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Tuesday, 5 May 1987
Page: 2304


Senator CHANEY (Leader of the Opposition)(3.23) —by leave-I move:

(2) Page 5, paragraph 6 (g), leave out the paragraph, insert the following paragraph:

``(g) to set objectives and make forward estimates in the program;''.

(3) Page 5, clause 6, at end of clause, add the following new subclause:

``(2) In subsection (1):

`forward estimate' means a quantitative measure or aim, which may be expressed in numerical terms, designed to achieve equality of opportunity for women in employment matters, being a measure or aim that can reasonably be implemented by the relevant employer within a specified time;

`objective' means a qualitative measure or aim, expressed as a general principle, designed to achieve equality of opportunity for women in employment matters, being a measure or aim that can reasonably be implemented by the relevant employer within a specified time.''.

This amendment really gets to the nub of the concern which was expressed by the Opposition and which gave rise to our decision to oppose this legislation unless amendments were made. I said in response to the intervention by Senator Walters a few moments ago that I would refer back to clause 3, sub-clause (4). I think the wording of that clause which has already been passed by the Committee is in fact relevant to the view which we take of the impact of clause 6 which we are seeking to change. The Opposition sees the nub of the problem in clause 6 that we are currently debating. It gives rise to what has been variously described as a de facto quota, a `trend towards' quota, the establishment not of a formal quota but of a target which will in effect give rise to an affirmative action approach in this area.

The Opposition has made it quite clear that while it totally supports equal opportunity it is opposed to affirmative action. I notice that Senator Siddons in his contribution to the Committee debate a few minutes ago expressed his regret at the necessity to bring forward legislation of this sort. I assume from what Senator Siddons said that he regrets that it was necessary or thought to be necessary to legislate in an area where one would have hoped that equal opportunity would already be applicable. I note that Senator Siddons is nodding; so I think I have correctly interpreted what he was saying.

It is very important in understanding the Opposition's stance on this matter to understand that there always has been concern in the Opposition that this sort of directive, legislative approach is the less desirable means of going about the achievement of equal opportunity. In the second reading debate I referred to the debate way back in 1975 on racial discrimination. I think it would be true to say that in respect of any piece of legislation which the Parliament has had to deal with from that time to the present which has set out by legislative means to achieve the removal of discrimination-whether on the grounds of race, sex, religion or whatever-there have been a significant number of senators and members of the other place who have had a very strong reservation about the capacity to legislate for morality, for attitudinal change and for the imposition of further bureaucratic controls in areas which are so sensitive.

As someone who has worked in Aboriginal affairs for close to 30 years I can only say that there is at least some evidence that some of the attempts to improve the situation of Aborigines have proved counterproductive. I well recall examining the impact of Aboriginal studies programs, for example, when I was Minister for Aboriginal Affairs and being surprised to find research which suggested that the effect of some programs aimed at increasing student understanding of, and sympathy for, the Aboriginal cause actually had a negative result. Instead of attitudes getting better they became worse. Senator Peter Baume, in a speech which has been referred to a number of times in this debate, moved on 12 June 1986 on behalf of the Opposition a second reading amendment including these words:

But in fully endorsing the principle of equal opportunity in employment and career advancement through merit-

happily, I think that that is common ground in the chamber-

the Senate believes that

(a) voluntary co-operation rather than additional government regulation is the preferred method of achieving equal opportunity in employment.

The amendment then went on to make various suggestions about building on good will and expertise developed with private employers during the voluntary pilot program and referred with concern to the additional cost burdens of business and so on. Again, as I mentioned during my own second reading contribution to the debate in the Senate, I was very interested to find that Mr Raymond Steele Hall, who crossed the floor in the other place in the sense that he voted for the legislation when the Opposition was voting against it, said in his contribution to the debate:

. . . if I were in the position of directing this program, I would adopt a more educative attitude. I would not be forcing the pace as much as it is being forced in the Bills that have been brought to the House in these successive years. I would take a longer term view. I would have a similar aim, guided by the principles contained in the platform of my party; but I would have a longer aim of an educative and educational program.

A little later, having referred to the fact that he felt that he had to vote for the legislation because it conveyed a signal to Australian women, he said:

Whilst, as I have said, I am sceptical of programs forcing the pace beyond that which the community is willing to accept and develop, I nevertheless believe that the signal that the Parliament gives to women to help them take their rightful place in the community, free of discrimination, is extremely important.

