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Affirmative Action, Merit and Police Recruitment

Article  in  Alternative Law Journal · October 2003

DOI: 10.1177/1037969X0302800506

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Affirmative action,
merit AND
police recruitment
Margaret Thornton Elucidating affirmative action
Affirmative action (AA) is a novel mechanism that is designed to
change the profile and culture of a workplace in the interests of women
and/or designated groups through the initiation of measures at the
institutional level. It is also intended to foreclose the possibility of
Detractors of affirmative future harms and to remove the burden on individual complainants
arising from the formal hearing of discrimination complaints that are
action have succeeded in not conciliated.1 As a relative newcomer to our language, AA is a
instilling a sense of fear much-maligned and misunderstood term. Its detractors have succeeded
in instilling a sense of fear within the community by equating it with the
within the community by appointment of personnel by virtue of sex or race alone, without regard
to merit.2 As a result, few Australian employers have been prepared to
equating it with the initiate AA programs voluntarily.
appointment of personnel In light of this timidity, a radical proposal by Victoria’s Chief
by virtue of sex or race Commissioner of Police, Christine Nixon, specifying that half of all
new recruits to the force should be women, deserves a closer look.
alone, without regard to Because gender-conscious selection programs disturb settled
expectations about the identity of the normative male police officer,
merit. questions are inevitably raised about such programs and the merits of
the beneficiaries.3 I nevertheless wish to refute the myth that AA
necessarily means the appointment of unqualified personnel. I will pay
particular regard to the Victorian initiative.
AA does not possess a precise denotation, although dectractors
invariably equate it with the use of quotas. In fact, AA encompasses a
wide range of proactive measures designed to overcome a history of
exclusion and discrimination against women and designated groups,
particularly Aboriginal and non-English-speaking background people,
as well as people with disabilities. Women are the primary targets of the
Victoria Police proposal, although there is also a focus on Asian and
Islamic groups.
Measures such as the use of gender-inclusive language, the
circulation of images of women police in advertising and recruitment
material, and the encouragement of women to apply for positions
(which Victoria Police have already adopted) are weak forms of AA
that are unlikely to evoke adverse public reaction. The provision of
flexible conditions of work is likely to be more contentious as the
schedules of co-workers may have to be altered to accommodate the
special needs of those with family responsibilities. Nevertheless, the
idea that work and family can be ‘balanced’ has entered public
discourse and is beginning to be accepted as the legitimate
responsibility of employers.4 In contrast, the use of quotas is a strong
form of AA that continues to be controversial.
The rationale for the strong form of AA within Victoria Police has to
be understood in terms of both the under-representation of women and
Margaret Thornton teaches law and legal studies at La
Trobe University.
the intransigence of an outdated culture of masculinity. In respect of the
© 2003 Philip Lynch (text) former, women presently constitute 17.7% of Victoria Police, the
© 2003 Stuart Roth (cartoon) lowest ratio in Australia. In respect of the latter, there is evidence that

234 ALTERNATIVE LAW JOURNAL

 A F F I R M A T I V E A C T I O N , M E RI T A ND P OLI CE RE CRUI TM E NT
women have been subjected to sexual harassment,
discrimination in promotion and conditions of work, as well
as victimisation if they complain.5 Some instances have
crystallised into formal complaints under the Equal
Opportunity Act 1995 (Vic) (EOA).6
The literature reveals that discriminatory and harassing
practices are generally more common in masculinist
workplaces where women are regarded as interlopers.7 The
hope is that women will feel unwelcome and leave. The
creation of a hostile workplace environment within the
police force has in fact contributed to a high attrition rate for
women. The desire on the part of the Victorian
Commissioner to change this culture suggests that
prophylactic or preventative measures are warranted.
The construction of merit lies at the heart of the resistance
to quotas. Merit, like AA, is another elusive concept, which
possesses no objective denotation but takes its meaning from
its context. It nevertheless possesses a descriptive, as well as
an evaluative, element.8 The descriptive element refers to the
enumeration of qualifications, skills and years of experience
that a person has, but qualifications mean little without
someone evaluating their worth in the context of particular
workplace norms. This process of evaluation is necesssarily
a subjective one; qualifications cannot be weighed up
scientifically in a test-tube. The application of merit is
nevertheless assumed to be a foolproof way of producing
‘the best person for the job’. Time has allowed it to acquire a
veneer of objectivity so that the evaluative process is
disguised.
