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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-24 Daily Xml
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EQUAL OPPORTUNITY (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 March 2009. Page 1562.)

The Hon. R.D. LAWSON (17:51): I rise to make a second reading contribution to this bill which, as others have noted, has been a long time in coming. We are frequently reminded that South Australia was the first state in Australia to have an anti-discrimination law, which was that introduced by the Dunstan government in 1966 relating to racial discrimination. However, since that time all states and territories in Australia as well as the commonwealth have passed various anti-discrimination laws. In some jurisdictions they are called exactly that, anti-discrimination, and in others they are called (as is ours) equal opportunity legislation. Our Equal Opportunity Act was passed in 1984, and that is the act primarily that is to be amended by this bill.

The commonwealth already has separate pieces of legislation relating to various forms of discrimination, namely, the Racial Discrimination Act, passed in 1975; the Sex Discrimination Act, passed in 1984; the Disability Discrimination Act, passed in 1992; and the Age Discrimination Act, passed in 2004. That series of acts contains remedies that are available to South Australian citizens because the commonwealth law, of course, applies here concurrently with state acts, and I think some case can be made in relation to this area of law for uniformity. We certainly do not have uniformity in relation to the discrimination legislation in various states.

A recently published text on this subject, Australian anti-discrimination law, by Rees, Lindsay and Rice, a tome of some 800 pages, highlights on almost every page the differences that apply between the various jurisdictions. The text to which I have just referred does conveniently make a number of general points in relation to anti-discrimination laws. A fair comment appears on page 3 of the text dealing with the policy goals of Australian anti-discrimination laws. The learned authors say that these policy goals are 'not particularly clear'. They go on to say:

Some advocates of these laws saw them as radically changing the structure of Australian society by overcoming the longstanding exclusion of people who were not of the dominant race, sex and sexual preference, and by promoting the inclusion of other people who had been neglected or ill-treated because of attributes such as disability or age. In the minds of others these laws were little more than tokenism designed to silence the clamouring of minority groups who had raised their voices. In most instances, they have been laws ahead of their time in the sense that they would not have attracted majority support had they been put to referendum. They have sought to shape rather than reflect public opinion. While it is impossible to measure whether they have achieved this goal, the notion that 'discrimination' is unfair and wrong certainly seems to be more widely accepted than it was when these laws were first passed.

A little later in relation to the policy goals, the learned authors say:

The traditional sources of statements of the goals of legislation, such as Ministers' Second Reading Speeches to Parliament and governmental reports recommending new or amended laws, have little information which assists this task.

I interpose: namely, the task of identifying the policy goals of these laws. I continue:

While some of the Second Reading Speeches contain inspiring statements about the importance of eradicating discrimination and promoting equality, there is a lack of detail in those speeches about the actual goals of the law and, most importantly, about how those goals will be achieved.

Even though the High Court has consistently maintained that anti-discrimination laws should be interpreted beneficially and liberally, very few members of the judiciary have been prepared to enter the fray by seeking to characterise the goals of the legislation in order to assist them with the task of applying those laws beneficially and liberally.

By way of example, later on at page 73, a dictum from three High Court judges—justices Gaudron, Gummow and Hayne—in the case of Austin v The Commonwealth (decided in 2003) said:

The essence of the notion of discrimination is said to lie in the unequal treatment of equals or the equal treatment of those who are not equals, where the differential treatment and unequal outcome is not the product of a distinction which is appropriate and adapted to the attainment of a proper objective.

That is what the judges said. The authors, I think perceptively, comment as follows:

While such an approach to the concept of discrimination may be appropriate in a constitutional context when considering whether a particular law should be characterised as being unlawfully discriminatory, this description of conduct which is unacceptably discriminatory is far too sophisticated to be of any practical use in an anti-discrimination statute which regulates the daily activities of people such as employers and providers of goods and services. People who are subject to a legal obligation not to discriminate against others on nominated grounds when they hire employees, or decide who to serve in a hotel or coffee shop, cannot reasonably be expected to make fine distinctions about the circumstances in which different treatment of others may, or may not, be appropriate. In order to be effective anti-discrimination law must stipulate with reasonable clarity the circumstances in which it is impermissible for an attribute possessed by a person, such as his or her race or sex, to influence a decision which is made about that person.

