EQUAL OPPORTUNITY (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Second reading.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (16:04): I move:

That this bill be now read a second time.

The Equal Opportunity Act is now more than 20 years old and by today's standards its coverage is inadequate. The need to extend it has been apparent for years. It was more than 14 years ago that the Liberal government of the day commissioned Mr Brian Martin QC (as he then was) to review it. Mr Martin consulted extensively and made a report recommending many amendments. The government then consulted further on the report and, more than six years later, introduced an amending bill. That bill had not, however, passed even one house of parliament when the parliament was prorogued for the 2002 election.

It was the election policy of the government at that election to modernise the Equal Opportunity Act to ensure comprehensive protection of South Australians against unjustified discrimination. In pursuit of that policy, we published, in 2003, a framework paper setting out proposals for a reform and we introduced, in 2006, an amending bill. That bill—

Mr Hanna: Are you doing this again?

The Hon. M.J. ATKINSON: Yes, as the member for Mitchell interjects, I am doing it again. It sounds like he—

Mrs Redmond: Deja vu.

The Hon. M.J. ATKINSON: Deja vu all over again as—

Mr Hanna: I admire your determination—

The Hon. M.J. ATKINSON: I thank the member for Mitchell for admiring my determination for such a good bill. That bill lapsed in September 2008 and the present bill is in substitution for it. It is substantially similar, but some of the provisions that proved most controversial have been removed or reduced.

Mr Hanna: New Labor.

The Hon. M.J. ATKINSON: No, our bill was amended in another place and certain clauses were removed, or about to be removed, and we just accepted the will of the other place. What would the member for Mitchell have us do? Beat our head against the wall of the other chamber, perhaps.

Mr Hanna: Or abolish it.

The Hon. M.J. ATKINSON: Or abolish it, yes. Some parts of the bill are now about parity with the commonwealth. The revised bill reflects the government's response to the concerns raised by minor parties and Independents, the opposition also and other interested persons, but it is nonetheless an important improvement to the act. I seek leave to have the remainder of the second reading explanation inserted into Hansard without my reading it.

Leave granted.

Equal opportunity law exists to allow all South Australians to take part equally in public life. Everyone should have equal opportunity in the fields of work, education, qualifications, access to goods and services, lodging, landholding, and membership of associations. No-one should be excluded from taking part in society because of the prejudices of others. No-one should be harassed or victimised in the exercise of these rights. This Government is committed to these values and so proposes some important expansions of the present law.

At the same time, the Government is mindful that the law must set standards that are fair and reasonable. It must avoid imposing unjustifiable hardship on anyone. It must provide proper exceptions where there is some overriding consideration, such as occupational health and safety or the protection of children. Both these points of view were expressed in the comments about the framework paper, and, in framing this Bill, the Government has tried to find a fair balance between them. The Bill proposes many changes to our present Act, which will take some time to outline.

The Bill would expand the Act's present protection against disability discrimination. Martin recommended that our Act should mirror the definition of disability in the Commonwealth Disability Discrimination Act. This Bill follows that recommendation. Members will realise that the Disability Discrimination Act already applies in South Australia. South Australian employers, traders, schools and others are already obliged to avoid disability discrimination as it is defined in that Act. This amendment will mean that there is now also a remedy in the South Australian Equal Opportunity Commission. As a result of the amendment, there will be a remedy with our Equal Opportunity Commission for some conditions not now covered by the Act. First, our Act will now cover discrimination on the ground of mental illness just as it has always covered physical illness. Mental illness is not the sufferer's fault, it is not shameful and there is no justification for treating sufferers unfavourably. To do so only adds to the burden on these people and their families.

The Bill proposes also to cover non-symptomatic physical conditions, such as being infected with a virus. The Act will, therefore, now protect people infected with the HIV virus, for example. A person should not be treated unfavourably because he or she is infected with a disease, even one that is greatly feared. At the same time, this law should not hamper the actions necessary to prevent the spread of any illness. As is the case in Commonwealth law, therefore, the Bill creates a defence for reasonable measures to stop the spread of an infectious disease.

The Bill proposes also clearly to cover learning disabilities, even where they are not traceable to intellectual disability, an important addition in the context of education.

The Bill also matches the effect of s. 23 of the Commonwealth Disability Discrimination Act about access for disabled people to premises. Once again, because of the Disability Discrimination Act, most South Australian offices, shops, restaurants and other premises open to the public must already be accessible to disabled people, unless to give such access would impose unjustifiable hardship. Much has been achieved in recent years towards making such access a matter of course. Again, because the provision in this Bill is similar in scope to the Commonwealth provision, this amendment will not add any new burden on South Australian employers or service providers but will give disabled South Australians a remedy in their own Equal Opportunity Commission, rather than having to look to the Sydney-based Human Rights and Equal Opportunity Commission.

Members will notice that, throughout these provisions, the Bill proposes to change the language of the Act from 'impairment' to 'disability'. This is consistent with the language of the Commonwealth legislation and with modern usage.

The Bill would also extend the coverage of the Act to carers. It is, perhaps, only in recent years that society has awoken to the immense contribution made by carers. There are the adults who take frail elderly parents into their homes and try to fit in the provision of care around the demands of work and of their own children. There is the husband or wife who becomes the main carer for a spouse who develops a debilitating disease. There are the grandparents who, at a time when they expected to be finally at leisure, find themselves caring for their grandchildren because the parents are unable to do so. Caring responsibilities can arise for both sexes and at any time of life. Many of us will, at some time in our lives, be called upon to care for someone or, perhaps, be in need of care ourselves. That should not change our legal right to take part in society. The Bill, therefore, proposes that it should be unlawful to discriminate against a person on the ground of his or her caring responsibilities.

The Martin report acknowledged that the Act should cover caring responsibilities. Martin proposed, however, that coverage be limited, initially, to direct discrimination. That would arise where, for instance, an employer declines to hire or to promote a person because of a caring responsibility. In practice, however, such discrimination is unlikely. The real problem is indirect discrimination, that is, the setting of unreasonable requirements that are especially difficult for people with caring responsibilities to meet. The Bill proposes to cover both direct and indirect discrimination on the ground of caring responsibilities. In this respect it will be wider than the Commonwealth law. Further, the Commonwealth law only covers discrimination that takes the form of dismissal. This Bill would cover all types of discriminatory actions.

