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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 (resumed on motion).

(Continued from page 1786.)

Clause 5.

The Hon. S.G. WADE: I understand that we are considering subclause (9). In relation to the definition of 'registered industrial association', will the minister advise where that term appears in either the bill or the act?

The Hon. G.E. GAGO: It appears in section 24(4)(b).

The Hon. S.G. WADE: In subclause (11), the bill inserts the words 'or facilities' after the word 'place' and 'or use' after the word 'enter'. Will the minister explain what will be the impact of those two expansions and where that change originated?

The Hon. G.E. GAGO: I have been advised that this terminology is to assist with consistency between state and commonwealth legislation so it matches the commonwealth legislation, and it is similar to those terms used in all four pieces of commonwealth legislation that are relevant. 'Facilities' refers to the amenities available to the public on the premises in a way so as not to exclude those people who would ordinarily be able to access the facility.

The Hon. S.G. WADE: I refer back to the minister's response on 'registered industrial association'. Considering that that reference is in the act and not in the bill, why was it considered necessary to define it when it has not been defined in the past, and are any organisations that would come under the term without definition excluded under the definition?

The Hon. G.E. GAGO: The reason that we have defined it is for the purposes of clarity. It simply extends the definition to both commonwealth and state registered authorities and makes that quite clear. In terms of the second part of the question, we do not believe that it would exclude anybody. We are not aware of anyone.

The Hon. S.G. WADE: I move on to subclause (14), which deals with caring responsibilities. In response to a question from the Hon. Robert Lucas earlier today, as I understand it, the minister indicated that the Aboriginal kinship elements of the caring responsibilities definition are an innovation in this bill and do not reflect the commonwealth legislation. Will the minister advise us whether there is any legislative precedent for this clause or other aspects for its origins?

The Hon. G.E. GAGO: I am advised that, no; we are not aware of any legal precedents. However, we have included this definition to ensure that we do include Aboriginal people or to make sure that Aboriginal people are protected in their caring relationships in the same way as non-Aboriginal people.

The Hon. S.G. WADE: I suspect that it is not in the same way in the sense that it reflects the fact that non-Aboriginal caring responsibilities are often not seen as broad as Aboriginal caring relationships, and it is that aspect that I would like to explore. I do not claim to be an expert on Aboriginal kinship relationships, but my understanding is that one would accept that one has caring responsibilities beyond one's immediate family, including one's network.

We have not one but a number of Aboriginal communities in South Australia. As I understand it, when an Aboriginal person marries an Aboriginal person from a community other than their own, they acquire caring responsibilities for not only their original Aboriginal community but also for the Aboriginal community to which they are now related.

From my very thin understanding, it seems to me that this could have the potential for establishing caring relationships within a network of Aboriginal and Torres Strait Islander people that can be quite extensive. In respect of the terms 'caring responsibilities' and 'Aboriginal kinship rules', where does the commissioner or the tribunal go for guidance to make this anything other than an Aboriginal person having caring responsibilities for every other Aboriginal person in South Australia?

The Hon. G.E. GAGO: I am also not an expert on Aboriginal and Torres Strait Islander kinship. The Hon. Stephen Wade is quite right in that they are not the same caring relationships as those of non-Aboriginal people. I should have said 'equivalent to' so that they protect their relevant caring relationships.

In terms of guidance, again I am confident that there are groups or individuals who would have expertise in kinship rules and the obligations involved, and they could be used to give expert evidence. The bill provides that the person must be related and also responsible for caring; so, those criteria have to be met. We believe that guidance would likely be sought from experts with knowledge in that particular area.

The Hon. S.G. WADE: By way of clarification, the minister's last reply suggests that there are almost two criteria, that is, a person has to be related and they have to have responsibilities under Aboriginal kinship rules. My interpretation of that answer is that it suggests that they need to be related in a genetic sense, but that is not how I read the clause. I understand that the clause can be interpreted so that they can be related under Aboriginal kinship rules, which may be skin group, nation, community, or whatever. There may be no genetic connection between two people who, under Aboriginal kinship rules, may well have caring responsibilities.

The Hon. G.E. GAGO: Again, I am no expert in kinship rules; however, the bill states that the person is required to be related according to Aboriginal and Torres Strait Islander kinship rules.

Clause passed.

Clause 6.

The Hon. S.G. WADE: The government has withdrawn the provision in the 2006 bill at this point which required a substantial reason. We believe that was taking it too far.

Clause passed.

Clause 7.

The Hon. S.G. WADE: I move:

That consideration of clause 7 be postponed and taken into consideration after clause 69.

Motion carried.

Clauses 8 and 9 passed.

Clause 10.

The Hon. S.G. WADE: What is the source of the new provision?

The Hon. G.E. GAGO: This provision is the same or similar to provisions in other acts. It is an efficiency measure and is far more effective for the presiding member, who is legally qualified to make legal decisions. Assessors are not qualified to make legal decisions and cannot decide questions of law, so it is inappropriate and inefficient to bring them in to consider those matters on which they are not qualified.

Clause passed.

New clause 10A.

The CHAIRMAN: There are two amendments filed here—one in the name of the Hon. Mr Hood and I understand the other in the name of the Hon. Mr Wade—both moving to insert a new clause 10A. We can have only one new clause 10A so, given that the Hon. Mr Hood's amendment was filed first, I will put the Hon. Mr Hood's first; if that gets up, there will be no need to put the Hon. Mr Wade's. If the Hon. Mr Hood's amendment is lost, the Hon. Mr Wade will have the opportunity to move his, if he so wishes.

The Hon. D.G.E. HOOD: I am confused as to why the Hon. Mr Wade wants me to wait. I am sorry; I am not clear about that.

The CHAIRMAN: You can canvass both. Is the Hon. Mr Hood going to move his new clause 10A or not?

The Hon. D.G.E. HOOD: I will certainly move my amendment, but I understand that there is an agreement between the government and the opposition to postpone it.

The CHAIRMAN: Somebody should tell the Chairman about it. What do you want to do? The minister might explain it to me.

The Hon. G.E. GAGO: My understanding is that, in respect of the earlier postponement, we confused the clauses and we meant to postpone clause 10.

The CHAIRMAN: Clause 10 has already been passed. This is to insert a new clause 10A.

The Hon. G.E. GAGO: That is the one we want to postpone.

The CHAIRMAN: No, you simply do not move it.

The Hon. G.E. GAGO: That is what we are asking.

The CHAIRMAN: It can be reconsidered later.

Clause 11.

The Hon. S.G. WADE: What was the rationale for moving away from division-related fines, and what was the original fine level?

The Hon. G.E. GAGO: I have been advised that the original penalty was $2,000, which was introduced in 1984, and that has been increased to $5,000. The shift from divisional penalties to a monetary penalty is, I understand, a preference of the Attorney-General to have those penalties expressed in terms of monetary amounts.

Progress reported; committee to sit again.

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