I fear that the bill we are now considering will not have the effect of clarifying or making it easier for businesses, institutions, schools and the like to conduct their business, nor will it greatly clarify in an educational sense for general members of the community what people's rights and responsibilities are.


[Sitting suspended from 18:00 to 19:48]


The Hon. R.D. LAWSON: Before the adjournment I was lamenting the fact that this bill is not expressed in the sort of language that ordinary members of the community who are obliged to comply with it would readily understand, principally because the very notion of discrimination is one that has not been clearly articulated in the second reading explanations over the years and the various materials that have been presented. I think it is a matter for some lament that what we are now doing is further complicating a complicated piece of legislation.

However, more to the point, I adhere to the view that this legislation is more about aspiration and education than it is about enforcement. It is designed, in the view of its propounders, to make a better society and make people better. That is not really the best function for statutes passed by parliaments. I think that is something of a matter for lament. However, the fact is that we and everyone else have equal opportunity or anti-discrimination legislation; and we have had ours now since 1984 and it is entirely appropriate that, if it is to continue in existence, it ought be updated.

I do not think it can be said by any stretch of the imagination that this is an undoubtedly successful piece of legislation. In saying that, I am not in any way denigrating the efforts of the holders of the office of commissioner for equal opportunity over the years and the staff who have worked there, nor of the Equal Opportunity Tribunal that has performed its statutory function. I simply believe that the tools with which those offices and tribunals have been working are far from perfect.

As have others, I mentioned that, in 1994, the previous Liberal government commissioned Brian Martin QC (now Chief Justice Martin of the Northern Territory) to prepare a report on the act, and he produced that report in October 1994. It is a comprehensive report with many recommendations at over 250 pages. He consulted with a large number of community groups and made a number of sensible suggestions. In the introduction to his report, Brian Martin stated:

The equal opportunity and anti-discrimination laws are an essential feature of the fabric of our community. They provide a framework of values and standards of conduct within which the community operates. The system of social justice created by these laws is crucial to the development of a truly just and equitable society.

Future development of the system should occur in a balanced manner. Human rights must be protected and enforced, but it is impossible to rectify every inequity or prevent all offensive behaviour by Government regulation. Consideration of practical issues cannot be avoided. Education fostering correct community attitudes is of prime importance. Unnecessary government intrusion into the lives of South Australians should be eschewed.

It was in the above context and with a commitment to the balanced development and enhancement of this system that I was requested to review the Act. I have approached the review and the formulation of my recommendations in that spirit.

I think they are admirable sentiments, and it is a pity that this parliament has not earlier acted on the recommendations of Mr Martin.

As others have mentioned, a bill was introduced by the previous Liberal government. It did not pass through the parliament. That bill was introduced in 2000, and it had not passed at the time of the 2002 election. This government issued a discussion paper in 2003 in relation to proposals. It was full of promises and commitments to do various things. The bill, when introduced in 2006, was largely based upon that discussion paper, although many of the suggestions and ideas floated in the discussion paper had been abandoned.

The bill that was introduced in 2006 was debated in February 2007, and the bill subsequently lapsed with the prorogation of parliament. In May 2007, it was restored to the Notice Paper as a lapsed bill, but that bill itself lapsed in 2008. I believe that this government has been playing politics with this measure.

The bill now introduced is in far different shape to that which was introduced and promised to be passed in 2006. More importantly, the bill now introduced is a far cry from the bill which was introduced in 2001 by the Liberal government. In a media release issued on 26 November 2008, the Attorney-General claimed that the 2006 version of the bill was opposed by the Liberals and the minor parties. It actually did not arrive in this council for debate.

In statements made at about the same time, the Attorney claimed that 80 per cent of the 2006 bill was substantially the same as the previous 2001 bill. However, that is not the case, and it is an entirely misleading statement. The Attorney sought to create the impression that this bill is the result of some sort of evolutionary process. It is not.

Many substantial changes have been made. Indeed, they are not only substantial changes, they are procedural changes. A number of other formal changes have been made, and I will be pursuing that issue during the committee stage. However, in this contribution I wish to emphasise my general position in relation to the overall provisions of the bill and to identify some that are problematic.

