Human Rights In Australia by Doctor Mark Cooray — 9. Equality Before The Law
9.8—The New Meritocracy
Recent Affirmative Action Developments In Universities
9.8.1 The Principle Of Merit
9.8.2 Commonwealth Government Paper on Affirmative Action
9.8.3 Targets and Merit
9.8.4 Internal Grievance Mechanisms
9.8.5 The Time For Change
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9.8.1 The Principle Of Merit
The principle of merit in determining responsibility for the management of human affairs at various levels of operations is as old as human society. Under this principle, there is some kind of selection procedure by which the most effective person is sought to perform a particular task. Indeed, in a more primitive form, the same principle has been at work in the natural selection process in biological evolution, promoting the propagation and thriving of those individuals and groups which, through adaptation, have responded most appropriately to the demands of their ecologies. In the human context, the application of this principle tends to ensure that the most effective individual will perform particular tasks, each according to his talents; and to set in train a process of incentives to encourage aspiring individuals to develop their skills so that their life chances might be maximised. Nowhere has this principle of merit been more securely enshrined, nor more widely cherished, than in our educational systems.

Seldom, however, has the merit principle been free from an encroaching distortion. Especially in times gone by, a nepotism, perpetrated by some in power, has contrived that others than the "best" available might assume various roles for which they are not the most apt. This has particularly applied to those people who have acquired patrons, by good fortune or inheritance. But for such a distortion of the merit principle, the ancient Chinese might have crossed the threshold leading to growth and an industrial revolution. They were probably thwarted by excessive nepotism. With the present industrial revolution, however, and its product the computer revolution, has come a greater pressure for efficiency produced by the heightened competition in a developing capitalist world; so that, although instances of nepotism are still to be found, they are both less common than formerly, and more likely to yield at least partially to the principles of merit, in response to the pressures of the play of market forces. Though the most successful competitors usually receive the greatest rewards, so too does society at large benefit; but there is an important exception to this assertion: unless special provision is made on their behalf, the handicapped and disabled may fall victims to the relentlessness of these economic forces.

Few would quarrel with at least a modicum of social welfare to provide the necessities of a dignified life for such social casualties. But it is a perversion of welfare in the guise of sweet reason that offers the biggest challenge to the merit principle at present. It is the movement whose present culmination has produced affirmative action, involving the introduction of equal employment opportunity (EEO) imprecisely expressed. Despite appearances of promoting democratic ideals, it is a dangerous movement, because it has virtually free rein to intrude into a variety of institutions in an unprecedented fashion, and to make judgements about them as well as dispensing penalties. It is the purpose of this section to examine the present affirmative action movement in Australian universities in so far as it seeks surreptitiously to replace the merit principle with a distinctive but concealed brand of discrimination . . .

9.8.2 Commonwealth Government Paper on Affirmative Action
The Commonwealth Government published in June 1984 a paper, entitled Affirmative Action for Women. It is claimed repeatedly in that paper that EEO programmes are consistent with and even required by the anti-discrimination principle (1 ). Following the publication of that paper, the Government invited a number of employers as well as educational institutions to participate in a voluntary pilot programe, aimed at increasing the number of women in the workforce. In addition to this voluntary programme, the government also set up a Working Party which is chaired by the Minister for Education and Youth Affairs and Minister Assisting the Prime Minister on the Status of Women. This Working Party consists of representatives of business, trade unions, educational institutions and women's organisations. According to the paper, the Working Party will report to the Government "on the details and content of legislation to cover all private sector organisations employing more than 100 people and all higher education institutions"(2 ). This seems to suggest that the Government has already decided in principle to require the introduction and the implementation of EEO programmes in private sector organisations employing more than 100 people, and that the Working Party's task is limited to fine-tuning that decision. Indeed, the Working Party is entrusted with the task of reporting on the "details and content" only rather than on the desirability of introducing EEO programmes for private sector organisations employing more than 100 people.

For example, the Working Party is expected to consider whether the legislation should apply to private sector organisations other than those employing over 100 people and whether these organisations should be required to comply with legislative requirements other than the setting of "targets" for increasing the number of women in the workforce. Apart from a number of articles in newspapers and magazines, very little publicity has been given to the activities of the Working Party. The absence of publicity seems to suggest that the Working Party's task is limited to rubber-stamping a decision which has already been taken in principle. An alternative interpretation might be that the lack of publicity is an indication of the growing differences of opinion among the members of the Working Party.

