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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-04-07 Daily Xml
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EQUAL OPPORTUNITY (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 26 March 2009. Page 1803.)

Clause 11.

The Hon. G.E. GAGO: I have some answers to some of the questions that have been asked in the committee the stage thus far. Perhaps I will put the responses on the record at this point. The Hon. Mr Lawson noted that the state government is a major provider of employment, education and housing. He noted that the Equal Opportunity Act binds the Crown. He asked whether the act has significant application in relation to discriminatory practices in respect of employment, education and housing which apply to the state government but which do not apply to the state government under the relevant commonwealth legislation. I believe that he was actually asking about the extent to which the commonwealth law now binds the Crown in right of South Australia and whether we are exposing the state to new obligations.

It is fair to say that these amendments would impose some new obligations on the state government in its provision of housing or education, just as they would on the private sector. An example is the proposed new obligation not to discriminate on the grounds of caring responsibilities. Another is a proposed new obligation not to discriminate on the grounds of the identity of a person's spouse or domestic partner. However, all the existing provisions of the act already apply to the Crown.

The question of how far the commonwealth's anti-discrimination laws bind the Crown in right of the states is a complex constitutional question, I have been advised. What one can say is that they purport to do so. The Racial Discrimination Act, the Disability Discrimination Act and the Age Discrimination Act of the commonwealth all expressly provide that they bind the Crown in right of the states. Indeed, the Disability Discrimination Act expressly refers to services provided by state governments, among the services to which the act applies.

Section 31 of the act expressly provides for the commonwealth minister to promulgate disability standards that will apply to transport, accommodation and educational services provided by the state or an instrumentality of the state. Doubtless, reliance is placed on the external affairs power to achieve these results as these acts seek to carry out Australia's international obligations under various treaties and declarations—whether and how far this result is achieved is a matter for judicial decision.

Secondly, the Hon. Mr Wade asked whether the commonwealth bill included a definition of the word 'act' similar to that proposed to be inserted here. On clarification, his reference to the commonwealth bill was intended to refer to the various commonwealth acts concerned with equal opportunity. I confirm that none of those acts includes a definition stating that the act includes an omission.

Thirdly, the Hon. Mr Wade asked whether, if interstate medical practitioners are entitled to practise here, the definition of 'medical practitioner' should be broadened. At present there is no automatic recognition of interstate medical practitioners, and to be entitled to practise medicine here the practitioner must be on the South Australian register. If the situation changes in future there may need to be consequential amendments to several of our laws, including, obviously, this one.

Fourthly, the Hon. Mr Wade asked about the definition of 'race'. He wished to know whether the inclusion of the expression 'nationality current, past or proposed' was derived from the commonwealth law. The answer, I have been advised, is no. Nationality per se is not expressly mentioned in the commonwealth Racial Discrimination Act and speaks instead of national or ethnic origin. Nationality has, however, always been expressly referred to in our act.

The amendment to the definition in this legislation is simply to separate out 'race of an associate', which is to be dealt with separately. The Hon. Mr Hood asked who made submissions to the framework paper published in 2003. I am advised that there were hundreds of submissions. The overwhelming majority of submissions came from private, individual South Australians, but some 60 or more came from either non-government organisations or from government agencies. I do not propose to read into the record the names of the many people and groups who made submissions. I do not think that those individuals would appreciate necessarily being named in this place. However, if the honourable member believes that he needs to see these, he is obviously entitled to exercise his rights under the Freedom of Information Act.

Clause passed.

New clause 11A.

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

Page 8, after line 36—After clause 11 insert:

11A—Amendment of section 26—Tribunal may not award costs except in certain circumstances.

Section 26(1)—after paragraph (b) insert:

(c) if in the opinion of the tribunal there are other good reasons for doing so.

The opposition has a range of amendments and this is the first one which seeks to promote equity in the equal opportunities jurisdiction and also to contain the cost of justice. My amendment No. 2 proposes to expand the tribunal discretion in awarding costs. Currently costs can be awarded only if, in the view of the tribunal, actions are frivolous, vexatious or for the purpose of delay or obstruction. We believe it is appropriate to expand those grounds to include a general provision if, in the opinion of the tribunal, there are other good reasons for doing so. The presence of a general power in our view would help maintain a discipline amongst the parties.

I appreciate that normally the balance of power in a case will be with the respondent, and often that will be an employer dealing with a complaint from an employee. However, I would stress to the committee that the amendment is at the discretion of the tribunal, and it is for the tribunal to determine in all the circumstances whether there are good reasons for awarding costs to another party.

The Hon. G.E. GAGO: The government opposes this amendment, which proposes to add to the situations in which the tribunal may award costs against a party. At present, they are very limited. The current law permits the tribunal to award costs only if the case is found to be frivolous or vexatious, or where it was brought for the purposes of delay or obstruction, otherwise each party will bear his or her own costs.

The amendment proposes that the tribunal should also be able to award costs where there are other good reasons for doing so. No guidance is offered to the tribunal about what might qualify as good reasons, but perhaps the provision will take colour from the foregoing criteria so that it expands the cases where the tribunal will award costs because of abuse of process. Alternatively, however, it might be read as a general power to award costs at the tribunal's discretion, and it might take some time before it becomes clear how the tribunal would actually use that new power. So, the amendment would create some uncertainty for parties, at least initially.

The government, as I said, opposes the amendment. The reason the tribunal is in general a no-cost jurisdiction is that proceedings are brought before the tribunal to vindicate people's human rights. By bringing a complaint, a person is not only seeking a remedy for himself or herself but is also seeking to have the tribunal examine an alleged unlawful practice which, if the allegations are well founded, will affect the rights of other employees, students, customers or tenants. For instance, if an employer is unlawfully taking into account the race of a prospective employee, that potentially affects all applicants of that race. The aim of the proceedings is, as much as anything, to get an unlawful practice corrected. There is, then, a public interest in the bringing of a justified complaint.

There is, of course, no public interest in the bringing of a vexatious or frivolous complaint or a complaint intended to obstruct or delay other lawful processes, and the act already provides protection in that regard. The government is concerned that this provision would effectively deter any complainant, even one who has a deserving case, from bringing a complaint before the tribunal. How many complainants will take even a small risk of bearing their employer's costs or the costs of a large trader? The effect of the amendment, whether or not it is intended, may very well be that no-one, or very few, will bring a complaint because the risk of bearing costs weighs more heavily with the complainant than the injustice that he or she has suffered. The government does not believe this provision is necessary or fair and, therefore, opposes the amendment.

The Hon. S.G. WADE: I will respond to some of the comments the minister has made about my amendment. The minister says the term 'good reasons' lacks clarity. That is true of most legislation until it is tried in the courts. In terms of the issue of public interest, the tribunal can consider that in its discretion.

I would encourage the committee to see this clause in the context of the range of other amendments. In the context of the other amendments we are seeking to contain the costs, so the disincentive will be reduced by the fact that there will be fewer legal practitioners involved and fewer costs involved. So, I believe that in the hands of a tribunal which, clearly, the parliament has entrusted with the jurisdiction, this provision merely gives the tribunal increased scope to promote equity in its jurisdiction and not merely limit it to frivolous and vexatious.

In response to the minister's comment about abuse of power, that is exactly the sort of situation we believe is a good reason that is not covered currently. By implication, the minister saw the value of an expansion, and I put it to the committee that we can trust the tribunal to be the custodian of public interests in its own jurisdiction.

The Hon. M. PARNELL: The Greens do not support this amendment. I have spent a fair bit of my career trying to help people with public interest cases, and one of the biggest disincentives to anyone seeking to exercise their rights is the risk that they will have costs awarded against them if they lose.

People have come to me as a lawyer with superb cases, excellent cases, where I think that it is a lay-down misère that they will win, and yet they have not exercised their right. They have not tested the facts or the law because of a remote chance that they might have costs awarded against them.

I am satisfied that a frivolous and vexatious test is sufficient to keep meddlesome busybodies out of the courts, and I am not satisfied that the words in the proposed amendment would give any comfort to people. The words are: 'including other good reasons for awarding costs'. In any system where lawyers are involved, the tradition has always been that costs follow the event, which means that, if you lose, you pay the other side's costs. When lawyers are interpreting 'other good reasons', a good reason might be, 'You lost; therefore, costs follow the event. Therefore, even though you had a reasonable case, you didn't win, and costs will be ordered against you.'

Whilst I accept what the honourable member is trying to do, and I accept that he has other amendments which do seek to keep down overall costs—and we will look at those when we get to them—for now, I am not inclined to support the honourable member's amendment.

The Hon. D.G.E. HOOD: Family First will be supporting the opposition's amendment. I think the reason has been put very succinctly by the Hon. Mr Wade himself. Quite simply, if we look at the wording of the amendment, which provides, 'if in the opinion of the tribunal there are other good reasons for doing so', the minister can outline a number of scenarios where the worst case could happen.

However, this is really just a fail-safe clause for the tribunal. If, for example, the tribunal has somebody who is clearly lodging a vexatious claim—they have done so on a number of occasions—then it is appropriate that the tribunal has as a last resort option the means to award costs in those sorts of rare, exceptional cases—and I think they would be extremely rare. For that reason, we will support the amendment.

The committee divided on the new clause:

AYES (11)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Hood, D.G.E. Lawson, R.D. Lensink, J.M.A.
Lucas, R.I. Ridgway, D.W. Schaefer, C.V.
Stephens, T.J. Wade, S.G. (teller)
NOES (10)
Bressington, A. Finnigan, B.V. Gago, G.E. (teller)
Gazzola, J.M. Holloway, P. Hunter, I.K.
Parnell, M. Winderlich, D.N. Wortley, R.P.
Zollo, C.

Majority of 1 for the ayes.

New clause thus inserted.

Clauses 12 to 17 passed.

Clause 18.

The Hon. S.G. WADE: My question relates to clause 18(1). My understanding is that new section 34 will replace a provision in the principal act that exempts employment in a private household, and I would like to explore with the minister the implications of moving away from a private household provision to the current arrangement.

