Equal Opportunity (Domestic Abuse) Amendment Bill

Second Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic and Family Violence, Minister for Recreation, Sport and Racing) (16:52): I move:

That this bill be now read a second time.

I am really pleased and somewhat relieved to bring to this house the Equal Opportunity (Domestic Abuse) Amendment Bill 2022, following its passage in the other place. This bill will rightly prohibit discrimination on the basis that someone is or has been subject to domestic abuse and, crucially, it will ensure that when someone is discriminated against they have a clear avenue for recourse, a way to seek justice. This provision is aimed at providing that protection—an avenue for recourse—to victim survivors and their families who experience discrimination in a range of areas in public life, including in employment, education or when trying to access services or accommodation.

This bill progresses a key election commitment made by this government as part of our strong and groundbreaking policies on women's safety, equality and wellbeing. This bill is overdue. This bill aligns with a bill that I moved not once, but twice from opposition. I first introduced a bill to progress this reform in 2019 and then again in 2021. Both were shamefully unsuccessful in gaining the support of the then government of those opposite.

If you were serious about tackling domestic violence, you would thoroughly consider legislative provisions that provide improved rights to those who experience it. Sadly, those opposite utterly refused to do so—not once, but twice. I am really proud and, as I said, also relieved that now, as a government, we can advance meaningful reform to ensure that those who experience domestic violence are not further disadvantaged.

It is absolutely our job in this place to ensure that victim survivors have access to support they need to ensure that they can maintain a vital connection to employment and are not discriminated against in the course of that employment, and to ensure that if they do experience discrimination, they have access to appropriate support and justice. Through this legislation and a range of other measures, we are ensuring that they do.

In the development of the previous bills, and as our government progresses the bill we speak to today, I wholeheartedly acknowledge the advocacy of a number of people: those brave women, victim survivors, who shared their stories with me and others when we first introduced legislation of this type. I also acknowledge domestic violence service providers, advocacy organisations, unions, the Working Women's Centre and others—those people and organisations who so often walk alongside women experiencing domestic violence and advocate for change to make the path to healing and recovery of victim survivors just a little bit easier, the people and organisations who help those courageous victim survivors know that they are never alone.

I have worked closely with the Attorney-General and his office in developing this bill, as well as the Commissioner for Equal Opportunity, and I am so pleased to lead debate on it in this house today. The bill amends the Equal Opportunity Act 1984 to add domestic abuse as a new attribute protected against discrimination. Under this proposed new legislation, it will be unlawful to treat someone unfavourably because they or their relative or associate have been or are being subject to domestic abuse.

The impacts of domestic violence are profound and they affect all aspects of the lives of victim survivors, including their working lives and how they interact with various services. Addressing unfavourable treatment will prohibit a range of scenarios, including criticising or otherwise treating an employee poorly because they took time off on domestic violence leave, or refusing to rent a property to someone because they are protected under an intervention order.

This legislation sits alongside our government's other efforts to support victim survivors, including the establishment of 15 days' paid domestic violence leave for those employed pursuant to the state fair work system. These reforms are crucial as we continue to see the scourge of domestic violence affect our community. We know, sadly, that over 200,000 South Australian women, or 29 per cent of women, have experienced violence, emotional abuse or economic abuse by a cohabiting partner since the age of 15.

We know that 80 per cent of child protection cases have a domestic violence element. We know, tragically, that more than one woman per week continues to be murdered by a partner or former partner. We know that domestic violence knows no boundaries, that it happens in every suburb, in every regional area and in every kind of family setting. We know that those who experience it can feel ashamed and isolated, and we know that intersectional barriers can make the experience of it even harder.

We know that it relentlessly persists. This is why we must not limit our responses to it. We must do whatever is within our power to speak, to act, to legislate and to spread the word that there is no excuse, that violence is never, ever an option and that those who are experiencing this violence will receive support and understanding from our broader community, not discrimination. Together, we must continue to do whatever is within our power to support those impacted and to prevent and end this terrible scourge. Supporting those impacted means doing what we can to keep them connected to their workplace, to their income, and empowered to seek housing and services.