The publication of the Government's paper Affirmative Action for Women has been followed by the introduction of the Public Service Reform Act, 1984. This Act places an obligation on Commonwealth departments to prepare and to implement an EEO Programme and to send a written statement of a programme of implementation to the Public Service Board within twelve months of the legislation coming into force. These programmes are designed to increase the participation of women and members of "designated groups" in the Public Service. The term "designated group" is defined in the Act as including any of the following four groups:

(a) members of the Aboriginal race of Australia or persons who are descendants of indigenous inhabitants of the Torres Strait Islands;

(b) persons who have migrated to Australia and whose first language is a language other than English, and the children of such persons;

(c) persons who are physically or mentally disabled; and

(d) any other class of persons declared by the regulations to be a designated group for the purposes of this definition.
The Public Service Reform Act, 1984 has also been amended to provide a clarification of the traditional "merit" principle, according to which the "best" applicant for a position should be hired or promoted. Thus, section 33(b) of the Act states in part that appointments are to be made "on the basis of an assessment of the relative suitability of the applicants for the appointment, having regard to ... the abilities, qualifications, experience and other attributes of each applicant that are relevant" to the performance of the duties. In laymen's language, this provision means that an applicant's suitability is determined exclusively on the basis of genuine occupational qualifications, which are justified by business necessity. The legislation also requires the setting of "targets" for the appointment of women and members of "designated groups" and provides for an extensive review of personnel practices. These targets are described in the legislation as "quantitative ... indicators against which the effectiveness of an EEO programme is to be assessed". This Commonwealth Public Service Reform Act 1984 was preceded by the "affirmative action" provisions of the New South Wales Anti-Discrimination Act, 1977. These provisions have been in operation since 1981. This legislation, which has been used as a model for the West Australian Equal Opportunity Bill, 1984, aims at improving the career prospects of women and members of ethnic and racial minorities until their representation matches their availability in the workforce or in the society as a whole.

Following an amendment to the New South Wales Anti-Discrimination Act, 1977, universities and colleges of advanced education were required to comply with the affirmative action provisions of the legislation. Chancellors of universities and presidents of colleges of advanced education were advised of the change in government policy and these tertiary institutions were asked to prepare and implement an EEO programme. The introduction of these programmes had been facilitated (and indeed foreshadowed) by a number of well-publicised reports which "exposed" the spectacular under-representation of women in Australian universities (3). These reports invariably described the statistical under-representation of women in Australian universities as proof of the existence of sexual discrimination in these tertiary institutions. The preparation of EEO programmes has been criticised recently by a number of academics who argue that their implementation has resulted in intrusions into the independence of universities; this stems from the fact that these programmes are mandated externally (4). Nevertheless, scholarly debate on the impact of EEO programmes on the "merit" principle has been spectacularly lacking until recently....

9.8.3 Targets and Merit
Proponents of the setting of "targets" argue that these targets are compatible with, and even required by, the traditional merit principle. In trying to demonstrate the compatibility of "targets" with the traditional "merit" principle as implemented in universities, proponents of EEO programmes make a valiant attempt to distinguish between a "target", the setting of which is mandatory, on the one hand, and the establishment of a "quota", the use of which is specifically excluded in an EEO programme, on the other. Advocates of EEO programmes, involving the setting of targets, emphasise that targets are flexible whereas quotas are rigid:

A quota system, applied in the employment context, would impose a fixed number or percentage which must be attained, or which cannot be exceeded; the crucial consideration would be whether the mandatory numbers of persons have been for example, hired or promoted. A goal, (or target) on the other hand, is a numerical objective, fixed realistically in terms of the number of vacancies expected and the number of qualified applicants available in the relevant job market. (5)
Thus, as the above quotation suggests, the incompatibility of a "quota" with the appointment of the "best" candidate lies in its inflexibility. Indeed, in the absence of highly qualified female candidates, the achievement of a "quota" requires the appointment of applicants who are less qualified than some male applicants; it sometimes necessitates the appointment of even unqualified applicants. A "target", in the absence of qualified applicants, does not require the appointment of incompetents. As a "quota" may sometimes involve the appointment of unqualified applicants whereas a "target" does not, advocates of the setting of targets jump to the conclusion that targets are supposedly consistent with the merit principle because, using the language of Professor Lauchlan Chipman, "you appoint from the target group to the extent of the numerical target only if there are sufficient qualified people available to reach that number.". . (6) He continues:
(B)y misrepresenting the quota doctrine in this ... way, and then giving a quite specious reassurance that targets are consistent with the merit principle (which in general they are not - they simply do not license the appointment of incompetent people which is a quite different point) busy managers and the many members of the community who are properly and genuinely concerned about issues of equality are soothed into thinking that claims about . . . violation on the merit principle are silly and uninformed. (7)
As Chipman suggests, the setting of a target may still be inconsistent with the traditional merit principle if the setting involves or results in the appointment of some applicants who are not the "best" on offer but progress on the basis of their sex due to the existence of an EEO programme. Does the setting of a "target" result in the appointment of some applicants who are not the "best" on offer?

