Removing Anti-discrimination Exemptions for Pregnant Women in Employment

Ms JENNY LEONG ( Newtown ) ( 11:06 :22 ): I speak on behalf of The Greens in debate on the Justice Legislation Amendment Bill 2018. The bill amends the Crimes Act 1900, the Criminal Procedures Act 1986, the Anti‑Discrimination Act 1977, the Crimes Commission Act 2012, the Law Enforcement (Powers and Responsibilities) Act 2001 and the Succession Act 2006. The focus of my contribution will be on two specific areas of this bill: the amendment to the Anti-Discrimination 1977 to remove exemptions that apply in relation to employment discrimination against pregnant women; and the amendment to the Law Enforcement (Powers and Responsibilities) Act 2002 to extend a court's power to order a person found guilty of a drink-driving offence to have his or her photograph, fingerprints and palmprints taken at a police station to a person found guilty of driving with illicit drugs in his or her oral fluid, blood or urine.

I state at the outset that it is outstanding that we are amending the Anti-Discrimination Act to remove an exemption that would have allowed pregnant women applying for a job to be discriminated against. I do not think any man in this place would ever imagine being asked whether or not his partner was pregnant when applying for a job. That might be an odd thing for a man to be asked but it appears that women, who face more discrimination and challenges in equality in the workplace, have been asked this question. That is now being dealt with in this legislation. It is important to give credit, as the Attorney General has, to the work of my colleague in the other place, Dr Mehreen Faruqi, who identified this as a serious concern in the current laws. This amendment is the result of her advocacy and that of others who over many years had flagged the need for it. Historically, exemptions were inserted into the New South Wales Act by the anti-discrimination amendment in 1981 under the Wran Labor Government. That meant many women were having to take proceedings under the Commonwealth Sex Discrimination Act, which does not have such exceptions.

Over time there have been several reviews of these recommended changes but unfortunately to date none has been implemented. The NSW Law Reform Commission recently drafted a bill to address pregnancy protections and to remove the exemptions. In 2014 the Australian Human Rights Commission flagged as part of its research the pervasive discrimination that pregnant women face when returning to work. This is a problem for many women in the electorate of Newtown, which has a high percentage of working mothers. It is an issue that must be addressed just as we must address the issue of equality in the workplace.

From the moment that women become pregnant that gap widens. Women are unable to apply for new or more senior roles and often they are forced to take more time off work because they cannot access affordable child care. At that stage their male peers start racing ahead of them in their career progression. On a personal note, at the age of 30 the greatest job security I had was when I was elected in 2015 as the member for Newtown for a four-year term, which gives an indication of job insecurity in the workforce. My daughter, Scarlett, who is now 1½, cruises around the Chamber regularly.

Not everyone in the workplace is that lucky. We must amend legislation that discriminates against women and change any provisions in the law that permit employers to sack women if they are pregnant at the time that they are interviewed. Removing those provisions will bring New South Wales into line with the provisions in other States and with Federal discrimination laws. Many women in Newtown electorate and across New South Wales are discriminated against and this is one small but significant change that can be made. The Greens support this legislation. I again pay tribute to my colleague Dr Mehreen Faruqi for her advocacy in updating archaic laws.

Another issue in the bill that I wish to address relates to people being required to provide to police their photographs, fingerprints and palmprints. I refer specifically to those facing drug-driving tests. My colleague in other place Mr David Shoebridge exposed a multitude of problems relating to the drug-driving testing that has been rolled out in New South Wales. He will be seeking in the other place to move amendments to certain provisions in the bill to enable courts to order that drug-driving offenders be required to provide their photographs, fingerprints and palmprints to police.

The drug-driver scheme does not test for drugs known to cause driving impairment and detects minute amounts of other chemicals which cause no impairment. This bill will allow anyone with a positive test, no matter how minute the chemical traces in the saliva, to then be placed forever on the police database. This gross infringement of people's privacy will do nothing to make our roads safer. Drug-driving tests look for a minute amount of certain chemicals in saliva. Such a test will be positive if someone smoked a joint several days earlier. There are reports that people who legally used hempseed oil, which contains almost no THC, failed these roadside drug tests. Is it reasonable for someone who has no driving impairment to have his or her photograph, fingerprints or palmprints permanently placed on a police database?

Imagine if every person with an alcohol level below the legal limit was mandatorily fingerprinted and photographed and that information was placed forever on a police database. That would be unacceptable if we were talking about people driving when they have alcohol levels below the legal limit, but there is a discrepancy when it comes to drug-driving tests. As I said earlier, The Greens in the other place will be moving amendments to remove that provision. There is no evidence to back up these current drug-driving tests. These provisions will infringe on the rights and civil liberties of all those who do not have driving impairments—a matter of concern to many in the community. I am sure that some regional members would have significant concerns about the drug‑driving test that is currently being rolled out in New South Wales. At present it tests for only three drugs—cannabis, ecstasy and amphetamines—when many other drugs that are known to cause driving impairment are excluded. The Legislation Review Committee examined the drug-driving test and found:

Collecting such personal information may breach an offender’s right to privacy. While the amendment treats drink-driving and drug-driving offences consistently, a person will only be found guilty of the similar drink-driving offence under section 110 if they exceed a prescribed blood alcohol concentration. There is no such prescribed limit with the drug-driving offence, and it has been suggested that drug tests in other jurisdictions are aimed at detecting a level of the drug that would affect driving. The offence may therefore capture people whose driving is not impaired by drugs.

For these reasons, the proposed amendment may be seen to inappropriately lower the threshold for the collection of personal information.

This legislation has not been thought through. It would be a shame if legislation that seeks to protect the rights of women by addressing archaic exemptions in this State infringed even more on people's rights and civil liberties. I hope that the Government will consider and support the amendments that will be moved by my Greens colleague in the upper House so we can see an end to discrimination and infringements of rights.

Link to Hansard Transcript