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Legislative Assembly for the ACT: 2004 Week 08 Hansard (Thursday, 5 August 2004) . . Page.. 3569 ..

public interest”. There is no indication of who is to make the decision to discriminate or what criteria are to be applied to determine whether it is in the public interest to do so.

The proposed amendment is contrary to the objectives of the Discrimination Act 1991, which are to eliminate discrimination in employment and to promote equality. Section 27 of the Discrimination Act deals with situations where what would otherwise be unlawful discrimination is permitted. It provides for the application of special measures, allowing discrimination to ensure that a particular class of person has equal opportunities with other people, or to afford access to services and facilities for those groups for whom previous unlawful discrimination has prevented equality of treatment. Importantly, this is not permissible where the proposed discrimination is irrelevant to the achievement of the objectives sought to be achieved.

The bill proposes discriminatory measures that are irrelevant to the objectives Mr Stefaniak says he is seeking to achieve. No barriers have existed to prevent men entering the teaching profession that have caused lack of equal opportunity. They have had equal access, along with women, to services and facilities related to that profession. Therefore, the bill does not provide a valid exception to the principle of non-discrimination as set out in the act for the purpose of providing more male role models for children at school.

The bill permits discrimination on the basis of statistics and the consideration of public interest, with no stipulation of who decides what is in the public interest and what criteria are to be used to determine the public interest. This provision is so vague that it gives little direction to decision makers or applicants for a teaching position. It provides the potential for arbitrary decisions and abuse of rights. Who makes this decision—the employing school council, the head teacher, fellow teachers? To whom are they accountable for their actions? The bill spells out none of this. The criteria on which decisions are to be based are not easy to measure.

The government acknowledges community concern about the lack of appropriate male role models in schools, but the approach to addressing the issue is not through legislation. Rather, it is through taking steps to ensure not only that more men are attracted to the profession but also that men and women teachers are of the highest calibre. To simply increase the number of males is discriminatory and does not adequately address the issue.

The amendment is unnecessary. There are other, non-discriminatory ways of increasing the number of employees of a particular sex. The Discrimination Act does provide a less discriminatory means of addressing gender imbalance in certain professions, by permitting conduct that would otherwise be unlawful discrimination. This means is provided by section 109 of the act, which provides that the discrimination commissioner may temporarily exempt a person from the operation of specified provisions of the act, including those making employment discrimination on the ground of sex unlawful.

But this provision does not allow open slather for correcting perceived gender imbalance in employment or anywhere else. It is subject to the need to promote the object of the act and the desirability of redressing past discrimination. There is no exception or exemption that permits discrimination simply on the ground that someone believes it is “reasonable” or “in the public interest”.

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