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Equal Opportunity Amendment
(Governance) Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purpose of the Bill, which is to alter the governance
and complaint-handling arrangements for the Victorian Equal
Opportunity and Human Rights Commission contained in the
Equal Opportunity Act 1995 (the Principal Act).
Clause 2 provides that the Act will come into operation on a day to be
proclaimed, but no later than 1 October 2009.
Clause 3 provides that for the purposes of the Bill the Equal Opportunity
Act 1995 is to be known as the Principal Act.
Clause 4 repeals the existing definitions of appointed member of the
Commission and Chief Conciliator in section 4 of the Principal
Act and inserts new definitions of the terms appointed member
of the Board, Board, Chief Conciliator and Commissioner.
The Commission's Board will be known as the Board of the
Commission. An appointed member of the Board is a member of
the Board other than the Commissioner. There are 4 or 6
appointed members, whose positions are part-time. The Chief
Conciliator is also the chief executive officer and this Bill will
replace the Chief Conciliator role with a Commissioner.
A Commissioner will be appointed by Governor in Council.
The Commissioner will lead the organisation and chair the Board
of the Commission.
Clause 5 substitutes a new Part 9 in the Principal Act (Victorian Equal
Opportunity and Human Rights Commission) for the existing
Part 9 (Administration).
New section 160 provides for the continuation of the Victorian
Equal Opportunity and Human Rights Commission. This section
differs from the previous section 160 by requiring use of the
official seal to be authorised by the Commissioner.
561251 1 BILL LA INTRODUCTION 2/12/2008
New section 161 sets out the functions and powers of the
Commission. These functions and powers remain unchanged
from the previous section 161.
New section 162 sets out the Commission's educative and
research functions. These functions remain unchanged from the
previous section 162.
New section 163 establishes the Board of the Commission and
creates a clear distinction between the "Commission", being the
Victorian Equal Opportunity and Human Rights Commission as a
legal entity, and the Board of the Commission. The existing
structure of the Commission consists of 5 members; the Chief
Conciliator and another 4 members appointed by the Governor in
Council on the nomination of the Minister.
The new section 163 provides that the Board of the Commission
will consist of the Commissioner (who is the Chairperson of the
Board) and either 4 or 6 other members, so the Board consists of
a total of either 5 or 7 members. The new section 163 also sets
out the Board's responsibilities as being to determine the
Commission's strategic direction and the general nature of
activities to be undertaken by the Commission in performing its
functions; and to set policies, priorities and strategies for the
Commission in performing its functions.
The Board will engage in high level policy and strategic decision
making and monitoring the overall effectiveness of the
Commission. This may involve, for example: developing,
approving and publishing the Board Charter; endorsing and
monitoring the budget; considering and agreeing key
performance indicators; endorsing the Commission's strategic
plan and business plan; considering and approving any
strategically significant activities such as investigations or the
issuing of guidelines; approving the Annual Report; providing
advice and support to the Commissioner; stakeholder liaison and
communication in consultation with the Commissioner.
The Board will have all powers necessary for it to perform its
functions.
The Governance Principles in Division 2 of Part 5 of the Public
Administration Act 2004 will apply to the Commission as a
result of an Order to be made by the Governor in Council.
The Order will be published in the Government Gazette and
timed to coincide with commencement of the Act. That Division
already applies to public entities established on or after the
commencement of Part 5, but not to the Commission, because
although it is a public entity, it was established before the
commencement of Part 5.
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New section 164 sets out the terms of appointment of appointed
members of the Board. The terms of appointment are the same as
previously applied to the appointed members of the Commission,
except that new section 164 provides that an appointed member
is appointed on a part-time basis, consistent with past practice.
New section 165 provides for the resignation and removal of an
appointed member of the Board. Additional criteria have been
incorporated for the immediate removal of an appointed member
of the Board if a member has been convicted of an indictable
offence or the member has become insolvent. New section 165
gives the Governor in Council a discretion to decide whether an
appointed member of the Board will be removed for being absent
without leave from 3 consecutive meetings of which reasonable
notice has been given. This ground will no longer trigger the
automatic cessation of membership.
New section 165 also provides more specific reasons for removal
of an appointed member of the Board from office. The Governor
in Council may no longer remove an appointed member from
office "at any time", but may only do so on the grounds of
unexplained absenteeism, incapacity, misconduct or a personal
and significant breach of Australian equal opportunity or anti-
discrimination law that would otherwise amount to misconduct.
New section 166 enables the Governor in Council, on the
recommendation of the Minister, to appoint a person to act as a
member of the Board if an appointed member ceases to hold
office before the term expires or is unable to fulfil the duties of
office. This new section combines the previous section 166
(Filling of casual vacancies) and section 168 (Acting members)
under the one umbrella heading of "Acting appointments".
The only substantive changes to the previous provisions are that
the Governor in Council must always act on the Minister's
recommendation to appoint but has a discretion to determine the
terms of appointment and terminate the appointment.