I first started researching the possibility of making this legislative change a number of years ago. I did so because of the stories that I learned of, stories of women who, as well as bearing the horror of domestic abuse, were treated in a discriminatory and, frankly, abhorrent fashion because of that experience. I have heard the horrific account of a woman being raped by her ex-partner after he broke into her home. Her manager was deeply shocked by what the woman revealed about the abusive relationship when she accompanied her to make a police statement. Upon returning to work, the woman was urged to consider moving on from the workplace to seek a so-called fresh start.

In another case, a woman revealed to her new prospective employer that she had an intervention order in place and was then advised that her services would no longer be required. I know of a woman who sought help at her local supermarket whilst her abusive husband sat outside. Doing the shopping at this one local shop was one of the only places he allowed her to go. On a particular day, she mustered the courage in the short time that she had to ask for help. She was asked to leave the shop and not shop there again because they did not want that kind of trouble.

We need to support people when this behaviour occurs, and we need to educate and equip our community however we can about the role they can play in helping to prevent and end domestic violence. We need to bring to life that oft repeated mantra that domestic violence is everybody's responsibility. A key place to educate, to raise awareness, to build that capacity of our community is in the workplace. The introduction of this legislation will enable us to do just that.

It will absolutely ensure that people who have experienced, or continue to experience, domestic violence and are discriminated against because of that experience will now finally have access to an avenue for recourse. When I first started researching this issue, it was incredibly sad to understand from the then equal opportunity commissioner that when a person did find their way to speak up about that experience they were, sadly, turned away. This law will rightly change that.

It is really important to note, however, that necessarily there will be decisions in which domestic abuse is a factor that will not be considered unfavourable treatment or discrimination. Under the Equal Opportunity Act, someone is found to be treated unfavourably based on an attribute if they are treated less favourably than someone else in similar circumstances without the relevant attribute.

An important and necessary distinction that will specifically be carved out from this legislation relates to child protection interventions. The Department for Child Protection is mandated to protect children at risk, whether that risk is due to domestic abuse or another reason. Therefore, removing a child from a situation where they are at risk as a result of domestic abuse would not be discriminatory treatment of the child when the same decision would be made if the child were at risk because of another cause.

Importantly, the bill will also prohibit indirect discrimination. Indirect discrimination occurs when a general requirement is imposed that persons with a protected attribute—in this case, subjection to domestic abuse—cannot comply with or will find it more difficult to comply with. For example, this might arise if a prospective landlord requires applicants to provide evidence of a recent rental history. This requirement is of course imposed on all applicants; however, a victim survivor may be unable to comply because they have been residing in domestic violence crisis accommodation or have an unstable rental history with many short-term tenancies. Indirect discrimination would be unlawful if the requirement is not reasonable in the circumstances of the particular case.

The bill will prohibit discrimination in all areas of public life covered by the Equal Opportunity Act, those being engagement in work, including unpaid work; the provision of education; decisions of associations and qualifying bodies; and the provision of land, goods, services and accommodation. As is standard in the Equal Opportunity Act, the bill provides that measures to benefit persons who have been subject to domestic abuse will not be considered discriminatory.

The bill also contains an exception allowing discrimination in relation to employment to care for a child where that child resides. This will allow a child's safety to be considered when selecting employees for the residential care of children, particularly by the Department for Child Protection. The department employs people to care for extremely vulnerable children in residential care facilities. It is really important that they can take the employee's whole history into account, including any experiences of domestic abuse, when determining whether that person is suitable to care for children with complex needs.

The bill also contains a power for the equal opportunity commissioner to decline to take action on a complaint of domestic abuse discrimination if there is insufficient evidence that the complainant was subject to domestic abuse. This has rightly been put in place to address a risk of domestic abuse perpetrators misusing this new ground of discrimination. It is unfortunately common for perpetrators of domestic abuse to claim to actually be the victim and to perpetrate systems abuse through the manipulation of people, processes or services connected to the victim survivor.

This clause will provide a clear basis for the commissioner to screen out such complaints, in addition to their existing powers to decline to take action on complaints that are frivolous, vexatious or lacking in substance. The disingenuous complainant will then be unable to access assistance or conciliation through the commissioner, although they may still choose to take the matter to SACAT.

