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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-06-18 Daily Xml
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EQUAL OPPORTUNITY (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 3 June 2009. Page 3048.)

Mrs REDMOND (Heysen) (16:41): I am pleased to resume my thoughts on this bill, and I hope that I will not hold the house for long. When I last spoke, I was going through in some detail the various items that had been put to the opposition in a lengthy submission prepared by Family Voice, which I think is the new name for the group.

I had got as far as the items in the 23rd proposition, which talks about a new unlawful act of discrimination because of breastfeeding. I think that breastfeeding is a great positive and should not even be part of the discussion. In our society, it should be so normal to breastfeed that it is a matter of no comment, and there should certainly be no need for legislation; nevertheless, it is the group's 24th item.

I will go through the other items very quickly. The group talks about discrimination in accommodation, because of an assistant animal, being unlawful. Of course, an assistant animal is there to assist either a deaf person or a blind person, so it is a hearing dog or a seeing eye dog. Again, I have no difficulty with the idea that we should make it unlawful to discriminate against someone because, for the enhancement of the ability to overcome their disability, they need an assistant animal that has been highly trained. I think it is entirely appropriate that it be unlawful to discriminate in such a case. The submission then talks about the reversal of the normal burden of proof and the employer or principal being liable to civil liability in the case of a discriminatory act. It states:

Therefore, it would seem that an employer or principal is vicariously liable not only for compensation under the Equal Opportunity Act but also liable to any civil liability that may arise.

In fact, that is my normal understanding of the position of any employer with any employee. As long as the employee is acting within the bounds of their employment and not in direct contravention of specific instructions, things they do in the course of their employment will, of course, be covered by the vicarious liability of the employer.

The submission talks about the longer time for lodging a complaint and the new powers of the Commissioner for Equal Opportunity, as well as damages already awarded and people having to be vicariously liable for the act of a child. I think, in fact, that under the new bill, that may not be a consideration. Of course, there is a provision that the media must not identify a child when reporting on proceedings and that is consistent with our general law in relation to that. The media will not identify a child, whether by name or by photograph, and it is entirely appropriate that we maintain that position in our law, particularly for children under the age of 10 who, of course, can have no criminal liability in any event under our system.

In summary, Family Voice sent quite an extensive submission and I thank them for taking such an enormous amount of time and effort to put together a document about this legislation. It is a complex piece of legislation, especially given that it does not necessarily deal with the discrete topics in the way I have been addressing them; rather, scattered throughout the legislation are amendments to various aspects of discrimination, be that discrimination for someone's age, gender, sexuality, marital status or whatever it might be.

I think I mentioned that I had received submissions not just from Family Voice but from the Association of Independent Schools of South Australia and from the Christian Schools Association, and that organisation was a little more concerned with the legislation than perhaps the Association of Independent Schools.

I mentioned the submission that I had received from Carers SA, who are most anxious for the legislation to be passed, and also the submission I had received from the Youth Affairs Council of South Australia. In addition to those, I received numerous individual letters, emails and submissions, and I am sure that all my colleagues on both sides of the house have received many submissions in relation to this legislation.

I have to say that I do not approach this job by simply adding up who votes and how many votes I have for or against the legislation. I conceive it as my duty in these matters to do more than simply take a straw poll, be that of my electorate or of the people contacting me on a particular issue. I think I am paid as a representative actually to think about things.

It seems to me that, in a modern society, it would be impossible for people to stay abreast of all the issues and all the arguments for and against the various issues that confront society at large and this parliament in particular. I know that, when I came in here, I fully expected that I would be in a position to be able to read all the legislation and have my thoughts together on all the legislation and possibly make a contribution if I thought there was something to be said about all the legislation.

I am sad to say that that is far from the truth, although I have responsibility for a fair amount of the legislation going through this place. The legislation that is not within my direct portfolio responsibilities often passes through unread by me. I am sorry that that is the case and I think that perhaps we would be a better parliament if it were not the case and if we did pay more attention to the detail.

I remember giving a speech way back in about 2003 in this place which referred to an article in the Oregon Lawyer (which is the equivalent of our Law Society bulletin but for the state of Oregon in the USA), and that indicated that even then, every day, The New York Times contained more information in one day than an average 16th century person would have seen in their whole lifetime. Every day we were already being bombarded with something like 14,000 signs, messages and slogans and all sorts of other things. The human brain just does not have the capacity to deal with this information overload.

I am sorry that I do not have my head around all these things but as I said, the point I was trying to make was that I think that my job involves not just tallying up how many people are for a proposition or how many are against it but actually trying to do the research to understand the question, to think of the arguments, to talk to people whose views I can glean and, on the basis of considering all that, come to a view about whatever the proposition might be. That is the approach that I have taken with the Equal Opportunity (Miscellaneous) Amendment Bill 2008.

