HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-03-21 Daily Xml
Contents
Xml

Bills

Equal Opportunity (Domestic Abuse) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 November 2022.)

The Hon. J.M.A. LENSINK (15:39): I rise to indicate support for this particular piece of legislation, which adds to the existing provisions under which it is illegal to discriminate against people within the South Australian community on the grounds of someone who is or has been subject to domestic abuse.

The definition of domestic abuse is lifted from the Intervention Orders (Prevention of Abuse) Act 2009, which was a groundbreaking piece of legislation at the time and does include elements of coercive control, which I understand are likely to be amended through legislation within the next 12 months or so.

These provisions clearly are very important for people who are subject to any form of domestic violence. We know from the voices of survivors that they undergo significant trauma. There is a great deal of disruption in their personal lives and the last thing they need is for obstacles to be put in place through any forms of discrimination.

I think we have a much better understanding within our community of the depth and breadth of violence which takes place in our community. I think we are a much more understanding and compassionate community in 2023 about the impacts for those people who are experiencing it and much less victim blaming is taking place.

We do continue to need to reform our laws to keep in touch with contemporary attitudes and, therefore, it is entirely appropriate that all forms of discrimination are removed for a whole range of people, including those victim survivors of domestic and family violence. I commend the bill to the house.

The Hon. C. BONAROS (15:42): I rise on behalf of SA-Best to speak on the Equal Opportunity (Domestic Abuse) Amendment Bill 2022. The bill, as we know, aims to expand the legal protections in the Equal Opportunity Act to make it unlawful to discriminate against a person on the grounds of being, or having been, subjected to domestic abuse.

We strongly support the objectives of this bill but note, importantly, that its effectiveness will depend on funding, appropriate resourcing, education and training factors. We understand the Equal Opportunity Commission currently employs the equivalent of 5.2 FTE staff. That is a very small number when you consider its wide range of statutory functions.

We do have some serious reservations about the capacity of the commission to resolve complaints and undertake its other functions and therefore meet the objectives of this bill without increased resourcing. There have been assurances, I am told, that the commission will put its hand up if it receives a big influx of cases.

The fact remains that it is not at present proposed that there be any additional funding, and that is even without these additional functions, never mind any other additional functions that we have seen directed to the commissioner and indeed discussions that are taking place as I understand it in government at the moment for even more functions potentially being directed to that commissioner.

The ACT has commenced equivalent legislation under the auspices of the Human Rights Commission, which I think might give some insight into the sorts of numbers that they have experienced. It has dealt with 24 complaints in the past 12 years to the end of June 2022, but seven of those in the last reporting period.

We are not suggesting resourcing for the sake of resourcing—appropriate resourcing and funding that is. Our concern is ensuring that we are not simply passing legislation as a feel-good measure but rather ensuring that we are actually committed to addressing the very important objects and objectives of this bill.

We do have concerns about the commission's capacity to conduct the broad-based community education and awareness program to ensure workplaces and the broader community are aware of the changes. Again, not because we have any doubts over their ability to deliver those but because of the increasing functions that the commission has and that small number of staff available to them at the present time.

Similarly, we would like some confidence, I suppose, about the commission's ability within the current resourcing confines to provide training to the bodies which would be subject to these new provisions, and perhaps the Attorney will be able to elaborate more generally in a moment on the issue of funding.

Going forward, our concern is that when budgets come up that is not the time to—certainly, when there are budget restraints we often see budgets cut as opposed to budgets being increased, so when a bill is presented for us it provides the most opportune time, in my opinion, to actually really extensively review whether the funding arrangements are enough, will be enough, to meet the objects of the bill and indeed whether or not there should be any provisions that set those minimum thresholds in terms of what should be available to the commission to undertake that expanded role that it will now have.

The bill in general though is a welcomed legislative reform. It will mean that any government department, instrumentality, agency or council will be prohibited from discriminating based on domestic abuse when performing any function which can be construed as a service to the person claiming discrimination. On the face of it, it is unclear whether the actions of police responding to domestic violence incidents or child protection authorities dealing with family violence issues will be covered by these new provisions.

These are certainly discussions that I have had at length now with the Attorney's team, and we do appreciate it is complicated but the feedback that has been provided to me from experts in this area is that if the bill does cover police and child protection work as services it will be quite challenging for those agencies to deal with because of the broad definition of domestic abuse in the bill. If the bill does not cover police and child protection, those agencies will be able to lawfully discriminate on the grounds of domestic abuse.