This requirement of providing sufficient evidence does not seek to place additional difficulties and burdens on victim survivors of abuse. The bill intentionally provides a broad definition of what can constitute sufficient evidence of abuse, including an intervention order, a medical record or evidence of seeking or obtaining assistance from a non-government charitable organisation, including not-for-profit legal assistance services.

Stakeholder feedback on this bill, and indeed the previous iterations of it not supported by those opposite, was really very positive. There was strong support for the bill across our community, as there has been for some time. I note that some stakeholders commented on the definition of 'services' under the Equal Opportunity Act, requesting clarification or reform on when particular actions of a government department or agency are or are not considered 'services' and therefore covered by anti-discrimination law.

This definition of 'services' applies to the whole act and affects every protected attribute. Because any amendment would affect the whole act, it was not considered for inclusion in this bill. However, the government is committed to giving further consideration to the issues raised in due course. This will include consideration of whether any government service providers have a legitimate need to discriminate based on one or more protected attributes for health, safety or similar reasons.

This bill is a clear step this parliament can take to improve the safety, the wellbeing and the franchise of domestic violence victim survivors here in South Australia. Through this legislation, we will support and we will empower those who experience domestic violence. It gives those who experience domestic violence additional rights, a voice and a mechanism to move forward, and in so many cases, importantly, it will enable a victim survivor to maintain connection to their employment.

This bill represents another step forward our government makes toward the prevention of domestic violence and toward healing, recovery and empowerment for those courageous victim survivors. This bill is for them. I commend the bill to the house and seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Equal Opportunity Act 1984

3—Amendment of section 5—Interpretation

This clause adds the definition of domestic abuse into the Act, being the same meaning as within the Intervention Orders (Prevention of Abuse) Act 2009.

4—Amendment of section 85T—Criteria for establishing discrimination on other grounds

This clause inserts a further arm into the definition of discriminate for the purposes of Part 5B of the Act (prohibition of discrimination on other grounds) such that to discriminate means to discriminate on the ground of a person being, or having been, subjected to domestic abuse.

This clause further outlines what it means for a person to discriminate against another on the ground of being, or having been, subjected to domestic abuse.

5—Amendment of section 85U—Application of Division

This clause provides that Part 5B Division 2 of the Act (discrimination against workers) applies to discrimination on the ground of a person being, or having been, subjected to domestic abuse.

6—Amendment of section 85ZA—Application of Division

This clause provides that Part 5B Division 3 of the Act (discrimination by other bodies) applies to discrimination on the ground of a person being, or having been, subjected to domestic abuse.

7—Amendment of section 85ZB—Discrimination by associations

This clause provides that it is not unlawful for an association to be established for persons who are, or who have been, subjected to domestic abuse such that other persons are excluded from membership.

8—Amendment of section 85ZD—Application of Division

This clause provides that Part 5B Division 4 of the Act (discrimination in education) applies to discrimination on the ground of a person being, or having been, subjected to domestic abuse.

9—Amendment of section 85ZF—Discrimination by person disposing of interest in land

This clause makes it unlawful for a person to discriminate against another in relation to the disposition of an interest in land on the ground of the other person being, or having been, subjected to domestic abuse.

10—Amendment of section 85ZG—Discrimination in provision of goods and services

This clause makes it unlawful for a person to discriminate against another in relation to the provision of goods and services on the ground of the other person being, or having been, subjected to domestic abuse.

11—Amendment of section 85ZH—Discrimination in relation to accommodation

This clause makes it unlawful for a person to discriminate against another in relation to accommodation on the ground of the other person being, or having been, subjected to domestic abuse.

This clause further provides, however, that it is not unlawful under this section to provide non-profit accommodation solely to persons who are, or who have been, subjected to domestic abuse.

12—Amendment of section 85ZI—Charities

This clause provides that a provision in a charitable instrument to confer benefits on persons who are, or who have been, subjected to domestic abuse is not affected by the provisions of Part 5B of the Act as amended by this measure, and that any act done to give effect to such a provision is not rendered unlawful.

13—Amendment of section 85ZK—Measures intended to achieve equality

This clause provides that an act will not be unlawful where it is done for the purposes of ensuring that persons who are, or who have been, subjected to domestic abuse have equal opportunities with those who are not, and who have not been, subjected to domestic abuse.

