Recommendations for reforms that will advance equal opportunity
6.1. Submissions to the SA Attorney-General
6.1.1. Feedback on proposed Statute Amendments (Legalisation of Same Sex Marriage Consequential Amendments) Bill 2019
On 16 July 2019 the Attorney-General sought comment from the Commissioner on the Statute Amendments (Legalisation of Same Sex Marriage Consequential Amendments) Bill 2019. This bill proposed to update, by removing gendered language from 19 acts of parliament to reflect the federal definition of marriage being gender-neutral as per the passing of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth).
In response, the Commissioner confirmed her support for the amendments proposed. However the Commissioner noted that the proposed amendments to four superannuation- related Acts did not address the requirement in those Acts for ‘cohabitation’. As South Australian legislation continues to evolve to respond to modern community family and relationship arrangements, the Commissioner advised that cohabitation should no longer be a pre-requisite for a spousal relationship. Further, the Commissioner reflected an understanding that the reform Bill was limited in scope, especially regarding Acts that are not assigned to the Attorney-General.
6.1.2. Improving protections against discrimination and vilification in South Australia
On 26 July 2019 the Commissioner wrote to the Attorney-General to provide advice on the current protections, and gaps in protection, available to South Australians under the Act, recommending that Legislative Services work with the Commission to develop a suite of amendments to the Act and that proposed amendments to the Act be subject to public consultation.
This briefing built on a briefing from the previous reporting period (dated 27 May 2019), which outlined the number and nature of complaints lodged with the Commission on the grounds of religious appearance and dress from 2009 to April 2019, and expanded the recommendations in a number of ways. A key recommendation made was to adopt a duel system for categorising acts of vilification, akin to the Queensland system, with ‘vilification’ being captured by the Act, and ‘serious vilification’ (a threat of harm to person or property) remaining a criminal act.
The Commissioner considers the apparent gap in legislative protections for acts of vilification to be of significant concern and of increasing relevancy in the South Australian community. The importance of these issues were once again highlighted later in 2019-20 with reports of increased racial vilification related to the COVID-19 pandemic and the renewed momentum behind the Black Lives Matter movement. Further, the Commission received correspondence on 9 June 2020 from Transcend Australia raising concern about the vilification of transgender and gender diverse children, in offensive material being distributed in the community.
6.1.3. Investigation powers of Equal Opportunity Commissions in Australia
On 29 July 2019 the Commissioner briefed the Attorney-General about the investigation powers of other Commissions across Australia about matters where there is no complaint received from an aggrieved person. This followed a briefing provided to the Attorney-General in the previous reporting period (on 7 June 2019) which outlined weaknesses in the SA Commissioner’s investigation powers under the Act.
Examples of investigation powers of Equal Opportunity Commissioners from the Victorian and Tasmanian jurisdictions were provided, and it was proposed that legislative reform of the SA Act could be considered in line with the Tasmanian model. As the full adoption of the Tasmanian model would require substantial legislative amendment, the Commissioner recommended legislative amendments be limited to the following:
- providing the Commissioner with the power to compel a response from a person or agency
- removing the requirement to seek the Attorney-General’s permission to apply to the Tribunal under s93A(1).
6.1.4. Future operating model of the Equal Opportunity Commission
On 30 July 2019 the Commissioner briefed the Attorney-General about potential operating models of the Commission in light of reduced resource allocation to the Commission in 2019- 20 and 2020-21.
Five options were outlined that aimed to adequately balance providing services required under the Act that meet the needs of the South Australian community, while operating within budget and adequately mitigating risks to the Commission.
6.1.5. Feedback on Married Persons (Separate Legal Status) Bill 2019
On 5 August 2019 the Attorney-General sought the Commissioner’s comment on the Married Persons (Separate Legal Status) Bill 2019. This Bill proposed to create a standalone act that established in gender-neutral terms that married persons are separate legally and equal to non-married persons as concerns their legal capacity, and was aimed at ensuring SA law reflects and is compatible with same-sex marriage.
The Commissioner provided unconditional support for the intent and proposed wording of this Bill.
