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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-04 Daily Xml
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EQUAL OPPORTUNITY (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 3 March 2009. Page 1451.)

The Hon. S.G. WADE (21:18): I rise to speak on this bill and indicate that, while I am the lead speaker for the opposition in this council, I am not the Liberal Party spokesperson responsible for the bill. The member for Heysen, Isobel Redmond, the shadow attorney-general, is the Liberal spokesperson on this bill. While I will outline the Liberal Party position, I will leave it to the shadow attorney-general in another place to provide the background to the bill and the position our party has come to.

To make it clear where I speak for my party and where I speak only for myself, I have separated my second reading contribution into two parts. The first part of my contribution will be to outline the Liberal Party position on the bill. The second part will offer some personal and general observations on the bill and its passage thus far. I will save my comments on particular elements of the legislation for the committee stage of the bill.

Equality of opportunity is a fundamental principle of the Liberal Party of Australia. To quote relevant portions of our federal platform of 2002:

Liberalism is a set of democratic values based upon a central belief in the rights, freedoms and responsibilities of all people as individuals and upon a conviction that those individual rights, freedoms and responsibilities are the surest foundation of strong community life...Freedom can only be meaningful if individuals have the opportunity to participate, to achieve and to develop their talents. Respect for the individual implies tolerance of others.

In the section on creating opportunities for Australians, the platform declares:

Liberals will oppose discrimination based on irrelevant criteria.

The Liberal Party in South Australia has a strong record in combating discrimination. In 1974, David Tonkin successfully introduced a private member's bill to outlaw sex discrimination, the first such law in Australia. It was a Liberal government that initiated the Martin review of the act, and it was a Liberal Attorney-General, Trevor Griffin, who introduced a bill to reform the act in 2001.

In 2002, the incoming Labor government did not merely have an election commitment to reform the act, it had the benefit of a thorough consultation and a draft bill. In 2006, the government half-heartedly introduced a bill, and here we are, in 2009, still waiting for the government to deliver on reform. What is the slogan: Rann delivers? More like: Rann dithers.

The bulk of the 2008 bill before us applies obligations under state legislation that already apply in South Australia under federal legislation. The suite of relevant commonwealth legislation includes the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, the Age Discrimination Act 2004 and the Human Rights and Equal Opportunity Act 1986.

The 2008 bill does not include a number of provisions that were included in the 2006 bill. For example, the 2006 bill included a highly controversial provision on victimisation, which provided that an unlawful act of victimisation would occur if a person engaged in a public act inciting hatred, serious contempt or severe ridicule of a person or group of persons. This provision has been deleted altogether from the 2008 bill.

Secondly, the 2006 bill provided that discrimination on the basis of profession, trade or lawful occupation would be unlawful discrimination. This ground has been removed from the 2008 bill. The 2006 bill would also have made it unlawful to prefer a local person for employment purposes. This has also been removed. The 2006 bill provided that, in the case of indirect discrimination, the onus would rest on the employer to prove the reasonableness of any potentially discriminatory requirement. The 2008 bill abandons this proposal and maintains the original position; that is, the complainant must establish the unreasonableness of the requirement.

The existing law requires the Equal Opportunity Commissioner to represent complainants when matters go before a tribunal. There is concern that this involves something of a conflict of interest for the commissioner, given that she first has to seek to impartially mediate the matter and then has to represent one side if it goes before the tribunal. The 2006 bill proposed that, instead, the minister would make representation available through the Legal Services Commission.

The Liberal Party opposed this on the basis that it favoured the complainant, who was guaranteed representation, over the person complained about, who was often a small business proprietor on whom the action and legal costs could be crippling. The new bill proposes no change to the existing provisions; in other words, the commissioner will continue to represent the complainant before the tribunal.

The 2006 bill also proposed to remove the requirement that a discriminatory act complained of had to be a substantial reason for the action so that, even if the reason was only an extremely minor consideration, the discriminatory act would still be actionable. This change has been removed from the 2008 bill.

The 2006 bill proposed to allow a complaint to be brought by somebody who was not aggrieved including, for example, a union official. Considering the propensity of unions to invite themselves into situations where they are neither wanted nor needed, the Liberal Party held grave concerns about this provision, and it is pleased to note that it has been removed.

I will now deal with the main changes proposed in the 2008 bill. Firstly, I intend to cluster and refer to those provisions where the Liberal Party will support the proposals. The 2008 bill provides for a new ground of discrimination on the basis of caring responsibilities. It will be applicable in all areas where discrimination legislation applies, for example, employment, goods and services, education, clubs and housing.

The 2008 bill narrows the definition in the 2006 bill to match that found in the commonwealth Sex Discrimination Act—that is, immediate family members—and also adds caring relationships under Aboriginal kinship rules. In this context it should be noted that the commonwealth act only protects against dismissal, whereas the state legislation would cover other matters. The Liberal parliamentary party supports these provisions.

