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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-06-17 Daily Xml
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ADMINISTRATIVE DECISIONS (EFFECT OF INTERNATIONAL INSTRUMENTS) ACT REPEAL BILL

Introduction and First Reading

The Hon. M. PARNELL (17:35): Obtained leave and introduced a bill for an act to repeal the Administrative Decisions (Effect of International Instruments) Act 1995. Read a first time.

Second Reading

The Hon. M. PARNELL (17:35): I move:

That this bill be now read a second time.

This bill is identical to one that I moved in this place on 7 February 2007. That bill lapsed when the parliament was prorogued a few months later. I have brought it back to the parliament now because the topic of international treaties and their role in South Australian government decision making is back in the public eye, particularly in relation to two important issues: first, the fate of the Lower Lakes and the Coorong; and, secondly, the ongoing and reinvigorated debate about juvenile offenders and how they are treated.

When introducing the bill two years ago, I went through in some detail the history of this legislation that I am seeking to have repealed, and the origins of that act that come out of attempts by the federal government to circumvent a High Court decision. That decision, the famous Teoh case in 1995, included a finding by the court that we as Australian citizens have a 'legitimate expectation' that our ministers and public servants would have regard to international treaties that Australia has signed, regardless of whether or not they had been enacted in domestic law. I do not propose to go through that historical exercise again, and I refer members to the comments I made on 7 February 2007. However, what I want to do in reintroducing this bill is update the situation in relation to those two current South Australian issues that I mentioned—the Lower Lakes and Coorong; and juvenile detention, in particular, the Magill Training Centre.

Members would be aware that Pam Simmons, the Guardian for Children and Young People in this state, has been vocal in her criticism of the Magill Training Centre. I first asked a question about Magill in this place on 22 November 2006. When asking the question, I prefaced it with these remarks:

In her 2005-06 annual report, the Guardian for Children and Young People, Pam Simmons, refers to the Magill Training Centre and says:

'...is a cheerless institution which inhibits proper care and behaviour change. The facility falls well below national standards for both youth and adult detention facilities, it contravenes United Nations rules for the Protection of Juveniles Deprived of Liberty and is potentially in violation of Article 40 of the United Nations Convention on the Rights of the Child'.

Quite remarkably, in her answer to my question, the former minister for correctional services said this:

I place on record that there will be a new youth detention centre to be redeveloped at Cavan at a cost of $79 million—we obviously heard that in the budget. It is a figment of nobody's imagination; I can assure the honourable member that it will be going ahead.

Clearly, it did not go ahead and is not likely to go ahead in the foreseeable future, so that new facility is still only a figment of the government's imagination.

Pam Simmons referred to a potential breach of the Convention on the Rights of the Child, which is a treaty that was ratified by Australia in 1991, and she referred to Article 40. I will read the first paragraph of Article 40 of that convention. It says:

States parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

What we have to remember regarding these young people is that they have, in the main, long lives ahead of them. Those lives could be constructive, worthwhile and happy or they could be anti-social, deprived and criminal. The philosophy of pack 'em, rack 'em and stack 'em has no role in juvenile detention unless we are determined to make adult offenders out of child offenders.

Members would be aware that Monsignor David Cappo, the social inclusion commissioner, has been vocal on ABC Radio, and elsewhere, talking about the Magill Training Centre. On ABC Radio recently he said:

The Magill Training Centre is a disgrace. It needs to be bulldozed and demolished.

Reporter David Bevan asked him:

Is it possible to treat people humanely in the Magill Training Centre?

David Cappo's response was:

No, it's impossible. The facility is totally inappropriate and must go.

That call has been picked up elsewhere and expanded upon. Yesterday, Mission Australia called on the South Australian government to set a target to reduce the number of young people in juvenile detention. Mission Australia's director, Jillian Paull, said that the number of young people in detention in this state is increasing, and she wants to widen the debate around the poor living conditions at the Magill Training Centre. She is quoted in the media as saying:

What I'm saying is let's have a broader debate about what are the other options we could be offering these young people and their families.

Whilst we absolutely appreciate the need for a safe and secure place for young offenders to be living, we also need to be offering them something that prevents them being detained and offending in the first place.

So, there we have an example—not a new example. In fact, the concerns were raised years ago and they are still as alive today as they were back in 2005, because we are seeing a South Australian facility failing to comply with international standards. The relevance, of course, to my bill is that my bill seeks to repeal that law on our statute book that says no public servant, minister or government official can be held to account for not taking into account the provisions of an international treaty that Australia has signed.

I will explore a little bit more the legal implications of that, but I also want to mention briefly the situation in the Lower Lakes and the Coorong. No member can fail to be aware of the dire situation of the lower reaches of the River Murray system. We have seen on the news just in the past day or so the government aerially spraying lime onto areas of the Lower Lakes to prevent acidification occurring. They are in an absolutely desperate state. They are also, of course, listed under an international treaty as wetlands of international significance. That is the so-called Ramsar convention that members will be aware of.

The commonwealth must take that convention into account because it is incorporated into commonwealth law. It is part of the Environment Protection and Biodiversity Conservation Act. However, state decision-makers—by virtue of this act of parliament from 1995 that I am seeking to repeal—are fully protected even if they completely ignore the provisions of that treaty. My position is: why shouldn't state officials have to have regard to that international treaty in the same way as commonwealth decision-makers? It is not as if we do not know that it is internationally listed. The Premier and others have mentioned many times that this is an internationally listed wetland, particularly important for its role as a habitat for water birds.

In conclusion, I want to address the question of what passing my bill means for decision-making in South Australia. When I first introduced this bill, I made the comment that the effect of repealing this act has more to do with the psychological barrier that our public servants and ministers have in relation to their response to international treaties, rather than any direct impact on South Australian citizens and their rights. The act that I am seeking to repeal says to our administrative decision-makers, 'Feel free to ignore international treaties. In South Australia they are not worth the paper they are written on.' That is why I say that the act should be repealed—to remove that barrier to proper decision-making.

One question that people might be anxious about in considering whether to support my bill is: if my bill were to pass, would that force the government to bulldoze the Magill Training Centre and build a new facility? No, it would not. It does not force the government to do anything. Does passing my bill guarantee that the Wellington weir will not go ahead? No, it does not. It does not impact directly on any of these decisions. What my bill does do is put pressure on the South Australian government to at least recognise and take into consideration these international treaties when it is making decisions about our community, our economy and our environment. So, it really is quite a simple measure.

I have mentioned in the past that South Australia is the only jurisdiction that has laws that protect public servants and ministers from the need to take international treaties into account. My bill does not give international treaties the force of domestic law. It is not some backdoor method of making them part of the South Australians statute book. What it does is say—as the High Court said—that South Australian citizens have a legitimate expectation that, if we have signed a treaty on a matter, at least our bureaucrats and ministers will take it into consideration when making their decisions. It will not bind them, but they will need to take it into consideration. The alternative is that we continue our hypocrisy as a nation in that we are a party to these international treaties with little or no intention of doing anything about them in practice.

Finally, I place on the record my thanks to Pam Simmons and David Cappo for having the courage to speak out against the inhumane and disgraceful conditions at the Magill Training Centre. I commend the bill to the council.

Debate adjourned on motion of Hon. B.V. Finnigan.

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