6.1.6. Update on Chiefs for Gender Equity gender pay gap work
In the lead up to Equal Pay Day on 28 August 2019, at the request of the Attorney-General the Commissioner provided a submission outlining the statistics and causal factors contributing to the gender pay gap nationally, inclusive of South Australian specific factors, and the work being undertaken by the Chiefs for Gender Equity to address the gender pay gap.
A number of case studies were provided from Chiefs’ organisations demonstrating a commitment to making systematic changes in this area, including from Statewide Super, RAA, Eldercare, PwC, WSP and South Australian Police.
6.1.7. Proposed amendments to sexual harassment provisions of the Act
The Commissioner briefed the Attorney-General on 14 January, recommending the Act be amended to make sexual harassment by one MP towards another MP unlawful.
This briefing provided a summary of arguments covering the conduct between two MPs that were submitted by MPs during the parliamentary debate surrounding the Equal Opportunity (Sexual Harassment) Amendment Bill of 1996.
The Commissioner outlined her view that in omitting to cover the conduct between MPs:
- the Act did not reflect current community standards around sexual harassment in the workplace and the expected conduct of MPs as leaders of the community;
- the Act did not take into due consideration the disparity in power that may exist between MPs, and therefore omitted to afford MPs with appropriate obligations and protections regarding sexual harassment; and
- that concerns regarding parliamentary privilege in enacting a provision covering the conduct between two MPs would be overcome by the existence of s.87(6d) (i.e. that s.87(6c) does not apply in relation to anything said or done in the course of parliamentary proceedings) and by s.93AA which requires that a complaint alleging that an MP has acted in contravention of s.87 lodged with the Commissioner for Equal Opportunity must be referred to the Presiding Officer of the relevant house to determine whether dealing with the complaint under the Act could impinge on parliamentary privilege.
The Commissioner recommended that the sexual harassment provisions in the Act be amended to cover sexual harassment between members of Parliament, and that further investigation and consultation be undertaken to inform a decision regarding making sexual harassment between judges and between local government elected council members unlawful under the Act.
6.1.8. Review of Victimisation provisions in PID and ICAC Acts
On 12 May 2020 the Commissioner briefed the Attorney-General regarding reforming the process for complaints of victimisation received by the Commission under the Public Interest Disclosure Act 2018 (SA) (‘the PID Act’) and the Independent Commissioner Against Corruption Act 2012 (SA) (‘the ICAC Act’).
In this submission, the Commissioner expressed concern that the victimisation provisions outlined in, and the processes which result from, the ICAC and PID Acts as currently configured do not operate with optimum efficiency and in a manner that best utilises the expertise of the organisations involved.
The submission outlined issues with the complex and technical nature of considering complaints of victimisation under the PID and ICAC Acts, and that the initial enquiry required – that is, whether the disclosure in question meets the requirements of the scheme under the relevant Act – is outside of the usual day-to-day work of the Commission and may be better placed with ICAC or the Office for Public Integrity who routinely undertake these assessments. It was highlighted, however, that the subsequent steps in the process - assessing whether the alleged victimisation occurred on account of the disclosure and whether the matter is appropriate for conciliation – align well with the usual functions of the Commission.
A key concern outlined was the clear inefficiency created by the process in the initial line of enquiry, whereby the Commission requires a response from a respondent agency regarding the facts of the alleged disclosure and such responses have likely been required and received by another state agency (ICAC/OPI). Further, the submission highlighted that the system as it currently functions appears to be a remnant left over from the Whistleblowers Protection Act 1993 (SA) (as repealed by the Public Interest Disclosure Act 2018 (SA)), despite the ICAC and
OPI having been established since the time that the Whistleblowers Protection Act 1993 was enacted.
The Commissioner outlined two possible changes to how matters of alleged victimisation under the ICAC and PID Acts are dealt with to overcome these concerns, and recommended that the Attorney-General’s Department give the issue further consideration.
