HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-07-14 Daily Xml
Contents
Pdf Xml

EQUAL OPPORTUNITY (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 18 June 2009. Page 3346.)

The Hon. R.B. SUCH (Fisher) (11:39): I will make some brief comments. I want to see the equal opportunity reform legislation through as quickly as possible, with one change that I have foreshadowed by way of amendment. The amendment 90(1) I will not pursue because it becomes redundant, given that I have on file 90(4). Both amendments deal with the same clause, but No.4 supersedes No.1. I commend the government on the fact that it modified the original bill. It has deleted certain things, which I thought would have been problematic, one being discrimination based on the area of residency and profession, which I thought was probably extending the boundaries of this legislation a little too far. Also, I certainly welcome the provision that allows that in an employment situation it is possible to require someone to show their face for the purpose of reasonable identification.

I was pleased that the Attorney brought about that change, because we know that in the United Kingdom there was a situation where teachers had their face covered so the children could not even see the face of the teacher. To me, that is just silly and ridiculous. Likewise, you could imagine what would happen in a retail outlet where someone under the previous provision could have their face totally covered and was trying to serve customers, so I think it was sensible to remove that.

There are also other grounds for concern that could still exist. For example, a person could go into a bank fully covered and you would have no way of knowing who that person is. Someone could come in and carry a gun under their outfit and have their face fully covered, pretending that they are a member of a particular religious faith, when they had an ulterior motive. There are some changes, in relation to employment, and I welcome those.

There is one provision in the bill as it stands before us now that I cannot accept, and that is to allow church schools to discriminate on the ground of sexuality. We know in the other place that an amendment was moved that meant those schools no longer have to put on the web the fact that they wish to discriminate. I find it outrageous that someone can be discriminated against on the ground of perceived sexuality—whether they are gay, lesbian, transsexual, or whatever—because I cannot see what it has to do with teaching maths. I have a close relative who is homosexual and who works in a Catholic institution (not a school), and he is fantastic and they love him and he does a great job. What is the difference between someone like that working in a Catholic hospital and ministering to those in need and someone working in a school? I have had a lot of interaction with some of the churches that I would categorise as more towards the fundamentalist end of the spectrum—I actually grew up in one of those churches, so I know a little bit about them—and I find it unacceptable—

The Hon. M.J. Atkinson: In that case, they have a lot to answer for.

The Hon. R.B. SUCH: Well, they do, because I turned out the way I did partly as a result of their influence. Most of what they do is good, but I do not accept discrimination on the ground of sexuality because I do not think it is relevant in terms of someone teaching in a school.

What is relevant is if a person seeks to behave or advocate in a way that could undermine the teachings or faith associated with that school. That is why I will move an amendment. It is written in legalese, but effectively it means that the church school could discriminate only in the sense of not employing or getting rid of someone if that person actively, publicly and explicitly went out to undermine the teachings of that church or church school. So, if someone is gay, lesbian or transsexual and doing their work in the school, not out there publicly advocating something contrary to the teachings of the church or school, I do not see why that person should be victimised and not allowed to work in that school. That is what I will seek to do with the amendment that I have tabled.

I think that is a fairer way to go about it. As I said, I have had a lot of interaction with people who are involved in some of the religions that take the Bible in a very literal sense, and it is fair to say that many of them seem to be happy with the approach I was taking. At the end of the day, it is up to them whether or not they agree with what I am proposing, but I think in terms of equal opportunity it is much fairer to say that you cannot be discriminated against because of your sexual orientation unless you actively, publicly and explicitly go out to undermine the teaching of the church or the church school.

It also raises the issue of how you know whether someone is gay, lesbian or transsexual. We know that people's sexuality varies in the sense that there are degrees of maleness and femaleness. How will you decide whether or not someone is of a particular sexual orientation? Someone sent out an email—this person writes a lot of letters to the paper, and it is not me who sent the email—saying that you can tell these lesbian and gay people because they have tattoos and particular hairstyles. That is fundamentally wrong. You cannot tell someone's sexual orientation by whether or not they have a tattoo. It is just silly.

The argument that is trotted out is that these people have an illness, but that is not backed up by the scientific literature that I read; in fact, the consensus is that people are born with a particular sexual orientation, which may be cultivated and allowed to have expression, but people do not become homosexual because their mother gives them a bit more attention than the other siblings. There is no evidence to back up those sorts of claims. To me, the suggestion that these people have an illness that can be treated is rather strange, because it is not backed up by any scientific evidence.

To discriminate on the grounds of someone's sexuality, to me, is in the same category as discriminating on the grounds of race. If you are born with a homosexual orientation, that is the way you are, and it is no different to someone being born black or some other colour. I do not think it has a place in an equal opportunity bill; it is a contradiction to suggest that you can discriminate against a person because of their perceived sexuality.

It would not apply just to Christian schools; I am sure that some other faiths would be seek to discriminate as well, but I would have thought that in a Christian faith there is a lot of emphasis on love, tolerance and compassion, not the harshness and rejection that some of these people want to perpetuate by way of rejecting up to possibly 8 per cent of the population.

I have a strong objection to this section of the bill that would allow a church school—and I note that some of these people are saying it should apply to church businesses—to discriminate because of someone's perceived sexuality. Would that mean that someone who is male who shows some effeminate characteristics or has the so-called female side to them would qualify as being in the category to be discriminated against? That is my fundamental objection.

I urge the people who are pushing for the rejection of these people on the grounds of their sexuality to take a bit of time to re-read the New Testament and have a look at some of the fundamental aspects of Christianity which, as I just said, are based on love, compassion, tolerance and acceptance. It does not mean you have to agree with someone, but I think to exclude them simply because you do not like their sexuality is harsh and, to my mind, unacceptable.

With those words, I look forward to the debate in committee. I do not know whether my amendment will succeed, because I am not one to go around lobbying people. I believe people in here are adults and the parties make their own decision when it is not a conscience matter. I want this bill to be passed but, at the moment, it has this flaw which I think we can address. I am sure the overwhelming majority of the population would say that it is time we moved on from discriminating against people simply because of their perceived sexuality.