Benchmark Men, that is, those who are white,
Anglo-Celtic, heterosexual and able-bodied, have
traditionally dominated masculinist institutions like the
police force. As a result, it has come to be assumed that they
must be the best people. Accordingly, decision makers
persist in appointing and promoting those who look most
like themselves. ‘It’s like looking in a mirror’, said one
member of a recruitment panel when asked what image he
held of the ‘best person’.9 The essential subjectivity of
determining who is the best person for the job has allowed
the status quo to be perpetuated, institutionalised and
normalised. It then becomes very difficult to change. As
Rosabeth Moss Kanter has said of this phenomenon: ‘The
more closed the circle, the more difficult it is for ‘outsiders’
to break in. Their very difficulty in entering may be taken as a
sign of incompetence …’.10
Affirmative action and the law
Because of the exclusionary practices against women and
Others arising from the closed circle mentality, affirmative
action initiatives, including quotas, have been deemed to be
the appropriate remedial measure in discrimination class
actions in North America. Individual complaint-based
mechanisms cannot counter the prevailing construction of
the ‘best person’. For example, race quotas have
occasionally been ordered by United States courts following
a finding of the existence of egregious discrimination over a
long period. It should be noted, however, that quotas in
employment are generally found only at the base-level
entry. 11 The Canadian Supreme Court has held that
discrimination arising from disadvantage justifies special
programs, which are constitutionally valid under the
Charter.12
VOL. 28, NO. 5, OCTOBER • 2003
Sex-conscious preferences at the point of selection have
been upheld in a number of countries. In the United States,
the under-representation of women in non-traditional jobs
was a relevant factor considered by the Supreme Court in
upholding an AA plan in which sex was one of many factors
that could be taken into account. The employer was
commended for its moderate and graduated approach that
visited ‘minimal intrusion on the legitimate expectations of
other employees’.13 The European Court has also upheld a
discretionary preference for equally qualified women
candi dat es i n pos i t i ons w her e w om e n a r e
under-represented.14
In all these jurisdictions, there is a preference for the
flexibility of ‘soft quotas’ over ‘hard quotas’, that is,
discretionary rather than fixed. The United States has been
deeply divided over the use of university quotas to facilitate
the admission of minority students into faculties of law and
medicine if it meant that a formally better qualified white
student missed out. A quota in favour of racial minorities
was struck down by the Supreme Court in Bakke, a case that
became a cause célèbre in AA jurisprudence.15 Despite
trenchant criticism by conservatives over the last 25 years,
the principles of Bakke have survived and were recently
affirmed by the Supreme Court in Grutter.16 The majority of
the Court agreed that race was a legitimate factor to be taken
into account in law school admissions to ensure diversity
within the student body.
In Australia, an ultra-cautious stance has been adopted in
respect of AA initiatives of all kinds — by legislatures and
courts — as well as by employers, as the urban myths
pronouncing on the pernicious effects of AA have
proliferated and wafted across the Pacific. The Equal
Opportunity for Women in the Workplace Act 1999 (Cth),
which replaced the Affirmative Action (Equal Opportunity
for Women) Act 1986 (Cth), is extremely modest legislation,
with little more than symbolic effect.17 This legislation does
not mandate AA, as such, but the preparation of equal
opportunity plans by employers with more than 100
employees. The legislation creates no avenue of complaint
and confers no right of redress. It might nevertheless be
noted in passing that, weak though the Equal Opportunity for
Women in the Workplace Act is, it stresses the centrality of
the merit principle to any action taken by an employer
(ss 2A(a); 3(4)). The fear that the Act might somehow be
construed as encouraging hordes of ‘unqualified women’
into the workplace had to be assuaged. It might be noted that
Victoria Police, as a state instrumentality, falls outside the
ambit of the Commonwealth legislation.