6.2. Other submissions
6.2.1. Ministerial correspondence
The Commission took action on three matters raised via Ministerial correspondence, namely:
- The potentially discriminatory impact on people with hearing impairment or deafness of primary health care providers requiring a mobile number in order to process online appointment bookings
- Concerns raised by a constituent about his treatment by a Local Government body with respect to his therapeutic dogs
- The discriminatory nature of the charging system employed by access taxis for people with mobility issues
6.2.2. Letter to the Minister for Education about Continuity of Service (‘break in service’) arrangements for Department of Education Employees
In response to a letter issued by the Commissioner in the previous reporting period, in July 2019 the Commissioner received a response from the Minister for Education, the Hon John Gardner MP, regarding the potentially discriminatory impact of the Department for Education’s ‘break in service’ arrangements on employees (mostly women) with caring responsibilities. In this response the Minister advised that as the Department and the Australian Education Union (AEU) were in enterprise bargaining negotiations, it was inappropriate to respond in full at that time.
In April 2020, the Commissioner wrote again to the Minister, raising concern that no agreement had been reached in the recent enterprise bargaining process to change these provisions. The Minister responded advising that the Department was seeking advice on the issues raised in light of the new Education and Children’s Services Act and Regulations 2020.
The Commissioner subsequently wrote to the AEU outlining the Minister’s response and inviting further information to assist in addressing the issue.
6.2.3. Letter to Minister for Innovation and Skills regarding pathways to employment for mature age jobseekers
In August 2019, the Commissioner wrote to the Minister for Innovation and Skills, the Hon David Pisoni MP, to advise that she had received correspondence from Don’t Overlook Mature Employees (DOME) which raised a number of concerns about the negative impact on mature age jobseekers by the Department for Innovation and Skills’ ’Skilling SA’ program.
The Commissioner noted her concern about the impact on the assistance available to unemployed mature age job seekers in South Australia as a result of reduced funding to DOME and about the policy decision to no longer subsidise a number of Vocational Education and Training qualifications in the absence of a contract for an apprenticeship or traineeship. The Commissioner expressed concern that age discrimination continued to be a barrier to mature age jobseekers gaining employment and contributing to the South Australian economy.
In October 2019, the Commissioner received a response from the Minister, which highlighted the creation of thousands of jobs under the Marshall government and outlined the measures being taken to support jobseekers of all ages, including mature age jobseekers. The Minister noted that in response to the Commissioner’s correspondence he had asked the Department to meet with representatives from DOME to discuss their concerns in more detail.
In March 2020, the Commissioner was advised that the Department for Innovation and Skills would not be extending funding support to DOME for the Workforce Development Project beyond the 2019-20 financial year. The Commissioner wrote directly to the Department, highlighting the concerns previously raised with the Minister and outlining concern about the effect of reducing specialised support services for mature age jobseekers in South Australia.
In response, the Department advised they would be continuing to work with DOME to explore alternative funding opportunities to support mature age workers training and employment outcomes, and that there were a number of other ‘Skilling SA’ projects that supported mature age jobseekers.
6.2.4. Letter to Chief Executive Officer (CEO), Copper Coast Council regarding disability access
In February 2020, the Commissioner wrote to the CEO of the Copper Coast Council regarding a concern raised by a community member about the obstruction of an access ramp on the main street of Kadina by council-owned infrastructure.
The Commissioner advised that on the available facts it appeared arguable that this accessibility issue could come within the provisions the Act covering discrimination on the ground of disability, and that the Council may accordingly be at risk of a complaint being lodged with the Commission.
6.2.5. Response to a request from President of the Legislative Council to investigate the behaviour of an MP
In March 2020, the Commissioner responded to a request from the Hon Terry Stephens MLC, President of the Legislative Council, that she investigate all instances of harassment, victimisation and inappropriate behaviour committed by the Member for Waite, Mr Sam Duluk MP, and inviting recommendations for reforms to facilitate the handling of harassment in the parliamentary workplace.
The Commissioner respectfully declined the request, as while sexual harassment by a Member of Parliament (MP) towards parliamentary employees is prohibited under the Act, the same provisions do not appear to apply where that conduct is directed towards another MP.24 The Commissioner also noted the police investigation into the matter being undertaken at that time.