Both agencies are critical first responders for many women who are the subject of domestic abuse and vulnerable to discrimination on the grounds of domestic violence, and as such I would welcome the Attorney's clarification on this crucial issue. Housing SA and SACAT are others which have been raised with us. There are a good number of examples where courts and tribunals have considered the interpretation of the word 'service' for the purposes of discrimination legislation, and I will mention just a few of those lead cases to demonstrate these complexities. In Patrick v State of South Australia (No. 2) [2009] SAEOT 1, the tribunal stated the following, and I quote:

While SAPOL provides services to the community, it cannot be said that SAPOL provides a service to each individual person who is arrested, charged and held in custody. 'Service' is not to be confused with a duty that may arise out of the police function to uphold the law. Such a duty may arise when a person presents at a police station to answer a warrant of apprehension that contains an endorsement that bail is not to be granted. In carrying out their duty, SAPOL would be fulfilling one of their functions and thus providing a service to the South Australian community.

I think you need to read that a few times over to actually understand what the court is saying there. The judgement goes on to say:

It could not be said that SAPOL were providing a service to Patrick when they arrested, charged and held her in custody.

In Mikhail Marchenko v South Australia Police [2020] SAET 168, consideration was given to whether a service is provided when a police officer responds to a call for assistance from a person under threat and provides protection. In that case the full bench found that SAPOL was a service. Child protection matters have also agitated the issue in recent years. In ZVG and CET v Department for Child Protection [2020] SACAT, 15 the tribunal found that the department was not providing services to the legal parent of a child when it made decisions over removal, placement and contact.

In BWI v Department for Child Protection [2020] SACAT 84, the tribunal considered whether decisions to place and/or remove a child from a foster care placement and to cancel approval as a foster carer were services provided to the foster parent. It found these actions were not services to the foster carer as it was fulfilling a statutory duty to keep children safe from harm.

As I said before, and will continue to say, this is an extraordinarily complicated issue. This is the very reason we should be following the lead of other jurisdictions and accompanying bills with a statement of rights, impact statement or explanatory memorandum, because we would have some better insight into those issues, particularly when they have been through those judicial processes and we have competing definitions which are very relevant to the legislation we are debating.

The provision of more explanatory materials and examples to accompany positive reforms like this are absolutely needed to demonstrate the types of situation these protections are intended to cover. There is no point us guessing what the courts will do, or there is no point us guessing what might or might not be covered, or what is this parliament's intention. It should be in material before members of parliament when we are either debating it and, more specifically, better articulated in legislation.

I reiterate that this is in principle a very welcome reform. We certainly hope it will achieve its objectives of empowering victim survivors. We hope it will raise awareness in workplaces and in the broader community about domestic abuse, because achieving these goals is extremely important and they are dependent on victims feeling safe to report and disclose domestic abuse in the first instance. This absolutely, in our respectful view, must be part of a broader package of reforms for consideration in this place to ensure that victims do have that level of safety provided to them.

I would ask the Attorney again for some clarity around the points I have raised with him and his team during briefings, and the issue of resourcing, in addition to the issue of definitions around or coverage of service that is defined in the bill. With those words, I wholeheartedly support the intent of this bill.

The Hon. S.L. GAME (15:53): I rise to speak on the Equal Opportunity (Domestic Abuse) Amendment Bill 2023. Although I am pleased to see forms of domestic abuse being included in the criteria for establishing discrimination under the Equal Opportunity Act, I see this as a missed opportunity. Thousands of individuals have been discriminated against because of parental alienating behaviours which, according to a growing segment of the legal field, are defined as a form of domestic abuse.

Advocacy group Eeny Meeny Miney Mo Foundation have self-reporting evidence of one million Australian children currently being affected by parental alienation. That is one million targeted parents and many more affected members of extended family. Yet, despite it being the most common form of family and domestic abuse, it remains largely unrecognised.

The anti-discrimination measure captured in this bill only partially covers the effects of domestic abuse from parental alienating behaviours. This amendment is a missed opportunity for many in our community, and I continue to have hundreds of alienated parents contact me. These alienating behaviours, and both the intentional and unintentional discrimination that occurs, happen too often in separated families. The effect of parental alienating behaviours on parents' ability to attain or hold a steady job is significant. It impacts their daily life and limits their ability to access finance options and even education and extracurricular activities for their child.

They have expressed issues such as ongoing and haphazard court sessions requiring time off work, and this leading to reduced hours or even dismissal; being denied a working with children check or unable to obtain a security clearance due to false claims against them and then not being able to obtain a job or volunteer role; endless costs associated with legal proceedings such as arguing child visitation orders or having false claims challenged in court; having their rental lease terminated because of threats of or actual property damage caused by the alienating parent; and having schoolgrounds access denied because the alienating parent has informed the school of false intervention orders.