The setting of a "target" is in practice the result of a sophisticated and statistical examination of the existing workforce and of the employment practices and procedures in use in the university or in the public service). In the main, equal employment opportunity coordinators are expected to undertake a three-tiered examination. In the first stage, they are required to identify legislation and regulations, if any, which directly exclude women from the specific job categories. In the second stage, they determine whether and, if so, to what extent the occupational qualifications are genuinely job-related, justified by business necessity. In the third stage, equal employment opportunity coordinators investigate the working conditions, including the physical aspects of the workplace and the employment practices and procedures which adversely affect women or discourage them from applying for desirable positions. A good argument could be made for the proposition that the removal of artificial, arbitrary and unnecessary barriers to employment is consistent with the traditional "merit" principle which aims at the appointment of the "best" candidate. Thus, the removal of discriminatory legislation and regulations, which is the subject of the first stage of the examination, is certainly consistent with the traditional "merit" principle.

The second stage, which aims at the removal or modification of occupational qualifications which are not job-related, is more problematic because of continuing disagreements among social scientists as to which qualifications are genuinely necessary for the successful performance of the job. The difficulties involved in the identification of genuine occupational qualifications may be illustrated with reference to a hypothetical advertisement for a lecture-ship in history. Until recently, it was quite common for universities to require applicants for a lectureship in history to possess a doctorate. This requirement has come under attack for two interrelated reasons. The first objection concerns the claims that the possession of a doctorate is not a genuine job-related qualification, justified by business necessity. Indeed, it could be argued reasonably that the possession of a doctorate exceeds the minimum qualifications necessary to teach competently and to undertake advanced research in history. This claim is further buttressed by the presence, among university staff, of a minority of academics who, without possessing a doctorate, have achieved national as well as international recognition for their work. The second criticism deals with the statistically verifiable fact that fewer women than men have attained a doctorate. Therefore, if statistical under-representation is taken as conclusive proof of the existence of discrimination, then the requirement that applicants possess a doctorate may well have a disparate impact on women. Also, it could be argued that the limitation of occupational qualifications, to those which are genuinely job-related, is justified on the ground that the opening up of positions to as many people as possible provides the university with an increased pool of applicants from which to choose the best" applicant.

These points, collectively, form a sound argument in favour of the proposition that universities should require applicants to possess only the minimum qualifications which are required by business necessity. Nevertheless, the possession of "higher" qualifications would remain relevant. Indeed, it could be expected that, in general, applicants who possess superior qualifications would be selected ahead of those who lack these qualifications. On this line of argument, then, even though the possession of a doctorate is not a job-related qualification and as such is not listed in the advertisement as an occupational qualification, the possession of the doctorate remains relevant as long as universities implement their traditional version of the "merit" principle which concentrates on the personal achievements of applicants. Thus, EEO practices, in equating genuine job-related qualifications with the minimum requirements which are necessary to make an applicant qualitatively an efficient contributor to the university does not, by itself, subvert the continuing validity of the traditional "merit" principle. (This conclusion, of course, is based on the assumption that it is in fact possible to determine the minimum qualifications which are necessary in the successful performance of the duties stated in the advertisement).

However, there is always a distinct danger that, due to the zeal of equal employment opportunity coordinators and the surprisingly spectacular absence of debate on these issues in universities, genuine occupational qualifications, which are justified by business necessity, are interpreted as non-essential qualifications. This danger stems from the fact that some, if not all qualifications which have a disparate impact on women, are seen as artificial and arbitrary barriers to employment. Furthermore, if both the business necessity and the relevance of higher educational qualifications and achievements (which are not genuinely job-related) were denied, the traditional "merit" principle would then be abandoned. Chipman has argued that university selection committees are precluded increasingly from considering the relevance of higher qualifications, thus increasing the likelihood that applicants with inferior qualifications are appointed ahead of better qualified applicants. (8) This is so because, as a consequence of pressure by EEO coordinators, the members of these committees might be discouraged from considering the relevance of qualifications which are not specifically mentioned (and indeed may have been specifically excluded) in the list of necessary occupational qualifications needed to perform the duties competently.