As is usual in indirect discrimination provisions, however, the setting of a reasonable requirement will not break the law. If the requirement is reasonable, the respondent has done no wrong and the carer cannot complain. It is where the requirement is unreasonable that the complaint is well-founded and a remedy is appropriate. For this reason, the Government does not believe business has anything to fear from this amendment. The Bill does not entitle carers to special treatment. It does not mean that employers cannot require shift work or weekend work or travel away from home. It does not mean that carers must be allowed to leave work early to collect children from school or that they are entitled to take leave at school holiday times. It simply means that employers must have sensible reasons for the requirements they set. An employer can comply with this law, then, by acting reasonably.

In conjunction with the coverage of caring responsibilities, the Bill also improves protection for nursing mothers. It proposes that it should be unlawful to discriminate in the provision of education services against a breastfeeding mother. It further proposes that is be unlawful to discriminate against a person in the field of providing goods and services on the ground that he or she is associated with a child, that is breast feeding or bottle feeding an infant or accompanied by a child.

As recommended by Martin, the Bill would also extend the Act to cover discrimination against independent contractors. Changes in the workplace have meant that many people are now engaged under contracts for services rather than contracts of employment. There is no justification for discrimination against these contractors where it would be unlawful to discriminate against an employee. The Bill therefore extends the coverage of the Act so that, in hiring an independent contractor, discrimination on the grounds of sex, race, age, disability and so on will be unlawful.

The present law exempts the case where a person is employed in a private household. For instance, one can discriminate in hiring a nanny for one's children. In the Bill, this exemption is reflected in an exemption where a person is employed or engaged for purposes not connected with the employer's or principal's business. That will cover employing staff or engaging independent contractors in one's home, for example, engaging a music tutor or a babysitter, for non-business purposes. It will also cover employment or engagement outside the home, as long as it is not for a business purpose. An example might be engaging a person to teach one to play tennis. The Bill does not, however, permit discrimination when engaging the services of contract workers through an intermediary. This is because the intermediary, as an employer or principal, may not discriminate in hiring its staff, even if they are to provide services in a person's home. Likewise, the Bill would mean that if a person runs a business from his or her home, so that he or she employs staff of the business at the home premises, there can be no discrimination in that employment.

The Bill also proposes to add to the Act new grounds of discrimination. Only one of these derives from the Martin report. This is the ground of identity of spouse. The Government thinks it unfair that anyone should be treated unfavourably by others because of the identity of that person's spouse. For example, it would be wrong if the husband or wife of any Member here were to be refused service in a shop because the shopkeeper disliked the Member. Martin said that 'in principle, it is generally unfair to discriminate against a person because of the identity of that person's previous or current spouse'. In general, the identity of a person's spouse is irrelevant to that person's participation in society, for example, their suitability for a particular job or their eligibility to enter a particular course of study. There are, however, exceptions. Martin said that 'there may be circumstances, however, where that discrimination is not unreasonable because of the occupation of the spouse.' The Bill would therefore permit such discrimination where it is reasonably necessary to protect confidentiality, to avoid a conflict of interest or nepotism or for the health or safety of any person. As an example, a woman should not, in general, be treated unfavourably because she is the wife of a convicted pederast. If, however, she were to apply for approval to run family day-care in her home, the risk posed to children by the presence of the husband could be lawfully taken into account.

The Bill also proposes to cover discrimination on the ground that a person, for religious reasons, wears particular dress or adornments or presents a particular appearance. Examples include the hijab worn by Muslim women, the turban worn by Sikh men or the cross worn by some Christians. It could include any kind of dress, adornment or other features of a person's appearance that are required by or symbolic of the religion. The Bill proposes that it should be unlawful to discriminate against a person on this ground in the fields of employment and education. Exceptions are made, naturally enough, for genuine safety reasons or inability to perform the inherent requirements of the job. There is also an exception for the case where it is reasonable to ask a person to show his or her face for the purpose of identification.

This is not to introduce the ground of religious discrimination in general. The Government in 2002 consulted on this idea and learned that many South Australians strenuously oppose it. We decided not to do it. The purpose of the present amendment is simply to ensure that people who dress or present themselves in a particular way for religious reasons are not debarred from participating in school or work activities. We pride ourselves on being a multi-cultural society. We do not expect people to give up their cultural or religious identity to become South Australians.

The Bill also proposes to extend the Act to cover discrimination on the ground of past and presumed characteristics, as recommended by Martin. Wherever the Act makes it unlawful to discriminate on the ground of a characteristic that the person now has, the Bill proposes that it should also be unlawful to discriminate because the person had that characteristic in the past, or because the person is mistakenly thought to have the characteristic. Future characteristics are also covered where applicable. For example, discrimination on the ground of a disability that may exist in the future is covered, as it is in Commonwealth law.

The Bill would also extend the Act to cover discrimination against a person based on the characteristics of his or her associates. This refers to characteristics covered by the Act, such as age, disability and so on. If it is unlawful to discriminate against a person because of his or her disability, it should also be unlawful to discriminate against a person because he or she is accompanied by, or associates with, someone who has a disability. Otherwise, the Act can be circumvented. The Act already covers such discrimination when it occurs on the ground of race, and it makes sense, as Martin argued, that it should cover other grounds.

This does not mean that no characteristics of an associate can be considered. There are many Acts, for example, where the character of a person's associates will be taken into account in assessing the person's suitability to hold a licence or some other privilege. These amendments do not affect such provisions. They refer to characteristics covered by the Equal Opportunity Act. Again, this was recommended by Martin and is, in the Government's view, only common sense.

The Bill would change the sex-discrimination provisions of the Act in three ways. First, the Bill would delete references to 'transexuality' and refer instead to 'chosen gender'. In the case of a transgender person, this refers to his or her self-identification as a member of the sex opposite to his or her biological sex. 'Chosen gender' also covers people with intersex conditions. These are medical conditions in which a person is born with a physical or chromosomal makeup that does not exactly fit either the usual male or female pattern. In that case, the person's chosen gender is his or her self-identification as a member of one or the other sex. In either case, the effect of the Bill is that a person must not be treated unfavourably in the fields to which the Act applies because of the person's gender, even if that gender might not appear to others to match the person's sex. This was thought clearer than the present Act, which speaks of 'transexuality', that is, assuming characteristics of the other sex. It also removes any doubt about whether the Act covers intersex conditions.

Second, the Bill extends the coverage of the Act to 'potential pregnancy', that is, the possibility that a woman might become pregnant. It can be argued that this is already covered because it is a characteristic of women in general, but express reference avoids doubt. The provision is similar in substance to the Commonwealth law.

