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The Hon. D.G.E. HOOD (16:22): Family First
believes that this bill is largely unnecessary, ideologically driven and
fraught with danger. Put simply, we oppose it. Family First is a party that
believes in individual freedoms: we believe in freedom of speech, freedom of
association and freedom to participate or not participate in religious
activities. We
believe in equal opportunity. However, the equal opportunity shield is forged
by taking hammer blows against our personal freedoms. For the sake of those
freedoms, limitations made necessary in the name of equal opportunity must be
limited and restrained, proportional and necessary. It is wrong to blame
someone for something they cannot help. No-one should be put at any further
disadvantage because they happen to be born with a certain skin colour, a
certain gender or the like. Clearly, these things are beyond an individual's
control and they should not be discriminated against under any circumstances.
Having said that, this bill goes too far. For
example, it requires the hauling of a school-aged child as young as 16 years
old before a tribunal for saying something deemed sexually offensive to
another child, even if no complaint was made for that behaviour. It goes too
far in giving the commissioner power to investigate and instigate proceedings
even when no-one has made a single complaint about a particular issue; and it
goes too far in forcing schools to place notices on their website if they
will not hire people with certain sexual practices, for example. That goes too
far. In fact, the previous version of this bill had 15 separate ways that one
could infringe the legislation, from not accepting where someone lived or
discriminating against someone for where they lived to not accepting the way
they dressed, for example.
This is not an exaggeration: in the last census,
some geniuses (if I can put it that way) put in the religious section that
their religion was Jedi. I guess they were referring to the word 'Jedi' from
the Star Wars saga. If you answered that your religion was a Jedi in
the last census, then, under this silly bill, if you chose to wear your Jedi
robe and carry a light sabre to work claiming it is your religion to do so,
it would be very difficult for your employer to stop you from doing so. In
fact, an employer who objected to those actions might be in breach of the
Equal Opportunity Act, so crazy is the legislation before us. It is
absolutely ridiculous.
In this version, there are only—and I say
'only' somewhat tongue-in-cheek—13 things which the bill specifically
outlaws or which are deemed politically correct, to use the vernacular, if I
may. Clearly, there has been a reduction from 15 to 13 and, of course, that
has largely been due to Family First's negotiations with the government and,
indeed, the opposition. However, under this bill, you still cannot
discriminate against someone (so-called) for wearing their Jedi religious
costume to work each day if they claim their religion requires it, but you
can now be critical of where someone lives, for example, or what they do for
a job. Why do we want a law in this state under which someone can say their
religion is Jedi, for example, and that they have a right to carry their
light sabre and wear their cape to work and to which an employer may not be
able to object?
The Hon. C.V. Schaefer interjecting:
The Hon. D.G.E. HOOD: Well, nothing at all, but
how ridiculous that we would enact such a law in this state. I can see this
law being pushed to its absolute boundaries whereby people will do things as
silly as that—maybe not using the Jedi example, but they will do
equally silly things. For example, I can imagine a young person going to work
at McDonald's and saying that they have a certain type of religion—let
us call it Jedi for the sake of argument—and they wear a cape and carry
a light sabre and do not want to wear the McDonald's uniform. It is absurd,
yet that is exactly what this bill will allow, and the employer—and
this is the key point—might not be able to tell that person to remove
that costume, if you like, because it could be deemed to offend them.
How ridiculous. What an absolutely pointless law
that we simply do not need in this state. I wonder how many people will do
those things such as I have just outlined, or even worse than what I have had
time to think about, and, in many cases, jam the wheels of business. You can
imagine the problem for small business owners potentially. This bill goes way
too far.
The reality is that we live in a world where
sometimes people do things that others find offensive from time to time.
Sometimes I offend people, and sometimes they offend me, but, at the end of
the day, mature adults either agree to disagree or simply get over it and
move on. They do not need to go running to the government complaining every
time someone hurts their feelings, criticises them or says something that
they do not like. This is a law we simply do not need.