I am sure Don Dunstan, if he were still around, would be horrified that we are putting a bill through parliament which enables a church school to discriminate on the grounds of perceived sexuality, because it could be used and abused to get rid of people who are not wanted. You have to ask the question: how do we categorise them as lesbian, gay or transsexual? I think it would be best to delete what is currently in the bill and adopt the amendment which I will put later.

Ms CICCARELLO (Norwood) (11:50): I rise today to speak in support of this bill. South Australia has a proud history of social justice and tolerance and, once upon a time, could boast that it led the way in providing equal opportunity protection to its citizens. The Equal Opportunity Act, enacted 25 years ago, was amongst the earliest comprehensive pieces of equal opportunity legislation in Australia and augured well for continuing our fine reputation. However, as we are all keenly aware, that is not enough. Legislation needs to be periodically monitored and reviewed and, if appropriate, it must be amended to remedy deficiencies, improve practices that have changed with time and technology and, most importantly, to ensure that the intention with which it was enacted remains relevant today. Previous governments have not borne this fundamental principle in mind and so, inevitably, what began as a charter for freedom and inclusion all those years ago now stands as testament to at best, inaction and, at worst, to prejudice.

Our status as a leader in equal opportunity has been consistently diminished by an act that is woefully outdated and which now fails to protect many South Australians against unjustified discrimination. South Australia now lags well behind the other states so I am delighted that this government is taking the necessary action to bring us back to the pack. The need to amend this act has been clear for many years. In 1994 the Liberal government commissioned Brian Martin QC to review the legislation and, after extensive consultation, Mr Martin published a report containing many recommendations—so far so good.

However, the government then decided to consult again and again and again. An astonishing six years after the Martin report it decided to introduce a bill which only dealt with some of the recommendations. Two years after that, at the 2002 state election, the bill had not gone through even one house of parliament. After eight years of stalling and eight more long years of a bill that was already substandard and out of date, the Rann government went into the 2002 election with a clear policy to modernise the Equal Opportunity Act.

In 2003 it published a comprehensive framework paper setting out its equal opportunity reform agenda, and its unqualified position was best summed up by the concluding line in that paper which stated:

The government is, however, mindful that changes in this area of law are long overdue and that many of these matters have already been the subject of extensive consultation and public debate both in the context of the Martin report and the lapsed bill. The government, therefore, wishes to legislate without undue delay.

Little did we know (but perhaps should have suspected) the opposition we would face in getting our proposals through. Our amending bill, introduced in 2006, faced insurmountable obstacles from the Liberal and minor parties, and lapsed in September of last year, with the result that the bill before us today sadly, but inevitably, is a compromise. I have read some reviews and criticism that this legislation is a pale imitation of our original bill and that now, having been amended by the other place, is weakened even further.

I remember the same criticisms when we introduced the domestic partners legislation a few years ago but I remind the detractors now, as I did back then, that it is better to get the vast majority of reform through rather than nothing. To use a cliché, don't throw the baby out with the bathwater.

Whilst this bill is not as strong as we had originally intended, I am also sure that the outstanding issues will live to fight another day. Most importantly, there is no doubt that the legislation before us today will make huge leaps forward in equal opportunity reform. The Attorney-General has already outlined these in great detail in his second reading speech, and I would like to take this opportunity to acknowledge the hard work that he and his department have done in making sure that this bill is, once again, before the parliament.

As time constrains me from talking about each new change (which I would love to do) I will focus my attention on a few in which I have had a particular interest and involvement. As a member of the Select Committee on Balancing Life and Work Responsibilities, I spent a great deal of time listening to people across the state telling stories about the difficulties they face in attempting to balance their professional and private obligations. Whether they were everyday Australians or representatives from larger organisations, they all came forward with the same fundamental message which was that work and family responsibilities must not be mutually exclusive concepts and that their co-existence could, in fact, only make for a happier and more productive workplace—and I completely agree.

If we want our state to be the state of choice for workers and their families and we want our employers and workplaces to attract the brightest workers by offering them innovative and understanding environments, we must lead the way in offering them exactly that, and that is why the select committee supported this government's intention to introduce legislation which provided for protection from discrimination on the grounds of life responsibilities associated with family and caring. The equal opportunity bill, for the first time, now recognises these caring responsibilities.

There was considerable comment during debate on the previous bill, particularly from the new Leader of the Opposition, that there was no need for these provisions since the commonwealth Sex Discrimination Act already covers the field in relation to family and caring responsibilities. That is patently wrong: the Sex Discrimination Act does not bind all South Australians and definitely does not cover the field. First, it does not bind the Crown in right of state and therefore does not apply to state instrumentalities; and, secondly, it is extremely limited in its scope. Its family responsibility provisions apply only to discrimination which results in dismissal from employment and only applies to employment and not any other area of public life and is limited to direct discrimination.

I argued in the select committee that these provisions were way too narrow and did not offer carers much protection at all. This is an untenable failing of the Sex Discrimination Act, especially given the invaluable role carers perform within our society. Their contribution to family and community life is immense, and this can be encouraged and maintained only through legislative protection. I am therefore delighted that, under this bill, any discrimination on the ground of caring responsibilities will now be unlawful across this state and will apply across all areas of public life. I am also pleased that it will take into account indirect, as well as direct, discrimination. As I learnt from my time on the select committee, it is indirect discrimination or the setting of unreasonable requirements which persons with caring responsibilities cannot possibly meet which affects them the most, and the key word here is 'unreasonable'.

The bill does not give carers any special privileges, such as leave during school holidays or exemptions from weekend work or an early minute from work to pick up children. What it simply means is that employers must have sensible reasons for the requirements they set, which in turn can only lead to a happier and more productive workplace, not to mention the promotion of South Australia as a family-friendly employment destination. To this end, the inclusion of breastfeeding as a specific ground of discrimination for providers of education and goods or services and the inclusion of association with a child as a specific ground for providers of accommodation and goods or services can only enhance that image.

