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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-04-08 Daily Xml
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EQUAL OPPORTUNITY (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

Bill recommitted.

New clause 10A.

The Hon. D.G.E. HOOD: I will not proceed with this amendment. I have had discussions with the Hon. Stephen Wade, representing the Liberal Party, and he has a very similar amendment. I do not want to detain the committee. Family First is happy to support his amendment. We prefer ours, of course, but we simply do not have the numbers, so we are happy to support the opposition's amendment in this case.

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

Page 8, after line 33—After clause 10 insert:

10A—Amendment of section 24—Parties to proceedings etc

Section 24(4)—delete subsection (4) and substitute:

(4) A person appearing in proceedings before the Tribunal is entitled to appear personally or be represented as follows:

(a) the person may be represented by counsel but only if—

(i) the Commissioner is a party to the proceedings; or

(ii) another party to the proceedings is a legal practitioner; or

(iii) all parties to the proceedings agree; or

(iv) the Tribunal is of the opinion that the person would be unfairly disadvantaged if not represented by counsel;

(b) the person may, with the leave of the Tribunal, be represented by an officer or employee of a registered industrial association or any other person (but the officer, employee or person must not be a legal practitioner or the Commissioner).

The opposition acknowledges the contribution of the Hon. Mr Hood in raising this issue, because I think it relates to discussions we have been having in relation to other clauses about the desire of the parliament to support the Equal Opportunity Tribunal as an accessible tribunal.

In our discussion last night in relation to inquiries and so forth, a number of members referred to the fact that going into proceedings can be quite daunting, and this provision is in the spirit of those discussions because what it says is that, wherever possible, we should avoid the need to use lawyers.

The Hon. Mr Parnell and the Hon. Mr Winderlich mentioned yesterday how daunting it can be for a complainant to raise their issues, and even the mere fact of trying to engage a legal practitioner can be daunting for many people. They are spooked, if you like, by that prospect so may well not engage.

The opposition's new clause 10A proposes to minimise the use of lawyers. Let me stress that it does not propose to prohibit the use of lawyers but, if you like, to say to parties, 'Don't feel that you can't come to this jurisdiction without engaging a lawyer. That is an option available to you.' This was an issue that was considered by the Martin report in the early 1990s and, to quote a section of the report, Mr Martin said:

There is a very natural tendency for respondents and legal practitioners to conclude immediately that a denial of representation is, in all circumstances, a denial of natural justice. In the context of conciliation pursuant to the human rights legislation which is controlled by an independent and impartial officer, however, there are circumstances in which legal representation is inappropriate and a refusal to allow it does not amount to a breach of natural justice.

It is obviously essential that, as far as is reasonably possible, the parties be on an equal basis when appearing before the conciliator at a conciliation conference. This 'level playing field' is not easy to achieve. In many cases the complainant is severely disadvantaged in this regard because of the social and economic power imbalance that frequently exists between complainants and respondents. It is important that the conciliator possess a wide discretion in order to achieve the appropriate balance.

It is in the context of those comments that we as an opposition have constructed this current clause, and I will refer members to it.

New subsection (4) provides that a person is entitled to appear personally. There will be a lot of people who, depending on the nature of the complaint, may well feel they can present their own case. New subsection (4)(a) provides that they can be represented by counsel in one of four circumstances.

The first circumstance is if the commissioner is a party to the proceeding. The commissioner, as I understand it, is not necessarily a legal practitioner but, even if that is not the case in relation to the particular incumbent, the commissioner is likely to be so well versed in the act that they may well be as daunting as a legal practitioner, so we think that in that circumstance counsel is appropriate.

The second case is where another party to the proceedings is a legal practitioner. If someone is a legal practitioner and you are trying to argue your case against them—for example, if you are an employee of a law firm—we do not think it would be equitable to expect you to go in without counsel.

The third instance is by consent. Both parties can say, 'We might be able to do our case but we do not choose to; we prefer to engage a legal practitioner.' If both parties agree, that is fine. That might also be because of the complexity of the case. The parties can make that judgment and agree.

The fourth element, in our view, is crucial, and that is where the tribunal is of the opinion that the person would be unfairly disadvantaged if not represented by counsel. This goes back directly to the issues raised by Martin. There is a social and economic imbalance in many of these cases and the tribunal needs to have the discretion to grant a party permission to have counsel. So that is proposed subsection (4)(a) and that deals with the right to engage counsel or a legal practitioner.

