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Thursday, 1 September 1994
Page: 803

Senator BELL (3.11 p.m.) —I move:

  That the Senate take note of the explanation.

It is my opinion that that explanation is less than adequate. This matter has been the cause of considerable confusion in the community, the government and the Public Service, and between employers and employees in general. My interest in this matter arises from a situation, representative of situations across Australia, that was brought to my attention regarding an employee of the Australian Electoral Commission. The employee was sent a letter which, in order to properly illustrate the situation, needs to be quoted fully. I think it is in the interests of the Senate and the nation that this matter be resolved and the inadequacies of what the government has done here be exposed.

  I remind the Senate of the question I placed on notice on 17 May. I asked:

(1)Is it a fact that the Australian Electoral Commission (AEC) has written to polling officials over the age of 65 terminating their employment and quoting reasons relating to the Commonwealth's superannuation and compensation obligations; if so, on what basis and with what authority?

I further asked:

(2)Given that the AEC itself acknowledges that `this might be a discriminatory practice', does its action contravene the ban on age discrimination inserted by the Australian Democrats into the Industrial Relations Reform Act 1993; if not, why not.

(3)What action will be taken to reverse the AEC's decision.

I think all honourable senators would agree that the explanation given by the Minister representing the Minister for Administrative Services—that the matter was referred to Industrial Relations and then to Administrative Services, which is looking for advice from Attorney-General's—indicates a great deal of confusion about what should be done here. If there was some sort of confusion, why is this pre-emptive strike being undertaken by AEC? Why is it that AEC has taken it upon itself to take the action which, when I quote from its letter, speaks for itself?

  I think the best thing I can do is quote the letter fully. The letter is addressed to a particular person—the name is not necessary. Under the heading `Polling duties: employment over the age of 65', the divisional returning officer writes:

I have recently received a notice from my Central Office regarding the conditions of employment for the engagement of polling officials and other staff under the Commonwealth Electoral Act.

The text of this notice includes the following:

"The AEC is a Commonwealth employer and is bound by obligations imposed under Commonwealth legislation and Commonwealth industrial awards. This is the case even where there may exist State legislation or inconsistent Commonwealth legislation which prohibits certain practices, as is the case in discrimination legislation. Under Commonwealth legislation, in particular that relating to legal obligations imposed to pay superannuation benefits and to cover employees for compensation, persons over the age of 65 years are specifically excluded, despite a view that this might be a discriminatory practice."

The letter continues:

In view of the above information, as you have attained the age of 65 years, I will be unable to offer you employment on polling duties again.

That is all very well. That is a statement of opinion from the divisional returning officer with advice from his central office quoted. But the letter continues—and this is the part which is really almost offensive. Having said that the person is no good any more and to get lost, the writer then had the cheek to write:

I would appreciate your advice as to whether any of your staff at Election 93 measure up as Officer-in-Charge or 2IC material. I attach a copy of your staff assessment sheet to refresh your memory and a post-free envelope for your reply.

In other words, `Go away, but tell us who is going to replace you.' On the strength of that, I asked the question which I have already quoted. Confusion reigned within government ranks and no answer was forthcoming.

  Confusion continues, I would suggest, because in an article by Mark Davis in today's Australian Financial Review we are told that when it comes to age discrimination in employment, the federal government's attitude is apparently `do as I say, not as I do'. It was revealed that the government in fact took a case to the industrial relations court arguing against itself, its own legislation. The government sought a ruling in respect of its action of dismissing a court reporter with the Attorney-General's Department—remember, this is the crowd it was seeking advice from—who was seeking reinstatement after being compulsorily retired when she turned 65 earlier this year.

  We are told the name of the employee and we are told that she was told that she was employed under the Public Service Act. The government opposed her petition to the industrial relations court. It maintained that she had lodged an unfair dismissal claim, arguing that her dismissal breached the Industrial Relations Act because it was based on her age. But the counsel for the government argued that the age discrimination provisions did not apply to people employed under the Public Service Act. I am absolutely confounded by that. As a matter of fact, on 9 December I moved an amendment to the Industrial Relations Reform Bill 1993. That amendment, which was supported by the government, stated:

Clause 21, page 16, after proposed subsection 170CA(1), insert the following subsection:

"`(1A) Without limiting subsection (1), the references in paragraph 170DF(1)(e) to sexual preference, age and physical or mental disability, have been included in order to give effect, or further effect, to:

(a)the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986; and

(b)the Recommendation referred to in paragraph 170BA(c). ".

At the time I said that the amendment inserts new grounds in the criteria under which employment can be terminated. It inserts a new subsection. I said at the time that, without reading the whole of the amendment, it is again relevant to discrimination. The government supported that. It became part of an act of parliament—law of the land. We find this same government—which at the moment is seeking advice from the Attorney-General's Department—opposing its own legislation, and with regard to a matter taken up by an employee of the Attorney-General's Department. It is so confusing and so hypocritical. I think it is a matter of great importance that answers to questions about it should be given to this chamber rapidly.

  Not only did that happen on one occasion, but Senator Spindler moved an amendment which had a similar effect consequentially—and thoroughly, in Senator Spindler's usual manner. I repeat that this was not just a matter of my coming in here quietly and slipping in a little amendment which nobody else noticed. It was a matter of some consistency of argument throughout the consideration and of a consistent approach adopted by this party—with, I must say, some degree of publicity and a great deal of negotiation with the government.

  It was not a case of saying, `We will slip this one through quietly,' and certain members of the government did not notice what was going on. In fact, I think there may have been a lack of communication. I wonder whether the left hand is trying to deceive the right hand in this government. Whatever the case may be, the result is a great deal of confusion in the community and a great deal of opportunity for people to accuse the government of suggesting there is one rule for private enterprise and one rule for government. Private enterprise employers in general should be greatly concerned about this matter and should be seeking an answer.

  I apologise to the Senate for taking up 10 minutes, but I think the 10 minutes was well invested in seeking an answer because it is taking the government in excess of 30 days to get its collective brain around it. The inference is that it does not know what it is doing. If that is the case, I think we ought to revisit this matter. If that is not the case, I would expect an answer certainly on the next working day.