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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-26 Daily Xml
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EQUAL OPPORTUNITY (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. D.G.E. HOOD: I rise to respond to several comments made by the Minister for State/Local Government Relations during her reply to the second reading debate on Tuesday night. The minister said a number of things that I want to clarify. For example, the minister said that I was incorrect in saying that school-age children could be brought before the tribunal without complaint. However, the minister later said during the same speech that although school-age children could be brought before the commission that would only happen on rare occasions. So, clearly, what I said was correct, because the very fact that children can be brought before the commission on rare occasions implies that it actually can happen.

Putting that aside, I have had extensive correspondence from many schools expressing concern about the wording of clause 6, which I also find concerning. Clause 62 provides:

It is unlawful for a student of or over 16 years of age, while in attendance at a place in connection with his or her education, to subject a person who works at the educational institution at which the student is enrolled or a fellow student to sexual harassment.

Whilst I am sure that none of us support sexual harassment in any way whatsoever, I find this provision, in itself, somewhat concerning.

As a state, long ago we decided that the general age for legal responsibility was 18 years. Universally, as I understand it, courts and other tribunals within South Australia will not entertain actions or prosecutions against children under the age of 18. To my knowledge, the sole exception is the Youth Court. On rare occasions applications are successfully brought to the Youth Court for a child to be tried as an adult for what I understand to be most heinous and very serious crimes. One can imagine a 16 year old making a stupid sexually offensive comment, and I feel very strongly that that should not be tolerated. Nevertheless, comments made by children and younger teenagers should not be subjected, in my view, to full adult legal responsibility, except in absolutely exceptional circumstances.

More concerning are the collateral legal implications of a child being brought before the tribunal. There is an overarching provision in clause 67 that allows the commissioner to investigate matters and, in the subsequent clauses, to initiate complaints, notwithstanding that no complaints have been lodged. It seems to me that clause 67 would override the provisions in clause 66, meaning that it would be at least theoretically possible that a child could be the subject of a complaint by the commissioner, even if the minister maintains that it would not happen, or at least happen only rarely.

More concerning to me are the cost implications. According to new section 95B(2), the complainant will receive free legal advice and assistance, while the student (who may be only 16 years of age, remember) would be given no legal support. I ask members to put themselves in the shoes of a 16 year old student who has made a stupid comment in the schoolyard, which they no doubt regret, and then found themselves standing alone against the full weight of the commissioner's funded lawyers. Even if such a scenario was rare, as stated by the minister, it simply goes too far, and for that reason I have suggested increasing the age from 16 to 18 years as the legally accepted definition of 'adult' in the bill, as per my amendment.

The CHAIRMAN: Order! The Hon. Mr Hood is repeating his second reading speech. He made a long second reading speech, and he is making his second reading speech in another form and seems to be covering the whole of the bill. He has moved on to section 92 something or other. We are on clause 1. I am not going to allow members to jump up and have another crack at a second reading speech. Does the honourable member have any questions on clause 1 for the minister?

The Hon. D.G.E. HOOD: I will be very careful, sir, but may I address some of the comments the minister made in her summing up?

The CHAIRMAN: The honourable member started off doing that and then he started waddling all over the place.

The Hon. D.G.E. HOOD: I will be careful to maintain that path, sir, with your permission.

The CHAIRMAN: The Hon. Mr Hood.

The Hon. D.G.E. HOOD: Thank you, sir. Also, during her summing up on Tuesday night, the minister referred to the comments I had made in my second reading about the religious dress discrimination provisions, which would require many employers to accept a religious dress code no matter how outlandish they considered it. In my speech I used what I considered to be a deliberately extreme example of Jedi, because it was highly unlikely, and I said that this person demanded the right to wear what they considered to be the appropriate clothing.

The Hon. G.E. GAGO: The member is actually addressing issues that are dealt with in clauses later on in this bill. So, there will be ample opportunity for him to address these matters at the appropriate time.

The CHAIRMAN: I agree. I also heard the honourable member mention what he had already said in his second reading speech. I am not going to allow the honourable member to repeat his second reading speech. I know that members in this place are sometimes aggrieved at what is said after they have had an opportunity and then realise that they need another crack at it. There are other opportunities, such as Matters of Interest, where members can get another crack at it.

