Constitutional reform, administrative law and affirmative action

The Hawke government's popularity was not sufficient to overcome the electorate's traditional suspicion of referendum proposals. Proposals to require Senate and House of Representatives elections to be held on the same day and to allow the free interchange of powers between the Commonwealth and states were both rejected on 1 December 1984, with Tasmania, Queensland and Western Australia proving particularly hostile. On 16 July 1985 Cabinet considered a submission from Attorney-General Lionel Bowen on the future of the Australian Constitutional Convention. Bowen said that the forthcoming meeting in Brisbane was the sixth plenary meeting of the Convention since 1973, but the partisan nature of representation meant that it was unlikely that agreement would be reached on any constitutional reform that would justify holding a referendum. The Convention's achievements so far had been very modest and it was unlikely to be more successful in the future. Bowen suggested that the Convention be replaced with a people's convention made up of about 20 leading Australians from varied backgrounds, who would in turn select another 100 to 150 delegates (see A14039, 2992).

In September 1985 Bowen told Cabinet that there had been general acceptance at the Brisbane meeting that some reform was needed to the Convention structure. He recommended the establishment of a broad-based commission commanding the support of the diverse constituencies in the community. The commission would have a full-time chairman and about 10 part-time members, and would recommend a new Constitution as a bicentennial project. Bowen's suggestion was strongly opposed by the Prime Minister's Department, firstly because it would be unanimously opposed by the Opposition and the ALP in some states, and secondly because it might threaten existing Commonwealth fiscal and external affairs powers. However Cabinet expressed an inclination to support the proposal and on 2 December 1985 it was decided to set up a Constitutional Reform Commission chaired by Sir Maurice Byers, with Gough Whitlam, Sir Rupert Hamer, Justice John Toohey, Professor Leslie Zines and Professor Enid Campbell as members (see A14039, 3439). The proposed new commission did not eventuate.

On 13 May 1985 Cabinet considered a memorandum from the Department of the Prime Minister and Cabinet on ways of reducing the cost of operating the Freedom of Information Act. In 1983–84 the Act had cost $17.63 million to administer, against revenue of only $13,500. The department noted that it would be contrary to ALP policy to repeal the Act, but suggested a range of ways to discourage demand. Cabinet agreed to introduce a $20 application fee, together with search and retrieval fees of $30 per hour, although applicants seeking their personal files would not be charged. Charges for other applicants would be waived only in cases of personal hardship or genuine public interest, while applications from journalists and members of Parliament would no longer be regarded automatically as being in the public interest. Maximum use would be made of the provision to refuse applications on excessive workload grounds, publicity for the Act would cease, and staffing would be substantially reduced.

The Whitlam government introduced a Bill of Rights in 1973, but it lapsed with the dissolution of Parliament in 1974. In March 1984 Cabinet agreed in principle to the introduction of a Bill of Rights as a broadly stated charter of rights and freedoms to protect individuals in their dealings with government. The Bill would be based on the external affairs power and meet Australia's obligations under the International Covenant on Civil and Political Rights. Attorney-General Senator Gareth Evans told Cabinet that the Bill would serve 'as an inspirational and educational document, stated in clear language and designed for “the schoolroom wall”'. The Bill would have effect as a 'rule of construction' to be used in proceedings involving the interpretation of the common law or of another statute. In addition, if the Bill of Rights was infringed in criminal proceedings, the court could make an order to ensure that the administration of justice was not brought into disrepute. Unlike the 1973 Bill, the new Bill could not be relied on directly in, for example, an action for damages. The Bill lapsed at the 1984 election.

Evans' successor, Lionel Bowen, presented Cabinet with a new Bill of Rights in 1985. The bureaucrats were not entirely pleased with it: the Department of the Prime Minister and Cabinet was concerned about the cost and considerable scope for judicial interpretation, and Treasury was concerned about both the cost and potential for conflict with the states. On 30 September 1985 Cabinet basically approved the Bill for tabling in Parliament, but specified that the right to marry should apply only to 'a person of the opposite sex' and that the Human Rights and Equal Opportunity Commission would be able to investigate state laws and practices only with the approval of the Attorney-General. The Bill was passed by the House of Representatives in 1985, but failed to pass the Senate, with some senators arguing that it was too radical and others that it was too conservative. The Bill was withdrawn by the government in November 1986.

Cabinet agreed in August 1984 to replace the Human Rights Commission established by the Fraser government in 1981 with an enlarged Human Rights and Equal Opportunity Commission, which would consist of a president and up to five other members with specific functions, including racial and sex discrimination and prospectively privacy and affirmative action. It would have a discretionary amicus curiae role where human rights issues were raised in legal proceedings, and would continue its predecessor's role in investigation, conciliation, research and education. The Bill lapsed at the 1984 election, but Attorney-General Lionel Bowen told Cabinet on 19 August 1985 that it was intended to introduce a new Bill in the coming session of Parliament. The legislation was passed in 1986 and the Commission was established in December 1986, with commissioners for Human Rights, Race Discrimination and Sex Discrimination.

On 16 April 1984 Cabinet agreed to the tabling of a Green Paper on affirmative action and the establishment of a working party chaired by Senator Susan Ryan, Minister for Education and Minister Assisting the Prime Minister for the Status of Women, to plan its implementation. In a joint submission Senators Ryan and Evans noted the ALP commitment to take all administrative and legislative steps, including the introduction of affirmative action programs, to ensure equality for women. The Sex Discrimination Act, which was approved by Parliament in March 1984, outlawed discrimination on the grounds of sex, marital status or pregnancy, but it did not compel the breaking down of occupational segregation or improvement of the representation of women in all areas. The Green Paper recommended immediate legislation to establish affirmative action programs for women and disadvantaged minority groups in the Australian Public Service. Legislation would ultimately be introduced to require private-sector organisations employing more than 100 people to introduce affirmative action programs, although this would need to be done in a way that did not unduly disrupt business or prejudice women's long-term employment prospects. The government did not propose to introduce specific employment quotas for women.

In July 1984 Cabinet endorsed the Prime Minister's proposals for priorities for the Women's Budget Program. The priorities included improving access to employment, training and education, and removing tax disincentives for women on low incomes to participate in the workforce. It was also important to increase family allowances and the funding of child care, women's health, refuges and low rent public housing. This would require new and expanded programs to improve women's economic security and to assist their progress towards equality. Resources in all government programs would be redistributed to ensure they were of greater benefit to women. Departments were instructed to prepare assessments of the impact on women of all new and existing programs.

On 19 August 1985 Cabinet considered progress on affirmative action. A one-year Affirmative Action Pilot Program in the private and higher-education sectors had ended on 2 July. It had been intended to improve the representation of women in all areas of the workforce and had generally been judged a success. There was a widespread expectation that the government would legislate for affirmative action, although it was anticipated that the Opposition and most business organisations would oppose 'prescriptive' legislation. Cabinet asked Senator Ryan to put forward a package including legislation covering organisations with more than 100 employees and all higher-education institutions. These organisations would be required to report in confidence on their affirmative action plans to a new agency to be established within the Employment and Industrial Relations portfolio. Measures would also be taken to improve girls' education and workplace childcare facilities.

Selected documents

Copyright National Archives of Australia 2018