Third, the Bill removes discrimination on the ground of marital status from the sex discrimination provisions and covers it later, in Part 5B, where other matters such as identity of spouse and caring responsibilities are covered. This is a rearrangement, without change to the substance of the protection. The provision is, however, expanded to include the status of living in a domestic partnership, consistently with the 2007 amendments to the Family Relationships Act 1975.

On the topic of sexuality discrimination, I point out that the Bill would change the present law about the rights of religious institutions to discriminate on the ground of sexuality. By section 50(2), the present law provides an exemption for an institution that is run in accordance with the precepts of a religion. Such an institution can discriminate in its administration on the ground of sexuality, if the discrimination is founded on the precepts of the religion.

At present, this exemption is used chiefly by religious schools to avoid hiring homosexual staff. Indeed, the Government's consultation on the framework paper did not disclose any other use of this exemption. The wording of the exemption, however, appears broad enough to allow many other uses. For instance, it could allow a religious school to expel a homosexual student or to restrict that student's participation in school activities. A church-run hospital could use it to refuse to employ a homosexual doctor or nurse. An aged-care home associated with a church could use it to refuse places to homosexual applicants for lodging.

The Government gave much thought to whether such an exemption should be allowed to continue. Our law says that discrimination on the ground of sexuality is wrong. Moreover, religious schools receive public funding. An argument can be made that those who accept public funding should comply with the standards set by the public through legislation. At the same time, the Government acknowledges that independent schools make a great contribution to the education and pastoral care of South Australia's children. This contribution is possible, in part, because of the commitment of the school community to its faith. The Government accepts that some South Australians are taught by their religion, and sincerely believe, that homosexuals should not teach in schools. In general, the State ought not to interfere in the practice of religion and ought not to compel any person to act against his or her conscience. Consequently, the government proposes to limit this exception to the case for which it is primarily used. It should not be available to all institutions run on religious principles, but should be limited to schools. It should not apply to the treatment of students but only the hiring of staff. Further, it is proposed that these schools should publicly disclose this policy on request and also give it to persons who are being offered work. That way, both parents and prospective staff will know where the school stands.

We are doing this out of respect for religious freedom. I wish to emphasize that the Government does not believe that homosexual people pose any greater threat to children than do heterosexual people. The threat to children comes from pederasts.

The Bill would also abolish the present exemption that allows associations (other than trade unions and employer groups) to discriminate on the ground of sexuality. Associations include charities, service clubs, sports clubs, cultural groups, environmental organizations, political parties and others. This exemption, then, has the potential to exclude homosexual people from participation in many aspects of public life. In general, there is no justification for such a rule. It is a baseless restriction on the rights of homosexual people. Some commentators, however, expressed special concern for religious associations. It was argued that these should be able to exclude people in accordance with the tenets of the religion. Accordingly, the Bill would make an exception for associations administered in accordance with the precepts of a religion.

The Bill also reduces two other current exceptions relating to sexuality. The Act at present provides, by s. 33(2), that a partnership of five people, or fewer, can refuse a person partnership on the ground of sexuality. This will apply to many small firms, such as law firms or accounting practices, that trade as partnerships rather than companies. The Government sees no reason why a person, who could not be refused employment at the firm on the ground of sexuality, should be precluded from partnership on that ground.

The other example concerns lodging. The Act presently provides, by s. 40(3), that a person can discriminate on the grounds of sex, sexuality, pregnancy and marital status in the provision of lodging, if it is lodging where the provider or his or her family reside and no more than six other persons are given lodging on the premises. The Government thinks this exception too wide. Doubtless, people should be free to decide whom they will take in as guests in their own homes. It is another thing to say that they can exclude people from commercial lodging, on the ground of sex, sexuality or pregnancy. The Bill would amend this section to make clear that it is only lodging in one's own home that is intended.

The Bill makes some changes to the law about sexual harassment. First, it proposes to adopt the Commonwealth definition in s. 28A of the Sex Discrimination Act. Comment on the framework paper suggested that it would be helpful to employers if the State and Commonwealth laws matched on this point. It is clear that they are both aimed at the same conduct. It is therefore helpful if they use the same words, so that employers do not have to try to conform to two different rules at once.

Second, the Bill extends the coverage of the Act to the various relationships listed by Martin as requiring coverage. In particular, it extends the Act to harassment of the providers of goods, services and lodging, just as it now covers harassment by those providers.

Third, the Bill changes the present rules about vicarious liability for sexual harassment. At present, although in Commonwealth law, employers are vicariously liable, they are not so in State law. An employer can only be vicariously liable for damages for sexual harassment if the employer authorised, instructed or connived at the harassment. Needless to say, that almost never happens. As Martin observed, this exclusion 'cuts a huge swathe through the number of cases for which an employer could be found vicariously liable'. Martin said that it was important to provide an incentive for employers to create an environment free of sexual harassment. It may be true to say that an employer ought not, automatically, to be held responsible for sexual harassment in which he or she had no part. It is equally true, nevertheless, that a workplace will be what the employer allows it to be. The law can reasonably expect employers to create workplaces in which men and women can work together without fear of harassment of this kind.

That is already the effect of the Commonwealth law. The Sex Discrimination Act applies to private-sector employers in South Australia. It creates vicarious liability for sexual harassment, subject to a defence. There is no liability if the employer shows that he or she took all reasonable steps to prevent the employee from doing the acts complained of. Martin recommended a similar approach in State law.

The Bill, therefore, creates vicarious liability unless the employer has taken reasonable steps to prevent the harassment. The employer is free to decide what those steps should be. As long as they are reasonable, there is no vicarious liability. The Bill goes further, however, and provides one certain way of establishing the defence. The employer must have in force an appropriate policy and must take reasonable steps to carry it out. That includes reasonable steps to make it known to the staff and prompt action if a complaint is made. As long as the employer does these things, he or she avoids vicarious liability. He or she may, however, avoid it by other reasonable steps. Once again, this should not add appreciably to the obligations that now fall on South Australian employers under Commonwealth law.

Further, the Bill covers sexual harassment in schools. Martin thought that senior students, those aged 16 and over, should be liable for sexual harassment of their fellow-students or the staff. The Bill thus provides that a student or staff member who is sexually harassed by a student aged 16 or over can complain to the Equal Opportunity Commission. There is, however, a requirement that the student first use whatever conciliation process may be provided by the school. It may well be that the matter can be sorted out in the school without recourse to the Equal Opportunity Commission. So much the better for everyone.

