ANTI-DISCRIMINATION (AMENDMENT) BILL
Mr HARTCHER (Gosford - Minister for the Environment) [4.3]: I move:
The Anti-Discrimination (Amendment) Bill constitutes the first significant overhaul of the provisions of the Anti-Discrimination Act since its introduction in 1987. The bill is the result of extensive consultation with a wide cross-section of disability, industry, community, religious and government organisations, as well as individuals, both prior to and following the release of the Government's draft Anti-Discrimination (Amendment) Bill 1993 in June 1993. The New South Wales Government has a proud record in the area of human rights and the provisions of the bill currently before the House further the human rights agenda in this State by ensuring that the remedies, procedures and philosophy of the original Act are brought up to date and are responsive to the needs of today's communities.
Although the primary focus of the bill is upon disability discrimination, the amendments in the bill are divided into five distinct categories and I propose to deal with the major features of each schedule to the bill in turn. Schedule 1 to the bill contains amendments relating to the definition of race contained in the Anti-Discrimination Act. Section 4 of the Anti-Discrimination Act will be amended so that the existing definition of race will include the concepts of descent and ethno-religious origin. The first amendment will confirm that persons who experience discrimination on the basis of descent may utilise the racial discrimination and racial vilification provisions of the Act. The amendment would operate, for example, to provide a remedy if a Malaysian person of Chinese descent is discriminated against on the basis of his or her Chinese descent only.
The effect of the latter amendment is to clarify that ethno-religious groups, such as Jews, Muslims and Sikhs, have access to the racial vilification and discrimination provisions of the Act. At present it is not clear whether such groups are covered by the racial vilification and discrimination provisions, although this would appear to be the position at common law. The amendment will make it clear that vilification or discrimination against a person on the basis of ethno-religious origin falls within the protections against racial discrimination and racial vilification currently contained in the Act. The amendment is in line with the existing judicial authority from both New South Wales and overseas, which indicates that ethno-religious background is included in the legal concept of race.
I should make it clear to honourable members that this amendment is not intended in any way to interfere with religious freedoms, and that extensions of the Anti-Discrimination Act to ethno-religious groups will not extend to discrimination on the ground of religion. At present, section 56 of the Act specifically exempts religious practices in accordance with the Government's policy that anti-discrimination laws should not interfere with fundamental religious freedoms. The proposed amendments to the definition of race will not allow members of ethno-religious groups, such as Jews, Muslims and Sikhs, to lodge complaints in respect of discrimination on the basis of their religion, but will protect such groups from discrimination based on the membership of a group which shares an historical identity in terms of the racial, national or ethnic origin.
Accordingly, the amendment will not prevent religious schools, for example, from employing suitable staff on the basis of their membership of a particular religion. Section 20D of the principal Act will also be amended to increase the individual penalty for the offence of serious racial vilification from 10 to 50 penalty units, to indicate the seriousness with which this Government views serious acts inciting
racial hatred and violence. Schedule 2 to the bill creates a new offence and ground of complaint in relation to vilification of persons living with HIV and AIDS. People living with AIDS are subject to substantial disadvantages in our society. Such people regularly experience discrimination in public life, and are often subjected to vilification, and indeed violence, from others which stems from fear and ignorance concerning HIV-AIDS.
The Government has, from the outset, recognised that the suffering of people living with HIV-AIDS is a matter for the whole community and the amendments contained in schedule 2 to the bill provide protection for people with HIV-AIDS from attack in the community. The amendments are based on the existing racial vilification provisions in the Act. Accordingly, the vilification of people living with HIV-AIDS must involve a public act, as defined in new section 49ZXA. Proposed section 49ZXB provides people who are subject to vilification on the ground of their HIV-AIDS status or because they are wrongly presumed to be HIV positive with a ground of complaint to the Anti-Discrimination Board. This will enable the Anti-Discrimination Board to apply its extensive conciliation processes in the resolution of HIV-AIDS vilification complaints in the same way that it attempts to resolve racial vilification complaints. The provision is intended to protect those with asymptomatic HIV, as well as those who have contracted AIDS. The proposed section also provides clear exceptions in relation to fair reporting, acts subject to absolute privilege in defamation proceedings, and public acts done reasonably and in good faith.