Many employers do not know what parental alienating behaviours are, and they do not know this form of abuse and discrimination affects thousands of South Australians. As I have alerted this chamber to previously, parental alienating behaviours include emotional harm, coercion, fear tactics, threats, intimidation, stalking, harassment, physical and sexual abuse of both the child and/or targeted parent, economic exploitation, gaslighting, manipulation, isolation and even abduction.

Many people do not know the discrimination targeted parents face and the consequences of that discrimination. One recent Australian research paper asserts that 23 per cent of alienated parents have attempted suicide at least once. If we had formally recognised parental alienating behaviours as a form of domestic abuse, there would be no need for me to raise this issue again and again.

If the Attorney-General had taken this matter to the South Australian Law Reform Institute, as he promised he would consider, we would not need to raise this issue again and again. As it is, we are lagging, and victims of parental alienating behaviours, both the targeted parent and the targeted child, remain unprotected. I hope elements of this bill can be used by lawyers to advocate for targeted parents.

Once again, I raise a key message from my federal budget reply speech: Labor will invest $1.7 billion to address gender-based violence towards women. This measure fails to recognise the reported one-quarter of domestic violence victims who are male. It is also noteworthy that the true figure is without a doubt higher, as domestic violence towards men is under-reported due to stigma and shame. Campaigners argue that of men who experience domestic and partner violence, 54 per cent of them have never told anyone about it, and 68 per cent have never sought advice or support. Men are less than half as likely to seek a restraining order against a previous or current partner. We must ensure that these male victims are also able to participate in this new legislative protection.

I would also like to bring attention to the discrimination caused by financial abuse. The discrimination caused through financial abuse can come from having been forced or manipulated to transfer or sell a house; having been forced or manipulated to guarantee a loan or take out a loan on behalf of someone else, which the abuser had no means or intention of paying, therefore forcing the victim into bad credit and debt; having money stolen from accounts and leaving someone unable to pay their rent bills and utilities; and, as we so often see occurring in elder and disability abuse situations, the person authorised to manage victims' money not acting in their best interests or using their money for themselves.

This bill does cover some of these aspects, but it does not go far enough to deter discrimination against victims of financial abuse and parental alienating behaviours. One Nation will bring light to these issues and their victims at every opportunity. Awareness can create change, and I hope the seed is planted in the Attorney-General’s mind for future safeguarding amendments.

The Hon. R.A. SIMMS (15:58): I rise to speak in favour of the Equal Opportunity (Domestic Abuse) Amendment Bill 2022. The Greens believe that everybody deserves to be safe, respected and free from discrimination. The Equal Opportunity (Domestic Abuse) Amendment Bill of 2022 provides protection for people who have experienced domestic violence by ensuring they are not discriminated against in workplaces or in seeking support, accommodation or services.

Domestic and family violence affects many people in our community. The statistics on domestic abuse are sobering. One in eight Australians have experienced abuse before the age of 15. One in six women and one in 16 men have experienced partner violence since the age of 15. Again, I highlight the statistics: one in six women have experienced partner violence since the age of 15.

People with a disability are more likely to experience physical and/or sexual violence, and First Nations people are 32 times more likely to be hospitalised than non-Indigenous people. Approximately 13 per cent of adults experience abuse during their childhood. These are alarming statistics. People who have experienced domestic abuse can further face disadvantage as a result, contributing to long-term health impacts, both physical and mental. Additionally, domestic and family violence is a leading cause of homelessness.

All these statistics paint a grim picture. Discrimination suffered by domestic abuse survivors adds another layer of disadvantage. This bill will ensure that people who have experienced domestic violence are able to apply for properties, jobs or bank accounts without fear of discrimination. The Greens believe that nobody should be discriminated against because they have experienced or witnessed domestic violence.

While we welcome the intent of the bill and we are supportive of the legislation, I do want to highlight some of the concerns that have been raised by organisations, such as the Law Society, regarding the definition of 'services'. A clear definition of 'services' in the Equal Opportunity Act would reduce any ambiguity. We note that case law has provided some clarification in terms of the meaning of 'services', but further clarity would ensure that agencies that are intended to be captured by these laws are indeed included.

I refer you to the Law Society's submission to the Attorney-General where they query whether or not law enforcement authorities are captured under the government's definition of 'services'. Their submission states:

It is highly desirable that such agencies are not exempt from anti-discrimination provisions. If there are grounds that would justify them not being included, they should be clearly outlined.