One of the more controversial aspects of the bill, which unfortunately always seems to be the case, is that relating to sexuality discrimination. I have spoken on this topic many times before, yet it never ceases to amaze me what a barbecue stopper it continues to be. With South Australia enacting the domestic partners legislation in 2007 and the commonwealth removing same-sex discrimination from a raft of federal legislation late last year, one would think this would be fast becoming less of an issue, yet I received many more representations (as I am sure is the case with other members) on this particular aspect of the legislation. As a member of an electorate with a large number of same-sex individuals and couples, I consider it my responsibility to address the measures relating to them.

While sexuality discrimination is unlawful under the current legislation, there are some specific exemptions. The first is that any association, other than trade unions and employer groups, is allowed to discriminate on the ground of sexuality. There is no justification for this rule, and it serves only as a restriction of the rights of gay people to participate in many aspects of public life. I am pleased this exemption will be almost abolished. I say 'almost' because an association administered in accordance with the precepts of a religion can still discriminate on the grounds of sexuality. The second is that partnerships of six or fewer persons can refuse a person partnership on the ground of sexuality. This is an absurd exemption. If it is unlawful to refuse a person employment at a company because of their sexuality, it is nonsense then to say that they can be refused an opportunity of becoming a partner. This exemption is also being abolished.

The third and perhaps most controversial is the existing exemption for any institution that is run in accordance with the precepts of religion. I personally think this exemption is far too wide. Even if anecdotal or research evidence shows that the provision is only being utilised in relation to the employment of homosexual staff at religious schools, this all encompassing exemption still needs to be removed from the statute book. I believe there is overwhelming support for this view, although the argument remains as to whether educational institutions should still be included in this exemption. I can understand both sides and their point of view.

On the one hand, these schools receive, and accept, public funding. They, therefore, should be held accountable to the legislative standards set by the representatives of the people. If they do not like those standards, then do not accept the funds. On the other hand, these schools are also deeply committed to the teaching of their faith and religion, and they fervently believe that homosexuals should not teach in their schools.

Weighing up both points of view, I am inclined to support the first. I believe that endorsing the latter sends an implied, if not pretty blatant, message that homosexuals are not capable teachers, are a threat to the student populace and, indeed, a menace to the tenets of a school's religion. This is particularly so since the rationale of exempting schools, rather than an aged care facility run by a religious organisation which is now no longer exempt, must boil down to the fundamental issue of homosexuals teaching students.

In today's society I do not believe there are many people who think this is a problem. Would a parent at these schools condone the refusal of employment or sacking of an otherwise qualified and experienced teacher simply because of whom he or she loved in their private life? Would a parent refuse to send their child to a school because a homosexual was teaching there?

I do not believe that anything close to the majority would—surely their decision would be based on the quality of the school and the expertise of the teacher—but in allowing the views of the school administration to ultimately prevail, the wishes and interests of the parents, not to mention the students, are ultimately ignored.

Again, I understand the realities of politics and, although I do not like the exemption, I am pleased that at least provision has been made for these policies to now be given to prospective employees and, on request, to anyone who asks for it. I would have preferred the original intention of this government that such policies be published on the school's website.

It seems to me that if a school so fervently believes that it has a right to discriminate based on its religious ethos, then it should not have a problem with making that belief readily and publicly accessible. However, I am sure, in any event, that it is only a matter of time before several internet sites emerge with details of each school's position on this matter. I just pose the question: would people like Michelangelo, Leonardo Da Vinci, Sappho, Socrates, or any of these people, have been discriminated against by schools and not be given the opportunity of passing on their knowledge?

The last aspect of the bill which I want to speak about is that relating to disability. Disability discrimination under the current Equal Opportunity Act consists of intellectual and/or physical impairment. However, these are defined quite narrowly. For instance, intellectual impairment only takes into account any condition that results in an actual diminution of intellectual capacity. It expressly excludes mental illness.

Physical impairment more takes into account the visible signs of disability, such as malformation, malfunctioning, disfigurement or the loss of a body function or part. However, the commonwealth Disability Discrimination Act has a much broader definition. It includes, for instance, psychiatric, neurological and learning disabilities and the presence in the body of disease-causing organisms.

It is true that all South Australians, including state government instrumentalities, are covered by the commonwealth act due to the fact that it binds the Crown in right of each of the states. However, due to the fact that the South Australian law is far narrower than the commonwealth law, complainants who are not covered under our legislation have had to take their complaints to the commonwealth body, the Australian Human Rights Commission, based in Sydney.

It has long been argued that our act should mirror the broader definition of disability in the commonwealth act and I am pleased that this bill does exactly that. Complainants now have a right of recourse to the Equal Opportunity Commission here in Adelaide. Mental illness is not a stigma and sufferers should not in any way be treated unfavourably in public life. Sufferers and their families already carry a weight that does not need to be laden any heavier.

I am also pleased that this bill will cover non-symptomatic physical conditions such as, for example, being infected with the HIV virus. Like mental illness, this is not a shameful condition, and people with HIV have as much right as anyone else to partake in a full life. Lastly, the bill adds 'learning disabilities' to its expanded definition. This is extremely important in the context of education and training and will provide additional protection to those who find learning more difficult than others.

There are other significant changes such as those relating to identity of spouse, religious appearance or dress and sexual harassment. All these reforms are worthy and reflect, more appropriately, the community standards of today. I only wish that I had more time to address them all.

The Equal Opportunity (Miscellaneous) Amendment Bill has travelled a tortuous path to be here today. Through intense lobbying, through hard-fought negotiations, and ultimately through compromise, this bill, while perhaps not encompassing everything that this government and I had hoped for, nevertheless represents a significant advancement in social justice and human rights.

I would, once again, like to compliment the Attorney-General, his office and his staff for the work that they have done in bringing this forward, and I commend the bill to the house.