The last element is proposed subsection (4)(b), which is analogous to the current clause. It provides that, with the leave of the tribunal, the person can be represented by any other person, and that includes a person from an industrial association. We propose to maintain that entitlement but to limit it to not being a legal practitioner and not being the commissioner.

We believe that these amendments are important because, not only is engaging lawyers often a daunting experience and that therefore makes the jurisdiction more daunting and it is less likely that complainants will pursue issues, but, secondly, it consumes resources. People come to the tribunal engaging lawyers when, in fact, that may not be necessary. Where it is necessary, we believe our clause provides for that. So, I ask the committee to support the amendment.

The Hon. G.E. GAGO: This amendment would delete the current provision in section 24(4) giving parties the right to representation before the tribunal, which they currently have. At present, a person can appear before the tribunal in person or they can choose to have a lawyer or, with the tribunal's leave, another representative. Instead, the honourable member proposes that there should be no general right to representation but that the tribunal could permit representation for a party who meets certain criteria. If the person wants to have a lawyer, then the person must show that he or she would be unfairly disadvantaged without one, or it must be a case where the other party is a lawyer or where the commissioner is a party, or lawyers are permitted if all parties agree to that.

If the person wants to have another representative—that is, a non-lawyer—that would be possible, as it is now, with the tribunal's permission. These criteria are the same as those now in use for minor civil actions in the Magistrates Court.

As I have explained, although these provisions may work well where the proceedings are in inquiry, it is less clear that they can work well in an adversarial proceeding, and that is the model of the EO Commission: it is an adversarial based forum. The provision that the Hon. Stephen Wade has put forward comes from the minor civil action provision, and that involves a process of inquiry not an adversarial model.

In an adversarial model, people are required not just to be asked questions and give answers: they have to be able to actually present their case. The models of these jurisdictions are very different. I am not saying that this model would not work, but it is a very different model and I am not sure how it would work. Given that we are also removing lawyers pretty well or allowing them only under certain circumstances, it could create significant impediments.

As I said, at this point we are just not clear on how it would work. The government is not necessarily opposed to making the tribunal a non-lawyer jurisdiction or lessening reliance on lawyers in this particular jurisdiction, but we are not in a position to support this amendment at this stage. Work would need to be done to examine the consequences of the proposal.

We need to have a look at what effect this is going to have on the tribunal itself, and there has been no opportunity at all for the government to actually consult on this amendment with the courts themselves, and that would be something that we would definitely need to do. Work would need to be done to examine the consequences of the proposal, including its practical effects on the working of the tribunal. We would certainly wish to discuss it with the courts and the commissioner and, if the amendment is passed (and I am hoping it will not be) we will do that between the houses. So, at present we are not in a position to support this particular amendment.

The Hon. A. BRESSINGTON: I would like to ask the Hon. Stephen Wade a question about this particular amendment, and I admit that I have come in halfway through. The amendment says that a person may be represented by counsel but only if all parties to the proceedings agree. I would just like to present this case scenario, if I may, and get a response.

Suppose the CEO of Harris Scarfe is being taken to the tribunal by the Revlon make-up girl. The Revlon make-up girl gets 20 hours' employment a week. She needs legal representation to be able to plead her case, and the CEO of Harris Scarfe says, 'No, I don't agree. I'm not coming in here with legal representation, so neither will you.' However, the CEO of Harris Scarfe has at his disposal a legal team that can prepare his arguments for him, get him prepared to go into the tribunal and give him all the support he needs without actually presenting his case to the tribunal himself. Where does that leave the Revlon make-up girl?

The Hon. S.G. WADE: First of all, if I could continue in the spirit of the case study, the Revlon make-up girl says to the Harris Scarfe CEO—

The Hon. B.V. Finnigan: Assistant.

The Hon. S.G. WADE: Sorry, assistant, was it? I defer to the Hon. Bernard Finnigan's knowledge of the SDA membership classifications. What I was trying to focus on was that, initially, the complainant engages the respondent and says, 'I need someone to help me with my case, and I want to engage a lawyer.' First of all, I would have thought that the moral stigma on a CEO trying to act like a bully would not be good.