Clarity around which services are intended to be incorporated into the bill is beneficial in terms of ensuring that agencies are sure of what responsibilities they have and how they can best train their staff to develop their internal procedures and policies.

As a result of those issues that have been raised by the Law Society, at the committee stage we will ask some questions of the government about the capacity of the Equal Opportunity Commission. Already underfunded, the Equal Opportunity Commission has only 5.2 full-time equivalent staff to carry out the functions required by the act. In their 2021-22 annual report, the EOC stated:

Through independent review it became clear that, for some time, the Commission has been structurally underfunded and that we have also been operating beyond our annual funding sources. This meant that we were no longer able to maintain the staffing levels that would enable us to undertake our statutory functions properly.

The Greens call on the Malinauskas government to increase funding to the Equal Opportunity Commission not just so they can carry out their existing functions effectively but also so they are better able to implement the new provisions in the bill, including ensuring that they have sufficient resources to deliver an awareness-raising campaign about these important changes.

The Greens support removing discrimination faced by domestic violence survivors and to do that we want to ensure that the Equal Opportunity Commission gets the support and the funds that they need. In closing, we are supportive of the bill. We will be asking questions in the committee stage regarding the implementation. With that, I commend the bill to this chamber.

The Hon. I. PNEVMATIKOS (16:02): In the past, this parliament has legislated to protect South Australians from discrimination based on race, sexuality, disability, employment, spousal status and caring responsibilities, amongst others. Since its introduction, the Equal Opportunity Act has not had a substantive review or reform of the legislation. We are all aware of the need to protect, support and empower victims of domestic violence.

Given the prevalence of domestic violence in Australia, the likelihood that the impact of domestic violence could trickle into one's workplace, work performance and therefore future employment and housing prospects is significant. This compels us to pass the Equal Opportunity (Domestic Abuse) Amendment Bill 2022. This bill will nominate domestic abuse as a protected attribute from discrimination, akin to sexual orientation, gender, race, disability and age. In other words, it will now be unlawful to discriminate against someone because they, or a relative or associate, have been or are being subjected to domestic violence.

The bill bans discrimination against victims of domestic abuse in all areas of public life covered by the Equal Opportunity Act. These include employment, volunteering, education, the purchase of goods and services, and decision-making by associations and qualifying bodies. An example of a scenario that the bill will prohibit is criticising or treating an employee unfairly because they took time off on domestic violence leave. Another example is refusing to rent a property to someone because they are protected under an intervention order.

The bill also prohibits what is known as indirect discrimination against victims of domestic abuse. This is when a general requirement is imposed that somebody with a protected attribute—in this case, subjection to domestic abuse—cannot comply with or will find more difficulty to comply with. For instance, if a prospective landlord requires applicants to provide evidence of a recent rental history, although this requirement is reasonable for most applicants, it may be unfair for a victim of domestic abuse who has been forced to live in crisis accommodation or has an unstable rental history with many short-term vacancies. By prohibiting indirect discrimination, we can help to alleviate some of the difficulty the victims of domestic abuse experience in trying to find a safe place to stay.

We are all aware of the horrific scale of domestic abuse afflicting this country. The issue is constantly raised in this building. However, we are yet to see any signs that we are any closer to its elimination. If this bill is passed, South Australia will join the ACT as one of two Australian jurisdictions with legislation that specifically protects victims of domestic abuse from discrimination in public life. Although this will not end the scourge of domestic abuse, it will make victims' lives easier by affording them greater legal protections. Therefore, I commend the bill and call on my parliamentary colleagues to support it.

The Hon. J.E. HANSON (16:06): It will not surprise anyone that I rise to speak in support of this bill, which in my view brings laws of our state into line with what is just and appropriate and what modern standards should reasonably be expected in terms of protections against discrimination for people who are experiencing or who have recently experienced domestic violence.

Everyone should be aware that there is a domestic violence problem in the culture of our nation and indeed this state. I think that few here would refute that. In addition to our culture's underlying endemic domestic violence problem, a number of circumstances over the past few years have exacerbated or become aggravating factors in domestic violence. COVID-19 and all that accompanied it, as well as the rising cost of living are two factors that have and will continue to increase pressures on families and individuals and those with exacerbated mental health challenges. Let's be clear, though, these are factors; they are not excuses.

I mention them to highlight that the amendments to the Equal Opportunity Act 1984 proposed in this bill are pretty timely. They are also reasonable and they are worthwhile. They offer practical ways in which our laws can better protect the rights of persons experiencing domestic violence or abuse, because we know that domestic violence and abuse can give rise to further problems for those experiencing it, undeserved problems for people who are already having a difficult time living through something that certainly, I think everyone here would agree, no-one deserves to endure.

