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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-02-03 Daily Xml
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EQUAL OPPORTUNITY (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 26 November 2008. Page 875.)

The Hon. D.G.E. HOOD (16:22): Family First believes that this bill is largely unnecessary, ideologically driven and fraught with danger. Put simply, we oppose it. Family First is a party that believes in individual freedoms: we believe in freedom of speech, freedom of association and freedom to participate or not participate in religious activities. We believe in equal opportunity. However, the equal opportunity shield is forged by taking hammer blows against our personal freedoms. For the sake of those freedoms, limitations made necessary in the name of equal opportunity must be limited and restrained, proportional and necessary. It is wrong to blame someone for something they cannot help. No-one should be put at any further disadvantage because they happen to be born with a certain skin colour, a certain gender or the like. Clearly, these things are beyond an individual's control and they should not be discriminated against under any circumstances.

Having said that, this bill goes too far. For example, it requires the hauling of a school-aged child as young as 16 years old before a tribunal for saying something deemed sexually offensive to another child, even if no complaint was made for that behaviour. It goes too far in giving the commissioner power to investigate and instigate proceedings even when no-one has made a single complaint about a particular issue; and it goes too far in forcing schools to place notices on their website if they will not hire people with certain sexual practices, for example. That goes too far. In fact, the previous version of this bill had 15 separate ways that one could infringe the legislation, from not accepting where someone lived or discriminating against someone for where they lived to not accepting the way they dressed, for example.

This is not an exaggeration: in the last census, some geniuses (if I can put it that way) put in the religious section that their religion was Jedi. I guess they were referring to the word 'Jedi' from the Star Wars saga. If you answered that your religion was a Jedi in the last census, then, under this silly bill, if you chose to wear your Jedi robe and carry a light sabre to work claiming it is your religion to do so, it would be very difficult for your employer to stop you from doing so. In fact, an employer who objected to those actions might be in breach of the Equal Opportunity Act, so crazy is the legislation before us. It is absolutely ridiculous.

In this version, there are only—and I say 'only' somewhat tongue-in-cheek—13 things which the bill specifically outlaws or which are deemed politically correct, to use the vernacular, if I may. Clearly, there has been a reduction from 15 to 13 and, of course, that has largely been due to Family First's negotiations with the government and, indeed, the opposition. However, under this bill, you still cannot discriminate against someone (so-called) for wearing their Jedi religious costume to work each day if they claim their religion requires it, but you can now be critical of where someone lives, for example, or what they do for a job. Why do we want a law in this state under which someone can say their religion is Jedi, for example, and that they have a right to carry their light sabre and wear their cape to work and to which an employer may not be able to object?

The Hon. C.V. Schaefer interjecting:

The Hon. D.G.E. HOOD: Well, nothing at all, but how ridiculous that we would enact such a law in this state. I can see this law being pushed to its absolute boundaries whereby people will do things as silly as that—maybe not using the Jedi example, but they will do equally silly things. For example, I can imagine a young person going to work at McDonald's and saying that they have a certain type of religion—let us call it Jedi for the sake of argument—and they wear a cape and carry a light sabre and do not want to wear the McDonald's uniform. It is absurd, yet that is exactly what this bill will allow, and the employer—and this is the key point—might not be able to tell that person to remove that costume, if you like, because it could be deemed to offend them.

How ridiculous. What an absolutely pointless law that we simply do not need in this state. I wonder how many people will do those things such as I have just outlined, or even worse than what I have had time to think about, and, in many cases, jam the wheels of business. You can imagine the problem for small business owners potentially. This bill goes way too far.

The reality is that we live in a world where sometimes people do things that others find offensive from time to time. Sometimes I offend people, and sometimes they offend me, but, at the end of the day, mature adults either agree to disagree or simply get over it and move on. They do not need to go running to the government complaining every time someone hurts their feelings, criticises them or says something that they do not like. This is a law we simply do not need.

Our society is founded on a principle that we often do not agree and that we hold opinions in conflict. Indeed, one might argue that that is what has made our society so great. I think Australia in particular is a society of many diverse opinions, diverse practices, diverse religions—the whole gamut, if you like—yet we are largely a peaceful, homogeneous society that is really a model of how society can work and how people can get along even though their opinions can sometimes be very different on certain matters. We do not need laws to sort out these things; we need common sense.

For example, one of the great aspects of this parliament is that we have opinions from right across the spectrum and, in the end, the way in which we reach a decision or pass a bill is after the government, the opposition and the crossbenchers in the back of the chamber—everyone—have had their input. In many cases, a bill is not put forward and absolutely agreed to by everyone. In my experience in this place, it is rare for a bill to go through without its being amended. It happens from time to time, but usually some valid amendments are moved—whether it be by the government, the opposition or one of the crossbenchers—and then a debate ensues. Sometimes there can be quite heated debate and debate about which people can be quite passionate, but nonetheless that is the process for reaching a good outcome. Conflict is built in to what we do not only in this place but in our society, and it can be to the benefit of all.