The Hon. A. Bressington: What world do you come from?

The Hon. S.G. WADE: Just let me go; I would like to finish. I would expect him to agree. If he did not, then the Revlon girl would not be able to access 4(a)(iii). However, the Revlon girl could go to the tribunal and say, 'Look, I'm only a Revlon girl.'

Members interjecting:

The Hon. S.G. WADE: Sorry, is it a Revlon person? Is that what we are wanting? I am not really sure.

Members interjecting:

The Hon. S.G. WADE: Sorry, assistant. The person in this case happened to be a female, and I think females have rights, too. In this context, this person could go to the tribunal and say, 'I cannot properly present my case without a lawyer', and the tribunal could agree under proposed new subsection (4)(a)(iv). In that sense, even if the CEO decides not to engage a lawyer, the Revlon assistant would be entitled to legal counsel.

The other alternative available to the Revlon assistant would be new subsection (4)(b)—'I am daunted by a lawyer too but I will go to an advocate.' Let us say it is a disability advocate, or a friend or mum—anybody.

An honourable member: Union

The Hon. S.G. WADE: Or union, that's right; the SDA, as long as they did not send counsel. So there are a number of options available to the person. I would stress that new subsection (4)(a)(iv) is all about equity. We do not want the imbalance of the economic and social power relationships to discourage people from making complaints. We actually think this would make it more accessible for the Revlon assistant.

I hate lawyers. I have had negative experiences right through my life. I would much rather sit down with a mediator and get them to help me, so it gives them a lot more options. It makes it less of a legalistic jurisdiction. Perhaps I could pause there, and see whether I have adequately answered the question.

The Hon. G.E. GAGO: In fact, it does not provide more options at all. It is reducing options, because already complainants and respondents are entitled to lawyers if they want them and are entitled to bring in representatives, as well, like unions, etc., if they want, and without having to go through as many hoops as they will under this provision. They are hoops. They might work, but they might end up being quite unwieldy, particularly when you look at this particular jurisdiction. It is very often women making complaints against their employer.

Those women who are particularly young and inexperienced can find this an extremely daunting task and can be extremely intimidated by it. Even though they may have a reasonable job and be reasonably articulate, they simply may not feel able to confront the boss who has been harassing or threatening them, or doing all sorts of things in the workplace. So you have an inexperienced and incredibly fearful young person, and then they have to meet eligibility criteria to be able to receive the representation they need and deserve.

That is the whole purpose of this jurisdiction; it is why this jurisdiction was put in place. It does have special elements to it, and those special elements are about recognising the general power differences that occur in this particular jurisdiction so that complainants are given some additional support and assistance to make it a more level playing field.

The Hon. I.K. HUNTER: My observation and question is to the Hon. Mr Wade, as mover of the amendment. I also want to look at a scenario of perhaps a 17 year old girl making a complaint against her boss of sexual harassment. I am concerned that her automatic right to representation has been taken away by this clause; I am concerned that she has to demean herself and say, 'I am only a Revlon girl', and therefore explain to the commission, 'You should then allow me to have representation.'

This is putting in another series of hoops that this poor person—who probably does not want to be there in the first place but who has to stand up for herself—has to jump through. It is adding another disincentive, and that person may say, 'This is all too hard; I'm not going to get justice. I now have to go and defend my position to the tribunal about why I should have a lawyer before I even get to start my argument.' I really am worried that this adds another layer of bureaucracy and will stop people getting justice from this process.

The Hon. S.G. WADE: I am disturbed to hear the minister's change in tone from the first contribution to the second. The first contribution was that the government sees merit, shall we say, (I do not want to misquote the minister), or that there is some benefit in reducing the reliance upon lawyers; let us put it in those terms. That is what the opposition is asserting, and we believe that is very much in the interests of complainants. It is also very much in the interests of the commissioner and the tribunal, because resources that are perhaps being disproportionately consumed by engaging legal counsel might be better deployed in employing advocates of whatever nature—people who may be trained not in the skills of the law, which may not be particularly relevant to the tribunal, but perhaps in the skills of mediation or counselling of a person who has been through trauma.