Our society is founded on a principle that we
often do not agree and that we hold opinions in conflict. Indeed, one might
argue that that is what has made our society so great. I think Australia in
particular is a society of many diverse opinions, diverse practices, diverse
religions—the whole gamut, if you like—yet we are largely a
peaceful, homogeneous society that is really a model of how society can work
and how people can get along even though their opinions can sometimes be very
different on certain matters. We do not need laws to sort out these things;
we need common sense.
For example, one of the great aspects of this
parliament is that we have opinions from right across the spectrum and, in
the end, the way in which we reach a decision or pass a bill is after the
government, the opposition and the crossbenchers in the back of the
chamber—everyone—have had their input. In many cases, a bill is
not put forward and absolutely agreed to by everyone. In my experience in
this place, it is rare for a bill to go through without its being amended. It
happens from time to time, but usually some valid amendments are
moved—whether it be by the government, the opposition or one of the
crossbenchers—and then a debate ensues. Sometimes there can be quite
heated debate and debate about which people can be quite passionate, but
nonetheless that is the process for reaching a good outcome. Conflict is
built in to what we do not only in this place but in our society, and it can
be to the benefit of all.
Of course, it is not just in parliament. We have
a similar example in our adversarial court system where we convict a
defendant only after they have had a bold prosecution and a fearless defence
and the argument is weighed up by an impartial judge. That has worked for us
for hundreds of years, as has our parliamentary system. For hundreds of
years, we have had disagreements in our community about various things. This
bill goes too far: it is absolutely unnecessary.
Of course, there is a difference between genuine
free speech and those who wish to exploit pornography and the like, but I am
not talking about those things; I am talking about adults agreeing to
disagree. But in censoring what is genuine argument and genuine difference of
opinion, we sweep aside those disagreements and we sweep them under the
table. On everything, this bill asks us to simply bottle up criticism, and the
No. 1 objective is simply not to offend anyone rather than reach any actual
valuable and lasting conclusion. The cold hard reality is that sometimes
people do disagree, and passing this bill is not going to stop people
disagreeing on things.
Indeed, over-zealous political correctness is a
danger to our society, I believe, and to our culture and it is the reason why
Family First has now collected over 11,000 signatures—in fact, nearly
12,000 signatures at last count—against this bill from people who have
been prepared to put their names and addresses to a petition saying that they
do not want this law to pass.
What do these sorts of laws do to our culture? Do
you remember the days when, for instance, it was not deemed offensive to call
someone a Pom. I have many friends who are English,
and I call them 'Pom'. They do not take offence at all; it is what I have
always called them. It is not meant to be offensive. It is actually a term of
endearment, to be honest. It is how I think of those people, those friends,
and I have known them since I was a very young boy about four or five years
old and I have never called them anything different. They have never
complained once and yet, nowadays, we have laws saying that these sorts of
things ought to be discouraged.
Why on earth should it be discouraged? Is
political correctness actually sapping the Australian spirit and the sort of
larrikin Australianism that Australia has become
famous for? Is our fear of the political correctness police turning our
culture into something that is just bland, inoffensive and really lacks the
vigour and true determination to genuinely debate things? Have we become so
careful not to offend that people are now afraid to debate? If we have, I
think that is a terrible tragedy.
I would like to take an opportunity at this point
to sincerely thank the Attorney-General for his long discussions with me in
framing this bill. He certainly made every effort to seek our input and for
that we are grateful. I would also like to offer the same gratitude to the
shadow attorney-general, who was equally
accommodating in her, I think, genuine willingness to reach common ground,
for which we were certainly grateful. I have had consultation with many
members of the chamber, and I would specifically like to mention the Hon. Mr
Stephens, who has taken a good interest in this bill and was certainly very
keen to discuss things with me, and I thank him for that.