The Hon. R.I. Lucas: Notices of motion.

The CHAIRMAN: Notices of motion; that's right.

The Hon. G.E. Gago: Another select committee.

The CHAIRMAN: Yes, select committees. Are there any further contributions to clause 1?

The Hon. R.I. LUCAS: We had a debate last evening—and, indeed, today—about the inconsistencies between state and federal legislation. I want to raise that issue in relation to this bill. At the moment we have legislation covering the same area of equal opportunity—and will have even if this legislation is passed as the government wishes—where there are inconsistencies between federal and state legislation. Given the government's position, which the minister put last night, on the desirability of that situation, can the minister indicate what her position is now on that same question—that is, on the desirability or undesirability of inconsistencies between federal and state legislation? In the event that there is an inconsistency, what is her advice regarding which provision applies?

The Hon. G.E. GAGO: First, this government does seek to avoid inconsistencies between state and commonwealth legislation wherever possible. Within equal opportunity there is currently a range of quite significant differences between the two jurisdictions and this bill predominantly seeks to reduce those.

The other point is that commonwealth law on these matters is designed to operate concurrently, where possible. I guess there are some areas within the bill—such as religious dress—which are not addressed in the commonwealth legislation because they are outside the scope of that legislation, and it is appropriate that we, as a state, put forward those provisions that we see as being responsible and reasonable for this state.

The Hon. R.I. LUCAS: Given that the minister acknowledges there are significant differences in aspects of coverage of federal and state legislation in terms of equal opportunity, in the event that there is an inconsistency between federal and state legislation is it her advice that the federal legislation takes precedence?

The Hon. G.E. GAGO: My advice is yes, to the extent of the inconsistency.

The Hon. R.I. LUCAS: I thank the minister for that advice, because that was the point I was making to the committee last night in regard to those inconsistencies. Can I clarify that the minister has indicated that in this legislation the government is reducing the extent of the inconsistency between federal and state legislation rather than adding to the extent of any such inconsistency?

The Hon. G.E. GAGO: I have been advised that we believe that the bill reduces some of the differences between state and commonwealth provisions. For example, it seeks to adopt the wording of the commonwealth law on sexual harassment and, as far as we are aware, it does not produce inconsistency; however, one cannot be absolutely sure until the law is in operation. To the best of our knowledge, and to the best of our advice, we believe that it does not create inconsistency.

The Hon. S.G. WADE: How can that be, minister, when we are introducing shall we say 'novel' provisions, for the sake of moderate language, such as religious appearance?

The Hon. G.E. GAGO: Inconsistency is not the same as difference. Religious dress is outside the scope of commonwealth legislation. It does not deal with that and, therefore, the provision we propose does not develop an inconsistency between jurisdictions; it will be different. It is appropriate for states to develop the legislation for their own jurisdictions that they believe is appropriate and proper for their state.

The Hon. R.I. LUCAS: Further to that, as I understand it, in relation to provisions we will come to later involving carers (I will not go into the detail until we get to that clause), is it not correct that the government is introducing significant differences in terms of coverage with respect to carers?

The Hon. G.E. GAGO: My advice is that yes, it is broader.

The Hon. R.D. LAWSON: Does the minister agree with the proposition that as this act binds the Crown in right of the state of South Australia, it has significant application in relation to discriminatory practices with respect to employment, education and housing, which apply to the state government but which do not apply to the state government under the relevant commonwealth legislation?

The Hon. G.E. GAGO: I am advised that we need to take that question on notice, as I do not have the answer here.

The Hon. D.G.E. HOOD: Will the minister outline the consultation process in the drafting of the bill? Who was consulted, over what period and what was put to them?

The Hon. G.E. GAGO: It has indeed been extensive, and that is an understatement. Work towards this bill has been taking place for almost 15 years. However, rather than spend a lot of time going back and outlining in detail the present government's efforts, I point out that a framework paper was published in 2003 and public submissions were invited. There was the Martin report in 1994, which was a process that also involved quite intensive public consultation.

The Hon. D.G.E. HOOD: The minister mentioned consultation being sought in 2003, and there were a number of submissions. Can she indicate who made those submissions?