New section 167 deals with the terms of payment of an appointed
member of the Board. This section is consistent with previous
section 169.
New section 168 deals with the procedure of the Board at
meetings. Apart from amendments required to refer to a meeting
of the Board rather than a meeting of the Commission, and the
Commissioner presiding as the chairperson, new section 168 is
consistent with previous section 170.
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New section 169 protects the validity of an act or decision by the
Board in the event of a vacancy in the Board's membership or a
defect in the appointment of a member. New section 169 is
consistent with previous section 171.
New section 170 creates a new position of Commissioner which
replaces the Chief Conciliator and chief executive officer role.
The Commissioner will chair the Board of the Commission and
will be its only full-time member. The Commissioner will be
required (in addition to the other functions, powers and duties
conferred by the Act) to administer the day to day affairs of the
Commission in accordance with the policies, priorities and
strategies determined by the Board of the Commission.
The Chief Conciliator and chief executive officer responsibilities
are reassigned to the Commissioner. The Commissioner will
perform (or delegate) the complaints-handling and conciliation
roles currently allocated to the Chief Conciliator.
New section 171 sets out the terms of appointment for the
Commissioner. The Commissioner will be appointed for a period
not exceeding 5 years and is eligible for reappointment.
The terms are consistent with the previous terms of office for the
Chief Conciliator, except that it specifically provides that the
Commissioner is appointed on a full-time basis.
New section 172 provides for the resignation and removal of the
Commissioner. The criteria for resignation and removal of the
Commissioner are the same as that for an appointed member of
the Board under new section 165.
New section 173 enables the Governor in Council to appoint a
person to act as Commissioner if the Commissioner ceases to
hold office or does not cease to hold office but cannot fulfil the
duties of office. The provision governing the terms of an
appointment of an acting Commissioner is the same as that for
the appointment of an acting member of the Board under new
section 166.
New section 174 provides for the payment of the Commissioner.
The provision is consistent with previous section 177 in that the
Commissioner, like the Chief Conciliator, is entitled to receive
the remuneration and allowances fixed from time to time by the
Governor in Council.
New 175 allows for staff to be employed if necessary for
administering the Principal Act, the Charter of Human Rights
and Responsibilities Act 2006 or the Racial and Religious
Tolerance Act 2001. The Commissioner will employ staff
directly when an order of the Governor in Council is made and
published to list the Commissioner as a public service body Head
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under section 16 of the Public Administration Act 2004. Staff
will remain public sector employees under Part 3 of the Public
Administration Act 2004.
New section 176 provides that the Commission, a member of the
Board and the Commissioner may, by instrument, delegate their
powers, functions or duties (other than the power of delegation).
This provision replaces the existing section 172 ("Delegation by
Commission") and existing section 179 ("Delegation by Chief
Conciliator"). The Commission may delegate any of its powers
or functions or duties to the Commissioner or any member of
staff of the Commission. The Commissioner may delegate to any
member of staff of the Commission. The Board may delegate
only to an appointed member of the Board, a member of a
committee of the Board or the Commissioner. The Board may
not directly delegate to staff of the Commission, but may
delegate its powers, functions and duties to the Commissioner
who may then delegate to staff.
New section 177 prohibits disclosure of information concerning
the affairs of any person obtained in the course of performing
functions or duties or exercising a power under the Act.
Apart from required amendments to refer to an appointed
member of the Board rather than an appointed member of the
Commission and the Commissioner rather than the Chief
Conciliator, this provision is the same as previous section 192.
New section 178 continues protection from personal liability for
certain acts and omissions of people to whom the section applies.
The provision is similar to the previous section 193 except that
amendments have been made to refer to the Board rather than the
Commission and the Commissioner rather than Chief Conciliator.
The Board of the Commission is not covered by this section
because the Government Policy and Guidelines on Indemnities
and Immunities will apply to appointed members of the Board.
New section 178 also specifies that any liability that would have
attached to a person listed attaches instead to the Commission as
the relevant legal entity.
New section 179 retains the existing requirements for annual
reports and is unchanged.
Clause 6 provides consequential amendments to Part 7 ("Complaints and
their resolution") of the Principal Act to reflect the new functions
of the Board of the Commission and the Commissioner. It is
intended that the Board of the Commission will no longer have a
role in relation to handling complaints under Part 7 of the
Principal Act or the Racial and Religious Tolerance Act 2001.
These powers will lie entirely with the Commissioner, who will
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have the power to appoint required staff and delegate to staff.
These amendments are to Division 1 ("Making a complaint") and
Division 2 ("Procedure after a complaint is made") and change
references to the Commission to the Commissioner for this
purpose.
Clause 7 makes minor amendments to sections 112 and 114 of the
Principal Act to reflect the fact that the Commission will no
longer refer a conciliable complaint to the Chief Conciliator for
conciliation, but rather the Commissioner will decide whether or
not to conciliate the complaint. These Divisions have not
otherwise changed in substance. Clause 7 also substitutes a new
section 113(1) in the Act (What happens if conciliation is
inappropriate?). The section has been amended to refer to the
Commissioner rather than the Commission.