Of course, it is not just in parliament. We have a similar example in our adversarial court system where we convict a defendant only after they have had a bold prosecution and a fearless defence and the argument is weighed up by an impartial judge. That has worked for us for hundreds of years, as has our parliamentary system. For hundreds of years, we have had disagreements in our community about various things. This bill goes too far: it is absolutely unnecessary.

Of course, there is a difference between genuine free speech and those who wish to exploit pornography and the like, but I am not talking about those things; I am talking about adults agreeing to disagree. But in censoring what is genuine argument and genuine difference of opinion, we sweep aside those disagreements and we sweep them under the table. On everything, this bill asks us to simply bottle up criticism, and the No. 1 objective is simply not to offend anyone rather than reach any actual valuable and lasting conclusion. The cold hard reality is that sometimes people do disagree, and passing this bill is not going to stop people disagreeing on things.

Indeed, over-zealous political correctness is a danger to our society, I believe, and to our culture and it is the reason why Family First has now collected over 11,000 signatures—in fact, nearly 12,000 signatures at last count—against this bill from people who have been prepared to put their names and addresses to a petition saying that they do not want this law to pass.

What do these sorts of laws do to our culture? Do you remember the days when, for instance, it was not deemed offensive to call someone a Pom. I have many friends who are English, and I call them 'Pom'. They do not take offence at all; it is what I have always called them. It is not meant to be offensive. It is actually a term of endearment, to be honest. It is how I think of those people, those friends, and I have known them since I was a very young boy about four or five years old and I have never called them anything different. They have never complained once and yet, nowadays, we have laws saying that these sorts of things ought to be discouraged.

Why on earth should it be discouraged? Is political correctness actually sapping the Australian spirit and the sort of larrikin Australianism that Australia has become famous for? Is our fear of the political correctness police turning our culture into something that is just bland, inoffensive and really lacks the vigour and true determination to genuinely debate things? Have we become so careful not to offend that people are now afraid to debate? If we have, I think that is a terrible tragedy.

I would like to take an opportunity at this point to sincerely thank the Attorney-General for his long discussions with me in framing this bill. He certainly made every effort to seek our input and for that we are grateful. I would also like to offer the same gratitude to the shadow attorney-general, who was equally accommodating in her, I think, genuine willingness to reach common ground, for which we were certainly grateful. I have had consultation with many members of the chamber, and I would specifically like to mention the Hon. Mr Stephens, who has taken a good interest in this bill and was certainly very keen to discuss things with me, and I thank him for that.

I thank the Equal Opportunity Commissioner herself, of course, who made herself available on a number of occasions. I have had some very lengthy discussions with her and, while we may not agree, I would like to acknowledge her willingness to engage in the debate, which would ironically be more difficult if this bill should pass. I also mention Mr David Tennant, who worked in my office as a parliamentary intern on this issue. He has prepared a terrific paper on the previous bill's draft clause 61. I am sure that David is destined for a very bright career indeed judging by the quality of his work.

Returning to the substance of this bill, my discussions with the Attorney-General have resulted, from my perspective, in a number of improvements to this bill. When I say 'my discussions', they are not just mine of course—they are Family First's and, indeed, those of members from other parties, I understand, as well. The most significant change is that clause 61—and that is the clause relating to vilification—no longer exists in this bill. Family First spent a fair amount of time and energy on having that clause removed, and I am pleased to say that it is no longer in the bill and I give credit where credit is due. Again, we are grateful to the government and, indeed, the opposition for the role that they have played in that.

This clause was, of course, the primary concern of the 11,000-plus signatories that we received in our long campaign against this bill. As I say, that 11,000 is now closer to 12,000 and, in my fairly extensive contact with those people, the common theme that arose from them was clause 61 as well as some of the other issues that I will go into in a moment.

Provisions similar to the deleted clause 61 have caused tremendous limitations to free speech in other states where they have such clauses in their law. The most frequently referred to case is colloquially known as the Two Dannys case. In March 2002, pastors Danny Nalliah and Daniel Scott presented a lecture on Islam for their church. The lecture, by the way, included directions to support and show acts of mercy and other acts of generosity to those holding other faiths.

It was largely an academic affair, and in no way was the religion of Islam vilified, yet the Islamic Council of Victoria complained of religious vilification resulting in five years of hearings before the commission and legal fees estimated at well in excess of $100,000. Indeed, I will not put it on the record because I do not have any data to justify it, but the estimates of the legal fees that have been given to me have been substantially in excess of that—more than three and four times that.