If, however, the school conciliation process does not succeed, or the complainant can demonstrate to the Commissioner that the school process should not be used, a complaint can be made to the Equal Opportunity Commission. This will lead to a conciliation process run by the Commissioner and, if that fails, to the matter's being heard by the Tribunal. This shows that the law regards this conduct as serious. Sexual harassment in school can make life miserable for the victim. It can disrupt his or her studies or even force him or her out of the school. The harm it does is at least as serious in its way as some of the offending that brings young people before the Youth Court. It is not an over-reaction to take these matters to the Commission and the Tribunal. It is an appropriate response to the gravity of the behaviour.

That is not to say that the full force of the Act should be visited on children as it is on adults. Martin made clear that children, even those who may have breached the Act, need special protection. He recommended that the parties' names should be protected from publication and that the Tribunal not be able to order a child to pay monetary compensation. The Bill adopts those recommendations.

The Bill also covers harassment of teachers by students. This is treated similarly, except that there is no requirement to use the conciliation process offered by the school in that case. The school could not be neutral in a matter involving its employee.

The Bill does not go so far as to hold the school responsible for the behaviour of its students, nor does it propose a remedy against the school because sexual harassment has occurred. It does, however, require that a school adopt a policy against sexual harassment. The Commissioner for Equal Opportunity plans to work with schools to help them meet that obligation.

The present time limit of six months to lodge a complaint is extended by the Bill to 12 months. This is similar to other Australian jurisdictions and is as recommended by Martin. The Bill goes beyond what Martin recommended, however, in that it also allows extensions beyond the usual 12-month limit. The Commissioner can grant the extension. He or she must be satisfied that there is good reason why the complaint was not made in time and that an extension would be just and equitable in all the circumstances. Any prejudice to the respondent can therefore be taken into account. If an extension is refused, the Tribunal can review that decision.

The Bill also changes the role of the Commissioner in some respects. As Martin recommended, the Bill would limit the Commissioner's investigation of a complaint to what is necessary for the purpose of deciding whether the complaint should be accepted and if so proceeding with conciliation or referral to the Tribunal. Further, the Bill provides for the Commissioner to assist the Tribunal with its leave or at its request, in any matter. This will be a help to the Tribunal, for example, where there is legal argument about the interpretation of the Act. It is not an authority one would expect to see used often, but there will be some cases where it is valuable. It also proposes that the Commissioner should be able, by leave of the Industrial Relations Commission, make submissions and present evidence to the Commission in proceedings under the Fair Work Act. This might occur, for instance, when an award is being set or an enterprise agreement approved. The Commissioner will be able to make submissions on the matter before the Commission from an equal-opportunity perspective. This will help to ensure that conditions of employment are not discriminatory.

Further, in the interests of neutrality, the Bill would permit the Commissioner to require documents from any person, not just the respondent. After all, the complainant or a third party may hold relevant papers. The Bill would, however, protect records of counselling or therapy and also notes of a party's advocate. The privilege against self-incrimination and legal-professional privilege are also preserved. Once a document is produced, unless it is confidential, the Commissioner can, in her discretion, show it to the parties in the conciliation.

Further, the Commissioner will be able to decline a complaint before it reaches the Tribunal, either because there is no reasonable prospect of an order in the complainant's favour or because the complainant has no reasonable prospect of bettering an offer already made in conciliation. This will not prevent the complainant taking the matter to the Tribunal. That is his or her right.

The conciliation powers are elaborated to make clear that the Commissioner can conciliate without bringing the parties into direct contact, which might be useful when emotions run high. The Commissioner can also, where different complaints against the one respondent raise similar questions of fact or law, arrange to conciliate them jointly. Also, the Commissioner will be able to compel the complainant, as well as the respondent, to attend conciliation.

The Bill also amends section 10 of the Act to reinforce the independence of the Commissioner. On the one hand, the Commissioner is, and should be, responsible to the Minister for the general administration of the Act and, in that sense, is under the general direction and control of the Minister. Sub-section (2) is reworded, however, to make clear that this does not entitle the Minister to direct how a particular complaint is to be handled, nor to require the Commissioner to disclose information identifying a party to proceedings.

There are smaller changes. Sections 12 and 101 of the Act have never been proclaimed. Martin thought they should be repealed because they contribute to conflict in the role of the Commissioner. There was no dissent on this in submissions to the framework paper and the Bill proposes to repeal them. The Bill would also repeal ss. 41 to 44, dealing with sex discrimination in superannuation. These provisions have also never been proclaimed. The regulation of superannuation, other than State superannuation, is now largely a Commonwealth matter.

A change is made to the rules about disabled persons being accompanied by guide dogs. This protection is expanded to cover assistance dogs and any animal of a class prescribed by regulation. The review heard from Assistance Dogs Australia, a non-profit organization that trains dogs to assist people with disabilities, for example, people in wheelchairs. Having regard to this work, it seemed that the present provisions, limited to guide dogs, are too narrow.

The Bill also adopts Martin's recommendation to change the wording of s. 85K, dealing with the charging of different fees to people of different ages. This provision is meant to allow concessions based on youth or age. It is not meant to allow surcharges to those groups because they have the benefit of other concessions. The provision has therefore been reworded to focus it more clearly on fee reductions to benefit particular age groups.

This Bill makes important and long-overdue changes to the Act, including covering discrimination on the grounds of caring responsibilities and of mental illness which, from today's perspective, appear glaring omissions from our present law. The Bill proposes to protect independent contractors in the same way that the Act has always protected employees. It offers an equal-opportunity remedy for sexual harassment in schools. The Bill also promotes the role of the Commissioner as an independent guardian of equal opportunity in our State.

This Bill fulfils the Government's election promise to amend this Act to give South Australians more comprehensive protection against unjustified discrimination. It does so, the Government believes, in a way that is fair to both complainants and respondents. It is not difficult for business to keep these proposed laws. What they require is that we act reasonably in the fields covered by the Act. We must disregard irrelevant personal characteristics. We must make sure our requirements are reasonable. We must take reasonable steps to prevent unlawful conduct by those under our control. No-one is asked by this Bill to accept unjustifiable hardship. No-one is expected to compromise on health or safety. No-one is required to act against conscience. Equal-Opportunity laws, of all laws, ought to be fair. The Bill seeks to enhance equality of opportunity in a way that is fair to all.

