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Thursday, 9 December 1993
Page: 4225


Senator McMULLAN (Minister for the Arts and Administrative Services) (10.40 a.m.) —I thank Senator Crane for raising that because it does go to the broader questions of principle that were being discussed last night and to which I was looking for an opportunity to respond. But I want to reiterate very clearly that it is inconceivable, even with Senator O'Chee's very fertile imagination, for which he is to be congratulated—


Senator Crane —That is not necessary.


Senator McMULLAN —I am not trying to put him down. I thought he put his argument as well as it could have been put, but it is not conceivable to put together a case in which any judicial authority in Australia would find that it is a reasonable requirement that anybody could be required to employ a paedophile to take care of children. I have to say that is stretching the bounds of credibility. When the issue was first raised without subsection 170DF(2) having been pointed out, I could see how people could think that this was a problem. That is why I quickly sought to point out to them that it was not possible because of that subsection being there to protect against those sorts of concerns.

  The broader question that Senator Crane now raises, which is similar to that which Senator Harradine raised last night, is important. This is the so-called cluttering up issue. On the face of it, we can see why people raise it because, for example, the amendment Senator Crane is now talking about, which modifies the anti-discrimination provisions of the bill in the ways to which he has referred, duplicates the exceptions that are already set out in the definition of `discrimination' in the Human Rights and Equal Opportunity Commission Act of 1986.

  So on the face of it we can say the same anti-discrimination provisions are there, the same exceptions are there; why do we need it? There are two closely related issues that I want to address. One is that we need to recognise that the way in which, the conditions under which, the reasons for which, people are dismissed are not infrequently the basis of industrial disputes. Anybody—and that includes several people, as I look around this chamber—who has been involved in one way or another in industrial relations would know that disputes often arise, and some of the most difficult disputes often arise as a result of the dismissal of employees and the grounds on which they are dismissed.

  Quite clearly, there is a fundamental industrial relations issue involved here. We are not introducing some new and alien concept that there is an industrial relations issue around the termination of employment, the rights of people to go to the Industrial Relations Commission to deal with issues to do with termination. There has been debate around what should be the powers of industrial relations bodies to deal with this. For more than 20 years—because I was involved in it in the early 1970s; so it is not a new issue—industrial relations authorities have had power in this area on and off in various states. So it is not as if this is some bolt from the blue.


Senator Crane —Being in the IR act is a bolt from the blue.


Senator McMULLAN —It has been in industrial relations legislation in at least one state in the past. I know because I appeared before it. It is a pretty hazy recollection—it was more that 20 years ago—but I know we certainly debated these issues in Western Australia in the early 1970s.

  There is a significant extra element. The first is that, as I say, there is a profound industrial relations issue involved. It goes fundamentally to the relationship of an employee to his or her employer. Therefore, it is a question fundamentally in relation to the contract of employment.

  More than that, the Human Rights and Equal Opportunity Commission Act does not give any enforceable remedy to the individual who is discriminated against on the grounds of sexual preference. So it is fundamentally different. That is not to denigrate the very useful assistance that can be provided to people who have been discriminated against in other areas. Such assistance has been provided by the human rights commission and its various agencies over the period of its existence. It has been very worthwhile, but it does not lead to a situation of any enforceable remedy for the dismissed employee.

  Firstly, there is a fundamental industrial relations issue involved, so there is nothing inappropriate about its being in the industrial relations legislation. Secondly, it is not a mere duplication of the human rights act provisions because it provides for the employee that which they would not otherwise have—an enforceable remedy. It is a question of being able, through the Industrial Relations Commission, to find a resolution that is both fundamental to the rights of the individual worker and central to the resolution of the industrial relations dispute that might ensue as a result of the termination of employment.