In the latest annual report (2007-08) of the Office of the Commissioner for Equal Opportunity, Linda Matthews, the commissioner, laments the fact that the government has not acted in relation to these laws. In her opening message, she states:

The equality of opportunity sits with those great freedoms and should be an equal part of the picture. It is an area where leadership is critical to keep our rights and freedoms protected, developed and current.

Later on, she states:

In South Australia we have had over 40 years of anti-discrimination laws. Such laws are now a community standard. In 1975 South Australia was the first state in Australia to introduce a Sex Discrimination Act. In 1984 the Equal Opportunity Act was one of the first pieces of legislation in the country to bring together different anti-discrimination laws into one Act. Since that time other States and Territories and various Federal governments have continually updated their equivalent laws. South Australia has not done so. Consequently our State legislation is now seriously out of date. It is a matter of regret that the Bill introduced to Parliament in 2006 designed to bring our legislation in line with contemporary standards has not been passed. South Australians do not have the protections provided everywhere else in Australia.

There are a number of elements of that particular extract with which I disagree. I do not believe, notwithstanding the fact that our laws may not have been amended as often as other laws, that South Australians have not enjoyed living in a place where discrimination is not rampant. There are, of course, and there always will be, as Martin acknowledged, episodes of discrimination, not usually systemic, often isolated instances, but sometimes practices that ought be corrected.

However, by and large, I believe that the legislation we have here has worked well. We are not in some sort of competition to try to outdo every other jurisdiction by providing additional remedies and redress. If that is the process, we will continue to amend this legislation to meet the requirements of every interest group that has some hobbyhorse that can catch the eye of the government of the day.

A couple of points from the commissioner's annual report ought be emphasised. For example, it is reported that a total of 258 people complained to the commission in the year under review; 29 of them complained of more than one type of discrimination. In total there were 287 complaints. In a state like South Australia with over a million and a half people, 287 is precious few complaints. If one looks at the number of complaints lodged with the Ombudsman, which runs to tens of thousands every year, the fact that 258 people complained does not suggest that there is widespread agitation in the community. The commissioner notes that, this year, 273 South Australians took their complaints to the national level.

Of those 258 people, 146 had complaints that could be accepted and addressed under our law. That does not mean that the balance—that is, some hundred and a few people—could not have their complaints dealt with because of any inadequacy in the law that is currently being addressed.

Some of them at least, one imagines, would have been complaints in respect of which there was no possible redress. When one also looks at the breakdown of complaints lodged in 2007-08, one finds that the largest number of complaints is in relation to disability issues.

For example, of the total 167 employment complaints, 47 of them arose from alleged disability discrimination; there were 22 complaints about sex discrimination; 22, race discrimination; 17, age; 18, victimisation; 19 complaints of sexual harassment; 13 complaints of alleged discrimination on the grounds of pregnancy; six on the grounds of sexuality in employment; two on the grounds of marital status; and one whistleblower.

That is in the particular category, which is the largest category, of alleged discrimination in relation to employment. So, I do not believe that we have what one could term a serious problem that requires immediate redress in this state. I commend the report also to members because it does contain a brief description of all of the tribunal decisions in the year under review together with a list and brief description of the complaints that were referred to the tribunal with the assistance of the commissioner.

Once again, I believe that an examination of those cases does not suggest that we have a serious problem in this state. The particular case to which most attention was given was that of of Colquhoun against the South Australian Trailer Boat Club, a case concerning a Ms Colquhoun who had applied for membership of the South Australian Trailer Boat Club. She had been involved in that club since she was a child and her father was a life member, but the club did not accept her application for membership.

She took a case to the tribunal, and it was found that, in fact, she was discriminated against because of her sex. However, the rules of the club did not stipulate that it was a male-only club and the tribunal took the view that the club was open to both male and female members and it should have considered her application for membership. It found that she had been discriminated against. However, the club then changed its rules to make it a male-only club. That tied the hands of the tribunal, and illustrates, I think, the point that, even though it had been pointed out to this club that it was engaged in discrimination, it chose not to be educated by the process, as the do-gooders would suggest it should be. The club chose to change the rules, and I am glad to see that the tribunal ordered that Ms Colquhoun be paid $10,000 compensation. I think that case highlights yet again the point made by Martin that it is impossible to rectify by regulation every inequity or to prevent all offensive behaviour.

