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Thursday, 26 March 1987
Page: 1624


Mr ROCHER(5.25) —In the strictest sense of the term, the title of the Equal Employment Opportunity (Commonwealth Authorities) Bill suggests that it is to be complementary legislation to the Public Service Reform Act 1984 and the Affirmative Action (Equal Employment Opportunity For Women) Act 1986. If it was, it might not normally have attracted as much attention as it undoubtedly has. On 9 May 1984 the then Minister for Finance and Minister Assisting the Prime Minister for Public Service Matters, the present Minister for Trade (Mr Dawkins), introduced a so-called Public Service Reform Bill to amend various sections of the Public Service Act 1922. Included amongst its proposals was provision in section 22b under the broad heading of `Personnel' matters to require departments to develop equal employment opportunity plans for women and certain other designated groups.

The Public Service Reform Act came into operation on 1 October 1984 and initially 26 departments and 26 authorities were required to develop equal employment opportunity programs. With the growth in the number of departments and authorities covered by section 22b, this total number had grown to 57 by June 1986. In that month the Public Service Board, by regulation, brought an additional 26 authorities for which the Board has some official responsibility within the scope of this section. I am talking about earlier legislation, but I remind honourable members that the scope and application of this Bill can be extended by regulation. In June last year 26 additional authorities were added. In addition, authorities with more than 100 staff members were required to consult the Public Service Board about developing equal employment opportunity programs by February 1988 and certain smaller authorities were required to do the same by July 1988.

As has been mentioned by other speakers, a number of Commonwealth authorities are still not covered by legislation requiring equal employment opportunity programs and this Bill will extend to many major government business enterprises such as Telecom Australia, Australia Post, the Commonwealth Banking Corporation, the Overseas Telecommunications Commission, the Reserve Bank of Australia, Australian Airlines, Qantas Airways Ltd, the Australian National Railways Commission, the Australian Shipping Commission, the Commonwealth Serum Laboratories, the Commonwealth Health Insurance Commission, Aboriginal Hostels Limited, the Commonwealth Accommodation Catering Service and the Australian Capital Territory Fire Brigade.

It should also be noted that coverage under the Equal Employment Opportunity (Commonwealth Authorities) Bill 1987 is by definition, not by listing. Thus, the Bill covers almost all authorities employing 40 or more staff. Furthermore, a number of significant primary industry boards and marketing authorities are to have amendments made to their established legislation to implement the proposals contained in this Bill during the course of this year.

As the Minister for Employment and Industrial Relations (Mr Willis) noted in his second reading speech, this legislation is in addition to the Affirmative Action (Equal Employment Opportunity for Women) Act proclaimed on 1 October 1986. That legislation required higher educational institutions and companies employing 100 or more staff to develop affirmative action programs and to report progress to the Government's Affirmative Action Agency. We should not lose sight of the clear implications of that obligation to report.

Given that the Minister spent the greater part of his second reading speech reminding the House of what the Government sees as its record of achievement in this area, and only a couple of pages discussing the actual provisions of the Bill, I intend to raise some reservations I have about the concepts of affirmative action and so-called equal employment opportunities legislation. As noted during our consideration of the Affirmative Action Bill in April last year, opposition in whole or in part to measures of this kind usually evokes a somewhat patronising response from certain quarters. Critics such as I are often rather shallowly judged to have failed either to grasp the subtle complexities of the concept of affirmative action as it has supposedly developed in Australia or to fully appreciate the supposedly pragmatic way in which the legislation has been drafted. The argument goes that law is required only after much so-called consultation with all the usual staging posts of bureaucratic manoeuvre, such as discussion papers, interim reports, voluntary pilot projects, working parties, and so on. At worst, it seems to me to be assumed that any critic has an outmoded, if not overtly reactionary, attitude to the role of women in society.