My understanding from contributions from the government to this point is that the government has done this to try to cater for the development in employment relationships such as contractors. However, my concern is that, in doing so, we may well have created problems particularly for people with a disability who are living in what is, in effect, a private household but who may well need to engage private contractors and so forth. Their private household might well be managed by a non-government organisation or, for that matter, a government organisation.

A community house might have six people with a disability. My concern is that, by trying to update the legislation for the development of employment relationships, we may well have put people with a disability in the situation where they lose the choice over who they live with and who enters their home, while we are not taking that opportunity away from other South Australians.

The Hon. G.E. GAGO: The advice that I have received is that, no, that is not the effect that this provision will have. We have replaced a private household exception with an exception that relates to someone employed and engaging someone for the purposes not connected in a business. So, if you are running a business from your home and engaging people, you are not exempt. You cannot discriminate if you are running a business from your home. However, if you are engaging someone from your home for the purposes of, say, tutoring your child, learning to play tennis or assisting with caring in terms of a disability, you are exempt and you will be able to discriminate.

The Hon. D.G.E. HOOD: I move:

Page 11—

Line 20 [clause 18, inserted section 34 (3)]—After 'educational' insert 'or other'

Line 21 [clause 18, inserted section 34(3)(a)]—After 'educational' insert 'or other'

Line 25 [clause 18, inserted section 34(3)(b)]—Delete 'educational'

Amendments Nos 2, 3 and 4 are all related, so 3 and 4 are consequential to this amendment I am moving now. Together, they are contingent with amendments Nos 6 and 7. They essentially expand the protection which is outlined in the bill and which currently includes educational institutions, giving them the freedom or the right, if you like, to employ or not employ people with a lifestyle that is in keeping with the religious ethos of that particular institution. It simply inserts the words 'or other' after the words 'educational', so that would mean that the protection would be expanded from schools to other institutions where appropriate.

The reason for this amendment is that we were lobbied quite extensively by a number of groups that thought this would impact negatively upon them. There were numerous groups, and I have an email from the managing director of one in particular—a Christian bookstore called Koorong. I do not know whether people are familiar with it, but they have a fairly large bookstore in the city, not too far at all from this place. I will read the brief email from the managing director:

Koorong is a Christian bookstore whose primary purpose is to support the church and promote the Christian faith. We are concerned about the potential negative impact of the proposed bill on our business. We would like to propose that amendments be made to exclude businesses like Koorong from the scope of this legislation. Your support in seeking these amendments will be appreciated.

That facilitated our discussions and eventually resulted in this amendment.

In short, those bookstores and other institutions that are not necessarily schools would like to be able to continue to decide who they do and do not hire; that is, to have that religious protection that this bill allows for schools. It would not be just bookstores, of course. I am thinking of organisations such as the Festival of Light, to use an example that people in this place may well know of. I do not see how it will be of any benefit or how it will create any sense of equality for them if they are forced to hire people living a lifestyle that they do not see eye-to-eye with and do not want working in their place.

This amendment would protect those organisations, which are numerous and typically (although not always) very small. The Koorong bookstore is quite a large business—I understand it employs roughly 50 or 60 people—and has been there for many years. In conversations I have had with representatives from these places they have said things along the lines that if that protection is not preserved for their business or organisation, whatever it might be, it could potentially have serious detrimental effects.

So I move the amendment which, as I said, is a test for the next few. If it passes it would continue the current situation, and the question has to be asked: if we are to change the current situation, as proposed by the bill, what is the great need? What damage is being done out there at the moment by the law as it currently stands? My amendments seek to preserve the status quo—essentially, they leave the law exactly as it is now.

The Hon. G.E. GAGO: These amendments together propose to permit any religious institution to discriminate in employment on the grounds of chosen gender or sexuality. The present law allows such discrimination but, as far as the government has been able to discover, most of the institutions presently able to use this exemption do not, in fact, do so. We have not had representations from hospitals, for example, seeking to discriminate against homosexual doctors; we have not had aged care organisations seeking to turn away homosexual care staff; we do not have major church-run welfare organisations, sizeable employers though they are, asking to discriminate against these people. To the best of my knowledge, no-one else is asking us to do this.

Many, if not most, faith-based institutions find it in their hearts and creeds to treat people equally. However, there remain some who hold, as an article of faith, that they must turn these people away, and this amendment seeks to cater to them. The government accepts that these people are sincere in their beliefs but thinks that this exemption should be kept as narrow as possible and so cannot support that amendment. The government has been willing to compromise for religious schools because our consultation and ongoing conversations have informed us that religious schools want to be able to discriminate on the basis of chosen gender or sexuality; however, the government will not compromise any further on this particular issue.

I would like to ask members to consider the following scenario. There are many religious non-government organisations—aged care services, disability services, gambling hotlines, goodwill stores, loss and grief centres, gambling support, respite services, the Memorial and Calvary hospitals—and all of these would be included. Let us imagine that we have a longstanding employee in one of these aged care homes, and let us imagine that that employee forms a relationship with a person of the same sex: is it fair that that employee should be forced to leave their job or be sacked? Do members really believe it is fair for prospective employees of religious institutions to be asked about their personal and private sexual preferences? The regulation-making powers of this act, section 106, already make provision for exemptions to be made for particular organisations from any provisions of the act. For example, it would be possible to use that power in section 106 to exempt a religious bookstore if they are able to make out a reasonable case. We believe that there are already provisions within the act to cater for those sorts of exceptions that the honourable member is referring to.

The Hon. I.K. HUNTER: Is the minister aware that the equivalent legislation in Tasmania has no exemptions at all for religious organisations, and does she know whether the lack of such an exemption has caused any religious bookshops, any nursing homes owned by religious institutions or any hospitals owned by religious institutions to close down or cease functioning?

The Hon. G.E. GAGO: No; to the best of my knowledge. I am aware of that provision and I am not aware of any closures or adverse impacts on those businesses.

The Hon. D.G.E. HOOD: I thank the minister for her response. I point out that the institution she outlined and the situation that could occur there is in respect of somebody who is attracted to the same sex and develops a relationship, so it is as the law currently stands, and that could happen right now. What I am proposing to do is just to maintain that situation. I am not proposing a change in anything other than what is currently happening now.

The Hon. S.G. WADE: I want to clarify the minister's comments early in her initial response to Mr Hood. She mentioned that the government had not received any request for an exemption in relation to this sort of situation. However, I am bemused because, considering there is an exemption there, why would people be asking for it?

The Hon. G.E. GAGO: What I was referring to was the fact that we have not received any lobbying from any of those organisations raising concerns that putting them back into this provision will have any adverse impact on them. I would have expected that if that were so we would have, at least, heard from somebody.

The Hon. S.G. WADE: In relation to the minister's comments about the section 106 regulation-making power, will the minister clarify whether the government would be favourably disposed to an approach from an organisation such as Koorong Books or any other Christian bookshops? Presumably, the regulation-making power would be exercised as a class. Is the government inclined to make such a regulation?

The Hon. G.E. GAGO: It is a provision there outlined in the act. Such an application would have to be considered on its merits.

The Hon. R.D. LAWSON: Can the minister provide the committee with some examples or incidents of discrimination against people on the ground of chosen gender or sexuality in church-run welfare agencies, Christian bookshops, church-run aged care facilities or hospitals?

The Hon. G.E. GAGO: I am unaware of any; however, given that currently they have no form of redress, because they have no rights, if they are discriminated against we would not expect to know about it.

The Hon. DAVID WINDERLICH: The Democrats will be opposing this amendment. I think it is ironic that this amendment seeks to do what generally progressives and people of the left inclination are accused of doing, and that is social engineering. The equal opportunity bill we have in front of us is basically seeking to create one law for all. What is being attempted to be achieved through these sorts of amendments is different laws for different groups.

Realistically, overtly gay and lesbian people, transsexuals and others will not flock into Christian bookshops if there is no law giving Christian bookshops special exemptions from hiring them. If we have one law for all, as far as possible, things generally sort themselves out. People will not go to work where they are not welcome. What we are doing here is arguing about whether we are going to have one law for all, as far as possible, or social engineering with different provisions for different groups. I thought that was generally what the conservative side of politics tended to favour: one law for all.

The Hon. A. BRESSINGTON: I also rise to indicate that I will not be supporting this amendment, either. I would like to refresh members' memory in relation to an example I used in my second reading speech, involving a 45 year old teacher who had previously been in a heterosexual relationship. This person, who was married with two children, came to the realisation that she was not suited to that particular sexual choice, and she is now in a lesbian relationship. She has been teaching in a school for about 22 years. Under this amendment, based strictly on the fact that she is now in a same-sex relationship, she could be dismissed, even though there have been no issues in relation to her conduct and no issues have been raised by parents about her teaching methods or the conversations she has with children.

On the surface, nothing has changed. However, if it were to come out that she is now in a same-sex relationship, that would be grounds for her dismissal. I do not see—and I do not see how other members could see—how that could be deemed to be fair and equitable for anyone.

The Hon. D.G.E. HOOD: I just want to reiterate that this amendment will change nothing; it will actually preserve the status quo. In relation to the example the Hon. Ms Bressington has just given, presumably that person could be dismissed under the current provisions. I understand that this person resides in another state.

The Hon. A. Bressington interjecting:

The Hon. D.G.E. HOOD: Yes. Essentially, my amendment leaves the law as it is; it is the government that is trying to change the law.

The CHAIRMAN: If the amendment leaves the law as it is, why move it?

The Hon. D.G.E. HOOD: Because they are trying to change it.

The Hon. S.G. WADE: I appreciate that we are discussing the amendment but, considering that the amendment is trying to negate the impact of the bill, I wonder whether I can get clarification, in relation to the fact that the bill does not include a prohibition on religious discrimination, as to whether a religious organisation—the Koorong bookstore, or whoever—could discriminate against a person on the basis of their religion, using as a basis for forming their view about that person's religious status indicators such as sexuality, materialism, or whatever indicators they want to take from the precepts of their religion; and, therefore, even with the government's change, the basis of the discrimination would not, in fact, be sexuality; it would be religion.

The Hon. G.E. GAGO: The short answer is no. The question would be whether these people are treated less favourably on the grounds of sexuality. If sexuality had been the grounds for the decision, that is discrimination.