In particular to myself in speaking to this, I have lived most of my life in metropolitan Adelaide, and there is no doubt in my mind that there is a significant and warranted focus on domestic violence and abuse here in the city that I love, but the domestic violence problem is also very significant in our regions.

As someone who has spent the best part of two decades working in the regions, my greatest knowledge of the scope of the problem in South Australia is probably centred around the localities of Upper Spencer Gulf, Port Augusta and Port Pirie—cities like that. That region, centring largely on the electorate of Stuart, saw a nearly 48 per cent increase: a 48 per cent increase in domestic and family violence offences reported over the period from 1 January 2019 to 31 December 2022—48 per cent.

Domestic violence matters can also occupy a disproportionate amount of police time. In an electorate like Stuart this is problematic, especially because, being a regional area, resources are often quite geographically stretched when it comes to policing. Domestic violence support services and adjacent services are always under pressure as well. Compounding that is the staffing issue. Many services have open advertisements for positions that are difficult to fill. It can be difficult to retain those staff that they do get, let alone obtain them when they really need them. The problem of domestic violence services being in need of resources and staff is not unique to regions, but it certainly does significantly compound the problem that regional South Australians face in terms of domestic violence and abuse.

I think it is fair to say, and a fairly obvious statement to make, that, as a government, we cannot and will not sit on our hands when it comes to domestic violence and abuse. The provisions of this bill aim to address some of the issues of discrimination that can arise for victims of domestic and family violence. We know that they can face discrimination in various areas of life. We know that this sort of discrimination does occur, has no reasonable basis and is abjectly unfair.

This bill proposes to make it unlawful to discriminate against a person on the grounds of them being or having been subject to domestic abuse. It intends to give people who are experiencing or who have experienced domestic violence equal opportunity in the prescribed areas, relative to people who are not facing those challenges. The bill will prohibit discrimination in all areas covered by the Equal Opportunity Act, which of course, as other members have gone to, includes employment or engagement in work, the provision of education, decisions of associations and qualifying bodies, and the provision of land, goods, services and accommodation.

Some of the specific aims of the bill are to prevent employers from criticising or penalising an employee because they accessed domestic violence leave and to prevent lessors from refusing to rent a property to someone because they are protected under an intervention order. In the rental climate that we are facing now, people escaping domestic violence need no further barriers to accessing stable or safe accommodation than the current frenzied state of the housing market currently imposes on them.

Importantly, the provisions of this bill will protect not only the individuals who may otherwise suffer discrimination at work or discrimination in relation to gaining rental accommodation, they will also protect the people who depend on the income of that person's job, the people who depend on the shelter that the rental accommodation provides. So this bill will protect children. It will go towards protecting and promoting their opportunity to be raised and nurtured by parents with reasonable access to safe, secure accommodation and employment that is not interrupted by discrimination on the basis of circumstances those children do not deserve to be in.

As a government, as a parliament, we cannot directly legislate domestic violence away. Eliminating the domestic violence and abuse problem in our culture will require, I think, at the very minimum, a total and permanent shift away from the thinking and the values that have created it, and indeed have embedded it. Changing that thinking, that culture, may take quite some time. It may be generational. But I can tell you one thing: it will certainly take a whole-of-society effort to do it.

What we as a government can more readily and more immediately control is how we in our institutions respond to the challenges, if you like, that our community and the individuals in our community face. The provisions of this bill are useful in that very immediate and frankly quite practical way.

Bills like this will also help do the work of shaping and changing culture over time. Acting to remove the ability of employers, of lessors and of others to discriminate against a victim of domestic violence will help remove the stigma and will normalise empathy towards victims. It will prevent people from regarding victims of domestic violence and abuse as anything other than what they are: people who need and deserve every amount of support that they can access.

What will resolve our state's domestic violence problem, if you like—ultimately, I think what will bring about the cultural change that we need—will be the combined efforts of our actions, ours and future governments here, NGOs, activists and individual families, who will raise each generation of children to be more aware than the last one of violence, abuse and coercive control, and to make clear that those are unacceptable.

Giving further structure to the way in which our laws and in which our authorities can address the problem over time and changing the way their institutions and our community treat domestic violence victims is what we, as a government, can do now with this bill. It is ongoing work. It began long ago. The road ahead is long and every step forward matters. This bill will help with that journey, so I support it.

