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Wednesday, 26 November 1986
Page: 2804


Senator DURACK(5.23) —by leave-I move:

(1) Pages 3 and 4, sub-clause 3 (1), leave out the definition of ``discrimination'', insert the following definition:

`` `discrimination' means any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, but does not include any distinction, exclusion or preference in respect of a particular job based on the inherent requirements of the job;''.

(2) Page 6, after sub-clause 3 (7), insert the following sub-clause:

``(7a) For the purposes of the definition of `discrimination' in sub-section (1), the nature of the profession, business or occupation of the person or institution for whom or for which a job is to be performed and all the purposes and objectives that the carrying on of the profession, business or occupation by that person or institution are designed to serve, including religious, moral and political purposes and objectives, shall be taken into account in determining the inherent requirements of a job.''.

(3) Page 24, leave out sub-clause 31 (2).

These amendments deal with the definition of `discrimination' which appears on page 3 of the Bill. I do not think that this matter has been dealt with in the new amendments which have just been passed. So we are dealing with the original Bill. The definition of `discrimination' at the bottom of page 3 is as follows:

`discrimination' means-

(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment . . . and

(b) any other distinction . . .

that has the same effect-

(ii) has been determined by the Minister under sub-section 31 (2) to constitute discrimination . . .

but does not include any distinction . . . in respect of a particular job based on the inherent requirements of the job;

Clause 31 (2) provides that the `Minister may, by notice in writing published in the Gazette', determine that expanded definition of `discrimination'. Once the Minister gives his diktat in Fuhrer-like fashion, which is now becoming fashionable in the human rights area, the great range of new discrimination may take effect.

This definition is part of the additional section of the Human Rights and Equal Opportunity Commission Bill which has been included to justify the words `equal opportunity' in the title. This Bill now creates quite a new extensive jurisdiction in the Human Rights Commission, namely that which has been carried on in the past by the employment discrimination committees. The Bill seeks to exercise the jurisdiction of those bodies under the International Labour Organisation convention concerned with discrimination in employment. The first limb of the definition of `discrimination' which I have read out is taken directly from the ILO convention. Indeed, the extension of the definition, although perhaps not a direct take from the convention, is in a sense authorised by the ILO convention because the convention itself contemplates state parties apparently extending this range of discriminations which the convention actually prohibits.

The employment discrimination committees have acted for many years in an informal way without coercive powers and, indeed, without any statutory position. That is, of course, an anathema to the human rights industry which wants more statutory powers, more bureaucrats and more coercion. It believes that the more general prohibitions and draconian remedies the better. This Bill has attempted to meet that pressure point by bringing into the jurisdiction of the Human Rights Commission the functions that have been performed by the employment discrimination committees. I gather that those committees will be abolished. Perhaps the Minister for Resources and Energy (Senator Gareth Evans) can tell us whether that is correct assumption. The new Human Rights and Equal Opportunity Commission, in exercising this function, will have the full coercive powers of the existing Human Rights Commission, as provided for in this new Bill, in relation to Acts, practices or enactments in the Commonwealth sphere. But it will not have the full coercive powers in relation to the States. It will have some powers but it will not have the full coercive powers. It will have, of course, the statutory basis of the Human Rights Commissioner. It will be able to make reports and recommend compensation and so on, but it will not have the full powers of calling up people, making them answer questions and so on which the Commissioner will have when exercising jurisdiction in the Commonwealth sphere.

So here we have a glorious state of confusion first up. Of course, what the Bill really does not clearly address either is the point that sex discrimination, which is a matter of discrimination under this head of jurisdiction, and race discrimination are both the subjects of separate Commonwealth legislation-legislation which has quite elaborate exemptions which are not carried over into this legislation at all. So there will be an absolute feast of litigation about how these two things can work together. The Government has now created an absolute dog's breakfast. But that is its own business and, as far as we are concerned, it can live with it and pay for it.