The opposition believes it is appropriate that this jurisdiction become less legalistic. I am interested to see that the Labor left is defending the rights of the legal profession—that is an interesting development in their tradition. Be that as it may, the minister says that I have taken an inappropriate precedent from the minor civil claims jurisdiction into this tribunal. I do not think so. The Minor Civil Claims Tribunal is indicative of many administrative tribunals, where parliament has thought it appropriate to minimise the overly legalistic approach.

The Hon. G.E. Gago interjecting:

The Hon. S.G. WADE: Excuse me, I have the call. I encourage the minister to return to the spirit of the first contribution, which was that there may well be some merit in this proposal but that the government has lacked the opportunity to fully think through the consequences and would like to consult with courts, in particular, and perhaps others.

I actually welcomed the first contribution. I suggest to the committee, and to the minister in particular, that we should put in this amendment to keep the idea on the table, if you like, and keep the work being done. The government can consider it between the houses, and in the House of Assembly the government can give its considered position. The council will then have both sets of contributions back in this chamber if, in the end, the government cannot agree. So even if members are nervous about this provision, I encourage them to continue the dialogue. After all, lawyers can actually be a hindrance to justice, not promoters of it.

The Hon. M. PARNELL: I would like to put my views on the record if we are to shortly proceed to a vote on this. I look at this in the framework of it being a human rights issue. We have various human rights. There is the right to liberty without due process, so in a criminal jurisdiction one always has the right to legal representation. However, it is not just because you might go to gaol; even if the only consequence may be a fine, you are still entitled to legal representation. In the area of mental health, which we will be debating again at some stage, there is a guaranteed right of the people to have legal representation. Your human right not to be discriminated against is an important one, and we need to give people every opportunity to put their case as best they can.

I do accept some of the things that the Hon. Stephen Wade said. You can always find cases where the lawyers make things worse rather than better, and the decision-makers can often come to the right conclusion without any extra assistance from lawyers, but it seems to me that if we are serious about promoting human rights, if we are serious about promoting the right of people to live their lives without discrimination, then we need to give them a less fettered opportunity to have legal representation.

Finally, I would like to say that in these cases there is nearly always a power imbalance; there is nearly always someone powerful who has discriminated against someone who is less powerful. One way of levelling the playing field is to make sure that both sides are able to have legal representation. For those reasons, and for the reasons given by the minister, I am not inclined to support this amendment now.

The Hon. D.G.E. HOOD: I rise to indicate that Family First will support the opposition amendment. I think the Hon. Ann Bressington raised a valid point when she used the example of a Revlon assistant and the potential conflict with perhaps the CEO of an organisation. I think that to most people that would appear to be an imbalance. However, I have to agree with the Hon. Mr  Wade that new subsection (4)(a)(iv) provides that, if the tribunal is of the opinion that the person would be unfairly disadvantaged if not represented by counsel, they can provide this person (in this case, the Revlon assistant) with counsel.

I do not think anyone would like to see someone in a situation where they did not have access to representation, and I am quite sure that is exactly why the Liberal Party has moved to insert (4)(a)(iv), that is, to make sure that, where there is a clear imbalance, there is an opportunity for people to be represented. What is important to note here is that it does not say anywhere that the Revlon assistant has to apply for that representation; it is in the opinion of the tribunal—the tribunal could initiate the matter with the Revlon assistant. That is the first thing.

The second thing, which we have not focused on much in our discussion on this amendment this morning, is that one of the great things about this amendment is that it will reduce the incidence of vexatious claims. We have talked about fairly large businesses, such as Harris Scarfe, but let us consider a very small family business that employs two or three people, for example, a corner fish and chip shop. It is not beyond the realms of possibility that one of the employees in that business does not get along with the owner or manager of the business.

Under the current law, that person can use the Equal Opportunity Tribunal in a vexatious way, because there is no cost whatsoever to them to pursue a matter against the owner or manager of a particular business. There is no downside as far as they are concerned. If they lose, they are at no cost and they have their legal representation provided at no cost whatsoever. So, where is the disincentive for them to carefully think through these matters? It is possible—and I am sure it has actually happened—that people would lodge these claims in a vexatious manner. This amendment would make that much more difficult, and that is to the benefit everyone.

