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Friday, 9 December 1983
Page: 3628


Senator CRICHTON-BROWNE(3.42) —We are debating the Sex Discrimination Bill 1983. No one on this side of the chamber is opposed to the proposition that there should not be discrimination within the work force simply on the grounds of sex, whether against men or women. One will find no argument with the general proposition that there should be no discrimination against women in areas of education, accommodation, the provision of goods, services and facilities, the disposal of land and the whole range of activities which this Bill seeks to cover, simply because they are women. In the same way, one can only condemn discrimination involving sexual harassment in the work force, education or anywhere else, There is no place for sexual prejudices in our community.

However, my objection to this legislation is its naive or perhaps wilful misrepresentation of the application of these fundamental principles. The real intention and purpose of this legislation, which enshrines a United Nations Convention, by the abuse of the spirit of the Constitution through the external affairs powers, is to redefine and to restructure the role of all women, more particularly the family unit within society. It is a not too subtle attempt to destroy the structure, the fabric, the values and the intrinsic role of the family unit which for centuries has been the foundation of our orderly and disciplined society and culture. Of course, the wording of the relevant United Nations Convention is subject to a great deal of wide interpretation. What the general phrases in the Convention mean becomes very much a matter of subjective judgment. If the interpretations given in the various speeches made within this chamber in this debate are an honest reflection of honourable senators' perceptions of the words and phrases in the Convention, they mean a great many different things to different people. I refer to Article 5 of the Convention which, in part, states:

State parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on . . . stereotyped roles for men and women;

I refer the Senate particularly to the words 'shall take all appropriate measures' as they relate to the words 'elimination of . . . practices . . . based on . . . stereotyped roles for men and women'. The words are not 'may', or 'in certain circumstances', or 'in some cases may be appropriate', for 'the stereotyped roles of men and women as they relate to the family unit may be suitable or appropriate or may suit certain men and women within their marriages and families'; the meaning of the words is: Shall on all occasions eliminate. In my view that can only be seen as a direct attack upon the historic structure of the family unit within the Australian community.

In my view the vast majority of Australians feel strongly that the family structure and the various functions and customary roles of each partner, which have been practiced for generations, are thoroughly suitable and appropriate. The traditional functions and roles played by each partner are as the great majority of both men and women would have them. That is not to say for a moment that those functions and roles are either appropriate or suitable for all families-that is a choice for the partners to make jointly; it should not be the subject of a unilateral determination and pronouncement imposed on the community and marriage partners by a government. I have no doubt that a great many wives and husbands perceive, embrace and practice what the Convention and this legislation describes as stereotype roles. It is their mutual choice to do so and it is their right to so determine. Equally, it is the right of others to choose differently. Article 5 should be read in conjunction with the preamble to the Convention, which states:

. . . that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women.


Senator Martin —Which Article is that, Senator?


Senator CRICHTON-BROWNE —It is in the preamble. As I said earlier, the roles of both partners are absolutely matters for the partners mutually to decide and not for the Government to pronounce. Yet the explicit proposition in this legislation is that women and men can be equal only if there is a change in the traditional family role of men and women. That to me is the height of impertinence, arrogance and disregard for the values and judgments of partners who happily function in what this Convention describes as the traditional family role. A great many women in particular feel that they are-in fact they are- thoroughly equal to their spouses. One could well draw the conclusion that the Convention, which is in the Schedule to this Bill and which reflects the philosophy of the Bill, is telling those women that they are not equal and that they will have to change their role in the family unit to become equal. In the same way, it is implicit in this Bill that men can make themselves equal only by changing their role in the family unit.

I would be grateful if at a later time Senator Ryan would explain to all of those couples who are living in blissful happiness in the inframework of the traditional family unit, undertaking their separate and in part interchangeable roles, why and how they are unequal and how this new enlightened view of marriage and the family unit will make them equal. It smacks to me of the expression: 'We will make you happy and we have ways of ensuring that you are'. As I say, I have no doubt that the majority of husbands and wives living in the traditional family are perfectly happy and perfectly equal. There are countless married women who enjoy the role of wife and mother. They do not go out to work. They do not wish to go out to work. They fulfill the conventional functions of a wife and mother. They have chosen the role which they have undertaken and are perfectly happy and perfectly equal. Many married women go out to work an also undertake certain family duties and responsibilities which they believe are best undertaken by a wife and mother. They are also perfectly happy and, in their own minds, they believe they are perfectly equal.