The Hon. R.P. WORTLEY (16:15): I rise to speak in favour of the bill. The bill amends the Equal Opportunity Act 1984 to add domestic abuse as a new protected attribute against discrimination. The bill progresses a key election commitment made by the government as part of policies on women's safety, equality and wellbeing.

The Attorney-General's office has worked closely with the Minister for Women and the Prevention of Domestic and Family Violence and the Commissioner for Equal Opportunity in developing the bill. Over 20 stakeholders were invited to comment on the bill in the consultation process.

The bill proposes to make it unlawful to treat someone unfavourably because they or their relatives or associate has been or is being subjected to domestic violence. The bill provides protections to prevent perpetrators of violence from disingenuously claiming to be a victim under this proposed legislation, such as the requirement of evidence and that the commissioner has the power to not review claims that lack evidence or seem disingenuous.

The proposed legislation also will not prohibit employers from taking reasonable action in relation to an employee underperforming who has been or is experiencing domestic violence if it is in accordance with fair and reasonable policies that apply equally to any underperforming employee. The bill will prohibit discrimination in all areas of public life covered by the Equal Opportunity Act, being employment or engagement in work, including unpaid work, the provision of education, decisions of associations and qualifying bodies, and the provision of land, goods, services and accommodation.

The bill will prohibit scenarios such as criticising or otherwise treating an employee poorly because they took time off on domestic violence leave, and refusing to rent a property to someone because they are protected under an intervention order.

Specific aspects of the bill: how is this defined? Discrimination is defined in the bill as to discriminate on the grounds of a person being or having been subjected to domestic abuse: for instance, treating somebody differently to everyone else based on that attribute. Domestic abuse is defined as having the same meaning as under the intervention orders legislation. This is a broad and progressive definition encompassing physical, emotional and financial abuse, as well as coercive controlling behaviours.

What is the characterisation: for instance, do you need an intervention order? The answer is that discrimination against anyone subject to domestic violence abuse will be prohibited, regardless of whether they have an intervention order in place. However, if an intervention order is present this may be relevant evidence in the circumstances. Evidence might include an intervention order, medical records or evidence of seeking or obtaining assistance from a charitable organisation.

Does someone have to be convicted of domestic violence for this to apply? No, the legislation does not require the perpetrator of the abuse to have been convicted of any offence. The bill intentionally provides a broad definition of what constitutes sufficient evidence of abuse; for instance, medical records, evidence of seeking assistance, etc. How wide does this go regarding family members, etc.? Domestic abuse is defined in the same way as under the intervention orders legislation, so it covers abuse in a broad range of relationships including spouses, intimate partners, family members and carers.

As well as direct discrimination, the bill also prohibits what is known as indirect discrimination. Indirect discrimination is found to occur when a general requirement is imposed that persons with a protected attribute—in this case, subjection to the domestic abuse—cannot comply with or will find it more difficult to comply with.

This might arise if a prospective landlord requires applicants to provide evidence of a recent rental history. The requirement is imposed on all applicants; however, a domestic violence victim may be unable to comply because they have been residing in domestic violence crisis accommodation or have an unstable rental history with many short-term tenancies. Indirect discrimination would be unlawful if the requirement is not reasonable in the circumstances of the case.

This is a very important piece of legislation. This is for the protection of people who are subjected to cruel or any sort of discrimination that would have an impact on their lives. I support this legislation and I call on other members to support this legislation.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:21): I wish to thank all members who have made a contribution on this important piece of legislation. There were a number of questions asked during the second reading contribution and a number of questions that have been asked during briefings that have been held on this bill and I will outline the answers to some of those questions now. Also, I understand that during the committee stage there may be further or better particulars that are sought by members on answers given now or other matters that they wish to raise.

There was a question in relation to the budget and how that would be accommodated. I can inform the chamber that there has been regular communication with the commissioner in the development of this bill, specifically about resourcing. The commissioner has assured my office that she will monitor any incoming work as a result of these changes and let us know if resourcing becomes an issue. There were questions raised during briefings about the only other jurisdiction that has this in place and what the extra amount of complaints had been in relation to this attribute for discrimination.

I can inform the chamber that complaints that include the ground of domestic and family violence in the ACT, where it already operates, in 2018-19 were four, in 2019-20 were four, in 2020-21 were nine, and in 2021-22 were seven. I note that these are complaints, so these are not necessarily fully adjudicated investigated outcomes, but the Equal Opportunity Commissioner has said she will make sure that they monitor the level of complaints that come in in South Australia after passing this bill and therefore any changes in workload that may be required.