The domestic partners reforms of 2007 generally require that same-sex couples, companion couples and unmarried, opposite sex couples are treated alike for legal purposes. This bill proposes that the existing ground of discrimination—that is, marital status—be broadened to include domestic partners. The Liberal parliamentary party supports these provisions.

In relation to the constitution of the Equal Opportunity Tribunal, the 2008 bill includes a provision, not in the 2006 bill, to allow the tribunal to be constituted of a presiding member or deputy presiding member sitting alone when determining a question of law or procedure. The Liberal parliamentary party supports this provision.

The Liberal Party will also put forward one amendment to the bill. The Liberal Party is of the view that parliament needs to take action to ensure that the Equal Opportunity Tribunal is accessible, affordable and fair. To that end, it will move an amendment which is in the process of being drafted and which will provide that no party appearing before the tribunal shall be entitled to legal representation without the agreement of the other party. We envisage a scheme similar to that which operates in the minor civil jurisdiction.

I turn now to the set of provisions in the bill where the Liberal parliamentary party has decided that the matter will be one of conscience without guidance from the party. Of course, in the Liberal Party of Australia every vote is a conscience vote in one sense; either the vote is a conscience vote informed by a party room decision or it is a conscience vote where there is no formal guidance. Votes that impact on the conduct of religion are often considered conscience votes. The issues may have been discussed in the party room, but members are expected to vote without formal guidance.

The first conscience vote relates to chosen gender. The 2006 bill dealt with discrimination relating to chosen gender; the 2008 bill introduces new terminology. The Liberal parliamentary party has decided that this matter will be a conscience vote without a party position. The 2008 bill, like the 2006 bill before it, makes it unlawful to discriminate in the context of employment or education on the basis of a person's religious dress or adornment. The Liberal parliamentary party has determined that this matter will be a conscience vote.

The present legislation allows religious based institutions such as schools, hospitals and aged care facilities to discriminate where it accords with the precepts of their religion. Both the 2006 and 2008 bills reduced the exemption so that it applies only to schools, and only if they publish a written policy to that effect. The new bill no longer requires that the policy be lodged with the Commissioner for Equal Opportunity. The Liberal parliamentary party has determined that this matter will be a conscience vote.

The 2006 bill sought to impose the consequences of the act on all children of high school age. The Liberal Party argued that this provision was too onerous and that it should be applied in a more limited way. This view accords with the recommendation of Brian Martin QC when he reported on this legislation in 1994. The 2008 bill accords with our position in that it applies only from age 16. In addition, no compensation is payable even if discrimination is found to have occurred, and the complainant must go through any procedures to resolve matters that are within a school's policy; they cannot go straight to the Equal Opportunities Commission. The Liberal parliamentary party has determined that these provisions will be a conscience vote.

The act provides an exemption which allows clubs or associations to discriminate on the ground of sexuality. The 2008 bill removes that exemption, except that certain minority groups will still be able to discriminate. For example, under the bill it would be permissible for a team of homosexual footballers to form a club exclusively for homosexual footballers. On the other hand, it will be unlawful for a group of heterosexual footballers to form a club exclusively for heterosexual footballers. The Liberal parliamentary party has determined that these provisions will be a conscience vote.

I will now outline the Liberal Party's initial position on the amendments tabled by the Hon. Dennis Hood on behalf of the Family First party. In relation to amendment No. 1, concerning the new clause 10(a), the Liberal Party will not support the amendment, as it prefers the arrangements foreshadowed in its own amendment.

Amendments 2 to 4 and related amendments 6 and 7 relate to religious organisations and, as mentioned, the Liberal Party will be having a conscience vote on those matters. Amendment 5, relating to clause 18, would remove the requirement for religious schools that intend to discriminate in employment against teachers and staff who practise a lifestyle that is not in keeping with their particular religion to place a notice on the website stating this policy.

The Liberal Party received strong representations to oppose this requirement. Given that schools are not required to post on the website any other workplace policies, such as occupational health and safety policies, it is our view that schools should not be required to put their hiring policy on a website.

This amendment removes that requirement and provides that the policy need simply be available on request as is the case with all other policies. The Liberal Party will support this amendment. Amendment 8 increases from 16 to 18 the age of children who can be brought before the tribunal. The Liberal Party has determined that these provisions will be a conscience vote.

Amendments 9 to 11, relating to clauses 67 and 68, remove the commissioner's power to initiate and investigate complaints even when no complaint has been lodged. The Liberal Party will support these amendments. Amendment 12 is consequential on amendment 1 and will not be supported. Amendments 13 and 14 are contingent on amendments 9 to 11 and will be supported.

