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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-06-03 Daily Xml
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EQUAL OPPORTUNITY (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 30 April 2009. Page 2580.)

Mrs REDMOND (Heysen) (17:23): I am pleased once again to begin, at least, my comments on the new equal opportunity bill, which was introduced into this chamber I think in November last year, so even now it has taken a fair while to get to this stage. I might say at the outset that today is the anniversary of my admission as a barrister in the Supreme Court of New South Wales on 3 June 1977, which is a few years ago, and it is the anniversary of the Eddie Mabo case 15 years after that.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: The Attorney says I obviously did not do a double degree, and that is absolutely correct, because I had to study at night part-time because, sadly for me, I graduated from high school before Mr Whitlam abolished university fees and my family could not afford my going to uni full time.

I note that not only is it my anniversary but it is also the anniversary of Eddie Mabo's case, which of course had a great impact on the entitlements of the indigenous people in this country and a long overdue recognition of many of their entitlements—but back to this bill.

The bill came in November last year, but it had had a long history before that, because the government introduced a somewhat similar bill in 2006, and that bill we opposed. We opposed it, largely because we felt that it would have an unfair impact upon small business. To start at the very beginning, we have had an equal opportunities piece of legislation in this state for more than 20 years. By the 1990s, the Liberal government had decided that that needed to be reviewed and it engaged Brian Martin, then QC, to undertake the review of the legislation, and he did that by about 1994.

Brian Martin is now the Chief Justice of the Supreme Court of the Northern Territory, methinks. He undertook a review which made some recommendations about that legislation. It then became part of a proposed bill in 2001 which was introduced by the then Liberal government. The Liberal government did not complete the bill and, of course, it lapsed when we went to the election in 2002.

We then got to 2006, and the Rann Labor government introduced its previous version of this bill and, as I said, the Liberal Party at the time opposed it. We made it quite clear at the time that we were opposing the bill, although we readily conceded that 80 per cent or thereabouts of the bill was unobjectionable. It was completely unobjectionable because, indeed, 80 per cent of the bill merely reflected what already was binding on every person in this state by virtue of federal legislation, so it would be a nonsense, therefore, to object to legislation which merely reflected what every person in this state was already bound to by way of federal legislation.

In that regard I point out that the following pieces of federal legislation already exist: the Disability Discrimination Act 1992, Racial Discrimination Act 1975, Age Discrimination Act 2004, Sex Discrimination Act 1984, Human Rights and Equal Opportunity Act 1986, Equal Employment Opportunity (Commonwealth Authorities) Act 1987 and Equal Opportunity for Women in the Workplace Act 1999. I think that, in terms of specific legislation dealing with equal opportunities as a general cause, that is an up-to-date list of the relevant commonwealth legislation.

We also have in this state, in addition to the Equal Opportunity Act 1994, the Racial Vilification Act 1996. So, there was already a fairly comprehensive regime of legislation covering all areas of the commonwealth including, of course, the people of South Australia and, therefore, as I said, 80 per cent of the 2006 bill was not of any consequence to us, because it merely reflected what was already contained in commonwealth legislation and already was binding upon every person in this state anyway.

Indeed, there would be some advantage—and that was the main benefit of the bill: there would be some advantage—in allowing the state to cover the field with the same legislation but offering a closer, simpler and possibly cheaper and better means of addressing the same problem but using the state system. So, 80 per cent of it was unobjectionable. However, we opposed that bill. Why did we oppose the bill? We opposed the bill, as I said, largely because of issues concerning small business.

I will cite a couple of examples. There were issues about not being able to discriminate on various grounds, including, for instance, the ground of where a person might reside. Upon inquiry from the equal opportunities commissioner, it was obvious that there was not really a problem with this. Conceivably, it might be possible that a person looking at an employment application might be prejudiced against people from particular suburbs—and that could work, I am sure, in both directions, be it from people who perhaps had businesses in high socioeconomic areas being prejudiced against people coming from low socioeconomic areas.