Of course, let us remember the example I have given of the poor fish and chip owner. If this amendment does not pass, under current law, they would have to go to the great expense of funding their own lawyer, yet legal representation for the claimant—the person who has the problem, that is, the person working in the fish and chip shop—would be provided at no cost whatsoever. Clearly, that is an imbalance.

The Hon. A. BRESSINGTON: I will be very brief. All I can say is that I wish I lived in the utopia that the Hon. Stephen Wade was portraying when he spoke about CEOs not being inclined to be difficult.

The Hon. S.G. Wade interjecting:

The Hon. A. BRESSINGTON: You know what? When a person goes to the Equal Opportunity Tribunal or the commissioner because they have been harassed, bullied, sexually harassed, unfairly paid, or whatever it is, the last thing they need is to have to justify to anyone their right to legal representation. They have enough on their plate, quite frankly.

It is a person's civil right, if you like, to be entitled to legal representation, and we should make that as easy as possible. People's experiences with lawyers have been wide and varied. However, at the end of the day, this bill is about trying to create a balance of inequality, and I do not see that this amendment would create that. With those remarks, I also indicate that I will not be supporting this amendment.

The Hon. G.E. GAGO: I will be very brief, but I just want to set the record straight in terms of some of the statements made by the Hon. Dennis Hood in relation to frivolous and vexatious complaints. Under section 26, a person who brings a frivolous or vexatious case to the tribunal is liable for an order to pay costs. So, the courts are already protected from that type of abuse.

The Hon. D.G.E. HOOD: I just want to pick up on that point. I am aware of that, minister, but I ask the question: how many costs have been awarded in such cases in the past 12 months?

The Hon. G.E. GAGO: I do not have those figures with me, but I am happy to get them for the honourable member.

The Hon. DAVID WINDERLICH: Does the commission record the number of frivolous and vexatious complaints; and, if so, how many have there been in the past 12 months?

The Hon. G.E. GAGO: As I mentioned yesterday, the results of tribunal cases are on the public record, so these type of cases would also be on the public record. I do not have that information available here, but I am able to get that information for the honourable member.

The committee divided on the new clause:

AYES (9)
Brokenshire, R.L. Dawkins, J.S.L. Hood, D.G.E.
Lawson, R.D. Lensink, J.M.A. Ridgway, D.W.
Schaefer, C.V. Stephens, T.J. Wade, S.G. (teller)
NOES (10)
Bressington, A. Darley, J.A. Finnigan, B.V.
Gago, G.E. (teller) Gazzola, J.M. Holloway, P.
Hunter, I.K. Parnell, M. Winderlich, D.N.
Zollo, C.
PAIRS (2)
Lucas, R.I. Wortley, R.P.


New clause thus negatived.

Clause 18.

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 contractor by the authority; and

As I explained before, the amendment would supplement this clause by providing that, if a person was interviewed for or offered employment with the educational authority or is to be offered engagement as a contract teacher there, then the authority must give that person a copy of the policy that deals with discrimination on the grounds of sexuality. The reason for this is to make sure that no-one accepts employment in a school that has such a policy without knowing about the policy. We do not want a situation where people are taken by surprise; we want them to understand from the beginning the terms on which they are being offered work, that is, that their lawful freedom in their choice of a sexual partner is to be reduced by the conditions of their employment.

It would be most unfortunate, both for the school and for the employee or contract teacher, if there were any misunderstandings about this. Sometimes families move interstate; they might move house, sell their home, buy a new home here and shift their kids into different schools. Some families can go to the most extraordinary amount of effort, reorganisation and cost to take up a new position, so it is most important that people are well informed, given that this is a condition of employment that could adversely impact on their contract status.

This does not duplicate the effect of the clause as it stands, because the clause provides only that the policy is to be supplied on request. Some prospective employees or contract teachers might not think to make the request. This will ensure that they receive the policy anyway.

The Hon. S.G. WADE: The opposition is inclined to support this amendment. We think that it actually highlights a flaw in the government's original clause. In committee the first time we considered this bill, the minister explained that the website policy would need to be promulgated at the time of the complaint. As the minister just explained, that is not the time when the prospective teacher needs to know; they need to know at the time when they are being recruited. We think this is an appropriate provision. I do have a query, however, about the wording of the amendment. It provides 'after paragraph (c) insert'. I understood we had deleted paragraph (c).