I thank the Equal Opportunity Commissioner
herself, of course, who made herself available on a number of occasions. I
have had some very lengthy discussions with her and, while we may not agree,
I would like to acknowledge her willingness to engage in the debate, which
would ironically be more difficult if this bill should pass. I also mention
Mr David Tennant, who worked in my office as a parliamentary intern on this
issue. He has prepared a terrific paper on the previous bill's draft clause
61. I am sure that David is destined for a very bright career indeed judging
by the quality of his work.
Returning to the substance of this bill, my
discussions with the Attorney-General have resulted, from my perspective, in
a number of improvements to this bill. When I say 'my discussions', they are
not just mine of course—they are Family First's and, indeed, those of
members from other parties, I understand, as well. The most significant
change is that clause 61—and that is the clause relating to
vilification—no longer exists in this bill. Family First spent a fair
amount of time and energy on having that clause removed, and I am pleased to
say that it is no longer in the bill and I give credit where credit is due.
Again, we are grateful to the government and, indeed, the opposition for the
role that they have played in that.
This clause was, of course, the primary concern
of the 11,000-plus signatories that we received in our long campaign against
this bill. As I say, that 11,000 is now closer to 12,000 and, in my fairly
extensive contact with those people, the common theme that arose from them
was clause 61 as well as some of the other issues that I will go into in
a moment.
Provisions similar to the deleted clause 61 have
caused tremendous limitations to free speech in other states where they have
such clauses in their law. The most frequently referred to case is
colloquially known as the Two Dannys case. In March
2002, pastors Danny Nalliah and Daniel Scott
presented a lecture on Islam for their church. The lecture, by the way,
included directions to support and show acts of mercy and other acts of
generosity to those holding other faiths.
It was largely an academic affair, and in no way
was the religion of Islam vilified, yet the Islamic Council of Victoria
complained of religious vilification resulting in five years of hearings
before the commission and legal fees estimated at well in excess of $100,000.
Indeed, I will not put it on the record because I do not have any data to
justify it, but the estimates of the legal fees that have been given to me
have been substantially in excess of that—more than three and four
times that.
These are two Christian pastors, who I understand
have salaries in the order of $40,000-$45,000 a year. They could never repay
the legal bills they were facing in their entire lives. The irony is that, in
the end, they were proved not to have breached the law and yet they were
lumbered with the ridiculous legal costs and their lives were changed
forever.
There have been other cases with similar outcomes
in New South Wales and Queensland where freedom of speech has been stifled by
a clause similar to the now deleted clause 61 from the earlier draft of this
bill. I will not detail those but they have been numerous. Put simply, that
clause is absolutely unnecessary, and Family First believes that the
government was right to withdraw clause 61 from the bill before us today, and
again we acknowledge and congratulate it on doing so.
Concerns about several clauses remain, however,
and I foreshadow several Family First amendments regarding several of them. I
will just give a brief outline of each of those amendments now.
I have had some quite extensive discussions
regarding clause 18—that is, new section 34(3)(c)—with
the Association of Independent Schools. The clause requires schools to place
a notice on their web site if they will not hire people with a particular
lifestyle. I acknowledge that previous wording would also require the policy
to be lodged with the commissioner, but the Association of Independent
Schools maintains that this obligation remains onerous because it opens the
schools up to criticism, protest and, potentially, persecution.
Schools are not required, for example, to print
their occupational health and safety policy on their web site, or any other
policy, so why are they required to list their hiring policy on their web
site? What is it specifically about that policy that says they should have it
on their web site? They do not have to put any of their other policies on
their web site. Why is it that they should put that policy on their web site?
Give me one solid reason why that should be the case.
For that reason, I foreshadow an amendment that
would delete this requirement. Instead, the policy should be available on
request from the school, like all other policies—for instance, its
occupational health and safety policy, or whatever it may be. It should be
available from the school, rather than creating a target for militant
activist groups by putting it on the web site for all to see. This is
something the schools do not want. Why should they have to deal with it?