The Government proposes to move some amendments to the Bill as it has reached us from another place. Clause 12, in its present form, proposes that the Tribunal should be able to award costs if, in its opinion, there are 'other good reasons for doing so'. The clause as it stands is ambiguous, because it does not make clear whether this is intended to give the Tribunal only an expanded power to deal with abuses of process, or whether it is intended to make the Tribunal generally into a cost-recovery jurisdiction. The Government has no difficulty with the former but cannot support the latter and will seek to amend the clause accordingly.

Clause 26 was amended in another place to insert a provision granting an exception from the general law for the 'administration of a body established for religious purposes'. The Government has been unable to identify the meaning or use of the provision and thus proposes to delete it.

Clause 69 was amended to delete a provision originally proposed by the Government that would have authorised the Commissioner to investigate a suspected contravention of the Act, even if no-one lodged a formal complaint. The Government will seek to amend this clause to propose a compromise solution in which the Commissioner could launch such an investigation only if so authorised by the Tribunal on application.

Finally, the Government will also seek to amend the Bill so as to remove proposed clause 95C which would permit the Commissioner to represent both complainants and respondents before the Tribunal.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Equal Opportunity Act 1984

4—Amendment of long title

This clause amends the long title to reflect the proposed new grounds of unlawful discrimination to be added to the Act.

5—Amendment of section 5—Interpretation

This clause defines a number of terms required as a consequence of the proposed new provisions. In particular—

assistance animal is defined to mean a dog that is an accredited guide dog, hearing dog or disability dog under the Dog and Cat Management Act 1995 or an animal of a class prescribed by regulation;

a person has caring responsibilities if the person has responsibilities to care for or support a dependant child of the person or any other immediate family member who is in need of care and support. An Aboriginal or Torres Strait Islander person also has caring responsibilities if the person has responsibilities to care for or support any person to whom that person is held to be related according to Aboriginal kinship rules or Torres Strait Islander kinship rules;

potential pregnancy of a woman is defined to mean that the woman is likely, or is perceived as being likely, to become pregnant.

This clause also proposes removing the term transexual from the Act and replacing it with the concept of chosen gender. Chosen gender is defined to mean that a person is a person of a chosen gender if—

the person identifies on a genuine basis as a member of the opposite sex by assuming characteristics of the opposite sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the opposite sex; or

the person, being of indeterminate sex, identifies on a genuine basis as a member of a particular sex by assuming characteristics of the particular sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the particular sex.

Under the current Act it is unlawful to discriminate against a person on the ground of that person's physical or intellectual impairment. It is proposed to change the terminology to make it unlawful to discriminate on the ground of a person's disability. Disability is defined to mean—

total or partial loss of the person's bodily or mental functions; or

total or partial loss of a part of the body; or

the presence in the body of organisms causing disease or illness; or

the presence in the body of organisms capable of causing disease or illness; or

the malfunction, malformation or disfigurement of a part of the person's body; or

a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

Under the current Act it is unlawful to discriminate on the basis of marital status. It is proposed to widen this to include a domestic partner.

This clause also proposes widening the definition of race to include the past or proposed nationality of a person.

6—Amendment of section 6—Interpretative provisions

Clause 6 proposes a new subsection to section 6 to provide that if a person who is alleged to have committed a discriminatory act did so on the basis of a mistaken assumption (for example, a mistaken assumption that another person was of a particular sexuality or a particular race or a person of a chosen gender) the act will still be regarded as a discriminatory act.

7—Amendment of section 10—Administration of Act and Ministerial direction

Section 10 of the principal Act provides that the Commissioner is subject to Ministerial direction in the administration of the Act. This clause proposes a new subsection (2) to provide that the Minister must not give a direction in relation to the manner in which action should be taken on a particular complaint or seek information tending to identify a party to proceedings under the Act.

8—Amendment of section 11—Functions of Commissioner

Clause 8 reflects the proposed new grounds of unlawful discrimination to be added to the Act.

9—Amendment of section 14—Annual report by Commissioner

Clause 9 brings the date of the Commissioner's annual report into line with the Public Sector Management Act 1995.

10—Amendment of section 23—Conduct of proceedings

Clause 10 inserts a new subsection into section 23 to provide that the Tribunal may, when constituted only of the person presiding over the proceedings, deal with preliminary, interlocutory or procedural matters or questions of costs or questions of law.

11—Amendment of section 25—General powers of Tribunal

Clause 11 updates the penalty provision.

12—Amendment of section 26—Tribunal may not award costs except in certain circumstances

Section 26 of the principal Act provides that the Tribunal may make an order for costs if the Tribunal is of the opinion that the proceedings are frivolous or vexatious or that the proceedings have been instituted for the purpose of delay or obstruction. The proposed amendment adds—or if there are other good reasons for doing so.

13—Substitution of heading to Part 3

Clause 13 reflects the proposed change of structure of the Act (see clause 14) and the addition of the ground of chosen gender.

14—Amendment of section 29—Criteria for discrimination on ground of sex, chosen gender or sexuality

Section 29 of the principal Act provides the criteria for establishing discrimination on the ground of sex, sexuality, marital status and pregnancy. Clause 14 proposes removing the grounds of marital status and pregnancy and including them as part of the new Part 5B and adds the criteria for establishing discrimination on the ground of chosen gender. Clause 14 also proposes broadening the conduct that might amount to discrimination on the ground of sex or sexuality by including the situation of a person treating another unfavourably—

because of the sex or sexuality of a relative or associate of the other person; or

because of the person's past sex or past sexuality.

15—Substitution of heading to Part 3 Division 2

Clause 15 reflects the proposed inclusion of independent contractors within the scope of the Act.

16—Amendment of section 31—Discrimination against agents and independent contractors

Section 31 of the principal Act provides that it is unlawful for a principal for whom work is done by agents remunerated by commission to discriminate against those agents on the grounds covered by Part 3. Clause 16 proposes extending the section to make it unlawful for a principal to discriminate on the same grounds against independent contractors engaged under a contract for services.

17—Amendment of section 32—Discrimination against contract workers

Section 32 of the principal Act makes it unlawful for a principal to enter into an arrangement with an employer of contract workers under which the employer is to discriminate against a person. The proposed amendment extends the provision to cover workers who work under a contract for services and provides for the situation where there are a number of people linking the principal and the worker. ie, a principal who engages a contractor who engages a subcontractor who employs a worker.

18—Amendment of section 33—Discrimination within partnerships

The principal Act provides that if a firm consists of less than 6 members it is not unlawful to discriminate on the ground of sexuality in determining who should be offered a position as a partner in the firm. The proposed amendment removes this exception to unlawful discrimination on the ground of sexuality.

