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Friday, 1 May 1987
Page: 2198


Senator JESSOP(3.21) —I shall be brief. I have listened to the debate with great interest during the past day or so, and I noted that many speakers seemed to be a little confused about definitions-for example, as between equality of opportunity and equal opportunity. I, too, find that a little difficult. I am also concerned about the question of merit and quotas. I took the trouble to consult the publication Human Rights in Australia by Dr Gabriel Moens, and I asked the Minister for Education (Senator Ryan) whether I could incorporate extracts from that in Hansard. I seek leave to do so.

Leave granted.

The document read as follows-

Discrimination is an important public issue relevant to any analysis of human rights. There is a great deal of discussion on discrimination (much of it rhetoric) but inadequate rational analysis and understanding of the concept. Discrimination is a problem which arises in relation to equality before the law.

All human beings are not equal in every respect. They are distinguishable not only by physical and mental attributes but also by their particular circumstances. These manifold differences must inevitably lead to acts which involve what appears to be discrimination. Few will disagree with the proposition that a young child cannot be given the same rights or subjected to the same duties as an adult. Likewise there are countless situations where one human being must be treated differently from another. What then is the freedom from discrimination? It is an aspect of equality before the law-and should rightly be viewed in that context.

Legally, in the United States and in countries which have Bills of Rights, this idea is expressed as the right of equality before the law and to equal protection of the law. Equality before the law means that in the making of a law every person is to be treated equally. Equal protection of the law means that in applying or enforcing a law already made, there should be no differentiation except on a rational and justifiable basis. But as indicated above it is impossible to treat everyone as equal. This has been recognised by the courts of countries where this freedom is a fundamental right.

For this reason equality has come to mean not that every person should be treated in the same manner but that every person who is in an equal situation should be treated equally-that those in like situations should be treated alike. Where people are treated differently, there must exist a rational and justifiable basis.

9.4 Affirmative Action

The phrases ``affirmative action'' and ``reverse discrimination'' are not synonymous. Whilst all reverse discrimination amounts to affirmative action the converse is not always the case. Affirmative action includes all positive steps taken to assist persons to overcome the disadvantages of inequality. In this sense affirmative action has always been practised. Most social welfare schemes are theoretically affirmative action programs. However, not all these schemes are identified with reverse discrimination. Affirmative action becomes reverse discrimination when persons who are alleged to have suffered a disadvantage are given special treatment at the expense of those who have done no wrong. Merit and qualifications are bypassed in the process. Quota systems concerning employment and educational opportunities fall within this category.

In the United States, government institutions and other institutions receiving government assistance have at times been asked to . . .

Whilst reverse discrimination cannot be justified, it has to be recognised that certain other forms of affirmative action may sometimes be necessary to ensure equality of opportunity as distinct from result. This is when members of a group suffer real disadvantages in competing fairly with others owing to the effects of past discrimination or other social or historical factors. In such situations the desirable course of action is to render assistance to the disadvantaged person in order that they acquire the capacity to compete on fair terms. These could take the form of increased educational facilities and material assistance programs (such as those which exist for aborigines). Such programs would not infringe the rights of others and could be considered a matter of social responsibility. On the contrary, socialist inspired programs have, as their object, the artifical and coercive equalisation of the human race irrespective of merit. This is a form of wealth distribution which does little to assist disadvantaged persons in the long term when the overall economic and political costs are taken into account.

``Equal opportunity'' is an attractive slogan. It suggests fair play and just rewards for the deserving. Whatever is presented as an equal opportunity program attracts broad support as the concept is popularly assumed to mean the elimination of unfair disadvantages-an object most people find laudable. It is therefore not surprising that activists who seek affirmative action involving reverse discrimination have preempted the title ``equal opportunity'' (a subtle change from equality of opportunity) for their programs which are essentially geared to coercive redistribution of material benefits. ``Equal opportunity'' has therefore become a fraudulent trade name for practices which in fact destroy opportunities based on merit. In societies deeply committed to the merit principle, the label ``equal opportunity'' becomes a useful form of deception. It is a strategy commonly adopted by modern radicals for the purpose of subverting established institutions. They operate under a phrase (equal opportunity) which is similar in phraseology though different in content from an important liberal value (equality of opportunity) and succeed in convincing the public (including liberals).

A redefinition of ``equality of opportunity'' has taken place. The primary purpose of this is deception. Reliance on the phrase ``equality of opportunity'' lulls the public and liberals into the belief that the policy is a liberal one. The supporters of new programs do not have the integrity to point out that they are redefining the phrase. See further on the devious manner in which the modern ``coercive utopian'' operates, LJM Cooray and J Carlton Socialism in Australia (Sydney, 1985).

The American scheme is based on the incorrect assumption that blacks, women and ethnic groups are under-represented only because of the bias of others. Under-representation does not always reflect discrimination. It is only one factor. Affirmative action programs, while trying to overcome this problem, do not correct most of the causes. In essence, some forms of affirmative action are necessary in Australia to overcome discrimination against women, Aborigines, the disabled and ethnic minorities. But what is to be preferred are the soft options, which amount to a more rigorous enforcement of existing, and possibly some new, anti-discrimination laws.

