Page 5176 - Week 16 - Wednesday, 27 November 1991
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In regard to subclause 48(2), the reason I would delete the words "essential to" is that you can have many things that you require someone to do in a job; although it may not be essential to it, it can be very important. It can make it extremely difficult if you do not have it; but someone could say, "Look, it is not essential. We really need someone like that, but it is not absolutely essential". So, I would remove the words there. That would allow someone to discriminate against somebody; even though it may not be absolutely essential, it may be highly relevant to the particular job. I think that is a perfectly reasonable situation.
MR COLLAERY (10.11): I am commenting on clause 45. You will recognise that here again is a peculiarly Australian accommodation to the circumstances of our dual schooling system. You would not see someone who lived in France for five years touch this provision. After they drove the Jesuits out in 1905, nothing like this has survived since. I simply want to record for members' interest what we are doing. This is another historic adjustment to the Australian condition.
Clause 46 is an adaptation that came out of the consultation period. I forget which authority in Western Australia commented; but it was said that we should have a definition of undue or unjustifiable hardship, and we are indebted for the enlightened provision. My marginal note says, "See subsection 4(4) of the Western Australian legislation for the definition of what constitutes unjustifiable hardship".
That is a very important key definition because it will effectively set the benchmark for the types of exceptions relating to impairment. When you are talking about impairments, the groups with impairments are extremely sensitive about their equal opportunities. I am sure that Mr Duby's eyes have focused immediately on paragraph 47(d). I want to tell Mr Duby, so that he can spring to his feet, that that provision was not there when I last saw the Bill. It is a new one.
I am not imputing any improper motives to the present Government. It has obviously been put there on advice, because there will be a phase-in period. You will see that it follows a similar exemption given in respect of genuine occupational qualifications at clause 34. We are dealing here again with a similar concept. We have not completed our classes and we are new to this field.
I am prepared to accept the addition by the Government on the basis of the understandings that have been reached with them in this chamber on that; firstly, that this would be a disallowable instrument and we will be in a position to monitor the effect of it.
Mr Jensen: It does not say that.
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