Clause 25 of the bill removes section 50(2). This
was an exemption granted to religious organisations from hiring staff with a
certain lifestyle, including people who openly have multiple sexual partners,
for example. Although most church-run hospitals, nursing homes and so forth
are, in effect, now run as secular organisations, there are
a number of what are often called parachurch
organisations that regard the lifestyle of their staff as important in the
conduct of their daily business.
Let us take a fairly extreme example. Imagine
forcing what was formerly called the Festival of Light to hire a transsexual.
That would be likely to cause division and tension within its ranks, rather
than foster any sense of genuine equal opportunity. Why would we want to create
a law that would force that to happen? Parachurch
groups are faith-based organisations that work outside of and across
denominations to engage in social welfare, evangelism and lobbying and are
usually independent of church oversight. I will move an amendment to grant
these sorts of organisations an exemption.
My concern here is that these organisations do
tremendous work in the community, much of it completely free. They survive on
donations. They are the ones that take blankets to the homeless; they do all
sorts of charity work; they set up the soup kitchens; and they do all the
things that I think everyone in this chamber would think was good work. Why
do we want to make it more difficult for them to operate?
My concern is that, if we pass this law and if my
amendment to this provision does not pass, I can just about guarantee that
those organisations will slowly cease to be over time. Yes, there will be
other organisations that to some extent will take their place, but I do not
believe that they will be anywhere near as many or anywhere near as committed
(potentially). I think that is of grave concern to us. Has this really been
thought through?
Further, clauses 67 and 68 and new section 95C in
clause 69 give power to the commissioner to launch an investigation 'even
when no complaint has been lodged' and to launch her own complaint with the
tribunal, whether or not a complainant wishes the proceedings to be
initiated. Why would we want to do that?
So, the Office of the Equal Opportunity
Commissioner will decide what should be complained about and what should not.
Why would we want the Equal Opportunity Commission to look into any practice
if no complaint has been lodged? Who has been offended? Why would we do that?
I understand that most interstate commissioners
do not have that power to initiate their own complaints, and the reason for
that is very simple: it is simply not appropriate for an unelected person to
pursue far-reaching social policy crusades and whatever issue they see fit if
people are not complaining about the issue, effectively determining social
policy unilaterally. So, the Equal Opportunity Commission becomes the
arbitrator of what is acceptable behaviour and what is not.
Remember: this person is unelected. This person
may have very different views to the preceding equal opportunity
commissioner; they may, indeed, have very different views to the next equal
opportunity commissioner. Where is the consistency? They can launch these
investigations without a complaint even being made and without anyone being
offended. How is that good law? The Family First amendments would delete the
provisions allowing independent investigation and initiation of complaints
where no complaint has otherwise been made and would leave the current system
in place. Why do we want that in the bill? We will then have a situation
where the commissioner becomes the arbitrator of what is acceptable and what
is not. That is not appropriate. It is the role of parliament to make laws,
not the equal opportunity commissioner.
In clause 62, students over the age of 16 years
are made subject to discrimination laws. We are talking about children being
subject to discrimination laws. Although the previous draft allowed children
as young as 12 to be brought before the commission, we believe that 16 is
still too young. The Family First amendment will increase the age to 18
years.
Courts and other jurisdictions in this state will
not accept a complaint against children under 18, except for the Youth Court,
of course, so why are we proposing that the Equal Opportunity Commission
should be able to accept complaints against children? It does not apply in
other jurisdictions.
Frankly, there is no reason why the Equal
Opportunity Commission should have a special dispensation to initiate
proceedings against children. You can imagine the scenario where a
16 year old child will say something jokingly in a classroom or a
playground, for example, and they could end up before the Equal Opportunity
Commission with lawyers against them. What a ridiculous outcome.
