criticism is that there will be, of course, at the margin difficult cases. In an instrument such as the Bill of Rights, there will be cases for which the Parliament could not adequately provide in advance and the application of the law in such cases must be left to the courts. That however, is the traditional role of a judiciary and there is no reason to doubt its ability to fulfil it in respect of the Bill of Rights. The notion that the courts are going to have a peculiar difficulty with this language in Article 3 is one, I think, that can be very much overstated. I had the pleasure of a conversation, when in Canada a few weeks ago, with the Chief Justice of the Canadian Supreme Court, His Honour Sir Brian Dickson, and he made the point in response to my direct querying on this issue that he did not think this language would generate great difficulty or great uncertainty and that there had been no particular anxiety expressed about it within the legal profession and within the judicial system to date. He envisaged a number of cases coming forward in which the dimensions of the concept would be tested, but in general he indicated an active willingness to get on with the job and by no means any of the kind of reluctance that one might have expected had one taken literally the approach of Senator Sir John Carrick and those who think like him. As to the criticism, to the extent that it is made, that legislative power is being handed to the judiciary-the corollary or extension, as I said, of the uncertainty argument-the Parliament is, in the Bill of Rights, spelling out the fundamental principles it wants applied. It is, in Article 3, indicating the limits in which the courts must work in applying those fundamental principles in particular cases. Again there is a body of international jurisprudence to guide the courts-a body of jurisprudence that the drafters have very much taken into account in the language used. Accordingly, the courts are not being asked to make law but simply to apply it. That is their traditional role. In addition, of course, Parliament will retain the ability to modify the Bill if unanticipated interpretations cause problems. That remains, again, one of the attractions of the legislative Bill of Rights in the first instance rather than an entrenched constitutional one until everyone gets an opportunity to work with these concepts to let them evolve and develop. The remaining point that was made by Senator Sir John Carrick was about the constitutional validity of this particular drafting approach that has been adopted. As to that, I simply refer first to Article 3 (2), which does make it clear that any derogations from the basic guarantees in the Bill of Rights cannot be greater than the permissible derogations that are attached to most of the individual right stating clauses in the Covenant itself. That is a clear direction not to exceed the permissible boundaries of the limitations on rights which are contained in the Covenant and as such establishes a clear nexus between the statement of rights in the Bill of Rights before us now and the permissible restrictions on those rights as set out in the Covenant. It is the case that it would be possible for rights to be restricted to a less extensive degree in some instances than is permitted by the Covenant. To the extent that the boundary line is drawn around the outer perimeter of the Melbourne Cricket Ground, it would be permissible for a court applying the rights and freedoms of protections in this particular Bill, in order to continue the metaphor, to draw the boundary within which it was prepared to allow limitations somewhere around the half-forward line, I suppose, rather than the outer boundary line. Senator Harradine —Like ignoring public health and public morals, as you have done. Senator GARETH EVANS —One can put it crudely in those terms-by ignoring public health or public morals. It would not be possible for the court to ignore those considerations entirely in an argument adduced by one or other of the parties to litigation. The concept is, to quote Article 3, `reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society'. To the extent that health and morals considerations clearly get caught up in that kind of language, it would not be appropriate for a court to ignore those considerations entirely. Let me give an illustration of something that I think the court could ignore entirely in terms of the permissible limitations set out in the Bill, and that is the French translation of the expression public order, namely ordre public. The point about ordre public in its French translation and the reason why it appears in the Covenant in French as well as in its English version of public order is that ordre public is an enormously extensive concept which is very difficult, I am told, to translate literally into English. It involves some concept of the public weal-to refer to our earlier debate, what is permissible consistently with the spirit of the society in question almost. If an Anglo-Saxon court was to try to apply that sort of French concept literally, the boundary line would not be around the goal posts at the MCG; conceivably in some instances it would be closer to Flinders Street station, for those who are familiar with Melbourne geography. In other words, some of those concepts which Senator Harradine will want to argue are precise and are there in the Covenant to give precise guidance to the courts are, in reality, anything but precise and simply do not set realistically definable boundaries with any greater degree of clarity, and arguably much less, than the boundaries that are fixed by the particular language of Article 3. I think that is a further point worth making; that there is an erratic quality to the way in which the various permissible limitations on rights are set out in various clauses. If Senator Harradine wants all the permissible categories of derogation that appear in one clause or another in the Bill to be set out in the final version of the explanatory memorandum as printed, as I indicated in an earlier debate, the Government is only too happy to oblige. Senator Harradine —You have just said that that would make no difference whatsoever, by implication. Senator GARETH EVANS —No, but to the extent that the explanatory memorandum-- Senator Harradine —Don't con us. Senator GARETH EVANS —Senator Harradine has made the point before and I am simply anticipating that he will make it again, because I expect every arrow in the quiver to be deployed over the next God knows how long it takes. I simply make the point that there is no difficulty about acknowledging the full range of concepts in the Covenant. There is a lot of difficulty in presentational terms in drafting it in such a way and I would suggest that at the end of the day, quite apart from the question of giving reasonable limited focus to the permissible limitations on rights which we want to maintain-we do not want those limitations to extend endlessly-there is a great deal of imprecision in a lot of the permissible derogation language in the Covenant itself. I do not think any argument based on uncertainty ought to ignore the comparable uncertainty in the existing permissible derogations in the Covenant. Senator HARRADINE(Tasmania)(5.09) —We have heard the most imprecise answer to the questions raised by Senator Sir John Carrick. Senator Sir John Carrick —No answers at all. Senator HARRADINE —As Senator Sir John Carrick said, there have been no answers at all, in particular, on the reverse onus of proof. Let me give to the Minister now the questions in relation to Article 3. Article 3 says: The rights and freedoms set out in this Bill of Rights are subject only to such reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society. Can the Minister tell us what are the circumstances or conditions under which a limit on a right or freedom could be described as reasonable? Secondly, what is the meaning of the phrase `prescribed by law'? Does it include subordinate legislation? Does it include common law as well as statutes? Thirdly, when is a limit justified? What additional requirement is placed on the requirement of reasonableness? Fourthly, why is the phrase `can be demonstrably justified' used rather than `is demonstrably justified'? Why is it `can be' instead of `is'? What is the legal significance of the difference? Senator Sir John Carrick raised the matter of whether `a free and democratic society' refers to Australia alone or whether it includes other free and democratic societies. What will happen to a long-standing Australian law or practice which is not followed outside Australia? Are not Australian traditions sufficient? As seems to be indicated by the Minister, are we to rely on legal precedent from Canada? The point that Senator Sir John Carrick asked specifically is: What is the burden of proof on an aggrieved person? I give an example. Let us consider Article 18-right to life-as it applies to capital punishment. This is symptomatic of the problem. Article 18 reads: Every human being has the inherent right to life and no person shall be arbitrarily deprived of life. When combined with Article 3, with which we are now dealing, Article 18 says that a person shall not be deprived of life except in a non-arbitrary way in accordance with law and only where demonstrably justified in a free and democratic society. As an aside, are there any death penalties outstanding, for example, in inherited imperial legislation? Senator Gareth Evans —Not that I am aware. Senator HARRADINE —Perhaps the Minister can consider that. The point is: Given the acceptance of the death penalty in the United States, clearly a free and democratic society, does this Article contemplate that the death penalty may be imposed? It is a very important point because people, unfortunately in my book, are calling for the reintroduction of the death penalty. There was a survey recently. Does the Article contemplate that the death penalty may be imposed? If not, either the USA is not a free and democratic society or the words `arbitrarily' in Article 18 and `prescribed by law' in Article 3 are devoid of meaning. Which is it? If the answer is yes, how can it be said that the Australian Bill of Rights guarantees the right to life when it clearly says that the death penalty may be imposed? What use, in that context, are the so-called rights in Article 18? The very important question, that was raised by Senator Sir John Carrick, ought to be answered by the Government in a clear and definite manner and in such a way as to ensure that the interpretation of this Article is made in accordance with the will of the Parliament. Ultimately that must be done by amendment or, preferably, by any rights that are under threat being protected by specific statute law. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(5.16) —I am happy to try to address a number of those specific questions. I apologise if they were asked by Senator Sir John Carrick previously but I was being harangued by Senator Walters and a miscellany of other interveners. I am not sure that I fully heard everything said by Senator Sir John Carrick. I will go through the various questions expressed by Senator Harradine. The first concerns the circumstances or conditions under which limits could be described as reasonable. The short answer is that that is for the courts to determine, having regard not only to that one word `reasonable' as it appears prefacing `limitations', but to the whole construction of the clause. The courts are very good at dealing with the expression `reasonable'. They confront it all the time in other legislative enactments and there is no reason to suppose that they would be any less good in dealing with it in this context. It involves an element of balance rather than strict and literal application of rules of blindingly clear application. I acknowledge that. In the real world situations are very often difficult to deal with by the simple mechanical application of black letter rules. The requirement of reasonableness being determined by the courts is not unusual bearing in mind that reality. The second question concerns the meaning of the expression `by law'. It certainly extends to statutes, regulations and rules of common law. It is not intended to be, nor would it be construed by the courts as in any way narrower than that. The third question was about when a limitation is justified-what the word `justified' means. Again, I make the point that that is for the courts to determine, reading the word in context. It is not just `justified'; the Article reads `demonstrably justified in a free and democratic society'. That is a further qualification of the concept of a reasonable limitation. It is a reasonable limitation of a particular character, namely, one which can be demonstrably justified in a free and democratic society'. Again, there is no doubt that the courts will quickly evolve a variety of rules of thumb based on jurisprudence in Canada, Europe and elsewhere to assist them in applying that concept to particular cases as they arise. The fourth question was why the expression `can be' rather than `is' is used in the context of `such reasonable limitations prescribed by law as can be demonstrably justified'. The short answer is that that is the Canadian language. We wanted to make as few variations as possible so that there can be some mutual learning from and application of the developing jurisprudence in each country. I do not personally see that there is any particular significance attachable to that particular linguistic formulation. It is a question of whether the court in each case is satisfied that there is a reasonable limitation prescribed by law and demonstrably justified. The fact that the language of `can be' rather than `is' is used does not affect the likely way in which the courts would react to any particular problem that came before them. As to the expression `free and democratic society', that is an invitation, certainly, to the courts to have regard, particularly in unusual or difficult cases, to practices or regimes which are applicable in comparable countries, such as Britain, Canada, the United States and elsewhere. It is not a matter of the mechanical application of this particular phrase in such a way as to say that the only country to which that expression is applicable is our own-that would be cultural arrogance of a very high order-nor can one devise a quick and simple checklist to refer to. Essentially, I imagine it is the common law family of countries that would be the most ready and familiar reference point for the courts. There is already reliance on the jurisprudence of the other countries as being of persuasive value in the Australian courts. There is an increasing willingness on the part of our High Court of Australia to look at the American cases, and I imagine that trend will undoubtedly continue in the context of the application of a Bill of Rights. There has been some interpretation of this clause in Canada as it applies to Canada. In this respect I quote from a report of a case Re Federal Republic of Germany and Rauca which, despite the title, is a case determined by the Ontario Court of Appeal in 1982. That involved a request for extradition in the course of which the court said that it: . . . must determine what is a reasonable limit demonstrably justified in a free and democratic society by reference to Canadian society and by the application of principles of political science. Criteria by which these values are to be assessed are to be found within the Charter itself, which means that the courts are entitled to look at those societies in which, as a matter of common law, freedoms and democratic rights similar to those referred to in the Charter are enjoyed. There is an outward looking quality about it but not one that is easily confinable to any particular checklist of countries. One relies here, as elsewhere, on the common sense of the courts. Certainly I do not think that the clause could be read as freezing any given Australian law and saying that, since Australia is by and large a democratic and free society, any law that has ever been passed by any legislature in Australia must therefore be demonstrably justified in a free and democratic society within the meaning of Article 3. I do not think that that follows. That is a hurdle requirement, if you like, that has to be met, but it is not the total requirement set by the clause. It is demonstrably justified by reference to the values that one associates with societies that justify that particular description. I turn to the final point of what is the burden of proof on an aggrieved person. It is a difficult question to answer in the abstract. I am happy to try again if it is raised. It was put by Senator Harradine in the particular context of an argument about the possible application of Article 18 to re-introduction of a death penalty. Senator Harradine —No. That was a further issue. I raised that in particular but it was put in a specific context by Senator Sir John Carrick in respect of libel laws. Senator GARETH EVANS —Perhaps I will have to listen again to Senator Sir John Carrick on the subject of burden of proof because I am not sure that I fully understood the point. Let me deal quickly with the death penalty example because it does pull together some of these threads in the way that Senator Harradine put the case. What he tried to suggest was that the Bill of Rights was no good because, although it purports to protect the right to life, it would not even be good enough to strike down some subsequent introduction of the death penalty in, let us say, the Australian Capital Territory because, of course, the Bill of Rights as presently drafted is applicable only to the Commonwealth and not the States. Senator Harradine said that a Bill of Rights would not be good enough to do that, given the number of loopholes in this clause. His argument went that that was a demonstration of just how weak and what a non-event this Bill of Rights is. I want to make it clear that the Bill of Rights does not in terms outlaw the death penalty-that has been done by other legislation-because the International Covenant on Civil and Political Rights on which it is based equally does not outlaw the death penalty. To go further here, as elsewhere, than the terms of the Covenant in identifying the right or the language in which the right is expressed would expose the Bill here, as elsewhere, to constitutional challenge. All that the Bill of Rights outlaws is that which the Covenant outlaws, that is, arbitrary deprivation of life. An awful lot hangs on that word `arbitrary'. Senator Harradine —A condemned man can hang on it too. Senator GARETH EVANS —With the utmost respect to Senator Harradine, that is a cheap debating point. I acknowledge that the way in which that clause is drafted, and given the reality that death penalties do exist for better or worse-in my view worse-in societies like the United States which would be generally acknowledged to be free and democratic, it is the case, for one reason or another, putting together the various qualifying expressions in the legislation, that the death penalty would not necessarily be struck down. But I imagine there would still be room for argument by Senator Harradine's condemned man in a number of possible situations about the reintroduction of a law in some jurisdiction which was subject to this Bill of Rights, and one of the arguments may well depend very significantly on the proper application of that expression `arbitrarily deprived of life'. A capital punishment clause of general application which was not limited to particular kinds of offences, or even particular kinds of homicide offences, and which was quite unrestricted in its possible scope and did not respond to different kinds of homicide situations, might well be subject to the same kind of argument that originally appealed to the United States Supreme Court when it, for a period, outlawed the death penalty completely on the ground of the arbitrary application in a number of jurisdictions of rules about the application of the death penalty of uncertain application because a number of death penalty laws as they then existed, unfortunately-they have since been drafted with very much more precision and have withstood subsequent constitutional scrutiny-in a number of United States jurisdictions were so loosely and vaguely worded that in effect their application was almost completely discretionary, depending on the whim or mood of those administering the judicial and punishment system of the particular jurisdiction. Of course, in practice that led to discriminatory patterns emerging where whites and blacks convicted of almost identical crimes in almost identical circumstances were treated differently insofar as the application of the death penalty was concerned. If one has a situation in which laws are loosely and vaguely drafted in imposing the death penalty in a sweeping way, one would have a very good argument, I would have thought, based on the language of Article 18 and consistent with the permissible limitations in Article 3, for seeking to strike that down. I am simply responding as well as I can to the particular case that Senator Harradine raised. I am not claiming more for this Bill of Rights than it contains, but nor am I claiming any less. It is perhaps a good way of finishing to make the point that I have so often made before; that a Bill of Rights is not a universal panacea for every conceivable kind of human rights problem that we can anticipate. Here it is not a universal panacea because it does not completely and unequivocally in all conceivable circumstances wipe out the possible reintroduction of the death penalty. That is true. It does not do a lot of other things which demand other specific laws to be achieved. It is not a complete code of conduct in the area of sex or race discrimination. It is nothing like a complete code of effective guidance so far as privacy infringing behaviour is concerned. It needs supplementation so far as the rights of criminal suspects are concerned in all the jurisdictions where that is an issue. All of those things need to be done. The Bill of Rights cannot do the whole job but it does the particular job that we want it to do very well indeed. I do not think that any of the points so far made against it undermine the force of that conclusion. Senator Sir JOHN CARRICK(New South Wales)(5.31) —I thank the Minister for his explanations. I would like to come back to a number of fundamental points. I draw attention to the fact-the Minister has not denied it-that the Bill of Rights before us uses wider powers and less qualifications than the Covenant on which it rests. Since the Bill rests on that Covenant, the International Covenant on Civil and Political Rights, the lawyers have argued-the Australian Law Council has argued-that because it is wider it is almost uncertainly unconstitutional. For example, I quote from the Australian Law Council: The introduction into the ABR of Clauses 3 (1) and 4 (2) are two examples of departures from the Covenant which might be of sufficient importance to invalidate the Bill. In noting this question, the Law Council is not suggesting that other constitutional questions associated with the external affairs power do not exist. If I understood the Minister correctly, he said that these difficulties are caught up with in the umbrella clause of Article 3 (2). I do not feel satisfied with that. I cannot believe that with the magic wand of Article 3 (2) we can put a restriction over the whole Bill of Rights which says that this includes all the qualifications of the Covenant relative to the Bill of Rights. If it were going to do so why would it not, article by article, draw attention to the limitation? Senator Gareth Evans —For presentational reasons. We want the charter to be something that is educationally effective. Senator Sir JOHN CARRICK —I want to be helpful in this situation. The Minister says it is for presentational reasons, that an ordinary citizen ought to be able to go to this Bill, read an article and understand its strengths and limitations. Now he is saying that everybody has to go back to Article 3 (2) as a commandment, or as an injunction or sanction which goes over the whole Bill. If I understand the Minister properly, this is a very serious matter indeed. What he is saying is that one must not take for granted the plain words of the rest of the Bill. Senator Gareth Evans —I do not think Article 3 is very hidden. Senator Sir JOHN CARRICK —I want to be helpful and I am striving to understand it. I am striving to get a perception of how an ordinary person outside ought to understand it, because if a Bill of Rights means anything it is not something for lawyers. It is something that a person outside can read and say this is a right, as he understands it. If the Minister has responded to me correctly, what I understand him to say is this: All those other articles that we have may in fact be qualified and we will have to find out how they are qualified by going back to Article 3 (2) and then going back to the Covenant and finding out what are the qualifications in the Covenant. That kind of journey is an impossible one. Even lawyers with their tortuous minds could not have invented that. Is what I say correct? I pose these questions, for simplicity's sake: Is it not a fact that the Covenant itself possesses numerous qualifications to its articles? Is it not a fact that the articles as expressed here in some cases do not show those qualifications and, therefore, read plainly would be construed as being beyond the head of power itself? Is it not a fact, therefore, that if there is a restraint it lies in Article 3 (2) and one has to say to the people of Australia that before they read any article in the whole of this Bill of Rights they must first of all read the Covenant and the qualifications contained therein, read any one article in relation to the qualifications in the Covenant, and then bear in mind that Article 3 (2) says that one cannot fly high and wide, as these articles say, but can fly only as far as the Covenant says? Senator Durack —Then you would have to read all the court decisions on what the devil it meant. Senator Sir JOHN CARRICK —Senator Durack intervenes. That is right. This seems to be an Alice in Wonderland form of madness. I want to press the matter. I have a number of other questions to ask concerning this whole situation. If this is true, we have a wormwood defect running through the Bill. The Bill is a confidence trick because one cannot read it as plain words. Why cannot we read it as plain words? Why were not the qualifications put in? Are the Australian Law Council and the 20,000 people it represents all wrong? Is the Government the only one in the regiment in step? Why did not it put in the qualifications as it went? Is it true-the Australian Law Council does not think so-that the Bill can be validated simply by referring to Article 3 (2), which says: A right or freedom set out in this Bill of Rights shall not be limited by any law to any greater extent than is permitted by the International Covenant on Civil and Political Rights. It does not say every clause in this Bill has to be referred back to the Covenant and derive its powers only as far as the qualifications of the articles of the Covenant say. It does not say that at all. If it were meant to be related to the rest of these clauses it ought to be worded in a different way. Frankly, I am puzzled and I seek the help of the Minister. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(5.37) —If Senator Sir John Carrick is puzzled about the Bill he might not have used quite such robust language in condemning it. Senator Sir John Carrick —I was not condemning it at all; I was seeking information. Senator GARETH EVANS —I believe most of that information has been given, but let me track over it again. One has to contemplate two different cases here. One is that of the ordinary citizen, reading the Bill of Rights as it will appear on a school room wall, in a box in a newspaper or in the Bulletin after this Bill is passed, who tries to make sense of it in order to get a general feel as to its flavour and shape. The second circumstance we have to confront is that of someone who is likely to want to use the language of the Bill of Rights as a shield in the event that he is caught up in the travails of the criminal law and wants to mount some defence based on it or in some other way wants to rely upon the operation of the Bill of Rights with strict legal precision. Such a person wants more than just a general impression of what it is about; he wants the legal precision. It needs to be acknowledged that in this legislation we are trying to serve both those objectives. The 32 articles of the Bill of Rights itself, the centrepiece of this legislation, have been deliberately drafted with an eye to the educative and moral force of the Bill of Rights, to getting around an understanding that these are rights. This collection of civil and political rights is at the heart of what modern civilisation is all about. They have been accepted as such by the international community and they are to be understood as having real value and force. I believe that, read in that context, the 32 relatively simply drafted provisions, with the general derogation provision right up at the top of the list, itself in fairly understandable language so far as laymen are concerned, are sufficient indication-it is not a fraud or a confidence trick-that there are these basic statements of right but they are all subject to the general qualification that they are subject to reasonable limitations in the way that is there set out. Looked at in this way, I do not think there is anything particularly misleading or difficult to interpret or to understand about the general shape and flavour. I turn to case 2, that is, the case of a citizen who wants to rely on the Bill of Rights to defend himself from the application to him of some law, criminal or otherwise, and wants to use the Bill of Rights in the way it is intended, not so much as a sword but as a shield against untoward application of the otherwise applicable law and practice of the state against him. Under those circumstances he will almost certainly be legally advised but even if he is not he would face no greater difficulties wrestling with this piece of legislation than, I fear, is the case with any citizen wrestling with any piece of legislation because a lot of the subtleties of the drafting are not conspicuously evident on their face and the citizen has to be advised on, or has to meticulously pick his way through, a variety of legal highways and byways that might not be completely self-evident. Looked at in that context, again I believe that the drafting of the Bill of Rights is not defective as an exercise in conveying not only the flavour but also the substance of the International Covenant on Civil and Political Rights. The formula about reasonable limitations speaks for itself and that is subject to application in the way that the Government indicated earlier. In due course that may require some reference to the evolving body of Australian jurisprudence on what those phrases mean but that is true of all sorts of exercises in statutory interpretation. The second bit of guidance that the citizen has in this circumstance is the clear language of Article 3 (2), which states that, whatever the limitations may be that are permissible in Article 3 (1), they cannot be so great, they cannot so undermine the basic right, that they go beyond the limitations which are permissible in the various individual sections of the Covenant wherever they appear. That is a clear direction to the citizen relying on all this and to the courts applying it then to have regard, section by section, to the particular permissible limitations in the Covenant in the way in which the Covenant would be interpreted-I have mentioned that before and I do not want to track-- Senator Harradine —Are you saying that they cannot go beyond the limitations? What do you mean by `cannot go beyond the limitations'? Senator GARETH EVANS —They cannot allow the right to be undermined to a greater extent. Senator Harradine —But what about extended to a further extent? Senator GARETH EVANS —There is a primary right which I am holding in my left hand and there are permissible assaults which may be made on that primary right all gathered up in a quiver in my right hand. I cannot throw more arrows at the right hand and I cannot bleed it any more than the permissible set of assault weapons that is given by the language of the Covenant. If I want to keep one or more arrows in my quiver than the Covenant allows me to throw at the right hand, I am entitled to do that, and the right hand to that extent does not necessarily have to be bled by every single one of the permissible forms of assault on it. However, the right hand itself is only the language of the Covenant as transcribed into the language of the various Articles. I cannot invent new layers, shades and extra dimensions on the right. All I can do is say that it is still a permissible constitutional exercise to regard the primary thrust of the International Covenant as being to protect rights rather than to identify permissible limitations on those rights. That is not the primary thrust; that is a secondary consideration. One can very strongly argue in constitutional terms that it is a permissible course for a court to be able not to deploy every one of the permissible limitations that the Covenant sets out. Let me deal with the onus of proof because I think that I have realised the point that Senator Sir John Carrick wants to make, although he did not get back to it. It is not the aggrieved person who has to show that the limitation is justified. Obviously it would be the Crown, the government in question, which is relying on the limitation which has to show that the limitation is justified. I had better put that another way around. It is not the aggrieved person who has to show that no limitation is justified; rather it is for the Crown to say that the particular limitation embodied in the law, or the Executive behaviour which seems to interfere with the rights in question, is justified by reference to one or other of those heads. There may be a difficult burden on the Crown to discharge in some of the areas that we are talking about but there will not be any very difficult burden on the individual citizen. Senator Harradine —By admissible evidence. Senator GARETH EVANS —Everything that is dealt with in a court has to be dealt with by way of admissible evidence and it is only in a court that these issues really come to a head, unless I have misunderstood the point of that interjection. The whole thing does hang together. The very last point I want to make-it is really an extension of the one I made to Senator Harradine-is that anyone who wants to argue that there is anything terribly coherent, cleanly drafted or more specific and less uncertain about the individual permissible limitations that are set out in the various individual clauses of the Covenant, simply has not-with the utmost respect-read those clauses carefully. They wander and sprawl all over the place. The lists of permissible limitations vary from clause and the language in which they are couched is very difficult. Let me refer at random to Article 22 of the Covenant regarding freedom of association. Let us look at what is the permissible derogation. Do honourable senators really want our declaratory moral and educative force Bill of Rights to be littered with this sort of language? What does it add? Article 22 of the Covenant states: No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public) . . . I here refer to my previous excursion on the uncertainty on the meaning of the words `ordre public'- the protection of public health or morals or the protection of the rights and freedoms of others. For good measure an extra sentence is tagged on. It states: This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. All we have to do is run together a few of those clauses all the way through the individual articles of the Bill of Rights and we will have what is an indigestible pile of mumbo-jumbo to the very ordinary citizen whom Senator Sir John Carrick is worried about protecting. Provided the courts are guided to this sort of language and they are able to be satisfied that none of the permissible limitations on the rights go further than what is permissible in that very extensive drafting, the courts will, I believe and the Government believes, behave in a way which is constitutionally sound and the legislation will, as it should, survive. Senator Sir JOHN CARRICK(New South Wales)(5.47) —The Minister appears to be justifying what I have said. What I said was this: Because there are qualifications in the International Covenant on Civil and Political Rights that are not set out as such in the Bill, one can read the Bill article by article not realising that there are limitations on an article. Based on what the Minister has said, one must go to Article 3 (2) to understand that the words are not plain words; they can be qualified. That is a fair interpretation of what the Minister has said. I think the Minister said that he had to draft the legislation for two purposes: One for the plain man and the other for the lawyers or the courts. That is not how the Bill is drafted. When it suits the Bill, limitations are put into the article but when it does not suit the Bill one has to go to Article 3 (2). That seems to be an incredible situation. The Minister has not told the Committee why it would not be possible for any article which has a limitation in the Covenant to have contained within it a reference to the fact that its application is limited by a particular covenant. It is no good saying that a person can go to the court and get this matter clarified. The fact of the matter is that most people cannot go to the court; it is too expensive and it is too hazardous. When we get to Article 4 we will see that it contains some fine words but it is not practicable in this situation. I cannot understand-I have not heard an explanation yet-why the Government could not write in each article that had any qualification on it a simple reference to the fact that there is a qualification and so alert the ordinary person to the fact that what he or she reads has a condition to it. Some mention was made-I read a fairly lengthy extract from an Australian Law Council report-of what one might say is the reverse onus of proof, and I remind the Minister of it. The Law Council report stated: The addition of this second hurdle- which is the one we are discussing- goes beyond the Covenant and may require a person seeking to rely on a limitation or qualification permitted by the Covenant to discharge this uncertain and perhaps shifting onus of proof. For example, laws of libel which qualify the freedom of opinion in speech protected by Articles 7 and 8 of the A.B.R. are recognised in Article 19.3 of the Covenant. However, if the laws of libel are challenged as being contrary to Articles 7 and 8, a person seeking to rely on them will have to be able to discharge the onus of proof in Article 3.1. The report goes on to say-- Senator Harradine —By admissible evidence too, which is an impossible test. Senator Sir JOHN CARRICK —I pause here to say to Senator Harradine that it is not just the Government that has to justify itself but also the person. The Australian Law Council report goes on to say: The difficulty of doing so is illustrated by the inability of the Standing Committee of Attorneys-General to agree and adopt the Australian Law Reform Commission's report proposing reforms to the laws of defamation (Unfair Publications: Defamation and Privacy A.L.R.C. Report No. 11). The report goes on and places a heavy responsibility on the person. It states: But if a challenge to such laws is made in reliance on Article 22 of the A.B.R., the person seeking to answer the challenge will have to satisfy Article 3.1 in addition to relying on the qualifications contained in Article 8 of the Covenant. That relates not to a government but to a person. The Australian Law Council is saying that we have in this a reverse onus of proof, and that has not been clarified. The essential situation lies in three things. Article 3 (1) is ephemeral-more fluffy than cotton-wool-when talking of `reasonable limitations' and `can be demonstrably justified in a free and democratic society'. This is simply a feast for lawyers. It can mean nothing else. Article 3 (2) apparently now touches every one of the 32 Articles in this legislation, yet when we read them on face value they appear to be bland and without qualification. We see that at least a substantial body of lawyers believes that there is a reverse onus of proof which is very unsatisfactory. These are pretty serious questions in terms of a clause. Senator DURACK(Western Australia)(5.55) —I want to make some general remarks about Article 3. I want to make it perfectly clear that Article 3 highlights one of the fundamental objections that the Opposition has had to the Bill of Rights Bill and the whole exercise we are now debating. It is one of the reasons why we voted against it at the second reading stage and why we will continue to vote against it in the hope that ultimately common sense will prevail and this Parliament will throw it out. The Government has said that this Bill of Rights has been drafted by it as an inspirational statement for Australians. Senator Evans has indicated a way in which this will inspire Australians. If it is passed it is clear that the Government will embark on a great propaganda campaign. All the schools in the country will have sheets with nice coloured lettering and a little picture of Senator Evans or the Attorney-General (Mr Lionel Bowen) and others saying: `This is what this wonderful Government has given you. We have given you all these statements about your rights'. The Government will not be telling them, of course, that their forebears had these rights for a long period in this country and that the countries from which these people have come have enjoyed rights of this kind, under common law, for a very long time. Those rights were not vouchsafed to them by the Hawke Government or by legislation which the Hawke Government has produced in this Parliament. On many occasions those rights have been very strongly fought for and achieved by people standing up for their own rights at all times. First of all, the Government has said that this Bill of Rights is supposed to be an inspirational statement. It is becoming pretty clear that it is just another expensive propaganda exercise by the Hawke Government. I remind the Committee that, as far as I can recall, the last inspirational statement we had enshrined in our Constitution was section 92 of the Constitution, which states: . . . trade, commerce and intercourse . . . shall be absolute free. We know what an enormous amount of litigation that has engendered. Over the last 80 years-it is so even today-it has been very difficult, when interpreting that section, to be really sure what it means. Indeed, lots of theories are floating around that its interpretation-to the extent that it has any certainty about it now-ought to be radically changed. So, at the outset, I would have thought that parliaments ought to beware of inspirational statements when they are approaching a piece of legislation. However, what I really want to say is that Article 3 (2) qualifies this inspirational statement-as Senator Evans has said-by the various qualifications that appear throughout the Covenant. Of course, the Government has to do that for constitutional reasons for a start. Senator Evans has already referred to some of the qualifications which appear throughout the Covenant. The Covenant is replete with them. If these qualifications were translated into this Bill of Rights there would not be too much inspiration for anybody. Indeed, very few people would ever be able to understand it, as Senator Evans has said. Once we read through the Covenant we see that there are major qualifications to almost every Article in it. Those qualifications are not always uniform, but they talk about matters such as `in the interests of national security', `public health' and `public morals' and this `ordre public', or public order, translated into English, but that translation does not express the qualification. Senator Evans has already admitted that this concept of a public order in the French sense is very technical. It covers a vast range of matters. At least to some large extent they have been developed in French law. I suppose that if we became experts in French law we would be able to give it some fairly specific meaning and a fairly reasonable answer to any question that arises. Whatever one may think of this approach to the Bill of Rights, at least we have through that laborious and highly technical process, incorporated in the Bill of Rights and into our legal system, a vast number of qualifications which, although they may be like any other very elaborate statute, have a great deal of potential controversy about them. Nevertheless, there is some yardstick by which the courts can make a decision. But the Government has not been content simply to leave the matter there. It has introduced in Article 3 (1) this enormously vague and quite new approach to statutory interpretation. Already great attention has been focused on this point by the Committee, and I do not want to go over it in any detail again. By saying that in addition to these rights and qualifications in the Covenant the rights and freedoms set out in the Bill can also be subject `to such reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society', one is introducing by those words into the Covenant an entirely new responsibility to be placed on the judiciary. One has already placed a very severe new burden on the judiciary under Article 3 (2), but at least it has some guidelines it can refer to. At least it has some body of law under the public order concept. I do not know enough about other legal systems to know how public health matters or morals have been interpreted. Perhaps there is some assistance that can be obtained, but Article 3 (1) contains no guidelines with which the courts are familiar, except as to the word `reasonable'. I concede that obviously the courts have a great deal of experience about what is or is not reasonable, but the concept of what may be demonstrably justified in a free and democratic society introduces an entirely new concept for the courts. It assigns to the courts and judges enormous new powers, which no doubt the judges do not want to exercise. They will regard this as an intractable problem for them to deal with. Senator Harradine —Overtly political criteria. Senator DURACK —As Senator Harradine says, all they will be able to judge is their own political views, which will intrude to an enormous extent into this exercise. Some judges may welcome it, but I am sure the vast majority will be horrified that they have to embark on this sort of investigation. I emphasise that the task given to the courts here is quite different from their ordinary task of statutory interpretation. The broad generalisations of the Covenant are not sufficient by any means, except as may be ascertained from the Covenant itself; they cannot be interpreted in the ordinary sense. They have got to be rewritten and expanded in a very big way by the courts. It is not an ordinary exercise in statutory interpretation that we are leaving to the courts as we do in ordinary legislation. It is a completely new concept, a new power, and a vast new problem that we are handing to the courts by Article 3 in general, and particularly 3 (1) and the extraordinary words that appear in it. The word `demonstrably' seems to me to require proof. I do not know what process of proof the courts are expected to adopt. When the courts come to grapple with what is meant by `a free and democratic society', I think they will be far more bewildered by that even than we are. I refer to a specific instance as to how this might apply, and I would like the Minister to come back to this question. When we were debating our amendment to exclude Norfolk Island from this legislation, I referred to the guarantee of freedom of movement. These are great inspirational phrases that will be emblazoned on every wall in every classroom in Australia-phrases such as `Freedom of movement is the right of persons in Australia'. Every person lawfully in Australia has the right to freedom of movement and choice of residence. People may go to Norfolk Island for a holiday and if it is such a delightful spot, as many people tell me it is-I have not had the pleasure of having been there-they might be minded to settle there. Then they will be confronted with what Senator Evans foreshadowed as government legislation for Norfolk Island or perhaps from this Parliament that will restrict their rights to move there. Senator Evans says: `Norfolk Islanders need not worry about that being struck down because they can rely on Article 3 of the Covenant'. It seems in his mind to be self-evident that it is a major restriction that an Australian citizen will be unable to exercise his right of freedom of movement and choice of residence. Goodness me, if any Australian told us that we could not go and live anywhere in Australia we liked, not only would section 92 of the Constitution be breached-and the meaning has been held to be fairly clear-but we would be outraged. I would hope that the whole country and this Parliament would be outraged at any such restriction being placed upon us. Here that freedom is being even further enshrined in this Article, but we are told: `Don't worry about that. In fact, it will be able to be restricted because it will be able to be demonstrably justified in a free and democratic society.' I cannot imagine anything that is more a contradiction in terms than that restriction being placed on a guarantee of the right of freedom of movement and choice of residence. That sums up the awful dilemma we are placing judges in and we are also indicating the sorts of major problems we are creating by passing the legislation in this form. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(6.08) —I reply to a couple of the points which have been made. First, as to onus of proof, an issue which has been further pursued with further references to the Law Council of Australia and its comments on this subject, it is the case that should a libel matter arise in the Australian Capital Territory-not in one of the States because the Bill will not apply to the States in this way-I imagine that it would be open for the defendant to raise the point that the libel statute in the Australian Capital Territory was offensive to the guarantee of freedom of expression in the Bill of Rights. Senator Harradine —I raise a point of order. Senator Sir John Carrick has had to leave the Committee for a short time. Could I ask Senator Evans to make his response a little later when Senator Sir John Carrick returns to the chamber? He will be back shortly. Senator GARETH EVANS —I see that Senator Sir John Carrick has now returned to the Committee. The point I was making, and I had just begun to deal with it, was to acknowledge that in a libel case that arose in the Australian Capital Territory-not one that arose in the States because the Bill of Rights will not have overriding effect on State laws-it would be possible for a defendant to make a claim, on the face of it extravagant perhaps, that libel laws as they presently stood in the legislation were offensive to the guarantee of freedom of expression in Article whatever it is in the Bill of Rights. That would then shift an onus back to the plaintiff to establish, I guess, to the satisfaction of the court that, notwithstanding the prima facie guarantee of freedom of expression, Article 3 acknowledged permissible limitations and libel law was traditionally one of them. The argument is that this creates a very substantial practical burden and a financial burden to the extent that the plaintiff has to adduce argument, and possibly some supporting evidence as well as mere conceptual argument, in favour of the application of the permissible limitations provision. What has, I think, been overlooked is an important point, however, and that is that the plaintiff in that situation could very properly call in aid the intervention of the Attorney-General to defend the law in question. That is something for which provision is made in the legislation in a clause that is very directly and immediately drafted on the precedent of the Judiciary Act, which enables the intervention of the Commonwealth, or the State, as the case may be, to be called in aid where a constitutional point is made about the possible invalidity of Commonwealth legislation, and one could reasonably assume that the Commonwealth would be very quick to intervene where there is some halfway serious assault being made on some law of its own that it believed was perfectly defensible and perfectly justifiable. Senator Harradine —It would not be a constitutional matter. Senator GARETH EVANS —No-I am just saying, on the analogy of the existing provisions in section 78 of the Judiciary Act, which require notice to be given to the Commonwealth when a constitutional point going to the validity of legislation is in issue, and then the Commonwealth can decide whether to intervene; ditto a State can if a point such as that is in issue. Notice is required to be given so the matter will not pass by default. Equally, there is provision here for that support to be called in aid, and as a practical matter I do not think that there is any doubt but that the Attorney-General's Department and the Solicitor-General will have a good deal more work to do defending Commonwealth laws from this kind of collateral, sideways attack that is made on them from time to time. Senator Harradine —They will be in the courts for every libel case. Senator GARETH EVANS —Well, not after the first one is resolved in favour of the defendant, as I am sure it would be, on the sorts of principles that are here in issue. It might be a matter for argument as to where the boundaries of libel law begin and end so far as public figures or something are concerned. There has been a lot of jurisprudence in the United States about that. That has been a healthy argument and one that will be informed in Australia by a lot of that accumulated law elsewhere. This is the kind of issue about which many people have been concerned in the past, arguing that defamation laws may not go far enough in some respects, so far as individual privacy protection is concerned, but in other respects perhaps go too far. This is a topic which could properly be debated in the context of an argument about the application of a Bill of Rights. It is a bit unfair if some private litigant is bearing the cost of that argument being fought out, but that is not a necessary requirement at all. Senator Durack —It is a back-door method of getting your uniform defamation law. Senator GARETH EVANS —Would that it were. No; I have abandoned that, along with many other aspirations. Senator Harradine —Would it apply to existing cases? Senator GARETH EVANS —No, it is inconceivable that that could be the case. It will have no retrospective application-except to existing cases that have not yet come to fruition in the courts. I suppose that any common law development that occurs before a particular case is heard and determined-- Senator Harradine —That is a retrospective effect. All of those who have libel cases in the Australian Capital Territory, including myself- Senator GARETH EVANS —I do not want to give any kerbside advice on the current state of play. Senator Harradine —It is not advice that I am seeking; I want to know whether or not it is retrospective. Senator GARETH EVANS —It is not retrospective. It is just that any law that people call in aid, one way or another, is subject in its interpretation and application to the overriding effect of the Bill of Rights, and to that extent it may well be appropriate for the courts to deal with such a matter on particular occasions as they arise. But I would not want to comment on the sort of scenario that Senator Harradine has created unless I had an opportunity to think the matter through further. I am reminded that Senator Harradine has five years within which to finish his litigation because there is a five-year sunrise period, and even the worst administered libel case would, I think, be likely to reach fruition before then. So, as a practical matter, I think that people such as Senator Harradine would be sufficiently put on notice for that not to be a practical problem. As to Senator Durack's example about Norfolk Island, I acknowledge, quite frankly, that the choice of residence provision in Article 15 is one that might well prove to be, on proper examination, at odds with the existing very tightly controlled immigration and residence laws on Norfolk Island. I do not think that the case is quite as open and shut as Senator Durack would make out. There are, for example, in every jurisdiction of Australia, zoning laws which limit a person's choice of residence, based on a variety of considerations about the capacity of the infrastructure to support residence in particular areas and, of course, the particular character of the land use, area by area, that is involved. An argument might well be able to be constructed, on the analogy of zoning laws, that the condition and size of Norfolk Island are such that it can support only a very limited number of permanent residents, and that it is consistent with the kind of ground rules that one would expect to emerge in a democratic society that there be some kind of queueing system identified for the taking up of those scarce places. It might be possible for an argument of that kind to be constructed. But it must be frankly acknowledged that the choice of residence matter is perhaps the one aspect of Norfolk Island law and practice at the moment which there might be some good ground, based on the idiosyncratic history of that place, for retaining but which may run into trouble with the Bill of Rights. It is against that background that I mentioned the other day, when this became an issue, that the Attorney-General (Mr Lionel Bowen) had indicated a willingness to look at the application of the Bill to Norfolk Island so far as matters such as tax laws and, more particularly, immigration laws were concerned. It was against that background that he wrote as follows to the Chief Minister, and I shall now put the letter on the record because I have had an opportunity-as I did not have last time-to check with him. The relevant paragraph is this: I confirm that I undertook that, if the operation of the Bill of Rights results in jeopardy to the existing legal arrangements in the areas of local immigration and taxation measures, then I would support the enactment of specific overriding provisions if necessary. Senator Durack —How do you think that you will get that through the Senate? Senator GARETH EVANS —Because we shall take on board Senator Durack's very sincerely expressed concern for the protection of the citizens and culture of Norfolk Island. We can argue out the merits of it, but that is an expression of willingness to acknowledge that there are particular situations which may arise from time to time where there is no clear in-principle reason why the full possible literal force of the Bill of Rights should apply and where a case might be able to be made for some sort of overriding provision. A number of such cases will arise from time to time. That is another one of the advantages in proceeding, at least for a decade or so, I would argue, by way of legislation rather than entrenched constitutional provisions which are not subject to this kind of flexibility. I do not think that there will be very much of a patchwork quilt at the end of the day if we go down this particular track. The desire to apply the Bill of Rights to Norfolk Island was, for the overwhelming part, that the guarantees of freedom of expression and association, of privacy and rights in relation to criminal process, are equally apt and appropriate to be enjoyed by the citizens of Norfolk Island as those anywhere else. There are some particular aspects of this which may need to be thought through, and I have indicated a willingness on the part of the Government to do just that. Senator Sir JOHN CARRICK(New South Wales)(6.20) —I come back to a point I have spoken on at some length; that is, my concern that the 32 articles of the Bill would be read, on the face of them, for what they purported to mean, yet would all require qualification as to the International Covenant on Civil and Political Rights. I have just been looking at the Covenant. It consists of some 14 closely printed pages. Assuming that this Bill unfortunately is to be passed, I suspect that the Government will consider printing the 32 articles of the Bill of Rights to stand on their own as a declaration of faith of the Australian people. That would be a confidence trick. The Minister thought my language a little robust. The more I think about this matter-I have been thinking about his reply-the more I realise the very great danger inherent in this situation. The Bill is obviously so structured that the 32 articles can be taken out of the Bill, printed, and can purport to be a declaration of faith of the Australian people. We now discover that that is not true at all. The way one must read the Bill is first to be very careful to read Article 3 (2), although it is not given prominence early on. Article 3 (2) governs the whole meaning of the 32 articles of the Bill. It says: `I want you to go to the 14 closely printed pages of the Covenant, read them, look at them article by article and, where there are qualifications, read the qualifications into the Bill'. It would be a confidence trick if the publication of this Bill, should it become law, were not to contain the following two qualifications: First, the drawing of attention to the fact that the articles cannot stand alone, as they appear, that they are all qualified; and secondly, that Article 3 (2) makes it imperative to read the text of the Covenant as attached. Any printing of the articles of the Bill at the very least should have attached to it the text of the Covenant and an injunction to all who read it to understand the force of the Covenant and the binding force of Article 3 (2). I have not heard a satisfactory explanation of why the Government could not have put in these qualifications-I have asked for this explanation now three times-so that anybody receiving a printed document of the 32 articles could see the qualifications. I have not heard any explanation of why it is necessary to go through the present convoluted process. If the Bill is to be a declaration, an inspirational statement, it should stand on what it says. It should consist of plain words. It does not. The Minister has not responded to this matter, as I understand it. I simply make it clear to the Senate that, although the Bill should be rejected, if by any chance it should succeed, anybody who put out a list of the 32 articles standing on their own without the qualifications I have mentioned would be perpetrating a confidence trick-I repeat that-on the people of Australia. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(6.23) — Lest it be thought that I am not sincerely trying to respond to questions, let the people of Australia be aware, to the extent that any of them are taking any notice of this debate, that I have given answers. I repeat them. It would have been technically possible to have attached that heap of qualifications to each of the articles. We chose not to do so for two reasons. One reason was presentational efficacy, believing that placing the general limitation at the head of the list in Article 3 would be enough to signal that they were not absolutes but subject to qualification. The second reason was that we believed quite genuinely that the language of each of the articles of the Covenant was no less vague and imprecise in its application and was of no greater assistance to the ordinary person reading the provision than was the language that we chose to have generalised application in Article 3. One could argue endlessly about the pros and cons of choosing to do it in that way and about the constitutional efficacy of doing it, but it was not done for arbitrary reasons nor because of any desire-I can assure Senator Carrick-in any way to conceal the existence of those permissible limitations, but for the reasons that I have mentioned and have put on the record again. Senator Sir JOHN CARRICK(New South Wales)(6.24) —Then the Minister would willingly accept that should the Bill become law and should the articles of the Bill be printed, the impact of Article 3 (2) would be made perfectly clear to any person who received the document containing the 32 articles and a copy of the Covenant attached to it? There is no meaning to the articles without the Covenant. I put it fairly to the Minister that, as he has adopted the style of presentation he has, there must go with it the moral responsibility to do what I have said. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(6.25) —I simply make the point that many things will not make particular sense in the Bill of Rights without the Bill as a whole, but it is the case that the articles in the Covenant have been subject to specific reference in Article 3. I am sure that it would be proper and appropriate for the full text of the Covenant to be very widely circulated to the extent that, if we ever get around to passing this Bill and creating an occasion for it to have some moral and educative force, it would be perfectly appropriate for the terms of the relevant provisions of the International Covenant to be made as widely available as are the terms of the Bill of Rights itself. I accept the force of that point. I am sure that as a teaching aid and so on it would be quite an incomplete package to provide this material without the rest of the material to go with it. To the extent that that is the point that Senator Sir John Carrick is making, I am sure that we can accommodate him and I appreciate the force of his point. Senator HARRADINE(Tasmania)(6.26) —Which is it? The Minister says that the reason that Article 3 is couched in its current verbiage is that that is a more acceptable form, a declaratory style, of language. That is point No. 1. Point No. 2 is that the test in Article 3 (1)-`that is demonstrably justified in a free and democratic society'-is arguably more precise than the permissible limitations under the International Covenant. The Minister cannot have it both ways. Which way is it? Is it one reason or the other? The Minister should tell us the reason which lies behind it. He has not done so. It is a very important point. Senator Gareth Evans —I am sorry; what was it again? Senator HARRADINE —The Minister has said that Article 3 is in its present form because that is a more understandable presentation of words. Senator Gareth Evans —And it has the Canadian precedent behind it, and we believe it captures the flavour of all those very elaborate, individual, permissible limitations in the Covenant itself and will be so held by the courts. Senator HARRADINE —It captures the flavour? Senator Gareth Evans —Yes. Senator HARRADINE —The Minister talks of the permissible limitations, but not the permissible extensions. Senator Gareth Evans —What are the permissible extensions? Senator HARRADINE —Let me go to the question of freedom of speech, freedom of expression. As we were saying previously, the Government has taken out the words `all morals'. It has taken out those words deliberately- Senator Gareth Evans —From the explanatory memorandum. Senator HARRADINE —Yes, it has taken them out deliberately. Senator Gareth Evans —It is simple to put them back in. Senator HARRADINE —The Minister says that it is simple to put them back in. He knows that I am not going to be conned by that, because putting them back into the explanatory memorandum will not have any effect whatsoever. Senator Gareth Evans —Are you fussing about their being out of the explanatory memorandum or out of the Bill? Senator HARRADINE —I am just pointing to what the Government has done. In this measure the Government has opened the way for the laws on pornography, obscenity and censorship in this country to be struck down in the same way as they have been struck down in the United States of America, unless one maintains that the United States of America is not a free and democratic society. That is precisely what the Government has done. When I was putting forward this argument somebody asked: `What about Handyside?' The European convention contains the concept of public health and morals. That was addressed in the Handyside case. Senator Gareth Evans —We will come to that after dinner. Senator HARRADINE —We will, but I want to know after dinner what the Minister is saying. Sitting suspended from 6.30 to 8 p.m. (Quorum formed) Senator HARRADINE —The Committee is dealing with Article 3 of the Australian Bill of Rights Bill 1985 and the answers that have been given by the Minister. The question that I raised just before the suspension of the sitting for dinner was to attempt to clarify precisely what Article 3 (2) means-whether Article 3 (2) means that in the administration and in the interpretation of the Bill of Rights the limitations set down in the Bill of Rights Schedule-that is, the International Covenant on Civil and Political Rights-are applicable in respect of the particular articles in which they are contained. I believe that there is some misunderstanding around the chamber about that very aspect. I understand Senator Sir John Carrick put the question to the Minister and the Minister responded in a way that seemed to indicate to Senator Sir John Carrick that the court or the Human Rights and Equal Opportunities Commission would need to have regard to the limitations contained in the Covenant in respect of the interpretation of specific articles in the Bill of Rights. Clearly that is not so, by virtue of the wording of Article 3 (2), which says: A right or freedom set out in this Bill of Rights shall not be limited by any law to any greater extent than is permitted by the International Covenant on Civil and Political Rights. I have been drawing the distinction between limitations and extensions. The point has been made by the Attorney-General (Mr Lionel Bowen) that the operative limitations really are if they `are subject only to such reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society'. That is in Article 3 (1). Article 3 (2) states: A right or freedom set out in this Bill of Rights shall not be limited by any law to any greater extent than is permitted by the International Covenant on Civil and Political Rights. It seems to me that the limitations in Article 1 are the operative limitations, provided they go up to and including the limitations in the Schedule, in the ICCP. If they happen to fall short of those limitations, there is no problem as far as the interpretation is concerned, but one has to understand that that is not the same thing as saying that the limitations in the Covenant apply to the articles in the Bill, because they do not. I think Senator Sir John Carrick raised previously the importance of such limitations as the respect of the rights or reputations of others, the protection of national security, public order, public health or morals. Those questions were validly raised by him. Senator Sir John Carrick raised very firmly the freedom of expression provisions question and asked for the Minister's answer: What happens when a person has been slandered, there has been a defamation of a person in the Australian Capital Territory and that person prosecutes a case for defamation under existing defamation laws in the Australian Capital Territory? The Minister at the table has said that, yes, the defendant in that case may appeal under Article 7-the freedom of expression Article-and that the law under which the plaintiff is seeking redress has a reasonable limitation on the freedom of expression, prescribed by law as `as can demonstrably be justified in a free and democratic society'. The onus is on the plaintiff. What is the test? The plaintiff then has an added test, besides all the other tests that he has to go through on the defamation law, to prove that the defamation laws themselves `can be demonstrably justified in a free and democratic society'. We have heard the Minister say that it is not just our democratic society that he is talking about; it is the United Kingdom, Canada and the United States of America. The plaintiff is going to have a very, very difficult task, indeed, to meet the United States test of freedom of expression, but we have heard from the Minister that it is available to the defendant in a defamation case to appeal under the Bill of Rights and then to place the onus of proof on the plaintiff that in fact the law is `demonstrably justified in a free and democratic society'. In answering one of my interjections the Minister said that of course all the rules of evidence would apply. In this case, what are the rules of evidence? Senator Gareth Evans —Not of evidence, rules of argument. They are two different things-argue by reference to the state of law without adducing evidence. Senator HARRADINE —We will come to that matter in regard to the criminal law as well. That is another aspect, but in this case the plaintiff will have an uphill battle to prove on that test of `demonstrably justified in a free and democratic society' that the defamation law is `demonstrably'-whatever that means-`justified in a free and democratic society'. Senator Sir John Carrick —That is a reverse onus. Senator HARRADINE —Yes. It gets to the stage where we really have to look at the laws of defamation in the United States and Canada. On the Minister's own admission we have to look at not only our democratic-- Senator Gareth Evans —I did not say anything of the kind-that you had to. I said you can have regard to. That is very different from saying that you have to look at it. Come on. Stop distorting. Senator HARRADINE —In answer to the question that I raised the Minister said-- Senator Gareth Evans —`It would be possible to have regard to' is what I said. Senator HARRADINE —I remind the Minister of what I asked. Does `free and democratic society' refer to Australia alone or does it include other free and democratic societies? I went on by asking what would happen to a longstanding Australian law or practice which is not followed outside Australia. The Minister said that of course the court would have regard to the family of common law nations, and he cited Britain, Canada and the United States as being amongst those countries. Senator Gareth Evans —As permissible reference points. Senator HARRADINE —Yes, and the Minister specifically stated that those words were taken from the Canadian legislation and that the courts would have regard to what was determined in the Canadian context in that test in its legislation. So in the Minister's words there would be some inter-relationship between the development of the law in that country and this country. I will get to the point. That is the `free and democratic society' test. Article 19 of the Covenant talks about freedom of expression. It says: The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others- Cannot the Minister see that that would be an entirely different test to be applied by the courts in this case? The plaintiff could argue quite forcefully that the defamation laws were appropriate for the aspect of the rights and reputations of others. Clearly, that is the basis of our defamation laws, so that the rights and reputations of others are properly safeguarded by statute. We are placing on the plaintiff a test which it is almost impossible for that plaintiff to sustain. If the Minister is fair dinkum in saying that this Bill will give effect to the Covenant, he will, as far as freedom of expression is concerned, make the point that the freedom-the rights provided for in that Article-carried with it special duties and responsibilities and that it may therefore be subject to certain restrictions. These will only be those provided for by law and necessary for the respect of the rights or reputations of others and for the protection of national security or of public order or of public health or morals. To test this matter all I need do is ask the Minister. In this case about which we are talking would the plaintiff be able to sustain his rights under challenge by the defendant on the basis of freedom of expression? Would he be able to say that the defamation laws of the Australian Capital Territory are necessary for the protection of the rights or reputations of others? If he could prove that, would he also have to prove that that law was demonstrably justified in a free and democratic society? (Quorum formed) Senator DURACK(Western Australia)(8.19) —I agree with the remarks made by Senator Harradine and Senator Sir John Carrick that there is real confusion about the way that these two quite separate tests will apply. They are set out in a strange order. One would have thought that Article 3 (2) was the general proposition because that contains the provisions of the International Covenant on Civil and Political Rights. Yet that one is stated secondly whereas Article 1 introduces some other broad and different test. There is real ambiguity in the Articles as to how those two tests will apply. Senator Evans has not adequately explained the way in which they will both work, whether in tandem or whatever. This matter certainly should be cleared up before we leave this Article. Senator HARRADINE(Tasmania)(8.21) —It is necessary, as honourable senators are in the chamber, to alert them as to what the question was that was not answered by the Minister. The question related to a person in Canberra whose reputation had been impugned and that person took action-- Senator Gareth Evans —Are you going to declare your interest before you embark on this anecdote again? Senator HARRADINE —I did before. I have no interest because presumably in five years time that will be all over, as the Minister said. Let me make perfectly clear what the problem is and what the Minister has not answered in respect of Article 3, which is the key enforcement Article in the legislation. I take the example of somebody in the Australian Capital Territory whose character is assassinated. Under the law of the Australian Capital Territory that person can take out a defamation case. The Minister has stated that the defendant has the ability to raise under Article 7, freedom of expression, the point that the laws of the Australian Capital Territory in respect of defamation cannot be demonstrably justified in a free and democratic society, as covered by Article 3. Once a defendant has raised that issue, the Minister has stated that the onus of proof would be on the plaintiff, the person who has had his character assassinated; that he would have to prove that the defamation law of the Australian Capital Territory can be demonstrably justified in a free and democratic society. Previous to that, the Minister had stated that the judiciary could or would take into account, when determining what a free and democratic society was, all of the common law states, including the United Sates of America. Under those circumstances the plaintiff would have Buckley's hope of proving that the defamation laws of the Australian Capital Territory are demonstrably justified in a free and democratic society, if one took the yardstick of the United States or Canada. I then mentioned Article 3(2) which states: A right or freedom set out in this Bill of Rights shall not be limited by any law to any greater extent than is permitted by the International Covenant . . . This Article is related to Article 19 of the Schedule, which states that a limitation can be a law which is necessary to protect the reputation of others. I ask the Minister: Does that mean that if a plaintiff were able to prove that the defamation laws of the Australian Capital Territory were necessary to protect the reputation of others this would suffice? That is all I ask. The Minister is refusing to give an answer because he knows as well as I do that that would not be the case under Article 3(1); that is, that `demonstrably justified in a free and democratic society' overrides all of the limitations in the Schedule. That is to say that those particular limitations that are in the Schedule apply only insofar as the first test goes up to those limitations. The simple question that I was asking-it is a very important question-is whether, if the plaintiff were able to prove the test under the International Covenant, that would suffice, or would he have to prove the test under the `demonstrably justified in a free and democratic society' provision? That is a perfectly reasonable request. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(8.25) — The problem about responding to Senator Harradine's questions is that, even when he gets a coherent, intelligible and lengthy response, he takes no notice whatsoever and just embarks on yet another round of the kitchen. Senator Harradine —I take a point of order, Mr Chairman. That is a most unfair accusation. If the Minister can prove that, I ask him to prove it right here and now. Prove it! The TEMPORARY CHAIRMAN(Senator MacGibbon) —There is no point of order. Senator GARETH EVANS —A substantial number of the matters that Senator Harradine originally raised were already addressed in my reply before dinner. Senator Harradine —You haven't answered this question at all. Mr Chairman, I take exception to what the Minister has said. The TEMPORARY CHAIRMAN —You can only take a point of order, Senator Harradine. Do you have a point of order? Senator GARETH EVANS —If Senator Harradine can put his hand on his heart and swear by all the appropriate things dear to him that he has never engaged in repetitive responses in this chamber in the course of this debate, I would have great difficulty in accepting that at face value. Let me deal with his question. It begins with the scenario painted once again of a poor litigant in a defamation matter in the Australian Capital Territory in respect of which the defendant would call in aid his right to free speech, under whatever Article it is of the Covenant, which would then lead to an obligation on the plaintiff, not to prove by admissible evidence, as Senator Harradine stated earlier-that is a misstatement of the legal process involved-but to establish to the satisfaction of the court. That is a different but importantly different thing. It would be open to be the case that the plaintiff would then have to establish to the satisfaction of the court that the law was covered by the ambit of Article 3; that is true. I mention in that context that the plaintiff would undoubtedly have the aid, in embarking upon that enterprise, of the Attorney-General of the Commonwealth who would undoubtedly be willing to intervene in defence of the law in question in the context of an exercise of this kind. That is a particular matter that I know was exercising-- Senator Durack —What if the Attorney- General had been trying to alter the law, as you were, and failed? Senator GARETH EVANS —I suppose it would depend on what sort of alteration one had in mind. If it were a matter of cutting a complete swath through defamation law and taking the point that the defendant would obviously want to take on Senator Harradine's hypothesis, I doubt very much whether any Attorney would have gone to that state. If Senator Durack's reference is to my attempts to change defamation law for the better, I can assure him that there was no such enterprise involved in terms of the particular scenario that Senator Harradine painted. But let us get to that situation. It would be necessary for the plaintiff to establish to the satisfaction of the court, with undoubted forensic help from the Commonwealth or whoever was trying to defend their own law, that that was so. Then Senator Harradine started to erect layer upon layer of argument, each getting one step further away from reality. He said that the courts could and would-he was claiming to quote me-take into account the situation of other comparable common law countries. I did not at any stage say more than that that was possible for the courts to take into account. There is no necessary obligation upon them to do so. If they found it of assistance to them in exploring the way in which these issues had been resolved in other comparable common law countries, they would be entitled to do so. The expression `free democratic society' could not be construed as being confined to Australia. That was the sole point I was making earlier. It is a very large step to go from there to say that the courts would have to have regard to some sort of circular tour of every conceivably comparable country. It is an even greater step to go beyond that, in the way Senator Harradine then moved his argument, to say that a court, having been minded to look at United States of America law or Canadian law as it affected defamation, would then have to apply that United States and Canadian law as it found it. This is an extraordinary proposition and it is not one that follows from anything I have said or anything that is inherent or implicit in the Bill. Senator Harradine —That was not the question I asked you. Senator GARETH EVANS —The honourable senator did ask me that; I wrote it down. He spoke in terms of having to apply United States and Canadian law. Senator Harradine —It goes to the operation of 3 (2). Senator GARETH EVANS —I will get to that in a moment. The way in which Senator Harradine erects layer upon layer of argument as his rhetorical fancy takes him to get to an end point, a totally inconceivable and fantastic interpretation of the way in which a clause operates, is unfortunately an all too common debating habit of his. It is finely honed after years of practice down there in the Tasmanian Trades Hall, and he does it very well. All I am saying is that, when picked apart, one has to be able to justify each step of the argument. It is simply not the case that a court would have to have regard to what is well known to be a much more small `1' liberal defamation law environment in North America than is the case here in the sense that there is practically no protection for public figures, and there are a number of other considerations which have been argued about over the years which take freedom of expression very much further than has been the case here. A court would not be obliged to go down that track. It could also properly have regard to a very long tradition in the non-North American jurisdictions and not only the common practice in other Australian jurisdictions, apart from the Australian Capital Territory, but also in New Zealand and the United Kingdom. They all have laws familiar to the Australian courts, where for practical purposes defamation laws are on all fours with the Australian Capital Territory law. There are minor variations in the way in which different defences are constructed and written but the basic principles are the same. Obviously under those circumstances it would be a very easy matter for a court to be satisfied by a plaintiff, with some help from the Attorney-General no doubt, that this defamation law was the kind of law, although there might be policy arguments about aspects of it, which in its present form satisfied the test in Article 3 (1) about being a reasonable limitation on absolute freedom of expression of a kind that can be demonstrably justified in a free and democratic society. The world is littered with free and democratic societies with these kinds of defamation laws. Further, the court would undoubtedly have regard in making that determination to the language of the International Covenant on Civil and Political Rights itself. It would not have to have regard, in the way this clause is drafted-I acknowledge Senator Harradine's point on this-to every last nuance of every last sub-clause of the very extravagantly drafted permissible limitation in the Covenant itself but it undoubtedly would have regard to the language in the Covenant to see the sort of thing that was permissibly restricted. Clearly one thing that is permissibly restricted is a limitation on absolute freedom of expression designed, as Senator Harradine said, to protect the rights and reputations of others. In other words, defamation law is quintessentially the kind of thing contemplated by the Covenant. That takes us back to the argument about Article 3 (2) and its relationship with Article 3 (1). I hope I have sufficiently answered the point so far as it affects defamation law. What of the general issue of the inter-relationship between Article 3 (1) and Article 3 (2)? Senator Harradine says, and I am quoting him exactly, that it is not the case that the court would need to have regard under any circumstances-I am not sure whether he used the expression `under any circumstances'-to the conditions in the Covenant. Let me respond to that. Senator Harradine —`Be required'; I think that was it. Senator GARETH EVANS —It is not the case that the court would be required to have regard; as I recall it, he did use that kind of language. Let me say this: In the first place the court would be required to have regard to the language of the Covenant to the extent that it had to ensure that the permissible limitations it was prepared to acknowledge did not go further than the permissible limitations in Article 3 (2), so it would have to have regard to the language of the Covenant in order to check that the limitations it was prepared to acknowledge did not go further than that. I think the best way of putting it would be to say that it would be entirely appropriate for the courts to have very close regard to the particular provisions in the Covenant limitations in its interpretation and application of Article 3 (1) because the court will need guidance as to the sorts of permissible limitations that can be constructed within the ambit of Article 3 (1), and one of the very legitimate and available heads of guidance for that purpose-not least because it is mentioned already in Article 3 (2)-is the particular list of permissible limitations in the various clauses of the Covenant. The basic difficulty, and a reason, among others, why this clause is drafted as it is-this is to elaborate on an answer I earlier gave to Senator Sir John Carrick-is that the language of so many of those Covenant qualifications is so wide, so loose, that if literally interpreted to their fullest possible extent they would empty the parent rights of all content. What is left of the right of freedom of association or freedom of expression in the context of public demonstrations and so on if we apply the concept to its fullest possible extent? That is the French concept of ordre public. What would be left of the right of freedom of association and expression in public places if we even implied a Queensland interpretation of what public order considerations properly demand, properly entitle. Senator Harradine, wearing his old trade unionist hat, would want to argue very vigorously against some of the possible interpretation of concepts like public order as they could be applied to empty rights of content. What content would one give to the expression `rights of others', again in relation to freedom of association and freedom of expression in a public place, if one was minded to give it the fullest possible interpretation? One could say that the traffic laws of each jurisdiction in Australia, when read literally and absolutely, prohibit any kind of obstruction whatsoever, be it of a footpath or a roadway. Construed absolutely literally, the rights of others to stand or walk exactly where they want to are being infringed by any gathering of more than three people in a public place to express a view about something. This is the problem. If we apply each one of those avenues available in its absolute literal terms, as it appears in the Covenant, we can literally drive a coach and horses through the rights themselves. I go back to what I said before. The primary objective of the International Covenant and of this Bill of Rights is to protect the rights of individuals. That is clearly what the Covenant is all about, and constitutionally that is what this legislation is all about. The Government has taken the view that, provided we stay within the ball park established by those permissible limitations in the Covenant and provided we capture the essential spirit of what those permissible limitations are, we are implementing the Covenant in good faith for constitutional purposes by doing it the way we are doing it in a way that much better protects individual rights from the kind of depredations that Australian and other governments have wanted to place on them than we would if we went down the route favoured by Senator Sir John Carrick and apparently Senator Harradine of spelling out in elaborate detail every single one of the bits of language in the Covenant and attaching them to each particular right as it appears. Quite apart from all the presentational disadvantages there is that substantive disadvantage involved and that is why we have gone down track we have. I hope that that is sufficient an answer to all the points the honourable senator has raised. Senator DURACK(Western Australia)(8.39) —The Committee should be grateful that, at long last and with great difficulty, particularly for Senator Harradine, we have discovered the way in which Senator Evans, representing the Government, believes that these matters will work in practice. Having heard the Minister's lucid explanation of the situation, I am filled with ever greater concern and foreboding about what this exercise is that the Government wants us to support. Senator Evans has said-he is now really admitting what the critics of the Bill of Rights Bill, including me, have been saying all along-that the International Covenant on Civil and Political Rights is an entirely unsuitable charter to be adopting in this country as a Bill of Rights. Even assuming that we want to have a Bill of Rights, this Covenant is quite unsuitable. Not only is it completely out of date, not only is it addressing issues which were and I suppose are very live issues in the international community, which is largely comprised of nations which do not recognise individual rights at all-some efforts have to be made to try to improve that situation through the United Nations-and not only is it comprised of very broad generalisations about rights; it is hedged around with so many qualifications that any parliament, any tyrannical government, indeed any courts- Senator Gareth Evans —You thought it was good enough to endorse in 1980. Senator DURACK —I will come to that. If the Minister wants to dredge up that matter we will have another debate about it in a minute. The Bill of Rights is so qualified that it simply is not worth the paper on which it is written. The Government is now desperately worried that, having had its bluff called about these inspirations, if it has to admit that there is a covenant which has all these qualifications in it, it is not worth having. That is why the Government has introduced Article 3 (1), which has led to so much concern about the great vagueness and ambit that it will have and the power it will transfer to the courts. In order to overcome what is a very real and major criticism of the Covenant, the Government has introduced this new problem in Article 3 (1). I take up the point that Senator Evans loves to get back to; that is, why did the Fraser Government give any legislative recognition to the Covenant. The Fraser Government was anxious to ratify the International Covenant. Senator Gareth Evans —If it is a load of rubbish, why bother? Senator DURACK —The Minister, amongst others, thought that that was a great idea. Senator Gareth Evans —I still do but you don't. Senator DURACK —I do not know why the Minister thinks it is a good idea in view of the very substantial criticism he has just made of the Covenant. Perhaps if he had said that a few years ago it may have dissuaded the Fraser Government from bothering to ratify it. We had assumed certain international obligations and it was thought appropriate to ratify the Covenant. Nothing that the Fraser Government ever did in giving effect to its international obligations took any power away from this Parliament. We simply said that we would take advice from the Human Rights Commission about the way this Covenant was being observed in Australia. We left the matter entirely to the Parliament. We did not bring in a Bill which tried, by the most devious method I have ever seen, to impose the will of this Parliament on all subsequent parliaments. One of the most disgraceful propositions-I will come to this matter later-that any government has put in this Parliament is in the subsequent provision in this Bill which, as I have said, is a very devious attempt to make the will of this Parliament, which was elected in 1984, govern all subsequent parliaments despite the will of the people that may be expressed in subsequent elections. I come back to the point at issue. What Senator Evans has said in relation to the case that Senator Harradine keeps emphasising is, I think, quite an alarming admission about how this legislation will work: It is a dramatic expose of the way this Bill will work. Clearly what will happen-Senator Evans has now explained it-is that a court will have to determine whether or not existing defamation law in the Australian Capital Territory is in accordance with this Covenant. A judge will look at the whole of the Covenant and he may find that perhaps there is not very much in it that will help him to resolve the problem unless he becomes an expert in what is meant by public order under French law. I do not know whether there are some special rules about public health or morals. However, the general assumption probably is that there will be nothing in the qualifications to the Covenant's guarantee of freedom of expression which will help resolve the question about Australian Capital Territory laws. The judge will then be forced to look at Article 3 (1) to determine whether those laws are reasonable limitations, as can be demonstrably justified in a free and democratic society. Senator Evans says: `Look at all the other laws in Australia and comparable countries and you will probably come to the conclusion that they satisfy the test of 3 (1)'. However, there may well be a judge who wants to overturn current laws. He may have written some articles about it when he was a young, budding barrister or an academic. He may have been Chairman of the Law Reform Commission and formed very firm views about the need to give reasons for judgments, reasons for decisions by public servants, a case about which has recently been heard in the High Court of Australia. Who knows who the judge will be and what his state of digestion will be even on the day when he comes to making a decision. He may wish to overturn the laws. He may have very strong views about these things. I have met a number of lawyers who have strong views about the law and want to change it overnight. They do not want to have to go through the sordid political process that we go through in representing the people and giving attention to the views of the constituents. They have their great theories about how the law should be. What a golden opportunity this legislation will be. This will happen over and over again with the Bill of Rights. A judge will be able to say: `You will not have much difficulty in finding something to do with the law of libel which says that it offends a principle of freedom of expression'. One will be able to find laws that will almost be in contradiction of anything that is guaranteed in this Covenant. Nothing specific can be found in the Covenant which prevents restrictions, but people will turn to Article 3 (1) and there they will be able to have a field day. The reforming judge, particularly if he has a suitable amount of paranoia about his own views, will have a field day operating Article 3 (1). Ultimately, he may be corrected by an appeal court but that will depend on who happens to be sitting on the appeal court at the time. At least two things will result from this exercise, even if commonsense prevails in the end. Litigants will be faced with far greater expense, far greater trouble and far greater delay because of this court system having to be pro- cessed. Of course this Government is creating a completely new bonanza for the legal profession which I know is something Senator Mason does not want, nor do any of his colleagues. They are all very critical about the legal profession and how it rips off the community. The Government is creating the greatest bonanza for the legal profession. This legislation will put more money in the hands of the legal profession than anything this Parliament has ever done. It will give the legal profession this magnificent opportunity to take every point it can. There are always some judges who will be wanting to implement or give effect to their own obsessions about the law, how it ought to be and what it ought to be like. This Bill of Rights will be the greatest bonanza that they have ever had. Finally, Senator Evans's admission as to how a particular case that Senator Harradine has raised will work under the Bill of Rights is a very clear example of all the major dangers that there are and the major revolution that this Bill will bring about to the real detriment of Australians. Senator MASON(New South Wales)(8.52) —I do not know whether Senator Durack was addressing me personally in this matter but it may surprise him to know that I tend to agree with a good deal of what he has said. That is unusual, I know, but it does happen. I have listened to this debate for some considerable time with as much patience as I can muster. I would have thought that, by now, it would have occurred to the Minister that the problems with this Bill, the enormous amount of debate coming from it and the thousands of words of explanation that he has been finding it necessary to give, are a reflection of the ambivalence of the Bill; it really is as simple as that. As a non-lawyer, I am concerned deeply to look at Article 3 (1). As a layman I can understand, in my limited way, that the Government might say that the rights and freedoms set out in this Bill of Rights are subject to such limitations as are prescribed by law. I can understand that; that would have meaning to me. What I see in front of me now is apparently a formula by which the ambivalence is to be transferred to the law. I cannot really see how the Minister can wriggle out of this one. I am waiting with great interest to hear his views because it is not good enough for him to say `such reasonable limitations as are prescribed by law'. I would have thought that law was a matter of fact and precedent where possible. If we are going to have an issue of reasonableness and what is demonstrably justified in a free and democratic society as limitations or qualifications on the law, where does that leave us? The Minister brought up the question of traffic obstruction. He said that, if we were to administer that to the letter, we would have a terrible situation. I would agree with him there. The point is that nobody has tried to limit the traffic laws in such a way as to cover the point that he has made. It is left to the good reason and discretion of the community-the people who administer the law-and there is no other way that it can be done. With respect, it cannot be done by the Minister saying that he will qualify the law and make it ambivalent by these sorts of statements because he is leaving a door open on one side with the words `limitations as are prescribed by law' and we may be leaving another door open on the other side with the words `reasonable and as can be demonstrably justified in a free and democratic society'. If the Bill goes through like this surely it will have no intrinsic value to the society it is supposed to serve. Why bother with it? Why not go back to the drawing board and see whether there are ways in which the sort of criticism which has been made by all parties in this chamber can be overcome? Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(8.54) — Senator Mason's adherence to his Party's commitment to a Bill of Rights is either incomplete to put it mildly, or based on profound ignorance as to what a Bill of Rights is all about. Knowing Senator Mason as I do, I am inclined to make the appropriate judgments. Any Bill of Rights is based necessarily on generalised guarantees. That is of the essence of the concept of a Bill of Rights. The American principles about equal protection and due process of law are classic examples of generalised principles which have been interpreted over the years as being subject to all sorts of implicit limitations. Article 3 of this Bill of Rights spells out quite articulately what the basic principles of limitation shall be. Senator Mason —It doesn't. Senator GARETH EVANS —I appreciate that Senator Mason has the most profound difficulty in coping with anything more complex than a dog Act or a fencing Act. He has made that perfectly apparent by his performance in this chamber over the years. Such a comprehensive ignorance of basic principles of law really does not command a great deal of patience elsewhere. Senator Mason was at odds even with Senator Durack, whose opposition to this legislation has been intense and comprehensive, when he asked: `How could a court possibly be expected to construe a concept such as reasonable?' What an outrageous thing for a court to be confronted with the weighing and balancing that is involved in applying-- Senator Durack —I can tell you that that is one word in the legislation that they can cope with. Senator GARETH EVANS —Senator Durack conceded it, as he has to, because the statute book is absolutely full of instances of conferring that kind of discretion and that kind of responsibility on the courts. Okay, there are other words of that kind in the formula in Article 3 (1). But with Senator Mason's command of jurisprudence all these things are just jumbled together in a box and they all seem to him to be ambiguous, complicated expressions which do not give him the kind of certainty that he requires. The last 15,000 plain men who have written postcards to him-again in profound ignorance of what this is all about-have moved him to say what he has in the chamber tonight. My respect for Senator Mason's command of the issues is not great. On the basis of the contribution here tonight it is no greater than most of his other contributions on matters where he gets a sniff of some populist cause out in the community and away he goes. He mounts his horse, puts a posse together and goes rushing off into the west in chase of it, with total indifference to the merits of the particular argument that is before him. Today we have had another classic example. The enormity of this contribution was perhaps capped off finally with his last sentence. He said that no one has ever tried to extend traffic laws in the way that I mentioned in saying that an extreme interpretation of public order or the rights of others might possibly have encouraged. I just remind him of his fulminations of a couple of years ago on the Queensland traffic laws-he has forgotten that populist cause-which were based on an exaggerated respect for the rights of people to move without any inhibition or obstruction whatsoever down the streets of Brisbane, or anywhere else, if there were no other competing traffic demands at the time. That was indifferent. The Queensland traffic legislation, which was used to rule out demonstrations, marches, processions, expressions of the right to free expression and the right to free association, attracted the most intense passion on the part of Senator Mason and others. I am now trying to tell him, in my own somewhat irritated way, that if we write in language of the kind that we are being urged to it would enable that kind of justification to be used to override any competing claim of freedom of expression; for example, people's right to park their cars precisely where they want to, to drive them where they want to and to walk precisely where they want to at any time without any obstruction whatsoever. If we were to argue that that was a possible limitation of a kind that ought to be fully recognised and given literal and absolute expression in this Bill without requiring the courts to do the balancing exercise that is involved in Article 3 (1) and if Senator Mason honestly thinks that that is a sensible kind of thing to write into a Bill of Rights, his ignorance of what a Bill of Rights is about, or what its utility is, is even more comprehensively profound than I had hitherto thought. Senator MASON(New South Wales)(8.59) —I have noticed over the years that Senator Evans resorts to personal abuse when he does not have an argument. This is a classic case. He also resorts to misunderstanding deliberately what people have said. What I said was-I think the Hansard will demonstrate this-that he has the phrase `limitations prescribed by law' hedged in on both sides. That is what I said. I am asking him to explain how we get through that. As to his answer to the question on the obstruction of traffic laws, I said that it was not possible to limit every possible contingency by law and that a great deal is left to the discretion of the people who implement that law. Those were the only two points that I made. The Minister has not answered either of them and I wait for him now to answer them. Senator Gareth Evans —What was your first point? I could not understand it. Could you repeat it? Senator MASON —I will repeat it. This is the third time I have said it, and I know that the Minister is probably getting rather tired. I said that in Article 3 (1) the Government, or the draftsman or whoever perpetrated it, has that phrase `limitations prescribed by law' hedged in on both sides-on one side by the word `reasonable' and on the other side by the words `as can be demonstrably justified in a free and democratic society'. That is what my argument is with. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(9.01) —Of course it is hedged in because if one were to allow any limitation prescribed by law, this Bill of Rights would have no effect whatever on any existing inhibition of any given freedom. Senator Mason —But the Minister surely sees the ambivalence this conveys to the law. Senator GARETH EVANS —Will Senator Mason just go away, read the stuff carefully and read some article written by some sensible person somewhere that explains what Bills of Rights are all about? He should then come back when he has a rough idea of what on earth it is he wants us to waste our time carrying on about. As to his second point, that it is good enough to rely on the discretion of those who make and enforce things like traffic laws, I suggest that one of the greatest problems in the liberty of the subject that we have had is one on which Senator Mason and the rest of his colleagues-who have abandoned him on this occasion, to his fate-all fulminated about as to the fact that the law was absolute in the kinds of prohibitions it laid and the discretions it vested in those actually enforcing the law. It is in order to give people who have genuine claims of rights which can satisfy these tests some opportunity to argue against their being prosecuted and gaoled for breaches of law written and applied in an unjust way that we have the whole concept of the Bill of Rights, which it is Senator Mason's Party's policy to support. If he does not understand that and the concept, I do not know why on earth he is contributing to this debate. Senator HARRADINE(Tasmania)(9.04) —What Senator Mason said goes to the heart of the matter, given what the Minister said previously. Clearly in Article 3 we have a provision which places the onus of proof in a reverse situation. It also leaves up to a non-elected judiciary or a non-elected Human Rights and Equal Opportunity Commission what ought to be the subject of statute law properly determined by elected parliaments. That is the burden of what Senator Mason is saying and clearly that is a challenge to all of us as members of parliament. Are we to abdicate our responsibility in this question on these rights, which are said to be fundamental, and are we to have our duties usurped by non-elected bodies? Senator Gareth Evans —No. Senator HARRADINE —You are. Senator Gareth Evans —No, never. Senator HARRADINE —That is what Article 3 does. After a long period of questioning, Senator Evans has admitted-and I will get to his words-that, if one applied all the tests which are contained in the International Covenant on Civil and Political Rights, one would empty the rights of all their meaning. That is what he said. Therefore, what are we doing with this International Covenant? One must question whether the International Covenant is therefore a proper basis for the implementation of human rights into Australia. I am happy that the Minister has at last said this because, at a later stage, I shall refer him to something said by one statutory authority which is completely opposite to what the Minister said. I think the Minister is right and that the statutory authority is wrong. It will be interesting when the time comes for me to quote that to the Minister. Senator Evans —Give me a hint. Senator HARRADINE —They are not far away from you. It is clear that Article 3 (1) is meaningful only to the extent that the `demonst- rably justified in a free and democratic society' goes up to those limitations. Anything else goes. Therefore, it is clear that a judge may not have regard to whether or not the defamation laws are appropriate to respect the reputation of others. It may not specifically have regard to that limitation in Article 19 of the International Covenant. That is now clear. They are required, however, to apply the test in Article 3 (1), which is to determine whether the laws can be demonstrably justified in a free and democratic society. As the Senate Committee on Constitutional and Legal Affairs said: The formula in the Canadian charter is admittedly an overtly political criterion. This is the formula that the Minister has required and requires the judges to apply. Our Senate committee has said-it is the same test as in the Canadian charter, on your own admission-that this is an overtly political criterion. The Minister is requiring the courts to apply an overtly political criterion test to the Bill of Rights. I remind the Committee of something said by the former Chief Justice of Tasmania, Sir Stanley Burbury: I do not wish to be misunderstood when I say that I do not think it possible to establish a court which we could trust with such a solemn judicial task-- That is the interpretation of a Bill of Rights. He went on: The interpretation and application by any court of fundamental laws necessarily expressed in wide general terms leaves an immense area for the exercise of judicial discretion and for sharp differences of opinion between judges. Nor can many decisions in this area be based on bare legal reasoning. The personal attributes of the judge will often be stronger factors in moulding his opinion, his social, religious, political, philosophical and cultural background and beliefs. Complete objectivity is impossible. Judges who are entrusted with the solemn task of judicial review of Acts of Parliament to determine whether they should be declared void as infringing fundamental laws inevitably become legislators-legislators who are beyond the control of the democratic will. That is the challenge with which we are faced by this Government. That is the challenge about which we are reacting and it is necessary to test this again, and I make no apology for the questions I ask. Senator Evans is demeaning those of us who are not lawyers, but let me put a few legal questions to him in respect of practical application. If one looks at all the articles and applies the Article 3 test to the other articles, what has one left? Each article read with Article 3 means as follows. It means that a person has a right to X-say, freedom of expression-unless that right is cut down by law and the cutting down is demonstrably justified in a free and democratic society. Let us say that that person is prosecuted for an offence under, say, the Customs (Prohibited Imports) Regulations for the importation of prohibited imports in the pornography area, for example. Who bears the burden of showing that the Customs (Prohibited Imports) Regulations which create the offence are or are not in conflict with the Australian Bill of Rights? We have heard the Minister say that that burden is on the prosecution to prove, so the alleged criminal in this instance merely has to raise the question. Let us place it here in the Australian Capital Territory. The alleged criminal merely has to raise the question that the Australian Capital Territory Classification of Publications Ordinance is contrary to his rights under the Bill of Rights-freedom of expression; that he has the freedom of expression to put whatever he wants on to videos and to express that and sell it to whoever he wants to sell it to. All right; we now have the fact that he need only raise that question and the onus then is on the prosecution to prove that the law is demonstrably justified in a free and democratic society. In the context of that court case, it can only be proved by admissible evidence-that is to say, not hearsay and not opinion; it is not a matter of which judicial notice may be taken. Senator Gareth Evans —Why? Senator HARRADINE —I shall come to the Senate Standing Committee on Constitutional and Legal Affairs shortly, and I shall then tell the Minister. Any sort of evidence that would be relevant to proving that the Australian Capital Territory Ordinance is demonstrably justified in a free and democratic society and necessary to prove that would not be admissible. It would seem to me, at all events, to contravene both the hearsay rule and the opinion rule in practically all cases. Senator Gareth Evans —What did the Senate Committee say? Senator HARRADINE —I refer the Minister, in respect of the standard of proof for the prosecution in this case, to the question of how that accords with the views that were expressed by the Senate Standing Committee on Constitutional and Legal Affairs on the standard of proof in criminal proceedings. We are talking about criminal proceedings, let me make that perfectly clear. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(9.12) —Senator Harradine has confused the question of proof as to matters of fact in a legal proceeding and legal argument as to the proper interpretation and construction of the law. There is a very big gulf between the two sides of any given prosecution. This is the point of my earlier response, and this is yet another way in which the matter is being raised again. It is not a matter of proving by recourse to admissible evidence some question of fact as to whether X, Y or Z law is demonstrably justifiable in a free and democratic society. That is not a matter of fact which lends itself to proof so much as a matter of legal argument of a familiar kind in which the courts would have regard to all the material that is available to them in resolving a legal issue. They would have regard to comparable cases in other jurisdictions. Senator Mason —What you are saying now is not what the Bill says. Senator GARETH EVANS —Oh, for God's sake! Look, when you understand what the Bill says, make another interjection, Senator. Senator Mason —You are supposed to be there to defend it, Minister, I would have thought. Senator GARETH EVANS —I am sorry. Someone said earlier that Senator Mason would try the patience of an angel. I am no angel when it comes to the conduct of debates in this place, but I have been doing remarkably well in curbing my general intolerance of idiocy. There has not been too much of it; it has been a reasonable debate. But just silly interjections are calculated to get me irritated. I apologise, and I shall do my best to answer Senator Mason in due course. But just find out what in the hell you are talking about, Senator, before you make a further inane interjection. The Bill does not address itself to the difference between proof as to matters of fact and argument as to questions of law. The reason that the Bill does not address itself to that distinction is that it is axiomatic in the interpretation of any given piece of legislation in the operation of our legal system. It is an understandable confusion, but it is a confusion because they are two distinct concepts. So, questions as to reversal of the onus of proof in criminal matters and all the rest of those sorts of principles that we hold dear just do not arise in this way. It is a matter of the defendant, in the case that Senator Harradine now puts in issue, establishing some credible argument that the Customs law that is to be applied against him is prima facie offensive to the basic rights set out in the Bill of Rights. He has got to do more than simply put that in issue. He has to make some credible legal argument before the magistrate or the court hearing the particular matter will even ask the other side for some responding argument to that particular assertion. A person cannot walk out of the door of a court by simply saying `I claim that this particular offence for which I am being prosecuted is in breach of articles under the Bill of Rights', and then sit down, smugly folding his hands, throwing the onus on the other side, in the sense that unless the other side-- Senator Harradine —I understand that. Senator GARETH EVANS —Senator Harradine says that he understands that. The question just does not arise in that way. It is a credible matter that has to be put in issue, and if a credible argument is made that there is some matter in issue here, a credible response would have to be made. I should like to spend a few minutes, because this matter of obscenity has been raised, in just indicating that it is a good case study how this particular problem of pornography and obscenity has been handled in Canada when claims have been made that people's right to freedom of expression has been offended. Let us look at the way in which the Canadian equivalent of our Article 3 (1) has been applied. It is a very instructive example. None of the cases has yet reached the Supreme Court. They have all been resolved at provincial or local level; or perhaps in the provincial court of appeal-no, maybe not. But I am advised that in no single case has any pornography law of any kind actually been struck down, although a number have come before the courts, because it is a fairly obvious sort of pitch to be making. It is already clear that obscenity laws, provided only that they are sufficiently precise, are permissible limitations in Canada on the freedom of expression embodied in section 2(B) of the Canadian Charter of Rights and Freedoms. The Chief Justice of British Columbia, His Honour Justice Nemetz, expressed the overall position very succinctly in the case of R. v. Red Hot Video Ltd. The citation is 1985, 18 Canadian Criminal Cases (3D) 1 AT 4-5. He said: For centuries democratic societies have set certain limits to freedom of expression. Libel and slander are two such limitations. That picks up our earlier debate. He continued: Obscenity is also a limitation. As Mr Justice Dickson (now Chief Justice of Canada) said in Queen against Great West News Ltd, Mantell and Mitchell- and here he quotes the Chief Justice- All organised societies have sought in one manner or another to suppress obscenity. The right of the state to legislate to protect its moral fibre and well-being has long been recognised, with roots deep in history. It is within this frame that the courts and judges must work. Justice Nemetz continued: Again, the learned Chief Justice considered the scope of free speech under the old Canadian Bill of Rights- the old 1959 Canadian Bill of Rights- . . . and said this in part, in the case of the Queen against Prairie Schooner News Ltd: Freedom of speech is not unfettered either in criminal law or in civil law. The Canadian Bill of Rights was intended to protect, and does protect, basic freedoms of vital importance to all Canadians. It does not serve as a shield behind which obscene matter may be disseminated without concern for criminal consequences. The interdiction of the publications which are the subject of the present charges in no way trenches upon the freedom of expression which the Canadian Bill of Rights assures. Two cases in this area of which I am further aware have involved challenges to section 159 of the Canadian criminal code: The Queen v. Red Hot Video Ltd, which I cited earlier, and the Queen v. Ramsingh et al in 1984. Section 159 of the Canadian criminal code proscribes, among other things, obscene matter which is defined to include: Any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence. In each of the two cases I have mentioned section 159 was held to be a permissible limitation on the Charter's freedom of expression and the accused in each case were held to have been properly convicted of offences under section 159 relating to obscene films. In both cases, the courts upheld section 159 because it was a quite precise provision, readily capable of application to particular cases. In this regard Justice Anderson, on page 11 of the Red Hot Video case, quoted with emphasis the following passage from the judgment of the European Court of Human Rights in the Sunday Times v. United Kingdom Government (1979), European Human Rights Reports 245 at 271, where the Court was considering the contents of the phrase `prescribed by law'. The passage is as follows: A norm cannot be regarded as a `law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: He must be able-if need be with appropriate advice-to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. It was because of a lack of precision that the Ontario High Court of Justice in the case of Ontario Film and Video Appreciation Society v. Ontario Board of Censors in 1983, 147 Dominion Law Reports (3D) 58-this is the only case that has gone the other way-decided that a power vested in the Ontario Board of Censors to `censor any film' and `to approve, prohibit or regulate the exhibition of any film in Ontario' conflicted with the Charter. This was because there were no criteria having the force of law which governed the exercise of the Board's discretion. The Court said: It is not enough to authorize a board to censor or prohibit the exhibition of any film of which it disapproves. That kind of authority is not legal for it depends on the discretion of an administrative tribunal . . . this does not mean that the censorship schemes set out in the theatres act is invalid. Clearly the classification scheme by itself does not offend the charter. Nor do we find that ss. 3, 35 and 38 are invalid, but the problem is that standing alone they cannot be used to censor or prohibit the exhibition of films because they are so general, and because the detailed criteria employed in the process are not prescribed by law. Similarly-this is Senator Harradine's issue-it has been held that a prohibition on the importation of `immoral or indecent' material, where those terms are not defined in the legislation, is not permissible under the Canadian Charter. On that occasion, the Federal Court of Appeal, in re Luscher v. Deputy Minister, Revenue Canada, Customs and Excise in 1985 said: A limitation which is vague, ambiguous, uncertain, or subject to discretionary determinations is, by that fact alone, an unreasonable limit. A few other cases apparently have been decided under the Charter in this area, but the cases to which I have referred-there have been no others going in a completely different direction-disclose a clear and, I suggest to the Senate, very sensible and understandable pattern. In the first place, laws which proscribe obscenity, provided they are sufficiently specific for the citizen to know what is lawful and what is unlawful, will be permissible. Censorship laws which are successfully challenged will be invalidated, not because they can be used to prohibit obscenity, but because they are so vague and ill-defined that they are capable of outlawing material that could not in any way be regarded as obscene. It seems to me that if that sort of approach were adopted by Australian courts under the Australian Bill of Rights-we know have an accumulation of authority under the Canadian Bill which makes that certainly, I guess, more likely than not-it would be an eminently acceptable course to follow. I think that is an instructive canter through the Canadian cases because so much can be made in the abstract about these generalised expressions, where so much depends in practice on the common sense of those applying it. I make the point-the hoary old chestnut about judicial legislation-which really is to repeat a point that has been crucial to the Government's presentation of the whole Bill of Rights from the outset, that the final word on any question involving the application of this Bill will be left to the elected Parliament. If the Parliament does not like the way in which the courts interpret the phrase `demonstrably justified in a free and democratic society' in some particular case, it is up to this Parliament to act accordingly to correct some clear and obvious misapprehension of the law. The last word is not with the judges, but with the Parliament. That is a tremendously important point to be making and restating in principle whenever the point is made about judicial legislation and judges going off on some frolic of their own, which was the centrepiece of Senator Durack's contribution. I make my last point in response to Senator Durack and remind him of what Lord Scarman has said on the question of the political pressures on judges, because I think it very neatly encapsulates the point-not that it should need encapsulating in the Australian context where judges have been long familiar with passing upon matters of high political significance in their role as interpreters of the Constitution. In the British context, where this role is much less familiar for judges, Lord Scarman said: We can, therefore, dismiss as completely unsound such objections as those which, frequently heard in the United Kingdom, are variations on the theme that judges must not be brought into the political arena. They are there already-as umpires, not gladiators or competitors. They have always been there and there they will remain. There is nothing inappropriate in requiring judges to decide justiciable issues arising in a political struggle: and no reason for judges not to be trusted to act judicially and according to law, though the case raises political as well as legal questions. That is as succinct a statement as one could possibly find. To suggest that the Australian judges are incapable of acting judicially in accordance with the guidelines that will be given to them under the Bill of Rights is to express something which I think is simply not based on fact. Senator HARRADINE(Tasmania)(9.28) —In respect of the last matter, the Minister knows as well as I do that once these matters are determined or arranged