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Thursday, 9 December 1993
Page: 4234

Senator McMULLAN (Minister for the Arts and Administrative Services) (11.32 a.m.) —A lot of issues have been raised in this discussion, not all of them directly relevant. Some have been quite central to concerns that people have. I want to respond to the concerns that were raised by Senator Harradine. I think they are concerns of a type that have been raised by others. It may go some way towards meeting Senator O'Chee's concern as well.

  If individuals—homosexual or otherwise—are engaging in unreasonable behaviour, they should be dealt with under their employment contract as a consequence of that behaviour. If they are harassing distressed women, they ought not be allowed to continue to do so, whether they are lesbians, male homosexuals, heterosexuals or whatever other category people might wish to contemplate. But if they have such a sexual preference and are behaving reasonably, that sexual preference should not be a ground for dismissal. That is the point.

  Nobody could suggest that it is unreasonable for the management of a woman's refuge to protect women from being harassed by anybody. I certainly would not. The government does not and the amendment does not give anyone grounds to do so. We are saying that one should not assume that lesbians are going to harass other women—the overwhelming majority of them do not—or if male homosexuals happen to be school teachers, they are going to behave in a manner that is unreasonable by way of encouraging other students to develop a sexual preference or whatever.

  That is not reasonable behaviour from any schoolteacher, irrespective of sexual preference. Therefore, that unreasonable behaviour is legitimate grounds for remedy by the employer, but it is not remedy based on the fact that that person has some particular sexual preference. That is the distinction. It is an important distinction, and the nature of the legislation is designed to protect that circumstance and to establish processes for distinguishing between those two circumstances.

  Nobody is contending—and the government certainly does not accept this amendment on any assumption—that people, because of their age, disability, sexual preference or any of the other issues under subclause (1)(e), or various other subclauses where they arise, get more rights than anybody else. They have no right to behave unreasonably to coworkers, their employers, their customers or people in their care.

  It is true that difficult circumstances for employers can arise, and Senator O'Chee has raised one. I have to say that, although he was careful in the way he expressed it, it is not my experience that that level of discrimination is likely to occur in this circumstance.

Senator O'Chee —If you were in the changing room you might.

Senator McMULLAN —Well, actually I have been, and I know a large number of homosexual people engaged in sport, none of whom have abused their position, but I do not see why there would be discrimination against a physiotherapist for that reason. I know that there is prejudice in the community; we have all had to deal with it from time to time on various grounds. Let me put it to Senator O'Chee like this: if we had a circumstance where a black physiotherapist was employed and a number of people said, `We are not going to go to that establishment because one of the workers is black', I, at least, would not—and I do not believe the Senate would—think that that was reasonable grounds for dismissal. It is reasonable grounds for considering what views one might form about the people refusing to go there, but it is not grounds for sacking the black worker. It is a very difficult situation. It is a very rare situation—I am not saying impossible—but it is, again, a `blaming the victim' situation, where someone who is discriminated against has that discrimination compounded.

  In any business, the capacity to employ the number of people on one's staff is determined by the amount of business one has. If the amount of business falls, then, logically, the number of people one employs falls and the opportunity for redress without discrimination may well then arise. I do not want to pretend that moving to a society in which there is less discrimination than there is now and less legal sanction for that discrimination will be without difficulties. If someone is trying to tell that story, it is not me.

  We had similar debates at the time of the introduction of the human rights and equal opportunity legislation. There was a bit of Chicken Little debate then and there were some reasonable concerns raised. There has been difficulty and controversy around this country and in other countries in the decade about the various pieces of anti-discrimination legislation but, on balance, I think it is unquestionably the case that our country is better for having had that legislation, notwithstanding some difficulty.

  Senator O'Chee's problem could arise under any of these terms, not just under Senator Spindler's amendment. The problem could arise under proposed subsection 170DF(1)(e) without Senator Spindler's amendment, on the basis of other sorts of discrimination, but to the best of my knowledge—and I am not trying to put words in anyone's mouth—the opposition is not opposed to proposed subsection 170DF(1)(e); it is concerned about the amendment.

  We are not raising a new problem. I accept a new element of the existing problem; we live in a society in which people are discriminated against on the grounds of `race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origins'—all those discriminations happen and three others. We are not raising a new problem, although we are raising new elements of the existing problem.

  So Senator O'Chee's problem could exist without this amendment in other circumstances. I do not see why we should say that it is all right to discriminate against a person who is behaving reasonably because of his or her sexual preference. Of course, if that person is behaving unreasonably then—

Senator O'Chee —What if you lose your clients?

Senator McMULLAN —But what if one loses clients because a person is black? The opposition is not opposed to (1)(e), which says—

Senator O'Chee —If a person by his presence in that place is causing the businessman to lose clients, what choice does the businessman have?

Senator McMULLAN —I accept that Senator O'Chee is raising a point that needs to be pursued. The bill as it exists and the clause to which I understand those opposite are not opposed already raises the issue that they are concerned about because it says that one cannot terminate an employee's employment on the grounds of race. I know that Senator O'Chee would be very concerned about racial discrimination; he has spoken about it in this parliament. Obviously, I know he shares that concern.

  What I am saying is that exactly the problem that Senator O'Chee alludes to can arise now because we are saying, `You cannot sack people merely because of their race even if your clients are racially prejudiced'. It has been the law of this country for a long time that one cannot discriminate against people on the grounds of race. The remedy would be the conciliation processes of the human rights commission rather than this parliament.

  We have not been awash in those years with cases of problems arising under this matter, so I think what Senator O'Chee is talking about is an obscure possibility. I do not deny that it is a possibility—I am not trying to exclude it—or that it would be difficult. Certainly, the government's position—and, I understand, the opposition's position—is that proposed subsection 170DF(1)(e) is a proposition which we all support.

Senator O'Chee —It is the operation of subsection (2) in conjunction with that and the word `inherent' which causes the difficulty.

Senator McMULLAN —Yes. But, as I understand it, the opposition supports it at the moment, notwithstanding that there are circumstances in which it could cause difficulty on the grounds of racial discrimination. No-one says that racial discrimination should cause someone to be dismissed, but we acknowledge that there are problems that could arise.

  I do not believe we should say that discrimination on these three grounds that Senator Spindler raises should be treated in any way differently from racial discrimination. It is all discrimination on a basis without reasonable reference to the behaviour of the individual as an employee. So we are not raising a new problem.

  If the opposition is saying that its view is that proposed subsection 170DF(1)(e) should be deleted, then we will change the nature of the debate. The debate would then be very serious, difficult and different. But if that is not the opposition's view, then I do not think Senator O'Chee's point has the power that it appears on its face to have, because all we would be doing is moving a millimetre on an issue that is already substantially within this legislation.