Both the Hon. Connie Bonaros and the Hon. Robert Simms talked about the definition of 'services' and how that applies in relation to government departments and how that interacts with the provision in this bill. Would police or child protection be covered under the current definition of 'services' and what implication does this have in regard to the definition of domestic abuse? I can inform the chamber that my advice is that the scope of services is already considered under the Equal Opportunity Act with regard to each of the 13 existing protected characteristics of discrimination.

The Equal Opportunity Act does not prohibit all discrimination. A complainant must prove that they were discriminated against in a particular aspect of public life and one such area is the provision of goods and services. A service to which the Equal Opportunity Act applies is defined in section 5 of the Equal Opportunity Act as being one of a number of those listed, including under subsection (j) 'services provided by a Government department, instrumentality or agency or a council'.

Accordingly, any government department, instrumentality or agency will be prohibited from discriminating based on a protected attribute when performing any function that can be constructed as a service to the person claiming discrimination. Most government bodies will be covered by the Equal Opportunity Act in relation to any services that they provide; however, whether a particular function is a service to an individual depends on the nature of that function. Not all functions of government departments, instrumentalities and agencies are services.

'Services' is not defined in the Equal Opportunity Act and has been interpreted by tribunals in this state. Importantly, if 'services' is defined or altered by statute it would affect all attributes covered under the Equal Opportunity Act not just the new attribute which this bill seeks to cover. There is extensive case law in South Australia that has considered whether government department functions are considered services for the purposes of the Equal Opportunity Act, and I think that has been canvassed in secondary contributions of others. For example, in Patrick v State of South Australia the tribunal stated that:

While SAPOL provides services to the community, it cannot be said that SAPOL provides a service to each individual person who is arrested, charged and held in custody. 'Service' is not to be confused with a duty that may arise out of the police function to uphold the law.

It could not be said that SAPOL were providing a service to Patrick when they arrested, charged and held her in custody.

On that basis, it is the government's considered view that at this time the interpretation of whether government functions would be considered a service for this purpose should remain a matter of interpretation by the tribunal. Having said that, I commend the bill to the chamber and look forward to further discussion during the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.A. SIMMS: Just to put on the public record that the Attorney-General has answered a number of the questions that we were intending to ask, so therefore I will not be raising them during the committee stage. The only one that I do not believe the Attorney-General touched on, and I am sure he will correct me if I missed it, was around consultation. I am wondering if the Attorney could advise which organisations were consulted in developing this bill, and in particular the involvement of people with lived experience in terms of developing the responses outlined in the bill?

The Hon. K.J. MAHER: I am advised that there were in the order of 14 different organisations that were consulted in relation to this bill, including organisations that have experience with and certainly represent people with lived experience of family and domestic violence.

The Hon. C. BONAROS: Just in relation to the definition of 'services': the only other point I would raise and ask the Attorney to note is in those issues that I covered during my second reading. We talked about services versus duties and so forth and the case law that exists. One of the other issues which I would ask the Attorney to note, and to perhaps comment on, is if police and child protection work was to be deemed a service as opposed to a duty, noting the case law that has already been referred to, how would that work in terms of—the point is that it is quite challenging for those agencies to deal with because of the broad definition that applies to domestic abuse.

This ties back to the definition of domestic abuse, which picks up children, for instance, who witness domestic violence at home or elsewhere, as well as people who directly experience domestic violence. I suppose the point I am trying to make and ask the Attorney to clarify is that the issue raised with us by experts is that this will be very tricky because you are going to have, for instance, potentially, child protection, housing, if the parent is the perpetrator, but also involved in accessing a service. You are going to have crossover, effectively.

You could have child protection involved, you could have housing involved, you could have a parent being the perpetrator, but you could also have them accessing a service. That has been raised with us as a pretty big deal. In fact, the words are that, therefore, it is a pretty big deal by experts who have looked at this.

The flipside to that is that, if they are simply not covered, which would be unfortunate, then we would have the situation where we are discriminating on the grounds of domestic abuse and, given what the Attorney said, any other provisions of the bill, but in this instance we are discriminating on the grounds of domestic abuse, particularly when those agencies involved critical first response interfaces, especially for so many woman, and our most vulnerable group of women, to discrimination on the grounds of domestic violence.

I am not sure what response the Attorney can give those who are eagerly awaiting the outcome of this in terms of those definitions. I appreciate what he said about leaving it to case law, but I would ask him to note that and, if there are any comments he can make, please provide those.

The Hon. K.J. MAHER: I thank the honourable member for her question—it was mostly a comment rather than a question, but as much as I can answer it I am advised that it is necessarily nuanced case law in relation to this area. In the development of this nuanced case law, it necessarily takes into account what parliament's intention is, and that is to protect those who are victims of and experiencing family and domestic violence.