I should note that this last category of exceptions specifically provides that, among other things, public acts done reasonably and in good faith for the purposes of religious discussion or instruction are not subject to the HIV-AIDS vilification provisions. This exception reflects the Government's stated philosophy that religious bodies and schools should be free to propagate religion in accordance with religious doctrines without legislative interference. Proposed section 49ZXC creates an offence of serious HIV-AIDS vilification, which is based on the existing offence of serious racial vilification. This offence, which carries a maximum penalty of $5,000 or 6 months' imprisonment for individuals and $10,000 for corporations, is only intended to apply in the most serious cases of incitement or threatened violence, and accordingly prosecutions may only proceed with the consent of the Attorney General.
Schedule 3 to the bill contains a number of amendments to the Anti-Discrimination Act relating to disability. The primary purpose of these amendments is to merge the existing grounds of physical and intellectual impairment currently contained in the Act into a single ground of complaint in relation to disability. The present approach to impairment in the Act means that conditions which originate from the brain such as stuttering, epilepsy, cerebral palsy and multiple sclerosis are characterised as intellectual impairments. People suffering from those conditions are understandably offended by this label and have questioned the Act's credibility. It is proposed to create a single definition of disability so that people do not have to be identified as being either physically or intellectually impaired. In the course of merging the two grounds of complaint, the Government has taken the opportunity to redraft the provisions of the Act to achieve, whenever possible, consistency with the provisions of the Commonwealth Disability Discrimination Act 1992, which came into effect on 1 March 1993. Other provisions contained in schedule 3 to the bill are identical to existing provisions in the Anti-Discrimination Act relating to physical and intellectual impairment, apart from minor changes to reflect the adoption of the new term "disability" and to ensure gender neutral language.
I will deal in turn with each of those provisions in schedule 3 which constitute substantive changes to the Anti-Discrimination Act. Section 4 of the Act is to be amended to provide a wide-ranging definition of "disability", which is based upon that contained in the Commonwealth Disability Discrimination Act. The scope of the definition is such that it will confirm the existing application of the Anti-Discrimination Act to protect persons living with asymptomatic HIV-AIDS, as well as persons suffering from other asymptomatic conditions, such as asymptomatic hepatitis B, and those with other conditions which manifest themselves in disease or illness. The definition is also wide enough to cover mental illness, persons with learning difficulties and other forms of physical and intellectual disability protected by the existing provisions of the Act.
In order to provide the fullest possible protection for persons from disability discrimination, proposed section 49A specifies that the term "disability" includes a past or presumed disability, or one that it is thought a person will have in the future. Neither the existing definition of physical impairment nor that of intellectual impairment covers a disability which existed in the past but which has now ceased to exist. Many people are discriminated against, especially in employment, because of previous disabilities such as heart conditions, cancer or mental illness from which they have fully recovered. The definition of disability is to be amended to also include a disability which a person had, even if he or she did not have it at the time of the alleged discriminatory act. Similarly, many people are treated less favourably because they are wrongly presumed or perceived to have a disability. The provisions of new section 49A will ensure that persons who are discriminated against because they are wrongly perceived to have a disability can lodge a complaint with the Anti-Discrimination Board in respect of such discrimination. The new section also provides protection from discrimination against a person on the basis of a disability they may have in the future. This amendment will protect persons who are discriminated against on the basis of their family medical history, for example.
Proposed section 49B, which sets out behaviour that constitutes discrimination on the ground of disability, is substantially the same as the equivalent
provisions currently in the Act in relation to physical and intellectual impairment. Honourable members should note, however, that the section clarifies that persons who are accompanied by a guide dog because of a disability relating to vision, hearing or mobility will be protected by the Act. At present, the Anti-Discrimination Act only protects persons from discrimination on the basis that they are accompanied by a guide dog where the person suffers from a visual impairment. Proposed sections 49C to 49O of the bill deal with the particular areas of public life in which disability discrimination is unlawful, that is, employment, education, provision of goods and services, accommodation and access to registered clubs.
These areas reflect the areas of discrimination which are currently unlawful under the Anti-Discrimination Act in relation to the existing grounds of physical and intellectual impairment. Although I do not propose to comment on these provisions in detail, there are some substantive changes to relevant defences contained in the bill. Each relevant area of disability discrimination contains a new defence, that is, that employment, education, goods and services, accommodation or access to registered clubs could not be provided to a person without unjustifiable hardship. The term "unjustifiable hardship" is defined in proposed section 49C of the bill to include, in the circumstances of the particular case, factors such as financial circumstances and the cost of making accommodations to ensure that a person with a disability is not discriminated against.