The Hon. S.G. WADE: The ground for the decision was religion, but the facts supporting it, or the indicators towards the view being formed, were that sexuality, materialism or any other act within that person's lifestyle was indicative of their religion.

The CHAIRMAN: I remind members that we are discussing the Hon. Mr Hood's amendments. Perhaps the questions should be directed to the Hon. Mr Hood.

The Hon. G.E. GAGO: I have been advised that it will be a question of fact for the tribunal in terms of what the grounds of the decision are.

The Hon. M. PARNELL: For the record, the Greens will be opposing this and related amendments. I have already said that I think the government has gone too far already in providing the exemptions that it has for church schools, and the last thing I want to see is any further ground given. I see no grounds in any area of society—whether it be church schools, bookshops or any field of employment, accommodation or anything—to discriminate against people on the grounds of their sexuality, their chosen gender or any of the other related terms that relate to a person's sexual preference. So, I think the government has already gone too far, but I understand why it has done that. I certainly do not want to see the exemption extended any further.

The committee divided on the amendments:

AYES (4)
Brokenshire, R.L. Hood, D.G.E. (teller) Schaefer, C.V.
Stephens, T.J.
NOES (17)
Bressington, A. Darley, J.A. Dawkins, J.S.L.
Finnigan, B.V. Gago, G.E. (teller) Gazzola, J.M.
Holloway, P. Hunter, I.K. Lawson, R.D.
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Ridgway, D.W. Wade, S.G. Winderlich, D.N.
Wortley, R.P. Zollo, C.

Majority of 13 for the noes.

Amendments thus negatived.

The Hon. S.G. WADE: I draw the minister's attention to the phrases 'educational institution' and 'educational authority' in subclauses (3)(a) and (3)(b) respectively. Would the minister explain why different terms have been used?

The Hon. G.E. GAGO: I have been advised that the distinction between 'institution' and 'authority' has always been in the act. I have been advised that we are not aware of any decision on the meaning in terms of a distinction between the two, so they would have their natural meaning. Therefore, 'authority' is likely to mean the governing body and 'institution' is likely to mean the organisation that actually carries that out, but if, ultimately, one day a decision was made then it would depend on that decision.

The Hon. S.G. WADE: Could I ask a question then as to how the government might anticipate that an independent school, a freestanding school, might be dealt with? There is a whole stream in the Christian education movement called Christian parent-controlled schools, which present themselves as autonomous schools. In that context, and considering that they are non-systemic, would the educational authority be the governing body of such a freestanding school?

The Hon. G.E. GAGO: I have been advised that that would seem to be a reasonable interpretation.

The Hon. D.G.E. HOOD: I move:

Page 11, lines 28 and 29 [clause 18, inserted section 34(3)(c)]—Delete paragraph (c)

This is a whole new issue, if you like, and that is with respect to the faith-based schools, which would include not only Christian schools but also Muslim or Buddhist schools (or whatever it may be) being required, as proposed under the bill, to advertise their hiring policy on their website. I am seeking to delete paragraph (c), which provides:

(c) the policy is made available on the website of the educational institution (if it has a website);

My amendment seeks to delete that. Therefore, the school would simply have the hiring policy available on request. So, if someone rang up and said, 'I am thinking about applying for a position at your school; I'm just not sure what your hiring policy is,' that person could be sent a copy or go to the school and pick one up, or whatever the arrangements were, but the school would not be required to put its hiring policy on its website. The simple question is: why should the school have to put it on the website? What is the imperative that is driving that? It is not currently the case. My amendment really just preserves the current situation.

I should point out that Garry Le Duff, who heads the Association of Independent Schools of SA (I think most members in this chamber would be familiar with Garry), has sent me an email stating strongly that he opposes this provision in the bill, and is doing so on behalf of the independent schools association. In part, the email states:

Section 34(3)(c) requires educational institutions to make their policy relating to discrimination on the grounds of gender or sexuality in relation to employment or engagement available on their website. We are not aware of any other legislation that requires organisations to use their websites for such purposes. Some schools are concerned that this approach will subject their communities to abuse from others in the community. A more satisfactory approach would be to require the schools to provide a copy of the policy to prospective employees and contractors.

He went on to say:

I confirm that a very large number of schools within the independent sector are strongly opposed to the necessity to publish their employment policies as required by the EO bill on their websites.

This amendment is strongly supported by the independent schools association. It is very keen not to see paragraph (c) remain in the bill. My amendment simply removes it. So, schools would have to make their hiring policy available upon request but they would not be forced to put it on their website.

The problem is that, if they put it on their website, it is possible that they would be subject to some form of derision or potential negative reaction from the community (albeit a small number within the community, but it is possible). The question we have to ask ourselves is: do we want schools being subjected to that sort of thing? They should be getting on with the business of educating their students. I ask the committee to support my amendment, which preserves the status quo.

The Hon. S.G. WADE: The Liberal Party will be supporting this amendment for a number of reasons. First, as the Hon. Mr Hood mentioned, the current situation does not require schools to publish their policy. The government might suggest (I am not saying it has suggested this) that this promulgation of the policy is just consistent with technological developments. If that was the case, why has the government not also taken the opportunity, in clause 62 of this bill (which deals with sexual harassment), to require the schools to publish their sexual harassment policy on the web?

I remind the committee that clause 62 merely requires that they make it available to students. If students are the people most likely to access the web, they are the most likely to find that extra provision helpful. Also, clause 62 does not require them to make it available to the public. I note that the Hon. Mr Hood is not proposing to delete it, but subclause (3)(d)(iii) enhances this provision by requiring schools to make it available to the public. They are not being allowed to hide their policy. The government is not requiring other policies to be so vigorously promulgated, and that demonstrates the government's two-minded position on this exemption. On the one hand, a significant element of the government believes that this exemption should not be granted while, on the other hand, another portion wants to accept the pragmatic realities of the society in which we live. However, the government is being begrudging in this exemption and therefore wants to introduce an element of name and shame. We do not think that is appropriate. If the government thinks this is an appropriate exemption in the bill, it should not put disincentives on people in accessing that exemption.

I reiterate the comments of Mr Hood briefly, as he put them well. These concerns go well beyond the faith community. It was made very clear to the opposition by the Independent Schools Association that a large number of schools that would have no intention of accessing this exemption do not welcome the government's requiring private schools, non-government schools, to publish their policies. Likewise, they did not appreciate the implied threats in previous statements of the government that, because they are publicly funded, they are expected to do what the government wishes. The Liberal Party will support the amendment.

The Hon. G.E. GAGO: The bill proposes that schools that intend to discriminate in employment on the ground of sexuality should have to make this fact known, not only to the school community but to anyone interested. That includes publishing the policy on the school's website, if it has one. This amendment would remove the requirement to publish that policy on a website. Apparently the member's concern is that people might criticise the school. Well, so they might. So what!

As the member said in his contribution to the second reading debate, our society is founded on the principle that we often do not agree and that we hold opinions in conflict. Indeed, one might argue that it is what has made our society so great. He warned us against censorship and encouraged the virtue of open disagreement. Does not that argument apply here? Why would a religious school that is sincere in its belief be shy or ashamed of publishing its policy? This is not about naming and shaming. Why would they be ashamed if they hold these principles to be so important and dear to their hearts?

The government's position is that if these are a school's sincere beliefs and it is offering education to South Australian children, the school should make its policy on this point public. Adding it to its website is obviously a cheap and efficient way of doing that. We therefore do not support the amendment. If schools are proud of their beliefs, as I understand they are, I fail to see why a school would not wish to make its policy publicly available.

On the issue of the further provisions in terms of making policy available to people, the bill does that but only to the people who ask for it, whereas this policy can quite clearly adversely affect the employment status of an individual. A person can actually be sacked if they are unaware of the policy. If they are employed by a school that does not make its policy clear during the interview and contract stage, and they are unaware of the policy, they could be employed and at a later date be sacked.

Further, as in the example of the Hon. Ann Bressington, a person might find further into their employment that they prefer a homosexual relationship after having had a heterosexual relationship, and that person could be sacked because of that. We very strongly oppose the amendment.

The Hon. A. BRESSINGTON: I also rise to indicate that I will not be supporting this amendment. I also make the point that publication of this policy has a different application as well. I have been approached by a number of parents—not a great number, but a number—whose teenage children had come out about the fact that they are homosexual and parents had decided that, in order to avoid these kids being bullied, harassed or given a hard time at school, they would put them into a Christian school because of the Christian values only to find that the independent schools and Christian schools are discriminating in this way against their students—and obviously would also discriminate against teachers—and those parents have regretted their decision to put their kids into these schools.

As I said, there have not been many parents but there have been some. The posting of this policy on a website would also be a very good indication to parents who are doing this for this reason as to whether it would be a productive and healthy move for their child to also know what the attitude of that particular school is towards same-sex individuals.

I will not spend too long on this but, as the minister said, if no shame is attached to this belief and if they are strong in their belief that their stand on this is correct, then there should be no shame attached to this at all. I wonder what would be made of a Muslim school, for example, being as outspoken as the Christian community has been about homosexuals and whether that would be seen in the same light as the situation being portrayed here tonight, or whether the Muslim schools and the Muslim community would literally be damned to hell for daring to have such an opinion as this, given the negative propaganda that is circulated about Muslim people over the internet. And fair is fair: if they want to stand by this belief and they want to be able to discriminate against individuals, then I believe they should have the courage of their convictions to have it made available.

As far as inciting violence against schools and that sort of thing, I am sure that people have better things to do than run a protest outside an independent school, unless someone's life has already been adversely affected by this. The point I also made in my second reading contribution is that, if it is up there as a policy, chances are that lesbian people would know very well not to even bother applying for that position, and it could save them a great deal of time, effort and energy.

The Hon. M. PARNELL: This particular issue is probably the one on which I received the most communication—people urging me to support this particular amendment. However, it is probably fair to say that the people who contacted me on this wanted it to go even further and would have also wanted to remove the section that requires the policy to be made publicly available. I acknowledge that the amendment of the Hon. Dennis Hood does not go that far: it is only the website issues that he has looked at. The reasons that people gave when they wrote to me were similar to the ones that the honourable member has mentioned. It goes along the lines that, if people knew what we were like, if they knew what our policies were, they would think poorly of us. They would hold us in derision.