The CHAIRMAN: It will be fixed up.

The Hon. S.G. WADE: It will be fixed up as a typo. We believe this is a much better provision than the original. We still wonder whether 3(d)(i) is relevant; if nothing else, it is a request that will not be made because it will already have been provided at the recruitment stage, so we support the amendment.

Amendment carried; clause as amended passed.

Clause 69.

The Hon. D.G.E. HOOD: My amendments 13 and 14 are consequential to different amendments that were moved last night. Amendment 13 is consequential to No. 1 which I withdrew, and 14 is consequential to Nos 9 and 11 which passed successfully last night, so they are quite different.

The CHAIRMAN: I am advised that the Hon. Mr Hood should move both amendments.

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

Page 40—

Line 19 [clause 69, inserted section 95C(1)]—Delete 'initiated by' and substitute:

of a matter referred to.

Line 23 [clause 69, inserted section 95C(2)]—Delete 'initiated by' and substitute:

of a matter referred to

I move both amendments, but they are quite separate.

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

Page 40—

Lines 14 to 17 [clause 69, inserted section 95B(2)]—Delete subsection (2)

After line 17—After inserted section 95B insert:

95BA-Assistance to parties before Tribunal

(1) Subject to subsection (2), the Commissioner may, at the request of the complainant or respondent, provide representation for the complainant or respondent in proceedings before the Tribunal.

(2) The Commissioner must apply available public funds judiciously taking into account—

(i) the capacity of the complainant or respondent to represent himself or herself or provide his or her own representation; and

(ii) the nature and circumstances of the alleged contravention of this Act; and

(iii) any other matter considered relevant by the Commissioner.

(3) If the Commissioner provides representation to a complainant or respondent, the person representing the complainant or respondent—

(a) must disclose to the Commissioner information reasonably required by the Commissioner to determine whether the Commissioner should cease to provide representation; and

(b) may disclose to the Commissioner information that the person considers relevant to the question of whether the Commissioner should cease to provide representation,

and the complainant or respondent will be taken to have waived any right or privilege that might prevent such disclosure.

This deals with a longstanding issue which is not only of concern to the opposition but which also was a concern raised in the Martin report and the government's framework paper of 2004. Amendments Nos 3 and 4 deal with the issue of the obligation of the commissioner to represent the complainant. Amendment No. 3 deletes 95B(2), which withdraws the obligation on the commissioner, and amendment No. 4 provides a discretion not to appear but to provide representation.

The considerations that the commissioner would need to take into account in considering whether or not to provide representation relate to, if you like, the sound stewardship of public funds and also, on the issue of equity, a level playing field. Perhaps the best way to put the case is to quote the Martin report on this issue. In referring to the obligation of the commissioner to represent a complainant, it states:

It is not surprising that this requirement has given rise to the considerable concern expressed in the submissions. It clearly creates both a significant conflict of interest and the perception of conflict between the role of the Commissioner as an impartial investigator and conciliator and the subsequent role of assisting one party if conciliation fails.

It is necessary for each party at conciliation to understand the procedures that will ensue should conciliation fail. Notwithstanding the best efforts of the conciliator, once a respondent has been told that the Commissioner must or will assist the complainant before the Tribunal the appearance of impartiality is immediately destroyed. In addition, it is obviously difficult for Commission staff to investigate and conciliate impartially knowing that the Commissioner may subsequently be required to represent the interests of the complainant before the Tribunal.

Martin further said:

In my view there are [compelling] reasons of principle and practicality for repealing 95(9). But whatever change is made, it is essential that it not disadvantage complainants.

I also refer to the 2004 framework paper, where it notes, in relation to this element, that other states and territories do not generally give the commissioner or equivalent the role of representing the complainant before the tribunal. His or her function is complete when the case is referred to the tribunal unless the tribunal requests that the commissioner assist it in the inquiry.

Perhaps the novel element of the opposition's amendment is to provide that that assistance might not just be available to the complainant; it might also be available to the respondent. We appreciate that that assistance to the respondent is likely to be rare. As we have already discussed in earlier considerations, it is typical of a complaint in this jurisdiction that the balance of power relationship is with the respondent, not with the complainant. However, this is a discretion to assist in the hands of the commissioner and, in our view, that is an appropriate safeguard to make sure that public funds are used wisely and that they are focused on the spirit of the commissioner's role and the spirit of the legislation.