The Hon. M.J. Atkinson: Richer and poorer areas.

Mrs REDMOND: As the Attorney says, in common parlance, richer and poorer areas. It could equally be the case that someone running a business in a poorer area might be prejudiced about a person coming from a very well-to-do area. However, during our discussions, the equal opportunities commissioner conceded that there was not really a problem with this occurring, and it seemed to the Liberal side that, indeed, the problem with that piece of the legislation was that you could create a situation where it became an offence to prefer someone from your own area.

I for one have always endeavoured to provide employment locally where I could, whether I was running my own business prior to coming into this place or in the engagement of staff and, in particular, in taking on young trainees, I try to give local kids an opportunity. I am sure that many members of this place on both sides of the chamber do the same thing; that is, they try to give the local the job. However, if we had allowed the provisions of the previous legislation to go through as originally intended, then we would have faced the problem that that could be a difficulty.

Equally, there were provisions, for instance, that would make it an offence to discriminate against someone because of the nature of their employment. Now, as a rule, I would say that that is perfectly reasonable. I think that you should not discriminate against anyone personally, but I raise the—

The Hon. R.B. Such: Unless you are marrying them.

Mrs REDMOND: The member for Fisher says, 'Unless you are marrying them,' which is a cynical but, hopefully, in jest, comment from the member for Fisher. I put the proposition, for instance, that someone who was running a business which was being adversely affected because the parking inspector was being an absolute pain about pinging people with a parking fine as soon as they were 30 seconds over their limit, then that person running the coffee shop whose business was being adversely affected might readily wish to be fairly discriminatory about parking inspectors, and particularly that one, coming into the place.

There were those sorts of issues and it was largely those sorts of issues that created difficulty for us in the previous legislation. Some of the other issues that arose—and some of them have not yet been resolved—for instance, were that the equal opportunities commissioner had recognised that there was a sort of conflict for her in the current system inasmuch as she, first, has to attempt to mediate an outcome between the parties to a dispute, but if the matter is not successfully dealt with by mediation and she then has to take it to the tribunal, she has to represent the complainant. The commissioner herself, I am sure, recognises the difficulty of that conflict, and I am sure any lawyer would recognise the difficulty of the conflict of interest that created.

The solution proposed in the previous bill was going to be that, instead of that being the case, the commission was not going to represent the complainant at the tribunal, but the complainant was going to be guaranteed the benefit of legal assistance at the tribunal. From my personal knowledge, many of the people who become the respondents to tribunal matters are in situations where they are running very small businesses and they do not have the benefit of having regular income because they are running a small business and they have to pay their staff whether or not enough money is coming in, and they can be just as severely prejudiced by these proceedings as a complainant. Therefore, we saw it as unfair that a complainant was going to be guaranteed the protection of getting their costs met but a respondent to the proceedings, an employer—likely a small business— was not going to get that protection.

Basically, that was how we saw the problems with the original bill. There were also issues in the original bill which the Liberal Party decided were going to be conscience issues. Largely, the Liberal Party has a view that matters touching upon sex, sexuality, morals and religion will be conscience votes for our side. To that extent, whilst we can have a party position in general about this piece of legislation, I can indicate that there remain, even with this legislation, certain items which will be conscience issues for Liberal Party members.

I will move on to what then happened, because I have already delineated, without going into too much detail, given our new arrangements, the background as to why we opposed the original bill. We were not the only ones opposed to the original bill and there was a particular clause which was of considerable concern to particular parts of the community.

Indeed, in 2006, our colleagues in the upper house, the Hon. Andrew Evans and the Hon. Dennis Hood, as the representatives of Family First, received, I think, something like 8,000 signatures in petition and letter form, they received submissions, letters and emails and all sorts of things, and the particular concern was the consequences of what is generally called the Catch the Fire Ministries case, which had arisen in Victoria under the equivalent legislation there, although it actually has a different name. I will turn up the name of it, but there is a different name for the equivalent legislation.

Suffice to say, the circumstances of that case were that two pastors, Pastor Danny Nalliah and Pastor Danny Scot (the two Dannys, as they were known), were giving a seminar about the Koran. At the seminar, as I understand the circumstances, there were some 250 people who were basically people of a similar persuasion to themselves, Christians who had come along to learn about Islam. One of the pastors in particular did have quite a detailed knowledge of Islam and quoted quite extensively from the holy book of Islam, the Koran, in the course of the proceedings.

Unbeknownst to them, there were also present, I think, three people who were of the Muslim faith, and in due course an action was taken against the two pastors claiming, basically, that they had incited hatred under the equivalent legislation in Victoria, which had been introduced during the period of the Bracks government.

At first instance, the finding of the Victorian Administrative Appeals Tribunal (VCAT) was that yes, there had been a vilification, and that was appealed to the Full Court of the Supreme Court. The three justices in that court ultimately found that the pastors were not guilty under the legislation, but I think that they referred the matter back to the administrative tribunal for a new hearing on the evidence that had already been placed before it but before a different tribunal member.

Ultimately, although they were vindicated under the Supreme Court, it would have to be conceded that the relevant judgments are not particularly helpful in getting clarity about what they finally determined the law to be, and although the appellants' costs were in part paid by the objectors, they were significantly out of pocket for their legal expenses in the process.

The genuine concern about that particular piece of legislation and that particular case in Victoria, even though, in my view, it is not equivalent, was what led to the 8,000 signatures that were then either on emails, letters, petitions or other correspondence particularly sent in by Family First.

The Liberal Party position was largely opposition to the bill, to the 20 per cent of it which concerned small business, and, on those issues touching on sexual matters, morality matters and so on, we were going to have a conscience vote. There was this other group as well, and certainly some of the Liberal members agreed with the views expressed, that there was a concern about the section which was the equivalent of the Victorian legislation, or the nearest thing to it in our legislation, and a concern that that would inhibit freedom of speech.

My view is that it actually does not do that and that, given the findings on the Catch the Fire Ministries case, it really should not be a question. Nevertheless, the government then did its best to negotiate some terms which would be acceptable to both sides. Ultimately, we invited the government to bring the previous bill back into the house, but in fact, wisely, it took the bill away and redrafted it to remove or amend most of the things that we had found objectionable.

For instance, the Brian Martin QC recommendations from the 1990s were that children over the age of 16 should be subject to the anti-harassment legislation provisions, the sexual harassment provisions in the bill, and the bill introduced in 2006 actually provided that, instead of over the age of 16, it would apply the provisions of the legislation to anyone at high school.

We had an argument about that on the basis that it seemed to us to be unreasonable to expect a 12 year old child, for instance, to be the subject of the provisions of the bill. We took that view notwithstanding the fact that the bill did indeed provide that there had to be an attempt to settle the matter within the school in the first instance and that there could be no monetary compensation payable.

All of that said, the final situation was that the government then, as I said, went away and redrafted the bill so that most of the concerns, both our concerns about small business and the relevant clause that had been so troublesome to those who were worried about the Catch the Fire Ministries, were addressed. Indeed, with respect to the small business aspects, some of the provisions have been deleted and some have been amended. There are still a couple about which we have a bit of concern, but not anything too big. In the Catch the Fire Ministries case, they removed the provision that was offensive. So, it is no longer in the bill. Therefore, I would have anticipated that the bill should have a reasonably rapid passage.

I believe there are still some issues that need to be addressed, and it will come as no surprise to the Attorney that I will be taking some time to go through the detail of the issues, particularly when we reach the committee stage of the bill.

I want to mention the groups of people that have contacted me and various others in relation to the bill, because there are still some divided views. Representatives of Carers SA have contacted us. They, for very good reason, want to see this bill passed, and sooner rather than later. Carers SA, of course, is the body that represents carers, particularly carers who are caring for people with a disability in our community.