For example, an employer who refuses employment to a person on the ground of disability would need to establish, to make out the defence, that the applicant was unable to carry out the inherent requirements of the job, or that, in order to carry out these requirements, the employer would need to make accommodations in the workplace that would impose an unjustifiable financial burden or other unjustifiable hardship. In other areas, such as the provision of education or accommodation, the new defence would operate so that a person with a disability may only be refused access if the person would require special services or facilities that would impose an unjustifiable hardship, such as an unreasonable financial burden, on the educational authority or person providing accommodation.
An additional exception is provided in proposed sections 49L, 49N and 49O which enables educational authorities, charitable or other bodies providing accommodation or registered clubs to provide their services only to persons who have a particular disability. These exceptions will enable organisations to provide specialist services to meet the needs of people with particular disabilities without infringing the provisions of the Anti-Discrimination Act. Division 4 of schedule 3 provides for three general exceptions to the disability provisions, each of which is based upon exceptions contained in the Commonwealth Disability Discrimination Act. First, proposed section 49P of the bill provides for a specific public health defence. The defence will ensure that infection control procedures that are objectively required for the protection of public health cannot give rise to complaints of discrimination on the ground of disability. The Commonwealth Disability Discrimination Act 1992 includes a provision to this effect.
The defence provides that it is not unlawful for a person to discriminate against another person on the ground of the other person's disability if the person's disability is an infectious disease or if the discrimination is reasonably necessary to protect public health. Second, proposed section 49Q combines the existing superannuation and insurance exemptions in the Act in relation to physical and intellectual impairment. The new provision will ensure that discrimination provisions in superannuation and insurance agreements are exempted only if they are reasonable and can be justified by actuarial or statistical data or, where no such data exists, if they are reasonable in all the circumstances. Similar changes have been made to the superannuation exemptions in sections 36 and 49 of the Act.
This approach is consistent with the existing approach to insurance exemptions in the Act and the approach taken in Commonwealth discrimination legislation. Third, section 49R provides a new exemption to disability discrimination in the area of sport. At present the Act provides an exemption in the areas of race, sex and physical and intellectual impairment in relation to sport. The exemptions are primarily intended to preserve the principles of fair sporting competition. As presently drafted, the exemption has the effect of excluding people with disabilities from participation in competitive sport, even if they are capable of playing the particular sport.
In order to overcome this difficulty, the Act is to be amended to adopt the exceptions in the Commonwealth Disability Discrimination Act 1992, which exempts discrimination in the area of sport, when the person is not reasonably capable of performing the actions reasonably required in relation to the sporting activity; the persons who participate or are to participate in the sporting activities are selected by a method which is reasonable on the basis of their skills and abilities relevant to the sporting activity and relative to each other; or a sporting activity is conducted only for persons who have a particular disability and the firstmentioned person does not have that disability. This approach is more specific and addresses the problem of the existing exemption without detracting from the protection of the principle of fair sporting competition.
Schedule 4 to the bill contains a number of miscellaneous amendments to the Anti-Discrimination Act. Some of the amendments included in schedule 4 constitute significant policy changes, while other amendments merely reproduce or make minor technical changes to existing provisions. For the benefit of honourable members, I will briefly deal with each of the significant changes to the Act
contained in schedule 4. First, the terminology of the Act is to be changed to replace references to, and the definition of, trade unions with the term "industrial organisation" to accord with the wording contained in the Industrial Relations Act 1991. Other changes to the definition section of the Act are consequential or clarifying in nature, apart from the insertion of definitions of the terms "associate" and "relative" in section 4.
The purpose of the new definitions is to extend the coverage of the Anti-Discrimination Act to people who experience discrimination because of their relationship or association with another person who is a member of a group protected by one of the existing grounds of the Act. The new definitions will allow a relative or associate of a person of any particular race, sex or marital status, or relatives or associates of persons with a disability or of persons who are homosexual, to also have the standing to lodge a complaint. This is an important extension as the Anti-Discrimination Board has, for example, received complaints from individuals who are associated with or accompanying people of particular races and who are discriminated against in the provision of education, goods and services, and accommodation.
The proposed amendments were also recommended by the Anti-Discrimination Board in its 1992 report on HIV-AIDS discrimination entitled "The Other Epidemic". It is also proposed to insert a new section 4A in the Act, which will clarify circumstances in which there may be more than one reason for a discriminatory act. The Anti-Discrimination Act requires that the relevant act of discrimination occur on the ground of a person's status, such as sex or race. In order for an unlawful act of discrimination to have occurred, the ground or characteristic in question, that is, the complainant's sex, race, et cetera, must be the cause of the decision to commit the discriminatory act. An aggrieved person has to be able to show a relationship of cause and effect between the relevant characteristic and the action of the person who commits a discriminatory act.
