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Wednesday, 26 November 1986
Page: 2806


Senator GARETH EVANS (Minister for Resources and Energy)(5.36) —Let me respond by doing three things-first of all, indicating quickly the effect of the Opposition amendments; secondly, saying why we think the Opposition's amendments are misconceived; and, thirdly, describing the Government's alternative approach. The effect of the three amendments is really twofold; first of all, to remove the capacity to extend the grounds of discrimination as provided for in International Labour Organisation Convention 111 in Article 1.1(b); that is, the relevant provision is to be found, of course, at Schedule 1 of the Human Rights and Equal Opportunity Commission Bill. The second thing that the Opposition's amendments do is to allow the nature of the profession, business or occupation of the employer to be taken into account in determining whether there has been discrimination which impairs or nullifies equal employment opportunity.

The Government's response is that we ought not to go down these particular tracks. The first point I would make is that we are here dealing not with the aspects of the jurisdiction of the Human Rights Commission, in relation to which there are at the end of the day real sanctions, determinations, awards and so on, that are enforceable by the courts. As Senator Durack acknowledged, we are dealing here simply with the equal opportunity provisions pursuant to the ILO Convention that were previously the jurisdiction not of the Commission itself but of the more informally constituted employment discrimination committees. The functions of the Commission in relation to this equal opportunity area which will, as I say, simply pick up the former functions of the employment discrimination committees are much more analogous to those of an ombudsman than of the Commission exercising its functions under the Racial Discrimination Act or the Sex Discrimination Act, which is a much softer array of functions, if you like, in respect of which there are no sanctions of any significant kind at the end of the day.

The basic functions are to receive complaints and to investigate those complaints, as again the ombudsman can, using certain compulsory processes; to make a report with recommendations; and if no conciliation proves to be possible then ultimately, if necessary, that report is to be tabled in the Parliament. I point out that there is no power to determine rights as between complainant and respondent, quite unlike the provisions of the sex and race discrimination acts in that respect. Certainly, there is no power to compel, either directly or indirectly through court subsequent enforcement, a respondent to pay compensation or to do any act, such as engaging a person as an employee. To that extent-I will come back to this point later-detailed exemptions of the kind that one finds understandably in the Sex Discrimination Act are simply not as appropriate, or arguably as necessary, as they are in that context. An ombudsman-type jurisdiction is necessarily a more flexible and lower key one in the way in which I believe it ought to be defined.


Senator Durack —Then why are you proposing your amendment?


Senator GARETH EVANS —I will come to that in a moment. Against that background, I now indicate the response to the various elements of the Opposition's amendments. We say that in Article 1.1 (b) the Convention specifically recognises that the grounds on which there may be discrimination in employment are not closed. The Opposition's amendments Nos. (1) and (3) would operate to restrict the grounds of discrimination solely to those in Article 1.1 (a) of the Convention which include, incidentally, discrimination on the basis of political opinion, which is something about which Senator Durack waxed indignant as being likely to be imposed upon him by virtue of this extension of the jurisdiction under 1.1 (b). It is already there under 1.1 (a) to which, on this occasion anyway, he is not objecting.

To restrict the grounds of discrimination solely to those in 1.1 (a) would, of course, ignore Australia's obligations to consider, and introduce if appropriate, additional grounds under 1.1 (b). We argue that this is a retrograde step in the present Australian situation because the employment discrimination committees have already effectively implemented, through their existing procedures, nine additional grounds over the 13-year period of their existence. These grounds have been accepted and acted upon by the tripartite partners in those existing committees, that is to say, the employers, the unions and all Australian governments. They have not caused any fuss or difficulty in practice, that I am aware of, and there is no reason to assume, simply because the jurisdiction is being transferred to the Commission, that they will cause fuss or difficulty in the future. To remove in effect the capacity for these grounds to be considered by the Commission in exercising this ombudsman-type function would be not only not to go forwards but to go backwards in terms of what has already been achieved.

As to the second part of the Opposition's amendments, to allow the nature of an employer's business to be taken into account is a formulation which is much wider than the convention's limitation based on inherent requirements of a particular job. To answer Senator Durack's interjection now, the Government has been prepared to accept the proposition from the bishops that religious bodies should enjoy a wider exemption, consistently with the provision of religious freedom in Article 18 of the International Covenant on Civil and Political Rights. Such an exemption is also consistent with what the Senate did, as has been acknowledged, in section 38 of the Sex Discrimination Act. We have been prepared to do it because concern has been expressed. We have been asked to do it in relation to a particular institutional arrangement and we have taken the view that, if a cogently, forcefully expressed proposition is put to us, even if it is not strictly necessary because of the way in which it will work in practice, nonetheless if it helps to get a better appreciation of the scope and the intent of the legislation, we are prepared to look seriously at it; besides which the Pope is in the country at the moment and I suppose it is not unreasonable that we pay some appropriate parliamentary acknowledgment to that reality.

The Government's alternative approach responds to the two concerns of the Opposition-not in the way the Opposition wants, but in a way that at least addresses the points that have been made. We say that Article 1.1 (b) of the Convention, to allow extension of the grounds for discrimination, must be given some effect. However, rather than leaving it to the gazettal procedure identified in sub-clause 31 (2) of the parent Bill, we are prepared to support the Australian Democrats' proposal that would enable the grounds to be extended not just unilaterally by the executive government without any review process, but by way of regulation, which is, of course, subject to disallowance in the Parliament.


Senator Harradine —Like your video material committee, where you have incest now.


Senator GARETH EVANS —I will leave it to Senator Harradine to pursue that particular rabbit down its burrow when we get to--


Senator Harradine —I will, and you will have to respond to it tonight.


Senator GARETH EVANS —I will bear that prospect in mind with such fortitude as I can command. In the meantime, someone might scramble around to find out just what enormity we have perpetrated so far as incest and videos are concerned, so that I have some appropriate lines. (Quorum formed) I have indicated that the Government will accept the Australian Democrats' amendment in relation to using a regulations process rather than a gazettal process in extending the definition of discrimination.

As to the second part of the Opposition's concerns, the Government will, as I have already indicated, move an amendment to recognise the need to give religious bodies a clear exemption that may not be included in the Convention's inherent requirements of a particular job test. That may not be included as clearly as could be the case if we spelt it out in legislation. I just reiterate that this does meet the expressed concern of the Australian Episcopal Conference and the church organisations which employ people in schools, in health care and in welfare.

If I can anticipate one aspect of Senator Harradine's concerns, I know that he has argued that the further extended exemption ought to be applicable not only in relation to institutional employment but also in relation to employment by individual persons. What we say is that we simply attempt to resolve a possible doubt as to the operation of the test in Article 1.2 of the Convention in respect of the inherent requirements of a particular job. We doubt the need for the additional ground of exemption as I have said; but we are prepared to do it in the case of religious institutions. Such an exemption should be kept relatively narrow so that there is no derogation from the basic thrust and content of the Convention. I hope that, with that fairly lengthy contribution, I have indicated sufficiently what the Government's reaction is and that, as a result, we can keep the remaining part of this debate relatively short.