I do not think that any of them suggested physical violence or abuse, but, certainly, the thrust of the correspondence was, 'Our reputations would be diminished if people knew what we were really like.' I must say that my response was very like the minister's response, that is, when you hold views such as that and people find out those views they may well think poorly of you, and so be it. That is a natural consequence of holding policies such as that.

The clause, as well as the measure that provides for publication on the internet, also provides that a copy of the policy must be provided on request, free of charge, to other members of the public. At one level you could say, 'Well, it's only a matter of time before the website, homophobicschools.com.au is established and someone will write to every private, independent school in the state, determine what their policies are and put it on another website.' That is unsatisfactory. It is a one-stop shop, I suppose, if you wanted to find out the views of all schools, but schools can change their views over time. The school is in control of its own website, and, if a school's hiring and firing policies change, then it is their website that people should be able to go to, not rely on some third party campaigners to collect all that evidence together.

I will not be supporting the amendment. I know that it is not the minister's amendment, but one question that arises from this amendment is the consequence of failure to comply. There is no particular offence provision that I see. If, for example, a school does not put the policy on its website (if in fact that is how this act eventually becomes), or if they do not provide it on request to other members of the public, it would seem to me that the only consequence that flows from that is that they lose the right of exemption. They lose that right. In fact, if they were then to discriminate against someone who applied for a job or they tried to sack a staff member, the fact of their not having complied with this section or not having provided to a member of the public on demand a copy of their policy could make them in breach of the act.

The minister is nodding so I assume that is the response. No criminal penalty is required, but, if they do not comply they lose that right of exemption. I say that we should stick to our guns here and, having given this concession to them, we should make the schools stand up and be counted for their policies.

The Hon. G.E. GAGO: For the record, yes, the honourable member has answered his own question correctly.

The Hon. S.G. WADE: Almost in the nature of a supplementary, would the website need to have the policy on it at the time the person was employed, the time the act occurred or at the time the proceedings were instituted? It may be available on only one of three of those occasions?

The Hon. G.E. GAGO: I am advised that it would be at the time of the alleged act of discrimination.

The Hon. S.G. WADE: I merely note that the person may well have been employed with absolutely no knowledge of the school's policy.

The Hon. G.E. GAGO: Yes, and that is why I would urge people to make sure they ask for a copy of the policy before they accept employment.

The Hon. R.D. LAWSON: I mention the matter raised by the Hon. Ann Bressington and the parents who enrol their child at a school which was uncongenial to the child because the child was homosexual. As I understand, this particular provision relates only to employment within educational institutions and has no application in relation to the enrolment of students in educational systems. Am I correct in that?

The Hon. A. BRESSINGTON: The point I was making was that parents were unaware of the unfriendly attitude held within these schools towards people of same sex. It is well known that fish rot from the head down. Sorry, I cannot think of another way to put this. If there is discrimination at the top and it is known that same-sex people are unacceptable and outside the laws of Christ, or whatever it is, that will drift down to the students. I know of five kids who have gone through hell once they have enrolled at these schools. Their sexuality has been outed, if you like, and they have, literally in the schoolyard, been given a very hard time. The high suicide rate among these kids is extraordinary. If we can take any steps in this place to reduce the occurrence of that, the justification for that or the mixed messages for that, I say we are duty-bound to do so.

The Hon. D.G.E. HOOD: I have a final comment. I mentioned I had an email from Garry Le Duff saying the independent schools association is strongly opposed to this provision. I neglected to mention that I also have a letter from Lindsay Francis, who is the executive officer for South Australia of the Christian schools association, and he expresses similar views. It is quite a long letter but, to take one sentence, it states:

The requirement to publish a written policy—

on the internet, he means, and he says that earlier—

by faith-based schools is unnecessary, onerous and should be removed.

I remind the chamber that my amendment is about how that policy should be available. If this amendment passes, in very simple terms, the schools will not be required to publish their hiring policy on the internet, but they will be required to have it available on request. That is the difference. Is it on the internet or is it not on the internet? That is the only thing this amendment is about.

Can I also say something that has not yet been mentioned—or, if it has, I missed it. This is the only policy in this bill, as far as I am aware, that the government is requiring to be published on the internet. Of course, the question needs to be asked: why is it different from any other policy? I think the minister attempted to answer that in her summing up of the second reading. Basically, if you support this amendment then the hiring policy will not be on the internet; if you do not support this amendment, the policy will be on the internet.

The Hon. G.E. GAGO: On the question of why we are asking for the unusual practice of having this policy published on the internet, to the best of my knowledge it is the only policy I am aware of that we are requiring (there may be others, but I am not sure). The reason is that we are allowing discrimination to occur. We are permitting people's rights to be taken away, and that is indeed a very precious thing. I believe it is reasonable, and it is not onerous, in the taking of people's rights for at least that to be published, to be made public so that people are aware of it.

The Hon. S.G. WADE: I would like to respond to the minister's last comment. She said the reason this policy needs to be published is that it takes away people's rights. I refer the minister to the next clause, clause 19, which also takes away people's rights. By analogy, the argument that she is putting is not consistent with other provisions in this bill.

The CHAIRMAN: We will get to clause 19 after clause 18.

The Hon. S.G. WADE: All I am saying is that the minister is not correct in saying that this policy needs to be published on the website because it is the only one that takes away people's rights. There are other clauses in the bill that also do that, and they are not required to be on the website.

The Hon. A. BRESSINGTON: I would like to ask the Hon. Dennis Hood a question about the posting of this policy. In Queensland and Tasmania, there is not this kind of discrimination; is that right? I will ask that of the minister.

The CHAIRMAN: I think that has been answered. The Tasmanian part of it has.

The Hon. A. BRESSINGTON: My question to the Hon. Dennis Hood is: for example, if a teacher moves from Queensland to South Australia and is not aware that our equal opportunity bill allows for this kind of discrimination, and it is not posted on the website, and they apply to one of these schools for a job and are hired but do not know to ask for the policy, if then they are employed and their sexuality is exposed, they can be fired. That could be a very good reason for having that particular policy posted, seeing that it is so different in South Australia. People coming from interstate and applying for positions as teachers in private schools simply would not know to ask for the policy.

The Hon. D.G.E. HOOD: I think the Hon. Ms Bressington makes a sound point. There could be some confusion for people coming from Tasmania, for example. I understand that it is only Tasmania that does not have those provisions. I guess a school could easily hide something on their website if they really wanted to, but that is not in keeping with the spirit of the law. Again, my amendment provides that, either way, the policy should be available. The question is whether it should be on the website or whether it should be available on request. That is the only difference here.

The CHAIRMAN: I am not going to prolong debate on this amendment much longer.

The Hon. R.D. LAWSON: The member might do me the courtesy of giving a reply to my question, which was—

The CHAIRMAN: Order!

The Hon. R.D. LAWSON: —does this clause have any application in relation to matters other than the employment of persons at education institutions?

The Hon. G.E. GAGO: Employment or engagement.

The committee divided on the amendment:

AYES (11)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Hood, D.G.E. (teller) Lawson, R.D. Lensink, J.M.A.
Lucas, R.I. Ridgway, D.W. Schaefer, C.V.
Stephens, T.J. Wade, S.G.
NOES (10)
Bressington, A. Finnigan, B.V. Gago, G.E. (teller)
Gazzola, J.M. Holloway, P. Hunter, I.K.
Parnell, M. Winderlich, D.N. Wortley, R.P.
Zollo, C.

Majority of 1 for the ayes.

Amendment thus carried.

The Hon. G.E. GAGO: I move:

Page 11, after line 29 [clause 18, inserted section 34(3)]—After paragraph (c) insert:

(ca) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contract or by the authority; and

Parliamentary counsel will circulate a copy of this in a minute. It is a very simple, quite straightforward amendment. It would insert a paragraph providing that a copy of the policy is to be given to a person who is to be interviewed for or offered employment with the authority or to a teacher who is to be offered engagement as a contractor by the authority.

The effect is that it would require the school to give a copy of the policy to prospective employees. Rather than it being requested of the school, it would be a requirement of the school to provide it to prospective employees. This is a very straightforward, simple amendment.

We argued for (but lost) the requirement that a school publish on a website its policy in relation to sexuality. If members argued against that and if people are not prepared to have that policy published on a website, then, given that this is a policy position that does impact on the contract position of a prospective employee or even a current employee, I believe that it should be incumbent upon the school to make very explicit its policy in terms of same-sex relationships.

I do not believe it is an onerous thing simply to be required to give a copy of the policy to a person who is to be interviewed for or offered employment with the authority or to a teacher who is to be offered engagement as a contractor by that authority.

The Hon. S.G. WADE: The opposition is more than happy to consider this amendment but non-government members of the chamber were only provided with the clause near the conclusion of the minister's remarks. I think it is unreasonable for us to be expected to consider this amendment on the run. I suggest to the minister that an appropriate course of action is either to report progress or—

The CHAIRMAN: Order! Independent members can speak for themselves.

The Hon. S.G. WADE: I am sorry. I was merely saying that the amendment had just been distributed.

The CHAIRMAN: Those members who are independent of the opposition can speak for themselves.

The Hon. S.G. WADE: Indeed, Mr Chairman. I would be extremely interested to know whether independent members got the amendment before opposition members, but I can assure the committee that opposition members were only provided with the amendment near the conclusion of the minister's remarks. In that context, speaking for opposition members only, I would put it that the view of opposition members is that it would be appropriate for the committee to report progress or, alternatively, for the clause to be recommitted.

The Hon. R.D. LAWSON: My question to the minister is: how is this different from the next clause that is already in her bill, which provides that a copy of the policy is to be provided free of charge to employees and contractors and prospective employees and contractors?

The Hon. G.E. GAGO: I believe that it is because it is only upon request. You are referring to the next provision where the policy is to be made available only upon request; whereas this amendment would require the provision of the policy to prospective employees rather than them having to request a copy.

The Hon. S.G. WADE: If it is therefore required, why would the person need to request?

