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Thursday, 30 April 1987
Page: 2066


Senator CHANEY (Leader of the Opposition)(12.13) —The Senate is debating the Equal Employment Opportunity (Commonwealth Authorities) Bill 1987 which was introduced by the Minister for Resources and Energy (Senator Gareth Evans) to promote `equal employment opportunity in those areas of Australian Government employment that are not already covered by the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 or by section 22b of the Public Service Act 1922'.

The second reading speech makes it clear that the Bill applies to a wide range of Commonwealth statutory authorities, including major government business enterprises such as Telecom Australia, Australia Post and the Commonwealth Banking Corporation. As I will indicate later in my speech, that means it touches on a substantial part of the Australian economy because those authorities are major influences on the Australian economy. The second reading speech went on to state:

The passage of this legislation will ensure that the overwhelming majority of Australian Government employing authorities are required to develop equal employment opportunity or affirmative action programs.

It is interesting to see that the second reading speech suggests that the Bill permits not just the promotion of equal employment opportunities but affirmative action. Of course, the Opposition has always clearly distinguished its attitude to affirmative action from its total support for equal employment opportunity. The second reading speech continued:

The object of equal employment opportunity programs is to eliminate discrimination against women, migrants whose first language is not English and their children, Aboriginals and Torres Strait Islanders, and disabled persons.

I would say unequivocally that that objective has the total support of the Opposition, and indeed all members of the Opposition. The Opposition would be less supportive about the constant reference to programs for affirmative action which are spread through the second reading speech. Later in my speech I will touch on the other concerns which we have about the legislation. I note that in the second reading speech the Minister said:

I wish to emphasise the programs are not intended 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 . . .

That is not strictly accurate as a matter of fact. What the Bill does is to permit matters to be dealt with on the basis of merit; it does not require that matters should be dealt with on the basis of merit. Again, that is an important distinction as far as the Opposition is concerned. Those objects which in general command our broad support are not objects which have only latterly come to our attention. In my first year in the Senate I was faced with legislation which dealt with the question of racial discrimination. I joined with other Opposition senators in supporting that legislation in principle but I pursued substantial amendments to the legislation which was introduced by the then Labor Government. During my speech I will refer to some of the things I said in 1975.

One cannot claim that the ideal of removing discrimination was born in the 1970s. Indeed, I suppose those who are old enough will remember that it became a matter of great concern in the 1960s. Although this Bill deals with a wider class of persons, I think that debate on it so far has concentrated on the issue of discrimination against women. I suppose my favourite tract on that subject can be said to have come from the sixties but indeed it was the 1860s. When John Stuart Mill wrote his essay entitled `The subjection of women', he said in the first paragraph what I think needs to be said about our attitude to the rights of women. I quote:

That the principle which regulates the existing social relations between the two sexes-the legal subordination of one sex to the other-is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other.


Senator Gietzelt —What year was that, Senator?


Senator CHANEY —It was 1869.


Senator Gietzelt —He was a bit ahead of his time.


Senator CHANEY —The Minister for Veterans' Affairs, who is at the table, says that J.S. Mill was a bit ahead of his time. I think that a number of honourable senators behind me would agree with that. Let me say that the pursuit of that ideal of a perfect equality has gone on continuously since. Australia, with our record of female franchise, and in many other ways, has much to be proud of in the changes which have been achieved in the status of women. John Stuart Mill wrote at a time when married women had virtually no rights even to their property. We have seen the great mass of laws which were oppressive of women removed over the years since Mill wrote that essay.

A very interesting sidelight in all this is that feminists would argue that the essay should be largely attributed to Harriet Taylor, Mills's long time friend, confidante and, subsequently, wife. Mill very generously ascribed to Harriet Taylor the credit for much, if not most, of his work subsequent to their commencing to work together. It fascinated me that it could be a matter of argument as to whether `The subjection of women' was the work of Harriet Taylor or of John Stuart Mill, because it seems to me that if the essay was meant by Mill but was written by Harriet Taylor it would have been quite extraordinary that he would not have given her the credit when it was published in 1869. However, that is an irrelevancy in a debate which is perhaps meant to be more concerned with matters which are of moment in Australia in 1987.

I note that the volume I was referring to has on its cover that wonderful painting entitled Liberty Leading the People by Delacroix. We have of course a bare-breasted Liberty leading a largely male group over the barricades and the bodies of those who stood between her and the revolution that was required. There is a very nice bit of symbolism there too, which I am sure honourable senators will enjoy.

