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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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EQUAL OPPORTUNITY (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

An honourable member: Where is the minister?

Mrs REDMOND (Heysen) (19:31): I am curious about where the minister is, but I guess we will not pay any attention to that. I am pleased to have the opportunity to resume my thoughts and deliberations on this magnificent bill. Just prior to the break, I was talking about the letter I received in February from the Carers Association and that that association's interest in seeing this bill pass both houses, it having being profoundly disappointed that the previous 2006 iteration of the bill had not succeeded. I am hopeful that the bill will pass.

On the issue of caring responsibilities, one of the issues that we raised in discussions with the government during 2007 and into 2008, when there were considerable and quite productive negotiations between us about our problems with this bill, was that sometimes it will be very difficult for an employer, no matter how fair minded, to continue to allow someone with caring responsibilities the freedom necessary for them to continue their caring responsibilities whilst at the same time maintaining their position of employment.

One can readily imagine, of course, that a person who has caring responsibilities, particularly someone caring for a person with significant disabilities, may well find that it is very difficult to maintain normal employment hours. Before the break, I think I commented on the fact that, in my experience, people with disabilities who eventually gain employment are often the very best of employees because they are extremely conscientious and often love the fact that they have the job, the status and the feeling of self-worth that comes from having employment, which often has been denied to them for many years. So, the people who are the most vulnerable may indeed turn out to be the best of employees. However, that said, there is nevertheless a concern that freedom from discrimination in employment, particularly if it applies to every person who has caring responsibilities, could lead to a situation where employers are left literally in the lurch in terms of actually getting output from their business premises.

The caring responsibilities being inserted in this bill are, in fact, a new ground of discrimination in this state. They have been worded in this bill to match what is found in the commonwealth Sex Discrimination Act (that is, the immediate family members) and they also have been broadened to caring relationships under Aboriginal kinship rules.

The house would be well aware from my previous statements on various matters that I had, over a period of years, considerable involvement with parts of the Aboriginal community on the far West Coast, and I am certainly well aware that it would be unreasonable for us to insist that the only people whose caring responsibilities one could have recognised were those applicable to what they would call white fella rules and not recognising Aboriginal kinship rules. So, I have no difficulty with the idea that the definition of the caring relationship to be protected by this legislation should be extended to include Aboriginal kinship rules. So, the definition of who is protected is now basically the same as set out in the commonwealth legislation, and I think it might slightly extend the kinship for Aboriginal people, which is fine.

The other major area in which the commonwealth legislation and the proposed state legislation vary is that the commonwealth legislation only protects against dismissal whereas the state legislation, as proposed, will protect against discrimination for people with caring responsibilities for all people with caring responsibilities as defined in the act for all the areas covered by the protection of the legislation—that is, not just for employment but for the provision of goods and services, education, clubs and housing, including boarding houses and the like.

I welcome the fact that there has been some movement in the area of caring responsibilities. As I said, the letter from Rosemary Warmington on behalf of Carers SA indicated that they were very anxious for this bill to proceed, but they represent just the people with family caring responsibilities for people with a disability. The definition of the people they represent, therefore, is relatively narrow compared with the definition as it seems to appear in this legislation. It is certainly not as broad as it was in the 2006 bill.

The 2006 bill was going to apply to any person who had responsibility to provide continuing care to another person regardless of relationship. As I see it, there are two problems with that. Firstly, I think the nature of continuing care would be problematic. There could be many circumstances where someone might have caring responsibilities, but does one define 'continuing care' as 24 hours a day, seven days a week? Does one define 'continuing care' as having to have daily attendance on a person? Does one define 'continuing care' as having to go for a particular period of time to care continuously for someone? There could be any number of interpretations of that concept.

As to the issue of caring responsibilities, I think personally that the bill has the balance about right. As I said, it basically uses the definition of the caring relationship which is found in the commonwealth legislation and, therefore, that part of it is already binding on everyone in this state in any event. So, to that extent, I think that the bill gets the balance about right, and I indicate the support of the Liberal side of the house for that particular provision, although I note in passing that when we get to the committee stage of this bill, it will be an area which I will want to explore in some detail because, on reading the definitions, it seems to me that the way the bill is worded is relatively broad.

I will make reference to a couple of things because 'caring responsibilities' is actually given its own provision. It is quite general in terms of where it will apply. I indicate that we want to explore that in due course at the committee stage.

The next major change in the current bill, as compared with the 2006 version of the bill, is the removal of what was to have been a new ground of unlawful discrimination under the 2006 bill, and that was discriminating against someone on the basis of their profession, trade and lawful occupation. I note the use of the word 'lawful' in that but, as I said earlier, there could be any number of reasons why someone, as an employer or a business proprietor who is dealing with customers and so on, might legitimately want to discriminate about that particular issue.

I also mentioned earlier the issue of area of residence and, again, I thank—

The Hon. M.J. Atkinson: You did and you were particularly convincing on it.

Mrs REDMOND: I thank the government for removing that provision from the bill because, as the Attorney says, I was particularly convincing on it when I mentioned it earlier because I am sure that many of us (if not most of us) do actually discriminate—and probably discriminate in favour of, but discriminate nonetheless—towards someone from our own areas when we are employing people. I welcome the government's position in relation to that matter.

This new bill has another major difference with the bill which was introduced in 2006. That 2006 bill did not progress finally through its committee stage in this house, although I think from memory it did reach the committee stage. We had progressed through the second reading but we never got past clause 1 in the committee stage. The next major area of difference is that of chosen gender. This is an issue about which those on this side of the house will have a conscience vote, so I indicate that my comments on this issue are mine and mine alone and do not represent the views of my party.

The Hon. M.J. Atkinson: How appropriate that we should discuss this just after the death of Danny LaRue.

Mrs REDMOND: The Attorney states that it is appropriate that we should discuss this just after the death of Danny LaRue and I indeed agree that it is appropriate that tonight be the night that we discuss that. I had not realised because I missed that tiny bit of the news. I saw a picture of a very elderly man who passed away and I was unable to identify him in the snippet of that particular segment of news that I caught at the end of a phone call. The Attorney has now filled me in on that and I now understand why that particular person's face was on the news tonight. He was looking so elderly that I did not actually recognise him as Danny LaRue, so I think he must have lived to a pretty good old age.

Chosen gender, of course, is a technical amendment more than anything else in my view but there are, no doubt, those who will see that somewhat differently. In times gone by, of course, we only recognised people who were male or female. We did not have room in our terminology or, probably, in our collective consciousness for anyone else, but we now know that there are people who are transgender and there are indeed people who are born with indeterminate gender who end up making a choice one way or the other.

There are people who are born to one gender, who feel that they have been born with the physical attributes of one gender, but feel as though they are of another gender, and indeed I have had more than one client who has been in that situation over the years of my legal practice. I represented more than one person who found themselves in that circumstance.

I remember many years ago coming across a situation where a married man decided ultimately that he should have been a female, and he proceeded to have a sex change operation. As I understand it, the process actually involves a considerable amount of time because normally there is psychiatric assessment, then there is hormonal treatment and all sorts of other things that go on before any actual surgery in that regard, but somehow this chap had come through the system without anybody bothering to ask him about his marital status, and he was still married.

That created a very interesting legal situation, and I am sorry to say that the solicitor with whom I worked on that particular issue and I were never able to come to any satisfactory conclusion about the status of that marriage.

The Hon. M.J. Atkinson: Alas, the Federal Court has had something to say about that recently—for the worse.

Mrs REDMOND: The Attorney says that the Federal Court has had something to say about that recently, but I am talking about 25 years ago. It was certainly a novel situation at that stage, and I am sure that it would rarely happen that someone would actually get right through the system without anyone asking the question about marriage and stopping to think, 'Well, maybe there is a complication with this,' because we end up with two people who are lawfully married and the marriage laws recognise it and yet they are both female and we know that in this country that is not recognised.

The other situation I came across was at what was called the PETS seminar, the Presidents Elect Training Seminar, when I was about to become the president of my Rotary club in the year 1999-2000 and, quite frankly, I got the giggles at this particular thing. By way of background, I will explain that Rotary International began in 1905 in Chicago with a lawyer by the name of Paul Harris and a group of other people in Chicago starting a club which rotated its meetings from one home to the other—hence, the name 'Rotary'.

That organisation had been a male-only organisation until about 1986 or 1989 and it was thereafter changed at an international level to allow women to become members, but there were a number of men-only Rotary clubs which had been in existence for many years which were extremely resistant to the idea of having female members.

Indeed, my own club was extremely resistant to the idea of having any female members. It took them five months to decide that they would invite me to become a member, and I am still a member 15 years later. What is more, I am not the only female member any more and female members are very welcome these days. I do not know of any Rotary clubs in this country, anyway, where female members are no longer welcome. However, back when I was in my training seminar to become a president of Rotary, a couple of things happened.

