Andrew Murray (WA, Australian Democrats) Share this | Hansard source

The Democrats’ proposed charter of rights was an implementation of the ICCPR, which Senator Boswell does not seem to understand is an integral part of this bill. It sets out certain fundamental rights and freedoms, including the right to equal protection under the law, the right to a free trial, freedom of expression and freedom of religion. From my perspective, five issues arising from the bill deserve further discussion: whether the ICCPR articles in the bill suffice for the purpose, whether the bill needs supplementing by appeal measures, the timing of plebiscites, a matter arising from the ICCPR, and how to further advance direct democracy.

I turn to the first of my concerns. The committee hearings in Queensland made something very clear to me. Although Australia prides itself on a larrikin culture, where there is a tendency to thumb your nose at authority and not to take things lying down, most Australians are very trusting. Most truly believe that their government would not do anything to impinge on what they regard as their basic rights. There was genuine astonishment from people of all political persuasions that the Queensland Labor government would have the audacity to remove their basic right to have a say on whether their local council should be amalgamated and to forbid them to conduct a local plebiscite on the issue. Trish and Nick Radge, in their submission to the Senate Finance and Public Administration Committee, captured that feeling well:

As a democratic society we have a right to vote for whoever we want, to protest against things we disagree with and to speak out without fear of reprisal.

It came as a surprise to me that Australians have such a trusting approach to their governments, state and federal. The executives of all governments of all stripes have been steadily increasing the powers of the state over the people for decades. Those who were surprised by the actions of the present Queensland Labor government have obviously not been following the trend of the coalition federal government as it rides roughshod over civil liberties. For instance, its antiterrorism and immigration laws enable the authorities to search premises on suspicion, to hold some people indefinitely without charge and to generally discard other basic rights which Australians have always believed were part of being Australian.

It is clear that until a law impacts directly on a significant proportion of middle Australia, people in this part of the constituency do not believe they will ever be caught by the provisions of antiterrorism laws or by the extensive federal police and customs powers now enshrined in federal legislation. Their belief that their rights will be protected and promoted remains. It was clear from the evidence at the hearings that the Queensland legislation had shaken this belief but not unhinged it completely, because the federal government was riding to the rescue of their rights. In this instance, they were correct; in so many other laws passed in the last couple of years, that could not be further from the truth.

The bill makes provision for local and other plebiscites to be conducted by the AEC, but is that right sufficiently buttressed by articles 19 and 25(a) of the ICCPR? Proposed new subsection 7A(lE), intended to be inserted into the Commonwealth Electoral Act by item 1 of the schedule of the bill, provides, in effect, that a state or territory law is nullified if it interferes with the conduct of a plebiscite by the AEC under an agreement with the commission. Proposed new subsection 7A(1F) provides that, if subsection 7A(lE) is beyond the legislative powers of the Commonwealth, articles 19 and 25 of the ICCPR are to be called on to support the validity of the subsection.

There is doubt about whether the Commonwealth can validly legislate by adopting a particular interpretation of a particular provision of the covenant and then selectively apply that interpretation to override particular state laws. These doubts rest on passages in the leading High Court judgement in the Tasmanian damscase, particularly the warning by Justice Deane in that judgement that a law cannot be regarded as a law under the external affairs power if it fails to carry into effect the provisions of a treaty, or the treaty itself is simply a device to attract domestic legislative power.

These doubts about the validity of such legislation were raised by eminent authorities on the other occasion on which the Commonwealth selectively invoked a provision of the covenant to override a particular state law. The Commonwealth law in question was the Human Rights (Sexual Conduct) Act 1994, which employed article 17 of the covenant, relating to the right of privacy, to override Tasmanian laws about homosexual conduct. It was then pointed out that the then Commonwealth government was adopting a particular interpretation of the article, which might not prove to be the correct interpretation, and applying it to override particular state laws which might not be caught by the article on its proper construction. Partly on that basis, as expressed in a dissent by coalition senators to the report of the Legal and Constitutional Affairs Committee, several members of the coalition parties voted against the bill. The doubts about the validity of the legislation were not resolved, because it was not litigated. In my opinion, the doubts of the coalition party senators were valid.

As with all questions of constitutional law, there is a corresponding question of constitutional propriety, and, regardless of how the High Court would ultimately resolve the question of law, that question remains. If the power to enter into treaties is a source of Commonwealth legislative power, and the Commonwealth is to rely on a treaty to override state laws, the constitutionally appropriate course, consistent with the principles of federalism, is for the Commonwealth to put into legislative force the whole of the treaty, and let it fall on state laws where it will, according to its nature.

It appears contrary to constitutional principle for the Commonwealth to selectively apply particular interpretations of selected provisions of a treaty to nullify state laws which the Commonwealth government of the day happens to dislike, while ignoring other laws which may well be contrary to the treaty. This principle gains added force when the treaty in question—in this case the ICCPR—is intended to safeguard what I and many others regard as inalienable individual rights, against the power of government, whether state or federal.

If the treaty is to have force in Australia, surely all of the human rights it encapsulates should have force against all of the laws of all governments, and selected bits of rights as interpreted by one of those governments should not be selectively applied only to state governments in particular circumstances. It is my belief, and the belief of my party, that the International Covenant on Civil and Political Rights should be introduced in full into Commonwealth law, since Australia has ratified it.