Because of the individual complaint-based character of
anti-discrimination legislation in Australia, classwide
remedies have not been ordered by tribunals or courts to
ameliorate discriminatory harms as noted in the overseas
examples. It has also been made clear at formal hearings that
the remedial focus of the legislation is limited to
compensating the complainant alone, even when an
altruistically minded complainant has specifically sought a
remedy designed to have broad systemic effect.18
Sex Discrimination Act 1984 (Cth), s 7D nevertheless
permits the initiation of ‘special measures’ in order to secure
equality.19 A comparable provision is included in Racial
Discrimination Act 1975 (Cth), s 8(1). 20 Disability
Discrimination Act 1994 (Cth), s 5(2) permits ‘different
accommodation or services’ for people with disabilities.
235
 A F F I R M A T I V E A C T I O N , ME RI T A ND POLI CE RE CRUI TM E NT
No open-ended provision for special measures on the
ground of sex is included in the Victorian EOA. The
philosophical assumption underpinning the Act, as with
anti-discrimination legislation generally, is that of equal
treatment. This is despite the fact that the raison d’être of the
legislation was to improve conditions for women within the
public sphere and the market. The stress on gender neutrality
within the legislation has created a fear on the part of
employers, including Victoria Police, that anything that
might be construed as different or less favourable treatment
towards male applicants could give rise to complaints of
discrimination. Indeed, this fear is not baseless, as a
disproportionate number of sex discrimination complaints,
both in Australia and elsewhere, are lodged by men.21
In light of the acceptance of a strict equal treatment
approach, it is believed that the only way an AA proposal
involving quotas can be immunised against complaints of
sex discrimination by aggrieved men is to apply for a formal
exemption under the auspices of anti-discrimination
legislation. EOA s 83 allows for application to the Victorian
Civil and Administrative Tribunal (VCAT) for a temporary
exemption for a period of up to three years, although it is
possible to apply for a renewal. In light of the five-year
time-scale, during which it is hoped to increase the
percentage of women in Victoria Police to 25%, a further
application would be necessary, assuming that the first is
successful.
It may be, however, that Victoria Police is being unduly
cautious in applying for an exemption under the EOA
because of the fear of a backlash towards 50% of recruits
with different characteristics from the norm, albeit equally
well qualified. However, VCAT will not grant an exemption
‘unnecessarily’. The discrimination that would arise in the
absence of an exemption must be clear, in which case VCAT
will:
Consider all the circumstances put before it including
whether the exemption would promote an objective of the
Act, whether the exemption is within the spirit although
not with in [sic] the letter of one of the express exception
provisions and any other matters that relate to the public
interest. Whether, for example, there is a broad public
interest which justifies the granting of the exemption.22
Over successive generations, Anglocentric masculinity
has asserted itself as the key, albeit unstated, criterion of
merit. Thus, as pointed out above, when ‘outsiders’ are
appointed, there are cries of reverse discrimination because
settled expectations are disturbed.23 If the application for
exemption by Victoria Police is granted, the hope is that it
will foreclose challenges on the part of unsuccessful
Benchmark Men.
Policing merit
Let us have a closer look at the specified criteria for
recruitment to Victoria Police: ‘sensitive, good judges,
community-minded, fit, well-educated and good
communicators’. On any of these criteria, how could it be
argued that the merit principle would be subverted if half of
the police recruits were women, some of whom come from
non-Anglo backgrounds? It is worth deconstructing the
ubiquitous concept of merit in this case to show that the ‘best
people’ are not necessarily Anglo-Celtic and male.
Men certainly do not have a monopoly on sensitivity,
judgment or community-mindedness. Indeed, in light of the
236
limited experience of most of them in caring for others,24
together with their higher levels of criminality,25 one might
venture to suggest the converse. Similarly, in terms of
fitness, the scales are tilted against men in terms of the
incidence of heart attack26 and lung cancer,27 as well as
lifestyle factors and life expectancy generally.28
Women recruits are also likely to be better educated.
More young women than young men complete high school,
and more women than men complete bachelor’s degrees.29
Furthermore, women’s communication skills are in no way
inferior. On the contrary, both primary and secondary school
testing reveal that girls consistently out-perform boys in
verbal and linguistic skills.30 Thus, far from being inferior on
the merits, women are likely to be the superior candidates as
they appear to outrank men on every criterion.
Essentialising though all these assertions about the
characteristics and behaviour of men and women appear to
be, they are empirically verifiable. Perhaps the concern that
women could one day dominate the police force is the
sub-text of the vociferous opposition to Commissioner
Nixon’s initiative. Sexual politics inform not only the
animus towards AA but the construction of merit itself, as I
have suggested.