I quote those words because I think, in determining a view on this, one is making a judgment about the efficacy of the approach which is the statutory and directive approach set out in this legislation. In looking at this legislation the Opposition took the view that it went just a little too far. We seek to take the legislation back. The amendments that I have moved, the third amendment in particular, would take the wording back to the wording in the 1986 legislation. That legislation passed with the support of the Opposition and with a second reading amendment moved by Senator Peter Baume on behalf of the Opposition. What is it that we are concerned about in this legislation as against the earlier legislation? What we are concerned about has been described by some as a significant difference and by others as nitpicking. It seems to me that beauty is in the eye of the beholder.

Let me refer to the three pieces of legislation on this matter that we have dealt with. In 1984 we dealt with the Public Service Reform Bill. The equivalent words we were concerned about in that Bill in the definition of `program' were `the quantitative or other indicators against which the effectiveness of the program is to be assessed'. In other words, in the 1984 legislation, which we supported, there was reference to quantitative indicators but the disjunctive `or' was used. This at least gave those running the program the capacity to use other than quantitative measures or indicators to check its effectiveness. Somebody said to me in the course of discussions on this Bill that the difference between the two provisions is only one word. I think that the difference between `or' and `and' is quite significant.

The Affirmative Action (Equal Employment Opportunity for Women) Bill 1986 refers, in relation to the programs, to `qualitative measure'-not quantitative but qualitative-`or aim, expressed as a general principle', and `a quantitative measure or aim, which may be expressed in numerical terms'. Again, there is a great deal more room to move within that definition than it appears to us is left in the legislation before us today, which refers quite simply to the `quantitative and' other indicators against which the effectiveness of the program is to be assessed. So, put quite shortly, we are really saying that this Bill leaves the administrators of the programs which are required under it no choice but to have quantitative indicators. That is a firm and fixed requirement under clause 6 (g). We would like to see that requirement reduced in the way in which our amendment proposes, which is to go back to the form of words which was used in 1986. The relevance of clause 3 to all this is that we see the Government defending what is being done on the basis that we cannot possibly have any even implied or de facto quotas because clause 3(4) incorporates the merit principle. It reads:

Nothing in this Act shall be taken to require any action incompatible with the principle that employment matters should be dealt with on the basis of merit.

That is fine. That sub-clause ensures that the legislation does not require any action which is incompatible with the principle of merit. In other words, it is permissive. It does not direct that one should take action against the principle of merit; nor does it direct that one cannot take action which is incompatible with the principle of merit. None of us would deny that people who will be involved in these programs will have a deep commitment to their vision of equal opportunity. The public servant or servants involved in the program may say, for example: `By gosh, progress is slow. Look at that dreadful Postal Commission. Here we have a report today saying how bad the Postal Commission is. It does not treat the Vietnamese properly and it does not treat women properly. Really, we have to do something about this'. The managers may start getting worried about the reports that can go back and forth with respect to these things.

The fact is that quantitative measures can be set under clause 6. One does not have to be unduly afflicted with the idea that the world operates by conspiracy. I am not suggesting that for a moment; what I am saying is that all of the pressures will lead to the point where it will be quite easy for people-perhaps with the very praiseworthy desire to get the numbers up-to start making decisions which are not based on merit but which are based on the pursuit of the targets which have been established. To suggest that that is not possible under this legislation would, I think, be very unfair. That is why we prefer to go back to the form of words which we agreed to last year and which to my view still gives rise to some of that danger because it is still possible under the previous wording to have some quantitative measure. I am not suggesting that that is completely out of the question and may not be there for the purpose of assessment, but there is a difference. I am suggesting that we support this amendment because it is less likely to give rise to the sort of affirmative action quota approach which has been steadfastly opposed by the Opposition in all its dealing with legislation of this type.

I hope I have made that point clearly again. I do not want to have to go back and forth at great length on this issue on which people have fairly clear minds but on this clause I think I can say again that I speak for the Opposition in saying that we prefer the earlier form of words because it reduces the suggestion which is in the present form of words that since there must be quantitative indicators against which to judge the effectiveness of the program that in itself will be a temptation and indeed will give an opportunity for over enthusiastic people administering these programs to give rise to abuses which we would not wish to see occur.