If there is an area where it becomes apparent that the case law is having difficulty in properly giving effect to the intention of parliament, we are open to coming back and looking to see whether there is any more work we need to do, but at this stage it is our considered view, balancing everything up, that it is best left that nuanced case law can develop. If there are problems, and what we intend this to do is not being effected, we are certainly open to coming back and making sure that any of that nuance that might need steering we do as a parliament.

The Hon. C. BONAROS: That might provide those stakeholders and experts some level of confidence, because the next question is: if we expect this to go the way we think, the question for the government and for all of us will be why those agencies are able to continue to discriminate under the changes on the grounds of domestic abuse, which would be counterintuitive to the objectives of the bill before us. So I would ask the Attorney to take that into account in terms of any future changes in case law that are required in this area.

Just in terms of resourcing, one of the issues we have heard is that we have been provided with assurances—and certainly I have had the same response given to me by the commissioner—that 5.2 FTE staff are enough at this point in time to cover off on the statutory functions, and there has been quite a bit of commentary, I would say, among stakeholders about the adequacy or not of that.

I appreciate the number of complaints is quite low, and the Attorney referred to those, but I think one of the other questions I would have for the Attorney on that front is that it is not just complaints that we are talking about, it is also the education and training around this. Certainly, the extent to which survivors feel safe about reporting and disclosing domestic violence and abuse has a lot to do with how much they know about what is available out there.

It will be the commission's job, I am assuming, to ensure that that appropriate education and training takes place, but you could very well end up in a situation where you have the groups of women who are at the highest risk—Aboriginal women, women with disabilities, women living in regional and remote areas and women experiencing socio-economic stresses—who are not aware of the changes or are not told how to activate their rights under this legislation.

So what education and training campaign is the commission and the government anticipating to ensure that those people who need this the most—the most vulnerable cohorts in our community—are actually aware that these rights now exist for them?

The Hon. K.J. MAHER: I thank the honourable member for her question. It is a point well made. It is not just from the ACT experience as the figures outlined that for each of the last four reporting years there have been single-digit complaints. I do not have figures on what happened as a result of those complaints. They are not huge numbers in the ACT. You do not know exactly how that will translate to South Australia, but it is of course the education component which is important as well.

I know that the commission does a great deal of education outreach work. The We're Equal campaign recently is a fine example of that. I am confident the commission will incorporate this into both the general work they do in terms of discrimination and all those protected areas but also specific work on this as a, should this bill pass, new part of the equal opportunity protections. Certainly, if there are further resources needed, that is something that in my experience in the last year the commission has no hesitation in raising with the government about what further is needed.

But it is not just the work of the commission in relation to these. There is the working women's legal centre and a whole lot of other very important organisations—the ALRM, the Legal Services Commission, a whole lot of areas—that provide information and education, and I will make sure we as a government write to all the organisations we are aware of that provide information and education about the rights of people, particularly women and children, who experience domestic and family violence to make sure that those other organisations are aware of the changes that we have made in the education outreach that they do.

The Hon. C. BONAROS: Thank you, and I am pleased the Attorney raised those other groups, because they were next on my list. Obviously, they play a critical role in this area. I think there have been some welcome investments in them recently, but certainly a lack of adequate resourcing is one of the issues that is consistently raised, particularly in relation to the Women's Legal Service. I am wondering if the Attorney can just confirm: at the outset I mentioned that there is an element of that education and training that needs to provide a level of comfort to victim survivors feeling safe about reporting.

I will use the legal profession as an example. The commissioner already has jurisdiction over complaints made by that profession and, if you look at the statistics there, the number of complaints made are abysmally low and that is because there is a reluctance by people working in the profession to report these things to the Equal Opportunity Commissioner.

We do not want the same playing out here on such a critical issue where we are simply not having people report, so I would ask that the Attorney keep in mind that there be the level of confidence that victim survivors require to feel safe about reporting and disclosing abuse to the bodies that are covered in this legislation built into that education and training program.

The Hon. K.J. MAHER: I thank the honourable member and I can assure her that we will take that into consideration with the organisations that, as the honourable member said, in recent times I have been very pleased have had a welcome injection of funds. Some of the organisations we have mentioned I have crossed paths with in places like Coober Pedy doing remote outreach work. We certainly will take that into account.

Clause passed.

Remaining clauses (2 to 15) and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:41): I move:

That this bill be now read a third time.

Bill read a third time and passed.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT