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Bill 44 - Human Rights, Citizenship and Multiculturalism Amendment Act, 2009

Amendment SA3 - Protect Schools from Costs of Human Rights Challenges

Ms Blakeman: Thank you very much, Mr. Chairman. I actually think this amendment should be supported. I was trying to figure out how to do a similar related amendment because what I was trying to do was make sure that even if a teacher had been found in violation of section 9, that they wouldn’t personally have to pay a cost and they wouldn’t be liable for any kind of punishment. I wasn’t able to successfully convince Parliamentary Counsel that there was a way to do that, but this was the alternative.

I think, actually, the member has done the honourable thing and that’s to make sure that the school doesn’t end up having to pay the costs here, that it’s not pulled away from educational dollars towards students. I think, ultimately, that’s what we’re trying to do here, is give the students in the education system the best possible experience and make sure that the money is spent on them and not on others.

That’s the problem with punishment and liability and responsibility clauses in legislation. I think often we seem to make two mistakes. One is that we, in trying to reinforce that this is a serious matter, put the amounts too high. When these get to be adjudicated in front of a court, the judges look at the cost or the punishment and if it’s very high, for example, in a monetary fine, they go: well, that’s an awful lot of money. So the test is going to be very high to make sure that somebody has broken this law in a vigorous enough way that we’re going to charge them the absolute top dollar. What happens is that, I’ve found in a lot of cases, it’s never charged because the test is too high and people don’t meet it.

We have to be clear in what we’re trying to do with this legislation. From our point of view, it’s to try and minimize whatever damage we think is being done specific to section 9 and that is there is a chill that’s being put on teachers about their ability to raise and react and teach the various prohibited sections, but the cost to it appears to be coming forward on the school board. I mean, who will pay the costs if we have the situation that’s described? The secretary or the school administrator is not there on the day that these notices are supposed to go out in the school, and the teacher is now in violation. They’re brought up before the Human Rights Commission, and there are definitely costs involved there. Who’s liable for it? Do we really want to have the dollars pulled away from the kids in the classroom? I would argue that no, that’s not what we’re trying to do.

I’m more than happy to support the member’s amendment, and I urge the rest of my colleagues to do the same.

[…]

Ms Blakeman: Absolutely. It’s the way I’m responding to the way the President of the Treasury Board talked about subamendment A3. Thank you so much for the opportunity. You know, what I find is interesting is why the members in this Assembly are more than willing to accept a legal cost to be covered for our activities through the risk management fund, but when you point out a similar situation for another sector – this legislation is creating the risk for other people, actually, but there the similarities end.

While the members opposite can understand and accept and value the risk management fund covering their decisions and any liabilities they may create in doing their job, they don’t seem to understand that when it transfers to a different sector like the teachers or the principals or the schools boards but specifically the teachers, which is what this particular amendment was on. I just find it really curious that there’s a clear grasp and understanding when it comes to protecting their liabilities with the risk management fund but not to understanding how those liabilities could be created or, indeed, what they will be covered from for another sector, in this case the teachers.