Dr McFETRIDGE (Morphett) (12:05): This is not quite groundhog day, but I have vivid memories of debating mark 1 of this legislation on the last day of the last term of the last parliament. There were more keen spectators in the gallery than today, and I remember that passions were running high on both sides of the house that night. Certainly, while we should never acknowledge people who are in the gallery, at the time comments were being exchanged. It was an interesting experience for me to see the Liberal Party being blamed for stopping this legislation back then. As a result of the amount of work I had done on the legislation and talking to groups, I know it certainly was not us stopping or slowing down the legislation. We were not doing anything other than contributing to an advancement of social rights in South Australia; and this legislation is doing that. Don Dunstan is the champion of social welfare reform in South Australia, according to many people, and I think he would be pleased to be alive to see this legislation being debated and passed.

This is an important piece of legislation. While there is a lot of emphasis on discrimination on the grounds of sexuality, there are a lot of other issues on which we need to ensure that people are not being discriminated against. Yesterday afternoon in the Aboriginal Lands Parliamentary Standing Committee we were talking to some witnesses about the continual undercurrent of racial discrimination that still exists when Aboriginal people are seeking to go into rental accommodation. It is sad that in 2009 people are being judged on the colour of their skin and being stereotyped because some people act in antisocial ways and abuse the opportunities they have.

Racial discrimination and other matters, right through to whether there is some underlying disease process that does not inhibit the way in which you are able to function in society, are things about which we have to be very careful. On three occasions I have introduced private member's bills into the parliament—which have lapsed because parliament has been prorogued—to try to stop any discrimination on genetic grounds. Nowadays there is a myriad of genetic tests available to give some prediction of your susceptibility to disease processes in everything from breast cancer (which is most commonly talked about) through to bowel cancer and heart disease. There is now a range of diseases for which you can be tested and genotyped and, as a result of that genotype, be given a strong prediction of whether you are susceptible to a particular disease.

The health and welfare benefits of undertaking those tests are immense. If you can change your lifestyle and diet or go onto particular medication early in life, you may be able to prevent the predisposition to that disease becoming a full-blown disease. The savings on the health budget would be huge. There is a real reason for being able to use genetic testing at every possible opportunity.

The problem I have—and I have been assured by the equal opportunity commissioner that this will not be an issue under current federal and state legislation—is that people may suffer discrimination. If they have had a genetic test which discloses they are predisposed to, say, breast cancer or heart disease, they may have difficulty in finding employment, getting insurance or taking out a bank loan; and to be put in that position would be completely unfair. Someone who did not have the test may have the same genotype and be predisposed to the same disease, but they may not be discriminated against because they are not aware of the information. Discrimination on those grounds would be completely unfair. My private member's bill was aiming to stop that discrimination, but I am very pleased to be comforted by the information from the equal opportunity commissioner that that could not be done under either this legislation or the federal legislation.

The other area where there is some possibility for discrimination on genetic grounds (and I think that it will be an interesting one to watch) is in the sporting arena. I know that in the current Tour de France issues have been raised about genotyping the cyclists. Team members could possibly be selected on their genotype for their muscle type.

Certainly in football and in all sorts of sports there is a possibility for discrimination on genetic grounds. It is an area that we will have to watch. We will have to be aware of the changing technologies and make sure that, just as we have changed this legislation from when Don Dunstan introduced it, we do amend legislation as is appropriate so that we can ensure that people who, through no fault of their own, are put in a particular circumstance or advantage (perhaps if they are a sporting person) because of their genotype and that we are not getting discrimination—that we are not having an A team and a B team based on genetic grounds. It is something that we need to watch.

Some amendments have been made to the bill that I will be further considering. There are a number of conscience votes for members on this side, so I will probably be sitting on both sides of the chamber for different votes on this piece of legislation. I support the legislation in its intent, and I hope that it does produce the outcomes that we all want, that is, for a fair and just society with no discrimination that is in anyway unjust.

The Hon. S.W. KEY (Ashford) (12:11): In 1975, South Australia was the first state in Australia to introduce the Sex Discrimination Act, and in 1984 the Equal Opportunity Act was one of the first pieces of legislation in the country to bring together different anti-discrimination laws in one act. Since that time, as the member for Norwood said, other states and territories and various federal governments have updated their equal opportunity anti-discrimination legislation.

I was very fortunate to be involved in looking at the 1984 act. As a group working towards that legislation we felt that one of the achievements was recognising sexual harassment as an issue, and also looking at making sure that people understood that people had different sexuality. In those days we were not quite up to the standard of looking at people's sexual orientation and transexuality, but certainly sexuality was on the agenda. I think that the group of people I worked with (as well as me) were very proud to be part of the campaign for the 1984 Equal Opportunity Act.

Since that time, as a trade union official in particular, I had the opportunity to advocate on behalf of people who felt they had reason to use the equal opportunity legislation in the areas of age, sexual harassment, sexuality gender and maternity. Quite often there were issues of indirect discrimination as well. For those reasons, and, I guess, because of personal experience, I felt very strongly about the fact that South Australia needed to keep up with the equal opportunity and anti-discrimination legislation that was happening all around us, but, sadly, not in this state.

I think that today has been a long time coming. As the member for Norwood has already eloquently said, this has a whole history for many of us in the Labor Party. At a very early Labor convention we introduced a Labor Party platform which talked about justice in the law and our rights and responsibilities of equal opportunity. We said:

Labor will modernise the state equal opportunity and anti-discrimination legislation to ensure a comprehensive protection of South Australians against unjustified discrimination. Labor will provide for antivilification legislation to be extended to other groups within the community as appropriate.

We also said we would review the Equal Opportunity Act to enhance its effectiveness and, in particular, to:

include an increase in the time for lodging complaints and the ability of the tribunal to grant extensions of time;

extend disability discrimination to mirror the definition of the Disability Discrimination Act;

amend vicarious liability provisions to place onus on the employer to establish that they take all reasonable steps to prevent discrimination, harassment or victimisation;

ensure that provisions relating to age and industrial relations are enforceable;

extend the grounds of discrimination, for example, to include discrimination on the ground of family/caring responsibilities, locational disadvantage, including indirect discrimination; and

extend the areas covered by the act to include independent contractors.

