Page 5147 - Week 16 - Wednesday, 27 November 1991
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is not made an offence, and the Bill says that very clearly at clause 93, which probably, the chances are, is one that he wants to delete. No, he does not; he wants to keep that, so he must have seen it. All of this rhetoric about star chambers and criminal penalties and all the rest of it is nonsense.
What is happening is this: We are creating an unlawful act in order to allow a challenge to prevent discrimination against individuals, and I am sure that all members of the Assembly support that. These qualifications and additional defences and all of the rest of it are premised upon the creation of a criminal act, which we do not have here. We have the creation of something that is unlawful for the purposes of civil remedies under the Bill. It is not a criminal offence.
MR COLLAERY (7.00): I agree with the Attorney. I believe that legislation against indirect discrimination is necessary to complete the protections necessary in society, and that is what this provision includes. The Supreme Court of the United States has determined that statistics demonstrating under-representation in a class, such as blacks in a jury or women in a teaching profession, are in themselves sufficient for a prima facie case of discrimination. But the court has also said that proof, not mere argumentative speculation, will be necessary to dispel the inference of discrimination raised by statistical disparities.
The question of indirect discrimination has to be covered. It is covered; and it does not require, necessarily, the conscious act or the guilty intent that Mr Stevenson may be used to from his police lectures. The provision is very wide. It covers some substantive submissions received during the formulation stage of the Bill. It is meant to cover a situation where a person adopts a practice - I have referred to this in the house earlier - that has the effect of disadvantaging a group of people of like nature that I mentioned. When you are trying to prove those cases in the courts, as I have, you get statisticians or consultants to go and look at standard deviation issues and all the rest that Mr Kaine, in fact, knows more about than probably any of the rest of us here, and you try to get up the unintended effects of a policy or procedure and so forth.
It is not as simplistic as Mr Stevenson sounds. At this juncture, Mr Speaker, I wonder whether we could not simply set the Assembly on automatic pilot, leave ourselves until tomorrow morning, keep the lights on and Mr Stevenson here addressing his concerns, and we will come back in the morning when he is finished.
Mr Speaker, I seek your guidance as to whether under standing orders, in chapter 15, headed "Bills", you cannot assist the proceedings in the Assembly by determining whether Mr Stevenson's amendments, which all have a similar proposal, such as a deletion, can be postponed while we get on and debate the substantive amendments before the house.
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