9.7 The Moens Affair And The Human Rights Commission
by Ross Warneke The Age 13/11/1984
Cited by "Equality Before The Law And Discrimination" by LJM Cooray

When Belgian-born law academic Dr Gabriel Moens was appointed by the Human Rights Commission to prepare a report assessing the merits and demerits of affirmative action, the Fraser Government was still in office. But 18 months later, when he submitted a report generally critical of the concept, the Hawke government, in association with 31 employers, had already begun a trial program of what some say amounts to reverse discrimination in favour of women. And there was talk of eventually including Aborigines and ethnic minorities and extending it to all employers with more than 100 staff.

The report, which questions many of the basic principles underlying affirmative action, was rejected. The Human Rights Commission refused to publish the 254 page report and accused Dr Moens of not meeting usual standards of scholarship and objectivity. That has angered Dr Moens and his colleagues, one of whom describes the report as one of the most comprehensive ever written on the arguments for and against affirmative action. The problem is the report's verdict: It's not one that the influential feminists and their supporters in the Hawke administration want to hear. Dr Moens says:

"I have discovered in the past few weeks that affirmative action has joined the list of Australian sacred sites, and I have trespassed on it. The government has tried to sell it as a policy that already has been approved by consensus, as something that is so just that it does not admit to informed discussion or dissent. But in this case, the word consensus hides the fact that the issue is controversial".

Dr Moens came to Australia in 1975 after working at universities in Belgium and Salzburg, Austria and talks about the lack of co-operation from ethnic and feminist groups and the pressure applied to the Human Rights Commission by feminists to have him sacked before he even began his work. They had discovered that his thesis completed in 1982, was critical of the sorts of affirmative action that they were promoting. He mentions the then Attorney-General, Senator Evans, who admitted to Parliament that in May 1983, only five weeks after Dr Moens began the project, he wrote to the Human Rights Commission, at the request of the Minister assisting the Prime Minister on the status of women, Senator Susan Ryan, and questioned the appropriateness of Dr Moens to undertake the study. Dr Moens says that the letter was outrageous and grossly improper. Affirmative action was launched in the US in the 1960s, he says, primarily to assist blacks to increase their numbers in the workforce, and particularly in positions of power and influence. In the 1970s, it spread to include women and members of ethnic minorities. The bureaucracy was compelled by Presidential executive order to recruit more members of groups which were poorly represented in government jobs in relation to their numbers in the community and large private employers were commanded to join the program.

The American scheme is based on the incorrect assumption that blacks, women and ethnic groups are under-represented only because of the bias of others. Under-representation does not always reflect discrimination. It is only one factor. Affirmative action programs, while trying to overcome this problem, do not correct most of the causes. In essence, some forms of affirmative action are necessary in Australia to overcome discrimination against women, Aborigines, the disabled and ethnic minorities. But what is to be preferred are the soft options, which amount to a more rigorous enforcement of existing, and possibly some new, anti-discrimination laws.

The use of "hard" affirmative action or quotas — the reservation of a specific proportion of jobs within a department or a company for under-represented groups — does nothing to overcome most basic causes of under-representation, including inadequate education and training opportunities and are, in themselves, discriminatory against those who, under normal circumstances, would have progressed on the basis of merit.

Supporters of affirmative action in Australia have tried to distance themselves from the controversial US system of setting fixed quotas by using the term "targets" and "goals" to explain their proposals. But it's a distinction without a difference. The fact that a target is a form of quota is an undeniable truth. The argument that quotas are fixed while targets are flexible — is semantic. Both entail favouring people who, in normal circumstances, would not be employed or promoted on the basis of ability or merit. They progress solely on the basis of sex, colour or ethnicity.

A great deal depends on how rigorously the target is enforced. But, generally, targets and goals, like quotas, are illogical. If, as affirmative action supporters claim, targets are intended only to ensure the appointment of the best candidates regardless of sex or race, they are redundant because the appointment of the best candidates can be achieved through the traditional merit-based selection criteria which are enforceable to some degree under existing sex and race discrimination laws. These laws need strengthening. New laws are not required. Targets often ensure the selection of inferior candidates because, to meet the target, standards must be lowered and applicants who normally would not succeed leapfrog those who, on the basis or merit and experience, should have got the jobs.

Skills are not equally distributed through the community. That is a regrettable fact. We should be trying, through a better education and training system, to ensure that everyone can compete in the workplace. Then, if a person is Aboriginal, he gets the job he wants because he is the best applicant, and not because some artificial device has been imposed on the employers to force him to employ more Aborigines.

The government's trial affirmative action program involves 31 companies and tertiary institutions. As well, many government agencies, including Telecom, have introduced schemes to lift the proportions of women and minority groups in their workforces.

Dr Moens says the government's acceptance of affirmative action proposals, initiated mainly by feminist groups, is part of a trend in which the ideal of equality of opportunity has been replaced by an ideal of equality of result. The Human Rights Commission, which is supposed to fight discrimination, seems to consider the anti-discrimination principle a thing of the past — it now appears to favour a distribution of benefits on the basis of sex, ethnicity and colour. This is a very disturbing development in our society.

The Moens report — twice as long as the Human Rights Commission contract stipulated — was discussed and rejected at a meeting of the Commission in Melbourne last month. The Deputy Chairman, Mr Peter Bailey, said the decision was unanimous. But several other commissioners said later that it was a consensus decision, and suggested that some wanted the report published. The report in an edited form will be published by the Center for Independent Studies, Sydney.

It is not the first time Dr Moens has had trouble with the Human Rights Commission. After delivering an address on affirmative action to an Adelaide conference on human rights, he was asked to revise his paper before it was printed and released to the public.

"All I did was take out all the controversial bits, which amounted to about eight pages. I revised nothing. When I sent it back, I was congratulated by the Commission for preparing an excellent paper. But I must tell you that the revised version is lousy. It does not meet my usual standards of objectivity and scholarship, and I will never agree to that sort of thing again".