We also said that we should ensure that same-sex relationships are recognised in the same way as heterosexual relationships, in terms of the provision of the act and that we would review the current avenues of complainant support and advocacy, including representation at a hearing in the tribunal; ensure the adequate resourcing of advocates to assist complainants; and ensure shorter response times for the resolution of complaints and inquiries, including timely conciliation proceedings, and whether the complaint is deemed to have sufficient grounds to proceed.

That policy went on, in our Labor Party convention in April 2002, to include (again, under this chapter) the removal of legislation discrimination. Labor supports a comprehensive review of all state legislation to remove discrimination against gay, lesbian, bisexual and transgender people. Under our social justice platform, the resolution was that Labor will implement its platform and remove discrimination against same-sex couples from state legislation following a review. I am pleased to say that this has been carried out by the Rann Labor government. The campaign has a long history attached to it to make sure that not only do we have Labor Party platform policy but also that it becomes a reality.

The reason why I am raising this in particular today is that I think tribute needs to be paid to the ALP members who have worked so hard (and there are a number of them) to try to make sure that our Labor government has appropriate anti-discrimination and equal opportunity legislation. I am very pleased that this sentiment has been taken up by the Rudd Labor government at a federal level, particularly the more recent changes with respect to same-sex couples.

A number of people in the Public Service have also worked very hard, along with our Commissioner for Equal Opportunity, Linda Matthews, and have assisted members on both sides of this house to make sure that we have up-to-date information and can look at legislation which not only takes a high moral ground but which is also useful and actionable. I would like to thank all those people for the great work they have done over the past few years, particularly since 2002, when I have had the opportunity as a minister and also as a campaigner on the back bench to see how they have assisted us. I thank them, and especially the commissioner, who I think has been very helpful to all parties in this debate and made sure that she has provided fearless advice, which has perhaps answered some of the questions—

Mrs Redmond: Frank and fearless.

The Hon. S.W. KEY: Yes; frank and fearless, as the member for Heysen said—to all those involved.

An honourable member: The leader!

The Hon. S.W. KEY: I was getting to that. This is also a good opportunity, in noting the interjection of the member for Heysen (which she is prone to do and it looks as though in her new role as the leader she will continue to do), to congratulate her on being elected as the first woman to lead a major party in South Australia. That is certainly wonderful news.

To return to the advice we have received, a number of people have tried very hard, particularly in the other place, to make sure that this day did not happen. I have been very impressed with the advice and the patience and tolerance demonstrated by both the various ministerial staff (particularly in the Attorney's office) and the commissioner, and I put on the record my thanks to the Attorney for the number of years in which he has also been campaigning for not only same-sex couples legislation but also equal opportunity legislation. I would like to publicly thank him for the work that he has done in that respect.

As the member for Norwood has said, both this legislation and the domestic partners legislation that we ended up with were not exactly what a number of us had intended, and I am personally disappointed that we were not able precisely, in my view, to enact the Labor Party platform. Having been someone who is very interested in policy, and also very interested in having policy that is actionable, I would like to think that we could deliver on the Labor Party platform. However, I think the point here is that we have legislation that is workable and that hopefully everyone in this chamber will see the sense of and support. Like many things, this is probably the best we are going to get at this stage.

I think that does mean, though, for a number of us in the Labor Party, that this will not be the end of the campaign for equal opportunity and antidiscrimination legislation. We might have to come up with different tactics to work out how we achieve our ideals, but I guess that is part of political life in any case. Congratulations to everyone who has worked so hard to get us to this stage. I would also like to take us back to why we have an Equal Opportunity Commission. As I said, I have had the pleasure of being involved with the Equal Opportunity Commission and various commissioners over the last 20 years, and I have been very impressed with the work they do.

The most recent annual report (2007-08) was interesting, and sometimes alarming, reading. When I say alarming, I was particularly disturbed but also appreciative of the case Colquhoun v the SA Trailer Boat Club 2007. Members in this house will probably remember from the media that, in 1979, Ms Colquhoun applied for membership of the SA Trailer Boat Club. She had been involved with the club since she was a child and her father was a life member. Ms Colquhoun was advised that the club was not accepting applications for female membership when she applied at various times.

I do remember, certainly in the early eighties, a number of cases where women were not allowed to join different clubs and associations just on the basis of their gender rather than their interest in the area, their merit (which is an issue that is often brought up) or anything else. It was just the fact that they were women that meant that they were not allowed to join. It was sad to see that case here in the 2007-08 report but there was resolution to that particular issue.

I notice in the report that there were 287 complaints lodged. The report states that a total of 258 people complained to the commission this year and 29 of them complained on more than one type of discrimination, totalling 287 complaints altogether. Of the 258 people, 146 had complaints that could be accepted and addressed under the South Australian equal opportunity law. It is worth mentioning who could not complain as per the Equal Opportunity Commission Annual Report, which states:

Through our enquiry service, we made every effort to assist people wanting to make complaints, but there were a number of people we could not help. Often these were people who felt bullied in the workplace, but the bullying behaviour was not the type of discrimination which was unlawful. People were also unable to complain when they were treated unfairly because they needed to look after young children or old relatives, as this type of discrimination is also not covered by our current laws.

One of the things that I am really pleased about over the last 20 years is that we are now recognising that a number of us in the community have caring responsibilities, and this has certainly been taken up by the Rann Labor government on a whole lot of levels and, as I understand, by the federal government as well. So, I think that certainly is an advance forward but, as with other legislation that comes to this place, I guess it is what the chambers agree on that ends up being the legislation, and there has to be compromise. The two things that I find difficult about being an older member of parliament are the words 'moderation' and 'compromise'. I do not particularly like them or take either of them lightly, but I guess that is just something that we have to live with.

In summary, I would like to congratulate everyone who has been involved in campaigning for this legislation. I look forward to the next planning meeting that I am sure we will have shortly to work out the next stage of the equal opportunity and anti-discrimination legislation campaign in this state.