The Hon. G.E. GAGO: The next provision allows for anyone who may or may not be considering, so they might not put in an application. It might, for instance, be a parent who is looking at enrolling their child as a student. The second provision provides for a much greater breadth, if you like, of people who might be interested in that particular policy. This provision ensures that prospective employees are made overtly aware of the policy of a school that could impact on their employment.

The Hon. R.D. LAWSON: What work does the next clause do? I assume this is included, that the prospective employee is actually given this. Then it goes on to say, 'A copy of it, on request, must be provided free of charge to prospective employees.' They already got it under the earlier clause.

The Hon. G.E. GAGO: It is only if they request it.

The Hon. R.D. LAWSON: What is the point of having to request it if they have been given it?

The Hon. M. PARNELL: There are two issues here. The first one is the general issue around amendments coming late in the piece. Normally, if they are of any complexity, we are reluctant to deal with them, but I do not see this one falling into that category. It seems pretty straightforward to me. I understand what it does. We are teasing out its meaning further through the questions that have been asked so far.

It seems to me that, even though it appears to have been prepared some hours ago, my guess is that it was perhaps being held in reserve to see what the fate of the website amendment was, in which case it would have perhaps been helpful if we had known earlier. It would not have affected my position on the earlier amendment but, in terms of this particular one, it seems to me that it does have work to do. I hear what the Hon. Robert Lawson says. Certainly, if you have asked for it and have been given it, I think that having to be given it again, you could say, 'Well, I've already got that.' I do not see that there is any great conflict.

It seems to me that it would overcome the dangers of the type that the Hon. Ann Bressington talked about, where a person coming from a non-discriminatory state does not realise that it is not just your fruit that you have to put in the bin when you cross the state border but other things as well. I can imagine a person who had perhaps relocated from another state only to find out a month into their job that their employer has a policy that they were not aware of, that they were not told about or that they did not think to ask, because it is not the way they do things back in their state and, all of a sudden, they are out of work.

So, great harm can be prevented by this very mild amendment, which is basically the package of materials that prospective employees are given—the various policies around the school; it may be their disciplinary policies, all sorts of things. The employment policy in relation to sexuality forms part of that package of measures.

The Hon. R.I. LUCAS: I would like to raise a general principle in relation to this issue. After the opportunity to consult it may be a provision that I am personally prepared to support, but this particular issue has been a party vote for the Liberal Party (as opposed to others, which have been conscience votes) and, clearly, as a party we have not had the opportunity to discuss this with our shadow minister who has responsibility for the legislation. This amendment was prepared no later than 4.30 this afternoon (the timing printed on it is 4.27pm), so it was done quite some time ago but has not been provided to members.

I think the position put by the Hon. Mr Wade is entirely reasonable, and that is that we are in a position where at least one other clause has to be recommitted at the end of the committee stage of the bill. So, we will go through the whole committee stage and then have to go back to, I think, clause 10 and recommit it. It seems not unreasonable to propose that we put this clause 18 on recommittal along with clause 10, and any other we may seek to have recommitted.

In the end, the committee may decide not to do that or not to report progress to allow us to consult with our shadow minister and other colleagues and for someone to touch base with individual groups that have been advocating passionately on this issue. I think the Hon. Mr Parnell even indicated that this particular issue of the legislation was the one upon which he had received the most lobbying, which surprised me. That seems an extraordinary proposition, but I do not disbelieve the honourable member. So it is an issue which is not insignificant to a large number of people, whichever way we end up voting.

In the end, if the committee chooses to bludgeon its way through by saying, 'Okay, the government has pulled it out of its back pocket and we are now going to force a vote on it', then let the government beware, because two can play that game. In committee stages in the future, when it may not be convenient to the government, if a majority of members of the committee want to pull an amendment out of their back pocket and bludgeon that through the committee stage whilst it is being debated, then so be it. That has not been the convention or the way the committee stage generally operates—

The Hon. B.V. Finnigan: You follow the conventions so scrupulously.

The Hon. R.I. LUCAS: I am delighted that the Hon. Mr Finnigan acknowledges that I follow conventions so scrupulously, and I would like that acknowledgement on the Hansard record. I thank the Hon. Mr Finnigan for acknowledging that; I think it is a fair comment, even though it was an interjection and so out of order.

Having had a quick look at it, I believe it is something that, if we had the opportunity to discuss it in the party room, I may be prepared to support, but I would like to hear from the shadow minister and from the individual groups who have lobbied on this particular issue. All that can be done, albeit quickly, tonight or tomorrow morning, and this particular aspect of the legislation can then be resolved on recommittal at the end of the committee stage.

The Hon. G.E. GAGO: We have a great deal of work ahead of us and there are a lot of very important issues that we have to address this evening. I believe that I am not able to recommit this amendment once it has been put, so I seek leave to withdraw the amendment and put honourable members on notice that I will then recommit it at a later stage. I understand I need to withdraw it at this point but will recommit it, so everyone can relax and we can move on and get some work done.

Leave granted; amendment withdrawn; clause as amended passed.

Clause 19 passed.

Clause 20.

The Hon. S.G. WADE: This clause repeals section 35A of the principal act. I ask the minister why section 35A was needed before but is not needed now. What is the implication of deleting it?

The Hon. G.E. GAGO: The clause just passed makes it generally unlawful for associations to discriminate on the grounds of sexuality. Therefore, section 35A is not needed because that section forbids trade unions and employer bodies from discrimination. The current provision states that no-one is allowed to discriminate; therefore, section 35A is not needed.

Clause passed.

Clauses 21 to 24 passed.

Clause 25.

The Hon. D.G.E. HOOD: I move:

Page 13, after line 13—Before the present contents of clause 25 (to be designated as subclause (2)) insert:

(1) Section 50(1)—after paragraph (b) insert:

(ba) the administration of a body established for religious purposes in accordance with the precepts of that religion; or

This is a very simple amendment; it just moves a section currently within the bill to another place, if you like. We have done that because the minister made some remarks in her summing up which were very helpful. I will quote from that and then explain why we are putting forward this amendment. In her remarks of a few weeks ago, the minister said:

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 minister has said that churches would have the right to refuse to use churches or a church hall or one of their buildings for a gay wedding, for example, and also have the right to hire whomever they want in administrative roles. The amendment that I am moving simply makes that crystal clear. It is doing exactly what the minister said. The exemption the minister referred to was section 50(1)(c). The minister said:

...any other practice of a 'body established for religious purposes'....[that] conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.

What happened is that we had legal advice that suggested that the positioning of that paragraph (c) in the bill as proposed is somewhat open to misinterpretation in that it may be interpreted as applying only to the two previous sections, both of which deal with ministers of religion or priests. As the minister pointed out in her speech, that is not the intention of the government, and we are pleased that that is the case. All we are doing with this amendment is making it crystal clear by simply relocating paragraph (c) after paragraph (b) and calling it paragraph (ba) so that it stands alone and cannot be misinterpreted by those looking at this legislation down the track in years to come, once it has passed this parliament.

All this amendment does is exactly what the minister said she intended to do; it just makes it clearer by repositioning it in the bill. I hope I have explained that succinctly enough. The words will remain unchanged; it is simply the spot they are in. We have had legal advice that, having it as paragraph (c), it could be interpreted as relating only to paragraphs (a) and (b) when, as the minister has said, that is not the government's intention. We are simply moving it to its own section to make it absolutely clear that is not the intention of the bill.

The Hon. G.E. GAGO: For the record, we have been advised by parliamentary counsel that they do not recall that being filed with them. There is no record of it being filed, and we did not have a copy of the amendment, so I am not too sure what has happened. I beg the indulgence of the Acting Chair for a moment while I seek advice.

Indeed, the honourable member is quite right: this bill does not seek to regulate bodies established for religious purposes. However, bodies such as churches are already the subject of exemption provisions, and we believe that they are more than adequately dealt with in section 50(1)(c), which provides:

Any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.

We believe that exemption is already clearly articulated and that the amendment put forward by the Hon. Dennis Hood, which parliamentary counsel has advised was not filed with them, does not add any extra provisions whatsoever and is actually superfluous to the provisions in the act; therefore, we do not support the amendment.

The Hon. S.G. WADE: To clarify the minister's position, the amendment would not increase the scope of the exemption anyway; it may be unnecessary or superfluous, but it does no harm.

The Hon. G.E. GAGO: The advice that I have received is that, because we did not have this amendment previously, it is hard to be absolutely sure at this point that there would not be some adverse consequence. However, I believe that in the spirit of cooperation we should proceed. If we become aware of any significant problems, we can deal with that when the bill is between the houses.

The Hon. S.G. WADE: In clarifying the minister's comments, does she suggest that the government will be supporting the Hon. Mr Hood's amendment and considering the impact between the houses?

The Hon. G.E. GAGO: At this point, I am not able to say, because we did not have a copy of it and it was not filed, according to parliamentary counsel. If it is passed, even though I have already put on record that the government is opposing it, then we can deal with that between the houses.

The Hon. D.G.E. HOOD: To clarify, I have no idea what happened with parliamentary counsel, but it was filed in the normal way, so I am not sure what happened there. My apologies to the minister; I certainly did not mean to spring it on her in any way. Just to clarify for the sake of the chamber, this amendment is worded in the same way as what is already in the bill. All it does is relocate it to make it absolutely clear to anyone interpreting the bill what the intention of the bill is.

The Hon. S.G. WADE: This is a conscience vote for the Liberal Party. I indicate that, on the basis of it being superfluous or unnecessary but not extending the exemption, I will be—

The Hon. G.E. GAGO: We are not sure.

The Hon. S.G. WADE: Yes, that is right. On that basis, I said I will be supporting the amendment.

The committee divided on the amendment:

AYES (11)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Hood, D.G.E. (teller) Lawson, R.D. Lensink, J.M.A.
Lucas, R.I. Ridgway, D.W. Schaefer, C.V.
Stephens, T.J. Wade, S.G.
NOES (10)
Bressington, A. Finnigan, B.V. Gago, G.E. (teller)
Gazzola, J.M. Holloway, P. Hunter, I.K.
Parnell, M. Winderlich, D.N. Wortley, R.P.
Zollo, C.

Majority of 1 for the ayes.

Amendment thus carried; clause as amended passed.

Clauses 26 to 60 passed.