First of all they said, 'Being president of your Rotary club has to be your number one priority' and I said, 'Well, no, I have three children—they will be numbers one, two and three in no particular order—and a husband. He'll be number four; he is a bit more capable of looking after himself. I do have a job and I'm the breadwinner for the family so that's going to be number five and I've been on the hospital board in Stirling for a long time so that better be number six.'

I had about seven or eight different things that I said would take priority and, if they were not satisfied with Rotary being somewhere at about nine or 10 on my priority list out of all the numerous things that I had to do then I was not the right person to be their president, but they decided that they would let me get away with that.

However, relevant to this, they then told a story which—because there were no other women there, I suppose—no-one else in the group found funny. One of these Rotary clubs that had an absolute set against having female members happened to have amongst its members a man who decided that he had been born in the wrong body and he should become a woman.

He was already a member of this club and, as the weeks wore on, he began to acquire some unusual characteristics. Eventually, he began to wear a dress to the meetings. Of course, this Rotary club was quite horrified that it suddenly this person amongst its members. They had no basis for terminating his membership, but they certainly did not want women in their club, and they were perplexed.

This was a proposition in relation to some of the problems that could arise for a president. When I started to laugh at the club's predicament, no-one else seemed to think it was very funny. I think it is a funny because I think that I am fairly relaxed about such things. I know that people who describe themselves as transgender or transsexual or who think that they have been born into a male body when they feel they are female, or the reverse—a female body when they feel they are male—are not in any way behaving like that because they want to do so. They are doing it because of an inner drive that often takes them many years to deal with.

At the end of the day, I do not think that anyone can be blamed for following their heart, their soul or whatever terminology anyone wants to use; what they truly believe themselves to be must be the primary determinant. So, I do not have any difficulty whatsoever with the provisions of this legislation applying to the issue of chosen gender. I think it is inappropriate to discriminate generally against anyone, and I certainly support and endorse the idea that those of chosen gender should not face discrimination on the basis of that chosen gender, be it for any number of reasons, such as employment or provision of goods and services and so on.

However, there is a slight twist to all this when we get to the end of the discussion and the issue of sports clubs and so on; suffice to say, I have no difficulty with it. As I understand it, the provisions in regard to chosen gender are the same as those in the 2006 bill. In that bill, as in the current bill, the Liberal Party, had a conscience vote, so it is not an issue over which we sought to negotiate any change with the government because it was, and probably always will be, a conscience vote for those of us on this side of the chamber.

The next major issue is religious dress or adornment. This is a somewhat puzzling matter for me because, in essence, what the law is designed to say is that it will be unlawful to discriminate against someone, in employment or education at least, on the basis of their religious dress or adornment but that it will not be unlawful to discriminate against them on the basis of their religion.

Again, I indicate that this is a conscience vote for those on the Liberal side of the house; therefore, the following comments are mine and not those of my party. It strikes me as particularly perverse that we would put into our legislation that it is unlawful to discriminate against someone because they are wearing a crucifix but that is not unlawful to discriminate against someone because I say, 'I hate Muslims, I hate Jews', or I hate whomever.

As I said, that seems perverse. It would make more sense for it to be just as unlawful to discriminate against someone on the basis of religion as it is to discriminate against someone on the basis of religious dress or adornment. Of course, 'religious dress or adornment' can incorporate any variety of things. It can be anything from a small crucifix to the full Muslim dress of the hijab.

The Hon. M.J. Atkinson: You don't see many of them up in the Hills.

Mrs REDMOND: The Attorney is right: we do not see many of them up in the Hills, although in Stirling it would probably be a very sensible mode of dress in winter because it would probably be much warmer than what most of us wear up there.

The juxtaposition of those two propositions seems to be problematic; that is, I can lawfully say to someone, should I so choose (not that I would), 'I hate Muslims, and I'm not going to give you a job because you're a Muslim and for no other reason.' That is perfectly lawful, even if they are by far the best person for the job and everything else is equal.

However, it would not be lawful for me to say, 'I don't approve of the way you are dressed because you are wearing a crucifix, and I'm not going to give you a job because I do not like people who wear crucifixes; if you want to wear that, you can't have this job.'

That seems to me to be inconsistent. The bill does provide some exceptions to this provision, so there will be some circumstances where a person can be required not to wear particular religious dress or adornment. So, for instance, a religious school—say, a Catholic parish school—could require that students who are Muslim not wear their Muslim dress to the school. As I understand the provisions, there is nothing to prevent them from therefore prohibiting the Muslim from attending the school, should they choose to do so, but the exemption means that they are allowed to stop them from wearing Muslim dress to school.

The Hon. M.J. Atkinson: Which they probably wouldn't.

Mrs REDMOND: As the Attorney says, they probably wouldn't, but the Attorney and I have both had teenagers, and we know only too well that sometimes teenagers can be just as perverse as their parents and can decide to test the limits on any number of issues. Whilst when I was at school it was long hair and things like that, it has become somewhat more diverse these days.

So, schools are going to remain at liberty to forbid students who belong to a different religion from wearing their particular religion's adornments at the school. Similarly, if a young Christian were to go to the Islamic College of South Australia, whose bus I see travelling up the freeway quite frequently—

The Hon. M.J. Atkinson: There are two: the Islamic College at West Croydon and the other is Burc College at Gilles Plains, and a Turkish husband and wife from Murray Bridge each drives a bus to the different schools.

Mrs REDMOND: The Attorney is well informed about the Islamic faith in Adelaide and informs me that there two schools. I have seen a bus (I do not know whether it is one or more) quite full of students going up and down the freeway at various times.

So, should a Christian student go to an Islamic school, then the Christian at that school could be barred from wearing a crucifix, should the school choose to bar that. That is the first exception to the rules about religious dress or adornment.

The second exception is that employers may set reasonable standards of dress for their workplace. It will be obvious that there are many workplaces, particularly industrial workplaces, where certain clothing would simply be unsuitable for the type of work to be done, particularly around machinery. I remember many years ago acting in a very sad case with a young widow whose partner had been killed. He was choked to death simply because he was wearing a shirt. The shirt ends were flapping out and they were caught in an augur at a mining site, and he was choked to death. So, dreadful, dreadful accidents can happen, and sometimes they can be because of the type of workplace.

We are all aware, for instance, of the need to have hair tied back in numerous places. So, employers may set reasonable standards of dress for their workplace. I will be exploring this, however, as well when we come to the committee stage, and I am sure the Attorney is looking forward to the committee stage of this bill, and there will be issues about what are reasonable standards. As I said, I have no difficulty personally with it. Reasonable standards in an industrial sense I think will be easy to identify. But what if a café proprietor, for instance, thinks that someone wearing full Muslim dress will be a bit off-putting for his customers? Is it reasonable in that circumstance for an employer to say, 'I don't want you to wear that particular clothing in this workplace. There is no safety issue, but I think that will be off-putting to my customers.'? Is that a reasonable standard of dress?

I think, for instance, if an employer were the proprietor of a café in Adelaide rather than on the Gold Coast or somewhere like that and an employee turned up to work in a bikini, it might be reasonable for an employer to say, 'That is not a reasonable standard of dress for this employment.' That, obviously, is not captured by the question of religious dress or adornment, but I raise it simply by way of example to ask how we will determine what is a reasonable standard of dress for the workplace.

Again, calling on my many years of experience from the 32 years ago today when I became a fully-fledged member of the profession, I remember a case with a professional firm which decided that one of its employees, who was a perfectly good employee—a middle aged lady; there were no problems with her—was a bit frumpy and did not fit its corporate image because of her dress, and it wanted snazzy youngsters who fitted its corporate image. We had this big question whether it was lawful to discriminate against someone—they would not renew her contract, and they made it quite clear that that was the only reason—because they were a bit of a frumpy dresser.

There was no issue of safety, propriety, modesty, or anything like that. This lady was perfectly clean, well-groomed, but they considered that she was a bit frumpy and therefore did not sit nicely with their new young corporate image. Would that be reasonable standards of dress for the purposes of this legislation? The question I would ask is: is it going to be reasonable for a cafe proprietor to say, 'Well, I don't think that my customers are going to feel comfortable with someone who is in full religious garb of whatever religion it might be.'

The other exemption to this discrimination provision on religious dress or adornment is that a person may be required to show his face for the purpose of reasonable identification. I think that this has come into the bill because of the proposed amendment by the member for Fisher during the debate on the 2006 bill. As I said, the committee stage never got beyond the stage of consideration of clause 1, but I am pretty sure, from memory, that the member for Fisher had submitted a proposal to the effect of what now appears in the bill; and that is, 'a person may be required to show his face for the purpose of reasonable identification'.

We are all aware, for instance, when we walk into a bank of the requirement for cyclists to remove their helmets, and I think we are all quite used to that. This provision will make it lawful for a bank to put the same requirement onto a person who is wearing a face covering headdress so that there can be reasonable identification within the premises of a bank. The fact is that, internationally, there have been cases of men disguising themselves as women by wearing full Muslim dress.