14—Insertion of section 85ZO

This clause creates an exemption from Part 5B of the Act such that the provisions of the Part will not apply to discrimination on the ground of being, or having been, subjected to domestic abuse in relation to employing or engaging a person to perform duties that involve the care of a child at a place where the child resides.

15—Amendment of section 95A—Commissioner may decline complaints in certain circumstances

This clause adds a further basis upon which the Commissioner may decline to recognise a complaint, being where the Commissioner is of the opinion that a complainant has, in a complaint alleging discrimination on the ground of being, or having been, subjected to domestic abuse, failed to provide sufficient evidence that they are, or have been, subjected to domestic abuse. The clause further provides the types of evidence that are considered to be sufficient.

Mr COWDREY (Colton) (17:12): I rise today to indicate that I am the lead speaker for the opposition on this Equal Opportunity (Domestic Abuse) Amendment Bill 2022 and wish at this juncture to thank the minister for the depth and breadth and detail she provided in regard to the act's objects and functions. That detail has certainly been well put on Hansard by her.

I also rise to indicate, as has already been done in the other place, the opposition's support for this legislation, which will add to existing provisions by ensuring that it is soon to be illegal to discriminate against people within the South Australian community on the ground of someone being or having been subjected to domestic abuse.

As legislators, it is always important that we ensure that our laws are in line with contemporary expectations. There has obviously been a significant shift—and collective shift—in our understanding of the nature and prevalence of domestic abuse and family violence in our community. It is vital that survivors are given the appropriate support to overcome their circumstances and trauma.

This is also an important step towards ensuring that all forms of discrimination are removed from our society and our workplaces, including, again, any such discrimination against victims and survivors of domestic and family violence. This bill certainly adds to the bipartisan view of this place—that it is everyone's responsibility to end and eliminate domestic violence and family abuse in our society. It also adds to this parliament's combined history of taking steps towards that end.

The opposition certainly support this legislation. We look forward to its passage and it becoming law here in our state. I commend the bill to the house.

Ms CLANCY (Elder) (17:14): I rise today in support of the Equal Opportunity (Domestic Abuse) Amendment Bill 2022 to amend the Equal Opportunity Act 1984. This bill seeks to prohibit discrimination on the basis that someone is or has been subjected to domestic abuse, delivering on yet another election commitment of the Malinauskas Labor government.

At present, the Equal Opportunity Act prohibits discrimination against South Australians on their race, ethnicity, gender or sexuality, or how they choose to express their age, religion, disability or work as a carer, or whether or not they are pregnant or breastfeeding, or their spousal status, as it should, but it does not prohibit discrimination against South Australians who have experienced or who are currently experiencing domestic violence. The successful passage of this bill would change that. South Australians experiencing or who have experienced domestic and family violence could have already been afforded this protection.

Three years ago the then shadow minister, now Minister for Women and the Prevention of Domestic and Family Violence, introduced a bill to include the experience of domestic violence as a ground of discrimination in the Equal Opportunity Act. Even in opposition, it was Labor who led the charge for the promotion of gender equality in South Australia. It was a Labor opposition who introduced legislation to criminalise coercive control, toughen penalties for breaches of domestic violence intervention orders, waive fees for court-initiated domestic violence intervention orders and to ban the Wicked campervans.

But we will not just sit here and pat ourselves on the back for things we have or could have done. The horrific scourge of domestic and family violence, harassment and disrespect towards women continues. It is unacceptable, and every single member in this place and the other place should be doing everything they can possibly do to prevent violence and to address gender inequality at its core. Our parliament and those right across this country must continue to do more until we no longer have to say that more than one woman per week in Australia dies as a result of domestic violence perpetrated by a current or former partner.

Labor is committed to achieving gender equality. Addressing inequality and empowering women and girls to equally participate in our homes, our schools, our workplaces, our parliaments and in every single aspect of our economy and community life is a core Labor value. We want and we need to create a state in which your gender has no bearing on the opportunities available to you and no bearing on your safety.

The bill before us today is a reflection of that value and commitment: a commitment to ensuring that every woman in South Australia is safe, able to build a financially sustainable future for themselves and their loved ones and can socially and economically participate to the fullest extent they choose. The passage of this bill would deliver on our commitment to promote the safety and wellbeing of South Australian women and to promote gender equality in our state.