Subject to the validity of our arguments, there is a failure to appreciate that the setting of a target, lest it be a meaningless and redundant concept, pressures EEO coordinators into designing minimum qualifications, justified by business necessity, which are necessary for the successful performance of an academic function. Indeed, if it can be proved that insistence on a high occupational qualification has a disparate impact on women, because, statistically, more men than women possess this qualification, then this proof will usually be followed by a demand to exclude it from the job description. EEO coordinators, in their zeal to achieve the target, deny that universities have open-ended degrees of excellence and are instrumental in promoting the fallacious idea that all applicants who meet the academic job description are equally well qualified. Our argument that the setting of a target leads to a constant weakening of the concept of a "business necessity" is underscored by a recent article entitled "Affirmative Action in Academia". The writer of that article suggests that research competence should not be considered as a genuine occupational qualifications because "it constitutes a form of indirect discrimination against women". This discrimination, using the language of that writer, stems from the fact that "the concentration on published works ignores or accords little weight to women's generally greater involvement with teaching, running of courses and pastoral care of students ." (9) Thus, for the reasons explained above, the setting of targets may result in the appointment of some persons who are not as able as others to contribute and profit from their involvement with the role of a university.

Nevertheless, advocates of the introduction of EEO programmes flatly deny that the setting of targets may involve preferential treatment on the basis of one's race. They continue to claim that the setting of targets is compatible with the traditional "merit" principle because a flexible target, supposedly, does not require the appointment of incompetent applicants. We have argued, however, that the setting of targets, to the extent that they lead to or result in the appointment of applicants who are not the "best" on offer, involves a gradual modification of the "merit" principle. Some EEO activists, however, have realised lately that targets do involve preferential treatment on the basis of one's sex and have consequently proposed the setting of outright "quotas" whenever enough prospective applicants in the relevant workforce possess the minimum qualifications necessary to perform the particular function. For example, in an unprecedented move, the New South Wales Education Department has decided recently that 40% of all vacancies for promotions must be filled by female teachers as from the beginning of 1986. (10) This decision is to be applauded because it represents an "honest", yet misconceived, admission of what many affirmative action activists are already doing surreptitiously through the setting of targets.

Neither do the affirmative activists stop at merely gaining access to jobs for people, who are possibly only good enough rather than the best available, on the basis of their membership of a "minority group" which, for a variety of reasons which include the choice of many of its members, are not represented in the work force in proportion to the numbers in the population at large. In March, 1985, several press reports described moves by members of an ethnic minority to gain promotion within the federal public service without the additional qualification and kind of experience normally expected of successful candidates for promotion, on the grounds that, if their ethnicity was good enough to get them the job (a point won only after some rather irrational lobbying), then it was also good enough to get them promotion. This was a predictable outcome, to which the obvious response, offered with sadness rather than spite, is "I told you so".

Again, during the month of March, at a university (which must for the present be nameless) a lecturer was informed by a colleague that some students, also admitted because they belong to an ethnic minority rather than because their educational preparation was judged to be adequate for university studies as normally assessed, had complained that his lectures assumed knowledge among his students that is not normally available in the level of schooling to which members of this ethnic minority normally proceeds, with the request that he amend his lectures accordingly. If the lecturer is sufficiently unprincipled to heed this request, he can only down-grade his course by spending his time on preparatory work for which high schools, rather than universities, are funded; to the inevitable ultimate detriment of the university in question. But this is only the start of this malignant process: it is hard to see at this early stage where it might lead, nor, more seriously, how it might be checked.

A few weeks ago a northern tertiary institution advertised for tutors, but specified that successful applicants would be members of a particular ethnic minority. A letter from a more southern institution pointed out that, while there are no Queensland state laws apparently applying to such discrimination, there is federal legislation which probably makes such an advertisement illegal. After taking advice, the northern institution readvertised the positions, this time omitting the reference to preferred ethnic groups. This instance demonstrates, not only the lengths to which sympathisers of affirmative action may be prepared to go to secure their ends, but the scant regard that may be developing in some institutions for merit as the principal criterion for the appointment of academic staff.