The Hon. M.J. Atkinson: There have been cases of men disguising themselves as nuns.

Mrs REDMOND: The Attorney says that there have been cases of men disguising themselves as nuns. As I said, those are all reasonable exemptions to this. I still find the provision itself to be odd. Not that I object to the provision, just that I find it odd that it will be lawful to discriminate against someone on the basis of his religion, but not lawful to discriminate against someone on the basis of his religious dress—

The Hon. M.J. Atkinson: You know what you can do: you can move an amendment.

Mrs REDMOND: —unless it comes within (a, (b) or (c). As the Attorney suggests, I am free to move an amendment. My recollection is that, on the last iteration of this bill, the member for Mitchell moved such an amendment. As I said, it will be a conscience vote for those of us on this side of the chamber.

The Hon. M.J. Atkinson: So, the whole thing will be a conscience vote—every clause.

Mrs REDMOND: No. So far, of the matters I have discussed, Attorney, I have identified two clauses, and this is one of them on which there will be a conscience vote.

The Hon. M.J. Atkinson: So, what of the other clauses? They're party votes.

Mrs REDMOND: Yes.

The Hon. M.J. Atkinson: I thought you didn't have party votes.

Mrs REDMOND: The Attorney says he thinks we don't have party votes, but we do, obviously. The next issue which I see as a major change from the previous bill of 2006 is that there has been a broadening of an existing ground of discrimination. At the moment, it is unlawful under the Equal Opportunity Act 1984 to discriminate against someone on the basis of marital status. The proposal under the new bill is quite straightforward really. All it does is broaden that ground of discrimination to include domestic partners as defined in the domestic partners reforms of 2007, and it makes every good sense that we should, in putting this bill through, incorporate that new concept.

I come at this issue from two basic positions. I have no objection to it whatsoever in the form that it appears and, indeed, I can tell members that I was the subject of discrimination on the basis of marital status many years ago when I was seeking finance for my first home, which I bought when I was 21 and I certainly was not married. I had not even met my later to be husband, but I bought a house. While the Labor Party might thank me, the Liberal Party wants to put a knife in me because I sold the house to Frank Sartor. Frank Sartor thereby became involved in a residents' action group. Thereafter, becoming the mayor of South Sydney council, which then amalgamated with Sydney council. He went on to become the Lord Mayor of Sydney and is currently the planning minister in the Labor government in New South Wales—and it is all because I sold him my house.

While people on the other side might thank me for that; that is, for getting him involved in politics—mind you some people on the other side might not thank me for it. Indeed, I spoke to some Labor members in New South Wales a week or so ago and they did not thank for me for it. In fact, I saw Frank while I was in Sydney last week. He bought my house—

The Hon. M.J. Atkinson: So, is he going to become premier or is he going to leave Rockdale?

Mrs REDMOND: The Attorney-General wants to know whether is he going to become premier or is he going to leave Rockdale. I do not know that the two are necessarily mutually exclusive.

The Hon. M.J. Atkinson: They are; he is the member for Rockdale.

Mrs REDMOND: Yes, I know, but I do not think that precludes him from being the premier.

The Hon. M.J. Atkinson: No, it's not what I'm saying. Is he going to move up to the premier or is he going to give up politics and cause a Rockdale by-election?

Mrs REDMOND: I don't know. The house that I sold him was not in Rockdale. The house that I sold him was in Newtown, or, as I used to call it, Newtown Heights, which made it sound a little bit upper class, when, in fact, it was a slum at the time. I do not know that it matters where that house was, but nevertheless I am to blame for Frank Sartor entering politics.

As I said, I have been the subject of marital discrimination on the basis that when I tried to buy my first house I was single and the bank would not lend me money and thereafter, indeed, when I tried to buy the next house by then I was married and the bank would not lend me money because I was now married and therefore I was going to have children. So, twice I have had that discrimination.

Indeed, I suspect that of those members in this house I have actually suffered a fair bit of discrimination over the years. I was denied my career at first by my own mother, because I wanted to study law. The member for Bright looks questioningly at me about this but, yes, when I was about 15 or 16 my screaming battles with my mother were because I wanted to study law. A generation later, people cannot conceive that if you have a daughter who is quiet, studious and academic, wanting to study law, that would be anything other than a good thing.

Ms Fox: What did she want you to do?

Mrs REDMOND: My mother wanted me to be a nurse or a teacher, because my mother had been denied her education because of the Depression and she was aspirant, in the sense that she wanted me to finish high school and go on to have some sort of career, but her aspirations certainly did not extend to going to university, because no-one from where I grew up went to university. We did not even know any lawyers. So, being a lawyer was something that was just unthinkable to her. In due course, once I was about halfway through my night-time course, she became very proud of the fact that I was studying law, so it was never an issue between us after that.

Then an assistant crown solicitor in Sydney, one Arthur Knox, now deceased, said to me quite blatantly, in my young days before I graduated, 'I don't think women should be lawyers, and if they are going to be lawyers I'll make sure they do nothing but conveyancing.' Indeed, even in getting in to the course that I undertook, having been good enough to be admitted to Sydney University Law School and to the brand new University of New South Wales Law School, I was unable to take up those places because of the financial circumstances pre-Whitlam getting rid of the fees for university, so I went to a second-rate night-time course.

When I applied to go into that course I was initially denied entry into it and it was only when I went through my local member of parliament and inquiries were made that I was then admitted to the course. I subsequently found that a lot of young men in that course had literally half my pass mark but they got in to the course on their very first attempt because they came from good schools and good families.

So, as I said, I think that in talking about discrimination I probably come from a position where I have—in spite of my good health and no particular problems in my life—understood what it is to be discriminated against and how unfair it is to feel that edge of discrimination.

The Hon. S.W. Key interjecting:

Mrs REDMOND: That is right. The member for Ashford talks about the height requirement. Indeed, there were height requirements in those days. You were not allowed to be too short or too tall or left-handed if you wished to enter the teaching profession.

Ms Fox: No!

Mrs REDMOND: The member for Bright is so young she does not remember these things.

The Hon. S.W. Key interjecting:

Mrs REDMOND: Indeed, you could not be a married woman. You could not be left-handed. To the point where my history teacher, with whom I still correspond, writes left-handed in books but wrote right-handed on the blackboard because you had to write right-handed lest you might infect young minds with writing with their left hand. Of course, writing left-handed was a no-no as well. So, all the poor children who were naturally left-handed had that slapped out of them and that was how school was.

So, you were not allowed to be too short, too tall, left-handed or a married female, you could be a married man but you were not allowed to be a married woman, to be in the teaching profession.

The Hon. M.J. Atkinson: So, how tall are you?

Mrs REDMOND: How tall am I? I am five foot two, eyes of blue, Attorney. So, in that sense I say bravo to this long-awaited extension, not just about marital status but the broadening to domestic partners. That said, however, I still say that the broadening of domestic partners has taken us to the other end of the spectrum where it is a nonsense, so that my 25 year old son, should he leave home and flat with a mate for three years, could be, and would be, deemed to be a domestic partner. Therein, I still say that we took it to the nth degree and it was all to avoid the issue of homosexual couples.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: As the Attorney reminds the house, it was the Lion of Hartley, and indeed it was the former member for Hartley who came up with the proposal of recognising domestic partners even though they are not in any sort of relationship other than that they share the same dwelling, as a way to avoid having to give recognition to same-sex couples.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: I did on that particular issue. We had a conscience vote. The Attorney does not realise that I am actually quite a liberal Liberal, with a small 'l'. I have no difficulty at all with the extension of marital status to include domestic partners, other than that longstanding issue where I think we just took it a degree too far, more than was necessary. We should have just said that we will recognise heterosexual couples and homosexual couples. That is as I would see it.

I do have one letter, and I want to quote from it. No doubt all of us have had countless people contact us about this. I will not name the person. I received this particular document which essentially complains. It states:

Many gay and lesbian couples, including HIV positive people in a same-sex relationship on income support from Centrelink will be severely financially affected by the changes in federal law coming into effect in July 2009.

It goes on to say:

While there are many benefits to same-sex couples as a result of the changes in law, those on Centrelink benefits and previously viewed as individuals, and paid as such, will lose $190 a fortnight when paid as a couple.

Welcome to the world of equality is what I say to that. During the domestic partners relationship debate, I tried to point out to the house that it was not just about giving gay people rights: it was indeed imposing on gay couples, just the same as on everyone else, the same obligations. I recall talking at the time about obligations of disclosure in relation to company loans and so on which did not apply if your partner happened to be gay but did apply if you were married or a heterosexual de facto couple.

I think equality cuts both ways. I have no difficulty at all in according gay couples the same rights as everyone else in the community, but I have to say that, in my view, with that must go all of the obligations that go with every other couple. So, in many ways, our failure to address the issue earlier simply allowed gay couples to have a benefit that no-one else in the community was able to have.