Rather than decrying the recruitment of more women and
the likelihood of falling standards, the detractors should look
to the evidence which would seem to suggest that the calibre
of Victoria Police would be dramatically improved if more
women were to be appointed. However, social change is
invariably contentious, particularly in masculinist
workplaces that have long pursued what is tantamount to an
AA policy in favour of Benchmark Men. The rhetorical sway
of merit always needs to be interrogated with regard to the
context in which it operates.
References
1. For a detailed critique, see Margaret Thornton, The Liberal Promise:
Anti-Discrimination Legislation in Australia (1990). See also Beth
Gaze, ‘Context and Interpretation in Anti-Discrimination Law’ (2002)
26(2) Melbourne University Law Review 325.
2. See, eg, Gabriël Moens, Affirmative Action: The New Discrimination,
(Centre for Independent Studies, Sydney, 1985).
3. See, eg, Leela de Kretser, ‘Police Jobs for the Girls’, Herald Sun
(Melbourne), 29 April, 2003, 1; Editorial, Herald Sun, 30 April 2003,
20; Leela de Kretser and Mark Buttler, ‘Men Just Won’t Cop it; Police
Quotas Queried’, Herald Sun, 30 April 2003, 11; Opinion, Herald Sun,
2 May 2003, 18; Opinion, Herald Sun, 3 May 2003, 26; Opinion,
Herald Sun, 6 May 2003, 18.
4. Australia ratified ILO Convention No 156: Workers with Family
Responsibilities in 1990. In 1992, the ground of family responsibilities
was included as a proscribed ground within the Sex Discrimination Act
1984 (Cth). All states and territories, except South Australia, now
include parental status, or a cognate term, as a ground in their
anti-discrimination legislation: Anti-Discrimination Act 1977 (NSW)
s 49(s); Equal Opportunity Act 1995 (Vic), s 6(1); Anti-Discrimination
Act 1991 (Qld), s7(1)(d); Equal Opportunity Act 1984 (WA), s 35A;
Anti-Discrimination Act 1998 (Tas), s 16(i); Discrimination Act 1991
(ACT), s 7(1)(e); Anti-Discrimination Act 1992 (NT), s 19(1)(g). See
also Sex Discrimination Commissioner, Pregnant and Productive
(Report of the National Pregnancy and Work Inquiry, Human Rights
and Equal Opportunity Commission, Sydney, 1999); Barbara Pocock,
The Work/Life Collision (2003).
5. Liz Porter, ‘Police Pay Out on Harassment’, The Sunday Age
(Melbourne), 18 May 2003, 9; Liz Porter, ‘Force Begins Blitz on
“Macho” Police’ and ‘Battling the Brotherhood’, The Sunday Age, 8
June 2003, 1, 13.
6. See, eg, McKenna v Victoria (1998) EOC ¶92-927 (VADT). The
respondent’s appeal to the Supreme Court of Victoria was denied:
Victoria v McKenna (2000) EOC ¶93-080.
ALTERNATIVE LAW JOURNAL
 A F F I R M A T I V E A C T I O N , M E RI T A ND P OLI CE RE CRUI TM E NT

7. See, eg, Vicki Schultz, ‘Reconceptualizing Sexual Harassment’ (1998) <http://www.austparents.edu.au/boys_girls.htm> at 30 September
107 Yale Law Journal 1683; Margaret Thornton, ‘Sexual Harassment 2003.
Losing Sight of Sex Discrimination’ (2002) MULR 422.
8. For a discussions of the concept of merit, see Margaret Thornton,
‘Affirmative Action, Merit and the Liberal State’ (1985) 2(2)
Australian Journal of Law and Society 28; Clare Burton, Redefining
Merit (Affirmative Action Agency Monograph No 2, Canberra, 1988).
9. Margaret Thornton, ‘Hegemonic Masculinity and the Academy’
(1989) 17 International Journal of the Sociology of Law 115, 122.
10. Rosabeth Moss Kanter, Men and Women of the Corporation (1977) 68.
11. See.eg RIOS v Enterprise Association Steamfitters Local 638 501 F2d
622 (2nd Cir 1974); United Steelworkers of America v Weber 443 US
193 (1979).