This bill contains quite a number of what I would regard as tinkering provisions—really, almost changes for the sake of change when you undertake a review calling for change. I want to mention some of the issues which have certainly given me most concern and which I know have caused concern in the community. The first arises because this bill will give the Equal Opportunity Commissioner the power to initiate inquiries and investigations of her own motion.

Philosophically, certainly my position is that in a jurisdiction of this kind one would expect a commissioner to have to rely upon someone making a complaint and that the person against whom it is alleged there has been discrimination should be the ultimate judge of whether anything happens. They might say for all sorts of reasons, 'I don't want to make a complaint. I don't want to have an investigation.' However, this bill will now give the commissioner the power to inquire into and investigate matters even when there is no complaint and, as I have said, philosophically, that is something that is of concern to me.

However, on examining the legislation in other jurisdictions, I find that it is by no means unusual—in fact, it is almost invariable—that legislation of this kind vests a similar power in the person who holds a position the equivalent of the commissioner. I think it is only in Victoria that there is no such explicit provision, although there is currently a report which suggests that it be introduced. For example, in the commonwealth jurisdiction, the Human Rights and Equal Opportunity Commission does have power to initiate inquiries, and section 11(f) of that act gives the HREOC the power 'to inquire into any act or practice that may be inconsistent with or contrary to any human right' on its own initiative without the approval of a minister or any other body.

In New South Wales, section 119 of the Anti-Discrimination Act empowers the Anti-Discrimination Board to carry out investigations, research and inquiries, and there is no requirement that the investigation or inquiry be initiated as a result of a particular complaint from the individual person affected.

Likewise, in Queensland, section 155 of the Anti-Discrimination Act sets out the requirements needed for the anti-discrimination commissioner in that state to initiate investigations, and there is no requirement for a complaint. Similarly, in Tasmania, section 60(2) of the Anti-Discrimination Act provides that the commission may investigate without the lodgement of a complaint if it is satisfied that there are reasonable grounds for doing so. Likewise, in Western Australia, section 80 of the Equal Opportunity Act gives to the Commissioner for Equal Opportunity a power that is not based upon a complaint. In the ACT, section 48 of the Human Rights Commission Act 2005 gives the commission the power to act on its own initiative, as does section 13(1)(f) of the Northern Territory Anti Discrimination Act.

In relation to Victoria, Mr Julian Gardner undertook an independent review of the Equal Opportunity Act. A discussion paper issued in November 2007 and an options paper issued in March of this year suggests that it is recommended that the Victorian commission have a power.

Notwithstanding the philosophical objections that I have to a clause of this kind, I must say that the fact that other commissions can initiate matters of their own volition suggests that we are currently out of line, and it would be appropriate to allow the commissioner this power. Bear in mind also that, in South Australia, citizens who are discriminated against have remedies under the commonwealth legislation, and the relevant commonwealth authority does have power to initiate on its own initiative.

Another issue that has caused me some concern is the provision for exemptions. Clause 18 of this bill will insert a new section 34 which will provide that this particular division—the major discrimination division—does not apply to discrimination on the grounds of chosen gender or sexuality in relation to employment or engagement for the purposes of an educational institution if (a) the educational institution is administered in accordance with the precepts of a particular religion, and is founded on the precepts of that religion; and (b) the educational authority administering the institution has a written policy stating its position in relation to the matter. That is, the employment of—let's not beat around the bush—homosexual people. The policy is available on the website of the educational institution, and a copy of the policy is provided on request free of charge to employees, students and members of the public.

It seems to me that this is a most obnoxious provision. Currently, religious institutions are exempt from the anti-discrimination provisions in relation to the employment of persons on the grounds of their sexuality. There have been, so far as I am aware, no demonstrable injustices perpetrated under this existing regime. Now what the government has sought to do is to limit that exemption only to educational institutions and not to other institutions, such as aged care facilities or hospitals and other institutions conducted under the precepts of a particular religion.

It seeks this really offensive and obnoxious requirement that the institution have a written policy—and I do not believe it is any business of legislators to say that you have to have a written policy. If you said they had to have a policy, that would be reasonable, but to say that they have to actually write it down, to say that they have to put it up on their website, to say they have to give it to every Tom, Dick and Harry is kind of a way, and not a very backhanded way, of slurring the institution.

