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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-02-19 Daily Xml
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EQUAL OPPORTUNITY (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 18 February 2009. Page 1341.)

The Hon. M. PARNELL (16:14): The Greens will be supporting this bill, and we note that this package of amendments has been a long time coming. We also supported the previous bill, and we are somewhat disappointed that it has been watered down. Nevertheless, most of the correspondence I have had from credible representative organisations has urged me to support the bill regardless of its shortcomings, so that is what I intend to do

I will refer to some of the correspondence that I have received shortly. However, at the outset I would like to say that when this bill first came before the parliament I received a lot of pro forma correspondence, much of which showed a remarkable degree of bigotry and intolerance. Other correspondence was more reasonable but was clearly the product of a campaign of misinformation about the intent and scope of these laws.

People wrote to me firmly believing that the whole concept of free speech was being thrown out the window and that people would be sent to gaol for the most minor breaches of political correctness. Clearly, that was an incorrect understanding of the bill, and it is also wrong to ascribe those qualities to the current bill.

We do have to draw a line to demark the boundary between free speech and anti-vilification. Generally we are a tolerant society and are prepared to put up with a broader range of opinions than those in many other countries. In some countries Holocaust denial is a crime; and, while most of us in Australia would still be appalled at such views, we would generally accept the right of people to be ignorant, ill informed and divisive. However, we draw the line against more blatant forms of discrimination.

Yet it is the anti-discrimination provisions of this bill that have attracted the most attention. To paraphrase one of the common, standard-form letters that I have received recently, 'Dear Greens, please allow my school to discriminate against homosexuals and keep the fact of our discrimination a secret.' My response to those letters has been to write back along these lines:

I appreciate that there have been some changes since the bill was first introduced to parliament in 2006, and one such change has been to allow religious schools to continue to discriminate against hiring teachers on the basis of their sexual orientation. The bill provides that schools who choose to implement policies that discriminate in such a way are required to make such policies publicly available. Whilst I do not support discrimination, I believe that where it is allowed it should be transparent.

That is my position. I would prefer that discrimination on the grounds of sexual orientation was made unlawful; however, I know that that position does not have majority support, so it is a second-rate option to at least require that such discrimination be open and transparent. If that means that people hold feelings of disappointment, contempt or even anger against these schools, then so be it. If this parliament is prepared to grant a dispensation from the general rule against discrimination, then the least we can do is ensure that such discrimination is open and transparent.

The case against allowing discrimination is weakest for bodies that put up their hand for public funding, and that includes all the schools who are likely to take advantage of the exemption. The minister made that point in slightly different words when introducing the bill. One submission I received to which I would like to briefly refer is from the Youth Affairs Council of South Australia. It had to consider whether to lend its support to a sub-optimal bill or whether it should hold out for more reforms. The president of the Youth Affairs Council of South Australia said:

Whilst YACSA remains concerned that the proposed legislation will not cover same-sex attracted teachers working within religious schools, we broadly support the passage of the bill as proposed. In particular, we strongly endorse changes that prohibit discrimination by all schools against students, and prospective students, on the basis of their sexuality. The bill as proposed can be improved; however it is essential that the changes it does contain be passed promptly and without further amendment.

Same-sex attracted young people can face isolation, fear of bullying and depression as they come to grips with their identity. They are more likely to experience difficulties at school, homelessness, higher rates of drug and alcohol use, mental health issues, family conflict and are at significant risk of self-harming or suicidal behaviours. For those living in rural, regional and outer metropolitan areas, these issues are exacerbated.

These young people do not need the additional fear of being expelled on the basis of their sexuality and any moves that contribute towards changing this situation for young people are welcome.

Notwithstanding our general support for this legislation, there are still some areas of discrimination that, in my view, have not been adequately addressed, and I will come to those shortly.

One issue that I did want to comment on followed the contribution of the Hon. Ian Hunter where he pointed out that, in drawing the line between lawful and unlawful discrimination, one test that can be applied is whether or not the matter being discriminated against is within the control of the person.

He made the point, and I agree with this, that we should not be sucked into thinking that a person's sexual orientation is purely a matter of choice. That is how people are, and that puts those people in the same category as men or women who do not have a choice. That is how they were born. I do believe that that is one of the tests for where to draw the line in relation to lawful and unlawful discrimination.

One of the missing issues for me is the question of discrimination on the grounds of place of residence. I know that this is a difficult issue. I think most of us would be appalled if someone were not able to get a job because of some prejudice about where they live. Certainly some areas of South Australia have a higher crime rate than others, but that does not mean, obviously, that all those who live in those areas are criminals. So, why would we allow discrimination on that ground?

On the other hand, it is also reasonable for an employer to try to give preference to local workers, and that might mean discriminating indirectly against someone on the basis of where they do not live. I would like further explanation from the minister as to why the government has chosen not to address this issue, because it is a deviation from the original bill.

The second area where I think there are still some problems is in relation to discrimination on the grounds of a person's occupation or employment or their previous occupation or employment. One person who is involved in giving advice to young workers put it to me that there is a large number of people who at some stage in their lives engage in the sex industry—students, in particular. Whilst it might not be a lifelong vocation, it might be something in which, at a stage in their life, they find themselves involved willingly or even unwillingly, perhaps to pay the bills.

Under the current legislation, it would still be lawful to discriminate on the basis of someone's past employment so, if we take a most extreme example, you could have a 90 year old rejected from a nursing home because of something that that person might have been involved in during the war years. That is stretching it a long way but, at the end of the day, if we are going to allow discrimination on the basis of current or past employment, that is the type of outcome. It is more likely to be in relation to more recent events or current employment than that but, nevertheless, that is the consequence of these types of laws that do not address all forms of improper discrimination.

One group that is happy with the current changes is those who represent carers, because they were neglected from the earlier version of the bill. I will refer briefly to some of the comments from Janet Wallent and Rosemary Warmington, the President and CEO respectively of Carers SA, as follows:

We are therefore pleased to see that this Bill makes it unlawful to discriminate on the ground of caring responsibilities including indirect discrimination such as setting unreasonable requirements that are too difficult for a Carer to meet.

We also note and acknowledge that the Bill provides protections at a state level for people with disabilities, mental illness, learning disabilities or illnesses such as HIV and Hepatitis C.

We believe that this Bill is a useful complement to the SA Carers Recognition Act 2005 and the associated SA Carers Policy 2006.

Carers SA has previously expressed disappointment at the failure of earlier attempts at equal opportunity legislation and strongly encourages you to support this current bill, so that carers, among others, can receive the legislative protection they have been seeking for so long.

Carers are amongst the most vulnerable of our society: they need all the support they can get.

Changes in the culture of the workplace, for example, that enable a work/life balance, are required if carers are to thrive within a caring community.

So, that is an improvement on the previous legislation. One other issue that has been raised with me in correspondence has been the right of the commissioner, of his or her own volition, to investigate matters. This is a new power that I welcome. I think it is important because many people who are facing discrimination will choose not to bring an individual complaint for a variety of reasons. Perhaps the foremost of these reasons would be the fear of further discrimination, or even retribution.

In the area of housing, for example, a complaint on any grounds can very likely lead to homelessness, particularly since our residential tenancy laws provide for evictions with no reason. So, unless there is a mechanism for the commissioner to investigate and get involved, the chances are that these forms of discrimination will go unaddressed.

Overall, the Greens believe that this bill, whilst not perfect, has come a considerable way to addressing some of the injustices that exist in society. We think these reforms are better than no reform at all and accordingly we will be supporting the second reading of the bill.

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

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