I do not think that one should enter into this debate without also acknowledging that the very real problems which exist with respect to our dealing with this legislation are not new either. Our having agreed that there is a common desire to have equality for men and for women, the real problem, I suppose, boils down to asking the question: How do we do it? That is what takes me back to the debate which we had in the Senate in 1975 when we were discussing racial discrimination. Mr Acting Deputy President, I am sure you remember that debate. You would remember the mixed feelings that there were in this chamber about the efficiency of the legislative approach of the Government. Fortunately, we were able to amend it in quite significant ways. I want to remind the Senate that, when I spoke on 22 May 1975, I referred to what Jim Killen said in the other House when he led for the then Opposition. He made the following point:

. . . I am seeking to assert the thesis that it is the view of this entire Parliament that racial discrimination, one of the disfigurements of the 20th century, should be silenced.

He went on to say:

But how do we do it?

I will now quote myself and what I said in that debate over 10 years ago. I stated:

The basic difference of opinion which might give rise to argument in this chamber or in the House of Representatives relates to that last sentence that I quoted-`But how do we do it?'

Again in that debate in 1975, I dissociated myself from Senator Walsh, who made a very savage attack on those who had suggested changes to the legislation, and I suggested that it was perfectly reasonable that there should be differences of opinion and that what we should be doing is seeking to have a constructive debate on the common objective that we have. I made the further point, which was a point successfully made by amendment to the Bill by the then Opposition, that we should not proceed by way of legal bludgeon, but that we should seek to proceed, and to improve our position, by way of education, by way of research, by way of conciliation, with the law being brought in only as a last resort. I take some comfort from finding that the one Liberal in the House of Representatives who crossed the floor on this subject, Mr Steele Hall-and I shall refer to his contribution to the debate now-made the point that perhaps there is a better way of going about these things than by legislating in this way. Mr Steele Hall stated:

I must say to honourable members that, 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.

I quote that because the principal focus of this debate will not be upon our common and shared objective; it will tend to be upon the difference of opinion which exists between the Opposition and so far one or two identified people who believe that to vote for this legislation without amendment is the more appropriate course and the course that they must follow. I make the point that even Mr Steele Hall, who chose to follow that course-as a Liberal of course he is entitled to do that-made the point that this was not his preferred option. Given that this was not his preferred option, why did he choose not to accept, in accordance with normal Liberal principles, the view of the majority of his colleagues? Why did he not accept that? He went on to explain that in the same speech a little further down the page. I am quoting from page 1563 of the Hansard. Mr Steele Hall stated:

. . . I will support the Bill actively by voting for it in the House. I do so, believing that the way honourable members vote is a signal to the women in the Australian community. 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 think it is important that that should be part of the record here because I can see that one could be concerned about the signals which are sent. I want to stress on behalf of the Opposition that no signal is being sent by this Opposition other than the express signals that I will indicate in this speech; namely, we believe that in the subtle but real changes which have been made to this legislation there are some grounds for concern and that amendment is necessary. Secondly, if I may look at it broadly, there is not only a problem of discrimination in Australia which burdens some people, but another problem which some of us would see as being a more significant, overall burden; that is, we have an economy in which 25 per cent of our young Australians are unemployed. We all like to get morally outraged about things. I prefer to get morally outraged, if I may say so, about the 25 per cent of youth unemployment. I therefore find that my moral outrage is a little more directed to the economic hardship which is being inflicted upon Australian families.

The Minister for Veterans' Affairs (Senator Gietzelt), who is at the table, would not be enjoying the fact that Australian families at the moment are seeing their after-tax incomes diminish, their after-tax and mortgage payments diminish, the growth in measured poverty under this Government and the rise in youth unemployment since the Government started Priority One. None of that would be a source of satisfaction to the Minister at the table, nor would it be for me if I were in the same position. I have been in the position of seeing economic deterioration under a government of which I was part. I would have to say to the Minister and to you, Mr Acting Deputy President, that my moral outrage was greater over what was happening because of disemployment in 1982-83 than over the remaining oppression of Australian Aboriginals, for example, to pick something else that exercises my conscience and mind. I want to put those things in some sort of perspective.

We are dealing in this legislation with, I would suggest, more marginal areas of difficulty, and there are two questions: Is the Government going down a path a little further in a way which might be damaging and where some slight drawing back of the sort that is going to be put forward in our amendments is required? Ought we to be examining this regulatory cost burden which the Government's own organ estimates at many tens of billions of dollars in this community, a very heavy cost on an economy which the Leader of the Government in the Senate, Senator Button, continuously tells us is not internationally competitive and which will not succeed until it becomes internationally competitive? These are all major matters and, believe it or not, they are all relevant to where we are on this legislation and the approach that we adopt.