It is saying, 'We are going to out you. This is something reprehensible that you are doing and if you want to do this terrible and reprehensible thing then you have to jump through all of these hoops. You have to publicly shame yourself', in the views of the policy makers. I regard that as an offensive provision. As I say, I do not see that there is anything wrong with the existing exemption regime. It has not been demonstrated that it is causing grave concern.

I turn next to the provisions relating to discrimination on the ground of religious dress. This is a bizarre provision in the context of this particular legislative regime. Section 85T(1)(f) will now define discrimination as, or the prohibition will be, 'discriminate on the ground of religious appearance or dress.' Subsection (7) of that section will provide:

...a person discriminates on the ground of religious appearance or dress—

(a) if he or she treats another unfavourably because of the other's appearance or dress and that appearance or dress is required by, or symbolic of, the other's religious beliefs; or

(b) if he or she requires a person to alter the person's appearance or dress and that appearance or dress is required by, or symbolic of, the other's religious beliefs; or

(c) if he or she treats another unfavourably because of the appearance or dress of a relative or associate of the other and that appearance or dress is required by, or symbolic of, the relative or associate's religious beliefs.

The extraordinary thing is that this legislation does not make it an offence or prohibit discrimination on the ground of religion. Under South Australian law you are allowed to say, 'I am not hiring you because I don't like Methodists or Callithumpians', or anything else. You are not allowed now, though, to say, 'I won't be hiring you because of what you are wearing.'

Originally, as it was prepared, merely wearing a crucifix could have incurred the wrath of this legislation, although the wording has now been tightened up to dress that 'is required by'—crucifixes are not ordinarily required by, for example, the Catholic religion—'or symbolic of', and a crucifix is certainly, I would think, in the view of most, symbolic of one's Christian beliefs.

If we had a prohibition against discriminating on the ground of religion it would be reasonable to have this religious dress provision, but we do not have a provision about discrimination on the ground of religion, for very good reasons, and we will not go into them here.

One sees a lot of other discrimination in the world that is not dealt with in this legislation. For example, the largest Christian denomination in Australia (indeed, the world) does not have women priests. Is that discrimination against women? Is that discrimination on the grounds of sex? Possibly it is, but legislators would not go there. If they were seriously interested in abandoning all discrimination they would not have permitted that, if this legislature was seen to be the font of all anti-discrimination wisdom. So, I have serious concerns about discrimination on the grounds of religious dress.

They are the three issues that I want to mention at this stage. Others will be pursued in the committee stage. I believe that this bill will require serious amendment if it is to pass through the parliament. However, if amendments are made to address some of the concerns I have raised and the concerns of others, my position would be that the bill should be supported. It is not the panacea some claim it to be but it is some sort of improvement on the legislation.

The Hon. J.M.A. LENSINK (20:21): I rise to make some comments on this bill. I would like to commend the comments of our learned colleague, the preceding speaker in this debate, the Hon. Robert Lawson, and also refer to the speech made by our lead speaker on this debate, the Hon. Stephen Wade, on 3 March. He has outlined for the parliament what the Liberal Party's position is in relation to which aspects of this bill will be party votes and which will be conscience votes. I would also like to commend the member for Heysen in another place who has, I think in good faith, attempted to negotiate a position which Liberal members would find more satisfactory. As preceding speakers have already referred to, there have been, in the previous iterations of this bill, many things which members on this side of the council would have vehemently disagreed with.

I recognise that all legislation that tries to address equal opportunity and discrimination does need to be modernised over time and, therefore, this bill needs to be given due consideration. I think in the initial bill some 80 per cent of the content was not regarded as contentious, but some of it was quite ludicrous. One ground that springs to mind quite easily is on the basis of one's trade; another is on the grounds of one's geographic residence. I scratch my head trying to understand why that sort of thing would be included in the legislation.