I want to deal now with whether the bill needs supplementing by including appeal measures. During the committee hearings I had a useful interchange with the Hon. Bruce Scott MP, member for Maranoa, who is a particularly pleasant individual and seems very capable in carrying out his functions as a representative for that area. Subsection 92(1) of the Local Government Act 1993 Queensland used to provide for referenda plebiscites to occur but, with respect to these council amalgamations, the Queensland government expressly removed any right to appeal any decisions by the government or the Local Government Reform Commission on reform matters. In evidence, Mr Scott said on the Hansard:

I would be very happy for the Senate committee to review the right of appeal … Because of the parliamentary unicameral system in Queensland, I would think it would be beneficial in relation to the Queensland laws as are enacted by the state government. That does not mean everything they do is wrong.

The repeal of the right to conduct referenda plebiscites in the Local Government Act of Queensland is a blatant denial of procedural and natural justice. The Local Government Reform Commission makes a decision, which may be in error but on which the Queensland government relies in good faith, and the people and the entities affected by that decision have no right of appeal. If a commission recommendation for amalgamation is not relevantly evidence based, it should surely be open to appeal. One of the real problems that were identified in evidence was that the amalgamations were consistently not evidence based. They were based on general propositions, not specific propositions relevant to the councils concerned.

The question is whether there is any constitutional basis for the Commonwealth enacting a right of appeal or process of review to be available where an error of judgement has been made and where no possibility of appeal exists in state law. The advice I have had is that this is difficult but not impossible. The question of the Commonwealth making such a catch-all provision involves various constitutional areas of law, including section 51 powers, the separation of powers, the complexity of federal and state court/tribunal cross-vesting laws, intergovernmental immunities and chapter 3 considerations with respect to the judicature. There is also the jurisprudence on administrative law involving judicial review on merits and questions of law. One point of note probably worth bearing in mind is that much of administrative review and appeal law goes to the review or appeal of a decision of a decision maker made under an act. A recommendation to a decision maker becomes relevant when review is being sought of a decision as to whether relevant considerations, irrelevant considerations and errors of questions of fact were taken into account.

The incidental power under section 51(xxxix) of the Constitution permits laws incidental to judicial matters and is the power behind legislation such as the Judiciary Act 1903. Chapter 3 of the Constitution governs the High Court and other federal courts which the parliament creates. The Commonwealth has created bodies such as the Administrative Appeals Tribunal and others which exercise federal jurisdiction and which must abide by the principles of Brandy v Human Rights and Equal Opportunity Commission 1995, namely the difference between judicial and administrative functions.

Matters of state and territory law are interpreted by state courts and tribunals. States and territories can refer matters to the Commonwealth under section 52(xxxvii) of the Constitution but usually, if there is a high level of cooperation, other forms of legislative schemes are preferred. Cross-vesting laws were struck down in the case of Re Wakim ex parte McNally 1999.

There is no clear and easy way for the Commonwealth to have a role in or legislative power over matters that are the jurisdiction of state and territory courts and tribunals. The states and territories—and the Commonwealth, for that matter—can legislate as to the vesting of jurisdiction, appeal and review rights, and also the curtailment and limitation of appeals and review rights. The privative clause provisions are a good example of this.

My view is that the federal government should report to the parliament prior to 31 December 2008 on ways in which review processes can be guaranteed throughout Australia where they are lacking in state or territory legislation in defined circumstances such as these. Where the Senate inquiry, I think, failed was in not making that recommendation. It is outrageous that a plebiscite could be conducted—it is non-binding—and an opinion against the local council amalgamation could be registered, and yet the amalgamation could still go ahead where it might be based on an error of judgement or fact and where there is no appeal process. And that is a fundamental weakness which is still apparent in these circumstances.   

Finally, I want to deal with the timing of plebiscites. The question of timing has been discussed. Should it be before the federal election, on the same day as the federal election or after the federal election? These are matters entirely for the AEC, in my view. They are the independent authority and their independence should be respected. There should not be any prohibition on what day they can be held. I would remind the chamber that section 394(1) of the Commonwealth Electoral Act states:

On the day appointed as polling day for an election of the Senate or a general election of the House of Representatives, no election or referendum or vote of the electors of a State or part of a State shall, without the authority of the Governor-General, be held or taken under a law of the State.

In theory, the authority of the Governor-General could override that provision, but in fact it is a virtual prohibition of elections, referenda or votes of electors which cover plebiscites being held simultaneously.

If the Americans can conduct simultaneous elections on the same day, involving everyone from dog catchers through to presidents, it is not beyond the wit of Australians to do the same. I would have no objection whatsoever to a plebiscite being held on the same day as the election. It is my view, as it was the view of the 1988 Constitutional Commission, that the provision of section 394 should be repealed. It is our view as a party that Australians are in frequent election mode, with nine governments holding federal, state, territory and local government elections, as well as referenda and plebiscites at all three levels of government. The issue is one of cost and convenience. If greater efficiency can be achieved in other countries where simultaneous elections are a longstanding, regular and unexceptional feature of their election system then there is no reason why they should not occur here. This provision came into place only in 1922 and it is about time it was done away with. I conclude by foreshadowing that I will be moving the following second reading amendment:

At the end of the motion, add:

                 “and the Senate is of the view that the International Covenant on Civil and Political Rights be introduced in full into Commonwealth law”.

(Quorum formed)