Statutes Amendment (Gender Identity and Equity) Bill

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (16:11): I move:

That this bill be now read a second time.

I seek leave to have the second reading and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

South Australia has a proud history as a leader in social justice and anti-discrimination reform. It was the first jurisdiction in Australia to legislate to permit women to vote and the first place in the world to end discrimination against women standing for Parliament. South Australia was also the first state in our nation's history to decriminalise homosexuality.

In the past 40 years, South Australian governments have made a number of changes to legislation and policy with respect to Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) people. These changes have contributed to an improvement in the ability of LGBTIQ South Australians to lead safe and engaged lives in our State and the wider community.

South Australia's reputation as a great place to live is in part based on the fact that we are a tolerant, inclusive society. The Government's commitment to an inclusive society is enshrined in the South Australian Strategy for the Inclusion of LGBTIQ people.

Unfortunately, there are still aspects of our laws which do not reflect inclusiveness and have the effect of discriminating against people in our community.

It is because of this that, early last year, the Government announced, through the Governor's speech to the opening of Parliament, that the South Australian Law Reform Institute would be invited to review legislative and regulatory discrimination against individuals and families on the grounds of sexual orientation, gender, gender identity or intersex status.

The Institute released its Audit report on 10 September 2015, and it identified more than 140 pieces of legislation that discriminate on the grounds of sexual orientation, gender, gender identity or intersex status. The Report outlined a suite of recommendations for the Government to address in relation to current legislative and regulatory based discrimination. These included Recommendations for Immediate Action and Recommendations for Further Review and Reporting by the Institute.

The timing of the Report's release was poignant. For it was in September last year that the local LGBTIQ community – and many other people – were celebrating the 40th anniversary of the passing of laws making our state the first jurisdiction in Australia to decriminalise homosexual acts between consenting adults. That legislation was strongly supported by then Premier Don Dunstan – a man who had championed gay rights for many years and had a proud record of fighting against discrimination wherever he saw it.

The Government has considered the recommendations of the Law Reform Institute's Report, and through this Statutes Amendment Bill it seeks to implement the majority of the report's recommendations for immediate action.

The majority of the proposed amendments are aimed at removing binary notions of sex (eg, male and female) and gender (eg, man and woman) or provisions that fail to set out how the law applies to a person who is intersex or gender diverse. The amendments also seek to remove interpretative language in legislation that has the potential of discriminating against people based on their relationship status.

The following amendments are proposed in this Bill:

Amending section 4 of the Acts Interpretation Act 1915 to include the terms 'gender identity' and 'intersex status' in the dictionary section of the Act.

Amending section 26 of the Acts Interpretation Act 1915 to replace the existing gender related rule with a new interpretative rule based on section 23(a) of the Commonwealth's Acts Interpretation Act 1919 to provide that: 'words importing a gender include every other gender.'

Amending section 36A of the Acts Interpretation Act 1915 to revise the existing gender balance on boards provision to make it clear that, regardless of the person's sex as legally recorded, a person who identifies as a woman should be included in the pool of possible appointments where an Act requires a minimum number of female/women positions on the board. Similarly, a person who identifies as a man should be included in the pool of potential appointments where it is legislated to include a minimum number of male/men positions, regardless of the person's sex as legally recorded.

Replacing the term 'opposite sex' with the term 'different sex' in the Criminal Law (Forensic Procedures Act) 2007, Equal Opportunity Act 1982, Family Relationships Act 1975 and Sexual Reassignment Act 1988.

Repealing outdated provisions in the Guardianship of Infants Act 1940, Trustee Act 1936, Landlord and Tenant Act 1936 and Settled Estates Act 1880.

Amending the Correctional Services Act 1982, Criminal Law (Forensic Procedures) Act 2007 and Summary Offences Act 1953 to enable a person subject to a search or assessment to request that it be conducted by a person of the same sex or gender identity, unless the person being searched or assessed requests otherwise.

Amending the terminology in the Equal Opportunity Act 1982 to replace the current protections against discrimination on the grounds of 'sexuality' and 'chosen gender' with similar protections based on the attributes of 'sexual orientation' and 'gender identity'.

Amending the Domicile Act 1980 to include reference to domestic partners and remove an unnecessary reference to gender, as well as removing a discriminatory provision in the Evidence Act 1929.

Through these changes, we seek to ensure that our laws do not inadvertently discriminate against LGBTIQ South Australians.

Many of these changes may not seem important, and for most South Australians the impact will be negligible. But for people who may potentially experience discrimination as a result of these laws, the impact can be significant.

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 Acts Interpretation Act 1915

4—Amendment of section 4—Interpretation

This clause inserts definitions for the terms gender identity and intersex status into the principal Act.

5—Amendment of section 26—Interpretation of words relating to gender or number

This clause amends section 26 of the principal Act to alter the meaning of references to gender.