I think that this bill has been quite a burr in the side of the government and has exposed the vast differences in opinion between the left and right of the Labor Party. As I have said, there have been attempts in good faith by our negotiator to negotiate a responsible position in relation to equal opportunity. I would also like to echo the words of the Hon. Robert Lawson in that this is an aspirational piece of legislation. I think it is unrealistic to expect that every instance of discrimination could possibly be properly addressed or every grievance could ever be addressed through the Equal Opportunity Act, and it would be incorrect to attempt to enact symbolism through a piece of legislation such as this. It needs to be realistic in that advancements can be made in correcting some grievances but, ultimately, it is educating people to understand that difference is not a reason to discriminate.

To briefly recap, the Liberal Party has a firm position in relation to caring relationships. It has a position which also supports the inclusion of domestic partners and, in relation to the tribunal being constituted of a presiding member or deputy presiding member, we have an amendment which will seek to ensure that one party will not be unfairly advantaged by having legal representation without the agreement of the other party, which I understand is a key provision of the Magistrates Court operation, and there may be other areas. The Hon. Stephen Wade referred to particular amendments proposed in this regard, and I refer members to his speech in relation to those.

There are areas in which Liberal members have been provided with a conscience vote, including chosen gender, religious dress or adornment, the right of religious institutions to discriminate on the basis of sexuality, or in respect of sporting or other clubs. I indicate that I will place my position formally on those matters when we debate the substantive clauses of those provisions.

I also refer to correspondence we have received from various stakeholders: Carers SA, the Mental Illness Fellowship, the Mental Health Coalition and the Premier's Council for Women. Members who have been aware of my interest in parliamentary matters over the years would understand that I have great sympathy for the position that has been placed on the record to each of us by those groups.

It is curious that the Premier's Council for Women—an advisory body for government—has written to all members, and I ask the government whether this is the first time the Premier's Council for Women has ever written to members of parliament in relation to a bill before parliament and whether it will be an ongoing practice. The way that organisation is constituted, I did not understand that that would be part of its role.

In relation to some of the matters that will be a conscience issue for members, a couple of areas I will touch on are in relation to independent schools. I listened with interest to the Hon. Ann Bressington, who spoke passionately about her sister's situation, and I can understand that it is very personal for her. She has great concern, and that is understandable but, on balance, in relation to independent schools we must understand as a parliament that they have particular strongly-held beliefs, which have not, as the preceding speaker stated, caused undue grief in South Australia, and I think they have valid reasons for wishing to continue to have those rules. I also agree with our preceding speaker that it was a petty provision of the government to insist that those policies be published on the internet as if to say that they should be outed and made ashamed of themselves and forced to publish those rules on the internet.

As the member for Heysen stated in another place in relation to this bill in some previous iteration, we are not requiring organisations to publish their occupational health and safety policy, so why should we do the same in relation to those aspects of it?

With those remarks, I indicate that I am broadly supportive of the bill. However, we will examine each clause, and I do have some sympathy for particular amendments that are being proposed.

The Hon. J.M. GAZZOLA (20:30): My contribution on this bill and its passage through the council will be brief. I support this bill and wish to congratulate the minister on the introduction and progress of the bill. I also endorse the comments and reflections of my colleague the Hon. Ian Hunter in his address to the amendment bill. As he observed, there has been an effort by a vocal and organised fundamentalist minority to hijack this bill on the grounds of religious vitriol and extreme prejudice.

I commend his reply to the council in noting that the strength of our system is its capacity to protect and develop understanding, tolerance and fairness—values that I have endeavoured to promote since my first Address in Reply. In closing, I thank all those people who wrote to me with their concerns on this bill.

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (20:32): I thank members for their most valuable contributions to this important debate, and, certainly, I acknowledge that there are a wide range of very passionately held views in relation to these matters. A number of issues were raised during the second reading debate which I will now attempt to address.

The Hon. Mr Hood offered several criticisms of the bill, and it will take me a little time to address them. First, the Hon. Mr Hood said that the bill requires a school-aged child to be hauled before the tribunal for making a sexually offensive remark even if no complaint has been made about the behaviour. That is incorrect.

The bill deals only with the case of a student aged 16 years or older. It permits an aggrieved fellow student to complain first to the school. If, however, the school conciliation process fails to resolve the dispute, the aggrieved student may complain to the Commissioner for Equal Opportunity again. That will lead to a conciliation process, this time through the commissioner. If that also fails to resolve the matter, the aggrieved student may lodge the complaint in the tribunal. The situation is different if the complainant is a teacher at the school because, in that case, the school conciliation process need not be used and the teacher can go directly to the commission.

