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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-05 Daily Xml
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EQUAL OPPORTUNITY (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 March 2009. Page 1524.)

The Hon. DAVID WINDERLICH (15:33): I speak in support of this bill. The Equal Opportunity Act 1984 is outdated. No longer does it reflect the community standard. It is time for South Australia to move forward in line with other states and the commonwealth to ensure that South Australians are protected from discrimination. The Equal Opportunity Act 1984 as amended will now recognise carers. It will now be unlawful to treat someone less favourably because of their caring responsibilities. Carers contribute more than $2 billion to the state's economy. It has taken far too long for these changes to be made and for their contribution to be recognised.

Breastfeeding mothers, the mentally ill and HIV patients will at last be protected from discrimination. The bill will amend the definition of 'disability' to include those living with mental illness, those who have learning difficulties and those who are infected with HIV, hepatitis C or other diseases. The term 'HIV' can easily create alarm. It is important to remind the community that protecting HIV patients from discrimination does not stop the implementation of reasonable measures to prevent the spread of HIV. This bill simply makes it illegal for an employer to refuse to employ a person just because they are infected with HIV.

As I interpret the bill, this would mean, for example, that, in an occupation where there is a high risk of transmission of the disease or exposure to body fluids, it may be reasonable to refuse employment to a person with HIV. However, in an office environment, where employees sit at a computer, it would be unreasonable to deny a person employment just because they have HIV. While some of these areas are already covered by the commonwealth law, this has forced complainants to lodge their complaints with the Australian Human Rights Commission based in Sydney. This is another barrier for the poor or people who lack the confidence to negotiate bureaucratic systems. This bill will enable all South Australians to have their complaints heard by the Equal Opportunity Commission in Adelaide.

This bill has been the subject of some criticism—quite a lot. I acknowledge emails from people who are concerned about what they see as the negative effects of the bill. Their concerns appear to revolve around several key issues including, first, sexuality. The biggest concern for quite a number of the people who have emailed me is that the bill will remove the blanket exemption that allows all religious institutions to discriminate on the basis of sexuality. Only religious schools will be able to continue to discriminate on the basis of sexuality, and only if they publicise their intention to do so on their website.

No one should be exempt from discrimination laws. Freedom from discrimination on the basis of a person's sexuality is a basic human right, in my view. A person does not choose their sexuality, and they should not be subjected to unfavourable treatment because of something they cannot control. Many of the complaints in this regard have come from Christian schools and people associated with such schools. However, I have also received emails from Christian schools that support the bill.

While it appears that some people believe that strong anti-discrimination laws are incompatible with the practice and celebration of Christianity, other Christians disagree. Christianity, like most religions, they argue, is based on love of God and love for each other, and it is from this, as former High Court justice Michael Kirby says, that religious tolerance derives. Ultimately, though, if preventing homosexuals from teaching children is a priority for these schools, because their religion compels it, they should not take issue with publicising this policy on their website. This will allow parents to choose to send their children to a school which conforms to their own beliefs.

Parents can choose to send their children to schools that actively oppose alternative sexualities and discriminate against fellow human beings. Equally, parents will be able to choose to send their children to schools in which tolerance and acceptance of others are valued, if they desire. This is not just a theoretical argument. I have spoken to Christian parents who choose to send their children to Christian schools and who are incensed at the thought that their schools might actually be homophobic.

I also find the opposition of some correspondents to being required to publicise their 'no jobs for gays' policy difficult to understand. Members may not be aware, but I have a reasonable idea about Christian fundamentalists: I was raised as one. I was not raised to hide my beliefs; we were suppose to be proud of them. We were not to be deterred by the threat of persecution. The history of Christianity as I absorbed it was a history of persecution. The Romans oppressed the Christians: they crucified them and fed them to lions. The Catholics in Papua New Guinea (they were known as popies; while in South Australia, I understand, they are known as shoppies) persecuted the Protestants.

