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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-10-13 Daily Xml
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Equal Opportunity (Parliament and Courts) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 July 2020.)

The Hon. J.M.A. LENSINK (Minister for Human Services) (16:59): I will be very brief, and that is just to thank everybody who has made a contribution to this particular piece of legislation, which we think is an important reform in this space. I look forward to the committee stage of the debate.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: I am interested in who was consulted in relation to this bill and what the feedback was.

The Hon. J.M.A. LENSINK: I can advise that the government has consulted with the equal opportunity commissioner and the Chief Justice. Following the bill's introduction, a letter was sent to the presiding members.

The Hon. K.J. MAHER: I thank the minister for her response. In relation to the first two mentioned, the people who were consulted, does this bill incorporate all the suggestions they came up with when they were consulted?

The Hon. J.M.A. LENSINK: Opinions in relation to this legislation were sought from both those office-bearers. They both support the bill.

The Hon. K.J. MAHER: Just to make sure that we are talking about the same thing, were those two people consulted on this bill or were they consulted generally on this matter; that is, were they shown the bill and asked for feedback on the bill as it has been presented to this chamber?

The Hon. J.M.A. LENSINK: The advice I have received is that both of those office-holders were presented with a version of the bill which has subsequently changed, but they are supportive of the current position.

The Hon. K.J. MAHER: What changed between what was consulted on and what ended up here?

The Hon. J.M.A. LENSINK: The change to the legislation has been the inclusion of judges within the current version.

The Hon. C. BONAROS: Perhaps for the benefit of members, I will ask the minister to confirm that I will be moving the amendments in set one, not set two, on the basis that the amendments in set two, which relate to councils, have been incorporated into the local government reform bill that is not yet before us, I think—

The Hon. K.J. Maher: It's being debated as we speak.

The Hon. C. BONAROS: It is being debated in the lower house as we speak. So there are two sets of amendments on file. Set two seeks to include into this bill the judiciary and councils. Set one only seeks to incorporate the judiciary. I am proposing that I move forward with set one but on the understanding—and the minister will have to confirm this—that the local government reform bill currently being debated in the lower house addresses the concerns that we have and incorporates the same provisions in relation to councils.

The Hon. J.M.A. LENSINK: I am happy to confirm that what the honourable member has just stated—that we will be including provisions within the local government reform bill—is correct. She can be assured that her assumptions on the way to proceed concur with the government.

The Hon. C. BONAROS: Thank you to the minister. On that basis I move:

Amendment No 1 [Bonaros–1]—

Page 2, line 4—After 'Parliament' insert 'and Courts'

This amendment seeks to insert the words 'and Courts' after 'Parliament'. The intent of the amendment should by now be clear to all members; that is, to remove the exemption that currently applies to our courts from the scope of the equal opportunity bill. Amendment No. 2 is almost a consequential amendment in that regard. I do this because, as members will probably recall, during my second reading contribution it was certainly SA-Best's view that there was absolutely no reason or logic to any exemption applying to the judiciary, to the courts and to councils from the reach of the Equal Opportunity (Parliament) Amendment Bill.

I do want to ask for your indulgence a little, Chair, and just reflect back on why it is that we propose these amendments in the first place and reflect on one issue that has not been addressed by the amendments, but I think is important to clarify for the record because of the contribution I made in relation to proceedings of this place—that is, parliamentary proceedings—and place on the record the response I received from the Attorney regarding a number of scenarios. They do not fall under this particular amendment—I am seeking your indulgence, Chair—but are at the heart of the debate we are having in relation to the inclusion of these provisions in this bill.

Those questions that I asked were specifically around parliamentary proceedings and what they mean in this place. I am happy to do it now; I am happy to do it in a subsequent clause—wherever you consider appropriate, Chair. I thought I would incorporate it into my contribution on this particular provision.