These are two Christian pastors, who I understand have salaries in the order of $40,000-$45,000 a year. They could never repay the legal bills they were facing in their entire lives. The irony is that, in the end, they were proved not to have breached the law and yet they were lumbered with the ridiculous legal costs and their lives were changed forever.

There have been other cases with similar outcomes in New South Wales and Queensland where freedom of speech has been stifled by a clause similar to the now deleted clause 61 from the earlier draft of this bill. I will not detail those but they have been numerous. Put simply, that clause is absolutely unnecessary, and Family First believes that the government was right to withdraw clause 61 from the bill before us today, and again we acknowledge and congratulate it on doing so.

Concerns about several clauses remain, however, and I foreshadow several Family First amendments regarding several of them. I will just give a brief outline of each of those amendments now.

I have had some quite extensive discussions regarding clause 18—that is, new section 34(3)(c)—with the Association of Independent Schools. The clause requires schools to place a notice on their web site if they will not hire people with a particular lifestyle. I acknowledge that previous wording would also require the policy to be lodged with the commissioner, but the Association of Independent Schools maintains that this obligation remains onerous because it opens the schools up to criticism, protest and, potentially, persecution.

Schools are not required, for example, to print their occupational health and safety policy on their web site, or any other policy, so why are they required to list their hiring policy on their web site? What is it specifically about that policy that says they should have it on their web site? They do not have to put any of their other policies on their web site. Why is it that they should put that policy on their web site? Give me one solid reason why that should be the case.

For that reason, I foreshadow an amendment that would delete this requirement. Instead, the policy should be available on request from the school, like all other policies—for instance, its occupational health and safety policy, or whatever it may be. It should be available from the school, rather than creating a target for militant activist groups by putting it on the web site for all to see. This is something the schools do not want. Why should they have to deal with it?

Clause 25 of the bill removes section 50(2). This was an exemption granted to religious organisations from hiring staff with a certain lifestyle, including people who openly have multiple sexual partners, for example. Although most church-run hospitals, nursing homes and so forth are, in effect, now run as secular organisations, there are a number of what are often called parachurch organisations that regard the lifestyle of their staff as important in the conduct of their daily business.

Let us take a fairly extreme example. Imagine forcing what was formerly called the Festival of Light to hire a transsexual. That would be likely to cause division and tension within its ranks, rather than foster any sense of genuine equal opportunity. Why would we want to create a law that would force that to happen? Parachurch groups are faith-based organisations that work outside of and across denominations to engage in social welfare, evangelism and lobbying and are usually independent of church oversight. I will move an amendment to grant these sorts of organisations an exemption.

My concern here is that these organisations do tremendous work in the community, much of it completely free. They survive on donations. They are the ones that take blankets to the homeless; they do all sorts of charity work; they set up the soup kitchens; and they do all the things that I think everyone in this chamber would think was good work. Why do we want to make it more difficult for them to operate?

My concern is that, if we pass this law and if my amendment to this provision does not pass, I can just about guarantee that those organisations will slowly cease to be over time. Yes, there will be other organisations that to some extent will take their place, but I do not believe that they will be anywhere near as many or anywhere near as committed (potentially). I think that is of grave concern to us. Has this really been thought through?

Further, clauses 67 and 68 and new section 95C in clause 69 give power to the commissioner to launch an investigation 'even when no complaint has been lodged' and to launch her own complaint with the tribunal, whether or not a complainant wishes the proceedings to be initiated. Why would we want to do that?

So, the Office of the Equal Opportunity Commissioner will decide what should be complained about and what should not. Why would we want the Equal Opportunity Commission to look into any practice if no complaint has been lodged? Who has been offended? Why would we do that?

I understand that most interstate commissioners do not have that power to initiate their own complaints, and the reason for that is very simple: it is simply not appropriate for an unelected person to pursue far-reaching social policy crusades and whatever issue they see fit if people are not complaining about the issue, effectively determining social policy unilaterally. So, the Equal Opportunity Commission becomes the arbitrator of what is acceptable behaviour and what is not.

Remember: this person is unelected. This person may have very different views to the preceding equal opportunity commissioner; they may, indeed, have very different views to the next equal opportunity commissioner. Where is the consistency? They can launch these investigations without a complaint even being made and without anyone being offended. How is that good law? The Family First amendments would delete the provisions allowing independent investigation and initiation of complaints where no complaint has otherwise been made and would leave the current system in place. Why do we want that in the bill? We will then have a situation where the commissioner becomes the arbitrator of what is acceptable and what is not. That is not appropriate. It is the role of parliament to make laws, not the equal opportunity commissioner.