It is fair to say that the majority of complaints lodged with the commissioner do not lead to tribunal cases. Many are successfully conciliated; some are declined or withdrawn. Thus, although it is possible that a student aged 16 or 17 might be brought before the tribunal, it is reasonable to expect that it would be rare. If it happens, the bill provides that the child's name cannot be published and that he or she cannot be made to pay monetary compensation. Redress could take some other form, such as an apology or attendance at counselling, for example.

The honourable member implies that joking remarks in the school ground are of no consequence, but, of course, that depends very much on what is said. Harassment at school can be so serious that a child refuses to return to school or even engages in self-harm, and there is plenty of documented evidence around that.

On the subject of religious dress, the Hon. Mr Hood also said that it would be difficult for an employer under this bill to prevent a person who claims to be a Jedi from wearing Jedi robes and carrying a light sabre to work. I wonder how many members have, in fact, seen a person dressed in Jedi robes and carrying a light sabre in a workplace (or, for that matter, anywhere else) in this state. It seems that there are few South Australian Jedi who are so devout as to wish to do that.

If, however, the situation arose where a person claimed the right to wear the dress of some unusual religion, the case would turn on whether there was, indeed, such a religion and whether that person practises it and, if so, whether the employer, by asking the person not to wear the attire, is enforcing a standard of dress reasonably required for the employment. The bill clearly permits employers to do that.

To say that employers cannot object is incorrect. I refer the member to proposed new section 85Z(5) on page 27 of the bill. What is reasonable will be a question of fact in each case. I would have thought that the Jedi problem would rarely arise, but it might well be that an employer asks a conscientious Muslim woman to remove her hijab and that she sincerely objects to doing so. In that case, the employer's request should prevail over that woman's conscience only if it is a reasonable requirement that she work without her hijab. In many jobs, the wearing of such could not reasonably present a problem to the employer, and so the woman's conscientious position should be respected.

The member had much to say about censorship and free speech. He implied that somehow the bill would forbid one calling an English friend a 'pom', for example. That quite simply is not so. This bill is not about censorship and, in general, it does not provide a remedy for unkind remarks. It is true that the sexual harassment provisions of the bill do provide a remedy for some types of offensive remarks. That remedy has existed for nearly 25 years: it is not new. All we are doing in the bill is changing the definition of 'sexual harassment' to match that used in the commonwealth law so that employers, in particular, do not have the inconvenience of working with two different definitions. How could that possibly be objectionable? I am sure the member did not mean to say that there should be a right to make sexually harassing remarks, but his criticism of the bill on this point is, in fact, hard to follow.

The Hon. Mr Hood also spoke about the provision that would require some religious schools to publish their policy against hiring workers of a particular sexuality, and he has filed amendments on this point. The government's view is that, if that is the school's conscientious belief arising from its religious faith, it ought to say so publicly. True enough, this might provoke public debate, even criticism, of the school from some groups. Is that not the very freedom of speech that the member has claimed he values so much?

I know that this has also been equated with the example of publishing one's occupational health and safety policy. There is a dramatic difference between the two. One affects the general policy pertaining to staff and students and the other could impact on the employment contract of the individual. So, if they take a job with the school not knowing that that is the policy of the school they can, in fact, be sacked and lose their employment. That is a big difference to outlining the occupational health and safety policies of a school. So, there is a very big difference between the two.

The member noted that the bill proposes to permit the Commissioner for Equal Opportunity to undertake her own investigation into a practice, even where there has been no complaint of discrimination. It is quite true that this is an important new power. At present, the commission needs the approval of both the minister and the tribunal before she can do so. This is to be contrasted with the Australian Human Rights Commission, for example, which can and does launch inquiries of its own motion. New South Wales, Western Australia, the ACT and the Northern Territory also provide comparable powers.

The member wondered why we would ever want such a power in South Australia. The answer is that, where discrimination or other unlawful acts are occurring, the victim will not always be prepared to speak up. It is not impossible, particularly where the victim fears losing his or her job, that the victim will be more inclined to waive his or her rights and let the unlawful conduct go. In such situations, there might be merit in the commissioner investigating what has happened. If it turns out that there is nothing amiss, so be it, but if the commissioner believes that the law has been broken, then the commissioner can bring a complaint before the tribunal for determination. Members should note that the commissioner herself does not decide the complaint. The tribunal would do that, just as if the complaint had been brought in the ordinary way. If there is a reason to suspect that unlawful action has occurred, why should an authority not be able to at least ask some questions?