Lastly, the tribunal has been set up as a no cost
jurisdiction for complainants. This is found in new section 95B(2). Family First is concerned that while bringing an
action to the tribunal may be cost free for a complainant, that is, with no
risk and no significant filter for vexatious claims, for example, it may,
nevertheless, be very costly to defend.
So, here we have a situation where the person
lodging the complaint has no risk whatsoever, because if they lose there is
rarely any cost that they will incur, so they can make a complaint against
anyone. It is going to be open slather, I predict, for vexatious claims of
certain groups against other certain groups that do not like each other, for
whatever reason, and the state will fund those claims.
The poor defendant, the local fish and chip shop
owner who is trying to run his or her business just to make a fair living,
has to then go to the Equal Opportunity Commission, pay for a lawyer and defend
themselves against a claim that may be absolutely baseless.
What is the benefit of that? I can see some very
significant problems with respect to small businesses being targeted by, for
example, someone who did not get a job and lodges a complaint with the Equal
Opportunity Commission, knowing that they have nothing to lose, that they
would be up for no cost whatsoever, but knowing that just by lodging that
claim the owner of the business automatically loses because they have to find
a lawyer.
So, even if the complainant lodges a complaint
that they do not expect to win, they know that the business owner, the person
they are complaining against, will be up for substantial costs, and they may
regard that as a win in the first place, just putting that person through the
pain. Hopefully this would not be too common, but I am sure it would happen.
Why would the state fund people who make complaints yet not fund people
defending themselves against those complaints, whether some of which would be
vexatious? It is not a question of whether there would be vexatious claims;
there will be. If it is free, why would people not do it?
There are many examples of this and I could go on
and on; however, I will just give a couple of brief ones. Some years ago John
Laws was obliged to spend hundreds of thousands of dollars in legal fees
defending a matter brought by a Mr Gary Burns which stretched out for almost
five years—at no cost to the complainant, as I understand it. The Two Dannys case in Victoria was resolved without any finding
of wrong-doing after five years of legal argument. Who was the loser there?
They were not found to have done anything wrong but had to pay hundreds of
thousands of dollars in legal costs. The cost to the complainants? Nothing,
not a cent.
Family First proposes that the section be
re-drafted so that it is similar to the situation in the small claims
jurisdiction of the Magistrates Court, that is, that no lawyers be involved
in the proceedings unless both sides agree (because as soon as lawyers get
involved the costs go through the roof) or unless the Commissioner decides.
There will be some cases where the Commissioner decides the complainant is
unable to represent themselves and therefore needs a lawyer, and in that case
a lawyer would only be assigned in a way that would be satisfied by a means
test—for example, in the same way we would normally allocate a lawyer
in a Legal Aid matter. That is, if someone is deemed to require a lawyer but
their income or means are insufficient then they would be assigned one
through Legal Aid. Why should the Equal Opportunity Commission be any
different from the rest of the legal system when it comes to allocating legal
services? This will open up a can of worms that we have not even begun to
imagine.
Family First is not convinced that this bill is
required; indeed, it is convinced that it is not required. We accept and
support the fact that there must be help given to those in the community who
are genuinely disadvantaged through no fault or decision of their own, and we
will always support those people and will always fight for their rights to be
treated appropriately; however, this bill does not get the balance right, and
as such we will seek to amend it as I have outlined.
The plain fact is that the real world is not a
level playing field. Some people are born to privilege, some are born into
poverty. Some are born fully able, and unfortunately some are born with a
disability. Whilst as legislators we must do everything we can to aid and
assist those who do not generally enjoy equal opportunity, it must not be at
the expense of others, thus creating further division, tension and scope for
disharmony in our society. This bill runs that risk, as it tips the scales
too far against what have been long-running and established practices and
principles in our society. For that reason Family First will seek to amend
this bill and, if its amendments are not agreed to, it will wholeheartedly
oppose the bill.
Debate adjourned on motion of Hon. J.M. Gazzola.
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