Clause 61.

The Hon. S.G. WADE: I would mention in passing that we had hardly got back to our seats before we were moved on, and I did have questions on clauses, even if no amendments. Which clause has been called on now?

The CHAIRMAN: Clause 61 and your amendments.

The Hon. S.G. WADE: Clause 61, on religious dress and appearance.

The CHAIRMAN: You have a number of amendments.

The Hon. S.G. WADE: That is right. I move:

Page 21, line 25 [clause 61, inserted section 85T(1)]—Delete paragraph (f).

Page 23, line 34 to page 24, line 4 [clause 61, inserted section 85T(7)]—Delete subsection (7).

Page 24, line 9 [clause 61, inserted section 85U]—Delete ', caring responsibilities or religious appearance or dress' and substitute: or caring responsibilities.

Page 26, line 32 to page 27, line 5 [clause 61, inserted section 85Z(4) and (5)]—Delete subsections (4) and (5).

Page 28, line 16 [clause 61, inserted section 85ZD]—Delete 'caring responsibilities or religious appearance or dress' and substitute: or caring responsibilities.

Page 29, lines 1 to 13 [clause 61, inserted section 85ZE(4) and (5)]—Delete subsections (4) and (5).

Page 31, lines 34 to 40 [clause 61, inserted section 85ZN]—Delete section 85ZN.

The purpose of these amendments filed in my name is to eliminate in proposed section 85T the grounds to discriminate on the grounds of religious appearance or dress. According to information provided to the opposition by the commission, South Australia is the only jurisdiction without religion as a ground of discrimination. If we pass this clause as it currently stands, we would be in the situation of not having a ground of religious discrimination but having a ground of discrimination on the basis of religious appearance or dress. We would be the only jurisdiction with that ground of discrimination.

My view is that we should either have a ground of religious discrimination or we should not, and I see this clause as the worst of all worlds. The question before us is: is a half-baked religious ground better than none or is it worse, because part coverage is worse than no coverage at all. I would put to the committee that the half-baked religious ground is worse than having no ground at all. In my view, this provision mocks religion by suggesting that external manifestations of belief are more important than belief itself. It encourages explicit discrimination because, for example, an employer would quite legitimately be able to say, 'Let me make it clear that you are not getting the job because you are a Sikh and not because you are wearing a turban.'

It may even be seen to be more concerned to protect people using religious symbols as fashion items than as the basis of protecting religious belief. After all, apparently, a person who wears a religious symbol for no religious purpose would be protected under the government's bill and, to my mind, that is, if you like, protecting a right to fashion, not a right to religion.

I put to the committee that, if the government wants to bring us in line with all other jurisdictions and have a ground of discrimination on the basis of religion, it should put such a clause. Please do not mock religion by this half-baked religious appearance or dress provision.

The Hon. A. BRESSINGTON: I would like to raise the same concerns about all of these amendments that we previously raised about the minister's amendments. The time at the bottom of this page of amendments is 9.34pm, and they have only just been distributed to us now as we have resumed our seats. I have not had time to consider these amendments and what they will mean or put any thought into them at all. So, I request that the same action be taken with these amendments as was taken with the minister's amendments.

The Hon. S.G. WADE: I completely understand the honourable member's position. I note that it has been only 20 minutes since these amendments were produced. It was five hours for the government.

The Hon. G.E. GAGO: There are obviously two standards in this chamber, but I am very happy to proceed as an act of goodwill. The government believes that people should not be treated unfavourably in their work or their education because they are either obliged or conscientiously choose to wear dress or adornments of their religion. For instance, a devout Muslim woman may wish or feel obliged to wear a hijab or a Sikh man a turban. The government believes that there is no case for unfavourable treatment on that ground. We believe it is quite straightforward.

The bill affords protection for employers. It proposes that proper exceptions for reasons of safety and reasonable identification be included so that those sorts of unfavourable outcomes can be avoided. In terms of its being a Clayton's provision, an extensive consultation process occurred in, we think, 2002, when the subject of discrimination on the grounds of religion was explored. It proved to be extremely controversial and, therefore, the government decided not to proceed.

The mainstream public felt that this was a very controversial provision and there was no clear consensus about this; so, therefore, being a responsible government, it decided not to proceed at this point. Instead, we have put this provision in place that says that the issue of the grounds of discrimination in relation to religion is not a provision for consideration. However, people who feel obliged or choose to wear clothing or adornments in line with the precepts of their religious beliefs should not be treated unfavourably, and that is what this bill seeks to achieve.

The Hon. S.G. WADE: I indicate that the opposition, with the agreement of the committee, would agree to my withdrawing this amendment and recommitting the clause at a later date if it would assist members, but if the committee wants to progress we can.

The Hon. G.E. GAGO: The government is happy to proceed, but if others want more time that is fine.

The Hon. M. PARNELL: If the government is happy to proceed, the Greens are happy to proceed also, but I take the point the honourable member made that more time to consider these amendments would have been helpful, especially since this bill has been on the Notice Paper for—how many months and its predecessors how many years? To be getting things a few minutes before we are asked to vote on them is not great, but it is late and this bill has already taken a long time and will take longer, so I am happy to proceed.

The Hon. DAVID WINDERLICH: I am happy to proceed, and I indicate my opposition to these amendments. There is a difference between being incomplete and being half baked. The purpose of the provisions which these amendments seek to undo is very clear. If you wear a hijab, a burka or a turban you are a target for discrimination in this society. That is what the various provisions in the equal opportunity bill are attempting to prevent. These amendments would undo that attempt to stop that sort of discrimination, so I oppose them.

The Hon. R.I. LUCAS: I rise to support the proposition as I did before, namely, that either progress be reported or the amendments be withdrawn and recommitted at the end of committee. If a member—in this case the Hon. Ms Bressington—and others have not had an opportunity to form a view, it is an entirely reasonable proposition for them to have the opportunity to consider their position on these amendments and we can still proceed. We have to recommit two sets of amendments and clauses and this would just be another provision to be recommitted tomorrow to finalise the committee stage of the debate. Whilst a number of members are expressing the view that they are happy to proceed, at least one member has indicated an inability to form a view. That is a reasonable proposition to put, and I will certainly support the position that that member should be entitled to reflect on the amendments, to consult if necessary and to form a view tomorrow.

The CHAIRMAN: The impression I got from the Hon. Ms Bressington was that she was attacking the short notice of these amendments on the basis of your contribution prior to any short notice on the government's part, but she has not indicated whether or not she is happy to proceed.

The Hon. A. BRESSINGTON: You are exactly right, Mr Chairman, about my concern, and I am quite happy to proceed with these amendments.

The Hon. J.A. DARLEY: I am quite happy to proceed with these amendments.

The Hon. S.G. WADE: I would like to ask a question of the minister in relation to her comments when she was talking about the religious discrimination clause in the 2002 consultation. In that context, why did the government not put this clause in the 2006 bill?

The Hon. G.E. GAGO: We cannot remember, it was too long ago, but I am happy to take that on notice and, if there is an answer, I will bring back a response.

The Hon. S.G. WADE: I submit to the committee that seven years ago we had a consultation. The government did not think of it in the four years leading up to the 2006 bill and its very late arrival now is indicative of a half-baked religious discrimination ground.

Amendments negatived; clause passed.

Clause 62.

The Hon. D.G.E. HOOD: I move:

Page 32, line 18 [clause 62(1), inserted subsection (3)]—Delete '16' and substitute: 18

This amendment changes the age of 16 to 18, the minimum age for which children can be hauled before the tribunal. The reason for this is simply that Family First believes it is too young. Other jurisdictions across the state have decided that 18 years of age, or when a person becomes an adult and accepts full legal responsibility for their actions, is the appropriate time for them to appear before the courts.

For instance, the Magistrates Court and District Court will not hear matters involving children as defendants, except on extremely rare occasions, and, as far as I am aware, the only jurisdiction that does hear matters involving children is the Youth Court. We see no reason why the Equal Opportunity Tribunal should be any different. For that reason, we have simply moved this amendment. I indicate to members that I understand the numbers are against me on this potentially. If that is the case, I will not be dividing.

The Hon. G.E. GAGO: This amendment is misguided. The member implies that a child coming before the tribunal as either a complainant or a respondent in a sexual harassment case could be publicly named—naming and shaming, the member called it, I think. In fact, the bill makes it quite clear in clause 71 that it will be an offence to publish any report of proceedings that identify a child, and the proposed penalty is $10,000. The member overlooks the provision of section 28F of the commonwealth Sex Discrimination Act which already provides that a complaint of sexual harassment can be brought against a student aged 16 or over in the Human Rights Commission.

The member argues that a 16 year old is simply too young to be the subject of a sexual harassment claim—not some of the 16 year olds I have seen. He or she can drive a car; he or she can hold a job; he or she can be prosecuted for a criminal offence either in the Youth Court or, depending on the circumstances, in an adult court, and detained in a training centre for anything up to three years; and he or she can be the subject of a complaint to the Human Rights Commission. Why should they not be equally answerable to our local equal opportunity commissioner for sexual harassment of a fellow student or a teacher?

It is not preferable for such matters. Obviously, we would prefer that to be dealt with locally. Remember that in this jurisdiction conciliation is the main remedy. The commissioner convenes a meeting between the parties at which efforts are made to resolve the complaint amicably. Often that does succeed, I am pleased to say, as these students may well have to continue to see each other at school and may, perhaps, be in the same classes. It will be a good thing if the complaint can be sorted out in this way, and our bill encourages that to happen. Occasionally, however, no resolution can be reached and it is necessary to resort to the tribunal.

It is only after that other means fails that that could occur. The act proposes to protect child respondents in two ways: first, by protecting their privacy, as I have explained; and, secondly, by ensuring that they cannot be ordered to pay money, which, I think, seem to be very reasonable and adequate protections. We hope, of course, that this provision will be seldom used because the bill requires that efforts are first made to resolve the problem at the school using the school's own conciliation processes. In cases where that fails, however, it is useful to have a back-up. The government believes that 16 year olds are old enough to face the consequences of their actions, and for these reasons we oppose this amendment.