6—Amendment of section 36A—Gender balance in nomination of persons for appointment to statutory bodies

This clause inserts definitions for the terms man and woman into section 36A of the principal Act.

Part 3—Amendment of Correctional Services Act 1982

7—Amendment of section 23—Initial and periodic assessment of prisoners

This clause amends section 23 of the principal Act to broaden the range of matters that the CE must have regard to when carrying out an assessment under the section to include the prisoner's gender identity, sexuality or sexual identity.

Subclause (2) amends the principal Act by allowing the prisoner to request that an assessment under the section be made by a person of the same sex or gender identity as the prisoner.

8—Amendment of section 37—Search of prisoners

This clause amends section 37(2)(a) of the principal act so that if, during a search of a prisoner under the section, the prisoner is naked, the sex or gender identity of those present (other than a medical practitioner) must be the same as that of the prisoner.

Part 4—Amendment of Criminal Law (Forensic Procedures) Act 2007

9—Amendment of section 3—Interpretation

This clause amends the definition of intrusive forensic procedure to make reference to a transgender or intersex person.

10—Amendment of section 21—Forensic procedures to be carried out humanely

This clause amends section 21 of the principal Act to make reference to a transgender or intersex person. Reference to a person of the opposite sex is substituted with a reference to a person of a different sex.

Part 5—Amendment of Domicile Act 1980

11—Amendment of long title

This clause amends the long title of the principal Act.

12—Amendment of section 7—Capacity to have independent domicile

This clause amends section 7 of the principal Act to substitute masculine references with references to 'the person'.

13—Amendment of section 8—Domicile of certain children

This clause amends section 8(3)(a) of the principal Act to remove the reference to 'in wedlock' from the provision that concerns the domicile of adopted children.

Part 6—Amendment of Equal Opportunity Act 1984

14—Amendment of section 5—Interpretation

This clause amends section 5 of the principal Act to delete the definition of chosen gender. Other amendments to section 5 delete references to gender such as 'he or she'.

References in the principal Act to sexuality are changed to sexual orientation.

15—Amendment of section 6—Interpretative provisions

Amendments made to the principal Act by the clauses that follow substitute references to 'chosen gender' with 'gender identity' and 'sexuality' with 'sexual orientation'.

16—Substitution of heading to Part 3

17—Amendment of section 29—Criteria for discrimination on ground of sex, sexual orientation or gender identity

18—Amendment of section 30—Discrimination against applicants and employees

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

20—Amendment of section 32—Discrimination against contract workers

21—Amendment of section 33—Discrimination within partnerships

22—Amendment of section 34—Exemptions

23—Amendment of section 35—Discrimination by associations

24—Amendment of section 36—Discrimination by qualifying bodies

25—Amendment of section 37—Discrimination by educational authorities

26—Amendment of section 38—Discrimination by person disposing of interest in land

27—Amendment of section 39—Discrimination in provision of goods and services

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

29—Amendment of section 45—Charities

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

31—Amendment of section 85Z—Exemptions

These amendments are consequential.

Part 7—Amendment of Evidence Act 1929

32—Repeal of section 34H

This clause repeals section 34H of the principal Act.

Part 8—Amendment of Family Relationships Act 1975

33—Amendment of section 10A—Interpretation

This clause amends the definition of qualifying relationship to substitute the reference to 'opposite sex' with a reference to 'different sex'.

Part 9—Amendment of Guardianship of Infants Act 1940

34—Repeal of section 20—Power of woman to sue as next friend

Section 20 makes provision for a woman to be able to sue as next friend in relation to a child. The section is obsolete and is to be repealed.

Part 10—Amendment of Landlord and Tenant Act 1936

35—Repeal of section 44

This clause repeals section 44 of the principal Act.

Part 11—Amendment of Settled Estates Act 1880

36—Repeal of sections 48, 49 and 50

This clause repeals sections 48, 49 and 50 of the principal Act.

Part 12—Amendment of Sexual Reassignment Act 1988

37—Amendment of section 3—Interpretation

This clause amends the definition of reassignment procedure in section 3 of the principal Act to substitute the reference to the opposite sex with a reference to a different sex.

Part 13—Amendment of Summary Offences Act 1953

38—Amendment of section 81—Power to search, examine and take particulars of persons

This clause amends section 81(3)(d) of the principal Act to provide that if a person is to be subject to an intimate search, the search be carried out, where reasonably practicable, by a person of the same sex or gender identity as the person being searched.

Part 14—Amendment of Trustee Act 1936

39—Repeal of section 22

This clause repeals section 22 of the principal Act.

Debate adjourned on motion of Hon. T.J. Stephens.

At 16:12 the council adjourned until Tuesday 22 March 2016 at 14:15.