19—Substitution of section 34

Section 34 of the principal Act provides that certain conduct that would amount to unlawful discrimination on the grounds of sex, sexuality, marital status or pregnancy in the area of employment is exempted from the provisions of the Act. As a consequence of the proposed new ground of chosen gender, the proposed new structure of the Act, and the proposed inclusion of independent contractors, these exemptions have had to be altered.

Currently, section 34 provides an exemption relating to employment in private households. The proposed expansion of the Act to include independent contractors necessitates a change to this provision to provide that it is not unlawful for a person to discriminate if the person employs another, or engages another as an independent contractor, for purposes not connected with a business carried on by the person.

This clause also proposes an expansion to the exemption in section 34 of the principal Act that provides that a person can discriminate on the ground of sex in relation to employment for which it is a genuine occupational requirement that a person be of a particular sex. The proposed clause expands this to include the grounds of chosen gender and sexuality.

This clause also proposes 2 new subsections. Proposed subsection (3) provides that it is not unlawful to discriminate on the ground of chosen gender or sexuality in relation to employment or engagement for the purposes of an educational institution if—

the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

the educational authority administering the institution has a written policy stating its position in relation to the matter; and

a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

a copy of the policy is provided on request, free of charge—

(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and

(iii) to other members of the public.

The proposed subsection (4) provides that it is not unlawful to discriminate on the ground of chosen gender in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.

20—Amendment of section 35—Discrimination by associations

The proposed amendments to section 35 make it unlawful for an association to discriminate on the ground of sexuality and provide for single sex associations to be covered by the Act. An exemption is proposed that provides that an association that is established for persons of a particular sex, or persons of a chosen gender or persons of a particular sexuality (other than heterosexuality) will not be unlawful and, consequently, such an association may discriminate against an applicant for membership so as to exclude from membership persons other than those for whom the association is established.

21—Repeal of section 35A

Clause 21 is consequential on the proposal that it be unlawful for associations to discriminate on the ground of sexuality.

22—Amendment of section 40—Discrimination in relation to accommodation

Clause 22 proposes to alter the exemption currently in section 40 to provide that the section does not apply to discrimination in relation to the provision of accommodation if the person who provides the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation.

23—Amendment of section 45—Charities

Clause 23 is a consequential amendment as a result of the proposed inclusion of the ground of chosen gender and the proposed restructure of the Act.

24—Repeal of section 46

Clause 24 is a consequential amendment as a result of the proposed restructure of the Act.

25—Amendment of section 47—Measures intended to achieve equality

Section 47 provides that it is not unlawful for an act to be done for the purpose of carrying out a scheme or undertaking intended to ensure that persons of the one sex, or of a particular marital status, have equal opportunities with persons of the other sex, or of another marital status. Clause 25 removes the reference to marital status as is required by the proposed restructuring of the Act, and extends the provision to include schemes or undertakings intended to ensure that persons of a chosen gender or persons of a particular sexuality, have equal opportunities with persons who are not persons of a chosen gender or persons of another sexuality.

26—Amendment of section 50—Religious bodies

Clause 26 proposes repealing an exemption in relation to sexuality for educational and other institutions that are administered in accordance with the precepts of a particular religion. The exemption is partially reinstated (in relation to employment in educational institutions) by proposed new section 34(3)—see clause 19.

The clause also provides an exemption in relation to the administration of a body established for religious purposes in accordance with the precepts of that religion.

27—Amendment of section 51—Criteria for establishing discrimination on ground of race

Section 51 of the principal Act provides the criteria for establishing discrimination on the ground of race. Clause 27 proposes broadening the type of conduct that amounts to discrimination on this ground to include the situation where a person treats another unfavourably because of the race of a relative of the other person.

28—Substitution of heading to Part 4 Division 2

Clause 28 substitutes the heading to Part 4 Division 2 to reflect the proposed inclusion of independent contractors within the scope of the Act.

29—Amendment of section 53—Discrimination against agents and independent contractors

Section 53 of the principal Act provides that it is unlawful for a principal for whom work is done by agents remunerated by commission to discriminate against those agents on the ground of race. Clause 29 proposes extending the section to make it unlawful for a principal to discriminate on the ground of race against independent contractors engaged under a contract for services.

30—Amendment of section 54—Discrimination against contract workers

Section 54 of the principal Act makes it unlawful for a principal to enter into an arrangement with an employer of contract workers under which the employer is to discriminate against a person. The proposed amendment extends the provision to cover workers who work under a contract for services and provides for the situation where there are a number of people linking the principal and the worker. ie, a principal who engages a contractor who engages a subcontractor who employs a worker.

31—Amendment of section 56—Exemptions

Section 56 of the principal Act provides an exemption relating to employment in private households. The proposed expansion of the Act to include independent contractors necessitates a change to this provision to provide that it is not unlawful for a person to discriminate if the person employs another, or engages another as an independent contractor, for purposes not connected with a business carried on by the person.

32—Amendment of section 62—Discrimination in relation to accommodation

Clause 32 proposes a new exemption in relation to the ground of race discrimination in the area of accommodation. The exemption provides that the section does not apply to discrimination in relation to the provision of accommodation if the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation.

33—Amendment of heading to Part 5

Clause 33 is consequential on the proposal to alter the terminology from discrimination on the ground of impairment to discrimination on the ground of disability.

34—Amendment of section 66—Criteria for establishing discrimination on ground of disability

Section 66 of the principal Act provides the criteria for establishing discrimination on the ground of disability. This clause proposes broadening the type of conduct that amounts to discrimination on this ground to include the situation where a person treats another unfavourably because of a disability that may exist in the future or because of the disability of a relative or associate of the other person.

Clause 34 also proposes broadening the type of conduct that amounts to discrimination by providing that a person may discriminate on the ground of disability if he or she—

fails to provide a safe and proper means of access to, or use of, a place or facilities for a person who requires special means of access to, or use of, the place or facilities as a consequence of the person's disability; or

treats another unfavourably because the other requires special means of access to, or use of, a place or facilities as a consequence of the other's disability,

to the extent that he or she is able to effect the provision of access or use.

Section 66 of the principal Act states that discrimination may occur if a person treats another unfavourably because a person possesses or is accompanied by a guide dog. Clause 34 proposes broadening this by changing the reference to guide dog to an assistance animal.

35—Substitution of heading to Part 5 Division 2

The substitution of the heading reflects the proposed inclusion of independent contractors within the scope of the Act.