Clever lawyers are also being enlisted to help supplant merit as a criterion for appointment or promotion in such institutions. In a recent example, a number of applicants, all rejected in their aspirations by an experienced committee of senior academics, through an appeal mechanism had the decision reversed by another committee with a legal component, and only a minority of experienced university representation. In the final analysis, it is doubtful whether most Australians would want to see their universities being staffed by people who are not the best available, especially at a time, like the present, when highly qualified staff are generally readily available.

The requirements of confidentiality have precluded the identification of the institutions associated with some of the examples cited in this article, but readers have the assurance of the authors that they are true, and that their veracity can be established on a confidential basis. The end result of this erosion of the merit principle, apart from being grossly unfair to the many potential academics who are being passed over in such cases, is to make a mockery of the considered and time-consuming judgements of experienced committees who had thought that they were not wasting their time in coming to decisions, and can result only in a deterioration of the quality of universities and colleges in this country. In the context of the instances cited in this article, which are by no means the only ones, this process of deterioration is already under way, at a time then there is an excellent opportunity to improve the quality of tertiary education.

Our analysis suggests that affirmative action advocates fail to appreciate that the traditional "merit" principle is incompatible with the setting of "targets" or "quotas" because of the impossibility to predict the statistical and numerical outcome of the implementation of that principle. These advocates, in tenaciously repeating the claim that the traditional "merit" principle is compatible with the setting of "targets" and "quotas" assume that skills and interests are distributed uniformly throughout society, and further assume that women, in the absence of sexual discrimination, will be represented in the workforce, including positions of influence and power, in proportion to their total numbers in society. However, the assumption that skills and interests are distributed uniformly throughout society is rebuttable. Whilst one hesitates to say anything at all these days about sexual differences, the claim that males and females have the same skills and interests, even potentially, has never been demonstrated satisfactorily.

The argument that skills and interests are distributed uniformly throughout society is made by "empirical" egalitarians who believe that as a matter of empirical fact unequal results are due to some form of discrimination. Thus, their argument assumes that women, if they were given the chance, would be as interested as men in any line of work implying that the under-representations of women, and sex segregation, proved that women are not given that chance. In fact, there is an impressive body of literature which reveals that physical differences between the sexes in terms of many secondary sexual characteristics are the result of evolutionary selection over hundreds of generations, and that this evolution has been accompanied by corresponding psychological differences. Furthermore, practices and procedures which are genuinely compatible with the traditional "merit" principle only open up jobs to groups which were previously excluded from positions on the basis of their sex. Since the opening up of jobs to members of previously excluded groups increases the total number of applicants from which an employer may select the "best" candidate, the result of a selection procedure is made even more unpredictable than in the past.

The point is that, subject to the validity of our argument that skills and interests are not distributed uniformly throughout society, and that increased competition makes the outcome of a selection procedure uncertain, a statistical prediction about the outcome of the implementation of the traditional "merit" principle cannot be made. If, however, the argument that skills and interests are distributed uniformly throughout society, were valid, then the continuing opposition of most "affirmative action" advocates against the setting of "quotas" cannot possibly be maintained logically. This stems from the fact that, subject to the validity of the argument that skills and interests are distributed uniformly throughout society, it could be expected legitimately that, in the absence of sexual discrimination, all groups would be represented in positions of influence and power in proportion to their total number in society. Thus, in such a case, the setting of a "quota" would only be a reduction of the inevitable outcome of the implementation of the merit principle.

It could also be argued that the setting of targets has a discriminatory effect in that a different target is set for each department. The absence of a uniform target is due to the fact that a target is "fixed realistically in terms of the number of vacancies expected and the number of qualified applicants available in the relevant job market". (11) Although the emphasis on the setting of a realistic target may reinforce the fallacious idea that targets are consistent with the merit principle, the setting of a different target in each department has a discriminatory effect and disadvantages the male members of professions which traditionally have a high concentration of women graduates. For example, the target in an engineering department must, if it is to be realistic, take into consideration the "number of qualified applicants". Consequently, the target would be very low due to the fact that there are few female engineering graduates. Therefore, the appointment of these women, even if the women were not as qualified as some male applicants, would not greatly upset the male competitors, even though the individual costs would remain substantial. But in departments which have a high number of women graduates, the setting of a target would disproportionately affect male applicants because the availability of many potential female applicants would necessarily push up the target. Thus, the setting of targets will unequally affect academics because there is an absence of uniformity in "target" setting, thereby placing a greater burden on some academics than on others. Also, it is sometimes alleged that "affirmative action" programmes aim at dismantling the existing sex segregation in the workforce. The absence of uniformity in the target setting maintains rather than dismantles this segregation because the setting in male dominated occupations, if it is to be realistic, will necessarily be low, thereby perpetuating the existing sex segregation.