The Hon. G.E. GAGO: That information is available, but we do not have it here. I am happy to take that on notice and provide the information to the member.

Clause passed.

Clause 2.

The Hon. S.G. WADE: When will the act be proclaimed?

The Hon. G.E. GAGO: There is no reason for proclamation to be delayed once the bill has been passed in both houses.

The Hon. S.G. WADE: What is the anticipated net impact of the bill on the workload of the commissioners and the funding of the operations of the act?

The Hon. G.E. GAGO: My advice is that it is expected that there will be some new complaints if the new provisions are passed; however, the advice is that they can be managed within current resources.

The Hon. R.D. LAWSON: Is it envisaged that any new regulations will be required upon the passage of this bill?

The Hon. G.E. GAGO: My advice is that we do not foresee any at this stage.

The Hon. R.I. LUCAS: Is it the government's intention to proclaim all of the act as soon as possible, or is the government reserving the position that perhaps some sections of the act might not be proclaimed?

The Hon. G.E. GAGO: The advice is that the government has not formulated any intention in relation to that at this point in time.

The Hon. R.I. LUCAS: Can I clarify that it is possible, then, that the government might, as early as possible, proclaim some sections of the legislation and not proclaim other sections until a later period?

The Hon. G.E. GAGO: I am not aware of any intention to delay any aspect of the bill but, at this point in time, I cannot give any guarantees other than that. There is no known intention at this point to delay any aspect of it that I am aware of.

Clause passed.

Clauses 3 and 4 passed.

Clause 5.

The Hon. S.G. WADE: In relation to the definition of 'act', does the current act provide for omissions to come under the scope of the act?

The Hon. G.E. GAGO: I do not understand the question.

The Hon. S.G. WADE: Under this bill, clause 5(1), the word 'act' is given a definition, which it did not have before. In other words, 'act' now includes 'an omission'. Were omissions covered by the previous act?

The Hon. G.E. GAGO: My advice is that as far as we know they would be. The advice is that it now reflects common drafting practice.

The Hon. S.G. WADE: If it was included and covered by the act in the past, why is it necessary to define it? If a piece of legislation is in plain English and I am reading it—an act is something positive and pro-active—I can do a lot of things by omission and, if you like, it puts an onus on me to be more active in avoiding discrimination. I think the inclusion of the word 'omission' would significantly increase the scope of the act.

The Hon. G.E. GAGO: My advice is that it does not increase the scope of that provision but simply provides greater clarification.

The Hon. S.G. WADE: Does the commonwealth bill include a similar definition of 'act' and was it recommended by Martin or included in the 2000 bill?

The Hon. G.E. GAGO: Are you asking about all commonwealth acts?

The Hon. S.G. WADE: The commonwealth equal opportunities legislation.

The Hon. G.E. GAGO: There are several commonwealth acts involved, so it will take some time.

The Hon. S.G. WADE: Perhaps the minister can advise the committee later.

The Hon. G.E. GAGO: We will take it on notice and provide that information later in the proceedings.

The Hon. S.G. WADE: In relation to the next definition, 'assistance animal', why was it decided to define an animal by class rather than by function?

The Hon. G.E. GAGO: The advice is that the animal is an assistance animal if it meets certain criteria, and therefore using class as a definition is a more suitable way to do it.

The Hon. S.G. WADE: I think it is sensible to define an assistance animal by criteria, but the act does not do that; it defines it by class. You have to be a guide dog or an accredited disability dog under a certain act, or a particular animal of a class, not an animal that meets certain criteria. I would prefer to see a definition which says that an assistance animal is an animal that assists a person with a disability to perform the functions of daily life, but that is not what we have. We have animals being defined by class, and that does not reflect the diversity of the disabilities with which South Australians live.

The Hon. G.E. GAGO: We have defined it in this way to give us a firm marker so that we can tell when, in fact, the law has been broken. For example, any person could say, 'My dog (or cat or whatever) has been trained to assist me.' However, unless they have achieved some recognised accredited standard, it would be very difficult for us to distinguish between those animals that have really been trained to be of assistance and those that have not.