The Hon. A. BRESSINGTON: I indicate that I will not be supporting this amendment. I raised earlier the circumstances of children who are same sex, who are going to independent schools and who are being harassed in the schoolyard. They have literally nowhere to go to report this. They know the policy of the school. They perceive that they will not get a sympathetic hearing. In fact, a 16 year old is quite old enough to perpetrate this sort of abuse and harassment on another school student. I have seen the consequences of this in my previous life, and I think that anyone who does not want to hold a 16 year old bully to account literally needs their head read, because they are old enough to understand what they are doing. They are old enough to accept the consequences if they are imposed. This tribunal will also give the kids who are being victimised and persecuted an arena in which to seek their justice.

The Hon. M. PARNELL: I will not be supporting this amendment, either. I think that we are at risk of losing sight of the focus of this legislation, which is about appropriate standards of behaviour rather than focusing too much on the forum in which those standards will be tested. The Hon. Dennis Hood talked about various ages and the criminal justice system. Well, people much younger than 16 can be held to account under the criminal justice system and, yes, we may have a separate forum for dealing with those people, but the question is one of criminality and responsibility.

When it comes to sexual harassment, certainly 16 year olds—in fact, I think there would be a good case for having an age even younger than this—are capable of knowing what they are doing. I think that we should have a system whereby their behaviour can be brought to account. I think that we are losing sight of the fact that it is the standard of behaviour, rather than trying to protect 16 year olds from the particular forum that has been created to deal with that behaviour.

The Hon. S.G. WADE: I indicate that the Liberal Party has decided that this will be a party vote, and it will be opposing the amendment.

Amendment negatived; clause passed.

Clauses 63 to 66 passed.

Clause 67.

The Hon. D.G.E. HOOD: I move:

Page 36, lines 25 to 32—Delete the clause

This amendment removes the commissioner's powers to investigate and initiate complaints even when no complaint has been lodged, and removes the power of the commissioner to lodge their own complaint with the tribunal, whether or not the complainant wishes proceedings to be initiated.

The reason for this amendment is that essentially there is a great deal of opportunity for a commissioner—not necessarily reflecting on the current one but on future commissioners, possibly—to have a particular focus in their mind that they want to pursue, or a particular policy they want to pursue, and, even when no complaint has been made, if this section passes unamended, they would be able to initiate a complaint and pursue it through the tribunal of their own accord.

I do not feel this is appropriate. It leaves a lot of power in the hands of someone who is unelected to make those decisions, and I think that is not something that is ideal or that we would like to see occur because, as I say, that person is not elected and their view may not reflect the view of society in general. Our amendment would revoke the proposed new power and leave the current powers and procedures in place. So, if this amendment is successful, there would be no change to the current situation.

I have to mention that the minister made some comments in her summing up about the bill as proposed bringing our state in line with the commonwealth commissioner, but that is not entirely correct because, whilst the commonwealth commissioner does have these powers and the power to make recommendations, those recommendations are not enforceable. That is very important. Whilst the minister had made the statement in her summing up that the commonwealth Human Rights and Equal Opportunity Commission Act 1986 at a federal level gives that ability to the commonwealth, the reality is that, whilst it does give the ability in terms of making recommendations, it does not mean they are enforceable. That is very important.

The bill before us would mean that the South Australian Equal Opportunity Commissioner would have the power to enforce those decisions—or findings, if you like. So, our bill as proposed gives substantially more power to the South Australian Equal Opportunity Commissioner than is the case with the commonwealth. We feel that is inappropriate and, for that reason, we are seeking to make it so that the commissioner can act only when a complaint is made.

The Hon. G.E. GAGO: These amendments together propose to delete the provisions of the bill that would allow the commissioner to instigate her own investigation. Again, I wonder whether the member properly understands what the bill proposes. He has said it is not up to an unelected commissioner to determine what is appropriate and inappropriate behaviour. This is the role of parliament. In saying this, I am quoting him.

Of course, that is quite true, and I could not agree more. The act does not give, and the bill does not propose to give, to the commissioner the role of deciding what behaviour is or is not lawful. The act itself specifies that the conduct is unlawful and, in a case of dispute, the tribunal, not the commissioner, makes a decision. All that the bill proposes to give the commissioner here is a new power of investigation where it appears that someone may be acting contrary to the laws that parliament has fixed. The bill provides that, if it appears to the commissioner that a person may have acted in contravention of this act, the commissioner may investigate. That includes requiring the production of documents, though not—as some may wrongly imagine—a power to compel people to testify.

As an example, the act itself states that employers are not to discriminate on the ground of race in hiring their staff. That is in the act: it is the law. If, then, the commissioner has reason to think that an employer has a policy of refusing to hire African workers, for example, the commissioner could make inquiries to try to find out whether that was true. She could ask the employer to make records of job applications available to her. She could not force anyone to speak to her, but if someone did wish to speak to her—for example, a group representing the interests of the African community—she could receive whatever information they wished to supply. If she could collect evidence establishing a breach of the act, she could then lay a complaint before the tribunal to which the employer could then respond.

The tribunal would then make a decision based on all of the evidence about whether or not the law had been broken. What is wrong with that? If someone is breaking the law why should something not be done about it? The commissioner is not, as the member suggests, pursuing far-reaching social policy initiatives. The policy is set by parliament in the words of the act. It is the parliament that states, for example, that there should be no race discrimination in employment, but what is the point of us making those laws if nothing happens when the law is broken?

The government believes the new power will be beneficial in safeguarding equal opportunity for all South Australians, and we obviously oppose the amendment. I remind members that the commissioner works within the confines of the Equal Opportunity Act. The commissioner does not make law; the law is made by parliament and then followed by the commissioner.

Contrary to what the Hon. Mr Hood suggests, our commissioner has no enforcement powers. All she can do is bring the complaint before the tribunal. It is the tribunal that decides whether there has been a contravention of the act. Only the tribunal can make an enforceable order.

The Hon. R.L. BROKENSHIRE: What guarantees or protections are contained in the amendment to prevent a commissioner (I am not saying our current commissioner, but a future commissioner) from taking a business to task if the commissioner has potential problems with that business with respect to equal opportunity and decides to have a go at the business just to keep the pressure on? I understand from that clause that that would be possible, and that would concern me.

In the case of an ombudsman-type position, can the minister give some examples of where other authorised commissioners and ombudsmen can, by their own intention, take on a business or an individual to the point of asking the tribunal to investigate and deliberate without any allegations or complaints?

The Hon. G.E. GAGO: Those sorts of protections are included in section 14 of the act. It requires that the commissioner publish an annual report, which is tabled before parliament, in which he or she is required to outline the operation and administration of the act.

Under section 10, she is also responsible to the minister for the general administration of the act and carrying out that function and is subject to the general control and direction of the minister. They are a couple of the safeguards. I quote the Hon. Robert Lawson's second reading contribution where he outlines provisions in other jurisdictions, as follows:

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...

He goes on to give the example of the commonwealth jurisdiction, where the Human Rights and Equal Opportunity Commission does have the power to initiate inquiries and he gives details. He continues:

In New South Wales, section 119 of the Anti-Discrimination Act empowers the Anti-Discrimination Board to carry out investigations...Likewise, in Queensland, section 155 of the Anti-Discrimination Act sets out…

So, there is plenty of evidence on record in terms of similar provisions in other jurisdictions.

The Hon. R.L. BROKENSHIRE: Using the police as an example because they have certain powers, if a police officer actually abuses or misuses those powers, for vexatious or other reasons actually uses their position as a sworn police officer, there are serious penalties not the least of which is dismissal.

I am concerned that your answer is that all the commissioner has to do is put something in an annual report and/or advise the minister. That does not give me any confidence at all, with this particular amendment, that a vexatious situation could not occur with harassment to that individual or business as a result of this clause and the open powers that it gives the commissioner of the time.

The Hon. S.G. WADE: In the minister's comments in responding to this amendment, she posed the question: what is the point of having a law if it is not enforced? My understanding is that the two key ways that this legislation is enforced is through complaints initiated by people who suffer discrimination and by government-initiated inquiries.

There is no change through the government's bill. They will still be complaint-initiated or government inquiries. What this bill proposes to do is to take off the review by the tribunal, or the role of the tribunal and the minister in signing off what is an appropriate commissioner-initiated inquiry. The Liberal Party will be supporting the Hon. Mr Hood's amendment because we believe that those two avenues are appropriate, but that it is appropriate that, on application by the commissioner with the approval of the minister, the tribunal authorise the inquiry.

The Hon. G.E. GAGO: In terms of addressing some of the issues that the Hon. Mr Brokenshire raised, another safeguard is the fact that the decisions of the tribunal are on public record and are able to demonstrate quite clearly whether a decision has been proven to be justified or not. Obviously, if the commissioner were thought to be abusing that power, through being vexatious or harassing an employer, that would be a matter that the minister would consider on reappointment of that particular position.

The Hon. R.L. BROKENSHIRE: I would like the minister to further qualify what she is saying, because I understand that she has basically admitted that there could be a deliberate attempt by a commissioner at that time to discredit a business as an example, and that business could then easily be exposed to all sorts of public damage because, once you get taken to the tribunal, one way or another, the media can pick up on it and other situations can occur. That business, which might be a totally reputable business, is then damaged, and there is no compensation. The answer is that the minister may not then appoint that commissioner again when the contract is finished. That is totally unacceptable to me.

The Hon. A. BRESSINGTON: I would just like clarification from the minister, because I was of the understanding that the commissioner could start an investigation against an organisation or a business person, but that there first had to be a complaint made to the commissioner.

An unofficial complaint was all that would be needed to draw the commissioner's attention to the fact that there could have been an issue here. The commissioner would then investigate the circumstances, but it would only then be if the complainant decided to go ahead on the advice of the commissioner that there was actually a case to answer and that it would then go to the tribunal.

If that is not the case, I would be inclined to support the Hon. Dennis Hood's amendment as well, because it gives me little satisfaction to know that it could just be up to the minister to take action one day. We have seen this too often in this place with too many other government departments—for example, Families SA and WorkCover—and all of these other things that we continually debate cyclically every 10 years.