I refer now to our in-principle position in relation to the amendments tabled by the Hon. Ann Bressington. Both amendments relate to exemptions available to religious organisations and, accordingly, the Parliamentary Liberal Party will have a conscience vote without formal guidance. That concludes the portion of my second reading contribution that relates to my party's position on this bill.

The second part of my contribution this evening is some general observations on the bill and its passage so far. As I said, these are personal observations. The views may or may not be shared by my colleagues. I will save my comments on particular issues in relation to the legislation, including my position on conscience votes, for the committee stage of the bill.

First, I would like to address the aspects of the bill that deal with disability. As shadow minister for disability services, I particularly welcome a range of provisions that will provide benefits for people with disability and their carers. South Australians with disability face significant barriers to their full involvement in the South Australian community, and many find the discriminatory attitude of others to be the most significant barrier they face. I hope that these provisions might have both an educative and facilitative impact on supporting people with disability and those who care for them.

The commonwealth Disability Discrimination Act already applies in South Australia, but this amendment means that there will now also be a remedy in the South Australian Equal Opportunity Commission. The definition of 'disability' there will be expanded to reflect the commonwealth act. It will now cover mental illness and not just physical illness. The bill also covers non-symptomatic physical conditions such as being infected with a virus, as well as learning disabilities even where those learning disabilities are not related to an intellectual disability. The bill also extends the coverage of the act to carers, and I welcome these provisions.

I would like now to reflect on the fact that this is a Legislative Council bill. I think it is bizarre that the government has introduced this bill in the Legislative Council when the Attorney-General is a member of the House of Assembly. It has been put that the government did this because the outcome of the bill will be determined in this place.

I observe that it is nearly four decades since the government has had a majority in the Legislative Council, yet the majority of bills continue to be introduced in the House of Assembly. If the fate of the 2008 bill will be determined in this place, that was also true of the 2006 bill. That bill was tabled in the House of Assembly. So, the assertion lacks credibility.

An explanation that I find more credible is that the Labor Party is fundamentally split on this bill. The right—the successors of the Democratic Labor Party—dominate the Parliamentary Labor Party and promote a conservative social agenda particularly on religious matters. On the other hand, the remnants of the left desperately try to salvage some semblance of a progressive agenda. The form of this bill is testament to the fact that the DLP won in South Australia. The 1955 National Conference in Hobart may have expelled the DLP elements but now, 50 years later, their heirs and successors are taking over the party that expelled them.

Don Farrell, the son of Edward, a DLP candidate of the 1960s and 1970s is now the godfather of the ALP. The right succeeded in watering down the 2006 bill to amend the Equal Opportunity Act, yet even that was not enough for our DLP Attorney-General to be willing to be associated with it. The Attorney-General showed his lack of enthusiasm for the bill on 7 February 2007, when the 2006 bill was before the House of Assembly. He said of the bill on radio that morning, 'This bill will take months, if not years, to get through.' We waited through 2007 and 2008, and eventually the left spat the dummy. I can almost hear the conversation in caucus: after months of nagging, the Attorney-General hisses at the Minister for the Status of Women, 'If you are so keen about the bill, you introduce it.' So, she has.

However, from a left perspective, it is a pale imitation of previous bills and hardly a bill worthy of the praise heaped on it by left members. A former Labor Party member said to me recently, 'This is not how the left would have acted in the past. These are the people who used to throw chairs at conventions, now they simply roll over and let the DLP dictate the agenda.'

I now want to consider human rights in the context of this bill. The bill raises issues in relation to a range of human rights, in particular, freedom of religion, freedom of sexuality and freedom of speech. As we debate potential impacts on the rights of South Australians, I encourage members to strive to avoid a number of dangers.

Firstly, I think we need to avoid the danger in asserting one set of rights that we deny the legitimacy of other rights. We need to maximise all the freedoms of individuals and communities. I illustrate this point with reference to the International Covenant on Civil and Political Rights and, in particular, the clause on freedom of religion, article 18. Clause 3 of that article states:

Freedom to manifest one's religions or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

I highlight the concluding words of that clause: the fundamental rights and freedoms of others. Accordingly, we cannot simply say that as soon as a religious right is affected, all other rights must give way or for that matter vice versa. We must do our best to maximise all the rights impacted by this bill.

For my part, I will strive in this debate to respect the fundamental right of South Australians to hold and express their sexuality and, at the same time, I will strive to respect the fundamental right of South Australians to hold and express their religion.

Secondly, I believe we need to avoid the danger of seeing rights narrowly, to read them down. For example, in the context of freedom of religion, I think many people consider freedom of religion narrowly as simply the right to hold beliefs or thoughts. This narrow reading is not consistent with international law. Again, the International Covenant on Civil and Political Rights, article 18, states:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

Again, I highlight the concluding phrase of that clause that freedom of religion involves the right to manifest your religion in worship, observance practice and teaching.