The Hon. G.E. GAGO: The amendment deletes proposed subsection (2) to pave the way for the following amendment and so is a test for that amendment. The government opposes this amendment, because it cannot support the next amendment, which would potentially open up public funding to both complainants and respondents. We believe that the proposal in the bill to expand the commissioner's declination powers will effectively deal with some of the perceived difficulties that this amendment seeks to address.

We do not agree, however, with the proposal for public funding of respondents. If the complaint is worthy, it may be appropriate that the commissioner should fund representation. If the complaint is not worthy, it should not be funded, but there should be no funding to defeat it. So, at that point, the commissioner's function is at an end. We do not believe that where a complaint lacks merit the commissioner should assist the respondent to defend the complaint by providing representation to the respondent.

The justification for funding complainants only is, essentially, as I have explained earlier, that in a deserving case the complainant is bringing before the tribunal a matter that, even if minor, is of public concern. If an employer or trade engages in discriminatory practice, it is a matter of chance that this particular complainant and not someone else has experienced the discrimination. By making a complaint, he or she takes action designed to stop the respondent repeating discriminatory behaviour in the future as well as redressing that particular instance. Thus, there is a public benefit in the form of greater social equity for funding a complainant.

It is quite true that this applies only in deserving cases. There is no public benefit in funding complaints that are vexatious or misconceived and, indeed, the act, as I said before, provides for the commissioner to decline them. Nor is there any public benefit in funding complaints that have no reasonable prospect of success nor complaints that ought to have been resolved by acceptance of a fair offer of redress.

The bill proposed to broaden the declaration powers to allow the commissioner to decline funding in such cases. That is already in a provision of this bill. If those clauses are passed, some of the understandable criticisms of the present law will be addressed. The commissioner will not be required to fund complaints that lack merit.

Our main concern is not so much with the criteria outlined in the Hon. Mr Wade's amendment—the criteria that the commissioner would have to consider in making a decision about spending public money—but with the inclusion of the word 'respondent' in terms of allowing the representation by the commissioner. The government does not, however, see any public benefit in funding of respondents. If a complaint is frivolous or vexatious or brought simply to cause delay or obstruction, the respondent is protected under section 26 and will be entitled to a costs order.

If the complaint is not so, then the government is not satisfied that there is any case to fund the respondent's representation, if he or she chooses to be represented. The government is open to consider the broader question of representation in the tribunal and is willing to do so between the houses but cannot support the amendment in its present form, particularly in relation to the conclusion of the words 'and respondent'.

The Hon. S.G. WADE: I welcome the minister's concluding remark that the government is willing to give it more thought between the houses. I still submit to the committee that we should maintain the, if you like, 'novel' element: the possibility of funding a respondent. I remind the committee that this is completely at the discretion of the commissioner. We have to ask ourselves whether it is conceivable that a respondent to a complaint might have a case which it is in the public interest to have run, and that, therefore, so to speak, we are not funding a wrongdoer. It is not that hard.

There are a number of clauses in relation to discrimination which give people a reasonableness excuse if it is reasonable in the circumstances. It may well be an established practice within an employer group to assume that a certain practice is reasonable. That may not be at all malevolent—it might be with the best of intentions—but the commissioner, the complainant or other people might regard that as discriminatory. The tribunal is the body to determine that, so why should this parliament say that it is not conceivable that a respondent will be anything but bad, that an issue that a respondent might be defending would ever be in the public interest?

I put to the committee that, considering this is completely in the discretion of the commissioner, that the commissioner has been given criteria in (2) and (3) to deal with issues of public interest, that we should not exclude the prospect. I expect that when we get these annual reports from the commissioner we will find that the occasions when a respondent is funded are rare. I would be surprised if that is not the case. Why should we exclude a rare circumstance as we may well be creating an injustice?

The Hon. D.G.E. HOOD: I indicate Family First support for the opposition amendments, but clarify that my amendments 13 and 14 that we are dealing with as well are both consequential to an amendment that was successful last night.