The Hon. G.E. GAGO: I have outlined a number of provisions that provide public accountability and transparency in terms of the actions of the commissioner. I have already put those on record, so I do not need to go through them again. I believe that they are more than adequate to ensure that the actions of the commissioner are proper and that there is transparency in terms of the publishing of the annual report and that decisions are on the public record. As I have said, I believe that that is open and transparent in terms of the actions of the commissioner.

I am sorry if the honourable member has misunderstood. This provision would enable the commissioner to launch an investigation of his or her own volition without a complaint being received. Obviously, common sense would determine that. The commissioner would need to have some concerns, and some grounds for concerns, for her to be prepared to use her time in public office to pursue that. There would be no other reason for her to do that.

I would remind honourable members that these are only powers of investigation to determine whether a breach could have been made. The commissioner does not have the power to make a decision as to whether or not that has occurred, and has no enforcement powers. So, they are very limited provisions indeed. They are only to go to the purpose of an investigation.

The Hon. A. BRESSINGTON: So, the commissioner can make the investigation, and that can be progressed to the tribunal if it is clear on the evidence that there has been a transgression, with no complaint made, but then the employer, organisation or individual that the investigation has been launched against has to pay legal costs for representation to disprove what the commissioner may have found. It may be that the commissioner has got it wrong, and that expense is then at the hands of people who have been dragged into this tribunal who could actually be quite innocent of all this. So, where is the recourse for a person where the commissioner's investigation has been flawed?

The Hon. G.E. GAGO: This particular provision is about protecting individuals who may be particularly frightened or who feel intimidated by their employer. There are often significant power differences between the parties involved in these sorts of complaints. They are usually complaints of employees against an employer, and very often there are significant differences in terms of access to lawyers and the capacity to pay for representation. Often, in the case of particularly young women who may feel too fearful to make a complaint in their own right, this allows for the commissioner to at least pursue an investigation of that matter.

In terms of the position of the respondent, that remains unchanged. If the matter goes before the tribunal, they are in an identical position in terms of their responsibilities to that commission. So, I do not believe that this provision particularly disadvantages respondents. It is clearly going to disadvantage those who are in breach of the legislation, which is what we are trying to do.

The Hon. A. BRESSINGTON: I remind members that some of the aspirations that the minister has expressed in explaining this section of the bill were also expressed when the council debated the Whistleblowers Protection Act. I have been told by many eminent lawyers and legal eagles that that particular act is not worth the paper it is written on, and that has been proven over and over again. I think there needs to be more safeguards than are provided for by this bill. I indicate that I will be supporting the amendment of the Hon. Dennis Hood.

The Hon. DAVID WINDERLICH: I will be opposing this amendment. The minister has explained that there is a check, and that is the tribunal. However, I think it is important to reflect on the purpose of this. There is a real problem with complaints-based procedures: they rely on two things. They rely on people having the confidence to complain and they rely on people being secure enough to complain. My recent experience in relation to the Copper Coast and the Ombudsman highlighted two deficiencies there, and I will bring a bill to this council later on about that.

Under the Ombudsman's Act, if you do not have a direct interest in a matter, if you are not directly affected, your chances of getting a hearing are much weaker than if you do have a direct interest, so if you were denied a contract or you were mistreated in some way. The problem is that many people who do have a direct interest, in terms of the Ombudsman's Act, cannot afford to complain because they rely on future business from the council, or whoever else the party in question might be. I think that highlights the weakness of complaints-based processes. Not everyone is confident enough to complain, and not everyone is secure enough to complain. So, when you have bodies such as these investigatory bodies, they have to be able to initiate investigations based on other information to uncover patterns of discrimination, maladministration or whatever the question might be. I am very strongly in favour of the commissioner being able to initiate investigations without a complaint. I think that is essential.

The Hon. Stephen Wade outlined an alternative which seems to go via the minister, if I understood him correctly, which is the proposal in the current act now. The problem with that, as I see it, is that it then makes it subject to a decision being made on political grounds. I would rather have a more objective process, with the commissioner being able to initiate complaints, rather than having to have that approved by the minister. There is always a risk of abuse, which is part of what the Hon. Ann Bressington is talking about, but I think that at the moment the much greater risk is that people are being discriminated against without recourse, because they are not confident enough to complain and because they are not secure enough to complain. I think that is going on every day in this state. I think it is not just a risk but a reality.

Against that, we have the risk of abuse of these powers by the commissioner. I am open to other ways of building in checks and balances, which is possibly around additional reporting, but I am absolutely adamant that you cannot just build your process around complaints, because that shuts out too many people who are not confident enough or secure enough to initiate complaints. So, I am against this amendment.

The Hon. M. PARNELL: The Greens will be opposing this amendment. I referred to it in my second reading contribution, and I will not repeat the reasons that I gave then. Quite simply, without this provision, without the ability of the commissioner to investigate on his or her own volition matters that are deserving of investigation, discrimination will go undetected, and that is a bad outcome. I support the bill as it stands.

The Hon. A. BRESSINGTON: I want to make it clear that I do not have a problem with the commissioner investigating a complaint or a suspicion. My problem is that the commissioner can then, without a complainant, progress this to the tribunal. So, it could be, and I am not saying that the current commissioner would do this, because she seems like a pretty decent sort of person, but you could get somebody in the future who has a grudge—and do not tell me that this does not happen already—who could pursue an individual, an organisation or a business on a grudge. We have seen so many times where, when people make these claims that they are being victimised or whatever, they are not believed. They are labelled as beligerant, vexatious, crazy, or whatever. There is no safety net in this particular section for that to happen, and that is my concern.

The Hon. G.E. GAGO: It might be helpful to point to other examples that are clearly working without the sorts of adverse outcomes that the honourable member is obviously concerned about. An example is the Health and Community Complaints Commissioner, who has powers under section 9(1), an 'own motion' power to inquire into and report on any matter. So, they have that capacity, which is a very similar capacity to the—

The Hon. A. Bressington interjecting:

The Hon. G.E. GAGO: Sorry?

The Hon. A. BRESSINGTON: When they inquire into and report on any matter, who are they reporting to, and are they progressing that to a tribunal, or what is that process?

The Hon. G.E. GAGO: There are examples of other jurisdictions that are operating with commissioners with similar powers. We are not aware of any adverse consequences because of that.

The Hon. A. BRESSINGTON: This is the last time that I am going to get up on this. I make the point that the minister says that there is no evidence of adverse affects of this sort of structure, but let us look at the WorkCover Tribunal. How many of us in this place have not had 100 complaints about the fact that people have been victimised, persecuted, treated unfairly, unjustly, or whatever, and here we are now setting up, as I see it, the same kind of structure. There is abuse happening. We all know that there is abuse happening in the WorkCover system. Nobody wants to admit it, but we know that it is happening. What is going to make this any different for this particular tribunal when people make claims that they are being unfairly treated? What is the mechanism?

The Hon. J.A. DARLEY: I will not be supporting this amendment, for the reason that on at least four occasions I recall employees had legitimate complaints but, after speaking to the commissioner, they were too frightened to proceed with that complaint.

The Hon. R.L. BROKENSHIRE: First of all, I ask the minister to explain, with the example regarding the health complaints commissioner, how she can justify that as an example when the advice I have is that, whilst it costs several hundred thousand dollars a year to run that commissioner's office, the commissioner has not reported to parliament since the position was actually finalised and is technically, as I understand it, in breach of the act? I do not find that that is a good example at all; in fact, it is something I intend to bring further to the parliament with information that I have.

What we have here is the potential possibility, and it is a very real possibility, that an individual or a business can effectively have their name blackened and their goodwill done over. It is not very hard for anyone to not be intimidated at all, and to ring the commissioner from a public phone box down the road. Most people know how to ring somebody, or get a friend to ring and report. I ask the minister: how can the commissioner be given powers that I personally see as more powerful than that of the South Australia Police? My understanding of the police force is that there has to be an allegation, there has to be a complaint, there has to be a written report and a statement signed, or adequate intelligence, before they can actually go and investigate. That is clearly a very important part of democracy and the justice system at law, and the police accept that when they sign on and swear to the job. So, what does the minister tell this chamber is so much more important than general law and the protection of 'innocent until proven guilty' that gives this clause to a commissioner to give them more power than the police?

The Hon. G.E. GAGO: I gave a different range of examples, showing the different sorts of provisions in other jurisdictions. They were not meant to replicate an identical situation, and I think I have addressed most of the other issues in relation to this.

The committee divided on the amendment:

AYES (11)
Bressington, A. Brokenshire, R.L. Dawkins, J.S.L.
Hood, D.G.E. (teller) Lawson, R.D. Lensink, J.M.A.
Lucas, R.I. Ridgway, D.W. Schaefer, C.V.
Stephens, T.J. Wade, S.G.
NOES (10)
Darley, J.A. Finnigan, B.V. Gago, G.E. (teller)
Gazzola, J.M. Holloway, P. Hunter, I.K.
Parnell, M. Winderlich, D.N. Wortley, R.P.
Zollo, C.

Majority of 1 for the ayes.

Amendment thus carried; clause negatived.

Clause 68.

The Hon. D.G.E. HOOD: I move:

Page 36, lines 35 and 36 [clause 68(1)]—Delete subsection (1)

Amendment carried.

The Hon. D.G.E. HOOD: I move:

Page 37, lines 10 and 11 [clause 68(2), inserted subsection (2)(b)]—

Delete 'an investigation initiated by the Commissioner' and insert:

a matter referred to the Commissioner for investigation

Amendment carried; clause as amended passed.

Clause 69.

Members interjecting:

The CHAIRMAN: Order! You might take notice of the chair, instead of Mr Wade, and that way you will not get into so much trouble. You might want to leave this and do it under recommittal after you have done 10A.

The Hon. D.G.E. HOOD: Thank you, Mr Chairman.

The CHAIRMAN: The Hon. Mr Wade has an amendment to clause 69.

The Hon. S.G. WADE: If the committee wants to recommit Mr Hood's, it would make sense to recommit them all because they are all alternatives to the same issue.

The CHAIRMAN: We will recommit clause 69 and leave the amendments on file.

Clause passed.

Clause 7 passed.

Remaining clauses (70 to 78), schedule and title passed.

Bill reported with amendments.

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