Clause 4 of that same article highlights the right of freedom of religion in education. That clause reads:

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

I find it interesting that, of all the ways that a person can express their religion or belief, a four clause article in an international covenant recognises the rights of parents to express their religion in the education of their children. This manifestation of the freedom of religion observance is directly on point in this bill.

Thirdly, I think we need to avoid the danger of misreading rights as privileges. Freedom of religion is a right held by all Australians. Freedom of religion is not a privilege of the Christian majority; it is as much for atheists and agnostics who do not have a faith as it is for the Christian majority. It is as much for religious minorities such as Muslims and Buddhists as it is for the Christian majority.

It is not appropriate on the one hand for the Christian church to try to maintain a position of privilege. Religious freedom should be afforded to people with views across the spectrum of religious views and those with none. On the other hand, it is inappropriate to deny freedom of religion as some sort of leveller of privilege that misunderstands the reality of freedom of religion.

Fourthly, I think we need to avoid the danger of applying some threshold test of rationality to a view before we afford freedom of speech or religion. To illustrate this point, I refer to the second reading speech of the Hon. Ian Hunter. I fear that the Hon. Mr Hunter was in danger of transgressing the boundary and mocking religion when he talked about a person being raised from the dead, accounts of attacking Satan's strongholds and references to divine punishment. All of these examples might seem bizarre to a secular mind, but they are all within the biblical record and within the historical record of the Christian church.

Certainly, I respect that the Hon. Ian Hunter is not a religious person, and he is entitled to be accorded both freedom of speech and freedom of religion, including the freedom to vigorously challenge religious beliefs. However, we need to avoid applying a rationality test to human rights, such as freedom of speech. The credibility of a religious view is not a threshold test as to whether it should be accorded freedom of religion. As F.A. von Hayek put it in the Constitution of Liberty:

That we ought not to believe anything which is shown to be false does not mean that we ought to believe only what has been demonstrated to be true.

I respect that members who do not have religious views—and many of those who do—would find the comments referred to by the Hon. Ian Hunter as strange or even offensive, but freedoms are not limited to those views which are familiar or comfortable: freedoms are tested and proven when it is accorded to those views with which we do not agree. I think it is very important for the future health of a pluralist Australia that both religious and non-religious Australians respectively engage each others perspectives. If there is not room in the marketplace of ideas for both religious and non-religious perspectives, we risk alienating one group or the other and encouraging them to pursue their objectives outside the framework of a democratic pluralist society.

I encourage members to continue to conduct the debate with respect—respect for the rights of individuals who might be discriminated against and respect for the rights of those whose freedom of action may be constrained by these laws.

I conclude my comments this evening by expressing my concern in relation to the suggestion expressed by both the minister and the Hon. Ian Hunter that organisations that take public funds should not object to the provisions of this bill. In the context of the employment exemption, the minister in her second reading speech said:

The government gave much thought to whether such an exemption should be allowed to continue. Our law says that discrimination on the grounds of sexuality is wrong. Moreover, religious schools receive public funding. An argument can be made that those who accept public funding should comply with the standards set by the public through legislation.

The Hon. Ian Hunter associated himself with this argument when he said:

In line with the 2006 bill, this bill proposes to reduce the scope of institutions that discriminate on the grounds of sexuality to religious schools only. I feel that this provision is out of step with the values of the wider community, however. As the Minister for the Status of Women outlined, an argument could be made that those who accept public funding should comply with the standards set by the public by legislation, and religious schools do receive substantial funding from the public purse.

There is no reason why this exemption should be allowed, in my view—except for those grating voices of a vocal minority whose bigotry is well displayed by their discriminatory practices. They should be held up to public standards, or perhaps they should stop seeking public funding if they do not see fit to uphold those standards.

I think that the government is moving on to very shaky ground here. As a parliament, we do not authorise the government to collect taxes so that it can purchase compliance or bribe or blackmail individuals, organisations and communities to reflect the government's views or values.

Religious values are not like carbon emissions to be penalised and traded for credits. I am sure that these veiled threats send a shudder up and down the spine of organisations receiving public funds in areas as diverse as education, health and disability services and, indeed, many organisations that have no intention of discriminating in relation to sexuality and employment.

The Labor Party needs to learn the value of diversity and to respect the rights of individuals and communities to differ from the government. After all, today it might be sexuality or employment; tomorrow, it might be curriculum or teacher choice.

In conclusion, I indicate that the opposition looks forward to working with all members of the council to deliver the best legislation through the committee stage. With so many conscience votes involved, it is unlikely that it will be neat or speedy, and I ask for the government's tolerance. I appreciate the fact that government members do not have a conscience vote, but I trust that latitude will be given for all members to discharge their involvement in this bill.

Debate adjourned on motion of Hon. Carmel Zollo.

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