I just want to run through a couple of the other things that are relevant in relation to this bill and our views on it. I think I had already dealt with quite a number of the issues and I had already pointed out, of course, that 80 per cent of the original bill was no problem to us because 80 per cent of it was already contained in federal legislation which was already binding on everyone in this state. So, all that the new legislation was going to do was provide a local and possibly more flexible access to redress, but the law itself, in terms of what was or was not discrimination, would still be the same.

In terms of the changes made by the government in the new bill, I would have to say that they have largely addressed the concerns that I raised. I think I pointed out that, in the earlier bill, it was the case that there were quite a number of areas where I thought (and my party thought) that the bill would be prejudicial to small business and, of course, small business is actually the backbone of the economy of the state.

The new bill that was introduced in 2008, I think, largely overcomes my concerns, and I thank the member for Hartley and the Hon. Ian Hunter for their participation in discussions about the issues that we had and their willingness to adjust the bill that is now presented to us so that it really does overcome rather a lot of the issues.

I know I had already dealt with the issues of the caring responsibilities; profession, trade and lawful occupation; and area of residence. Mr Speaker, you will remember that our problem with the area of residence was that there was no evidence that people were being unfairly prejudiced by someone saying, 'You live in a particular area and, therefore, I am not going to employ you'. Indeed, most of us as members of parliament, I think, probably try to employ locals. I certainly do when I am employing—particularly when trying to give a start to a new young trainee—I try to give a local the opportunity to work in a local office. So, I am pleased that has now disappeared.

The issue of chosen gender, which I have already indicated will be a conscience vote on the side of the chamber, is one upon which there has simply been new terminology. I had already indicated that the issue of religious dress or adornment was going to be a conscience issue for those on this side of the chamber. I think I had got as far as also talking about the recognition of domestic partners and, basically, all that does in this bill is broaden the definition of marital status to include domestic partners.

Members will remember that we put through legislation in the previous parliament which introduced the concept of domestic partners into a lot of our legislation so that, instead of married people and de factos—be they heterosexual or homosexual—the concept was broadened so that domestic partners could include people who may or may not be related by blood or marriage who live together but who did not necessarily have any sexual relationship; it was quite a broad definition. This bill proposes that the existing ground for discrimination on marital status be extended to what we now encompass within this state within the concept of domestic partners.

As to the onus of proof, the 2008 bill dealt with indirect discrimination, and I recall that I had already explained about what indirect discrimination was and how one could commit indirect discrimination. The 2008 bill proposed that it would be up to the employer to prove the reasonableness of the requirement which was being contested as indirect discrimination.

For instance, if an employer said, 'I am not going to employ anyone who is under six feet in height,' then a female might come along and make a claim that, although that was not direct discrimination saying, 'He is not employing me because I am female,' the argument that a female might put is that it is indirect discrimination because the reality is that the vast majority of females are less than six feet tall. They will not meet that requirement and that the intention of this proposition by the employer is simply to stop females from getting this job.

It is still the case that that will be indirect discrimination now that the complainant will have to establish the unreasonableness of that proposition because it could be, for instance, that an employer would say, 'Yes, I have said that everyone has to be six feet. It is a basketball team'—or whatever, some real reason having people only over the height of six feet for the job. If there is a legitimate requirement for that to be the case, that is fine, but it is the complainant that has to establish that it is unreasonable. That is as I think it should be.

The next of the areas where we said we would have a conscience vote is the right of religious institutions to discriminate on the basis of sexuality. That basically is an area where, once again, I will only express my own opinion—that is, that it is more than reasonable that the provision being put in be adopted.

The next area where we were to have a conscience vote was sexual harassment in schools. That has been adjusted from the previous bill so that now only students over the age of 16 will be subject to the provisions. That is in accordance with the recommendations of Brian Martin QC, as he then was (now Justice Martin). He recommended that we make it applicable to students aged 16 and over. We took that view previously, and I am pleased to see that that is now the way it appears in the new piece of legislation.


[Sitting extended beyond 17:00 on motion of Hon. M.J. Atkinson]


Mrs REDMOND: The issue of victimisation, as members would recall, was really the subject of the campaign that was waged by Family First and various other groups on the previous bill. I might venture to suggest that it was probably the main reason for failure of the previous bill, and the government has deleted it from the current bill. I think that is probably a wise course of action, not because I have any personal problem with the concept that was in the previous bill, but because I am a great believer in incrementalism as a political process.

The Hon. M.J. Atkinson: Hear, hear!

Mrs REDMOND: The best way ultimately to achieve change is not to bring in wholesale, sweeping changes which people are not ready for but to take the first little step and, when everyone has got used to the fact that that did not bring about the end of the world, then to take the next little step.