The Hon. S.G. WADE: The alternative is in the act itself; in relation to therapeutic animals, it is done by the certification of a medical practitioner. I think we are getting to the point where I do understand the government's approach and we can debate it at the substantive clause. On that same definition, I presume (from the minister's answer to an earlier question from the Hon. Robert Lucas) that the government does not currently have any intention of prescribing an animal of a class under clause 5(1)(b).

The Hon. G.E. GAGO: I have been advised that we presently do not have any intention to do so.

The Hon. S.G. WADE: In relation to 'close personal relationship' in paragraph (b) it states:

... relationship where one of the persons provides the other with domestic support or care or both for fee or reward.

My concern is about what happens if a member of a couple is remunerated for domestic support or personal care: does the fact that you receive remuneration to provide support to your partner disqualify you from having a close personal relationship?

The Hon. G.E. GAGO: I have been advised that this definition has been taken directly from the Family Relationships Act, so there are other provisions for it. The advice is that if the person is receiving a wage for caring then that would not qualify them to be regarded as having a close personal relationship.

The Hon. R.D. LAWSON: Whilst on the definitions and close personal relationship, will the minister advise whether the provisions of Part 3 Division 6, dealing with discrimination in relation to superannuation, have yet come into operation? Certainly the copies of the legislation that I have indicate that it has not yet come into operation. Will the minister say why that division has not yet come into operation and indicate when it is envisaged that it will?

The Hon. G.E. GAGO: This provision has never come into operation in South Australia. This bill proposes to repeal that particular provision because, in general, superannuation is regulated by commonwealth provisions.

The Hon. S.G. WADE: On the definition of 'disability', I wonder whether the minister will advise whether this definition is drawn from another act—state or federal.

The Hon. G.E. GAGO: Yes; it is from the commonwealth Disability Discrimination Act.

The Hon. S.G. WADE: I am interested in subclause (2)(d): 'the presence in the body of organisms capable of causing disease or illness'. To me, that is so expansive that it would not exclude any of us. I appreciate that this act is about discrimination, and you would need to be discriminated against on the basis of the disability. It may be a common situation, but it is not beyond the imagination of a parliamentarian to muse on that. For example, if you were excluded from a shop because you had a cold, you would qualify, as I understand it, as a person with a disability being discriminated against, and so on.

The Hon. G.E. GAGO: I have been advised that, yes, the commonwealth definition is broad, and that is why, later in this bill, there is a provision to provide an exemption for reasonable measures to stop the spread of disease and infection.

The Hon. S.G. WADE: As I understand it, this provision will, for the first time, bring psychiatric disability within the scope of this act. That is an area where, shall we say, there is often negative interaction within the community. That would seem to me to be a provision that is likely to increase the workload of the commissioner quite significantly.

Could the minister clarify whether other jurisdictions cover psychiatric disability and what might be the workload implications of that expansion? I should say that I welcome it, but I think we should be mindful of the impact that it might well have.

The Hon. G.E. GAGO: I have been advised that this definition is in the commonwealth provisions and that the aim of this bill is to try to be as consistent as possible, where possible. I have already indicated that the advice is that, although this bill is likely to result in an increase in the number of complaints being processed, it is believed that they will be able to manage that workload with current resources.

The Hon. S.G. WADE: Moving on to the definition in subclause (8) of 'medical practitioner', I wonder whether the minister could advise how the definition of 'medical practitioner' as 'a person who is registered in the state as a medical practitioner' will be impacted by national registration. If a person is a medical practitioner in another state, will they come under that clause?

The Hon. G.E. GAGO: It would be appropriate to recognise interstate practitioners if they are authorised by law to practise here, and I will need to clarify whether or not they are authorised. I am not sure whether that is the case, but we can get that information.

The Hon. S.G. WADE: Is the minister clarifying that this provision would cover them if they are recognised to practise in South Australia?

The Hon. G.E. GAGO: No; it does not cover them at the moment.

The Hon. S.G. WADE: I now turn to the definition of 'race'. The minister made comments in relation to the benefit of consistency with the state and federal legislation. I wonder whether the inclusion of nationality (current, past or proposed) is a provision in the commonwealth act.

Progress reported; committee to sit again.


[Sitting suspended from 13:02 to 14:17]


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