Mr PEDERICK (Hammond) (12:26): Regarding this bill, I want to read into Hansard some letters from constituents, mainly in regard to section 50, relating to religious bodies, and where people feel there are issues with the bill. I quote from a letter from Timothy Koch as follows:

I am writing regarding the Equal Opportunity Bill 2008. Is the quote below accurate? Under the current SA Equal Opportunity Act, churches and faith-based organisations have the freedom to discriminate on the ground of sexuality in their choice of staff.

However under the new Equal Opportunity (Miscellaneous) Amendment Bill 2008, churches would retain this freedom—but not para-church agencies or faith-based bookshops such as Word or Koorong. If so why is it OK to discriminate against people on their core faith belief but not on their choice of sexuality?

As a Christian I'm getting the feeling that it is OK to be anything else, but for the state's sake don't be a Christian. Why does this bill protect everyone else's rights but neglects mine? Don't I have a right to believe in the Christian faith and to express it in my life—obviously not!

As my representative I would ask you to seek to amend this bill which is so blatantly designed to attack Christianity. Please don't try and legislate religion, it always becomes a messy business. Allow people to express their faith frankly but with respect. Allow people the room to disagree. Please don't play God legislating what we can and can't believe.

I would strongly encourage you to look at amending the bill to allow churches and faith-based organisations to have the freedom to express their differences showing respect to those they disagree with.

He makes further comments:

Thank you for serving this community. May Christ bless you with wisdom in performing this important role. I certainly appreciate the political system we have in Australia, and the large amount of time and effort our representatives put into serving us as a community. Thank you.

Yours sincerely,

Timothy Koch.

I think that, especially in those final remarks, Timothy Koch is a fair-minded person just seeking to have the right protections for religious-based bodies, such as schools, to get on with the job that they wish to do. I will also quote from a letter along a similar vein from David Gordon, who writes:

Dear Mr Pederick,

I am writing to you as a representative of the people of South Australia to ask you to consider the implications of the new Equal Opportunity (Miscellaneous) Amendment Bill 2008. My concerns are as follows:

my wish is to see religious freedom retained in South Australia;

I support the changes to the Equal Opportunity (Miscellaneous) Amendment Bill 2008 made in the Legislative Council in April, but a serious problem remains as neither para-church agencies nor faith-based organisations will have the freedom to choose staff who uphold their beliefs.

Importantly, politicians have the freedom to choose staff with their political beliefs and faith groups should have the freedom to choose staff whose lifestyle upholds the group's religious beliefs.

So, I am asking that you please amend the Equal Opportunity (Miscellaneous) Bill in order to keep section 50(2) in the South Australian Equal Opportunity Act. This will allow faith-based groups to retain their current freedom to choose staff who uphold their beliefs and values regarding sexuality. Finally, thanks for carefully considering the concerns I have mentioned.

Another letter in a similar vein was received from Pam Morgan, a constituent from Geranium, who wrote:

Dear Members,

I realise this bill is about to be debated again by the parliament. Thank you for all the improvements which have been made to the bill so far.

I ask that you vote to amend the Equal Opportunity (Miscellaneous) Amendment Bill in order to retain section 50(2) in the South Australian Equal Opportunity Act, so that organisations based on a faith can retain their present freedom to choose staff who also uphold their beliefs and values regarding sexuality.

We should all, no matter what business we are in, have the right to select staff whose lifestyles we admire and respect. Thanking you for your time and attention.

I have read those letters onto the record because they are from constituents of mine who are concerned enough with the passage of the bill through the houses to voice their opinion, and I think they do have some valid concerns.

Faith-based groups could be loose groups connected to religious organisations or even educational facilities. There are many church-based educational facilities in the private sector: Catholic, Lutheran, Anglican and others, and I can understand why people want the freedom to conduct their business in the way they want. However, in saying that, if an educational professional comes to them who does not fully concur with their religious beliefs, at the end of the day it is up to them (if they can see that person's educational qualities) as to whether they employ them. I doubt that they would, but I can understand why religious bodies, especially those in tandem with educational facilities, want that freedom and the knowledge that they will not be prosecuted for how they hire people in their line of business.

It will be interesting to watch the passage of the bill through the committee stage, and I note that section 50 requires a conscience vote by members on this side of the house.

The Hon. J.W. WEATHERILL (Cheltenham—Minister for Environment and Conservation, Minister for Early Childhood Development, Minister for Aboriginal Affairs and Reconciliation, Minister Assisting the Premier in Cabinet Business and Public Sector Management) (12:34): I commend the bill to the house, and indicate my strong support for it. I do not want to detain the house for long, but I do want to want to mention one story, that of a client I had the privilege of representing before the Equal Opportunity Tribunal. Sadly, for her, though, her case ended up being lost on a technicality, a technicality that will now be remedied by this bill. I want to spend a moment talking about this woman—I do not want to mention things that will identify her, even though the case was reported—to give you some appreciation of the gravity of the matters that we are debating.

This particular case concerned a woman who, over a long period of time, worked at a particular retail outlet, where she had for years endured sexual harassment, which probably could have even amounted to sexual assault. It had occurred over a period of time. Her circumstances and background meant that she needed to keep this job. In fact, she recounted in her evidence that she put up with the sexual harassment in her workplace because she needed to work to make the money to ensure that her children could go to school wearing the sorts of clothes that she wanted them to wear. She did not want her children to stand out from other children. She remembered, when she went to school, how humiliated she was as a person who stood out from the crowd because she had such poor clothing. So, she put up with the sexual harassment, which went on for a number of years.

She ultimately left that employment and went to other employment; but, once again, through economic circumstances, decided to go back to continue working at this workplace. What then occurred is that this person (her employer at the time) had returned to this workplace albeit in a different capacity. He was employed as a provider of services to this retail outlet. He was not the employer of the woman and he was not a fellow employee; he was, in fact, employed as a contractor. He sexually harassed her again.

However, because she was out of time to claim the previous acts of sexual harassment, she could only demonstrate that she was within the province of this legislation by demonstrating a series of acts the last of which occurred within the relevant statutory period. However, this last act was precluded from being within that legislation because of this technicality. So, because the same man, who had sexually harassed her, was now at the workplace in a different capacity, this time as a contractor, it meant that, as a matter of technicality, she could not succeed.