12. Andrews v British Columbia [1989] 1 SCR 143; Action Travail des
Femmes v Canadian National Railway [1987] SCR 1114.
13. Johnson v Transportation Agency of Santa Clara 480 US 616 (1987), at
677.
14. Case C-409/95 Marschall v Land Nordrhein-Westfalen [1997] All ER
(E C) 8 6 5 ; R e Ba d e c k a n d o t h e rs ( La n d e sa n w al t be i m
Staatsgerichtshof des Landes Hessen and Hessischer [2000] All ER
(EC) 289.
15. Regents of the University of California v Bakke 438 US 265 (1978).
This case involved a white man who alleged that, but for his race, he
would have been admitted to medical school.
16. Grutter v Bollinger 2003 US LEXIS 4800. The case involved a white
woman who unsuccessfully sought admission to Michigan Law
School.
17. For analysis of the neoliberal turn within which the change occurred,
see Margaret Thornton, ‘EEO in a Neo-Liberal Climate’ (2001) 6
Journal of Interdisciplinary Gender Studies 77.
18. See, eg, Misso v City of Moorabbin (1989) EOC 92-254 (Vic EOB);
Wagga Wagga Aboriginal Action Group v Eldridge (1995) ¶92-701
(NSW EOT). See also Margaret Thornton, ‘Remedying
Discriminatory Harms in the Workplace’ in Richard Naughton (ed),
Workplace Discrimination and the Law (Occasional Monograph Series
No 2, Centre for Employment and Labour Relations Law, University of
Melbourne, 1995)s 65-76.
19. See Proudfoot v ACT Board of Health (1992) EOC ¶92-417 (HREOC),
which involved the now-repealed ‘special measures’ provision, Sex
Discrimination Act 1984 (Cth), s 33. For discussion, see Archana
Parashar, ‘The Anti-Discrimination Law and the Illusory Promise of
Sex Equality’ (1994) 13 University of Tasmania Law Review 83; Jenny
Morgan, ‘Equality Rights in the Australian Context: A Feminist
Assessment’ in Philip Alston (ed), Towards an Australian Bill of Rights
(Centre for International and Public Law, ANU and Human Rights and
Equal Opportunity Commission, Sydney, 1994).
20. See Gerhardy v Brown (1985) 159 CLR 70. For discussion, see
Wojciech Sadurski, ‘Gerhardy v Brown v The Concept of
Discrimination: Reflections on the Landmark Case that Wasn’t’ (1986)
11 Sydney Law Review 5.
21. Hunter notes that almost one-third (9/29) of reported decisions under
the Sex Discrimination Act over the last five years arose from
complaints initiated by men. See Rosemary Hunter, ‘The Mirage of
Justice: Women and the Shrinking State’ (2002) 16 Australian
Feminist Law Journal 53, 64.
22. Victoria Police — Exemption [2000] VCAT 1455 (VCA),
<http://austlii.edu.au/au/cases/vic/VCAT/2000/1455.html> at 30
September 2003.. On this occasion, an exemption was granted to
permit Victoria Police to advertise and employ women in the Sexual
Offences and Child Abuse Units in country areas.
23. See, eg, Bakke above n 15; Grutter above n 16.
24. See, eg, Pocock, The Work/Life Collision; Joan Williams, Unbending
Gender: Why Family and Work Conflict and What to Do about it
(2000).
25. Adam Graycar, ‘Crime in Twentieth Century Australia’, (Centenary
Article, Crime and Justice, Year Book of Australia 2002, Australian
Bureau of Statistics) <www.abs.gov.au/ausstats> at 30 September
2003.
26. <http://www.aihw.gov.au.publications/health.ihhac-co2f>.
27. <http://www.ctsu.ox.ac.uk/pressreleases/50thanniv/Australia_lung_c
ancer_deaths> at 30 September 2003.
28. <http://www.odci.gov/cia/publications/factbook/geos/as.html> at 30
September 2003.
29. Australian Bureau of Statistics, 2001 Census Basic Community Profile
and Snapsho, <www.abs.gov.au> at 30 September 2003.
30. Ken Rowe, ‘Boys’, Girls’ Outcomes of Schooling — What really
Matters’, Australian College of Education Research (ACER),

VOL. 28, NO. 5, OCTOBER • 2003 237

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