Equal Opportunity (Parliament) Amendment Bill

Second Reading

I am pleased today to introduce the Equal Opportunity (Parliament) Amendment Bill 2020, and I commend in opening the groundbreaking work of the late Hon. David Tonkin, who introduced the first equal opportunity law in Australia, in South Australia, after he became the member for Bragg in 1970. Whilst there was a government change shortly after that time, I commend him for that groundbreaking work, and indeed acknowledge the Dunstan government, which came into power, agreeing to conclude that so that South Australia would be at the lead of equal opportunity law.

In 2020 we are a long way down the track—it is 50 years since the development of equal opportunity law in this state and later across the country. We are again here to provide amendment to the Equal Opportunity Act 1984 to address a contemporary matter, to address a matter which has been left unattended. As with so many things there is an expectation in the 21st century that we do contemporise and we do acknowledge where there is inadequate protection or need for reform, and that we are prepared act on it.

I am very proud to be part of a Liberal Marshall government that has taken up the initiative here to do so, and it comes after nearly 20 years of being here in this parliament where I have observed the direct interaction between members of parliament—some of their own political party and some with others—and matters surrounding sexual harassment, which has a very specific area of resolution opportunity through the Equal Opportunity Act which they do not have access to and which many people in the community have access to, and that is a confidential process of mediated outcome with transfer to what was the equal opportunity tribunal but which is now the South Australian Civil and Administrative Tribunal.

I just give that background because under this government we are prepared to act and to recognise the importance of acknowledging the limitation that was on the legislation in respect of protections for members of parliament against sexual harassment by other members of parliament. Before outlining the importance of this legislation and how it will operate, may I also identify that the current Equal Opportunity Act application does not also apply to judges and it does not apply to elected council members of our local council entities.

I indicate to the parliament that this bill does not purport to operate in relation to disputes between judges or between elected council members. However, I do want to say to the house that, in the consultation on this bill, I contacted back in February the Chief Justice of the Supreme Court of South Australia as the head of the courts council to inquire as to whether he felt the need for judge-to-judge conduct, or misconduct if it were to occur, to be incorporated. He reminded me that, in South Australia, the conduct of judges is dealt with by the Judicial Conduct Commissioner.

Members might recall that under that legislation the current Judicial Conduct Commissioner in South Australia is Bruce Lander QC, who is probably more well known in his role as the commissioner in respect of the Independent Commission Against Corruption. They have access to and are able to have matters referred there by complainants. He did indicate and confirm in writing earlier this month that he has appointed two judges of the Supreme Court to have a closer look at that legislation to see whether it might be something that he would want to pursue. To date, he has not come back to me in relation to that, but I am comforted by the fact there is a process in place for judge-to-judge conduct or misconduct. I again remind members that if you are an employee, though, in a court you have the same protections as other workplaces in relation to any conduct that may come from a judge.

The second area is in relation to local government, by way of identifying the exclusion of them from this bill. Most members probably are aware, from consideration in their own electorates, that the Minister for Transport, Infrastructure and Local Government and Minister for Planning has undertaken a very comprehensive review in relation to local government reform. In that, as members may again be aware from consultation within their own electorates and, no doubt, conversations they have had with elected representatives and/or mayors and CEs of councils, questions of code of conduct and how that might be implemented with any reforms is a matter under consideration in that local government reform.

Bullying and harassment are within that, and it is still a matter which of course is under consideration and is being developed. However, I am confident that that is going through its own process and therefore I have not sought to bring into this bill elected local government persons and any conduct or misconduct in this area of sexual harassment. Having excluded those, the act promotes equality between the citizens of the state and seeks to prevent certain kinds of discrimination based on race, sex, disability, age, or various other grounds.

The act empowers the Commissioner for Equal Opportunity (hereafter referred to as the commissioner) to undertake a range of functions, including assisting people to resolve complaints of discrimination, sexual harassment or victimisation. At present, it is unlawful under section 87(6c) of the act for a member of the parliament to subject to sexual harassment a member of his or her staff, a member of the staff of another member of parliament, an officer or a member of the staff of the parliament, or any other person who in the course of employment performs duties at Parliament House.

The subsection does not currently provide that it is unlawful for a member of parliament to subject to sexual harassment another member of parliament. In the government's view, section 87(6c) no longer reflects community standards around sexual harassment in the workplace and the expected conduct of members of parliament as leaders in the community. The bill seeks to address this imbalance by inserting new paragraph (ab) into subsection (6c) to make it clear that sexual harassment between members of parliament is also unlawful under the act.

Where there is a complaint of sexual harassment by a member of parliament the bill does not change the current position in section 93AA that it is a matter for the Speaker or the President to determine whether or not dealing with the complaint could impinge on parliamentary privilege. Section 93AA includes:

provisions for the appropriate authority to investigate and deal with the matter as the authority thinks fit if it is of the opinion that dealing with the complaint under the act could impinge on judicial independence or parliamentary privilege (for the purpose of today's bill that relates to parliamentary privilege);

provisions for the appropriate authority to request that the commissioner conciliate a complaint;

a requirement that the appropriate authority must notify the commissioner as to the manner in which the complaint has been dealt with by the authority;

provision for the commissioner, when unsuccessful in conciliating a complaint, to make recommendations to the appropriate authority relating to the resolution of the complaint; and

provision for the appropriate authority to have the same powers to investigate a matter as the commissioner has under section 94.

Finally, the bill seeks to amend section 93 of the act so that the commissioner may postpone any investigation, conciliation or other action in relation to a complaint under the act if the commissioner becomes aware that a criminal investigation is being conducted or a person has been or is to be charged with a criminal offence in relation to a matter that is the subject of a complaint.

Members would be aware, for those who are familiar with the Coroner's Act, for example, that obviously he has a very important role to determine the cause of death in relation to persons who die in the state of South Australia, and has various processes to undertake that work and some mandated obligations to investigate certain types of death. But he too is obliged not to pursue his investigations—his or her, although it happens to be a 'he' at the moment; 'their' investigations, I should say—into a coronial death if there are criminal matters under investigation or where a person may be charged. It is not uncommon where other investigative bodies delay or at least suspend their own investigations pending the criminal matter being pursued and completed.

With that, I commend the bill to members. I seek leave to have the explanation of clauses, which is quite brief, inserted in Hansard without my reading it. It is a very short bill.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Equal Opportunity Act 1984

3—Amendment of section 87—Sexual harassment

This clause amends section 87 to make it unlawful for a member of Parliament to sexually harass another member of Parliament.

4—Amendment of section 93—Making of complaints

This clause amends section 93 to ensure that any investigation, conciliation or other action by the Commissioner in relation to a complaint is postponed if a police investigation in relation to the conduct is commenced or if charges are laid in respect of the conduct.

5—Amendment of section 93AA—Manner of dealing with complaints of sexual harassment by judicial officers and members of Parliament

This clause makes a minor technical amendment to section 93AA.

Debate adjourned on motion of Mr Picton.