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Thursday, 26 March 1987
Page: 1619


Mr McARTHUR(4.52) —While the Equal Employment Opportunity (Commonwealth Authorities) Bill 1987 purports to enshrine the principle of merit for employment or promotion, the reality is that it will encompass a highly unacceptable degree of affirmative action because, in essence, it will lead to prescriptive, positive discrimination. It will not guarantee that jobs will go to the best applicants but, inevitably, will result in jobs going to inferior applicants. Equal opportunity for women is a much valued principle. No women should ever suffer discrimination on the basis of sex, although we know that such discrimination sometimes occurs. However, the question is: Will this legislation attack that discrimination, or will it merely denigrate women through a course of affirmative action?

Coalition members believe, as do the vast majority of people in the community, that women are entitled to pursue whatever career they choose to. Equally, it is believed that the factors which should determine whether a person gets a job are the willingness and competence that will be applied to the job and the approval by the employer of the person as not only able to perform the job but also as the best and most suitable candidate from those putting themselves forward-the one with the capacity, competence and overall ability to do the job-irrespective of gender.

In 1984 when I first joined the Parliament, the Sex Discrimination Bill was being vigorously debated by both sides of the House. When the vote was taken, the coalition allowed a free vote and a number of members supported the Government's legislation. At that time I was fearful that prescriptive legislation of a social engineering nature would not be in the best interests of women's ability to find opportunities both of a social nature and with employment potential. Personally, I support the view that women in Australia and other disadvantaged groups should have equal access to opportunities of all kinds and should not be restrained by legislation or current attitudes. However, it is difficult to change social attitudes by legislation.

The follow-up legislation to the Sex Discrimination Act was the Affirmative Action (Equal Employment Opportunity for Women) Bill 1986. Again this provided for considerable debate as to the legislative advantages of implementing affirmative action on behalf of women throughout Australia. The key element of that Bill was the section in relation to the merit principle, which stated:

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

Those of us on this side of the House who had reservations about the way in which the Bill was drafted took consolation in the fact that men and women could take job opportunities based on their ability to do the job rather than on their sex. I draw the House's attention to the affirmation action program, dealt with in clause 8 (3) of that Bill, which I quote for the record:

In sub-section (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 reason- ably be implemented by the relevant employer within a specified time.

The key element in proposed sub-section (1) was that it was a general objective which could not be measured or defined. It was not specific. Therefore, in my view, the merit principle maintained a superior status in that Bill. The Equal Employment Opportunity (Commonwealth Authorities) Bill 1987 contains a similar clause under the heading `Contents of program'. Clause 6 (g) states:

(g) to set:

(i) the particular objectives to be achieved by the program; and

(ii) the quantitative and other indicators against which the effectiveness of the program is to be assessed;

The Parliament should be quite clear that these are definitive and specific objectives which raise the spectre of quotas and numbers. In my view, there has been a substantive change from the previous Bill. Clause 6 (e) reads:

(e) for the collection and recording of statistics and related information concerning employment by the relevant authority, including the number of and the types of jobs undertaken by, or job classifications of:

(i) employees of either sex; and

(ii) persons in designated groups;

It is quite clear from these two sections that this Bill will force, in either a legal sense or a practical sense, the identification of quotas and numbers of persons to comply with the legislation and that the merit principle will take a secondary place in the scheme of things. I also note that clause 5 (h) states:

(h) to monitor and evaluate the implementation of the program and:

(i) to assess the achievement of those objectives; and

(ii) to assess the effectiveness of the program by comparing statistics and information collected and recorded under paragraph (e) with the indicators against which the effectiveness of the program is to be assessed.


Mr Hand —Come on, Stewart, you don't believe this.


Mr McARTHUR —It would be good if the honourable member for Melbourne listened to this, because then he might understand the legislation. My other major concern is the definition of `designated groups'. I quote from the explanatory memorandum setting out the designated group as defined in the Public Service Act 1922:

Aboriginals, descendants of indigenous Torres Strait islanders, migrants whose first language is not English and their children and the physically or mentally disabled are included in the definition of `designated groups'.


Dr Theophanous —So what's wrong with that?


Mr McARTHUR —My personal concern is that these designated groups can be expanded by regulation and their existence in the legislation would make it almost impossible to apply the merit principle ahead of the designated group personnel receiving due consideration.

I draw the attention of the House to the community employment programs, which, incidentally, cost the Government more than $1 billion over a three-year period, where the implementation of the particular section of the Act is a clear example of the difficulties to be encountered in practice. All honourable members would be aware of the CEP's requirement that Aboriginals, migrants and disabled persons are special categories to be addressed for those seeking jobs in these programs. On occasions it has been very difficult to meet that criteria and quite often after the first stage of the program has been completed, it is virtually impossible to get a particular person in a specific category to meet the guidelines. If this procedure were extended to the work force in general I am of the view that it would be most difficult to implement the merit principle, especially when some established quotas or figures had been given to the various authorities.

There can be no doubt that the application of this Bill in statutory authorities would lead to number crunching in direct contradiction to the notion of equal opportunity and merit principle. Given the very nature of the regulated bureaucracy of statutory authorities under this Bill there would be a move from qualitative assessment of employees and candidates for promotion to a direct reliance on and leaning towards quantitative measurements. Whatever term is used, whether it is `goal', `target', `objective', or `forward estimate', they are all indistinguishable from a quota because of the well known interest and, some would say, obsession of statutory authorities and government bodies in statistical outcomes.

The setting of a target must necessarily result in the appointment of some applicants because of an attempt to reach an arbitrary quota rather than the application of criteria based upon the quality of candidates. The setting of a target, goal, objective or forward estimate without the presumption that it is to be met or approximated, such as is the case with the Affirmative Action (Equal Employment Opportunity for Women) Act 1986, is meaningless and wasteful because if that were the case the merit principle would serve. Clearly, the danger exists under the requirements of the Bill currently before the House that statutory authorities and their departments and sub-components will race to fill their forward estimates, either in an attempt to get a pat on the back or to avoid a perceived backlash which, I am afraid to say, is a very real possibility under the terms of the legislation. Whatever the motive, we will find that the merit principle will be thrown out the door.

I support the Opposition's position in rejecting this Bill because it is different from the previous Bill in substance and in thrust. I quote from a Press release by the Business Council of Australia on 19 February 1986 concerning affirmative action legislation. It states:

The Business Council believes strongly in programs to eradicate employment discrimination and pursue equal opportunity. Basic to this is the acceleration of attitudinal change in the community as a whole. We believe that programs mandated by government carry a high risk of attitudinal backlash, and make genuine reform more difficult. As a realistic and workable alternative, the private sector Council for Equal Employment Opportunity will contribute more effective and meaningful reform for the cause of women through genuine private sector commitment than externally imposed and consequently resented legislative requirements and official surveillance.

Further, the Business Council believes that the approach being taken under the legislation, regardless of its stated intent, could have the effect of positive discrimination in favour of women, thus challenging the notion that all employees should be treated as individuals according to their skills, qualifications, aptitudes and potential without regard to gender. Compliance with legislation and the requirement to justify performance in quantitative terms to a specialised agency can easily become a numbers game rather than promoting qualitative change through a genuine commitment to the ideals of equal employment opportunity for women. This is not in the longer term interests of women or of business efficiency objectives.