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Thursday, 9 December 1993
Page: 4326

Senator McMULLAN (Minister for the Arts and Administrative Services) (9.08 p.m.) —Both Senator Harradine and Senator Parer have raised an issue that reflected my initial reaction to the amendment. It is something about which I wished to reassure myself. I tried to address it in my initial comments in response to the amendment, but perhaps I was too cryptic. There are two safeguards against those concerns that have been raised and I will also make a further comment.

  The first safeguard, of course, is that section 113 arises only if the Sex Discrimination Commissioner chooses to refer a matter to the Industrial Relations Commission. It seems unlikely that the Sex Discrimination Commissioner would choose to refer something which was discriminating positively in favour of women. That is the first hurdle—not of itself probably sufficient to reassure us, but it is a significant first element.

  The second element—and I do not have the legislation in front of me—is that, consistent with other measures such as the Racial Discrimination Act, my understanding and advice is that there is a similar special measures provision in the Sex Discrimination Act that enables discrimination that is in favour of women in this particular instance; that is not, therefore, considered discriminatory in terms of the Sex Discrimination Act. If something would not constitute discrimination under the Sex Discrimination Act, it does not constitute discrimination under this section. So those are the two protections.

  Our view at the moment is that those protections are sufficient, but I did say—because I acknowledge that other people share the concern which Senator Parer and Senator Harradine have raised—that the government will continue an examination of whether we need a provision which allows positive discrimination or enables the remedying of a discriminatory award in a staged manner. On the advice I have at the moment, this amendment achieves the positive purpose that we all support without the negative consequences about which Senator Harradine and Senator Parer have apprehension. I am advised that we can be confident that that is the case, but to be absolutely certain we will conduct a further examination in case there is a need for some qualification to deal with that risk.