It is interesting that Article 5 of the Convention states in part:

. . . it being understood that the interest of the children is the primordial consideration in all cases.

I thoroughly agree with that statement. Yet in Article 11 the Convention states that State parties should:

. . . encourage the provision of the necesary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities.

While it may not be the view of Senator Ryan or of this Government, a great many parents take the view that the fundamental consideration of children in not served by placing them in child care facilities. There are those who take the thoroughly respectable view that having children and then placing them in child care centres while both parents pursue public life is not in the best interest of the children or is not properly fulfilling parental responsibilities which should be inherent in choosing to bring children into this world.

I do not presume to make judgments for other people as to what they consider suitable arrangements for the functioning of their families. I do not make a judgment on which parent should have what responsibility and how they manage their lives to provide the best upbringing for their children and which allows either parent or both parents to work and participate in public life. But the United Nations Convention which is attached to the Bill by way of a schedule, by its very statements, may be reasonably interpreted to make such a judgment. It seeks to assert that many women who consider themselves to be both happy and equal in their roles as mothers and wives are not happy, and that the steps set out in the Convention requiring a change in their roles are necessary to make them equal. The Convention in effect belittles the vital role of these women and consequently the role of their husbands.

It ought not to be forgotten that this Sex Discrimination Bill will not be the final say of this Government on the matter of equality between the sexes. Senator Ryan has made her position abundantly clear. She is a fervant supporter of affirmative action. I will be very keen to read the Green Paper when it is ultimately circulated. We might ask ourselves now what is intended. Is it to be as described in Article 4 of the Convention which calls for 'accelerating de facto equality between men and women'? Will that not be considered discrimination? Is it to be, as the Convention describes it, discrimination against men? Will we find that irrespective of the number of men and women applying for positions in the work force that women will have to be allocated 50 per cent of the vacancies? Will we see legislation introduced which demands that half of all schoolteachers, for instance, must be women, irrespective of the ratio of men and women applying for such positions? Will it apply to the Public Service and other Government instrumentalities? Will we have a situation where qualifications are no longer thoroughly relevant and employers are compelled to accept applicants on the basis of their sex and not their merits? My guess is that the paramount consideration will be the applicant's sex and not his or her suitability for the position.

The legislation now before us, I do admit, is a far cry from the first Bill. Some 51 amendments from the Government alone have been put forward, not to mention the 23 amendments from the Opposition and numerous others which will be moved by the Australian Democrats and by Senator Harradine. What ought to be observed is that the majority, if not all Government members, spoke on and in favour of the original legislation prior to the great many amendments now contained in this contemporary legislation. Many of the original clauses which have now been amended or removed were of a draconian nature and not only took a scant regard for civil liberties but also, in some cases, actively took from Australian people their rights and liberties.

The burden of the onus of proof was transferred to the so-called defendant. What I find remarkable about that is that Senator Gareth Evans and Senator Michael Tate, who both publicly gave their unqualified support for that reversal of the onus of proof provision in this Bill, were members of the Senate Standing Committee on Constitutional and Legal Affairs which addressed the matter of the onus of proof. At that time they were both very strongly opposed to the reversal on to the defendant. That stated position is contained in the Committee's report on that subject and it had the full support of all the Committee members, including Senator Gareth Evans and Senator Michael Tate.

Many other obnoxious provisions were contained in the original Bill, such as a departure from the conventional standards of proof; compelling a defendant to provide self-incriminating documents and evidence which could have been used against him; defendants would not automatically have the benefit of legal representation without the explicit approval of the Human Rights Commission; and government schools were and are to be excluded from the provisions of the Bill but private schools, including church schools, were and are to be included without exemption irrespective of whether the teachers whom the schools were to be compelled to engage under the provisions of the Bill, had a marital status, a lifestyle or views totally incompatible with the religious beliefs or teachings of the school. It may well have been that certain church schools would not have found it desirable to engage teachers or boarder masters who perhaps lived in a de facto relationship or who might have been homosexuals or lesbians. However, under the provisions of the Bill originally presented to us there appeared to be no relief for exemption for those church schools.