Clause 7 also provides for further consequential amendments to
Part 7 ("Complaints and their resolution") of the Principal Act to
change the references to Chief Conciliator and the Commission
to the Commissioner. These amendments again reflect the new
functions of the Commissioner so that the Commissioner (and not
the Board of the Commission) will be handling complaints
(including conciliation).
Clause 8 substitutes a new section 122 (Time limits for conciliation of
expedited complaints) in the Principal Act. The previous
section 122 has been changed to reflect the Commissioner's role
in complaint handling and conciliation and removes from the
Commission the role of referring expedited complaints to the
Chief Conciliator for conciliation.
Clause 9 provides for further consequential amendments to Part 7
(Complaints and their resolution) and consequential amendments
to Part 8 (Investigations by the Commission and Tribunal) of the
Principal Act to reflect the Commissioner's role as complaint
handler and conciliator.
Clause 9 also amends section 156 ("How may an investigation be
initiated?") to reflect the fact that, as the Commissioner (and not
the Board) will be dealing with complaints, the Commissioner is
the appropriate person to refer possible contraventions of the
Principal Act or the Racial and Religious Tolerance Act 2001
that he or she becomes aware of in the course of dealing with a
complaint to the Commission for investigation. The amendment
splits the existing section 156(3) into two new subsections
whereby the Commissioner can become aware of a possible
contravention in the course of dealing with a complaint, and the
Commission can become aware of a possible contravention in the
course of investigating a matter.
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Clause 10 inserts a new section 137 into the Principal Act to ensure that
complaints and notices lodged with the Commission rather than
the Commissioner, which were required to be lodged with the
Commissioner, are taken to have been lodged with the
Commissioner.
Clause 11 inserts a new section 158(1A) into the Principal Act. Given that
an investigation is to be conducted in the same manner as if it
were a complaint, and the Commission will no longer be
investigating complaints (this role will rest with the
Commissioner), the Commission will be able to seek guidance
from the Commissioner as to how to conduct an investigation.
If an investigation results in a finding of a contravention, the
matter will be referred from the Commission to the
Commissioner for conciliation.
Clause 12 substitutes new sections 201 and 202 of the Principal Act.
New section 201 (Compliance with notice to attend or produce
documents) now refers to the Commissioner (rather than
Commission or Chief Conciliator). The section is otherwise
unchanged.
New section 202 (Obstructing Commission) reflects the revised
governance structure and refers to the Commissioner, a member
of the Board and a member of staff of the Commission or
Commissioner (rather than a member, a member of staff of the
Commission or the Chief Conciliator). The prohibition against
using insulting language has been removed.
Clause 13 provides for consequential amendments to Part 10 (Offences) and
Part 11 (General) of the Principal Act to refer to the
Commissioner rather than Chief Conciliator.
Clause 14 repeals section 211(b) and (c) and inserts a new section 211(2)
into the Principal Act. New section 211(2) effectively restates
section 211(b) with amendment to refer to the Commissioner
rather than the Commission. The repeal of subsection 211(c)
means that the Supreme Court's jurisdiction is no longer limited
with respect to a complaint if a person has chosen another avenue
of review under section 103 of the Public Sector Management
Act 1992 in relation to the same subject matter. The Public
Sector Management Act 1992 has been repealed.
Clause 15 amends section 212(a) of the Principal Act so that the Governor
in Council may make regulations for or with respect to the
Commissioner, the Commission and the Board rather than the
Chief Conciliator and the Commission.
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Clause 16 inserts new transitional provisions in the Principal Act.
New clause 227 ("Transitional provisions--Equal Opportunity
Amendment (Governance) Act 2008") deals with members
appointed to the Commission, the Chairperson of the
Commission, complaints lodged with the Commission before the
commencement of the amending Act and acts done by the Chief
Conciliator or Commission prior to the commencement of the
amending Act, which must now be done by the Commission.
New section 228 provides that an act done by the Commission or
Chief Conciliator before the commencement that after the
commencement may or must be done by the Commissioner is
taken, from the commencement, to have been done by the
Commissioner.
Clause 17 provides for consequential amendments to the Racial and
Religious Tolerance Act 2001 so that those references in
sections 19, 20, 21, 23 and 23A to the "Commission" will now be
to the Commissioner to reflect the Commissioner's complaint
handling and conciliation functions.
Clause 18 provides for consequential amendments to the Victorian Civil
and Administrative Tribunal Act 1998 so that certain
provisions contained in Schedule 1 of the Victorian Civil and
Administrative Tribunal Act 1998 relating to the Act will refer
to the Commissioner rather than the Commission in order to
reflect the Commissioner's complaint handling and conciliation
role.
Clause 19 provides for the amending Act to be repealed on 1 October 2010.
The repeal of this Act does not affect in any way the operation of
the amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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