I think it should also be acknowledged that the issues relating to this legislation, the issues of equality, are deep and complex. I find that I am using more of my time than I would wish on these matters; but for those people who believe that there are straightforward and complete answers to the problems of sexual equality and to guaranteeing an appropriate place for women in our society, I would say that they are no more simple and no more straightforward than the problem of guaranteeing equality and a reasonable place in our society for the Aboriginal community. I simply say to honourable senators that all of us should be a little sceptical of our capacity as legislators to legislate for results. The sort of complexity that exists is reflected in my favourite book by a feminist, The Second Stage by Betty Friedan, who, after 20 years, engaged in a retrospective examination. One finds in that retrospective examination the same sort of questioning that is referred to by Professor Geoffrey de Q. Walker in his study on citizens, Initiative and Referendum, when he writes of the volatility of the views of elites and how inconsistent many attitudes have been about what will achieve the common, shared objective we have. I think all of this is relevant, too, because it says to us that we should all be prepared to be a little more sceptical of our capacity as legislators to achieve the solutions that we have. The caution which the Opposition is urging here is very reasonable in that context.

I commend for consideration the early views of so many feminists to that oppressive instrument of social repression, the family, with the retrospective assessment of Betty Friedan, who said:

``Family'' is not just a buzz word for reaction; for women, as for men, it is the symbol of that last area where one has any hope of individual control over one's destiny, of meeting one's most basic human needs, of nourishing that core of personhood threatened now by vast impersonal institutions and uncontrollable corporate and government bureaucracies and the bewildering, accelerating pace of change. Against these menaces, the family may be as crucial for survival as it used to be against the untamed wilderness and the raging elements, and the old, simple kinds of despotism.

I totally agree with that and I think it is a very wise comment. When I look at the reversal of attitudes, the laughing at marriage and now the attempt to put the legal equivalents of marital obligations on people who cohabit, which commenced I think with litigation in California, so often the foundation of our next big move, when I look at the whole agenda as to what is going to achieve happiness, I look at Germaine Greer's original attitude to promiscuity as against her present attitude to sex and relationships generally. I simply say that we are in a very moving scene. I do not like people who suggest that they have all the answers and that they can be very simply legislated.

The points that need to be made on behalf of the Opposition go beyond the general description of the philosophic point that has to be made and the difficulties that we face in these areas. I need to refer to the growing concern that properly exists in this community at the ever increasing legislative intervention in our lives and, most importantly, the extent to which it is effective. I note that Senator Peter Baume, who has done the ultimate and retired from the shadow ministry, moved a motion on behalf of the Opposition in 1986. The Labor Party has told us what he said about extending this legislation. He did say that, and he said it on our behalf. Senator Baume also moved a motion which said:

. . . the Senate believes that . . . voluntary co-operation rather than additional Government regulation is the preferred method of achieving equal opportunity in employment . . .

That is a statement of view which was put forward by Senator Baume on our behalf, and it represented the considered view of the Opposition at that time. That motion, moved on our behalf, went on to refer to what I have already mentioned today, that is, the growing cost burdens of business, reducing overall employment opportunities and increasing prices to consumers; the increasing level of business regulation; the establishment of yet another bureaucracy at a cost to the taxpayer; further extending interference of trade unions in the activities of private employers; and so on. Senator Baume said: `I hope that the Senate will see fit to adopt these amendments'. That still represents the considered view of this Opposition.

However, on this occasion we are saying that we believe that things have moved on to the extent that, given the burden of regulation referred to in Senator Peter Baume's resolution, we should acknowledge that the Government itself has indicated through its Business Regulation Review Unit that we are not dealing with a minor problem here but with a problem which it estimates imposes a total cost on the Australian community of between $40 billion and $80 billion. It goes into great detail in its report of May 1986 as to how it arrives at that figure.

We find a very welcome response to that problem by the Government, a response that we have not criticised at all because we see it as important. Senator Button released a statement on 9 January 1987, as follows:

. . . Senator John Button, today announced a strengthening of the government's commitment to the reduction of unnecessary business regulation and a commitment to ensure legislation is expressed in simple English.

We will never get that, but let us hope that we get a reduction of unnecessary business regulation. The statement continues:

Senator Button said any new government proposal affecting business must be cleared with the Business Regulation Review Unit and if necessary the department making the proposal is required to supply a Regulation Impact Statement.

Senator Button said, ``the Government is committed to a review of business regulation with a view to winding back those regulations not offering a net benefit to the community.''

My second reading amendment is the same as the amendment moved in the other place. It has not been circulated and I ask that that be done now. I move:

Leave out all words after ``That'', insert ``this Bill be not further proceeded with until it has been examined by the Business Regulation Review Unit in accordance with the procedures announced by the Government on 9 January 1987 for the review of government proposals affecting business regulation, and until the Department of Employment and Industrial Relations prepares a Regulation Impact Statement on the proposals contained in the Bill''.