The committee divided on the Hon. Mr Wade's amendment No.3:

AYES (11)
Brokenshire, R.L. 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) Winderlich, D.N.
NOES (10)
Bressington, A. Darley, J.A. Finnigan, B.V.
Gago, G.E. (teller) Gazzola, J.M. Holloway, P.
Hunter, I.K. Parnell, M. Wortley, R.P.
Zollo, C.

Majority of 1 for the ayes.

The Hon. Mr Wade's amendment No.3 thus carried; the Hon. Mr Wade's amendment No.4 carried; the Hon. Mr Hood's amendments carried; clause as amended passed.

Bill reported with further amendments.

Third Reading

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (12:10): I move:

That this bill be now read a third time.

The Hon. M. PARNELL (12:10): I remind the council that this bill is by no means perfect but it is an advance on the current law relating to unlawful discrimination. Because it represents an advance, most of the community organisations that have contacted me have urged me to support the bill on the ground that it is an advance on human rights in South Australia. So, I have supported and will continue to support the measure.

However, let us not forget that what we are passing today are laws that allow discrimination to continue. Teachers can still be sacked and denied employment on the basis of who they are. A person's sexual orientation is a fundamental part of who we are as people and, in most cases, it is not something that we can do anything about. It is who we are and how we are. In this bill we are perpetuating the right of certain schools to discriminate against same-sex people. I think that is wrong. I think it is a failure of our society to acknowledge, recognise and support diversity in our community. However, it is a fight for another day.

The Hon. S.G. WADE (12:11): In the spirit of the Hon. Mr Parnell's comments, I would also like to reiterate my second reading comments briefly. I particularly welcome the enhancements to the provisions for carers and people with a disability.

Also, in conclusion, in spite of the fact that the council's deliberations inevitably focus on the issues that we end up dividing on, I acknowledge the discussions I had with both the minister and other members of the council outside the chamber where a lot of the discussions take place to clarify the issues to ensure that the best amendments are put forward and that, if you like, we can focus here on the points that divide us, in spite of the fact that in regard to the vast bulk of the issues the opposition, government and other members of the council were in unison.

The Hon. D.G.E. HOOD (12:12): I also acknowledge that this has been a long process. This bill has been in process for three years or so. Although, at times, we have been involved in, let us say, a fairly enthusiastic fight over various issues and particularly the amendments that have been put up, I acknowledge the government's spirit over that time. Certainly, the Attorney-General has been very open in his discussions around a number of things that Family First have put to him, and we are grateful for that.

Whilst almost no-one is completely happy with how this bill has turned out, certainly Family First is pleased that a number of the amendments were successful. However, we also believe that the bill itself has merit, in particular, as the Hon. Stephen Wade mentioned, the provisions for carers and the disability sector, for example. They are things we are certainly in favour of also. I think no-one is ever completely happy at the outcome of these things, but I think improvements have been made.

The Hon. I.K. HUNTER (12:13): I congratulate the minister on shepherding this bill through this chamber in sometimes a very tortuous process. I echo and support the comments made by the Hon. Mr Parnell. This bill maintains legal discrimination against a minority group in our community—gays and lesbians—and their employment in some religious schools. To my mind, this is untenable and cannot last. We have noted in the debate that no such provisions exist in Tasmania. I have not been down there lately, but I do not think the end of western civilisation has occurred in Tasmania because of the lack of such provisions. Our time will come and we will be back to revisit this bill in the near future.

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (12:14): I will not speak at length but, certainly, I acknowledge the very important and valuable contributions of all honourable members who participated in this debate.

It is a policy area that elicits a great depth of feeling for many members of this chamber and of the public, and most of us have been lobbied significantly by various parties. A great deal of work has been done not only by me but also by my office, parliamentary counsel and officers from the Attorney's office. I acknowledge the many hours of work that they have put into this.

This bill has been in the making for almost 15 years in terms of work that has been done and, certainly, a great deal of work has been done in the past five years or so. It has been a very tortuous road indeed, and I think that we should all feel very pleased that we are party to finally passing this bill in this place in this form.

Indeed, it goes only some of the way. I believe that it does deliver significant improvements and benefits for our various community members. I am very proud of that, but there is still some way to go. I will be very pleased to be part of the next phase that looks at further improvements to our Equal Opportunity Act, and I hope I am around to bring those back to this chamber as well.

Bill read a third time and passed.

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