This proposal seeks to extend the definition of "on the ground of" to include discriminatory acts done for more than one reason. Presently unlawful discrimination under the Act is described as being on the ground of either race, sex, marital status, physical impairment, intellectual impairment or homosexuality. The proposed amendment will allow the expression "on the ground of" to include a reference to the doing of an act for two or more reasons, provided that the reasons for doing the act or acts include a discriminatory reason or ground. The new section 4A provides that when there is more than one reason for the act complained of, and the dominant ground or reason is unlawful discrimination, then the Anti-Discrimination Act will apply.
A minor change has been made to section 7 of the Act, which deals with discrimination on the ground of race, to take account of the protection to be given to relatives or associates, which I have already mentioned. Similar amendments are also made to sections 24, 39, 49B and 49ZG, which deal with discrimination on the ground of sex, marital status, disability and homosexuality respectively. The Act is also to be amended to extend its coverage to protect local government members from discrimination which they may experience in the course of their official duties. At present the Act does not cover honorary participation of councillors in local government as an area of unlawful discrimination. The unpaid work of councillors does not fall within the areas of employment, provision of goods and services or any other areas provided for by the Act.
The Anti-Discrimination Board has received complaints of sex and race discrimination from councillors that it has been unable to deal with. The new sections 10B, 27B, 42B, 49H and 49ZKA will make unlawful discriminatory conduct by fellow councillors on the basis of a councillor's race, sex, marital status, disability or homosexuality. The amendments will not provide for complaints to be made in relation to discrimination on the ground of political conviction. The bill also contains an amendment which will replace section 49ZYI of the Act, which was inserted by the Anti-Discrimination (Age Discrimination) Amendment Act 1993. The new provisions will simply clarify that the proposed change to section 54(1)(d) to remove the existing award exemption will not affect award provisions concerning junior wage rates. This amendment ensures that junior wage rates will continue to be lawful until the Government proclaims subsection (3) of the new section 49ZYI. This was the situation under the previous provision, which has merely been altered for the sake of clarity.
There is also a number of amendments to increase maximum penalties for various offences under the Act. These amendments will increase penalties to $1,000 in the case of individuals and $5,000 in relation to corporations in relation to existing offences involving discriminatory advertising, section 51; failure to comply with a notice to attend a conference, section 92(2); failure to comply with a direction for an Equal Opportunity Tribunal inquiry to be held, section 101B(5); failure to comply with a non-publication order, section 110A(3); failure to comply with an order of the Equal Opportunity Tribunal, section 116; and obstruction, section 124. Those proposals will bring penalties in the New South Wales legislation into line with similar offence provisions under the Commonwealth Sex Discrimination Act 1984 and the Racial Discrimination Act 1975.
The bill also reworks the existing provisions in the Anti-Discrimination Act in relation to the vicarious liability of employers for the unlawful discriminatory acts of their employees. The existing sections 52 and 53 of the Act aim to impute liability of agents to principals to cover cases of "aiding and abetting". In Leves v. Minister for Education, Justice Matthews suggested that the sections should be redrafted as they have been rendered "virtually nugatory". Section 52 states that it is unlawful if a
person causes, instructs, induces, aids or permits another person to do an act that is unlawful under the Act and provides that both persons will be jointly and severally liable. Section 53 of the Act deems an act by an agent or an employee to be done by the principal and the employer as well, unless specifically not authorised by the principal or the employer.
The problem arises because a literal interpretation of these sections produces a circular situation. An action cannot be unlawful under section 52 of the Act or done in contravention of section 53 of the Act unless it was done by the body or person who, under the Act, is the proper respondent. The amendments to sections 52 and 53 will clarify the vicarious liability provisions by providing that as long as the principal or employer is a person who is subject to the Act, it is not necessary that the employee or agent also fits that description. The existing requirement that the employer must, either expressly or by implication, authorise the unlawful act has been retained in the new provisions.
Section 54 of the Act is to be amended to remove the current exemption relating to discriminatory provisions in industrial agreements. Section 54 of the Act currently exempts industrial agreements from the operations of the Act. At the time the exemption came into force, Parliament required the Anti-Discrimination Board, by virtue of section 121 of the Act, to promptly review all industrial awards for discriminatory provisions. The board's review was published in 1978. From 1987 to 1989 the Women's Directorate of the Department of Industrial Relations and Employment reviewed discriminatory provisions in awards. Recommendations by the Women's Directorate on 300 awards in nine industries have been referred to the relevant parties for action.