In the course of their operation, universities are required to accord with a whole range of legal requirements, one of which is the provision of equal employment legislation, involving the setting of targets. It is somewhat of a mystery why it is necessary to maintain a very expensive full-time office on university campuses to oversee equal employment provisions, yet not other offices to oversee other legally-required processes. For example, some universities, even though their very many photocopiers are in constant use, have no full-time Copyright Conformity Officer nor even a full-time external Auditing Officer. In fact, as observed before, EEO programmes which are at present prepared and implemented in universities are externally mandated. These programmes, apart from requiring the mandatory setting of targets, also commit universities (as well as the New South Wales government departments and authorities) to the development and the establishment of Internal Grievance Mechanisms (IGMs). These IGMs are the subject of the next section.

9.8.4 Internal Grievance Mechanisms
The establishment of Internal Grievance Mechanisms (IGMs) is required by the Director of Equal Opportunity in Public Employment, to whom EEO programmes, prepared in New South Wales departments, authorities and tertiary institutions, are submitted. This requirement is surprising in view of the fact that there are already procedures available for the management of complaints without the costly and elaborate apparatus required by IGMs, even though it may be argued legitimately that these available procedures might be modified. The establishment of IGMs is justified by the Director by reference to Section 53 of the New South Wales Anti-Discrimination Act 1977 which makes an employer responsible and legally liable for any discriminatory acts of his employees. The Director published in September 1983 a discussion paper, entitled Guidelines on Internal Grievance Mechanisms for Authorities Scheduled under Part IXA of the NSW Anti-Discrimination Act; this paper is now being circulated in some tertiary institutions to serve as the model for the establishment of IGMs in these institutions. (12)

The discussion paper defines a grievance as "any work related matter which causes a grievant concern or distress"; a grievance "may arise from any decision, act or omission which is considered unjust, discriminatory or wrongful ...by a person which is believed to affect them in their work''. (13) Thus, as any perceptive reader will point out, a grievance is defined in terms of a subjective understanding of the nature of a problem rather than as an objective verifiable fact open for verification by third parties. In defining a grievance as any work related matter which is perceived as a grievance by the complainant, an increase in internal litigation could be anticipated. Also, a good argument could be made for the proposition that a broad definition of a "grievance" may well adversely impact upon freedom of expression, which as a study of the function of tertiary institutions would reveal, is a closely guarded asset in universities and other tertiary institutions. For example, any expressed opposition to or criticisms of EEO programmes may well be perceived by some advocates of affirmative action as a "concern, problem or complaint ... which is believed to affect" a complainant in his or her work. (14) This belief is based on the assumption that all arguments developed against the introduction of affirmative action policies and practices will directly or indirectly impede the career and promotion prospects of the complainant, who considers the existence of EEO programmes as a guarantee for professional development and success. Furthermore, the failure of tertiary institutions, apart from the legal requirement to develop EEO programmes, would be sufficient to initiate proceedings under an internal grievance mechanism because a grievance, using the language of the discussion paper, "may arise from any . . . omission which is considered unjust, discriminatory or wrongful".(15)

The discussion paper identifies sexual harassment as a "serious" grievance, involving an unequal power relationship. The paper then develops one of its more ominous themes inasmuch as it claims explicitly that "stereotyping of persons into traditional 'female' areas of work" is a major factor contributing to the "prevalence of sexual harassment in the workplace".(16) The importance of this claim lies in its possible consequences: any expression of ideas which may be interpreted by advocates of "affirmative action" as an outrageous attempt to perpetuate sex segregation or which involves stereotyping may amount of "sexual harassment", necessitating the IGM procedure to be set in motion. Quite apart from the fact that some harassment is an unfortunately, yet unavoidable, occurrence when men and women work together, it is questionable whether existing "stereotyping of persons into traditional 'female' areas of work" should be used as a means of stifling legitimate debate on the desirability of the establishment of IGMs in tertiary institutions.