Members will recall that during that second reading contribution I listed a number of outstanding scenarios that I think do warrant further consideration. I have to agree with the Attorney that they are not easy problems to remedy, because of the way we define parliamentary proceedings in this jurisdiction—if they were, I would have drafted amendments to deal with them—but they are worthy of comment.

I am not sure that the government intended to do this, but in her response to me about very specific scenarios that I put about parliamentary proceedings the Attorney provided some responses. She qualified that by saying that the interpretation of whether the specific scenarios that I raised fall under the definition of parliamentary proceedings is a legal question and a matter of statutory interpretation. While she would not provide legal advice, she did provide comments as follows.

The first scenario was, if one member was to walk past another member while in the chamber and call him or her a name that is derogatory, insulting, racist or sexually charged, but not while on their feet, would that constitute parliamentary proceedings and therefore still be exempt from the reach of the equal opportunity bill? The response from the Attorney was that it would constitute parliamentary proceedings and therefore be exempt from the reach of the bill.

The second scenario was, if a member was to walk past another member during a sitting and verbally harass them or grope them, would that constitute parliamentary proceedings? The response was, if not in the chamber then it would not be parliamentary proceedings. If it occurred in the chamber, it would be deemed an exemption because it would be within a parliamentary proceeding session.

If one and two, as explained above, happened during committee proceedings, then the exemption that applies to parliamentary proceedings would be applicable. If a member walked up to a person and placed their hands on him or her in an unwelcome way, sexually harassed or racially vilified them during a tea break of a committee, according to the Attorney this would not constitute parliamentary proceedings and therefore somebody could make a complaint to the commissioner.

If a member texted or called a person after work and sent them inappropriate messages, according to the Attorney this would not constitute parliamentary proceedings and therefore would be subject to the equal opportunities complaint mechanism.

If sexual harassment occurred at a briefing, then, according to the Attorney, it would not constitute parliamentary proceedings. At an information session organised by the government, it would not constitute parliamentary proceedings. At a parliamentary function in the dining room, it would not constitute parliamentary proceedings. During parliamentary proceedings that see members visit Government House or during estimates, not parliamentary proceedings; at a library information session, not parliamentary proceedings.

I seek to table this response from the Attorney, because I think it is important that we keep this in mind in the broader context of this debate. I therefore seek leave to table the letter.

Leave granted.

The Hon. C. BONAROS: I do so because there are exemptions that apply in the bill that I do not think are warranted. I do not know what the solution is, but I am highlighting them because as with the judiciary, as with councils, I think there are exceptions that apply now that we need to address because they do not pass the pub test; they are not considered appropriate.

Nobody in their right mind would consider something along the lines of what I have just read out onto the record occurring in this place, or in our judiciary or in our local councils, being able to be exempted from the reach of the equal opportunity bill purely because it has taken place during proceedings of this place or one of those places. It is absolutely unacceptable that I could walk up to a member in this place now, while I am not on my feet, and racially vilify them, sexually harass them or anything else, and there would be no repercussions for my actions purely because we have exemptions that apply for parliamentary proceedings and exemptions that apply in the legislation for other proceedings in other areas.

I make those comments just to place them on the record, and indicate that this is something that I have said to the Attorney that I am hoping we will be able to address further, but I do not want to hold up the passage of this bill.

The amendments that I now move deal purely with the judiciary and seek to incorporate the judiciary into the reach of the Equal Opportunity Act and ensure that they are covered by the same standards that apply to everybody else, and that is that we are all covered by the same standards that would apply in any other workplace in this jurisdiction.

The Hon. J.M.A. LENSINK: The government supports these amendments, and I will make a slightly less short contribution on the next amendment.

The Hon. K.J. MAHER: The opposition supports it.

Amendment carried; clause as amended passed.

Clause 2 passed.

Clause 3.