I must say that I was very grateful to the tribunal in this case because it adjourned the case and came back and said, 'We believe this sexual harassment has occurred', despite the fact that all these awful arguments were levelled against her about why she had not complained, why she had put up with it and why she had gone back to the employer: all the same arguments that are always levelled against less powerful people when they do not feel they are entitled to claim in the circumstances. She endured all of that, and the judge, nevertheless, found that she was telling the truth, but he was troubled by the legal issue that he asked to be addressed on for further argument and, sadly, she lost on that technicality.

I committed myself, when that case occurred, to remedying that injustice, and I am very proud to stand here as part of a parliament that is doing something to remedy that injustice. The happy part of that story is that, even though she lost the case, the woman was very proud that the tribunal believed her. That was a very important thing for her, and it was a very important thing for her daughter, that she took this on and made that man stand in the witness box. I must say that I made him squirm, and he deserved to. So, there are some important benefits from this legislation: important for her self-respect, important for the message she sent her daughter, and important for all men and women to know that they are entitled to go to work in workplaces free from harassment.

Mr PISONI (Unley) (12:40): I suppose I could start this speech by saying I have a dream; that is, that we live in a society completely free of discrimination and a society that has equal opportunity for everyone. I speak very passionately on several grounds. I have had several conversations with my father about the discrimination and the lack of opportunity because of that discrimination when he arrived in Australia in 1952. The story of the birth of Australia as a multicultural nation, if you like, started with the Italian, Greeks and other southern Europeans of the post-war period in South Australia. It was not an easy task. My father looked slightly different. I think he only just scraped through under the white Australia policy when he arrived in Australia. He was a very sunny looking Italian gentleman, I must say, from the photographs I have seen of him as a young man.

Ms Portolesi: Do you take after him?

Mr PISONI: I am not sure whether or not I took after him; that is a judgment for others. I think it is fair enough to say that my father was a man who was interested in members of the opposite sex and it was not long before he found himself admiring very attractive, young Australian girls. In the end, he ended up marrying one. He told me the story about when he and my mother used to walk hand in hand down the street together and that, because they looked so different, they were sworn at and even spat upon because a wog boy had taken an Australian girl. I am so pleased to stand here 55 years later in a completely different society from the society into which my father arrived in 1952. Now we recognise the contributions that are made by those from all parts of our society, regardless of where they come from, their religious beliefs or their sexual preferences.

This bill is about legally removing those barriers in many areas. There are still areas of this bill that I do not believe have gone far enough, and I will talk about that a little later and examine it further during the committee stage. I go back to that story of my father and the discrimination and attitude about the unknown or, if you like, the attitude that was borne out of ignorance, and in this case it was ignorance of people from another culture not that different from that which we were used to in our very English Australia in the 1950s. It was also experienced by the Vietnamese community when they arrived in the 1970s. The Italians, Greeks and others broke the ice for a multicultural Australia, and by the 1970s Australians were realising what a great contribution they were making to society and how they were no different from them and, even though they had a different language and they looked slightly different, they were the same as them.

Then the Vietnamese refugees came along and had to go through the same discrimination and lack of understanding that my father and his generation went through when they arrived in Australia all those many years ago. However, today the Vietnamese community is seen as an extremely valuable and contributing community in South Australia, and our very own Lieutenant-Governor is one of those members of the Vietnamese community who arrived here as a refugee in the 1970s. It was a very difficult time for them; getting here was difficult and dangerous and, when they got here, there was a very nasty section of the community who were prepared to believe any rumour about the advantages the Vietnamese refugees or community was getting over other citizens.

I can remember as a young boy in the mid-1970s where, on a family day out, the Holden Premier broke done and we had to call the RAA. The RAA guy was there, a fairly senior mechanic, fixing the car and a car load of Vietnamese pulled up next to the car and the cursing, swearing and outrageous accusations made by the RAA mechanic about the favouritism given to the Vietnamese community shocked me, even as a young man with little experience in the real world. I found it quite disturbing.

Those attitudes have changed. Today the challenge for us is ensuring that the refugees from Africa, who are so different in the way they look and in their culture and who have endured such terrible lives before escaping to Australia, are understood. Legislation like this goes a long way towards changing the rules. Changing the rules is not enough: you have to change community attitudes as well. I can remember a time when drink driving was not considered a serious offence, and where some members of the community would boast about not remembering how they got home. It is fair to say that these days those who are caught and convicted of drink driving find that it comes with a social stigma.

People are embarrassed about the prospect; it can jeopardise one's job, and it is certainly no longer a laughing matter. One could also argue that the same situation applies for speeding drivers: most people would be embarrassed about being an habitual speeder. Again, 20 or 30 years ago people would boast about how quickly they could get home, but now it is an embarrassment to get caught speeding, particularly if they are caught speeding time and again: it is not socially acceptable. That is a change of community attitude. Laws were put in place, but the real change did not happen until we saw a change in community attitude.

That is what we need on top of this legislation: changes to community attitudes. I will read into Hansard from a blog by a member of the gay community who describes himself as left leaning. He blogged about the domestic partners legislation, the shortcomings of which I know many Labor backbenchers were embarrassed about. He states:

Saying it out loud feels suspiciously like deja vu, but this time it's for real. SA has finally caught up with the rest of the country, indeed world, and granted same sex couples rights five years after the Rann government promised to do so. Again, as I mentioned in last year's posting, full credit to Let's Get Equal and Ian Purcell [a constituent of mine], the lobby's engine, in particular. Somehow they managed to keep faith in the face of overwhelming adversity. Just have to be a Negative Narrelle for a few moments and get some frustrations out there, then I'll shut up about it. The Rann government and AG Michael Atkinson, especially—

and I will not use the language he has used—

[mucked] this up royally. Not least the years they forced SA queers to wait for the very reforms they themselves promised in the lead up to the 2002 election, the way they stalled, sabotaged and devalued their own legislation is nothing short of offensive. By the time the Statutes Amendment (Domestic Partners) Bill was finally introduced this year—with less than four weeks of parliament sitting, no less—it was a markedly different style of legislation than the original SA (Relationships) Bill. The DP bill is more along the lines of Tasmania's legislation whereby multiple versions of non-conjugal couples can be classified as 'domestic partners' and qualify for legal rights and obligations accordingly.