While in constructive debate it should be tediously unnecessary, nevertheless let me make it quite clear that my reservations about the Government's actions in this area are based on serious concerns about both the philosophy and the practical effects of this kind of legislation, and not because I am in favour of any kind of religious, political, racial or sexual discrimination. Let me outline some of my concerns. The Minister, in his second reading speech, said that the object of the Bill is to eliminate discrimination against women; migrants whose first language is not English and their children; Aboriginals and Torres Strait Islanders; disabled persons and others; in unnamed and as yet undefined categories. Quite properly, he said:

. . . freedom of choice of occupation is a basic social right which should not be constrained by criteria unrelated to ability to perform the job.

I do not object to that objective. Moreover, I look forward to the day the Minister will give his personal support to my private member's Bill which will bring genuine freedom of association to the work place by ensuring, in the Minister's language, that criteria, including membership of a union, unrelated to ability to perform a job, are removed and that freedom of choice of occupation, a truly basic social right, is protected from the arbitrary and irrelevant requirement to belong to some particular organisation, be it a union or an employer body.

Honourable members will have noted that, unlike the Affirmative Action (Equal Employment Opportunity for Women) Act, there is no mention of affirmative action in the title of the Bill. Despite its absence, the simple fact is that the Government has regularly and deliberately confused the two terms in order, I believe, to subsume the fact that the key concepts are mutually exclusive. While this might be good partisan politics, it is bad public policy. The Government must surely be well aware of the serious deficiencies in United States-style affirmative action programs, mentioned briefly in the excellent speech made by my colleague the honourable member for Braddon (Mr Miles). On each occasion the Government has introduced legislation on this subject, it has been at pains, to quote from the Minister's second reading speech:

. . . to emphasise the programs are not intended to lead to, and will not lead to, positive discrimination. The Bill expressly confirms that employment matters are to be dealt with on the basis of merit.

If merit were to be the sole objective of the Government, law is not needed. The Public Service Board and Commonwealth statutory authorities could be instructed accordingly. The Government could embark on a program to convince private employers accordingly. Surely more law is not required to ensure that employment matters are to be dealt with on the basis of merit. Is not merit already the ultimate criterion in deciding employment matters in the Public Service and statutory authorities? If not, the Government itself has condoned, and practised, discrimination in employment hitherto. But there is no evidence of that. Quite simply, law is not needed to outlaw discrimination that does not exist. We are left to conclude that there are other motives and they are not those stated by the Government. Page 3 of the explanatory memorandum states:

Sub-clause 3 (4) states that nothing in the Bill 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.

We have to look beyond the Government's words and try to discover its reasons. For example, last year the Chairman of the Public Service Board, Dr Peter Wilenski, wrote to the Australian Financial Review to argue that concern about the United States experience with affirmative action was rather fanciful in the Australian context. Dr Wilenski argues that there was a clear difference. He said that United States-style quotas were a mandatory selection of a certain number of people from a particular group, regardless of merit. To his mind, a target was an estimate of the number that might be selected if so-called barriers were removed and if positive steps, such as recruitment programs, were undertaken.

Page 20 of the `Equal Employment Opportunity Report 1985-86' also contains assurances along those lines. The relevance to this Bill is clearly apparent in clause 6 which, according to the explanatory memorandum, allows for:

. . . program objectives as well as quantitative and other measures of effectiveness;

It is interesting to note that Canada has a scheme similar to the one being introduced here-albeit introduced here in various stages. Like this Government, Canada maintains that its approach is reasonable, flexible and compatible with appointment according to merit. It maintains that there is a sharp difference between its policy and the approach taken across its southern borders in the United States. According to the 1983 annual report of the Canadian Public Service Commission, that Government was committed to:

. . . a distinctly Canadian approach to the identification and elimination of discriminatory practices in the workplace.

In an address delivered in May 1983, the Canadian Public Service Commissioner, Jennifer McQueen, reiterated the theme of Canadian distinctiveness:

Comparing affirmative action in the United States to that in Canada risks making an error. In our country affirmative action does not transgress the Public Service Employment Act nor the merit principle and excludes rigid quotas.

That sounds fairly familiar. Let me assure the House that the Canadian experience is compatible with the proposals embodied in this legislation. With that in mind, the opinion of Professor Conrad Winn, writing in the journal `Canadian Public Administration' in the spring of 1985, should be of interest. At page 29 of the journal Professor Winn argues that, in practice, there is little real difference between the United States and Canadian models. Citing a definition of quotas as `a share of goods, assigned to a group or to each member of a group', he said:

By this definition, numerical goals are indeed quotas.