Nationwide, we have an extraordinary number of people who are covered by the term 'carer'. It is 2.5 million nationally and 223,000 in South Australia, and that is just the people who are family carers of someone with a disability. There are many other people who are carers who are not necessarily family carers and who are not necessarily caring for someone with a disability, so I suspect that the group of people is much broader than that. However, 2.5 million people nationally and 223,000 in this state are just family carers caring for family members with a disability, and their view is that they want to see this bill passed. Indeed, in a letter dated 11 February the CEO (Rosemary Warmington) and the President (Jan Wallent) said:

Carers SA has sought for some years now provisions in equal opportunity legislation on the grounds of caring responsibilities.

They went on to say that Carers SA has argued consistently that it is essential that family carers have their roles and responsibilities safeguarded whilst they undertake employment, education and other day-to-day activities at the same time as caring for people who have chronic illness, and so on. In their view, it is unacceptable that a person could be discriminated against just because they selflessly care for someone else. Indeed, they say that the carers in this state contribute an estimated $2 billion a year to the state's economy.

I have no doubt that that figure would be pretty accurate, because in my previous occupation I used to do a fair bit of personal injury work and some of that work was referred to me by the Public Trustee for people who were so catastrophically injured in accidents that they could no longer care for themselves and we used to have to calculate their care. For some people who did not have family to care for them it was going to be a very expensive exercise because, basically, family does what you really could not pay someone to do.

I know, from dealing with people who have been made quadriplegic, for instance—almost tetraplegic, indeed; people who have virtually no movement except for a slight movement of their head—that their family members are left to deal with every detail of their daily living, be that every sip of water they take, every mouthful of food they eat, every time they go to the toilet, every time they have to have a shave or have their hands washed or their fingernails clipped, or anything else.

One cannot comprehend until placed in that situation, or close to that situation—or, as in my case, having to observe and calculate the consequences of that situation—just how overwhelming and difficult that is. As I said, it surprises me not at all that Carers SA would estimate that the value they add to the community would be $2 billion a year. I would venture to suggest that it would, indeed, be considerably more than that amount. In this letter dated 11 February they state further:

We are...pleased to see that this bill makes it unlawful to discriminate on the grounds of caring responsibilities including indirect discrimination such as setting unreasonable requirements that are too difficult for a carer to meet.

Just by way of explanation, the nature of discrimination under this legislation can be divided into direct and indirect discrimination. Direct discrimination is pretty obvious. If I say, 'I'm not going to employ you because you're female, and I don't want to employ females,' that is obviously direct discrimination. But if I say, 'I'm not going to employ you because I only like to employ people who are six feet tall, or taller,' that would be indirect discrimination, because the vast majority of women do not reach six feet. That is just a very simple example of the mechanism that we refer to as indirect discrimination. The letter continues:

We also note and acknowledge that the bill provides protections at a state level for people with disabilities, mental illness, learning disabilities or illnesses such as HIV and Hepatitis C.

In due course, I want to explore in the committee stage exactly what disabilities, and therefore which carers of what disabilities, are protected by the legislation. Carers SA points out that this, in its view, will be a useful complement to the SA Carers Recognition Act 2005 and the SA Carers Policy 2006. SA Carers correctly points out:

Carers are amongst the most vulnerable of our society: they need all the support they can get.

Changes in the culture of the workplace...that enable a work/life balance are required if carers are to thrive within a caring community.

I think that same statement would probably apply to anyone with a disability in our community. They are more vulnerable. It is more difficult for most people with a disability to gain employment. However, once they do gain employment, they are usually such conscientious and good workers that often they are the best and most reliable workers that a workplace has. So, once people overcome their initial fear of employing someone with a disability, they often find that they are good. I am sure that the same would apply to carers. They are already dealing with far more than the average person and therefore they will likely be very well organised and extremely conscientious.

At the other end of the spectrum, of course, we may have people who simply want to avoid work by claiming the benefit of caring responsibilities. It is striking that balance correctly so that we protect our most vulnerable but do not allow people to get unnecessary benefit under this legislation that we need to address today. I seek leave to continue my remarks.

Leave granted; debate adjourned.

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