In clause 62, students over the age of 16 years are made subject to discrimination laws. We are talking about children being subject to discrimination laws. Although the previous draft allowed children as young as 12 to be brought before the commission, we believe that 16 is still too young. The Family First amendment will increase the age to 18 years.

Courts and other jurisdictions in this state will not accept a complaint against children under 18, except for the Youth Court, of course, so why are we proposing that the Equal Opportunity Commission should be able to accept complaints against children? It does not apply in other jurisdictions.

Frankly, there is no reason why the Equal Opportunity Commission should have a special dispensation to initiate proceedings against children. You can imagine the scenario where a 16 year old child will say something jokingly in a classroom or a playground, for example, and they could end up before the Equal Opportunity Commission with lawyers against them. What a ridiculous outcome.

Lastly, the tribunal has been set up as a no cost jurisdiction for complainants. This is found in new section 95B(2). Family First is concerned that while bringing an action to the tribunal may be cost free for a complainant, that is, with no risk and no significant filter for vexatious claims, for example, it may, nevertheless, be very costly to defend.

So, here we have a situation where the person lodging the complaint has no risk whatsoever, because if they lose there is rarely any cost that they will incur, so they can make a complaint against anyone. It is going to be open slather, I predict, for vexatious claims of certain groups against other certain groups that do not like each other, for whatever reason, and the state will fund those claims.

The poor defendant, the local fish and chip shop owner who is trying to run his or her business just to make a fair living, has to then go to the Equal Opportunity Commission, pay for a lawyer and defend themselves against a claim that may be absolutely baseless.

What is the benefit of that? I can see some very significant problems with respect to small businesses being targeted by, for example, someone who did not get a job and lodges a complaint with the Equal Opportunity Commission, knowing that they have nothing to lose, that they would be up for no cost whatsoever, but knowing that just by lodging that claim the owner of the business automatically loses because they have to find a lawyer.

So, even if the complainant lodges a complaint that they do not expect to win, they know that the business owner, the person they are complaining against, will be up for substantial costs, and they may regard that as a win in the first place, just putting that person through the pain. Hopefully this would not be too common, but I am sure it would happen. Why would the state fund people who make complaints yet not fund people defending themselves against those complaints, whether some of which would be vexatious? It is not a question of whether there would be vexatious claims; there will be. If it is free, why would people not do it?

There are many examples of this and I could go on and on; however, I will just give a couple of brief ones. Some years ago John Laws was obliged to spend hundreds of thousands of dollars in legal fees defending a matter brought by a Mr Gary Burns which stretched out for almost five years—at no cost to the complainant, as I understand it. The Two Dannys case in Victoria was resolved without any finding of wrong-doing after five years of legal argument. Who was the loser there? They were not found to have done anything wrong but had to pay hundreds of thousands of dollars in legal costs. The cost to the complainants? Nothing, not a cent.

Family First proposes that the section be re-drafted so that it is similar to the situation in the small claims jurisdiction of the Magistrates Court, that is, that no lawyers be involved in the proceedings unless both sides agree (because as soon as lawyers get involved the costs go through the roof) or unless the Commissioner decides. There will be some cases where the Commissioner decides the complainant is unable to represent themselves and therefore needs a lawyer, and in that case a lawyer would only be assigned in a way that would be satisfied by a means test—for example, in the same way we would normally allocate a lawyer in a Legal Aid matter. That is, if someone is deemed to require a lawyer but their income or means are insufficient then they would be assigned one through Legal Aid. Why should the Equal Opportunity Commission be any different from the rest of the legal system when it comes to allocating legal services? This will open up a can of worms that we have not even begun to imagine.

Family First is not convinced that this bill is required; indeed, it is convinced that it is not required. We accept and support the fact that there must be help given to those in the community who are genuinely disadvantaged through no fault or decision of their own, and we will always support those people and will always fight for their rights to be treated appropriately; however, this bill does not get the balance right, and as such we will seek to amend it as I have outlined.

The plain fact is that the real world is not a level playing field. Some people are born to privilege, some are born into poverty. Some are born fully able, and unfortunately some are born with a disability. Whilst as legislators we must do everything we can to aid and assist those who do not generally enjoy equal opportunity, it must not be at the expense of others, thus creating further division, tension and scope for disharmony in our society. This bill runs that risk, as it tips the scales too far against what have been long-running and established practices and principles in our society. For that reason Family First will seek to amend this bill and, if its amendments are not agreed to, it will wholeheartedly oppose the bill.

Debate adjourned on motion of Hon. J.M. Gazzola.

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