The use of ``hard'' affirmative action of quotas-the reservation of a specific proportion of jobs within a department or a company for under-represented groups-does nothing to overcome most basic causes of under-representation, including inadequate education and training opportunities and are, in themselves, discriminatory against those who, under normal circumstances, would have progressed on the basis of merit.

Supporters of affirmative action in Australia have tried to distance themselves from the controversial US system of setting fixed quotas by using the term ``targets'' and ``goals'' to explain their proposals. But it's a distinction without a difference. The fact that a target is a form of quota is an undeniable truth. The argument that quotas are fixed while targets are flexible is semantic. Both entail favouring people who, in normal circumstances, would not be employed or promoted on the basis of ability or merit. They progress solely on the basis of sex, colour or ethnicity.

A great deal depends on how rigorously the target is enforced. But, generally, targets and goals, like quotas, are illogical. If, as affirmative action supporters claim, targets are intended only to ensure the appointment of the best candidates regardless of sex or race, they are redundant because the appointment of the best candidates can be achieved through the traditional merit-based selection criteria which are enforceable to some degree under existing sex and race discrimination laws. These laws need strengthening. New laws are not required. Targets often ensure the selection of inferior candidates because, to meet the target, standards must be lowered and applicants who normally would not succeed leapfrog those who, on the basis or merit and experience, should have got the jobs.

Skills are not equally distributed through the community. That is a regrettable fact. We should be trying, through a better education and training system, to ensure that everyone can compete in the workplace. Then, if a person is Aboriginal, he gets the job he wants because he is the best applicant, and not because some artificial device has been imposed on the employers to force him to employ more Aborigines.

The government's trial affirmative action program involves 31 companies and tertiary institutions. As well, many government agencies, including Telecom, have introduced schemes to lift the proportions of women and minority groups in their workforces.

Dr Moens says the government's acceptance of affirmative action proposals, initiated mainly by feminist groups, is part of a trend in which the ideal of equality of opportunity has been replaced by an ideal of equality of result. The Human Rights Commission, which is supposed to fight discrimination, seems to consider the anti-discrimination principle a thing of the past-it now appears to favour a distribution of benefits on the basis of sex, ethnicity and colour. This is a very disturbing development in our society.

9.8.3 Targets and Merit

Proponents of the setting of ``targets'' argue that these targets are compatible with, and even required by, the traditional merit principle. In trying to demonstrate the compatibility of ``targets'' with the traditional ``merit'', principle as implemented in universities, proponents of EEO programmes make a valiant attempt to distinguish between a ``target'', the setting of which is mandatory, on the one hand, and the establishment of a ``quota'', the use of which is specifically excluded in an EEO programme, on the other. Advocates of EEO programmes, involving the setting of targets, emphasise that targets are flexible whereas quotas are rigid:

A quota system, applied in the employment context, would impose a fixed number or percentage which must be attained, or which cannot be exceeded; the crucial consideration would be whether the mandatory numbers of persons have been for example, hired or promoted. A goal, (or target) on the other hand, is a numerical objective, fixed realistically in terms of the number of vacancies expected and the number of qualified applicants available in the relevant job market.

Thus, as the above quotation suggests, the incompatability of a ``quota'' with the appointment of the ``best'' candidate lies in its inflexibility. Indeed, in the absence of highly qualified female candidates, the achievement of a ``quota'' requires the appointment of applicants who are less qualified than some male applicants; it sometimes necessitates the appointment of even unqualified applicants. A ``target'', in the absence of qualified applicants, does not require the appointment of incompetents. As a ``quota'' may sometimes involve the appointment of unqualified applicants whereas a ``target'' does not, advocates of the setting of targets jump to the conclusion that targets are supposedly consistent with the merit principle because, using the language of Professor Lauchlan Chipman, ``you appoint from the target group to the extent of the numerical target only if there are sufficient qualified people available to reach that number.'' He continues:

(B)y misrepresenting the quota doctrine in this . . . way, and then giving a quite specious reassurance that targets are consistent with the merit principle (which in general they are not-they simply do not license the appointment of incompetent people which is a quite different point) busy managers and the many members of the community who are properly and genuinely concerned about issues of equality are soothed into thinking that claims about . . . violation on the merit principle are silly and uninformed.

As Chipman suggests, the setting of a target may still be inconsistent with the traditional merit principle if the setting involves or results in the appointment of some applicants who are not the ``best'' on offer but progress on the bais of their sex due to the existence of an EEO programme. Does the setting of a ``target'' result in the appointment of some applicants who are not the ``best'' on offer?

The setting of a ``target'' is in practice the result of a sophisticated and statistical examination of the existing workforce and of the employment practices and procedures in use in the university (or in the public service). In the main, equal employment opportunity coordinators are expected to undertake a three-tiered examination. In the first stage, they are required to identify legislation and regulations, if any, which directly exclude women from the specific job categories. In the second stage, they determine whether and, if so, to what extent the occupational qualifications are genuinely job related, justified by business necessity. In the third stage, equal employment opportunity coordinators investigate the working conditions, including the physical aspects of the workplace and the employment practices and procedures which adversely affect women or discourage them from applying for desirable positions.

