Page 15 - Week 01 - Tuesday, 15 February 2011
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It is for this reason that what might otherwise be a limitation on a non-Indigenous or disabled person’s human right to equality before the law is justified in a free and democratic society.
Ultimately, through initiatives such as this, I hope that there will be no need in the future for measures to correct the current imbalance because people in these identified groups will face only a true merit test and they will be given a fair chance to show just how meritorious they are.
I would like to briefly address the issue of the definition of an Aboriginal and Torres Strait Islander person proposed in the bill because the scrutiny of bills committee did raise a concern that it does raise an issue in relation to the right to privacy. The Greens are concerned that the bill should not limit a person’s right to privacy in order to fulfil the requirements and apply for an identified position. I note the Chief Minister’s response that no-one will be forced to prove that they satisfy the requirements. Whilst this, in and of itself, is not a sufficient justification for any incursion of human rights, I think what it does indicate is the great difficulty in adequately defining what is as much a social construct as a genetic one. The definition must be seen as indicative as much as definitive. It is simply not reasonable to expect that anyone could ever reasonably test their level of community acceptance and therefore it is not reasonable to see this as anything more than a requirement of notional community sentiment rather than express acceptance.
Whilst we are happy to accept any suggestions for an improved definition, currently this is the best available to us and it is possible to interpret it in a manner that does not unreasonably restrict a human right. For these reasons, the Greens do think that the provision is consistent with the Human Rights Act.
The other amendments in the bill which harmonise the act with the contemporary working arrangements, largely created by commonwealth legislation, are also a positive initiative that the Greens support. The administrative arrangements for public sector employment will always be complex and the government is, and quite rightly, under additional obligations that the private sector does not face. Whilst we do support the initiative to clarify employment arrangements and employment decision making, there are a couple of issues that do require some further consideration.
I refer to the due process concerns raised by the scrutiny committee. Again, I must say that the Chief Minister’s response to the scrutiny committee was disappointing. Whilst we do, of course, welcome the articulation of responsibilities through the explanatory statement, some further justification for the provisions is required and I will be moving an amendment in the detail stage to insert an explicit reasonableness requirement in decision making.
The Greens are happy to accept that there must be a level of discretion over the structure of the public service and the use of public money in the executive. We recognise that the most efficient delivery of public services will not always be consistent with the wishes of particular officers and we have to be able to balance those concerns.
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