by the Human Rights and Equal Opportunity Commission or the judges it will be a very difficult task to have legislation brought into the Parliament. There is no guarantee that the Government would do it. Certain interests and rights, if you like, of citizens will be taken away from them by the operation of this Bill. They will have no recourse to the ballot box, because those rights will be taken away by a non-elected Human Rights and Equal Opportunity Commission or non-elected judges. What Sir Stanley Burbury said was absolutely correct. I would have thought that the Minister would consider the question of pornography and obscenity laws in far more depth than he has done. What he has done has been to cite certain cases which apply to a type of pornography which would be completely beyond the pale in Australia. Senator Gareth Evans —That is unfair. I have referred to the whole pattern of interpretation. Senator HARRADINE —Yes, I know. But the Minister is talking about a type of obscenity or pornography that would be completely beyond the pale in Australia. Let me quote to the Minister what the report of the Canadian Special Committee on Pornography and Prostitution in Canada said about the application of Canadian laws; that is, the 1982 Bill of Rights-- Senator Gareth Evans —When was this? Senator HARRADINE —This was last year's report. Let me quote it to Senator Evans, because it is very important. The Minister has said all along that rights under this Bill, such as the freedom of expression, will have to pass the `demonstrably justifiable in a free and democratic society' test. So far as Canada is concerned, page 56 of the report states: One of the crucial components of thinking behind these definitions- that is, the definitions in the Indianapolis legislation, the United States legislation- of pornography is the association between pornography and misogyny, or woman-hating. It goes on to talk about how that was developed and then it says: In our view, this theoretical approach to pornography (or to the new pornography) is a valuable contribution to the debate. We think that the shape of the law should be taken not just from the general understanding of pornography expressed in our reworking of the Williams Committee's definition, but also from an awareness of the particular violence to women's aspirations and equality which figures in many of these representations. Again, however- and this is the Committee talking- we see some difficulties in completely absorbing into the criminal code the definitions proposed, particularly the Indianapolis by-law definition. We are concerned about having in the criminal law very broad terms that would cover a wide range of conduct. This is the key point: To criminalise images that present women as commodities would catch much of contemporary advertising and we think that such an approach to the problem in advertising would be regarded as contrary to the Charter of rights guarantee of freedom of expression: It goes on: It is not a `reasonable' limit on the rights. Similarly, a prohibition on presenting women as whores by nature might be regarded as so vague as to offend the freedom of expression guarantee. That is the sort of argument that would be advanced in the Charter of Rights under this sort of provision. Senator Gareth Evans —That is a policy argument to be had in any country in the world. It is a very live issue. Senator HARRADINE —But it is a policy argument and it is a matter of public policy which ought to be determined by the Parliament and not by non-elected judges or the Human Rights and Equal Opportunity Commission. I will come to the Commission later. I will just talk about the United States of America. It was the Minister who raised the question of the United States in the context of judges having regard to what happens in a free and democratic society. What has happened in America, in that free and democratic society? I quote again from the Canadian inquiry into pornography and prostitution in Canada. It says this: Despite the fact that there is a tremendous amount of legislation in the United States aimed at it, pornography is freely available in that country. The major reason for this apparent inconsistency arises because of the interpretation that has been given to the guarantee of `freedom of speech' in the First Amendment to the American Constitution. That is the American Bill of Rights. I think that the Minister has been hoist with his own petard because it was he who talked about the Canadian situation. We have legislation in place, inadequate though it is, concerning this matter of major public importance. The Government has now opened the way for those who wish to attack that legislation. The Government has given them a weapon under the freedom of expression. That is the weapon it has given them. It has also given them an added weapon-the weapon of privacy. It was the implied privacy provisions-there is no express privacy provisions in the American Bill of Rights-in the American Bill of Rights that, of course, allowed the possession of the most outrageous types of pornography, including child pornography and other material, in the United States. That is the sort of weapon that it has given. The Minister could blunt that weapon if he was to place in that Article at least the provisions that are contained in Article 19 of the International Covenant from which that Article was derived. I ask the Minister to give that proper consideration, not get into an adversary situation. It is all right to laugh. Senator Robertson —You talk about being adversary. You can hardly be called rational with your comments at the moment, can you? Don't accuse the Minister of being an adversary. Senator HARRADINE —Is it not rational for a member of parliament to get up and attempt to defend the legislation or the provisions in the Commonwealth relating to this major matter of public importance? Senator Robertson —You talk about being adversary, which you are. Senator HARRADINE —I accept that. If the Minister could look at that situation and study it thoroughly, he will have to admit that there is an opportunity given by the Bill of Rights to persons who want to undermine those laws. Can that opportunity be closed off? If so, how can that be done? When we come to it-we probably should not be debating it at this time-can we incorporate into the ABR that Article and the provisions relating to the protection of public health and morals in the ICCP? Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(9.38) — Can I just suggest that specifically incorporating the language of the Covenant into the relevant article here is unlikely to alter the basic course of interpretation which a court might be minded to adopt because the language is so loose and so general. Of course, having regard to the rights normally involved in ordinary common law, free democratic societies of our kind, courts will acknowledge that it is standard practice for there to be laws having regard to the rights and reputations of others. Courts will equally have regard, as the Canadians have, to the reality that free and democratic societies traditionally do legislate to deal with the question of pornography and censorship. Just simply having references there to those open-ended categories in the Covenant of public order, public morals and all the rest of it is unlikely, with the best will in the world, seriously to advance the cause much further down Senator Harradine's preferred direction than would be the case if the Bill were constructed as it is. A lot of thought has already been given to that and the Government is not minded to change its views about the way in which these provisions should be constructed, not because we are irrationally resisting a reasoned discussion of this but because we have, we believe, thought our way through it and we believe there is a sensible balance there already. The United States of America is always a difficult example in some ways, particularly when one is talking about rights going to the area of freedom of expression, because it is traditionally notoriously the case that the United States has carried the concept of freedom of expression further than most other democratic societies have in terms of the almost, it seems, absolute primacy that American culture and the court system has been willing to give to the concept of freedom of expression. It is a total article of faith. That is, as we were discussing earlier in the context of defamation, one of the reasons that American defamation law is infinitely less protective of public figures than is the case elsewhere in the world. That is another incidence of the general total respect for freedom of expression. That is so notorious that, while a lot of other Bills of Rights provisions about equal protection and so on are quite likely to derive a lot of nourishment from the American example, I think that the courts will look fairly cautiously at the body of American precedent that has built up around freedom of expression because of the reasons that I have just mentioned. The kind of experience that the Canadian courts have already established-I am referring not just to a commentary on the possible application of the Canadian charter to a hypothetical situation, but to the cases that have been resolved, which cover quite a wide spectrum of factual issues-- Senator Harradine —But they are of different quality. Senator GARETH EVANS —But the principles that have emerged about the need for precision in legislation so that there is not uncertainty, excesses of administrative discretion in determining what is legitimate and what is not, combined with a willingness to accept the legitimacy of censorship legislation as such, are things that we could perfectly sensibly accommodate, live with and regard as appropriate in the Australian context. I make the point that even in the United States context-where there is the tradition to which I have referred, and where on almost any view of the law of defamation, obscenity and freedom of political expression in the form of the right to physically demonstrate and so on the American courts have traditionally gone further than those elsewhere-the law on obscenity is by no means the open slather that Senator Harradine would have us believe. The court got itself into difficulty and uncertainty in the early 1960s on obscenity issues. Senator Harradine —If you are going for the Miller test we can have a great discussion about that. Senator GARETH EVANS —Just as there has been a great discussion over the decades in Australia about some of the statutory concepts of obscenity and so on, one can have an argument about the Miller test. I indicate for the record what the Miller test is, as it has been operative since 1973 and has been developed in a number of cases since then. In the case of Miller v. California the courts further developed an argument that they has started with the Redrup case in 1967. The three basic guidelines for triers of fact are as follows: Whether the average person, applying contemporary community standards, would find that the work in question, taken as a whole, appeals to the prurient interest; whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable State law; and whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. That is the kind of test that the US Supreme Court is now applying to the obscenity cases that come before it. It is regarding as permissible those local statutes and ordinances which rule out obscene material by reference to those sorts of standards. Senator Harradine —Child pornography; that is about it. Senator GARETH EVANS —I ask the honourable senator to consider whether if State laws outlawed child pornography-as I think most of them do-these three tests taken together could justify that ban under the US Bill of Rights, as interpreted by the Supreme Court? Senator Harradine —Yes, it would but not other types of pornography. Senator GARETH EVANS —The honourable senator keeps changing the ground rules of debate. He would have made an absolutely first rate seminarian. Why he was lost to that discipline and inflicted himself on us, I do not know. It makes life very difficult. I meet one point and immediately the ground changes. I meet that point and the ground changes again. I am happy to deal with each separate point that the honourable senator makes, but for God's sake let me acknowledge that the ground keeps changing. Any kind of pornography which to the average person, applying contemporary community standards would be regarded as appealing to prurient interest, which depicts or describes in a patently offensive way sexual conduct specifically defined-it has to be defined under applicable State law-and which lacks serious literary, artistic, political or scientific value is obscene. Is that so unreasonable a test of obscenity that one can disregard the whole US experience as being a bizarre aberration and one that if applied to Australia would be totally destructive to the values that Senator Harradine holds dear? I do not believe that one can. True it is, as with all those sorts of tests, as we discovered in Australia after many years of litigation and prosecution, there can be argument about those sorts of tests in particular situations. There certainly can be argument about what is of redeeming scientific or literary value. Senator Crichton-Browne —That is a very subjective judgment. Senator GARETH EVANS —It is. I have already acknowledged the point so the honourable senator should not give a great cackle of triumph. But the point with which we are being belaboured is that the forces of libertarian light, as I would say-or darkness, as Senator Harradine would say-in US society have created a situation in which there are simply no ground rules. They have been torn up by the US Supreme Court. That is not true but the basic point, the one with which I started-I hope it will be taken seriously-is that I think that is far more likely that Australian courts, applying this standard with the aid of the Canadian test, which does not exist in those terms in the US, would come up with balanced solutions to these problems that would be sensible, and to suggest otherwise is to express an unjustified lack of confidence in the sheer common sense of our judiciary. Senator HARRADINE(Tasmania)(9.46) —It is unfortunate that the Minister has suggested that the ground rules were changed. They were not. I am surprised that the Minister's advisers- Senator Gareth Evans —You say child pornography. I say that child pornography is covered and you say other kinds of pornography. Senator HARRADINE —I did not say the child pornography was not covered. I was reading from a report. I am surprised that the Minister's advisers have given him a statement about the Miller v. California case, simply to state to this chamber. If the Minister read that test without knowing the end result, he would agree with what he says. The Canadian inquiry stated: Pornography is freely available in that country. The major reason for this apparent inconsistency rises because of the interpretation that has been given to the guarantee of `freedom of speech' in the First Amendment to the American Constitution. The Minister quoted Miller to me. The Canadian inquiry quoted Miller and then said: The upshot of this landmark decision has been that much of what is commonly considered pornographic is protected from regulation by both the state and federal governments. In fact, the Miller test that the Minister has just read out had the effect in the US of striking down laws which deal with pornography. It has not dealt with-- Senator Gareth Evans —You cannot dismiss the whole US experience with one sentence taken out of a report of which nobody has ever heard. Senator HARRADINE —It has not dealt with those laws in a manner that would strike down laws prohibiting child pornography. That is what I said before, that insofar as child pornography-- Senator Gareth Evans —Of course they would strike down child pornography. Any reasonably explicit statement dealing with child pornography would be struck down by the Miller test-and it has been struck down. Senator HARRADINE —That is what I said. It was tested in the New York v. Ferber case. That is not the point that I was making. What I said previously that there was no law in the US which can be maintained against the possession of child pornography because of-- Senator Gareth Evans —That does not follow. Senator HARRADINE —Will the Minister listen? I was about to say that there is no law in the United States which can be maintained against the possession of child pornography because of the inferred right to privacy in the American Constitution. If the Minister had read on this particular subject he would know what I am talking about and would not have misunderstood. His misunderstanding of what I was talking about was due to his ignorance on this matter. Senator Gareth Evans —You have changed the ground again. You have moved from freedom of expression right to rights to privacy, which again have been fairly extravagantly dealt with by the United States Supreme Court, I cheerfully acknowledge. Senator HARRADINE —I have not been changing ground. I was stating the situation of the law which has been tested on two different grounds. Insofar as the general pornography question is concerned, as the report states, the upshot of that landmark decision-that is the decision on freedom of expression-has been that much of what is commonly considered pornography is protected from regulation. That relates to freedom of expression. But on the basis of the inferred freedom of right to privacy, no law in the United States, as I understand it, can prohibit the possession of even the worst kind of pornography such as child pornography. America is a free and democratic society. The simple point that I was putting to the Minister, which has not been properly dealt with, was why give a tool to those who want the worst types of pornography in Australia-violent pornography and child pornography-when that can be blunted by putting into the Bill of Rights the limitations in the International Covenant? Article agreed to. Article 4 (Equal Protection of the Law). Senator Sir JOHN CARRICK(New South Wales)(9.52) —Article 4 is in two parts. The first part appears to conform with the International Covenant on Civil and Political Rights. The second part almost certainly is outside that Covenant and would be unconstitutional. If, indeed, one were to apply all the arguments that the Minister has used with regard to Article 3, certainly Article 4 (2) would be unconstitutional. I presume that Article 4 (1) derives from Article 26 of the Covenant which states: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The important point to understand is that Article 26 of the Covenant contains nothing relevant to Article 4 (2) of the Bill which states: Nothing in this Bill of Rights affects the operation of any earlier or later law by reason only of the fact that the law discriminates in favour of a class of persons for the purpose of redressing any disabilities particularly suffered by that class or arising from discrimination against that class. I ask the Minister specifically what head of power he uses to justify Article 4 (2). Nowhere that I can see within the Covenant is there any such qualification which allows the discrimination. I point out that Article 4 (2) is a qualification in terms of discrimination-affirmative action in fact-which permeates the whole of the Bill of Rights. If it is to stand it will allow that affirmative action within the Bill because it states that nothing in the Bill affects the operation of discriminatory law in favour of people. If, on the other hand, it were to be struck down, if it were unconstitutional, not only it but many parts of the Bill would also suffer. That is a very important point. The Minister made it very clear that Article 3 (2) has a particular meaning-that it really set the tone for anything that happened in this Bill of Rights. If one wants to know the parameters of power of the Bill of Rights one refers to Article 3 (2), which refers one to the Covenant in which will be found the head of power within which one can manoeuvre but nowhere beyond it. Nowhere can I find within the Covenant anything that relates to Article 4 (2). That is a considerable worry in itself because, whereas Article 4 (1) is expressed in sufficiently wide terms, as I understand it, to guarantee the rights of which Article 4 (2) refers, Article 4 (2) adds nothing to Article 4 (1) but has the capacity to detract from the equal protection of the law guaranteed by Article 4 (1). In other words, the rights guaranteed by the first part of Article 4 are subject to the group rights favoured by the government of the day and permitted by Article 4 (2). Therefore, Article 4 (2) acknowledges that at different times there may be different forms of group rights. I put to the Minister that this is hardly consistent with the notion that the Bill of Rights provides a charter of fundamental freedom. There is no equivalent provision in the Covenant that I can see. Indeed, Article 26 of the Covenant, upon which Article 4 is obviously based, is expressed in terms which are different from Article 4 (2). Article 26 prohibits any form of discrimination whereas Article 4 (2) permits certain kinds of discrimination. Article 4 (2) therefore, in my view, and certainly in the view expressed by the Law Council of Australia, should be deleted. But there is a much wider problem than that. If one were to look at clause 47 of the Bill, which we will come to later, it seeks to protect the Bill from any illegality or unconstitutionality of a part. It states: If this Act exceeds the powers of the Parliament by reason of the inclusion in the Bill of Rights of a particular provision or particular provisions, this Act is intended to operate as if that provision, or those provisions, as the case may be, were omitted from the Bill of Rights. The difficulty there is one that I foresee, as does the Law Council. It points out that clause 47 therefore has capacity to create difficulties of interpretation and that these difficulties are best exemplified by reference to Article 4 (2). The Law Council of Australia states: Because of the objects it seeks to achieve Article 4.2 is reasonably pervasive and the fact of its inclusion or omission may affect the manner in which other Articles might be interpreted. Article 4.2 is designed to ensure that laws which permit benign discrimination or affirmative action are not invalidated by reason of other clauses in the A.B.R. Its operation will therefore colour the manner in which the courts will interpret and apply certain of the rights and freedoms set out in the A.B.R. This is emphasised by clause 4 (5) which deals with internal conflicts in the A.B.R. If, as clause 47 contemplates, Article 4.2 is omitted because it exceeds the legislative powers of the Federal Parliament, its omission will alter the thrust of the A.B.R. from one which permits benign discrimination to one which asserts (as does the Covenant) the equal protection of the law without discrimination referred to in Article 4.1. In short, it is not always possible simply to omit invalid Articles from the A.B.R. without significantly altering the operation of the A.B.R. The intended operation of Clause 47 draws attention in another way to the desirability of the A.B.R. adhering more closely to the Covenant (which it is intended to implement) and to the difficulties which could flow from the inclusion of Article 4.2 (which has no counterpart in the Covenant and which appears to compete with Article 26 in the Covenant. . . Although Clause 47 is designed to prevent successful constitutional challenge to the Bill, it is possible that, for the reasons, set out above, a court would hold that Article 4.2 was so pervasive in its effect as to be incapable of severance from the Bill and that the entire Bill was therefore beyond the legislative power of the Parliament. Let us have a little look at that, because they are very important words indeed. I go back to the Minister's arguments on Article 3. He cannot have it both ways. He says that each of the parts of the 32 articles must be related by Article 3 (2) to the overriding influence and domination of the Covenant itself and therefore they stand as valid, they stand in their limitations and their strengths, by that test. I invite the Minister to tell me where in the Covenant one finds Article 4 (2). I think he will agree that it does not exist and that nowhere is there given an embracing qualification for the whole of the Bill of Rights, bringing about the ability to apply affirmative discrimination-discrimination in favour of people. This seems to me to be an incredible paragraph that has been inserted. The first provision is, in itself, clearly within the Covenant. It says that every person has the right without discrimination to the equal protection of the law. The fact of the matter is that that is a goal, a pious hope. Let me simply say that certainly within this country not every person has the right without discrimination to the equal protection of the law. The poor may apply for legal aid and the rich may have the money, but there is a middle ground of people who cannot afford access and therefore this provision in itself at this moment is not exactly a full protection for those people. Nevertheless, if we are dealing simply with principles it is within the Covenant. Article 4 (2) is not within the Covenant, on my reading of the Bill, and indeed upon the reading of the Australian Law Council. It is further evidence of the great danger of bringing forward a Bill which becomes a feast for lawyers, which really threatens immediately the constitutionality of the Bill and which, when ordinary people try to read it, has no meaning. How can it have a meaning? If ordinary people read it, how are they to know that fundamentally it is not part of the Covenant itself? This is the dilemma that I raised earlier this afternoon. We have an article standing on its own and purporting to be legal and constitutional under the head of power. How can it be otherwise? The Government has said that this whole Bill stands on its feet because it comes under the treaty power, clause 51 (xxix), of the Commonwealth Constitution. It says that we can get these powers if we go to the International Covenant. Yet there is no doubt that the second paragraph of Article 4 has no head of power within the Covenant. I invite the Minister to direct his attention specifically to where I will find that head of power which governs the inclusion of Article 4 (2). Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(10.05) —I hope that Senator Sir John Carrick continues to take the strict view he has just articulated about the need for each provision in the Bill to have a precise co-relative base in the Covenant when we get to things like the proposal to insert a right to property, a right to education and a number of other bits and pieces. Senator Sir John Carrick —But the Minister said that I should do exactly this. In his own words, each of them must draw its power from the Covenant. So it is not I. I am inviting the Minister to comment. Senator GARETH EVANS —Indeed. Lest I harbour the suspicion that merely a debating point is being made here, I simply make the point that some consistency of approach equally from Senator Sir John Carrick would be appreciated when we get to examples further down the track which much more unequivocally than this provision, as I will explain, involve quite new claims of right with no relationship whatsoever to anything in the Covenant at all being proposed for placement in the Bill. I maintain the position that I have taken all along, that this is a piece of legislation based squarely on the Covenant. It is designed to pick up and apply the rights contained in the Covenant and its constitutional validity will be much enhanced to the extent that it conforms in every respect with the Covenant. However, that does not imply or entail that every statement in this legislation needs slavishly to adhere to the literal expression of the right, or the qualification of the right, as we have just been debating with respect to Article 3, that appears in the Covenant itself. I make those points at the outset. Turning to the specific point raised, it is the case that there is no specific language that one can find in the Covenant on which Article 2 directly draws from the chosen mode of expression. However, that is true in a sense of both Article 1 and Article 4 of the Bill of Rights. Two provisions in the Bill of Rights deal with equality matters-Article 1 and Article 4. There are two provisions in the Covenant-Article 2 and Article 26. It is not the case that there is a precise correlation in the drafting of the Bill of Rights provisions with the literal language that appears in those two articles in the Covenant, for the reason, as I sought to explain on another day when we were debating this, that the articulation of equality guarantees is a notorious area of conceptual confusion in Bills of Rights, in both international and national documents. There is a terrible tendency to mix up the different concepts and express them in an obscure way. We have reached into the equality rights as expressed jointly by Article 2 and Article 26 of the Covenant and drawn from them the essence, as we perceive it, of those equality guarantees there set out. We have then expressed that essence in two separately defined and drafted clauses. Honourable senators will recall that Article 1 of our Bill of rights expresses the principle of equality before the law-the notion, as we debated previously, that no one, be he ever so high or ever so low, is entitled to ignore the law or is able to escape the application of the law. The corollary is that the law, as it is set out in this Bill of Rights and the rights and guarantees therein are equally applicable to everyone, whoever they are and whatever their status. That is one concept. The other concept is the Article 4 concept of equal protection of the laws. As I said earlier and I repeat now, this is a much more substantive guarantee to ensure that everyone is, at least prima facie, treated equally in the same substantive way. No one is given any differential advantages, no one is given any differential disadvantages. That equal protection guarantee is not, however, one that can be enjoyed without qualification because laws of all kinds need to discriminate between people for a whole variety of good reasons. It is the case that equal protection laws in the United States and other jurisdictions where they exist have always been interpreted as justifying differential treatment provided there is some objective and reasonable justification for the different treatment. As a primary principle, like cases are treated alike. The notion of reasonable grounds for different treatment is one that is absolutely inherent in the concept of equal protection of the law. For the purposes of clarification and to put some of these principles and their application beyond doubt, the Government has decided-this may prove to be constitutionally risky and that is a risk that the Government for ill or better has chosen to take-to go one step further and draw out and articulate, as part of its expression of what equality clauses are all about, one further corollary of the equal protection concept; that is to say, not only can laws of differential application be justified when there is some reasonable basis for doing it but specifically laws can be designed as the clause states to discriminate `in favour of a class of persons for the purpose of redressing any disabilities particularly suffered by that class or arising from discrimination against that class'. Laws that can satisfy that description will be regarded, in effect, as laws for which there is reasonable justification. That is on the basis of a whole pattern of interpretation in the United States and elsewhere which says that some degree of benign discrimination is in fact permissible. It is part of the whole philosophical concept of equal treatment that affirmative action or benign discrimination, unequal treatment but for some good reason which favours not only in a negative way but also, on occasions, in a positive way, can be justified in principle. If anyone is interested in the subject, I wrote a very learned and lengthy article on it about a decade ago. It appears at page 26, 1974, volume 6, Federal Law Review called `Benign Discrimination and the Right to Equality'. That explains the principal justification for this drafting. At the time I thought it was a pathbreaking article. It involved a comprehensive analysis of different philosophical contents. Like most other things in my past it seems to have drifted into the mist. What I am trying to say simply is: The equality concept is a complicated one. Senator Withers —If only you were dead you would be an authority. Senator GARETH EVANS —I am working at it, seeing how the Opposition is treating this piece of legislation, but I will take a few with me when I go. What I am trying to say is that there is not a neat one-to-one correlation between the language of the equality of rights as they appear in the Bill of Rights and those that appear in the Covenant. There are certain things that are implicit in the concept of equal protection which can, among other things, be spelt out in the way in which they are spelt out in Article 4(2). Senator Sir JOHN CARRICK(New South Wales)(10.15) —I have listened very carefully to the Minister. I have to say to him that one thing is very clear. He has said that it is true that Article 4 (2) finds no niche at all for a head of power under the International Covenant on Civil and Political Rights. Senator Gareth Evans —No expressed one; an implicit one. Senator Sir JOHN CARRICK —So expressed. He used all sorts of gentle euphemisms that it is not said literally that way. I put it to him that Article 4 (2) is diametrically opposed to Article 4 (1) in its impact. There is no question that these fine little euphemisms hedge the argument at all. Article 4 (1) and the Covenant are clear. Every person has the right to the equal protection of law without discrimination. There is no qualification to that in either the Bill or the Covenant. It is an absolute nonsense to say: `You must not take it literally'. Article 4 (2) can get away with it because it says that nothing in the Bill shall in any way strike down laws that discriminate in favour of a class of persons for the purpose of redressing any disabilities particularly suffered by that class or arising from discrimination against that class. That is not just a major qualification but a major difference which runs through many of the articles. Senator Walters —In opposition too. Senator Sir JOHN CARRICK —In many ways they are completely opposite. The Minister has said: `We are taking a few risks'. He asked me to stick to my principles. Let him stick to his last principle. No doubt he will take a few risks on heads of power when we come to such matters as private property and education because he said: `Let us take a few risks'. If he is willing to fly the head of power through the treaty power ways, no doubt he could find other powers. Let us not have that nonsense on the journey. When its suits the Minister he says: `Let us take risks'. When it does not suit him he says: `Let us tighten it up because that is all we can do under the Covenant'. The whole of the argument on Article 3 was: `Let us tighten up'. Article 3 (2) tightens it up. One cannot move more than one does under Article 3 (2). When we asked the Minister why he did not bring in all these other powers he said that he did not have the power. The Government uses fine words such as `affirmative action' and it discriminates in favour of people. Suddenly it has to have a shop window. This measure is another shop window which, in itself, is as worthless as all of these unqualified clauses which when one searches them one finds that they are heavily qualified by the Covenant. I have had a considerable amount to say today on this matter. It is part of a pattern whereby the Government says: `It will not look good if we just give everybody equal rights. We have to do something about affirmative action otherwise we are in bother. So we will put this measure in. It does not matter if we cannot find the head of power'. Indeed, the Minister has said that there is no head of power. However, let us put it in the legislation and let us, in the Minister's words, take the risk. In the course of the journey and in the hours ahead we will be very interested in the Minister's keen desire to take the risk to help enshrine these powers. This provision is not just a matter of taking a risk. Lawyers better qualified than I have said quite clearly that in their judgment this legislation is unconstitutional, that it has no head of power and that Article 3 (1) and Article 4 (2) are unconstitutional. However, the lawyers go further than that. They say that Article 4 (2) will not, in itself, be qualified and saved by the severance clause, clause 47, because it is not a clause which stands alone as a sentinel. It diffuses itself through the whole Bill. It asks the Bill to take affirmative action and to discriminate. Therefore, it is not good enough to take a risk constitutionally on Article 4 (2) because, in the view of a wide range of lawyers, it could strike down the whole Bill. I find as we go through each of these clauses that it is an extraordinary journey, a clumsy journey in which the Government is really saying to the people of Australia: `We are going to be the protectors of your liberties. Look at this shop window. We are putting a lot of Articles in it. They are all glittering and bright. Forget that we have left out a few. We have them under the counter anyhow and we have a saving grace for them. We must not tell you that those goods have qualifications on them. Caveat emptor-let the buyer beware-is written very clearly on all of them and you will have to go back to the original Covenant to find out what is under the counter'. We have just journeyed for a whole day on Article 3 (2) and we have the most extraordinary situation. If the Minister wants to stand on Article 3 (1) he has to fall on Article 4 (2). He cannot have it both ways. His whole argument and earlier arguments were all based on the notion: `This Bill of Rights has been drawn up with limited heads of power. We must preserve them and we must do exactly these things. So we will put in qualifications. We will put in the purse string qualification in Article 3 to govern the whole thing'. When we come to a classic article where it has suited the Government for shop window purposes only to put in a paragraph which talks about affirmative action and discrimination, we get a string of euphemisms such as `Perhaps it is not literally within the legislation' and `There is really no literal head of power at all but we will take risks'. Senator Gareth Evans —It is implicit. Senator Sir JOHN CARRICK —The Minister says that it is implicit. Is Article 4 (2) implicit in the Covenant? Senator Gareth Evans —Yes. Senator Sir JOHN CARRICK —I invite the Minister to show me where it is implicit in the Covenant. Senator Gareth Evans —Article 26; the concept of equal protection. I have explained it. You were not listening. Senator Sir JOHN CARRICK —The Minister has now invented a new word. He has said that there was no literal head of power but, nevertheless, the Government would take risks. Why would the Government take risks if this is implicit in the Covenant? Let me deal with the tautology of this nonsense. What risk is there legally if this is implicit in the Covenant? Let me get squarely to the facts of this matter. We have made this journey. We have had one series of arguments for the whole of our journey up until now and suddenly it suits the Government to turn around and find other things. When it looks as though words such as `taking risks' and `not being literal' do not suit the Government we find that it gets the power because it is implicit. I want to know where it is implicit. I want to know why we keep changing around all the time. If it is true, what kind of a risk is it? Is the Minister saying that there is no validity in the Law Council's report? That is an interesting thing. Today I raised three or four points that the Law Council of Australia has made. I have not heard the Minister say `I reject that legal view' or: `That legal view is wrong'. The Law Council, which represents 20,000 lawyers, is no mean legal body. The Minister has not said that at all. He has run around the perimeter of this issue and put up his own defences. I put it to the Minister that the Law Council has said, in pretty old fashioned terms, that Article 3 (1) and Article 4 (2) very probably are unconstitutional and that Article 4 (2) not only would take itself out on the severance clause but would very likely take the Bill out. That is not taking risks. If the Government was putting this legislation together in an objective fashion to ensure that all the values were put in it, it would certainly have seen that such risks would not have to be taken. Therefore, why did the Government put in Article 4 (2) when, on the Minister's own say-so, there is nothing in the Covenant to cover it at all and when in the Minister's own words, before he found the word `implicit' or before someone gave it to him, it was a risk? The Minister has said that it was not a literal risk but, never mind, the Government should give it a go. I hope that, in the days ahead, as we come to those very valuable freedoms that the Minister has left out he will give it a go and he will take a risk because he will not be worried about the head of power. Perhaps it will be implicit in the legislation Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(10.25) — Senator Harradine's capacity to spin some fancy in argument-which I had occasion, perhaps rather churlishly, to get stuck into him about earlier in this debate-is certainly more than matched by Senator Sir John Carrick's capacity to grab hold of and shake some argument which he perceives to exist and to ignore completely what he is being told in the process. I repeat very quickly that there is a quite fundamental difference between inventing new heads of rights, such as a right to property and a right to education and so on, which have no conceivable shred of foundation in any statement of right in the Covenant and taking hold of one concept-the concept of equal protection which is explicit in Article 26-and saying that implicit in that statement is the concept of permissible differentiation where there is objective and reasonable justification for it, including permissible negative differentiation and permissible positive differentiation, spelling that out because it is a lively policy issue and articulating it expressly in the Bill. There is a very big difference between teasing out what is implicit in a clause with all the pattern of interpretation of similar clauses elsewhere and simply inventing-- Senator Sir John Carrick —But where is it implicit? Senator GARETH EVANS —I have said that it is implicit in the expression `equal protection of the law', which appears explicitly in Article 26 of the Covenant. `Equal protection' is a very elaborate and difficult concept which has been the subject of masses of interpretation, particularly by courts in the United States of America, where the concept was first employed. Let me repeat, yet again, the whole pattern of the interpretation and its familiar usage elsewhere in European conventions and lots of other national Bills of Rights which have been based on the concepts of the American original is that it is permissible and it is consistent with the concept of equal protection to have differentiations, both negative and positive, between people or groups of people provided there is some objective and reasonable justification for doing so. Article 4 (2) picks on one particularly difficult aspect of differentiating laws where there has been a lot of confusion and misunderstanding and an unwillingness to accept the possibility of legitimate discrimination and spells out that which is common jurisprudence in all those places which have equal guarantees. To do that is not to embark upon some journey-fantastic or otherwise, to use Senator Sir John Carrick's favourite metaphor-which takes one far from the language or the concepts of the Covenant. It is to pick up a particular concept which appears in the Covenant, as part of what I explained before was a very careful attempt to articulate, in two separate clauses, the equality concepts contained in the Covenant. It was a desire to pick up one concept and spell it out for the sake of greater clarity of understanding and greater appreciation of what that concept was all about. I am happy to acknowledge that a risk is involved whenever one varies, to the slightest degree, from the explicit language of the Covenant. By and large, the Government has been extremely resistant to doing that. But because there has been so much confusion in the equality clause area-a confusion which I fear is being repeated in the language of the Canadian charter, in my view, and in the view of many commentators, including those at the highest level of the Canadian judicial system, the statement of equality guarantees that are set out there is still in an awful muddle. But that apart, because there has been that degree of confusion in so many other places, we have tried to untangle it and to be specific in a way that is consistent with the spirit and the flavour, if not always the precise language, of the Covenant. I hope that that is understood and that we will not be subjected to a barrage of what are, with the utmost respect to Senator Sir John Carrick, essentially debating points. The TEMPORARY CHAIRMAN(Senator MacGibbon) —Order! It being 10.30 p.m., under sessional order I put the question: That the Temporary Chairman do now leave the chair and report to the Senate. Question resolved in the affirmative. The Temporary Chairman having reported accordingly- The PRESIDENT —Order! The question is: That the Senate do now adjourn. Senator PETER BAUME(New South Wales)(10.30) —In 1982, as Minister for Education, I had the pleasure of receiving applications from His Lordship Bishop Muldoon, as he then was, and from Catholic education authorities for the establishment of a Catholic secondary school on the central coast of New South Wales. The school was to be called Mater Dei College and was to be established at Tuggerah. It opened, in fact, in 1982 in a crowded hall at East Gosford and indeed stayed there until the money from the Commonwealth flowed through to build a magnificent new school. The process began during my time as Minister and was completed during that of my successor. The school has been at its present site in Tuggerah for a couple of years in magnificent surroundings. On 6 March I had the opportunity to visit the Mater Dei College to see what the school was doing. Tuggerah, as you, Mr President, will know, is close to Wyong on the central coast of New South Wales in a rapidly expanding and magnificent scenic area. It is the rapid expansion of population in that area that has led to the great demand for extra schools. Mater Dei College is one of the very few Catholic secondary schools on the coast. I discovered when I went there that not only is it an outstandingly beautiful site and not only has a magnificent school been built on it but also every place in the school is filled. Sister Judith Sipple, the Principal of the school, told me that she had long waiting lists for every available place. We have at Mater Dei an example of the way people will vote with their feet if given a choice and of how many people would take places in a school like Mater Dei if only those places were available. The school is expanding to years 11 and 12 as the pupils advance in age. I hope that there will be no problems with the Department of Education in ensuring that the funds continue to flow, and that when the school needs more capital funding to expand to meet the needs of the population for non-government school places the Labor Government will not hesitate to offer to help to carry on what we were able to begin. I took the opportunity of attending an assembly held at the school, during which an unusual thing happened. A delegation of the pupils at the school presented me with a letter, their petition in the Year of Peace outlining their hopes for peace in the world. The letter was from a number of the students saying that they wanted us, as elected representatives, to listen to them, members of the school community of Mater Dei College, as they conveyed to us their deep concern about Australia's role in the search for world peace during this year, proclaimed as International Year of Peace. Although I shall mention some of the things in the letter I seek leave to incorporate in Hansard the brief letter from the pupils of Mater Dei. I showed it to the Minister for Resources and Energy, Senator Evans, before 10.30. Leave granted. The letter read as follows: MATER DEI COLLEGE, TUGGERAH Lot 9 Gavenlock Road, Tuggerah 2259 P.O. Box 450, Wyong 2259 Phone (043) 53 2044 Senator Baume M.P. N.S.W. Member of the Senate Parliament House Canberra Dear Senator, As elected representative in the Federal Parliament, we the members of the school community of Mater Dei College, Tuggerah, would like to convey to you our deep concern about Australia's role in the search for world peace during this year proclaimed as International Year of Peace. We consider that the government is not acting with sufficient determination in the following areas. We would firstly like to see greater government support for the Geneva Disarmament Conference, which is at least making a start for World Peace, but sadly without much apparent success. We should also consider the large amounts of Australian money which are being poured into other countries to help them develop, but in turn is being used as military aid. New Zealand at least has enough sense to realise what is happening to our world. They have enough courage to stand up for what they believe, despite the criticism from many other countries. Surely we the people and government of Australia could be more openly supportive of the courageous stand taken by the New Zealand government with respect of this question of a Nuclear Free Zone in the Pacific. We would ask that you bear this message of ours not only to the appropriate parliamentary committees, but also to our Prime Minister. Looking forward to hearing from you in the near future. We remain, Yours faithfully, Gregory Sawyer Breeda Bowden Craig Bendeich Karyn Kay Marylouise Clifford Belinda McCormack Judith Skrzynecki Michael Schell Andrew Bell Carole Baxter Senator PETER BAUME —In their letter the pupils say some things with which I agree and some with which I do not agree. They say for a start that they believe the present Government is not acting with sufficient determination in a number if areas in the pursuit of peace. They would like to see greater government support for the Geneva disarmament conference and set out reasons why they feel that is so. They would like to see an assurance that foreign aid given by Australia is not used to free up other money for the purchase and use of arms. They express their view in support of New Zealand and the stand it is taking in the Pacific. That is the part with which I do not necessarily agree. They ask that this message, which comes from a group of concerned year 9 and 10 students, be conveyed to the Parliament, to the appropriate parliamentary committees, but also to the Prime Minister (Mr Hawke). My purpose in raising this matter in the adjournment debate tonight is to ask that the Minister for Veterans' Affairs (Senator Gietzelt) undertake to make known to the Prime Minister these concerns by the pupils of this school in the constituency of Senator Gietzelt and myself. After all, this is the Year of Peace and the week before Christian Holy Week and Palm Sunday. There is no more appropriate week for the message from the students of Mater Dei College at Tuggerah to be brought before the Parliament. Those students have made clear the commitment which young Australia has to peace. It is a commitment I share and I believe we all share. Those of us with children want peace for their world and for their future. While I do not agree with the support for the stand taken by New Zealand, I take that view because I believe that stand will not be effective. It is not that I disagree with the aspirations of anyone who pursues peace. I may disagree with the methods which people have used, but I support the search for peace and the efforts that anyone makes in that regard. Therefore, I seek to have this message taken to the Prime Minister and I undertake to make it known to the committees on foreign affairs and defence. If that can be done, I can report back to the students of Mater Dei College that I have carried out my side of the bargain on the message they have entrusted to me. Senator REYNOLDS(Queensland)(10.36) —I wish to draw attention to yet another breakdown in democracy in Queensland. Pensioners in Queensland this afternoon who were seeking to meet their elected parliamentary representatives walked to the Parliament and tried to speak with Ministers of the Crown and with their representatives. Instead of being invited in in a normal and democratic way, pensioners found that the gates were locked against them and they were forced to stand outside in the sun. Many of the pensioners were elderly, some over 80 years of age. Obviously they found it most stressful to be locked out of their Parliament and to have to stand outside in the Queensland sun in the hope that somebody might change his mind and allow them in. Finally, a very small group of pensioners was allowed into the Parliament, but they did not have the opportunity to speak with the Minister for Mines and Energy, Mr Gibbs, whom they were trying to see. One might wonder what Queensland pensioners were doing going to the Parliament to speak with their representatives. They were simply seeking recognition of the principle of electricity rebates, which are not given in that State. I understand that only Queensland does not recognise that pensioners are entitled to electricity rebates. They are seeking the same 25 per cent rebate on electricity as is available in all other States. It is outrageous to find that even pensioners are not able to move freely into the parliamentary precincts and to speak with their representatives. We have already seen and grown used to this type of behaviour, with women having been turned away when they have sought to make representations to the Queensland Parliament. This has happened also to Queensland workers, as well as to Queensland Aborigines and Islanders. But I suppose we fondly imagined that the elderly in Queensland would be treated with more respect and at least would have been allowed into the Parliament. Unfortunately that was not the case. At the annual conference of the Queensland Australian Pensioners' League yesterday there was a move to seek recognition of the modest entitlement to an electricity rebate and representatives went to Parliament House today. Electricity charges in Queensland have sky-rocketed over the last 12 months, despite the empty promises of the minority Government in Queensland made at the time of the South East Queensland Electricity Board dispute. It seems that the Queensland Government is too mean to provide electricity charges rebates to pensioners. It seems to have plenty of money when it comes to providing aeroplanes for the Premier or a national park for friends of the Premier and subscribers to the Bjelke-Petersen Foundation. But when it comes to a simple matter of a 25 per cent rebate on electricity charges for pensioners, that is not possible. There seems a certain irony that in Queensland we have a minority government essentially of elderly men. One would think that if there were an advantage in having a government of elderly men, it might well be that they could understand the needs of the aged in that State and that, because they themselves are elderly, they might be in a better position to plan for the senior citizens of that State. But a geriatric regime in Queensland does not, apparently, recognise the needs of the elderly. There is also a certain irony about Queensland-`Life is great in the Sunshine State', and it is supposed to be a great place to retire. Again, it is a good place to retire if one has the sort of income that allows one to buy the support of the Queensland Premier so that one can be on the right side of that Government; but if one is seeking just normal benefits, one will not find that there is very much offering, as I shall detail in a few moments. I would wonder today whether any of those pensioners who have spoken out about the need for electricity charge rebates will find that writs are issued against them, as happened to Opposition members who spoke out about the revocation of a national park in the Great Barrier Reef Marine Park area. Let us look at Queensland's commitment to pensioner concessions. I should like to refer to a very interesting document that has been prepared by the Social Welfare Policy Secretariat in the Department of Social Security. It is called `Pensioner Fringe Benefits: Their Range, Cost and Value'. I have not had a great deal of time to go through it this evening, but I had time to discover that Queensland spends only approximately half the allocation of other States in terms of pensioner fringe benefits. On the most recent available figures, Queensland, with the third largest population in the country, spends less than South Australia or Western Australia. In the 1982-83 period, New South Wales spent $184.1m, Victoria spent $113.3m, South Australia spent $50.5m, Western Australia spent $41.5m, and Queensland spent only $31.1m. Of course, the Commonwealth expenditure was way over and above that, being in excess of $1,583.2m. On average, the other States spent approximately $30 per head on pensioner concessions, whilst Queensland spent only about $15 per head-about half of all other States. I should like to run through some of the differences between the States. I certainly propose to do this in more detail, but I think that on the day that pensioners have been shut out of their own parliament, it is appropriate just to run through the differences between the States. In regard to health, whereas ambulance services are provided free in New South Wales and Victoria, there is a concessional subscription in Queensland. In regard to home purchase and mortgage interest relief, more stringent conditions are applied in Queensland. In regard to rent relief, there are bond guarantees to the landlord only, and, of course, many real estate agents and landlords will simply not deal with government in regard to accepting rent relief because they are fearful of bureaucracy; they just cannot be bothered. That compares with rent subsidies of up to 20 per cent in a number of States and advance rents and bonds that are given to pensioners in other areas. In regard to rate rebates, in Queensland they are only 20 per cent, compared with up to 60 per cent in a number of other States. Furthermore, in Queensland there is no rebate on water and sewerage charges. Electricity charge rebates are what Queensland pensioners were lobbying for today. They are not available in Queensland; neither are gas charge rebates. There are no airline fare concessions in Queensland, as compared with Western Australia, the Northern Territory and Tasmania. There are no concessions on driver's licence fees. The motor vehicle registration concession is less than the concessions in other States. Even when it comes to aids and appliances, benefits are means-tested and referral is necessary, which makes access to aids and appliances more difficult than it is in a number of other States. Whereas New South Wales has a special concession to help elderly people in regard to moving from one home to another, with a furniture removal concession allowance, and whereas there are heating allowances in a number of these tables, one can see that Queenslanders generally are worse off in regard to public rental housing and domiciliary care. Therefore, I take the opportunity to commend the Acting Minister for Community Services, the Hon. Brian Howe, who has announced tonight grants in excess of $1.5m for home and community care in Queensland. These initiatives in home and community care for the frail aged and disabled will be introduced in Queensland following this allocation by the Commonwealth. The allocation will assist five projects to provide a wide range of support services to enable aged and disabled people to be maintained in the community rather than being prematurely or inappropriately admitted to an institution. That is just the first of the allocations under the home and community care scheme, and I assure the Acting Minister that they will be very much welcomed in a State that is not committed to spending on assistance for the elderly. Senator MICHAEL BAUME(New South Wales)(10.48) —Having heard Senator Reynolds's litany of the bad deal that pensioners are reported to get in Queensland, I wonder why so many Australians are retiring to Queensland. It is a remarkable thing. The statistics show a big move of retired people to Queensland. However, that is not the issue I wish to raise. I want to deal with a matter which should be of major concern to the Senate-an attempt to deprive the Senate and honourable senators of the capacity to inquire properly into the functionings of a government department and, in particular, of a project, the community employment program, run by the Department of Employment and Industrial Relations. The Government has applied an information clampdown as a result, I understand, of the activities of the Waste Watch Committee, of which I am Chairman. It is even now impossible to receive information about what was in Press releases put out by that Department. An officer of that Department advised my office today that he had been instructed that there should be no response to questions from me or my office and that every request for information must go through the Minister's office or should be placed through appropriate channels, such as questions on notice or questions without notice in the Senate. There are, of course, and have been, many questions on notice, particularly in the other House, relating to this program which have been unsatisfactorily answered. As a result, there have been applications for information under the Freedom of Information Act made by, for example, the Deputy Leader of the Opposition, Mr Neil Brown. We heard in the Senate today the Minister for Finance (Senator Walsh) say that if Senator Brown-- Senator Peter Baume —Mr Brown. Senator MICHAEL BAUME —Mr Brown- Senator Peter Baume —There are enough of you people coming up here from the Reps. Senator MICHAEL BAUME —We are trying to uplift the tone. Senator Walsh said that if Mr Brown wished to proceed with his application he would be obliged to pay a fee for it on a fee for service basis. The Minister went on at some length in a statement today to try to justify this incredible attempt to prevent the proper exercise of a parliamentarian's duty in finding out information to assist the good government of this country. Point C in the list Senator Walsh released says that among the criteria to be applied when considering whether a fee should be charged for the provision of information under the freedom of information legislation was `whether the giving of access was in the general public interest or in the interests of a substantial section of the public'. One would have thought that when the Deputy Leader of the Opposition seeks information on such a public matter as that, the fact that it would be of interest to a substantial section of the public or in the general public interest would be self-evident. It was not, however, to Senator Walsh. Senator Peter Baume —A cover-up. Senator MICHAEL BAUME —It is a cover-up and a disgusting attempt to cover up clear incompetence, inefficiency and waste. The response by Senator Walsh was this: Mr Brown has not justified remission of the charges in the public interest. He has not provided any evidence to support remission on these grounds. He has not indicated that the information will, in fact, be provided to the public. Further, a decision to remit the charge is not consistent with the Government's policy to limit the costs of administration of the FOI Act, nor with the general principle of user pays. Senator Walsh is hiding behind any excuse he can to prevent the proper exercise of a parliamentarian's duty. I must say that I think it is outlandish. It is a disgrace. I hope that the Senate will decide to take appropriate action. I certainly intend to do so on this most serious matter. It is interesting to me to note that this situation has emerged only because of the way the Opposition's Waste Watch Committee has dramatised the clear diversion of public funds which are supposed to be going towards helping the long term unemployed, into such things as the buying of assets for fringe trendy groups, ending up in the possession and ownership of those organisations. The average cost on a per week, per person basis of employing some of these long term unemployed on many of the projects I have looked at as a member of the Waste Watch Committee is up around the $650 a week mark. A very small proportion of that money is going to pay the wages of the long term unemployed. Where is the rest of the money going? Even the average figure taken over the whole of this $1.4 billion program-I must say that we can work out the average so far only on the report for the last financial year which was tabled in the Senate-of employing someone in the CEP is $510 per week, a figure far higher than the average wage that the long term unemployed would have received. An unacceptably large proportion of this money is being diverted into other areas. We want to know what they are. We want to know what these assets are that are being bought for these crazy fringe groups. One such group, as I understand it, is an adjunct of the Italian Communist Party. Others are fronts for the Socialist Workers Party. If the Government really wants to give away goodies to these groups, let it do so honestly. Let it not hide behind the CEP which it is using as a device, purportedly helping unemployed people to obtain temporary jobs. When the temporary jobs end, the assets involved go to the sponsoring organisations, which I might say have an appalling ring about them when one looks at the long list of them. However, one is not allowed to look at the long list. First one gets blocked in this place. One gets blocked if one rings the Department. One gets blocked at the Minister's office. If one wants to make an FOI application one has to pay for it. The last little bill that Mr Brown was threatened with by the Minister for Finance was for $400 for daring to try to find out information that should be readily available to him. Let us see why this issue has suddenly blown up. It is self-evident. The examinations of the Waste Watch Committee found that there has been clear evidence of inadequate investigation and supervision of CEP submissions. Failure to proceed with approved projects and the diversion of money into alternative projects after the approved projects turned out to be impractical have emerged following the release of our report. Senator Walsh in this place today attempted to make great political capital out of the fact that one of these projects that I said had not gone ahead, had gone ahead. He was wrong in a sense on both occasions. The reason, and what actually happened, are very different from what the Minister was endeavouring to suggest to the Senate. I said that the money provided to the Wollongong Workers Information Research Centre to organise the first national depressed regions conference had not been spent on such a conference. I said that the conference had not taken place. Senator Walsh said that yes, it had and that I was clearly wrong and that the conference had been held on the 16 and 17 March. At the time I held up a speech given by a gentleman called Mr Tom Uren, MP, Minister for Local Government and Administrative Services. The speech was given at a conference, certainly in Wollongong and certainly in March-17 March 1985. The conference was called `A Conference on Australian Industry-the Future'. That is what the conference was about. Let me read from a brochure which explained what the conference was to be about. It was to be about `Industry policy and the accord, regional development and labour movement strategy'. Not one mention of national depressed regions appeared in the conference's publicity brochure. Clearly, the money allocated under the CEP was diverted into a vastly different conference under the apparent control of the left wing South Coast Labour Council. The conference entitled `A Conference on Australian Industry-the Future' was jointly run by the South Coast Labour Council, the Australian Political Economy Movement, which is a left wing body, the Centre for Multicultural Studies and the Wollongong Workers Information and Research Centre. The keynote speaker was Mr Tom Uren. There is no doubt that this conference was a left wing political talkfest, bearing little relation to the so-called first national depressed regions conference for which the Government has allocated over $500 per week per unemployed person for 39 weeks to arrange. Inquiries made today at the Whyalla and Newcastle councils-we thought they were relevant seeing that they could be described as other depressed regions-reveal no record of any invitation to attend any gathering or conference in Wollongong purporting to relate to depressed regions. In view of the nature of the conference that was ultimately held, the Government now surely has an obligation to advise the public of what happened to the difference between the amount paid in wages each week to the five long term unemployed people and the total weekly grant that works out at more than $500 per person per week. Presumably, these long term unemployed were paid nothing like $500 each per week. Where did the rest of the money go? Why will the Government not come clean? What is the cover-up for? Why can we not have the information? Why are we going to be charged if we ask for information under the Freedom of Information Act which this Government has a duty and obligation to give us, particularly after a Minister gets up in this chamber and deliberately seeks to mislead the chamber on such an issue? The Minister then went on to talk about another matter. He said that the clowns episode had not proceeded. This was an issue that I raised in the Waste Watch Committee report which talked about a proposal in which training was to be given to four long term unemployed people as clowns in Canberra at a cost to the Government of $440 each per week. I said this seemed to be curious when it was related to the amount of money that is the maximum payable to a student learning to be an engineer, trying to learn a skill or doing a university or tertiary course. The maximum is $78 a week, but not under this scheme. It was to have cost the Government $440 a week. I must say that the Minister was part right in saying that it did not go ahead because he has a point to a degree. What happened was a triumph of government incompetence over government waste. This funding was announced by the Minister in a Press release on 6 December 1985 but the Arts Council of the ACT, as sponsor, was not advised that funding was available until four weeks ago-that is, about 10 weeks after the Press release from the Minister's office-and so it was far too late for the project to proceed. It is clearly one of those cases where the Government's incompetence saved it from wasting money. The Minister then proceeded to say; `Yes, but one clown development did go ahead and that was under the previous Government's wage pause money'. I remind the Minister that, unfortunately, a most regrettable event took place early in March 1983-not only did the then Government lose an election but also I lost my seat, making it doubly regrettable. From then on the administration of such programs, which were only in a very preliminary stage, I might say, from when they were announced back in November 1982, was the responsibility of the Hawke Labor Government and the recommendation for that program came from the Cain Labor Government in Victoria. The Cain Labor Government got clobbered in the media, quite properly so, and clobbered in the Victorian Parliament for this incredible operation in Gippsland called the La Trobe Valley Arts Collective which, according to the Melbourne Age, involved people learning to be, as the expression was, lesbian clowns. I do not know the rights or wrongs of this. All I know is that the Minister had an incredible hide to try to pretend that this was the responsibility of the previous Government. The Minister is no doubt clearly embarrassed by the fact that his colleague Mr Cain went ahead with a project which was nonsense and for which he got properly criticised. But to pretend at Question Time, as he did today, that somehow this was a sin of the previous Government, was totally deceptive. Even worse were comments made by one of his colleagues, Mr Hollis, the honourable member for Throsby in the other House, about another matter. He claimed that the Wollongong women's centre has been badly dealt with by my committee and that the facts were wrong. He says that it did not use its CEP funding to buy a van. If so, this raises very serious questions of where the money went. Let us look at the mathematics. The centre was granted $82,187 for three jobs for 52 weeks at an average cost to the Government of $525 per job per week. However, the wages paid to the three long term unemployed people would have been as much as $200 a week less than this. If the difference-$200 a week per person for 52 weeks-did not go into buying the van, where did it go? Will the Government come clean and tell us? There seems to be multi-millions of dollars missing somehow. It did not get paid to the unemployed. In the Wollongong case we are assured by the honourable member for Throsby that it did not go to buying a van because that was bought under the wage pause program, once again administered by the Hawke Government. That means the centre got a van, which is a capital item, instead of spending that money on wages for unemployed people. That has happened. I am interested in finding out, if that $82,000, which looks to me to be at least $30,000 more than the cost of employing people over that period should have been, did not go to buying a van, where it went. Mr Hollis says that all the centre bought in equipment was an old typewriter, but $30,000 is an awful lot of pay for an old typewriter. If the centre did not get the money, why does the Government keep putting out Press releases saying all these wonderful things it has done if it has not got the honesty and decency to come out and say `Sorry, we have withdrawn some of that money' or `Sorry, it did not go ahead'. In relation to the clowns in Canberra, the people would not know that the Government in fact reneged on a deal or did not go ahead with a deal. The unemployed of Canberra would still think the Government has done a great thing and given $30,000 or so. The people would not know that had not happened if the Opposition had not raised it in the first place. In Wollongong the people would not know what had happened to the $30,000 or so if the Opposition had not raised it. How many more instances are there in this $1.4 billion program where we do not know what has happened to the money and we do not know whether programs have gone ahead? The Government does not want to tell us. The Government is putting up increasing barriers so that we do not find out. It is now determined to charge members of the Opposition for the cost of freedom of information applications. What has this Government got to hide? Why will it not come clean and why do we have to put up with the deceptive nonsense that came from the Minister for Finance this morning? There is no doubt that the evidence today of how the Government is responding to the Waste Watch Committee's reports clearly indicates that this Government has something to hide, clearly indicates that this Government is embarrassed and clearly indicates that this Government is running for cover. I promise this Government that it will have a lot more to worry about in the future from the reports of the Waste Watch Committee. The PRESIDENT —My attention has been drawn to articles in the Press about the provision of smallwares-that is cutlery, crockery and similar items-for the new Parliament House. The procurement of smallwares will be the direct responsibility of the Parliament and not the Parliament House Construction Authority. The matter has been considered by the Joint Standing Committee on the New Parliament House over a number of meetings commencing in mid-1985. At its meeting on 21 February 1986 the Committee agreed in principle to the purchase of new items rather than the supplementation of existing crockery, flatware and hollow-ware. The Committee further agreed: That the designs be commercial; that tenders, which are to include the proposed designs, be called from within Australia and overseas and that they be called separately for crockery and flatware and hollow-ware; that present holdings of flat- ware, crockery and hollow-ware be subsequently sold to effect some cost offsetting; and that specifications for the tenders be prepared for subsequent consideration by the Joint Standing Committee. Honourable senators will note that the Committee has decided that an open tendering system conforming to government purchasing policy will be used. The Department of Local Government and Administrative Services is providing advice on appropriate tender processes and is assisting in developing a program and the necessary specifications. The effect of this decision is that no commitment has been given to any particular designer or manufacturer. Final decisions on the specification have yet to be made by the Joint Standing Committee. Some Press articles have referred to costs of the smallwares. Under the proposals determined by the Joint Standing Committee costs have been assessed at $2.7m and funding to this extent has been sought by the Joint House Department in the 1986-87 financial year. Other costs associated with fitting out kitchen and dining areas are included within the general project budget for the New Parliament House and are funded through the Parliament House Construction Authority. Question resolved in the affirmative. Senate adjourned at 11.10 p.m. The following paper was tabled: Defence Act-Determination 1986 No. 11-Travel- ling Allowance and others.