This would join a list of achievements already accomplished by this government in our first 12 months, including legislating 15 paid days' domestic and family violence leave for public sector and local government workers, reinstating the Premier's Women's Directory, establishing the homeless women's taskforce, and supporting Catherine House—not cutting their funding—and much more.

A huge thank you to the work of our Attorney-General, our Minister for Women and the Prevention of Domestic and Family Violence and their respective departments and staff, as well as the Commissioner for Equal Opportunity, for all their work in bringing this bill to this place. We must also show our appreciation for the South Australian trade union movement and organisations supporting those experiencing domestic and family violence including my old workplace, Women's Safety Services SA, and indeed every single South Australian who has long called for this simple yet powerful change to our Equal Opportunity Act. I understand that more than 20 stakeholders were invited to comment on this bill, and I thank them for their important contributions and for their support.

This bill proposes to make it unlawful to treat someone unfavourably because they or their relative or associate have been, or are being, subjected to domestic abuse. The Intervention Orders (Prevention of Abuse) Act 2009 defines an act of abuse as any act:

…against a person if it results in, or is intended to result in—

(a) physical injury; or

(b) emotional or psychological harm; or

(c) an unreasonable and non-consensual denial of financial, social or personal autonomy; or

(d) damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person.

This act further defines an act of abuse as domestic abuse if it is committed by a defendant against a person with whom the defendant is, or was formerly, in a relationship. The bill before us today shares the definition of domestic abuse with the existing intervention orders legislation—a broad and progressive definition encompassing physical, emotional and financial abuse, as well as coercive controlling behaviours.

As I have shared with the house previously, while the majority of domestic and family violence perpetrators are men, the majority of men are not perpetrators. It is still important to note that the Australian Bureau of Statistics' Personal Safety Survey paints a sobering, non-negotiable reality that it is overwhelmingly women against whom domestic and family violence is perpetrated.

As of the most recent ABS data, one in six women have experienced physical and/or sexual violence by a current or former partner since the age of 15, one in four women have experienced emotional abuse by a current or former partner since the age of 15, and one in five women—or 1.7 million Australian women—have experienced sexual violence since the age of 15. Since the start of the COVID-19 pandemic, we know these numbers have only become worse.

The Australian Institute of Criminology found that between February 2020 and February 2021 18 per cent of women respondents reported experiencing emotionally abusive, harassing and controlling behaviours from an intimate partner for the first time—that is one in five women. I think the fact that people were trapped at home during COVID meant that these behaviours of some partners were exacerbated, and people did not have the support options they would normally have and were not able to get out and find supports that they needed and connect with their networks.

The National Community Attitudes towards Violence against Women Survey in 2017 found that almost one in three Australians believed that women who do not leave their abusive partners are partly responsible for violence continuing. Over 40 per cent of Australians agreed that it was common for sexual assault accusations to be used as a way of getting back at men. More than one in five Australians agreed that sometimes a woman can make a man so angry that he hits her without meaning to. These attitudes are deeply wrong; they are disgusting and they have no basis in reality or fact whatsoever. It is attitudes such as these that we must target to promote gender equality and end domestic and family violence.

We need to educate our community. In our homes, in our schools and in our workplaces, I know we can achieve this. Bills such as this will help us to achieve this. By including the experience of domestic abuse in the Equal Opportunity Act, we can help protect victim survivors and their families. We can give those South Australians who encounter discrimination as a result of their experience of domestic violence a voice and an avenue for redress. We can open the door to victim survivors being heard.

South Australians would be rightly disgusted to learn that without this amendment a worker could be criticised or treated poorly because they took time off on domestic violence leave. They would be ashamed to learn they live in a state where a landlord could refuse to rent a property to someone because they are protected under an intervention order. They expect more from their representatives, and I am so glad that now they find enough representatives in this place who prioritise the safety and wellbeing of women to support bills such as these and to prioritise them.

This bill is so simple yet so powerful to victim survivors of domestic and family violence in South Australia. It is yet another example of our government empowering women in the workplace, to the benefit of everyone in the workplace—employers included. We have and will continue to legislate in the interests of Labor, not to scare employers but to show that to lift one, can lift all.