We are deeply concerned about the matter that has been raised by the Catholic Education Office. This matter, of course, is of great importance to all religious schools and institutions. There are absolutely no exemptions in this legislation as there are in the Sex Discrimination Act in particular in respect of their position. The Opposition's second amendment addresses this matter. The amendment proposes that the definition will not apply if there is discrimination in respect of a particular job based on the inherent requirements of the job. That may be interpreted very narrowly in which event, of course, religious institutions, particularly church schools, whether they be Catholic, Jewish or of any other religion, will be in great trouble and will not have the same protections as far as this general definition of `discrimination' is concerned as they have under the Sex Discrimination Act.

If the legislation is interpreted in a very wide sense, maybe the church schools would be in trouble. But we believe that that should not be left in doubt. The Government apparently has accepted the fact that there is a basis for what the Catholic Education Office has said and has proposed an amendment to meet that same question, but it does so in more narrow terms. Although the Opposition is pleased that the Government is prepared to come some of the way, I hope it may be persuaded to come all the way. Indeed that is what our amendment proposes, namely, that the nature of the particular job, which may be the basis for its being excepted or exempted from the general exclusion of discrimination, will extend to:

. . . the nature of the profession, business or occupation of the person or institution for whom or for which a job is to be performed and all the purposes and objectives that the carrying on of the profession, business or occupation by that person or institution are designed to serve, including religious, moral and political purposes and objectives, shall be taken into account in determining the inherent requirements of a job.

The fact is that perhaps it is not so easy, and certainly not in the time which we had available over the weekend, to draw up a great detailed list of exemptions as has occurred, to some extent, in the Sex Discrimination Act 1984 in relation to discrimination on the grounds of sex, but here there is a further problem in that the discrimination that is provided for is of a very wide kind. It is not just in relation to sex and race, but there is political opinion and so on and, of course, as I have said, it may be extended by the Minister.

The other amendment that we have moved is that that should not be able to be extended at all by the Minister. If the Minister wants to add further functions to other forms of discrimination he ought to come back into this chamber with new legislation and let us debate it here. Let us not have proposed by these ideologues in the Human Rights Commission what the particular flavour of the week is about discrimination, according to their minds. Already quite extensive extensions have been made to these matters in the employment discrimination committee; they have already been extended to prevent discrimination on the grounds of criminal record. That will be the first thing the Minister does, to extend this definition to prevent discrimination on the grounds of criminal record. That would be good, would it not, for somebody whose occupation entails the overseeing of trust accounts! Unless a very wide definition were taken, somebody with a long record of embezzlement could not be discriminated against in relation to that sort of employment. Discrimination on the ground of political opinion may mean that an archbishop would be forced to employ a communist or a proselytising atheist as his secretary. It could mean that I would have to employ a person whose political opinion would be totally at variance to mine as a Liberal member of parliament.

Incredible as it may seem, these are some of the possible questions about and consequences of the legislation which the Government has drawn up and which we have before us. The Government's amendments do not deal broadly with those problems at all. They are simply a quick fix attempt to satisfy a new political problem in the current state of the Government's desperation to deal with any political problem that crops up. It has now seen that it has a real problem with the Catholic Education Office so it has come up with a definition of the narrowest possible kind to try to satisfy it. If it satisfies the Office, it certainly does not satisfy the Catholic bishops. The Secretary of the Australian Episcopal Conference of Catholic Bishops has already written to us all. If the Government had a few more days to consider that it may come up with another quick fix solution to fob off the Catholic bishops. But it has not had time to do that as it has taken it some days to come up with this narrow amendment to satisfy the Catholic Education Office. These people are entitled to be satisfied, but the method of doing that does not satisfy a whole lot of other problems.

The amendment I have moved on behalf of the Opposition attempts to broaden this in such a way that there will be an assumption that the moral, political and religious objectives of various professions and occupations will be fully taken into account and fully observed, whatever they may be. Whether they are agreeable to the Government and to the human rights apparatchiks is irrelevant. We want to have a broad brush application of these exceptions to what is an extraordinarily broad definition of discrimination.