Bills

Equal Opportunity (Domestic Abuse) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:27): Obtained leave and introduced a bill for an act to amend the Equal Opportunity Act 1984. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:28): I move:

That this bill be now read a second time.

I introduce the Equal Opportunity (Domestic Abuse) Amendment Bill 2022. This bill will prohibit discrimination on the basis that someone is or has been subject to domestic abuse. It will aim to protect victims and their families in public life, including in employment, education, or when trying to access services or accommodation. This bill progresses a key election commitment made by the government as part of our strong policies on women's safety, equality and wellbeing.

I have worked closely with the Minister for Women and the Prevention of Domestic and Family Violence in developing this bill, as well as the Commissioner for Equal Opportunity, and I am pleased to present it to the council today. The bill amends the Equal Opportunity Act 1984 to add domestic abuse as a new protected attribute against discrimination. Under this proposed new legislation, it will be unlawful to treat someone unfavourably because they or their relative or associate has been or is being subject to domestic abuse.

This will prohibit scenarios such as criticising or otherwise treating an employee poorly because they took time off on domestic violence leave, and refusing to rent a property to someone because they are protected under an intervention order. It is important to note, however, that necessarily not all decisions in which domestic abuse is a factor will be considered unfavourable treatment.

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. A good working example of this being an important and necessary distinction is child protection work—the Department for Child Protection is mandated to protect all 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 of domestic abuse would not be discriminatory treatment of the child when the same decision would be made if the child was at risk due to another cause.

The bill will also prohibit what is known as 'indirect discrimination'. Indirect discrimination is found to occur when a general requirement is imposed that persons with a protected attribute—in this case, subjection to domestic violence—cannot comply with, or will find more difficult to comply with. For example, this might arise if a prospective landlord requires applicants to provide evidence of a recent rental history.

The requirement is imposed on all applicants; however, a domestic violence victim survivor may be unable to comply because they have been residing in 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 case.

The bill will prohibit discrimination in all areas of public life covered by the Equal Opportunity Act—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. As is stated in the Equal Opportunity Act, the bill provides that measures to benefit persons who have been subject to domestic abuse (or a particular kind of 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 child safety to be considered when selecting employees for 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 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 been put in place to address a risk of domestic abuse perpetrators misusing the new ground of discrimination. It is unfortunately not uncommon for perpetrators of domestic abuse to claim to actually be the victim and to attempt to manipulate people or services connected to the victim.

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 victims of abuse. The bill intentionally provides a broad definition of what can constitute sufficient evidence of abuse, including an intervention order, medical records, or evidence of seeking or obtaining assistance from a charitable organisation.

Stakeholder feedback on this bill was positive. There was strong support for the bill from across the community. 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.

The 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.

I commend the bill to the chamber and seek leave to insert the explanation of clauses in 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.

Debate adjourned on motion of Hon. H.M. Girolamo.