Years ago, I used to advocate the idea that it would be smarter not to be married if you were in receipt of a pension, because two single pensions clearly equated to more than a couple's pension—and it still does—but these days that has been well and truly covered over. However, it is only now that we see Centrelink signs around indicating that every couple is going to be treated as a couple that the full effects of this particular change is going to be understood by everyone to mean true equality.

The next issue is the onus of proof. When I say 'the next issue', it is in the next issue that I have identified in going through the 2006 bill and comparing it with the 2008 bill. The 2006 bill proposed that, in the case of indirect discrimination, it would be up to the employer to prove the reasonableness of the requirement. I will use the example that I used before the dinner break where an employer sets a height limit on a particular job and says, 'We're only going to employ people over six feet tall,' to use the old money, because I have no idea how tall that is in centimetres. Indeed, whenever I hear on television about—

The Hon. M.J. Atkinson: An alleged offender.

Mrs REDMOND: —an alleged offender, and they say that he is—

The Hon. M.J. Atkinson: Look out for a person who is 186 centimetres.

Mrs REDMOND: As the Attorney says, when they say 186 centimetres, I have no idea whether that is a dwarf or a giant. It just does not compute with me. If they said six-foot tall, I would know what they were talking about. Six-foot tall and slim—yep, I know what I'm looking for.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: There was no accident there, Attorney. Under the 2006 bill, if an employer imposed that six-foot tall restriction, for instance, and a female who was five foot nine (or some gracious height like that) came along and wanted the job but was told that she could not have the job—whether she was told directly because he was discriminating against her or because she was a female and he wanted to keep females out of the workplace so he set this ridiculous provision—it would have been necessary for the employer to then prove on the balance of probabilities that the requirement was reasonable.

There could be circumstances where height is, indeed, necessary to do particular jobs. It could be because of the job or because of the equipment that has to be used. There may be strength requirements with a job. There could be all sorts of legitimate reasons, but the current act—the Equal Opportunity Act 1984—simply provides that the discrimination, if it occurs, is unlawful and it is up to the complainant to establish that the discrimination occurred and that the requirement imposed by the would-be employer was unreasonable. I am pleased to see that the government has seen the good sense of that and left that provision as it was; that is, there will be no change, as I understand it at least, from the provisions in the 1984 act on the issue of the onus of proof so far as indirect discrimination.

The next notable difference between this bill and the 2006 bill is probably the most controversial, and that is the right of religious institutions to discriminate on the basis of sexuality. The current legislation—

The Hon. M.J. Atkinson: Is this a conscience vote in the Liberal Party?

Mrs REDMOND: The Attorney asks whether it is a conscience vote in the Liberal Party. I indicate to the Attorney that, yes, it has been determined that it will be a conscience vote for the Liberal Party, therefore the views expressed on this issue henceforth are my views, not those of the party.

The present legislation is relatively broad. It allows any religion-based institution to discriminate if the discrimination accords with the precepts of the religion. So, most commonly, it is thought of in terms of people who may have a sexual preference not in accordance with the precepts of the religion.

The Hon. A. Koutsantonis interjecting:

Mrs REDMOND: The member for West Torrens suggests that only I would be talking about this. The member should have been here the day the Attorney and I were dealing with the niceties of what constitutes consent in rape cases: that was a very delicate stepping through of a discussion. As I was saying before the member for West Torrens interrupted me briefly, the right of religious institutions to discriminate on the basis of sexuality is most commonly a problem for religious schools that have a view that homosexuality, or at least living a homosexual lifestyle, is against the precepts of their religion, and they do not want to have people engaged in their organisations because of that difference between the homosexual person and the religious organisation.

The current provisions apply to all religious-based institutions; that is, such things as schools, hospitals and aged care facilities. The current bill reduces that exemption so that it will apply only to schools, and the schools will have to meet certain criteria for the exemption to apply. In particular, the school will require a written policy to that effect, and that policy has to be made available. I think in one proposal, it was necessary that the policy was available on the internet, and that has now been removed.

The Hon. M.J. Atkinson: What do you say about that?

Mrs REDMOND: I am quite comfortable with that. I have had a long discussion with the Association of Independent Schools. I have received a letter from that association in relation to its position on this issue. As I have said, I suspect that this is the most contentious aspect of the whole debate. I will turn first to the other group. I have had an approach from Christian Schools Australia, and that organisation basically points out, as follows:

Currently, section 50(2) of the present law broadly 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 that discrimination is founded on the precepts of the religion. This applies both to the employment of staff and the provision of education and reflects the importance of religious freedom and its foundational role within faith-based schools.

Christian Schools Australia then goes on to talk about the fact that the proposal is basically to remove the exemption (I do not think it actually removes the exemption; I think a better way to put it is to say that it narrows the exemption) and replace it with a modified exemption in relation to the employment of staff. My recollection is that the employment of staff must be only in the schools. It means that the discrimination cannot lawfully occur, for instance, in terms of an openly gay student or an employee in a hospital or an aged care facility. So, it does narrow the scope of the definition. In its letter to me, the South Australian state office of Christian Schools Australia (and I thank that office for taking the time to write to me quite extensively about this matter) states:

As a result of these changes, a school would potentially be in breach of the legislation if it were to provide moral teaching consistent with the values of parents in the areas of sexuality, chosen gender, marital status, etc., given the broad ranging definition of detriment in the act.

In bold, it goes on to state, 'This very clearly strikes at the heart of a faith-based school.' Christian Schools Australia goes on to put its argument on the basis that the teaching within the school incorporates not only the formal curriculum but also the modelling provided by teachers and student leaders.

As I understand the situation, because the exemption will apply to the employment of teachers, the schools would maintain control over that aspect. During the briefing, I think there was some discussion about what the school would do if it had already employed a teacher before it had published this policy. One can hardly unilaterally change a contract, whether it be a contract of employment or anything else. If a school decides that, because of this legislation, it will now adopt a policy, which it has written and put on its website and so on, but the school has already employed, unknowingly perhaps, a teacher who is openly gay or has employed someone not only without the school knowing them to be gay but without that person being prepared at that stage to confront that issue themselves and later declaring themselves to be gay, where does that leave the school in terms of this legislation?

Even though there could be a breach if they were to discriminate, presumably there could be an action for breach of contract were they to dismiss someone who had not been engaged specifically on the basis of an assurance that they were not gay but had just been engaged before those things were ever an issue.

However, the argument that Christian Schools Australia basically wants to put is that it is just as important for them to maintain their right to discriminate against an openly gay student. When I say openly gay, I am using that as a term simply because there could be people within the school who are gay but the school never finds out, and I am talking about circumstances where the school actually becomes aware that not only the student is gay but other people are aware that that student is gay.

They want to argue basically that they want to maintain the right to discriminate against gay students because of the student leaders often having a mentoring role to younger students and being able to provide important peer role models, which they say has equal if not greater influence on students than school staff. Again, I am using gay students only as an example because it could be some other sexuality that is problematic for them.

So, they feel that the narrowing is too great and that this legislation should remain broader. They say that—and I agree with this—overwhelmingly, Christian schools seek to pastorally care and support students within their situations; however, on some occasions though, this process does not lead to positive outcomes and the students continue to act in ways inconsistent with the normal school requirements. The school must be permitted to act in accordance with its normal policies in these situations.

My view—and the Attorney has been calling across the chamber what is my view—is that the proposed legislation is getting the balance about right, and I do not accept the argument of Christian Schools Australia. As I said, it is my view and not the view of the party or other members of my party. However, it seems to me that if a student is behaving in a way which is so openly problematic to the school, there will be other mechanisms to deal with it.

I know that when my children were at school—and, indeed, when I was at school—there were all sorts of rules and regulations about agreeing to wear the appropriate dress, not having particular hairstyles and all sorts of other things. Schools had the right to deal with those issues and they do not lose any of those rights by virtue of this legislation.

I also had a meeting with the Association of Independent Schools and they were relatively happy with the eventual decision and the proposal that it would not be necessary to publicise the policy of the school broadly as long as the school had a written policy, so they did not have to necessarily put it on their website because you do not have to put all your occupational health and safety and all your other policies on a website, so why should you have to put that particular policy on the website?

My recollection is that the bill actually requires that the policy not only be written but be made available upon request and that it be lodged with the Commissioner for Equal Opportunity. I think that that probably gets the balance about right, and I do not agree with the view of the Christian Schools Australia (South Australia) office who argue that basically the act should stay as it is.

I rely largely in my views on this on information obtained from the current commissioner because I do not actually think it is an issue that is problematic for many places. It is a bit like the old Groucho Marx saying—'I wouldn't want to belong to any club that would have me as a member'—only in reverse. Most people who want to lead an openly gay lifestyle are not going to aggravate themselves by seeking employment with an institution that is adamantly opposed to those who lead an openly gay lifestyle.

