Saturday, 29 November 2008

SA: to change discrimination laws

The South Australian government has announced that it proposes amending the Equal Opportunities Act including to provide increased protection for those with HIV and to make it unlawful to refuse a job based on who the person's spouse is.

Some details of the Amending Bill

The Bill introduces a new concept of close personal relationship:


close personal relationship means the relationship between 2 adult
persons
(whether or not related by family and irrespective of their gender)
who live
together as a couple on a genuine domestic basis, but does not
include—
(a) the relationship between a legally married couple; or
(b) a
relationship where 1 of the persons provides the other with
domestic support
or personal care (or both) for fee or reward, or on
behalf of some other
person or an organisation of whatever kind;
Note—
Two persons may live
together as a couple on a genuine domestic
basis whether or not a sexual
relationship exists, or has ever existed,
between them.

There is a new definition of 'domestic partner":


domestic partner—a person is the domestic partner of another if he or
she lives with the other in a close personal relationship

The Bill will remove the excuse of mistake:

For the purposes of this Act, an act will be regarded as a
discriminatory act despite the fact that the person alleged to have
35 committed the act did so on the basis of a mistaken assumption (for
example, a mistaken assumption that another person was of a
particular sexuality or a particular race or a person of a chosen
gender).

There is now a reference to "chosen gender", the key provision being:


For the purposes of this Act, a person discriminates on the ground of
15 chosen gender—
(a) if he or she treats another unfavourably because the other is
or has been a person of a chosen gender or because of the
other's past sex; or
(b) if he or she treats another unfavourably because the other
20 does not comply, or is not able to comply, with a particular
requirement and—
(i) the nature of the requirement is such that a
substantially higher proportion of persons who are
not persons of a chosen gender comply, or are able
25 to comply, with the requirement than of those of a
chosen gender; and
(ii) the requirement is not reasonable in the
circumstances of the case; or
(c) if he or she treats another unfavourably on the basis of a
30 characteristic that appertains generally to persons of a
chosen gender, or on the basis of a presumed characteristic
that is generally imputed to persons of a chosen gender; or
(d) if he or she requires a person of a chosen gender to assume
characteristics of the sex with which the person does not
35 identify; or
(e) if he or she treats another unfavourably because of an
attribute of or a circumstance affecting a relative or
associate of the other, being an attribute or circumstance
described in the preceding paragraphs.

There are exceptions for chosen gender discrimination at religious schools.

As to the discrimination because of a person's spouse, the bill provides:


For the purposes of this Act, a person discriminates on the ground of the identity of a spouse or domestic partner if he or she treats another unfavourably because of the identity of the other's spouse or domestic partner, or former or proposed spouse or domestic partner.


Here is the Ministerial media release:


New discrimination laws put to Parliament

November 26, 2008
Carers, mentally ill people, breastfeeding mothers and people wearing religious dress are among those set to benefit from new equal opportunity legislation being introduced to State Parliament today.

Minister for the Status of Women Gail Gago will introduce the legislation today.

“The Bill covers new grounds of discrimination such as religious dress, caring responsibilities, and breastfeeding. These laws will avoid unfair treatment in the workplace, the marketplace and at educational institutions,” Ms Gago said.

“The current laws are out of date and in some situations they fail to protect South Australians against unjustified discrimination. This Bill marks a big step forward in achieving equality and fair treatment,” she said.

The Equal Opportunity (Miscellaneous) Amendment Bill 2008 also:
makes it unlawful to discriminate against voluntary carers, including indirect discrimination such as setting unreasonable requirements that are too difficult for a carer to meet.
provides protections at a State level for people with disabilities, mental illness, learning difficulties or illnesses such as H.I.V. and Hepatitis C.
makes it unlawful to refuse to sell goods or services to a breastfeeding mother, or refuse nursing mothers access to educational services.
makes it unlawful for employers or educational institutions to force workers or students to get rid of religious dress, unless the dress prevents a person from doing a job or creates a danger. This doesn’t stop employers from setting reasonable dress standards.
makes it unlawful to refuse a job to a person based on who their spouse is.
The Bill was first introduced to Parliament in 2006, but it soon became clear the Liberals and minor parties would not support it. The Bill to be introduced today comes after two years of discussions.

“These laws are not as strong as we envisaged, but, if passed, they’ll be a vast improvement on the current situation. Some change is better than no change,” Attorney-General Michael Atkinson said.

Some controversial elements have been removed from the original Bill, as there was little chance they would pass Parliament. For example, the 2006 Bill would have outlawed victimisation, on a ground of discrimination deemed unlawful under the Act, where a person engages in a public act inciting hatred, serious contempt or severe ridicule against a person or groups of people. This is no longer included.

Some limited protection for carers already exists under the Commonwealth Sex Discrimination Act, but the new Bill delivers broader new protections for carers at a State level.

“Carers are some of the hardest working volunteers in our State and discrimination against them by employers is in no-one’s best interests. These laws will help stop the unfair treatment of these valuable volunteers,” Ms Gago said.

“The Bill is also a big win for nursing mothers. For too long, women have had little legal protection if retailers or educational institutions treat them unfairly because they are breastfeeding. These laws will make it clear that discriminating against breastfeeding women is totally unacceptable,” Ms Gago said.

Mr Atkinson, who is also the Minister for Multicultural Affairs, said the changes also better protect immigrants and those from ethnic backgrounds.

“South Australia prides itself on being a culturally diverse society. It’s important that people from different backgrounds retain their identity and aren’t excluded from society because of what they choose to wear,” he said.

“This Bill meets the government’s election pledge to amend this Act and give South Australians more comprehensive protection against unjustified discrimination. I urge the State Parliament to support this Bill and provide a more just society for all South Australians,” Ms Gago said.

1 comment:

  1. FOr those who are sex or gender diverse the language of "chosen gender" is particularly misleading and unfortunate.

    It has been introduced despite the concerns of a number of people who are affected by the attribute.

    the concern is that implies that situations like transsexualism are a lifestyle "choice"
    or that intersex- described in the bill as indeterminate involves some form of lifestyle choice too.

    IMHO this plays into the hands of the religous zealots. ( but then given that the South Australian Attorney General has such strong religious beleifs himself i suppose its not such a surprise)

    chosen gender- should be gender identity
    also as medicine is begining to realise that many people do not " change sex" .a person does not live as a member of the opposite sex- they are who they are. meaning that they usually affirm an innate sense of self that has been their from early recollection.

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