Communist regimes oppressed Christians—I read American comics about courageous Christians smuggling Bibles behind the iron curtain. Secularism and consumerism were a constant threat. Our faith in God, as I recall, was supposed to make us strong enough to withstand such persecution. So, I respect the right of those people writing to me to oppose this legislation. I would just encourage them to have the courage of their convictions. What are they afraid of, anyway?

The suggestion that forcing schools to disclose hiring practices on the web will expose them to violent protests is ridiculous. Members may recall a number of cases in the early 1980s where several gay people were bashed with iron bars. I do not recall any similar reports of gays hunting and bashing Christians, heterosexuals or anyone else. The changes will not mean that schools will be forced to hire homosexuals. While many complaints allege that changing the law will flood schools with homosexuals, the practical reality is that most of the time people will not want to work where they are not welcome. Retaining the right to discriminate is, however, offensive and it is necessary to ensure that people who wish to enforce their rights can do so.

Another criticism of the bill is that it gives the commissioner the ability to instigate investigations on her own initiative, and that this will allow the commissioner to push an agenda. I do not believe this is correct because there is a check built into the system. The commissioner can refer a complaint to the tribunal but will have no power to make a finding that a person has discriminated against another. This decision will be left with the tribunal. This power is a necessary change to the law because people who have been discriminated against often feel powerless to do anything about it. Often such people are not aware of their rights or how to enforce them.

There are also complaints about the new power of the commission to compel witnesses to appear before the commission and to provide any information or documents that the commissioner deems relevant. Again, introducing provisions that provide the commissioner with such powers brings South Australia into line with other states.

This type of power is also given to courts, tribunals and other commissioners in other areas to ensure that they have all the available information before them to enable them to make the correct decision. This power also facilitates the ability to investigate where no complaint has been made and to identify whether the matter should be brought before the tribunal.

Remember that we are talking about potentially serious issues. You can be denied or lose your job because of discrimination. There is a lot at stake, so it seems reasonable to have the power to compel witnesses to appear and to provide documents.

The Hon. Dennis Hood mentioned that he was concerned because he believed people may be exposed to costs by vexatious litigation. Indeed, many opponents of the bill fear that small business may be in trouble on this ground. This criticism is ill-informed. The fact is that the tribunal has always had, and will continue to have, the power to order that complainants pay the cost of proceedings before the tribunal where the claim is truly baseless and vexatious.

The Hon. Dennis Hood also expressed concern that giving the Equal Opportunity Commission the ability to initiate proceedings against children might result in a child who jokingly said something in a classroom ending up before the commission. I assume that this provision in the bill is designed for cases of serious, sustained discrimination. That happens, and it can make the lives of children or teachers an absolute hell.

It is reasonable that we have the tools to deal with such cases while retaining the wisdom to use them judiciously and to develop a society in which people have the skills, confidence and goodwill to sort things out themselves without dragging everything and everyone into formal complaint systems.

There is also some concern about the burden that this bill will impose on employers, especially in small businesses, but this bill is not about giving anyone special treatment. Employers only need to ensure that they treat everyone equally and reasonably. For instance, the new protection to carers does not mean that employers cannot require carers to work shiftwork but, rather, all conditions need to be just and reasonable in the circumstances.

It may not be obvious to members, but religious fundamentalists and the gay, lesbian, transsexual and intergender communities actually have something in common. They are all minority groups that need to be protected from the prejudices of the majority and, possibly, each other.

The only way to protect diversity is to encourage non-discriminatory practices. The only way to protect the freedoms of minorities like fundamentalist Christians is to protect the freedoms of all other minorities including homosexuals and Muslims. That is what the bill does: it ensures that everyone is free from discrimination.

I suggest that the Christians consider getting together with the gays to lobby for the bill, and not against it. To paraphrase John Howard, the things that unite, at least in this case, are greater than the things that divide you.

Debate adjourned on motion of Hon. B.V. Finnigan.

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