The paper, in its pursuit of the establishment of an "ideal" society, has little regard for the English language. For example, as seen above, a grievance is "any concern, problem or complaint raised by a person which is believed to affect them in their work".(17) A first reading of the paper might reveal the lack of conformity between the noun and its pronoun as a grammatical error but a subsequent reading discloses that it is a deliberate attempt to develop a "non-sexist" language; the Office of the Director of Equal Opportunity in Public Employment is probably motivated by a desire to avoid any reference to what is perceived as the discriminatory "him" (which, customarily, also includes "her"). The writers of the paper continuously use the unnecessary combined pronoun "she/he" when referring to the grievant. This combined pronoun, with similar devices, tends to upset the flow of argument because traditionally "he" is used of things which are not sexually distinguished. (18) But the combined clumsy pronoun changes to "he/she" when a respondent is referred to by the writers! These examples are part of a wider attempt to force our universities (as well as our public service) to adopt guidelines on the adoption of non-sexist language, which in many American universities has already led to the editing of university publications in order to remove "language usages" which may be interpreted as implying differences between the sexes. (19)

The IGM proposals fail to recognise the existence of the rights of respondents, who are people likely to have caused a grievance. Two examples are cases in point. The first example concerns record keeping. The paper states that "(i)f there is found to be no substance in the grievance, there should be no record kept in the official files, or personal file of the staff member" and that "(a)ll papers relating to the grievance should be destroyed". (20) Although this statement is undoubtedly motivated by a desire to "respect individual privacy and prevent misuse of information, (21) the destruction of records works only in favour of the grievant. Indeed, there would be no record kept of unsubstantiated complaints; such destruction may well encourage "any" capricious complaints to be made, thereby committing the employer's resources to the resolution of whimsical behaviour. A good argument could be made for the proposition that records should be kept if the respondent so wishes to provide witness for any further occasion of a fake charge and to discourage the making of unsubstantiatable complaints. The second example deals with the explicit statement in the paper that grievants have the right to remain in control "in that she/he can withdraw or change to another mode of grievance resolution if and when she/he desires". (22) In our opinion, once a grievant has lodged a complaint, a complaint should be proceeded with, whether or not the grievant wishes to continue, otherwise the complainant can use the temporary lodging of a complaint as a threatening device.

For these reasons, the discussion paper and similar proposals should be scrutinised because the whole realm of affirmative action is complex, riddled with illogicalities, and results in the very discrimination, this time institutionalised, which it spuriously purports to remove. The problems with the discussion paper, outlined above, are in addition to the most worrying feature of the paper: namely the opportunity offered to people outside the normal university system to contribute to decisions about the conditions of employment, even whether employment should be continued, relating to members of staff. Under these circumstances, it is surprising that the discussion paper describes the IGMs as procedures which "assist in and are a sign of organisational health".(23)

9.8.5 The Time For Change
This article has drawn attention to the nature of the sudden and rather impetuous thinking which has produced the affirmative action movement, and to some of the hasty legislation that has resulted, initiated by relatively small groups within Australian society that stand to gain from it. Probably the largest of these groups comprises a proportion of the nation's women, including many who aspire to occupations and positions beyond what might reasonably be expected on the basis of their qualifications and experience. Their temporary legislative success takes account neither of the many women whose achievements in business, the public service, academia or public life may now become suspect as a result of the growing discrimination against men, nor of those many women who continue to prefer life roles of other kinds, particularly home making.

On the pretext of representing half the population, therefore, a relatively small number of women are now able themselves to assume positions beyond what they would normally qualify for. Yet not even they would really want the inefficiency implied by this abandonment of the merit principle to extend to the selection of the people who fly and maintain the aeroplanes they fly in, or the surgeons who might operate on them.

This process, which extends also to some ethnic minorities, both men and women, has already made serious inroads into the merit principle, which used more generally to apply, and which tends to ensure that the best people, and not merely adequate ones, are selected for opportunities, particularly those opportunities to which important responsibilities attach. That there have been cases in the past of discrimination against ethnic minorities and women (and even men at times) on the basis of sex or ethnicity is as undeniable as it is indefensible; yet to respond by establishing the elaborate apparatus of nationalised discrimination manifested in the continuing spate of ill-considered affirmative action legislation is no answer: it merely ensures the perpetuation of the problem in a more pervasive form.

It is time to stop and consider the self-interested, illusory nature of the affirmative action movement, and to re-establish effective principles of equity, non-discrimination and merit, before any more social and personal damage is done.
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