In further support of that amendment, I point out that Senator Button went on to say-and I think this bears out the wisdom of following the course suggested by the Opposition-the following:

A Regulation Impact Statement can be called for where this is considered to be necessary. The statement should canvass the costs and benefits of the proposal to government and the community and should demonstrate-

I stress the following words-

that the regulatory route proposed is the most efficient and practicable of the options available.

I do not have time to expand on that further. I simply say that here we have a request from the Opposition to do no more than the Government has indicated that it is prepared to do in response to the need for keeping down the cost of regulation. Some confusion has developed about this because in the House of Representatives Mr Willis was quite clear about it. On 26 March in the House of Representatives Mr Willis said:

It is true that this legislation does not have a Regulation Impact Statement, but this legislation has been not to the Business Regulation Review Unit but to the businesses themselves.

So we have that statement from Mr Willis, but yesterday in Question Time Senator Button, in response to a question from Senator Crowley, said:

I understand that the Business Regulation Review Unit was also given the opportunity to be involved in discussions on this and other policies the Government has introduced in the equal opportunity policy area. I am not certain about the comments made by the Business Regulation Review Unit in this instance . . .

I simply say to the Government that we expect it to submit this Bill to the procedures that it has outlined as being appropriate to ensure that we follow the most cost effective path. That is something that I believe the people of Australia and indeed the women of Australia should demand.

I have only five minutes left to deal with our other area of concern with this Bill. There has been some debate about whether there is really any difference between this Bill and earlier Bills supported by the Opposition with respect to the imposition of numerical requirements on employers. Does the Bill go wholly or partly down the track of establishing quotas? We are right to be concerned about that, because the Equal Employment Opportunity Report 1985-86 states:

Provisions for evaluating the effectiveness of Programs are often inadequate. Very few agencies set numerical targets to be used as indicators of progress. The Board will be placing greater emphasis on the development of appropriate quantitative performance indicators during the coming year.

A follow-up document issued by the same body, headed `Equal Times-Issue No. 1, March 1987', refers to:

. . . the more difficult and more fundamental questions related to the development, implementation and monitoring of EEO programs: the setting of targets.

It states a little later:

There seems to be, however, something about the word `targets' that continues to arouse suspicion, despite repeated and unequivocal emphasis of this policy. People seem to have much less trouble with the words `performance indicators' so in future, that is the terminology we will be using.

I quote that publication merely to indicate that clearly this is a contentious and difficult area that we are called upon to deal with. My concern is that there are quite real differences and a movement in terms of the three pieces of legislation that we have had to consider touching on this area-the Public Service Reform Act 1984, the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 and the Bill now before us. The Equal Employment Opportunity (Commonwealth Authorities) Bill 1987 has a merit clause which, as I said, is no more than permissive. It states:

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.

I simply point out that the Bill does not require action, but on the other hand it does not do anything to prohibit action which is incompatible with that principle. In other words, if Commonwealth authorities, pursuant to their other obligations under this legislation, start pursuing the employment of people other than on the basis of merit my clear view would be that that is not prohibited by sub-clause (4) of clause 3.

I turn to the question of what quantitative elements there are in this legislation. I refer the Senate to the fact that, under the heading `Contents of program', clause 6 refers to the setting of the particular objectives to be achieved by the program and then to the `quantitative and other indicators against which the effectiveness of the program is to be assessed'. We will seek to move an amendment simply to take us back to the form of words passed by this Parliament last year in the other equal employment legislation we dealt with. I make the point that the difference between what was passed last year and what was passed in 1984 is a difference which is quite real. The 1986 legislation refers to a forward estimate of employment being a `quantitative measure or aim which may be expressed in numerical terms'. We shall move that that wording be included because at least that is permissive of a non-quantitative approach; I cannot put it any higher than that. On the other hand, the Public Service Reform Act which was passed some years ago has very similar words to those used in this legislation but with a very significant difference: Instead of referring to `quantitative and other indicators' it refers to `quantitative or other indicators'. Once again, this is a clear indication that it was not necessary to set quantitative targets under the Public Service Reform Act 1984.

I am sorry to have to conclude my speech on matters of detail but the fundamental stance which is taken by this Opposition is that in the pursuit of equality of opportunity in employment we believe that we should go as far as we went last year but no further and that in any event we should not go that far until the Government has imposed upon the legislation the test, the review which, in its statement of last January, it laid down would be followed. I speak as one who can claim to have done as much as anyone in this chamber to pursue the equal treatment of the people that I represent, including in my work as a lawyer before I became a member of this place. The Opposition stance on this Bill is in accord with principle; I believe that to say that it is not in accord with that principle is not to understand our position.

Debate interrupted.

Sitting suspended from 12.44 to 2 p.m.