I mention but a few of the original provisions to indicate the type of legislation which this Government was proposing and which had the unqualified support of certain sections of the community. To me it is not without a certain touch of irony that those decent and honest people who dared to question and doubt the wisdom and virtue of the original Bill were attacked in such a vicious and intemperate way, and were very often accused of being bigots and sexists by the people who themselves now stand condemned for their prejudices, biases and jaundiced views of life. There were, of course, those who did support the original Bill who did so in good faith without perhaps fully understanding or having full knowledge of its contents and implications because the Government chose not to enlighten them of its full ramifications.

I want to touch on a few aspects of the Bill to which I find objection. The present wording of the section relating to sexual harassment in the work force is capable of placing both employer and employee in quite an intolerable position. The present provisions are capable of providing that an employer may, for instance, make advances to an employee to which the employee, for all intents and purposes, gives no indication of objection and, in fact, may well be perceived by the employer as encouraging the advancement. Yet, at a later date the employee may lay a complaint against the employer for sexual harassment, charging that she-presumably, for the great part, we can assume that the complaints will be female-did not resist or object to the advances because she felt that to do so may disadvantage her in connection with her employment or, to use the words of the Bill, in her possible employment. The employer may have had every reason to believe that his advances were welcomed and encouraged and may well have not had the slightest idea that they were not welcomed. In fact they may have been thoroughly welcome at the time. Under these proposed provisions, an employee may happily accommodate the advances and at a later date complain that she did so because of the alleged fear for her employment, to which I previously referred. The complaint will simply turn. What the employee claimes to be her state of mind at the time has no bearing in any way upon what may have been in the mind of the employer at the time.

It is no defence for the employer that he clearly had every reason to believe his advances were welcome. There need be absolutely no indication of either a verbal or physical nature by the employee that the advance was unwelcome. It ought to be understood that the advance need not be of a physical nature; it may simply be of an oral nature. The provision as presently worded frankly provides for a great deal of harassment by employees of employers. It takes little imagination to see what havoc can be caused by a mischievous or vindictive employee seeking either before or after the event to cause trouble and anguish to an employer. The scope for what may be described as set-ups is almost unlimited. I have no doubt that sexual harassment goes on in the community and in the work force in probably far greater dimension than most of us would imagine, and there ought to be proper and adequate protection for employees. However, this Bill, in my view, is not the sensible solution to that problem.

Without tracing through the same arguments, the same position holds for sexual harassment in education. Naturally, we can presume that the matters which are likely to arise will relate to universities and tertiary institutions. Again it is not difficult to envisage the ramifications of the legislation in its present form. While we may presume its intention is to protect students from sexual harassment, the effect can be to introduce blackmail of innocent teachers and lecturers or ultimately the destruction of their careers. As though these provisions are not damaging enough as they stand, the alleged harasser does not have automatic right of legal counsel to appear on his behalf before the Commission and may do so only with permission of the Commissioner or if the Commission itself so chooses to have legal counsel assist it. Inquiries shall be held in public unless the Commission chooses to the contrary. One can readily see how, with a combination of these provisions, innocent people can and no doubt will be persecuted and denied natural justice.

Turning for a moment to definitions, the definitions of sex discrimination and discrimination on the ground of marital status do not provide relief for employers which, in certain circumstances, may be totally reasonable. There may well be an employer who is seeking an employee on a long term basis and the initial period may be one of investment by the employer in the employee without expecting any immediate or medium term return. An employer may interview a young married woman with excellent qualifications and, on inquiry, learn that she is looking forward to starting a family in the months ahead. It would, on my reading of this legislation, be discriminatory if he were to decline her application on the basis that she could not reasonably expect to maintain continuity of employment for a reasonable period of learning and return for the employer. An employer may have a small office staff-perhaps of two-and his current employee may be an excellent female secretary who has some difficulty in working closely with other females. Under this Bill he could find himself in breach of the sex discrimination provisions if he were not to engage the best and most qualified applicant to fill the remaining position, notwithstanding the fact that it may create considerable disruption to his office and its smooth and efficient functioning.

Finally, perhaps in the broader sense, the most objectionable and obnoxious feature of this legislation is that it seeks to use the external affairs powers of the Constitution which were never intended, never envisaged, and even in contemporary times never imagined by the great majority of Australians and members of parliament to be so used to provide a framework and a method for legislation of this nature to be afflicted upon all Australians. To me it is another example of the ambitions of the Australian Labor Party to centralise all power in Canberra and to continue to dilute and dissolve the power of the States .