Our analysis suggests that affirmative action advocates fail to appreciate that the traditional ``merit'' principle is incompatible with the setting of ``targets'' or ``quotas'' because of the impossibility to predict the statistical and numerical outcome of the implementation of that principle. These advocates, in tenaciously repeating the claim that the traditional ``merit'' principle is compatible with the setting of ``targets'' and ``quotas'' assume that skills and interests are distributed uniformly throughout society, and further assume that women, in the absence of sexual discrimination, will be represented in the workforce, including positions of influence and power, in proportion to their total numbers in society. However, the assumption that skills and interests are distributed uniformly throughout society is rebuttable. Whilst one hesitates to say anything at all these days about sexual differences, the claim that males and females have the same skills and interests, even potentially, has never been demonstrated satisfactorily.

The argument that skills and interests are distributed uniformly throughout society is made by ``empirical'' egalitarians who believe that as a matter of empirical fact unequal results are due to some form of discrimination. Thus, their argument assumes that women, if they were given the chance, would be as interested as men in any line of work implying that the underrepresentations of women, and sex segregation, proved that women are not given that chance. In fact, there is an impressive body of literature which reveals that physical differences between the sexes in terms of many secondary sexual characteristics are the result of evolutionary selection over hundreds of generations, and that this evolution has been accompanied by corresponding psychological differences. Furthermore, practices and procedures which are genuinely compatible with the traditional ``merit'' principle only open up jobs to groups which were previously excluded from positions on the basis of their sex. Since the opening up of jobs to members of previously excluded groups increases the total number of applicants from which an employer may select the ``best'' candidate, the result of a selection procedure is made even more unpredictable than in the past.

It could also be argued that the setting of targets has a discriminatory effect in that a different target is set for each department. The absence of a uniform target is due to the fact that a target is ``fixed realistically in terms of the number of vacancies expected and the number of qualified applicants available in the relevant job market''. Although the emphasis on the setting of a realistic target may reinforce the fallacious idea that targets are consistent with the merit principle, the set- ting of a different target in each department has a discriminatory effect and disadvantages the male members of professions which traditionally have a high concentration of women graduates. For example, the target in an engineering department must, if it is to be realistic, take into consideration the ``number of qualified applicants''. Consequently, the target would be very low due to the fact that there are few female engineering graduates. Therefore, the appointment of these women, even if the women were not as qualified as some male applicants, would not greatly upset the male competitors, even . . .

It is an interesting document, and I commend it to honourable senators. I wish to refer briefly to one or two parts of it. Under the heading `Affirmative Action', Dr Moens states:

Most social welfare schemes are theoretically affirmative action programs. However, not all these schemes are identified with reverse discrimination. Affirmative action becomes reverse discrimination when persons who are alleged to have suffered a disadvantage are given special treatment at the expense of those who have done no wrong. Merit and qualifications are bypassed in the process. Quota systems concerning employment and educational opportunities fall within this category . . .

These could take the form of increased educational facilities and material assistance programs (such as those which exist for aborigines). Such programs would not infringe the rights of others and could be considered a matter of social responsibility. On the contrary, socialist inspired programs have, as their object, the artificial and coercive equalisation of the human race irrespective of merit. This is a form of wealth distribution which does little to assist disadvantaged persons in the long term when the overall economic and political costs are taken into account.

Dealing with equal opportunity, Dr Moens suggests that it is an attractive slogan. He said:

``Equal opportunity'' is an attractive slogan . . . ``Equal opportunity'' has therefore become a fraudulent trade name for practices which in fact destroy opportunities based on merit. In societies deeply committed to the merit principle, the label ``equal opportunity'' becomes a useful form of deception. It is a strategy commonly adopted by modern radicals for the purpose of subverting established institutions. They operate under a phrase (equal opportunity) which is similar in phraseology though different in content from an important liberal value (equality of opportunity) and succeed in convincing the public (including liberals).

A redefinition of ``equality of opportunity'' has taken place. The primary purpose of this is deception . . .

Supporters of affirmative action in Australia have tried to distance themselves from the controversial US system of setting fixed quotas by using the term ``targets'' and ``goals'' to explain their proposals. But it's a distinction without a difference. The fact that a target is a form of quota is an undeniable truth. The argument that quotas are fixed while targets are flexible is semantic. Both entail favouring people who, in normal circumstances, would not be employed or promoted on the basis of ability or merit. They progress solely on the basis of sex, colour or ethnicity.

Dr Moens says the government's acceptance of affirmative action proposals, initiated mainly by feminist groups, is part of a trend in which the ideal of equality of opportunity has been replaced by an ideal of equality of result.

I thought that that was interesting commentary, and I commend the remainder of the article to honourable senators.

I was disappointed at the change of strategy by the Liberal Party on this matter, and I am disturbed that some of my colleagues have taken a view different from the majority of Liberal Party members. I express that disappointment clearly because I think that it could have been avoided with a little more careful thought.