As Winn demonstrates, the practical effect of evaluating departments according to their achievement in `reaching numerical targets', enforces de facto quotas. He sums up as follows:

The view articulated by the Public Service Commission is that American programs are less flexible and more rigid or coercive than Canadian programs, the empirical evidence does not uphold the PSC's portrait . . .

Professor Winn's view can be put into an Australian context if we consider the words of Dr Gabriel Moen who wrote to the Australian Financial Review on 28 January 1986 in response to the letter I mentioned from Dr Wilenski a little earlier. He stated:

. . . the setting of a target, without the presumption that it is to be met or approximated, is a meaningless and redundant concept . . .

It is in this general context, but without making any specific or immediate predictions, that I remind the House that articles 1 (4) and 2 (2) of the International Convention on the Elimination of All Forms of Racial Discrimination and article 4 of the Convention on the Elimination of All Forms of Discrimination against Women allow for affirmative action on the American model. That is so-called positive discrimination or reverse discrimination but, nevertheless, discrimination in that it gives preferential or compensatory treatment to members of groups on the basis of their gender, racial, ethnic or other qualities. This may include quotas involving preferential treatment in hiring, promotion or even in admissions to educational institutions. Australia has ratified both those conventions. No doubt positive discrimination benefits some minorities, but let me make the point clear that positively discriminating in favour of minorities involves discriminating against the majority; that particularly applies in employment and also where government resources are being used.

There are several other important points I want to make if I have the time. Firstly, there seems to be a serious lack of understanding in some quarters about the time it takes for social values that affect the attitudes of many people in the community to change. My colleague, the honourable member for Boothby (Mr Steele Hall), made mention of this in his speech this morning. Whilst I did not agree with much that he had to say on this subject on that occasion, he did point to the pace at which the Government is moving with this legislation and with earlier legislation. This is particularly so in the case of representation of women in the highest levels of the Public Service, the universities, business, unions and the like.

It is worth recalling that it was just over a decade or so ago that A. A. Calwell, the former leader of the parliamentary Labor Party, could write unflatteringly in his book entitled Be Just and Fear Not:

Women's lib or those other way out movements that have developed in recent times.

That was not long ago. Much of the so-called underrepresentation of women ignores the data and relevance of years in the work force, relative qualifications and, in particular, views of women themselves and the choices many of them make, particularly with regard to trade-offs of careers and traditional home responsibilities.

Secondly, I suggest that all too often the evidence cited in support of claims of discrimination is rather fragile. A good example is to be found in the book entitled Why So Few?, which deals with perceptions and criticisms by a number of women academics at Australian universities and institutes of technology. Summing up the argument mounted in that tome, Geoffrey Partington, senior lecturer in education at Flinders University, wrote:

Not one single example is offered in the whole book of any appointments or promotions being made . . . of a clearly less suitable male instead of a more suitable female on grounds, overt or covert, of gender.

Using a United States of America example, because the figures are more readily available, the data largely shows that the real difference is not between men and women; it is between married women and all other persons. For instance, let us look at the United States academic situation. Academic women who have never married earn more than academic men who have never married. Thirdly, I remind the House that at the same time that we are prescribing new, compulsory and not insignificant personnel management responsibilities on statutory authorities, we are simultaneously expecting those bodies to perform more effectively in the competitive commercial markets both in Australia and abroad.

Despite the Minister's assurance that there are many benefits in its equal employment opportunity proposals, we should not forget that there are also numerous and very significant costs. Certainly the difficulties the departments were having-as reported on page 8 of the `Equal Employment Opportunity Report 1985-86'-in meeting requirements for evaluating the effectiveness of those equal employment opportunity programs that have now been established are not very encouraging. Time is running out. I support the amendments moved by the Deputy Leader of the Opposition, the honourable member for Menzies (Mr N.A. Brown), for the reasons he gave and because of more general considerations which I have detailed this afternoon.