The member thought that this power would enable the commissioner to 'determine social policy'. That is not so. The commissioner's investigation is aimed solely at discovering whether there has been a breach of the act. I refer the member to clause 67. It is parliament that sets the policy. The member asks: where is the consistency? Well, it is in the act. Whatever the views of an individual commissioner, an action either does or does not contravene the act. The tribunal will decide. It is wholly wrong to say, as the member does, that 'we will have a situation where the commissioner becomes the arbitrator of what is acceptable'.

The tribunal alone can decide these cases. However, what is the good of us legislating that, for instance, a person should not be refused lodging on the grounds of his race, if this wrong is never discovered and redressed? Suppose that a large landlord was systematically refusing to let to persons of a particular race, each of whom was individually unwilling to lodge a formal complaint. Would that not be something that could be usefully investigated and brought before the tribunal? Would we not want public scrutiny and, as the member says, open criticism of such a practice?

Finally, the member complains that the tribunal is a no cost jurisdiction. That is, ordinarily, claimants are funded by the commissioner and respondents pay their own legal fees. This is not the result of the bill. It has been the law since the act was passed in 1984. No doubt it may have been parliament's concern that, if a jurisdiction carried the cost risk of the civil courts, most complainants would be discouraged from taking the risk of a tribunal case. We would not want that because, if the complaint is well-founded, bringing it forward serves not only the individual complainant but also the public good, because it brings to light and helps to stamp out discriminatory practices in our society, making it more equal for all.

The bill proposes no change to this aspect of the law, but it does something to reduce the risk that the commissioner will be funding undeserving claims. This is achieved by creating wider powers to decline to fund a complaint. Under the bill, the commissioner need not take up a complaint if there are no reasonable prospects that the tribunal would make an order in the complainant's favour, nor need she take up a complaint if the complainant has already been made a satisfactory offer of redress. In this way, the commissioner will be directing public funds only to cases that reasonably should be brought before the tribunal. The government thinks that it is an important improvement on the present position and a fair solution.

The Hon. Mr Parnell also contributed to the debate. He noted that a number of proposals which were put forward in the 2006 version of the bill and which he supported have since been abandoned. In particular, he asked why the government has not included in this bill the formerly proposed ground of 'area of residence'. He also mentioned his disappointment that the formerly proposed ground of 'lawful occupation or trade' was not covered. He thought that people should not be treated unfavourably on these grounds. The government does not disagree, but, quite simply, the present bill represents a compromise. The government would have wished it to go further but has brought before this parliament a bill in a form that it hopes will commend itself to the majority of members. We have had to sacrifice some reforms in the hope of achieving others, for example, the protection of carers, as the member outlined.

The Hon. Ms Bressington quoted from correspondence she had received criticising the bill and responded to those criticisms. I thank her for her exposition of some of the principles of equality the bill seeks to promote. It may be helpful if I also point out that the bill does not affect the existing immunity that protects any practice of a 'body established for religious purposes' if the practice either conforms to the precepts of the religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion. I refer to section 50(1)(c). A church would clearly be a body established for religious purposes. Thus the suggestion that the bill would require churches to hire out their premises for so-called gay weddings is mischievous, to say the least, as is the suggestion that the bill would require churches to accept homosexual staff for administrative or clerical posts within the church.

The Hon. Mr Wade outlined the opposition's views on this bill, distinguishing those matters on which the Liberal Party has a position and those that are to be conscience votes. He has also foreshadowed amendments, and it is clear that we need to spend some time on the detail of the bill in the committee stage.

The Hon. Mr Winderlich spoke in support of the bill and in particular set out his views on some aspects that have proved controversial with some stakeholders. I thank him for his attention to those matters.

A number of other members have contributed to the second reading debate this evening. If they have raised issues in those speeches that I have not dealt with in these summary remarks, I am very happy to deal with them during the committee stage. I thank all honourable members for their contributions to the second reading debate.

Bill read a second time.

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