So, it seems to me that it is probably going to be far more problematic for us as legislators than the real world out there is going to make it because most people are not going to apply for jobs. Most parents of an openly gay youngster, for instance, are not going to likely keep that youngster in a school where that youngster may be harassed in any sort of way because of their sexual preference.

I do not see the current proposal as a problem. As I said, I rely on information to the effect that, as far as we know, there have not actually been cases of people employing a gay doctor in hospital or a gay nurse in an aged care facility or something where that has been a problem and there has been an issue brought to the equal opportunity commissioner's attention. My view is that we probably got it about right.

Interestingly, I also had a letter from Sean Cary, President of the Youth Affairs Council of South Australia (YACSA), which is the peak body representing the youth sector and young people in South Australia. With no offence to Sean, I am not sure how many young people actually know of the existence of YACSA or have anything much to do with it but, nevertheless, I accept that it is the only formal voice through which youth can make its views known other than by individual approach.

He says that YACSA largely supports the amendments to the Equal Opportunity Act, particularly the section that prohibits discrimination by religious schools to their students or potential students on the basis of their sexuality. Sean, quite correctly, I think, goes on to state in his letter:

Same-sex attracted young people can face isolation, fear of bullying and depression as they come to grips with their identity. They are more likely to experience difficulties at school, homelessness, higher rates of drug and alcohol use, mental health issues, family conflict and are at significant risk of self harming or suicidal behaviours.

He goes on to point out that, in fact, if that ain't bad enough in the city, it's even worse in the country. He says these young people do not need the additional fear of being expelled on the basis of their sexuality and I agree with what he says although, as I said, I really do not think that it is going to be as problematic in practice as we are considering that it might be. He then goes on to say that YACSA believes that the amendment should go further:

If the amendment allows gay and lesbian doctors to work at a church-run hospital, why can't a gay or lesbian teacher work at a religious school? Whilst the government has stated its belief that gay and lesbian teachers pose no greater threat to children than those teachers who are heterosexual—

and that is a view that YACSA strongly endorses. YACSA thinks that the amendment should actually be extended so that it does not even cover the employment of teachers in religious-based schools. The letter goes on to say:

Same-sex attracted young people require role models in dealing with the challenges that discovering their sexual orientation poses.

So, YACSA, in fact, put in its letter virtually the exact reverse of what the Christian schools put in theirs and, indeed, we have quite a number of lengthy submissions, and I will come to those in a moment.

The bill, I think, now very much accords with the view that we took during the negotiation process where we were trying to come to agreement on the 2006 bill on this issue at least. That aspect is covered, I think.

We can then move on to sexual harassment in schools and, again, I indicate that this is a conscience vote—the next two will not be, but this one is—for those on the Liberal side of the chamber and therefore the views being expressed hereafter on this issue are mine rather than those of the Liberal Party.

This issue goes back to the recommendations of Brian Martin QC when he reported on the legislation in the 1990s. Members will recall that Brian Martin recommended that the provisions in relation to sexual harassment should apply not just to adults but to high school students over the age of 16. In the 2006 bill, the government sought to lower that. Rather than inserting the Martin recommendation, the government wanted to make it applicable to all students who were at high school.

That seemed to me to be an unnecessary imposition because we all know that students can be at high school as young as 12 years of age and, although the government felt that it had put sufficient protection in the earlier bill for those younger students, it still seemed to me self-evident that 12 was too young to impose the sorts of rules that we expect to have, for instance, in workplaces and so on regarding sexual harassment.

From memory, the earlier iteration of the bill actually said that it will apply to all high school students but it will make some special provisions in relation to the high school students. In particular, it will be necessary for the school to have an internal mechanism so that, before any matter can proceed to the tribunal, the school must go through an internal process and allow the matter to be resolved by negotiation within the school and, thereafter, a provision that there could be no award of compensation even if the matter were successfully pursued through to the tribunal stage.

That is all very well, but in the last couple of years I have had a case brought to me wherein a young man was accused of sexual misbehaviour.

The Hon. M.J. Atkinson: In school?

Mrs REDMOND: In school. The matter was pursued with the police. It was not just sexual harassment; it was a much more serious allegation. The young man was in year 12, so he would have been caught by the 'age 16' provisions in the current proposal. In spite of the fact that he was ultimately exonerated, his situation became so stressful that he left school and did not finish year 12. He came from a very good family, and he was a good student. However, for at least a couple of years his life was destroyed by that allegation, even though he was ultimately exonerated.

I think that the current bill gets the balance right and, as I said, that is my view. It applies only at age 16, as recommended 15 or more years ago by Brian Martin QC. It maintains the position that no compensation is payable even if discrimination is found to have occurred. It also maintains the earlier provision from the 2006 bill; that is, a complainant must first go through any procedures for the resolution of such matters within the school's own policies. So, they cannot go straight to the commission.

That will not stop someone from going to the commission ultimately if they still feel aggrieved, but I think that the lack of compensation in that jurisdiction will be a significant disincentive because there will be no incentive for someone to pursue the matter beyond resolution within the school, unless they really feel that they want their grievance acknowledged by the tribunal, as they will get nothing out of it financially; indeed, they may well find that it could cost them. I think that the new provision in relation to sexual harassment in schools, which increases the age to 16, does the right thing and adopts a provision that should have been included before.

Another measure put into this bill in regard to sexual harassment in schools is that of action by a teacher against a student. Particularly given that our students are at school until they are 16, 17 or 18 years of age, there is no doubt that a teacher can sometimes be the subject of sexual harassment by a student. As I read the current bill, it proposes that such an action can occur only in a tertiary institution setting and not in a secondary setting. So, I am curious about whether there is any thinking that, perhaps if there is an allegation of sexual harassment by a student against a teacher in a high school setting, there should not be a provision that that must be the subject of an internal process, just as there is for students generally.

Those two issues are probably the most crucial in terms of the difficulties of this legislation. I turn now to other people who have contacted me in relation to this bill, and I have had some quite extensive emails, letters and submissions. I do not think that I need give the names of all those people for the record, but I give the name of the first whose email I read. It is from David Tennant, and he says:

I have looked at the new version in much detail and note that while some contentious aspects have been removed from the 2006 version, it still contains many contentious aspects, many of which you criticised in your second reading speech in February 2007 when the 2006 Bill was then before the House of Assembly.

He goes on to say:

At that stage you indicated that you would be voting against the whole bill, as there were just too many contentious provisions. I believe that while the 'vilification' provision is no longer in the 2008 Bill, there are too many other provisions which are bad law for one reason or another.

He then asks whether we would be voting against it or changing our mind from the many criticisms in February 2007. I think that I have made it reasonably clear, even though I have not finished my comments, that most of the criticisms in my speech were directed not towards the issue of religious vilification and freedom of speech but towards the issues that concerned small business and how it might be affected were this legislation to be taken to the nth degree.

I must say on the record that I have been quite inundated by responses. I think I have replied, to the extent I have been able, to indicate that we have a position on the bill, although there are a number of issues––those touching on sexuality, moral issues and religion—where there will be conscience votes and that it is not within my province as the shadow attorney-general to respond on behalf of my fellow members of the Liberal Party. So, if people have not been made aware of that, I apologise, but we do not have enough resources to write back in detail to people who write again and again and again when there is really nothing further that I can say.

The next note which came in basically looked like a petition, although there was no petition that followed on, at least in the copy I got, but it claimed that the new bill would adversely affect the rights of South Australians in freedom of speech, freedom of association and freedom to practise religion.

The Hon. M.J. Atkinson: Surely they mean 'harm'.

Mrs REDMOND: The Attorney says that surely they mean 'harm', but I do not know what they mean; I am simply quoting what they said. They continue, 'Your petitioners, therefore pray that your honourable house will call upon the state government to support amending of the bill to ensure that those rights are protected', but I did not receive anything with that document which indicated to me the basis upon which they say it will adversely affect the rights of South Australians in freedom of speech, freedom of association and freedom to practise religion.

I then received some other documents, and indeed I have one from Roslyn Phillips as the National Research Officer of Family Voice Australia, and she kindly provided quite an extensive, nine-page assessment of how Labor's 2006 bill is different from the Liberals' 2001 bill. Mrs Phillips says that the 2008 bill has quite a few changes from the 2006 bill, as shown in another document, entitled 'Further changes made to the Equal Opportunity Amendment Bill: How the 2008 Bill is different from the 2006 Bill'.

I will not quote the whole letter, obviously, but Mrs Phillips states that in a media release on 26 November 2008 the Attorney-General's pointed out that the 2006 bill was opposed by both the Liberals and minor parties and that the 2008 version of the bill was the outcome of two years of discussions, and that is correct. There were some very well intentioned discussions which took place over more than 18 months with a view to resolving our difficulties with this bill. To quote Mrs Phillips again:

Certainly, the Attorney is right in saying that quite a few changes are have been made. However, none of the 2006 Labor proposals listed below have been changed—they are all still present in the 2008 Bill.