Which is exactly what Fundies First and other anti-gay pollies wanted. In fact, they claimed a 'victory' with the 'improved' bill because now that sexuality was taken out of the equation, it was no longer a 'gay issue', despite the reality that same-sex couples will overwhelmingly be the benefactors of this reform. But hey—God love the Fundie Fisters, both of them, they still voted against the bill anyway...So all that...Atkinson did to draft a Bill that would please them came to...

I will not repeat the language that is there. He goes on to say:

And don't forget, Atkinson had no need to present a new bill. The original Relationships Bill had already—

The Hon. M.J. ATKINSON: Madam Acting Speaker, I have a point of order.

Mr PISONI: —passed the SA's upper house in 2005—

The ACTING SPEAKER (Hon. P.L. White): Order! Member for Unley, resume your seat, please. The minister has a point of order.

The Hon. M.J. ATKINSON: The member for Unley wilfully persists in referring to me by my surname only and not my ministerial title or electorate and, through you, Madam Acting Speaker, I ask him to comply with the time-honoured rules of the house.

The ACTING SPEAKER: Indeed, all members know that they should refer to other members by their title.

Mr PISONI: Madam Acting Speaker, I am quoting an internet blog. I am reading into Hansard an internet blog.

The ACTING SPEAKER: Is it a direct quote?

Mr PISONI: Yes, it is.

The ACTING SPEAKER: Proceed.

Mr PISONI: Thank you. Silly man, Attorney-General!

The ACTING SPEAKER: Order! The member has the call but should not invite interjections.

Mr PISONI: So he goes on to mention the disappointment he had with the fact that the bill simply could not bring itself to mention same-sex relationships. He then goes on to say:

As Liberal David Pisoni argued—

and he has quoted my comments in Hansard; I will not repeat it because it is there for everyone to see in the Hansard. However, he particularly quotes the last paragraph:

...The Labor Party tells (same-sex couples) one thing in an election climate—that is, what they want to hear—but when the government is asked to deliver, it is a compromise [and] it is a cop-out.

Then he goes on to say:

It's scary when the Libs make...more sense about queer issues than Labor.

He is right, because we have heard from a number of members on the other side who have expressed disappointment in this bill saying that it simply does not go far enough, particularly when it comes to same-sex couples.

I think I should stop to explain my reason for joining the Liberal Party in the very first instance; that is, we enable our members to vote on conscience issues, on both moral and religious issues, and also issues that affect our constituents. The Liberal Party is not a machine like the Labor Party.

The Hon. M.J. Atkinson interjecting:

Mr PISONI: It is the party first and then members second and constituents are third. They are third-last in Labor Party politics because they are all about winning elections and nothing else.

The Hon. M.J. Atkinson interjecting:

Mr PISONI: As a Liberal member, I can stand here proudly and put my constituents first on any issue, without being thrown out of the party. But you cannot do that in the Labor Party.

Mr VENNING: A point of order, Madam Acting Speaker: the interjections across the house from the Attorney-General are inane, distracting and continual.

The ACTING SPEAKER: All interjections, as members are aware, are out of order. The member for Unley has the call.

Mr PISONI: It is ironic that we are here today debating this bill when, for the first time, a major political party in South Australia is being led by a woman.

The Hon. M.J. Atkinson: What's ironical about it?

Mr PISONI: It is all about equal opportunity. I agree that it should not be a novelty for women to be in a position of leadership in South Australian politics. I stand here looking at the portrait of Joyce Steele who, after 65 years of women being given the right to vote in South Australia, was the first woman elected to the South Australian parliament in the legislative assembly. She was a Liberal member—again, another first for women on this side of the house. It took 65 years, and it goes back to the point I was making earlier: legislation was there but community attitudes had to change. After women were entitled to be elected, it took 65 years before a woman was actually elected.

The Hon. M.J. Atkinson: How many women have been preselected for this round? Tell us how many women you have preselected as Liberal candidates.

The ACTING SPEAKER: Order!

Mr PISONI: It does not go past any of us here to understand that the only ex-ministers in the Rann government are women. The only Labor ex-ministers in the Rann government are women. How many men have they sacked? None. They have only sacked women.

Members interjecting:

The ACTING SPEAKER: Order!

The Hon. M.J. Atkinson: What about Rory?

Mr PISONI: I said Labor ministers. Pay attention, Attorney-General. Rory is Labor, is he? It is pleasing to be here supporting this legislation. I will ask some questions in committee for clarification, particularly in regard to rights for same-sex couples, so I look forward to participating in that debate.

Mrs PENFOLD (Flinders) (12:58): It is appropriate that this equal opportunity bill is on the agenda today in that this afternoon we welcome Isobel Redmond to the floor of the house as our new Liberal leader in South Australia. It is heartening for women to see a woman leading a major political party for the first time in South Australia. The Liberals in South Australia are continuing a grand tradition of leading the way in equal opportunity in many areas of our lives.

In recent days, we have also watched Barack Obama, President of the United States of America, on the world stage as a black man. Both occurrences were something I would not have dreamt of when, in about 1968, I attended my first political meeting in Tumby Bay where David Tonkin (former Liberal premier) was speaking. At the time, Tumby Bay had a women's Liberal branch and a men's branch, which combined to hear his speech. It was an inspiring speech that led to my lifelong interest and involvement in politics. It was David Tonkin who, in 1974, successfully introduced a private member's bill to outlaw sex discrimination, which was later amended by Liberal attorney-general Trevor Griffin in 2001. We have come a long way. It is amazing to look back on the history of women in South Australia. I seek leave to continue my remarks.

Leave granted; debate adjourned.


[Sitting suspended from 12:59 to 14:00]


PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT