Bill presented by Senator Murphy, and read a first time.
Standing orders suspended.
Second Reading
Senator MURPHY (New South Wales–Attorney-General and Minister for Customs and Excise) (4.1 )–I move:
The object of this Bill is to give recognition in legislation of the Australian Parliament to basic human rights and freedoms and to provide remedies for their enforcement. On 10 December 1948 the Universal Declaration of Human Rights was adopted by the United Nations. It is easy to be cynical about the failure of many members of the United Nations to ensure to their own citizens the rights embodied in the Universal Declaration. I am not one of those who believe this justifies the absence in Australia of constitutional and statutory guarantees of those rights.
Australia assented to the Universal Declaration. It is commonly regarded as a country where freedom and individuality are allowed to flourish. The Australian people are commonly believed to be jealous of their freedoms and to be strongly opposed to government interference in their lives. It is said that this commitment to freedom is the best safeguard against encroachments on that freedom. It is said to be more effective in ensuring freedom than a Bill of Rights. Yet one might well ask whether this is really so, whether actual experience bears it out.
In 1966 the United Nations adopted two other great instruments defining the rights that individuals should enjoy. These are the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. One of the first acts of this Government last December was to sign those 2 covenants, and we propose to take action to ratify them by 10 December this year. It is known that other countries which have not already done so are also considering ratification. We hope that the interest in human rights engendered by the 25th anniversary of the adoption of the Universal Declaration of Human Rights will prompt these countries to ratify the covenants, and that the 2 covenants will shortly come into force.
This Government has made plain its attitude to the denial of human rights in other countries. I do not intend to recite the melancholy catalogue of what is happening elsewhere. Far better that we should turn our attention to our own situation, and examine the state of liberty in our own country. Despite our supposed commitment to freedom, we cannot be self-satisfied about what is happening in Australia. No matter what the law may provide, those who are poor, who are socially disadvantaged, are denied the basic human rights of a full and satisfying life. There are too many in our community who fall into these categories for us to be complacent about the state of liberty in Australia. The aged, the chronically ill, the migrant groups and the Aborigines do not enjoy the full measure of human rights and dignity. The programs of social security and social assistance which this Government is undertaking are fundamental to the promotion of human rights in Australia.
The main concern of the present Bill is to implement the International Covenant on Civil and Political Rights. In the case of the Covenant on Economic, Social and Cultural Rights, progressive implementation of its terms is required of a party to it. Its terms are not so apt for direct legislative enactment as those of the Covenant on Civil and Political Rights. There is a much more direct obligation on a party to that latter Covenant to implement its terms forthwith. It is therefore to that Covenant that we have turned our attention first in legislation.
The Covenant on Civil and Political Rights sets out a familiar catalogue of rights. I will not go through them all; they are concerned with such matters as freedom of movement, freedom of expression, the protection of individual privacy, the rights of a person charged with a criminal offence, and so on. Although we believe these rights to be basic to our democratic society, they now receive remarkably little legal protection in Australia. What protection is given by the Australian Constitution is minimal and does not touch the most significant of these rights. The common law is powerless to protect them against the written laws and regulations made by Parliament, by Executive Government under delegated legislative authority, and by local government and other local authorities. The common law rights exist only in the interstices of statutory regulation.
Thus freedom of expression is what remains after one takes account of the laws relating to defamation, contempt of court, censorship, obscenity, offensive behaviour, sedition, official secrecy and the like. Freedom of assembly is restricted by the scarcity of places in which people who wish to express a particular point of view can assemble without official permission from some authority or other. The protection of the Habeas Corpus Act is whittled away by the extensive powers of arrest given to police and the powers to detain those who are thought to be mentally ill. The democratic concept that each person shall be entitled to a free and equal vote is denied by the operation of our electoral distribution laws. That a person is to be presumed innocent of a criminal offence until he is proved guilty is overshadowed by the inequities of our criminal justice system, and especially by the inadequacy of legal aid in Australia. The Press is supposed to be a guardian of our liberties. It is often muzzled by the laws that circumscribe freedom of expression or by its ownership being concentrated in the hands of vested interests.
I do not want to overstate the case. Many restrictions on individual freedom are necessary to protect the rights of others, or to prevent a crowded society from falling into chaos. But many restrictions have been imposed without sufficient care being taken to ensure they do not go further than necessary, or because the acts they regulate or forbid might provide inconvenience to those in authority. What is needed is a yardstick against which can be measured proposals to place restrictions or, as in the case of the protection of privacy, the failure to legislate and to provide the means whereby effective action may be taken in the courts to enforce rights.
Ideally, in my view, a Bill of Rights should be written into the Australian Constitution and I proposed at the Constitutional Convention in Sydney that this be done. But in the absence of a constitutionally entrenched Bill of Rights, it is proposed that those rights should be set out in legislation of this Parliament, so far as it is within the powers of the Parliament to do so. The legislation will be binding on Australian, State and local officials and on State parliaments. Only this Parliament will be able to abrogate the rights thus established and I would hope this Parliament would not lightly subtract from rights guaranteed by this legislation. Moreover, I believe that a statutory Bill of Rights will have a very great educational value. It will serve to make people more aware of their rights. By identifying rights, it will be easier to know when they are being denied.
It would be futile, however, to grant these rights unless there is machinery to enforce them. The legislation will provide this machinery. First, legal remedies will be provided for infringements of rights and an aggrieved person will have recourse to the courts to enforce his rights. Second, the legislation will establish an Australian Human Rights Commissioner who will have power to investigate infringements of rights, either on his own initiative or where a complaint is made to him. The Commissioner will have also power to take legal proceedings on behalf of an aggrieved person. In establishing this machinery, Australia will be taking a lead that will put it to the forefront in the protection of human rights. The legislation will also establish an Australian Human Rights Council that will advise the Attorney-General and the Commissioner on the implementation of international instruments relating to human rights.
I now turn to a brief description of the broad framework of the Bill. The Bill is divided into 7 Parts, the first dealing with preliminary matters, the second with fundamental rights and freedoms, the third with the Australian Human Rights Commissioner, the fourth with the enforcement of rights, the fifth with the Australian Human Rights Council, the sixth dealing with administrative provisions and the seventh with miscellaneous matters.
Part I contains provisions dealing with the commencement of the legislation and will enable the legislation to be brought into force immediately in the Territories and on Commonwealth places and in relation to a law of Australia or a Territory. Part I also provides, in relation to the application of the legislation, that the Act is to bind Australia and each State and is to extend to every external Territory, except Papua New Guinea. The view has been taken that, in view of the steps being taken by Papua New Guinea towards independence, it will properly be a matter for that country to make a decision on accession to the Covenant.
Part II of the Bill will establish in legislation of the Australian Parliament fundamental rights and freedoms in a number of extremely important areas which are not at present covered by formal legislation. A basic provision of the legislation is to provide that everyone is entitled to the fundamental rights and freedoms set out in the legislation, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The Bill also provides that everyone is entitled without any discrimination to the equal protection of the law. Part II of the Bill then proceeds to deal with a number of important rights, including the right to freedom of thought, conscience and religion, the right to hold opinions without interference, the right to freedom of expression, the right to peaceful assembly, the right to freedom of association, the right, without unreasonable restrictions, to take part in the conduct of public affairs, vote at elections held by universal and equal suffrage and to hold public office, the right to liberty of movement, and the right to privacy. In the provisions relating to freedom of religion, expression, assembly, association and movement, the legislation provides that these rights may be restricted in certain circumstances, such as where restriction is reasonably necessary to protect public safety or public health or constitute reasonable regulations, as to time, place and manner, of the right.
The Bill also deals, in clause 15 (2) with the right of women to hold public office on equal terms with men, without discrimination. The enactment of this provision will enable Australia to ratify the Convention on the Political Rights of Women which has been in force since 1954. Part II of the Bill goes on to provide a number of protections that are of importance in the field of the administration of justice. An important function of the legislation will be to provide protections against unreasonable search and seizure. The Bill deals with the right of a person not to be subjected to arbitrary arrest or detention and will provide that everyone arrested or detained on a criminal charge shall be entitled to trial within a reasonable time or to release. The Bill provides that anyone arrested on a criminal charge shall not be detained in custody unless the detention is reasonably necessary in the circumstances of the case. A person in custody is to be afforded adequate time and facilities to communicate with his lawyer and shall not be compelled to incriminate himself. He is to be informed of these rights. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. In the determination of a criminal charge, everyone is to be entitled to a number of guarantees, such as the right to have legal aid where the interests of justice so require and where he does not have sufficient means to pay for it, and the right not to be compelled to testify against himself or to confess guilt.
The Bill provides that a person is not to be subjected to cruel, inhuman or degrading treatment or punishment, and all persons deprived of their liberty are to be treated with humanity and with respect for the inherent dignity of the human person. The Bill will also contain provisions relating to the segregation of accused persons and juvenile offenders.
Part III provides that there shall be an Australian Human Rights Commissioner. It will be the function of the Commissioner to investigate an alleged infringement of the Act, either on his own initiative or where a complaint is made to him. The Commissioner will have a discretion not to investigate a matter in certain circumstances, such as where in his opinion a complaint is frivolous or not made in good faith. The Commissioner may also take action when he is of opinion that an unlawful act is about to be committed. The Commissioner is to endeavour to secure an assurance against the doing of, or the repetition of, an unlawful act and to secure a settlement and he may warn the person concerned not to do, or not to repeat, the act.
Part IV of the Bill deals with enforcement. It provides that, where the Commissioner is unable to secure a settlement, he may commence civil proceedings in the Australian Industrial Court. Where the court is satisfied than an infringement of the Act has occurred, it is to make a declaration to that effect and it may grant, as appropriate, a number of remedies including an injunction, an order cancelling a contract, orders setting aside a judgment, quashing a conviction or directing a new trial and damages in respect of the loss suffered by an aggrieved person and the loss of dignity, humiliation and injury to the feelings of an aggrieved person. Any damages so recovered are to be paid by the Commissioner to the aggrieved person. An aggrieved person may also commence proceedings for a remedy under the Act independently of the Commissioner. Part IV also provides that proceedings are to be taken in the Superior Court of Australia when that Court is established.
An Australian Human Rights Council is established in Part V of the Bill. It will be the function of the Council to make recommendations to the Attorney-General and the Commissioner on matters relating to the observance and implementation of international instruments relating to human rights, the promotion of educational programs with respect to human rights and other related matters.
Part VI of the Bill deals with the administrative provisions and provides for the appointment of an Australian Human Rights Commissioner and his staff. The Commissioner is to be a corporation sole. As it will be a function of the Commissioner to take action against infringements of the Act by Australian or State officials, the Bill provides for the appointment of staff that will be independent of the Australian Public Service. Part VI also provides that the Australian Human Rights Council is to consist of 10 members who shall be appointed by the Attorney-General.
Mr President, I believe that the enactment of this legislation will be a significant milestone in the political maturity of Australia. It will help to make Australian society more free and more just. It will provide the legal framework within which our social programs can assist people to realise their fuller potential. In conclusion, I would emphasise that the purpose of the Bill is to carry out the International Covenant on Civil and Political Rights. A great deal of work has been done in the preparation of the Bill but it has not been possible to discuss it with all interested groups. The Government will welcome any proposals and comments on the Bill, whether from inside or outside either House of Parliament and during the Committee stage. I commend the Bill to the Senate.
Debate (on motion by Senator Greenwood) adjourned.