The Hon. C. BONAROS: I move:

Amendment No 2 [Bonaros–1]—

Page 2, after line 9—Before the current contents of clause 3 (now to be designated as subclause (2)) insert:

(1) Section 87(6a)—after 'sexual harassment a' insert 'judicial or '

This amendment relates specifically to section 87 of the Equal Opportunity Act, which deals with sexual harassment. The government's bill includes sexual harassment by another member of parliament. This amendment is consequential in some respects in that it seeks to also extend that scope to the judiciary, and through the local government reform bill we will see that also extended to councils.

If I can just, for the benefit of members, clarify the point I was making earlier: while I think this is a good first step, I think it is absolutely important that we read section 87 in its entirety because, even though we are addressing part of the problem, we are not by any means addressing all of the problem and the same sorts of issues I have just outlined in relation to parliamentary proceedings certainly apply still in relation to the judiciary, and that is why further work is needed in this area.

Section 87, which will now extend to judicial officers, like the provision that relates to parliamentary proceedings, has exemptions for conduct that occurs in chambers in the exercise or purported exercise of judicial powers or functions or in the discharge or purported discharge of judicial duties. Again, this is a consequential amendment in some respects, but I think it is absolutely important for members to appreciate that we have only gone part of the way in addressing what SA-Best believes needs to be addressed through these amendments.

It is certainly my hope that the Attorney will see through the undertakings she has given to me in terms of trying somehow in the future to address the other issues that I have raised around parliamentary proceedings or anything that may occur between judicial officers that happens in chambers, and certainly anything of that sort that may apply to councils. With those words, I commend this amendment to the chamber and hope that it is supported.

The Hon. J.M.A. LENSINK: The government supports this amendment which expands the sexual harassment provisions in section 87(6a) to make it unlawful for a judicial officer to subject to sexual harassment another judicial officer. Currently, section 87(6a) covers sexual harassment by a judicial officer towards a non-judicial officer or a member of the staff of a court of which the judicial officer is a member.

The Hon. T.A. FRANKS: I have a question, more probably of the government than the mover. Given it seems likely that we are going to be expanding the scope under which the EO Act will enable people to make complaints, will those complaints be able to be made retrospectively, as currently there is a certain period of time—and I cannot for the life of me right now recall if it is one year or two years, but I suspect it is probably one—that one can make a complaint after an incident or series of incidents have occurred, depending on the definition being complied with? If we pass this bill will that retrospectivity apply from the assent of the bill or from some other date?

The Hon. J.M.A. LENSINK: I will answer the honourable member's question in two parts: in the existing act, section 93(2), the complaint must be lodged within 12 months of the contravention. However, in relation to these particular amendments to the act, the government is of the view that in line with the general prohibition on retrospective criminal laws we cannot seek to sanction a person for conduct that was not contrary to law at the time the conduct was undertaken. The advice that I have received is that the new clauses will come into effect on assent.

The Hon. T.A. FRANKS: Noting that, particularly with sexual harassment, it can be a series of events over a long period of time rather than an individual act of a sexual harassment nature, should there be one last event after assent will the other actions be taken into consideration for the purposes of making a complaint to the EO commissioner?

The Hon. J.M.A. LENSINK: That is a good question. In relation to there being a series of events and the final event takes place after the new clauses have been assented to, the commissioner would have some discretion to look at prior events as part of establishing a pattern of behaviour. That would be part of the discretion in managing a situation.

The Hon. C. BONAROS: The further contribution I have on this particular amendment is to ask the minister to confirm the undertaking that we will be looking at these provisions further in relation to the concerns I have raised that apply equally to judicial conduct that occurs in the purported exercise of judicial powers or functions, and that is effectively the same issue that we have with parliamentary proceedings. I do want it placed on the record that this is an issue that we will be considering further outside this debate.

The Hon. J.M.A. LENSINK: I thank the honourable member for those questions. The advice I have is that the Attorney is very open to continuing the discussions as the honourable member has relayed in her contribution, and we look forward to these matters being further progressed.

Amendment carried; clause as amended passed.

Remaining clauses (4 and 5) and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (17:29): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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