I will spend a fair bit of time going through these, because Family Voice represents a significant number of the other people who have also contacted my office, and I do not want to have to go through all of their statements in detail. I think Ros Phillips has done an excellent job of summarising the views on behalf of Family Voice, so I will spend some time looking at what is suggested. The very first thing that is discussed is the issue of red tape.

Mrs Phillips refers to the contribution by the member for Unley about the issue of red tape and the fact that the strategic plan has an aim of reducing red tape by, I think, 25 per cent. She then goes on to give a few examples of red tape which were introduced in the 2006 bill and which remain in the 2008 bill and those are:

the physical inaccessibility of premises exemption is removed, and there is a further note about that below;

all schools will have to develop policies against sexual harassment by students, and there is a further note about that below;

all religious schools would have to place policies regarding employment on their websites, and I think that has now been deleted or is being deleted from the current version by amendment; and

employers or principals are liable to civil liability arising from a discriminatory act of an employee or agent, and again there is a separate note below.

I do not know how that last one actually creates more red tape, as such, but I accept that the second and third one of those points potentially will make more red tape. Mrs Phillips then goes on to talk about the substantial changes, and I will just go through those in accordance with what she had sent to me:

1. Sexuality discrimination in partnerships is unlawful for all firms

It is proposed that it now be unlawful for all firms to discriminate against a person wishing to become a partner, on the ground of sexuality. Previously, it was only unlawful to discriminate if the firm consisted of more than six members...

My personal view is that it is becoming increasingly irrelevant in any event; there would not be too many firms where there was a problem. Areas such as law where it is still necessary to work in partnerships rather than rather than incorporate would certainly be caught by this if there were fewer than six partners but, in reality, just as I said in the case of religious schools, I do not know whether in practice there will be really an issue here.

If people so object to someone's gay lifestyle (to use that example again), then I doubt very much that that person will seek to be a partner in a firm and I doubt very much, even if they did and they were denied the partnership, that there would ever be any admission that it was because of their gay lifestyle. I think that the reality is that it is not likely to happen very much, but, at the moment, the law says that this discrimination is lawful if you only have up to six partners but unlawful if there are more than six partners. I suppose the thinking at the time was that, if you have a big firm with dozens of partners, then it is less likely to affect the firm in terms of the close working relationship that people might have, whereas in a small firm, it is more likely to be affected.

By way of analogy, in the interpretation of unfair dismissal laws (at least when I first came to this state), for instance, it was often the case that people applied to the industrial court if they felt that they had been unjustly, unfairly or unreasonably dismissed. The application technically was for reinstatement, but the practice of the court was to say that, if you were, say, an employee in a vast retail empire such as Coles or Woolworths, yes, it was easy enough to put you into a different position but at the same level in the same company. So, reinstatement was a reasonable option. On the other hand, if you were an employee in a tiny little cafe or delicatessen on the corner where there was only you and one boss and the relationship had clearly broken down, in any event, then, in those circumstances, it was just a nonsense to seek to order reinstatement because that employee/employer relationship was never going to work.

My suspicion is that in 1983 or 1984, when the original equal opportunity bill was being debated, the same sort of thinking would have prevailed in relation to this aspect and, as a result, this arbitrary number of six was chosen as the reasonable number below which you did not have to comply but above which you do have to comply. I make no argument as to the rationality of its being there in the first place, but it seems to me to be only reasonable that, if you are going to make it unlawful to discriminate against someone in terms of assessing their suitability for partnership, then it is reasonable to say, 'Well, we will apply that to all partnerships, not just to partnerships of a particular size.'

Ros Phillips' second item is 'private household exemption deleted'. The provision which exempts the chosen gender and sexuality discrimination provisions from employment within a private household is deleted and the private household exemption is also deleted for other grounds—race, disability, age and some other new grounds that are introduced by section 60. If it is the case that Mrs Phillips' reading is correct, then I do have some problem with our legislation, because if you are going to employ someone in your private household, that should be entirely up to you. I imagine that, in practice, it will not be an issue because most people will not say, 'I'm not going to employ you as my cleaning lady or my ironing lady because of your sexuality.' They will simply not saying anything. They will just not offer that person the job.

I suspect that, in reality, it will not be a problem in practice. However, I do take the point that, if Mrs Phillips' reading of this particular aspect is correct, that is problematic, because I can see no reason why, in this state, we should legislate over private households in ways which we have not legislated before.

Her third item is the genuine occupational requirement exemption for sex extended to chosen gender and sexuality. The exemption that allows discrimination on the ground of sex, if it is a genuine occupational requirement that a person be of a particular sex, is extended to discrimination on the grounds of gender and chosen sexuality if it is a genuine occupational requirement that a person be of a chosen gender or a particular sexuality. I do not see why that is a problem. We are talking about an exemption, so we are allowing discrimination on the ground of sex and, as I read it, this will allow discrimination on the ground of sex, chosen gender or sexuality. I do not see that that is a problem.

The fourth item that Mrs Phillips deals with is that general religious exemption is replaced with a narrower exemption only applying to schools. Of course, I discussed this at some length earlier. In her submission, Mrs Phillips says that the general exemption in the current section 50(2) which allows religious, educational or other institutions to discriminate on the ground of sexuality in the course of administration of that institution is deleted—which technically it is, but, in fact, it is narrowed. A much narrower exemption is proposed in the employment specific exemptions. Although the new exemption would also apply to discrimination on the ground of chosen gender, it would only apply to educational institutions and it would only apply to discrimination in relation to employment or engagement, that is, she says, the hiring of teachers.

My reading of it is that it is slightly wider than what Mrs Phillips is suggesting. I agree that it is narrower, I agree that it only applies to educational institutions, and I agree that it only applies to employment or engagement, but I do not think that that is restricted to the hiring of teachers. For instance, I think that could be inclusive of the hiring of maintenance, ground staff, teacher assistants, counsellors and all sorts of other people. Then she goes on to talk about the requirement to lodge a copy of the policy with the Equal Opportunity Commission and to make it available. I will quote again from her submission:

Although under the 2008 bill it is proposed that schools no longer have to lodge such a policy with the Equal Opportunity Commissioner, it would still have to put it on its website.

My recollection is that the current situation, or at least the position adopted by the Association of Independent Schools, whose document I have not turned up yet, is that it will not be required to go on a website, just like everything else does not have to go on a website. A school can put appropriate information on a website but does not have to put every detail of every policy that it has or anything like that on its website. The fifth item in this submission is:

Religious exemption for religious bodies is not available for marital status discrimination.

So, although the section 50(1) exemption is left intact, only subsections (a) and (b) are proposed to apply to discrimination on the ground of marital status. This is because discrimination on this ground is moved to a different part of the act and the equivalent of section 50 and part 3 is not in the new part 5B, but it does not apply the exemption which applies generally to any body established for religious purposes, that is, any body as in a hospital, aged care facility or whatever.

I think that is the correct interpretation, that the exemption has been narrowed so that it is only applicable to schools and not to other religious-based bodies. As I said, I do not think that that, in practice, has ever been utilised in any event, at least so far as my recollection of the original discussions that I had with the Equal Opportunity Commissioner. Item 6 in this submission is:

Religious exemption is only available for marital status ground and no other new grounds.

The submissions states:

Furthermore, not only is the proposed new section exemption more limited than section 50, it also only applies to discrimination on the ground of marital or domestic partnership status. It does not apply to the other grounds of discrimination introduced by the proposed new part 5B, such as identity of spouse, association with a child, caring responsibilities or religious dress and appearance, and it does not apply to pregnancy discrimination, as the current act does.

Again, I think in practice it will not make any actual difference, but I will take on board what Mrs Phillips has put in that particular aspect. Her seventh point, and it is a topic that I will talk about a bit more later, is:

Sexuality or chosen gender discrimination by associations is unlawful.

Again, I will quote from this submission:

Unlike the 2001 bill—

which was the Liberal Party's bill introduced before the 2002 election but never finalised—

the 2006 bill proposed that it would become unlawful for associations to discriminate against members on the grounds of sexuality or chosen gender. The bill introduced an exemption for associations set up for persons of a particular sex, chosen gender or a particular sexuality other than heterosexuality.

That is a point on which I think I agree with Mrs Phillips because it seems to me, again, a perverse situation that we would establish legislation in this state to say that as a general rule you can have a gender-specific sports club. You can have girls' netball clubs and you can have boys' football teams and all that sort of stuff—you can have that.

Indeed, I ask Bowls SA to note that you can have that. I was bowling with Uraidla Bowls Club for some years, as well as with the parliamentary bowls team, and Bowls SA seems to be doing everything it can to destroy the game in this state. It seems to have taken this peculiar idea that this legislation, which had not even been passed in any event, in some way prevented girls' bowls teams or men's bowls teams. It does not do that. It has simply never looked at doing that.