Additionally, the Commissioner stated that in her view a broader review of the workplace culture in Parliament House could provide opportunity for recommendations as to policies and processes that prevent discrimination and promote inclusiveness in parliament more generally.25 On this basis, and aligned to section 11 of the Act, the Commissioner accepted Mr Stephens’ invitation to make recommendations for reforms to facilitate the handling of harassment in the parliamentary workplace.
6.2.6. Letter to Ombudsman: potential disability discrimination (out of jurisdiction)
In May 2020, the Commissioner wrote to Mr Wayne Lines, Ombudsman SA, regarding a matter which had been lodged with the Commission but fell outside the jurisdiction of the Act, that she felt warranted further consideration.
The Commissioner believed that there were aspects of the matter that might engage the Ombudsman Act 1972 (SA) and so with the permission of the complainants, referred the matter to Mr Lines for his consideration.
6.2.7. Letter to Soroptimist International Murray Bridge regarding offering a tertiary scholarship to women only
In June 2020, the Commissioner responded to an enquiry from Soroptimist International Murray Bridge which sought clarification on the lawfulness under the Act of a tertiary scholarship being offered to females only.
The Commissioner outlined that independent legal advice was advisable regarding the Act’s application to their specific circumstances,26 however provided guidance on the general application of the Act, namely that while discrimination on the basis of a person’s sex may be unlawful under the Act in specific areas of public life, in some circumstances this may be permissible under section 47 of the Act, ‘Measures intended to achieve equality’. The Commissioner also advised the circumstances in which a person or organisation may seek an exemption order from the SACAT.
6.2.8. Letter to Commissioner for Public Sector Employment: Emergency egress for staff with disability
In June 2020, the Commissioner wrote to the Commissioner for Public Sector Employment to raise her concerns about the current process for emergency egress for employees with disability across the public service.
The Commissioner noted her concern that the onus is currently on individual employees with disability to take responsibility for their own Personal Emergency Evacuation Plan, without adequate expert support and information provided about how to do this. The Commissioner highlighted the unfavourable treatment inherent in this requirement, and raised concerns about the risk to the health and safety of employees with disability.
The Commissioner highlighted that the issue was one requiring a whole of government review.
6.2.9. Letter to Commissioner for Public Sector Employment: Special leave with pay for state government employees with disability
In June 2020, the Commissioner wrote to the Commissioner for Public Sector Employment to raise her concerns about the inconsistent application of special leave with pay provisions for public service employees with disability.
In this letter the Commissioner noted that the current inconsistent application of special leave with pay provisions across public service agencies means that employees with disability are not consistently protected against discrimination in the terms and conditions of their employment, leaving agencies vulnerable to complaints of disability discrimination under the Act.
The Commissioner asked the Commissioner for Public Sector Employment to review the ‘Determination of the Commissioner for Public Sector Employment: 3.1 Employment Conditions – Hours of Work, Overtime & Leave’ to enable all employees with disability to take special leave with pay for the purposes of accessing treatment, rehabilitation or assessment related to their disability.
24 Sexual harassment by one MP towards another is not explicitly unlawful under the Act, and it is unlikely that a MP would be considered to be performing duties at Parliament House in the course of ‘employment’ for the purposes of coming within the relevant provisions. Additionally, as is clear from Hansard, the inclusion of the provisions in the Act prohibiting sexual harassment in certain circumstances were not intended to cover conduct between MPs.
25 The Commissioner considered that even setting aside Jurisdictional issues, a fact-finding mission regarding the specifics of these allegations risks narrowing the focus of any outcomes and recommendations. Noting that recent history indicates that inappropriate behaviour by MPs knows no party allegiance. While she was deeply concerned for those affected by Mr Duluk’s alleged conduct, she hoped that the opportunity to have direct input into an independent process that has the potential to create positive change may provide a form of restorative justice for them.
26 The Commission does not provide legal advice regarding the legality of specific circumstances so to preserve a position of neutrality if a complaint is lodged with the Commission for conciliation/referral.