This bill will not prohibit employers from taking reasonable action in relation to an employee underperforming who has been or is experiencing domestic or family violence, so long as it is in accordance with fair and reasonable policies that apply equally to any underperforming employee. If a rising tide can lift all boats, then good government can empower all workplaces to provide the conditions required for their workers to prosper.

By amending the Equal Opportunity Act, this bill will prohibit discrimination in all areas of public life, being employment or engagement in work (including unpaid work), the provision of education, decisions of associations and qualifying bodies, and the provision of land, goods, services and accommodation. Discrimination against anyone subjected to domestic and family violence will be prohibited, regardless of whether they have an intervention order in place.

This bill also does not require the perpetrator of the abuse to have been convicted of any offence. South Australians experiencing domestic violence need to know they are heard and they are believed. They need to know their workplace and their government have their back. I am relieved that this legislation is finally being seriously considered by a state government who cares and cares deeply. I commend the bill to the house.

Ms HOOD (Adelaide) (17:26): I rise to speak on the Equal Opportunity (Domestic Abuse) Amendment Bill. Domestic violence is a cowardly act, a heinous act, that has devastating and long-lasting effects on victims including physical, mental and emotional injuries and in some cases, death. Domestic violence is despicable, intolerable behaviour that should have no place in our society but sadly as we all know, domestic violence does exist in our society.

The ABS in March published that an estimated eight million Australians have experienced physical or sexual violence since the age of 15, that is 41 per cent of our population. With such a large cohort experiencing violence, it is crucial that we protect victims from further harm through discrimination. That is why the Attorney-General has been working with the Minister for Women and the Prevention of Domestic and Family Violence and the Commissioner for Equal Opportunity in drafting this bill which progresses a key election committee made by the Malinauskas government to improve women's safety.

The amendment bill proposes to make it unlawful to treat someone unfavourably because they or their relative or associate has been, or is being subject to, domestic abuse. In other words, discrimination against anyone subject to domestic abuse will be prohibited. Evidence of domestic abuse may include an intervention order, medical records, or evidence of seeking or obtaining assistance from a charitable organisation. Importantly, the legislation would not require the perpetrator of the abuse to have been convicted of any offence. This is why the bill intentionally provides a broad definition of what constitutes abuse.

The bill further aims to provide protections to prevent perpetrators of violence from disingenuously claiming to be the victim under this proposed legislation. These protections include the requirement of sufficient evidence and giving the commissioner the power to not review claims that lack evidence or seem disingenuous. The amendment bill will not prohibit employers taking reasonable action against underperforming employees merely because they have or are still experiencing domestic violence. The employer's action must be in accordance with fair and reasonable policies that apply equally to any underperforming employee.

The bill will extend to all areas of public life covered by the Equal Opportunity Act, including employment, engagement in work and unpaid work, the provision of education, decisions of associations and qualifying bodies, and the provision of land, goods, services and accommodation. New discriminatory behaviours that are set to be prohibited include criticising or otherwise treating an employee poorly because they took time off work on domestic violence leave and refusing to rent a property to someone because they are protected under an intervention order or have been residing in domestic violence crisis accommodation.

Recently, I was proud that my office was able to assist a mum of one who was sadly amongst those eight million Australians experiencing domestic violence. The mum had moved interstate with her child after her partner had got a job offer, but soon after moving away the partner became controlling and abusive, cutting the mum off from family and friends back in SA and preventing her from forming new relationships. After experiencing years of abuse, she fled with her child in the middle of the night back to Adelaide to live with family members. Since returning to SA, they have rekindled friendships, returned to school and work and reconnected with family. They are able to live their lives again.

This story is just one of thousands that women and children experience each year in our country; however, not all these stories end with victims being able to reconnect and live with their loved ones. Many stories result in women fleeing their home and having no place to go. That is where organisations like Catherine House are so incredibly important.

Catherine House is South Australia's only specialist homeless and recovery service for women. It provides a safe space for women to build relationships, learn and engage in activities that support their health, wellbeing, confidence and recovery. Catherine House accommodates up to 54 women every night. I seek leave to continue my remarks.

Leave granted; debate adjourned.