I do not think the 2001, 2006 or 2008 versions of the amending legislation went anywhere near doing such a thing, but, notwithstanding that, Bowls SA has decided that because of that we are not allowed to have gender-based bowls teams, and so the bowls team with which I was bowling has gone out of existence. I must say—

The Hon. M.J. Atkinson: Uraidla?

Mrs REDMOND: It was Uraidla. In any event, I was getting too busy with doorknocking and things to keep going, but we had a very good system and the only reason that I was able to bowl was that we had a group of 16, or thereabouts, we only needed eight for each week, so if I was not available because of other commitments then I did not need to feel guilty for letting the team down and making us failures.

As the Attorney says, you get a lot of good rain up there. In fact, some years it was five or six weeks into the season before we got our first game up there because the greens were so wet that they were unplayable. By way of aside, I will tell the Attorney that we were such a poor group of bowlers when we started out that we said that when we finally won a game, which took us three years, we would run the bras up the flagpole, and indeed we did. So, the boys got a signal when they got back to home base after their match away from home and they knew that the girls had finally won a game.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: The bras. The point I want to make is that I think Mrs Phillips raises a good point, that it is, to me, perverse that we would make it lawful in this state, for instance, for a group of gay men to have a gays only football team but not allow a group of straight men to say that they are going to have a straight men only team. That just does not make any sense to me. I have said over many years in this place that I think we only have true equality when these issues are not even worthy of discussion. People should be free to form football teams with whoever they want to, and they should not be forced into situations where they have to engage within their team with people they do not want in their team.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: The Attorney asks me about Glasgow football teams. I have no idea about them, but they are not in South Australia. I am just—

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: I am talking about what happens here, and this is about sexuality and chosen gender discrimination. It seems to me to be just as discriminatory to say that this particular group that is perceived to be a minority group is allowed to discriminate against the rest of the world, but this group that may well be in the majority is not allowed to discriminate in exactly the same way. It just seems to me to be a perverse piece of reasoning. So, I think there is some merit in the argument put up in relation to that matter.

The eighth item in the submission by Ros Phillips is that the exemption in relation to accommodation discrimination is changed. The exemption in relation to accommodation on the grounds of sex, sexuality or chosen gender is broadened, and the subsection restricted the exemption to cases where fewer than six people were applying for accommodation, which meant that it was only in very small settings, where there might be a room to let, or a couple of rooms to let, but not in the larger boarding houses, and so on. Mrs Phillips goes on to say:

However, section 40(3) is arguably narrow as it only applies to a household instead of to a premises. This exemption is also introduced to apply to race discrimination, disability, age and the new grounds that are canvassed later on in part 5B. Furthermore, current section 85L(5)(c) is proposed to be deleted. It provides that section 85L, which is age discrimination in relation to accommodation, does not apply in relation to the provision of accommodation in premises that adjoin premises where the owner of the accommodation, or any person appointed to manage the accommodation, resides if the provision of the accommodation would be subject to the Residential Tenancies Act.

Again, I do not think that it will have a great impact in practice, but I would be very cautious about denying people the right, if they are renting out rooms in or adjacent to their own home, to be free to decide absolutely who can rent them.

The ninth item is proposed changes regarding deposing of an interest in land being deleted. The 2001 Liberal bill would have deleted the current exemptions that allow someone to discriminate against another on all grounds in deposing of an interest in land by way of testamentary disposition or gift; in other words, by will generally. The 2006 bill dropped those changes and—

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: Or a testamentary maintenance application.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: Yes. I have to confess that that is one that I have not yet had the chance to—

Members interjecting:

Mrs REDMOND: The member for Schubert will be an old man by the time I finish this piece of legislation.

Members interjecting:

Mrs REDMOND: Dare we think it may have happened already? I think I was at the point of confessing—I thought everyone got excited because I was about to confess, but all that I was going to confess was that I have not actually checked that particular aspect of the submission to tell us whether or not that is included in the 2008 bill.

The definition of 'future disabilities' is the 10th item in Mrs Phillips' submission. She says that section 32(3) would extend the definition of discrimination on the grounds of disability to include disability that may exist in the future. My recollection is that, because the 2008 bill adopts the commonwealth provisions as to discrimination, it probably overcomes that particular problem.

Item 11 of the submission concerns the extension of discrimination against someone because of a characteristic of that person's associate. I think that actually remains in the 2008 bill, and it is one of the things that I have already marked to discuss at some length in the committee stage. It seems to me to be a peculiar provision, and I struggle to think of circumstances where the provision would apply. What it seems to say is that the 2001 bill that we introduced would have made it unlawful to discriminate against someone because of a characteristic of that person's associate. I can understand that we might want to discriminate against someone who turned up with a fully tattooed, fully badged member of the Finks motorcycle gang, for instance, but that sort of discrimination is not what we are talking about. What we are talking about is discrimination within the terms of the act, which is discrimination on the grounds of age, gender, sexuality and so on.

As I have said, I can understand that, if someone came into your place seeking employment with you and it was obvious, because they turned up hand in hand with a biker who looked a bit dangerous, you might not want to associate with that person and therefore you might want to discriminate. However, that would not be unlawful under the legislation. What the legislation talks about is discrimination within the range of things that are covered by the act and then discrimination against someone just because someone they associate with has the particular thing that is being discriminated against.

In trying to think of an example, I thought, 'Why would anyone, for instance, discriminate against someone who was seeking employment because their partner happened to be blind or had some other disability?' I can imagine that the issue of carers' responsibilities might come into it, but that is a separate section. However, I cannot see, for instance, why you would discriminate against wanting to serve someone in a café or anything like that. I do not make any comment one way or the other on the position put by Mrs Phillips in her submission; I simply raise as a question that I still have that I am not certain what the evil is that the amendment seeks to address. As I have said, I cannot think of a circumstance where one discriminates against a person on the basis of someone they associate with having a particular quality, whether it be their chosen gender or whatever.

I suppose, theoretically, it might be possible to say, 'I saw this person coming into work with someone I know to be transexual, and I object to that so much I'm not going to employ this person.' I just struggle with this whole idea of a person's associate, and it is an area about which I will seek considerably more information when we get to the committee stage.

Item 12 of the submission concerns the fact that both the owner and the occupier of premises are taken to offer or provide services. Again, I suspect that, in practice, it will not make a great impact. I can think of circumstances where it would be unreasonable to impose penalties or obligations on an owner of premises if that owner, for instance, is an absentee owner who knows nothing of what is going on in the premises. Why should they therefore be in any way liable for the actions of the person who may legitimately be the occupier of the premises, pursuant, for instance, to a lease?

Moving away from domestic situations into commercial situations, for instance, very largely, the small businesses in this country are run by people who own the business but lease premises in which they run their business. In some circumstances, I can see that it needs to be the owner of the premises who is responsible for some aspects relating to discrimination, and in most circumstances it needs to be the person who is running the business. For instance, to take a simple example, in terms of the accessibility of premises for people in wheelchairs, clearly, if there were a law that said that you had to make your premises wheelchair accessible, that is something for which the owner of the premises is normally liable, rather than the lessee of the premises. I have no difficulty with the fact that sometimes the owner of the premises will be the liable party.

On the other hand, if the provision concerns a person who feels aggrieved because they have been discriminated against by a person offering employment, even though that is in leased premises, why on earth should that have anything to do with the owner of the premises? I hope that, when we get to the committee stage, the detail of the legislation allows for the fact that there can be an either/or situation, so that sometimes it might be the owner of the premises and sometimes it might be the lessee of the premises. I struggle to think of any circumstances where the discrimination could be alleged against both the owner and the lessee, unless they were one and the same person, which would be a bit unusual. I do not see that it should be intended that someone who is, for instance, an absent landlord should bear any responsibility most of the time in relation to the sorts of things that are covered by the proposed legislation.

The 13th item in the submission is the proposed section regarding 'legal capacity' deleted. As proposed, a new section 83 in the 2001 bill, relating to legal capacity, is no longer found in the 2006 bill. That section provided that nothing in the part, which was the part concerning disability, derogates from the operation of a law that relates to mental incapacity to enter into contracts or to hold property. My suspicion is that might have been deleted simply because it is unnecessary. Nothing can derogate from the fact that, if someone lacks mental capacity—be it because they are simply too young or because they have a mental impairment which inhibits their capacity—there is clear law to the effect that that person does not have legal capacity, for instance, to enter into contracts.

There has been longstanding legislation and common law, for instance, to the effect that a child lacks capacity to enter into contracts at all until a certain age and, after a certain age, they do have some capacity if the contract is a contract for necessities, but they do not generally have the power to enter into contracts for non-necessities.

I await some of the interesting court cases that I am sure are going to come up before too long regarding youngsters purchasing mobile phones and entering into two-year contracts with all sorts of onerous provisions because I think that, for instance, if they had been entered into by a 15 or 16 year old without the seller of the phone being wise enough to realise that that person actually cannot sign a binding contract, they will not be able to enforce the contract and, unless the parents have co-signed it, it will not be enforceable against the parents either. At this stage, I am not too concerned about that particular submission, although obviously it is one I will explore more fully when we get to the committee stage.