I want to make another couple of points, though, on victimisation because, as I said, there has been quite an ongoing campaign about this whole issue of victimisation and inciting hatred. I want to make this point: earlier in my second reading contribution, I mentioned the Catch the Fires Ministries case, and the two pastors known as the two Dannys colloquially.

The two Dannys (Pastor Daniel Scot and Danny Nalliah) had spoken at a particular gathering, and a complaint was made about them. The upshot was that eventually the matter went up to the Supreme Court and the Supreme Court judges upheld the pastors' appeal. So, ultimately, the pastors were able to maintain their position. Their fear, of course—and the fear expressed in this state—is that it could happen here. I do not think it could. I do not think that the legislation is the same. Also, the cost of defending themselves had been quite a large amount of money—I think $1 million, or something like that—and there is no doubt that that was the case.

In essence, what the pastors said was, 'How could it be inciting hatred when all we did was quote directly from the Koran?' I want to make the point that that is a really unfair thing to do. I will just refer to what justices Nettle and Neave said. They said that laws against inciting hatred, contempt or ridicule can make it an offence to tell the truth where the truth would portray a religion in a negative light. I absolutely endorse what they said. I want to illustrate the point by taking everyone to a Bible. Pastors Danny and Danny, to justify their position, said, 'All we did was quote from the Koran. How can that be inciting hatred? We did nothing but quote from the Koran.'

I will just quote from the Holy Bible, Revised Standard Version, 1952 edition—and it will be available for Hansard. I will quote just a couple of things to show how simply quoting from the holy book of Christianity can be extremely misleading, and most Christians would find it unthinkable that anyone would stand and read from this and say, 'This is what Christianity is about.' That is, in effect, what happened in the Catch the Fires Ministries case. Exodus, chapter 21, verse 17 states, 'Whoever curses his father or his mother shall be put to death.' I thought that was interesting. I am about to take that home and tell my children about that one. Still in chapter 21, verse 20 states:

When a man strikes his slave, male or female, with a rod and the slave dies under his hand, he shall be punished. But if the slave survives a day or two, he is not to be punished; for the slave is his money.

Chapter 22, verse 29 states:

The firstborn of your sons you shall give to me. You shall do likewise with your oxen and with your sheep...

I will go to just one more. Leviticus, chapter 17, verse 14 states:

For the life of every creature is the blood of it; therefore I have said to the people of Israel, You shall not eat the blood of any creature, for the life of every creature is its blood; who ever eats it shall be cut off. And every person that eats what dies of itself or what is torn by beasts...

I want to get to the bit about when a man sells his daughter into slavery. It is at the very beginning of chapter 21 of Exodus. This is when Moses has come down. He has been instructed in the Ten Commandments, with which everyone is familiar—I am the Lord, your God, and so on.

The Hon. M.J. Atkinson: All right, what's the seventh?

Mrs REDMOND: Well, I will have to count them down, but 'You shall not kill' is probably about the seventh, or 'You shall not commit adultery'—somewhere around there.

The Hon. M.J. Atkinson: The latter.

The SPEAKER: That is sixth.

Mrs REDMOND: The Speaker knows them better than I do. Chapter 21 states:

Now these are the ordinances which you shall set before them. When you buy a Hebrew slave, he shall serve six years, and in the seventh he shall go out free, for nothing. If he comes in single, he shall go out single; if he comes in married, then his wife shall go out with him. If his master gives him a wife and she bears him sons or daughters, the wife and her children shall be her master's and he shall go out alone. But if the slave plainly says, 'I love my master, my wife, and my children; I will not go out free,' then his master shall bring him to God and he shall bring him to the door or the doorpost; and his master shall bore his ear through with an awl; and he shall serve him for life.

They are but a few quotes out of our holy book, the Holy Bible. I put it to anyone who is listening that the essence of what I am saying is that it is unreasonable for someone to stand here and read those selected excerpts from the book of Exodus or the book of Leviticus, or any of the other books of the Old Testament. If someone who knew nothing about Christianity heard me say, 'This is our holy book. This is it. This is what it says. This is absolutely the official version of it. I am reading these excerpts,' they would understandably get a very strange view of Christianity. Christians could be rightly upset that someone who knew nothing about Christianity was actually standing up and saying, 'This is what Christianity is about.'

I want to try to impress upon members that not only was the right decision ultimately reached in the Catch the Fires Ministries case—and I think we have nothing to fear in this state from that case—but I think we need to start thinking about being more tolerant and more willing to listen. In fact, if you look at the beginnings of Islam, Judaism and Christianity, they all have a very similar and profound basis. I simply say that.

