Page 252 - Week 01 - Thursday, 24 February 1994
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imposing or proposing to impose a "condition or requirement that has, or is likely to have, the effect of disadvantaging persons because they have an attribute referred to in section 7". That is that they are pregnant or they are female or whatever. It says in subsection (2) of that section:
Paragraph (1)(b) does not apply to a condition or requirement that is reasonable in the circumstances.
I suggest that because, perhaps at the end of the day, by simply imposing a reasonable test and attempting not to cover the fields so comprehensively, we might prevent unforeseen consequences of the application of the Act.
I note that yesterday in the Assembly Minister Berry tabled the annual report for 1992-93 of the ACT Human Rights Office with respect to the operation of this Discrimination Act. I have not had time to read that closely yet, so I do not know what it says about whether there have been unforeseen consequences of the operation of the Act, but I think that we should read it very closely. There may well be other cases where discrimination is reasonable and where this amended Act will have the effect of outlawing that discrimination and we will have to come back and amend it in the future. If there are many such cases, in the longer term it might be reasonable to reconsider the way in which we structure that ban on discrimination.
Madam Speaker, I want to raise a few other points to do with the Bill before the house today. This Bill, except in a few cases like, for example, judges, makes it illegal to discriminate in such a way as to require compulsory retirement. The effect of this is that when an employee reaches 65 or 70, whatever the age might be for compulsory retirement at the present time, an employer will have to determine at or about that time whether that person is suitable to continue on as an employee, taking account not of their age but of their general competence. That, on the face of it, is a very reasonable requirement. A person should not be compelled to retire at the age of, say, 65 merely because they are 65. There are many - - -
Mr Kaine: You are darned right.
MR HUMPHRIES: Mr Kaine has a vested interest in that proposition.
Mr Kaine: So has Lou.
MR HUMPHRIES: So has Mr Westende.
Mr Westende: We could always work for nothing.
MR HUMPHRIES: You could always work for nothing? Mr Westende and Mr Kaine do a lot of work for nothing; but the fact of life is that many other employees do not have that luxury and there will be circumstances where there will be a question of whether discrimination might apply.
Of course, Madam Speaker, it is arguably much more difficult for an employer to make out a case that an employee is incompetent than it is to make out a case that they are 65, obviously. We see, when we look at copies of the Commonwealth Government Gazette and we examine the section dealing with dismissals for incompetence, that that provision to dismiss employees - this, I am sure, applies to the ACT Government Service as well - is very rarely invoked. It is extremely
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