The 14th item is the new criterion relevant for establishing what constitutes unjustifiable hardship. An exemption for disability discrimination was proposed in the 2001 bill whereby one could avoid the consequences of some of the impositions about disability provision by finding unjustifiable hardship was involved.

To go back to the example I was using a few minutes ago of a shop owner being required to make available wheelchair access, I remember some years ago, in fact, a case where a group of doctors for whom I acted was very concerned about the provisions of the disability discrimination legislation which appeared to impose on them a requirement that they make their surgery wheelchair accessible. These guys happened to be quite old-fashioned doctors who did house calls.

So, the reality was that their patients were actually better off because they still went out to the homes of many patients. They provided a service which obviated the need for the patient even to get to them in their wheelchair, let alone get access to the building. Besides, changing a relatively small building so that it could have wheelchair accessibility was going to be prohibitively expensive in terms of the size of the business. That is the sort of thing that the exemption was aimed at in the 2001 bill. What constitutes unjustifiable hardship is always going to be something that is subject to court interpretation, but they point out—and, again, I have to confess that I have not yet checked this against—

The Hon. M.J. Atkinson: When our time together is up, you will have told me about every client you have ever had.

Mrs REDMOND: No, Attorney, it would take much longer to tell you about every client I have ever had. However, I will do my best. The 2006 bill includes a provision that the effect of the disability of the person concerned must also be taken into account. On the one hand, the owner of the premises could claim undue hardship in having to accommodate a certain disability, but on the other hand in the more recent bill the effect of the disability of the person concerned had to be taken into account and, as I said, I confess that I have not checked that particular provision to see what has happened to that in the 2008 version of the bill.

The 15th item in this submission is that the physical inaccessibility of premises exemption is removed. Although the unjustifiable hardship exemption remains substantially the same, there is a new section and the result of it is that the physical inaccessibility of premises exemption is removed. That exemption provided that disability discrimination against a person is not unlawful if a premises (or part of it) is so constructed as to be inaccessible to that person or if the owner has failed to provide disability access to every part of the premises.

I would have to say in terms of disability access, before we go legislating about access to anyone else's buildings, we should think about the accessibility of this building for people with disabilities. I know from visitors that I have had to this place how very difficult it is for people in wheelchairs and on walking frames, for instance, who may have come in for a dinner in the Balcony Room and so on. They find it awkward and some have found it demeaning to have to come in via the alternate access on the lower ground floor and then, if they are going to the Old Chamber, to come up through here and around. It is part of the problem of an old building and I simply say that, before we go throwing stones, let us look at our own situation.

The 16th item in this submission is that the definition of caring responsibilities is expanded. As I said, this is a comparison of the 2006 bill with the 2001 bill, and I think that the proposal in the current bill is probably a pretty good medium position that allows the use of the definition that already binds us anyway in the commonwealth legislation and allows for Aboriginal kinship provisions. Again, it is an area which I will explore further when we get to the committee stage.

I have already expressed my views in relation to the new ground of religious appearance or dress, which is the 17th item in this particular document, so what I am putting here are the views of Family Voice. It says that religious appearance or dress as a ground of discrimination and its definition is completely new. It was not in the 2001 bill. Likewise, all of the exemptions relating to it are also new, and it refers to the exemption for safety reasons and the educational institution. In fact, the new amendment goes further than that and also incorporates the issue of reasonable identification of a person going to a bank and so on.

The 18th item states that employer exemption for pregnancy discrimination is narrowed. The exemption in relation to discrimination arising out of dismissal from employment is narrowed by requiring an employer to first offer a pregnant woman leave. At the risk of boring the Attorney, I will tell him about yet another case in which I represented an employer who had an employee who was pregnant.

The employer was quite happy to keep the employee on at work. There was no difficulty with that except that she did not feel that she had to do any work because of her pregnancy . She was going off to lie down in her office all day or going down to the car for a lie down and all sorts of things. It was in fact an unreasonable way to treat the employer in that case rather than the employer being unreasonable with the employee. They were quite happy.

The Hon. M.J. Atkinson: Of course, your clients were always in the right.

Mrs REDMOND: No, my clients weren't always in the right. I had a client once who was dismissed from a particular employment. I am quite confident that he is dead now unless he lived to about 130 years of age. He was an older chap who had been working at TPI and he was dismissed. He came to me for advice, and I eventually wheedled it out of him. He came in wearing a stethoscope with the end of it tucked into his pocket and said that he was a medico.

It turned out that at the age of 19, he had done one year of university in Queensland and he had been employed by TPI either because they thought he was a doctor and then found out he was not and dismissed him or because he had been employed by them knowing that he was not a doctor and they found out that he was going around pretending to be one while he was going to work there.

I had no hesitation in telling him that he did not have a case. So, I have acted for many people who were not always in the right. I can guarantee the Attorney that in the 32 years since I began practice, I have had plenty of people who had some difficulty in persuading me of the rightness of their claim let alone getting to anyone else.

As I said, the 18th item was the employer exemption for pregnancy discrimination being narrowed. The 19th item relates to the new exemption for associations established for certain people. A new exemption is introduced that provides that discrimination on the grounds of marital status by associations is not unlawful if the association is established for people of particular marital status or for spouses of a particular class.

The Hon. M.J. Atkinson: Parents Without Partners.

Mrs REDMOND: Yes. That is simply a new exemption and I do not imagine that exemptions are particularly a problem. The 20th item is a new exemption for non-profit organisations providing accommodation. Similarly, a new exemption is introduced that provides that discrimination on the grounds of marital status, pregnancy or caring responsibilities by a non-profit organisation offering accommodation is not unlawful if that accommodation is provided only for people of a particular marital status, pregnant women or people with caring responsibilities. That simply is eminently sensible in my view.

A new exemption in the 21stitem is for schools in relation to pregnancy discrimination for safety, and it provides an exemption so that if schools consider that, for safety reasons, they need to discriminate against someone who is pregnant, they may do so because they come under the exemption. I can imagine that there could be such situations both with teachers and students because, increasingly, sadly, we are seeing more students at school who are pregnant.

I say 'sadly' not because it is sad that they are pregnant or sad that they are continuing with their education but because the evidence is quite clear that the chances of any young mother completing her education are diminished because of the pregnancy, and child-bearing and child-rearing activities, and because the prospects for children born to very young, usually unmarried, mothers are statistically not terrific in terms of their futures. An exemption on those bases is, I think, only reasonable.

In the 22nd item, the wording of an exemption relating to identity of spouse is changed. That clearly refers to the 2006 bill. The original 2006 bill that we dealt with had this provision that said that it was unlawful to discriminate against someone on the basis of the identity of one's spouse, and I am sure that the member for Hartley would be aware that this could be problematic. If you have a spouse in a particular position, it can be difficult.

However, there were obviously necessary exemptions within the legislation because clearly if, for instance, my spouse applied for a job with a Labor minister, it would be only reasonable for a Labor minister to say, 'I don't think so.' It would be inappropriate for the spouse of a Liberal member to be able to say, 'Well, it is unreasonable to discriminate against me because you won't employ me simply because of who my spouse is.' It is perfectly reasonable for a Labor minister to say, 'I am entitled not to employ the member for Heysen's spouse' when it is a person on the other side of the chamber. So, there are clearly situations where discrimination against someone on the basis of their spouse's occupation is not only lawful but eminently good sense.

The 23rd item deals with the sexual harassment provisions, and they are delineated into four different sections. Firstly, it will become unlawful for any secondary school to fail to have a written policy against sexual harassment by students. Secondly, the defence provision from the 2001 bill—

Mr VENNING: Mr Speaker, I draw your attention to the state of the house.

A quorum having been formed:

Mrs REDMOND: I will start with the 23rd submission; that is, the proposed changes to the sexual harassment provisions which, firstly, require that a school have a written policy against sexual harassment by students and procedures for dealing with complaints. Secondly, it is noted defence provision in the 2001 bill was removed. This would have provided a defence to a complaint if the respondent proved that he or she did not know, and could not reasonably be expected to have known, that the complainant was a person whom it was not lawful for the respondent to subject to sexual harassment. I am not altogether surprised that this provision is removed, as I cannot imagine any circumstances where it is lawful for anyone to subject anyone else to sexual harassment.

Thirdly, sexual harassment provisions are applicable to students of secondary schools. It is noted that the bill has narrowed these to apply only to students over the age of 16. Fourthly, there are minor changes proposed to subsections (1) and (2) to make clear exactly when the sexual harassment provisions apply. The provisions include the concept of what the respondent ought reasonably to have known, and the provisions will apply if the respondent ought reasonably to have known that the other person was a fellow worker or a student, or seeking to become a fellow worker or a student. I seek leave to continue my remarks.

Leave granted; debate adjourned.

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