36—Amendment of section 67—Discrimination against applicants and employees

Clause 36 is consequential on the proposal to alter the terminology from discrimination on the ground of impairment to discrimination on the ground of disability.

37—Amendment of section 68—Discrimination against agents and independent contractors

Section 68 of the principal Act provides that it is unlawful for a principal for whom work is done by agents remunerated by commission to discriminate against those agents on the ground of disability. Clause 37 proposes extending the section to make it unlawful for a principal to discriminate on the ground of disability against independent contractors engaged under a contract for services.

38—Amendment of section 69—Discrimination against contract workers

Section 69 of the principal Act makes it unlawful for a principal to enter into an arrangement with an employer of contract workers under which the employer is to discriminate against a person. The proposed amendment extends the provision to cover workers who work under a contract for services and provides for the situation where there are a number of people linking the principal and the worker. ie, a principal who engages a contractor who engages a subcontractor who employs a worker.

39—Amendment of section 70—Discrimination within partnerships

Clause 39 is consequential on the proposal to alter the terminology from discrimination on the ground of impairment to discrimination on the ground of disability.

40—Amendment of section 71—Exemptions

Section 71 of the principal Act provides an exemption relating to employment in private households. The proposed expansion of the Act to include independent contractors necessitates a change to this provision to provide that it is not unlawful for a person to discriminate if the person employs another, or engages another as an independent contractor, for purposes not connected with a business carried on by the person.

41—Amendment of section 72—Discrimination by associations

Clause 41 is consequential on the proposal to alter the terminology from discrimination on the ground of impairment to discrimination on the ground of disability.

42—Amendment of section 73—Discrimination by qualifying bodies

Clause 42 is consequential on the proposal to alter the terminology from discrimination on the ground of impairment to discrimination on the ground of disability.

43—Amendment of section 74—Discrimination by educational authorities

Clause 43 is consequential on the proposal to alter the terminology from discrimination on the ground of impairment to discrimination on the ground of disability.

44—Amendment of section 75—Discrimination by person disposing of interest in land

Clause 44 is consequential on the proposal to alter the terminology from discrimination on the ground of impairment to discrimination on the ground of disability.

45—Amendment of section 76—Discrimination in provision of goods and services

Section 76 of the principal Act makes it unlawful for a person who offers or provides goods or services to which the principal Act applies to discriminate against another on the ground of disability. The proposed clause 45 provides that in relation to services comprised of access to or use of a place or facilities that members of the public are permitted to enter or use, both the owner and the occupier will be taken to provide the service.

46—Amendment of section 77—Discrimination in relation to accommodation

Clause 46 proposes a new exemption in relation to the ground of disability discrimination in the area of accommodation. The exemption provides that the section does not apply to discrimination in relation to the provision of accommodation if the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation.

47—Amendment of section 78—Discrimination in relation to superannuation

Clause 47 is consequential on the proposal to alter the terminology from discrimination on the ground of impairment to discrimination on the ground of disability.

48—Amendment of section 79—Exemption in relation to remuneration

Clause 48 is consequential on the proposal to alter the terminology from discrimination on the ground of impairment to discrimination on the ground of disability.

49—Insertion of section 79A

Clause 49 proposes inserting a new exemption into the principal Act. The exemption provides that an act will not be regarded as discriminatory on the ground of disability in relation to infectious diseases if it is directed towards ensuring that an infectious disease is not spread and it is reasonable in all the circumstances.

50—Amendment of section 80—Exemption for charities

Clause 50 is consequential on the proposal to alter the terminology from discrimination on the ground of impairment to discrimination on the ground of disability.

51—Amendment of section 81—Exemption in relation to sporting activities

Clause 51 is consequential on the proposal to alter the terminology from discrimination on the ground of impairment to discrimination on the ground of disability.

52—Amendment of section 82—Exemption for projects for benefit of persons with particular disability

Clause 52 is consequential on the proposal to alter the terminology from discrimination on the ground of impairment to discrimination on the ground of disability.

53—Substitution of section 84

Clause 53 proposes a new exemption as a consequence of the proposed expansion of the principal Act to make it unlawful to fail to provide a safe and proper means of access to or use of a place or facilities. The proposed exemption provides that a person does not discriminate on the ground of disability if the provision of access or use would impose unjustifiable hardship on the person. In determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including—

the nature of the benefit or detriment likely to accrue or be suffered by the persons concerned; and

the effect of the disability of the person concerned; and

the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

54—Amendment of section 85—Exemption in relation to insurance

Clause 54 is consequential on the proposal to alter the terminology from discrimination on the ground of impairment to discrimination on the ground of disability.

55—Amendment of section 85A—Criteria for establishing discrimination on ground of age

Section 85A of the principal Act provides the criteria for establishing discrimination on the ground of age. Clause 55 proposes broadening the type of conduct that amounts to discrimination on this ground to include the situation where a person treats another unfavourably because of the age of a relative or associate of the other person.

56—Substitution of heading to Part 5A Division 2

The substitution of the heading reflects the proposed inclusion of independent contractors within the scope of the Act.

57—Amendment of section 85C—Discrimination against agents and independent contractors

Section 85C of the principal Act provides that it is unlawful for a principal for whom work is done by agents remunerated by commission to discriminate against those agents on the ground of age. Clause 57 proposes extending the section to make it unlawful for a principal to discriminate on the ground of age against independent contractors engaged under a contract for services.

58—Amendment of section 85D—Discrimination against contract workers

Section 85D of the principal Act makes it unlawful for a principal to enter into an arrangement with an employer of contract workers under which the employer is to discriminate against a person. The proposed amendment extends the provision to cover workers who work under a contract for services and provides for the situation where there are a number of people linking the principal and the worker. ie, a principal who engages a contractor who engages a subcontractor who employs a worker.

59—Amendment of section 85F—Exemptions

Section 85F of the principal Act provides an exemption relating to employment in private households. The proposed expansion of the Act to include independent contractors necessitates a change to this provision to provide that it is not unlawful for a person to discriminate if the person employs another, or engages another as an independent contractor, for purposes not connected with a business carried on by the person.

60—Amendment of section 85K—Discrimination in provision of goods and services

Section 85K of the principal Act provides that it is unlawful to discriminate on the ground of age in the provision of goods and services. Subsection (2) provides that it is unlawful to refuse to supply goods or perform services to another on the ground that the other person is accompanied by a child. This clause proposes relocating subsection (2) to the proposed new Part 5B under the new ground of association with a child.

61—Amendment of section 85L—Discrimination in relation to accommodation

Section 85L of the principal Act provides that it is unlawful to discriminate on the ground of age in relation to the provision of accommodation. Subsection (2) provides that it is unlawful to refuse accommodation on the ground that the other person intends to share the accommodation with a child. This clause proposes relocating subsection (2) to a new section 87A—Sharing accommodation with a child.

62—Insertion of Part 5B

Clause 62 proposes to insert a new Part 5B into the Act to prohibit discrimination on a number of grounds that have not previously been unlawful. The new proposed grounds of discrimination are the grounds of identity of a spouse or domestic partner, association with a child, caring responsibilities and religious appearance or dress. It is also proposed that the Part include within it the grounds of marital or domestic partnership status and pregnancy which were previously included in Part 3 of the Act.

Each of the proposed new grounds makes it unlawful to discriminate in particular areas. In relation to the ground of identity of a spouse or domestic partner, it will be unlawful to discriminate in the area of work, by associations or qualifying bodies, in education, in relation to land, in the provision of goods and services and in relation to accommodation.

In relation to the ground of association with a child, it will be unlawful to discriminate in the provision of goods and services.

In relation to the ground of caring responsibilities, it will be unlawful to discriminate in the area of work, by associations and qualifying bodies, in education, in relation to land, in the provision of goods and services and in relation to accommodation.

In relation to religious appearance or dress, it will be unlawful to discriminate in the areas of work and education.

The proposed new Part provides for some specific exemptions and some general exemptions in relation to charities and measures intended to achieve equality.

63—Amendment of section 87—Sexual harassment

Section 87 of the principal Act provides that sexual harassment is unlawful in certain situations. Clause 63 proposes that sexual harassment also be unlawful in the situations where—

(a) a person to whom goods, services or accommodation are being offered, supplied, performed or provided by another person subjects that other person to sexual harassment; or

(b) a member of an authority or body empowered to confer an authorisation or qualification subjects an applicant for the conferral of such an authorisation or qualification to sexual harassment; or

(c) a member of the governing body of an association subjects a member of the association, or a person applying to become a member of the association, to sexual harassment.

Clause 63 also proposes substituting the definition of conduct that amounts to sexual harassment to provide that a person sexually harasses another if—

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

64—Substitution of section 88

Section 88 of the principal Act makes it an offence to separate a person from his or her guide dog. Clause 64 proposes extending the operation of this section to include other animals prescribed by regulation. The clause also proposes 3 new sections. New section 87A is the relocation of the provision in the principal Act that makes it unlawful to refuse accommodation to a person on the ground that the other person intends to share the accommodation with a child. New section 87B makes it unlawful for an educational authority to discriminate against a student by denying or limiting access to the educational services provided by the authority on the ground that the student is breast feeding an infant or proposes to do so. New section 88A makes it unlawful for a person to be refused accommodation on the ground that the person intends to keep a therapeutic animal at that accommodation. A therapeutic animal is defined as an animal certified by a medical practitioner as being required to assist a person as a consequence of the person's disability.

65—Substitution of section 91

Section 91 of the principal Act provides for the vicarious liability of employers and principals for discriminatory or unlawful acts of agents or employees. Clause 65 removes the subsection that provides that a person is not vicariously liable for an act of sexual harassment committed by an agent or employee unless the person instructed, authorised or connived that act.

66—Substitution of heading to Part 8 Division 1

Clause 66 is a drafting amendment.

67—Amendment of section 93—Making of complaints

Clause 67 proposes to amend section 93 of the principal Act to increase the time within which a complaint must be lodged from 6 months to 12 months and provides that the Commissioner may extend the time for lodging a complaint.

68—Amendment of section 94—Investigations of complaints or matters referred to Commissioner

Clause 68 proposes amending section 94 of the principal Act to provide that in the course of an investigation by the Commissioner, the Commissioner cannot, without the consent of the person concerned, require production of records of counselling or therapy sessions or records or notes made by an advocate for the person.

69—Substitution of section 95

Clause 69 proposes substituting section 95 of the principal Act for sections 95, 95A, 95B, 95C and 95D. The proposed new section 95 deals with the conciliation of complaints lodged with the Commissioner. New section 95A sets out the circumstances in which the Commissioner may decline to recognise a complaint as one on which action should be taken by the Commissioner. New section 95B details the situation in which the Commissioner must refer a complaint to the Tribunal for hearing and determination. New section 95C provides that the Commissioner may provide representation for the complainant or respondent in proceedings before the Tribunal but in doing so must apply public funds judiciously, taking into account—

the capacity of the complainant or respondent to represent himself or herself or to provide his or her own representation;

the nature and circumstances of the alleged contravention;

any other relevant matter.

New section 95D provides that a matter referred to the Commissioner may be referred to the Tribunal for hearing and determination.

70—Amendment of section 96—Power of Tribunal to make certain orders

Section 96 of the principal Act provides for the Tribunal to make certain orders. The proposed clause 70 provides that in awarding compensation the Tribunal must take into account the amount of damages or compensation awarded in other proceedings in respect of the same act, and that an award of compensation may not be made against a child.

71—Insertion of section 96A

Clause 71 proposes a new section 96A to provide that a person must not publish a report of proceedings under the Act to which a child is a party if the report identifies the child or contains information tending to identify the child.

72—Amendment of heading to Part 8 Division 2

Clause 72 is a consequential amendment.

73—Insertion of section 96B

Clause 73 proposes a new section 96B as a consequence of the new provision allowing the Commissioner to extend the time within which a person may lodge a complaint. New section 96B provides that where the Commissioner refuses an application for an extension of time, the applicant may apply to the Tribunal for a review of the decision.

74—Amendment of section 100—Proceedings under Fair Work Act 1994

Clause 74 proposes a new subsection to section 100 to provide that the Commissioner may, with leave of the Industrial Relations Commission of South Australia, make submissions and present evidence in proceedings before the Commission under the Fair Work Act 1994.

75—Amendment of section 102—Offences against Commissioner

Clause 75 updates the penalty provision.

76—Amendment of section 103—Discriminatory advertisements

Clause 76 updates the penalty provision.

77—Substitution of section 104

Clause 77 proposes a new section 104 to provide for the service of documents.

78—Amendment of section 106—Regulations

Clause 78 updates the fines that may be imposed for offences against the regulations.

Schedule 1—Further amendments of Equal Opportunity Act 1984

Schedule 1 makes statute law revision amendments to the principal Act.

Debate adjourned on motion of Mrs Redmond.