I have a couple more points to make before I conclude my remarks on the second reading of this bill. The first is on the public funding of complaints. The existing law, of course, requires that the equal opportunity commissioner has to represent complainants in matters that go before the tribunal. I think I mentioned, when I was previously speaking, that the commissioner herself recognises that there is a bit of a conflict of interest. The equal opportunity commissioner is in a situation where she, first of all, has to try to mediate between two conflicting parties, and, if that is unsuccessful, then she must represent one party or the other; that seemed to be a bit unreasonable.

The earlier bill proposed that the minister would instead make representation available via the Legal Services Commission. We on this side opposed that on the basis that, whilst we did not mind the idea of a complainant getting access to the Legal Services Commission, there were many small business owners who were just as poor as the complainants and did not get access guaranteed to them; so, we do not think there was a level playing field. The new bill will not change the existing provisions. I think it is a question that we still need to address at some future stage, but I think it is important for us to get this bill through. Perhaps we will come back another time and deal with some of these niggly little things that may have stopped the previous bill getting through.

There was a requirement in the earlier bill that, if a discriminatory act complained of could be any part of the reason for someone making a decision, it would still amount to discrimination, and a person who committed the discrimination could be hauled before the tribunal and made to pay a fine. The fact is that, under the new bill, there is a change. In the past, we had a situation where, even if there were a hundred reasons why someone was unemployed and the 100th one was something that would amount to discrimination, it will still allow a person to bring a claim under the act. We said that was unreasonable, and, in fact, the government has removed that whole section from the current bill.

In terms of representative complaints, the 2006 bill proposed to allow a complaint to be brought by someone who was not aggrieved. For example, a union official could come into a workplace and bring a complaint on behalf of someone even if there was no-one actually complaining within the workplace. That was opposed by us, and it has been removed. As I understand it, the new bill will still allow the commissioner to go into a workplace to investigate; so, the commissioner has been given some investigative powers.

The Equal Opportunity Tribunal itself has a change which I think is eminently sensible; that is, there is a new provision that will allow the tribunal to be constituted of a presiding member, or the deputy presiding member, sitting alone when determining a question of law or procedure. I think that that is an eminently sensible and reasonable approach to take, because, basically, the presiding member will be a lawyer who has some understanding of questions of law and procedure. It is more than appropriate that that person be able to sit alone to decide that. Often, of course, people are not aware that tribunals, when they sit, are not necessarily triumvirate; they are often constituted of people sitting alone. Nevertheless, they are called tribunals, such as the Administrative Appeals Tribunal.

In terms of sporting or other clubs, I indicate that this is an area where we will have a conscience vote. Basically, there is an existing exemption which allows clubs and associations to discriminate on the ground of sexuality. There seems to have been some confusion out in the community. I think a lot of people got the idea from this that there is some sort of basis for saying, 'You're not going to be able to discriminate on the grounds of gender'—and I would prefer that we use 'gender' rather than 'sex' in those circumstances.

My personal difficulty with this is that the effect of this section, as it is now worded, seems to me to be that it will be lawful, for instance, for a group of gay guys to get together and form a football team—more power to them should they want to do that; that's fine. What I find strange is that it will be unlawful for a group of straight guys to get together and form a football team and say, 'We're not having gays in here.' Fair is fair, to me.

It is an area where I think we are going in for affirmative action, in a way. To some extent, I can understand arguments for affirmative action, because there are groups in our society that have been downtrodden for rather a long time. That said, I have generally, throughout my life, been opposed to affirmative action. I think if I get appointed to something because I am female, I want to be appointed really because I am the best person for the job.

Members are no doubt aware of my constant arguments in this place about the provisions when we set up a new board under any piece of legislation and the government insists on putting in a clause that provides there should be one member who is a male and one member who is a female. My view of equality is that we have reached equality only when we do not even have to think about that, that, obviously, the best people for the job get the job.

Mrs Geraghty: That may not necessarily be applying to these people a female agenda: it might be there for men.

Mrs REDMOND: Yes. As I said, I can understand the arguments for affirmative action. My instinct and my general habit has been that I do not approve of or support affirmative action clauses, so this will be a conscience vote. However, because I find it just so inconsistent that you can have an all-gay football team but not an all-straight football team, I do not think that is a reasonable basis for legislation. However, as I said, it is not something that I think is the be-all and end-all of this legislation.

I am glad that the legislation has been amended as broadly as it has been, so that most of the concerns that we raised (which concerned, as I said, the ability of business to just get on with running a business and not have to be tied up with the red tape of this legislation) have been addressed. Some of them have been compromised, some have been removed and with some the government has come to the position that we were putting to it when we last discussed the previous bill. So, I thank the government for taking on board many of our comments in relation to this legislation.

With those few words, I indicate to the Speaker that I have concluded my comments on the second reading of the Equal Opportunity (Miscellaneous) Amendment Bill 2008.

Debate adjourned on motion of Hon. S.W. Key.

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