It is both illogical and unjust for those workers in New South Wales who are covered by awards and enterprise agreements to be unable to take complaints to the Anti-Discrimination Board in relation to discriminatory provisions which appear in awards and enterprise agreements. The removal of the exemption is governed by clause 7 of the savings and transitional provisions in the bill, which provides a one-year period of grace, within which discriminatory practices in existing awards and agreements will have to be rectified, before the amendment comes into operation.
A minor amendment is to be made to the religious exemptions contained in section 56(d) of the Act so that its coverage is extended to include one-off acts of a body established to propagate religion which conform to religious doctrine. At present, the section applies only to "any . . . practice" of such a body. It seems anomalous that the Act exempts practices in accordance with religious doctrines but does not clearly cover a single act done in accordance with such doctrines. Accordingly, the bill has been amended to provide that section 56 will apply to any "act or practice" of a religious body that is in accordance with a religious doctrine.
A further amendment is to be made to section 59 of the Act that provides an exemption for establishments providing housing accommodation for aged persons. The current section 59 of the Act has unintentionally had the effect of preventing people in aged housing from gaining access to the complaint provisions of the Act. A new aged housing exemption has been created in relation to admission to aged accommodation under the grounds of sex, race or marital status, which is framed in such a way that it does not interfere with the right of residents to complain against discrimination that they experience in aged housing and nursing homes.
The bill also contains amendments to the provisions of sections 87 and 88 of the Act, which deal with complaints by representative organisations. These amendments will allow community and ethnic organisations and other representative bodies with a proper and sufficient interest to lodge complaints on behalf of an aggrieved individual. The aggrieved party must consent to the commencement or conclusion of the proceedings but the proceedings themselves will be conducted by the organisation. At present, section 88(1) of the Act deals with the making of complaints and provides that a person can lodge a complaint on behalf of himself and other persons. It does not allow a person to lodge a complaint on behalf of another if that first person is not affected by the alleged discrimination.
The amendments broadly reflect the principle of a "next friend" acting on behalf of an aggrieved individual, and will include bodies such as community and ethnic organisations. A similar provision already exists for racial vilification complaints and complaints lodged on the ground of intellectual impairment. The amendments will also enable complaints to be made on behalf of a person with a disability when that person, his or her parent or guardian, or any other person who the president of the board considers has a genuine concern for their welfare, consents.
The bill also proposes the introduction of a new section 90A to confirm that the president may decline a complaint. The bill amends section 111 to allow the Equal Opportunity Tribunal to dismiss a complaint if it lacks sufficient interest in the complaint or if the person aggrieved by an alleged discriminatory act withdraws or does not wish to proceed with the complaint. A further amendment to section 96 will allow the definition of respondent to include those parties joined to an inquiry by the Equal Opportunity Tribunal under sections 98 and 100 of the Act.
A new section 126A of the Act is included in the bill to provide a specific mechanism for the approval of special needs programs or activities in relation to sex, marital status, disability or homosexuality. At present the Act is based on the concept of equal opportunity and does not recognise the special needs of particular groups, except in the race provisions. The proposed amendments provide that actions which are prima facie discriminatory under the Act would nevertheless be justified as long as the material purpose is to bring about equality, such as programs
including management skills for particular groups in the community, technical jobs for women and women's and Aboriginal housing co-operatives.
The amendment will enable the Minister administering a special needs program or activity - or in the case of private sector programs or activities, the Minister administering the new section 126A - to certify that the program or activity is exempt from the provisions of the Act. This procedure recognises that positive actions aimed at meeting the special needs of persons protected by the Act should not be regarded as unlawful discrimination and provides the safeguard of ministerial approval to ensure that only appropriate programs and activities are exempted.
I turn to schedule 5 of the bill. I note for the information of honourable members that the schedule contains amendments which redraft the Anti-Discrimination Act in gender neutral language so that it is consistent with all legislation drafted since 1982. In conclusion, I note that the Anti-Discrimination (Amendment) Bill 1993 stands as a significant recognition of the right of all parts of our modern community to live free from discrimination. The bill provides, for the first time in this country, protection to people living with HIV-AIDS from vilification and violence. The bill also substantially increases statutory protections in relation to racial vilification and disability discrimination and makes a number of other important changes. The bill is, in short, a demonstration of the Government's commitment to eliminate discrimination from all areas of public life. I commend the bill to the house.
Debate adjourned on motion by Mr J. H. Murray.
That this bill be now read a second time.