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EQUAL OPPORTUNITY BILL 2010

           Equal Opportunity Bill 2010

                         Introduction Print

               EXPLANATORY MEMORANDUM


                                  General
The Equal Opportunity Bill 2010 repeals and replaces the Equal
Opportunity Act 1995. The Bill also includes consequential amendments to
the Racial and Religious Tolerance Act 2001, the Victorian Civil and
Administrative Tribunal Act 1998 and other Acts as set out in the
Schedule.

                               Background
In 2007, the Attorney-General commissioned the former Public Advocate,
Mr Julian Gardner, to conduct a review of certain parts of the Equal
Opportunity Act 1995. Mr Gardner's Report, An Equality Act for a Fairer
Victoria (Gardner Report), was released in June 2008 and made
93 recommendations to reform the Equal Opportunity Act 1995.
In 2008, the Scrutiny of Acts and Regulations Committee of Parliament
(SARC) received a reference to inquire into, consider and report to
Parliament on whether any amendments should be made to the exceptions
and exemptions in the Equal Opportunity Act 1995. SARC issued its final
report on exceptions and exemptions to the Equal Opportunity Act 1995
(SARC Report) in November 2009.
The Government has responded to the Gardner Report and the SARC Report
in two stages.
The first stage saw the passage of the Equal Opportunity Amendment
(Governance) Act 2009, which implemented recommendations in the
Gardner Report relating to the creation of a new governance structure of the
Victorian Equal Opportunity and Human Rights Commission (Commission),
including the creation of a Commissioner position and a larger Board with
strategic oversight functions. The Equal Opportunity Amendment
(Governance) Act 2009 commenced operation on 1 October 2009.
This Bill is the second stage of the Government's response and improves the
efficiency and effectiveness of the law relating to equal opportunity. One of
the objectives of the Equal Opportunity Act 1995 is to "eliminate, as far as
possible, discrimination against people by prohibiting discrimination on the

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basis of various attributes". The Equal Opportunity Act 1995 relies heavily upon the individual victim of discrimination, sexual harassment and victimisation to pursue complaints through the Commission and often the Victorian Civil and Administrative Tribunal (Tribunal) in order to resolve their complaint. The Commission focused on the processing of these individual complaints, without having the necessary tools to resolve the underlying causes of the discrimination. The Gardner Report recognised this was neither an effective nor an efficient way to eliminate discrimination, particularly where that discrimination affects a broader group of people than the individual victim. This Bill creates a streamlined dispute process whereby individuals can seek a remedy for discrimination, sexual harassment and victimisation. The Bill enables the Commission to provide greater practical assistance not only to encourage and facilitate dispute resolution, but also to identify and resolve the underlying causes and effects of discrimination and to achieve the progressive realisation of substantive equality, as far as reasonably practicable. In particular, the Bill will-- shift the Commission's primary focus from complaints processing to encouraging and facilitating best practice and compliance through education, information and advice; give the Commission more effective options to respond to systemic discrimination; encourage best practice and proactive compliance by duty holders without reliance on individual complaints; empower the Commissioner to provide a more effective and efficient dispute resolution system that emphasises early dispute resolution through flexible and appropriate dispute resolution services at the Commission, while allowing complainants to apply directly to the Tribunal to have their matter determined; remove many legal and technical barriers to the elimination of discrimination and the progressive realisation of substantive equality as far as reasonably practicable; clarify, update and amend several exceptions to unlawful discrimination. 2

 


 

Clause Notes PART 1--PRELIMINARY Clause 1 sets out the purposes of the Bill. The main purpose of the Bill is to re-enact and extend the law relating to equal opportunity and protection against discrimination, sexual harassment and victimisation. The Bill also amends the Racial and Religious Tolerance Act 2001 in relation to dispute resolution and makes consequential amendments to other Victorian Acts. Clause 2 provides for a staggered commencement of the Bill. Part 16 of the Bill, which clarifies the powers and functions of the Commissioner and the Board, comes into operation on the day after the Bill receives Royal Assent. The rest of the Bill, with the exception of Part 17, will come into operation on 1 August 2011 if not proclaimed before that date. The changes to the definitions of employer, employee and employment to extend the application of the Bill to unpaid workers and volunteers will come into operation on 1 July 2012. The delayed commencement will allow organisations that use unpaid workers and volunteers to prepare for commencement. Clause 3 sets out the objectives of the Bill. The objectives guide the Commission across all of their functions in the Bill, including when deciding to conduct an investigation (clause 127) and as the basis for conducting education and research (clause 156 and 157 respectively). Paragraph (a) provides that the first objective is to eliminate discrimination, sexual harassment and victimisation, to the greatest possible extent. This is a continuation of the objectives in paragraphs (b) and (c) of section 3 of the Equal Opportunity Act 1995. Paragraph (b) provides that the second objective is to further promote and protect the right to equality set out in the Charter of Human Rights and Responsibilities. Paragraph (c) provides that the third objective is to encourage the identification and elimination of systemic causes of discrimination, sexual harassment and victimisation. For example, some discrimination results from policies and 3

 


 

practices that are entrenched in organisations or in society more broadly. Paragraph (d) provides that the fourth objective is to promote and facilitate the progressive realisation of equality, as far as reasonably practicable by recognising that-- discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society; equal application of a rule to different groups can have unequal results or outcomes; the achievement of substantive equality may require the making of reasonable adjustments, reasonable accommodation and special measures. Progressive realisation refers to the gradual implementation of measures over time. This will be dependent on the resources and capacity of duty holders. Paragraph (e) provides that the fifth objective is to enable the Commission to encourage best practice and compliance with this Act by undertaking research, educative and enforcement functions. Paragraph (f) provides that the sixth and final objective is to enable the Commissioner to resolve disputes about discrimination, sexual harassment and victimisation in a timely and effective manner and to also provide direct access to the Tribunal for resolution of such disputes. Clause 4 sets out the definitions that apply across the Bill. Accommodation The Bill re-enacts the definition of accommodation that was in the Equal Opportunity Act 1995. Appointed member The Bill re-enacts the definition of appointed member that was in the Equal Opportunity Act 1995. An appointed member of the Board is a member of the Board other than the Commissioner. 4

 


 

Assistance dog The Bill replaces the definition of guide dog that was in the Equal Opportunity Act 1995 with a new definition of assistance dog. The definition of assistance dog is broader than the repealed definition of guide dog because it is not limited to dogs assisting people with hearing, visual or mobility impairments but instead applies to a dog trained to assist a person with any impairment to alleviate the effects of the impairment. For example, a dog trained to assist a person with a psychiatric or seizure disorder, would fall within the definition of assistance dog. The definition specifically refers to a dog that is trained to perform tasks or functions as it is not intended to apply to companion or comfort dogs. However, the definition may include assistance with navigating social interactions where the nature of the impairment is such that this helps to alleviate the impairment. Attribute The Bill re-enacts the definition of attribute that was in the Equal Opportunity Act 1995 and refers to attributes listed in clause 6 of the Bill. Board The Bill re-enacts the definition of Board that was in the Equal Opportunity Act 1995 and refers to the Board of the Commission established under clause 161. Breastfeeding The Bill re-enacts the definition of breastfeeding that was in the Equal Opportunity Act 1995. Carer The Bill re-enacts the definition of carer that was in the Equal Opportunity Act 1995. Child The Bill re-enacts the definition of child that was in the Equal Opportunity Act 1995. Club The Bill replaces the definition of club that was in the Equal Opportunity Act 1995. The Bill defines club as an association of more than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that has a licence (other than a temporary limited licence or a major 5

 


 

event licence) to supply liquor under the Victorian Liquor Control Reform Act 1998, and that operates its facilities wholly or partly from its own funds. This definition is in line with the definition of club in section 4 of the Commonwealth Sex Discrimination Act 1984. Temporary limited licences and major event licences are issued for events over a limited period or for one-off events. The definition of club will not apply to associations that obtain these. Commission The Bill re-enacts the definition of Commission that was in the Equal Opportunity Act 1995. The Commission is continued under clause 154. Commissioner The Bill re-enacts the definition of Commissioner that was in the Equal Opportunity Act 1995. Contract worker The Bill re-enacts the definition of contract worker that was in section 15(3) of the Equal Opportunity Act 1995. Detriment The Bill re-enacts the definition of detriment that was in the Equal Opportunity Act 1995. Discrimination Discrimination is defined as having the meaning given in Part 2 of the Bill. Dispute The Bill replaces the term complaint that was used in the Equal Opportunity Act 1995 with the term dispute, which reflects the new dispute resolution process set out in Part 8 of the Bill. A dispute is defined as a dispute about compliance with the Bill. Dispute resolution The Bill includes a new dispute resolution process in Part 8, which replaces the complaint process in Part 7 of the Equal Opportunity Act 1995. Dispute resolution is defined as that which is conducted by the Commissioner under Division 1 of Part 8. 6

 


 

Domestic partner The Bill re-enacts the definition of domestic partner that was in the Equal Opportunity Act 1995. The definition of domestic partner includes registered and unregistered domestic partners. The definition of relative also includes the spouse or domestic partner of that person and is thereby included within the meaning of personal association in clause 6 of the Bill. Educational authority The Bill re-enacts the definition of educational authority that was in the Equal Opportunity Act 1995. Educational institution The Bill re-enacts the definition of educational institution that was in the Equal Opportunity Act 1995. Employee The definition of employee that was in the Equal Opportunity Act 1995 has been re-enacted but will be amended commencing on 1 July 2012 through Part 17 of the Bill to include, rather than exclude, a person who performs work on a voluntary or unpaid basis. Employer The definition of employer that was in the Equal Opportunity Act 1995 has been re-enacted but will be amended commencing on 1 July 2012 through Part 17 of the Bill to include, rather than exclude, a person for whom another person performs work on a voluntary or unpaid basis. Employment The definition of employment that was in the Equal Opportunity Act 1995 has been re-enacted but will be amended commencing on 1 July 2012 through Part 17 of the Bill to include, rather than exclude, work that is performed on a voluntary or unpaid basis. Employment activity The Bill re-enacts the definition of employment activity that was in the Equal Opportunity Act 1995. Employment agent The Bill re-enacts the definition of employment agent that was in the Equal Opportunity Act 1995. 7

 


 

Employment entitlements The Bill re-enacts the definition of employment entitlements that was in the Equal Opportunity Act 1995 (as amended by the Fair Work (Commonwealth Powers) Amendment Act 2009). Enactment The Bill re-enacts the definition of enactment that was in the Equal Opportunity Act 1995. Fair Work Australia The Bill re-enacts the definition of Fair Work Australia that was in the Equal Opportunity Act 1995. Firm The Bill re-enacts the definition of firm that was in the Equal Opportunity Act 1995. Gender identity The Bill re-enacts the definition of gender identity that was in the Equal Opportunity Act 1995. Home The Bill re-enacts the definition of home that was in the Equal Opportunity Act 1995. Impairment The definition of impairment that was in the Equal Opportunity Act 1995 has been amended in the Bill to include a future impairment (including because of a genetic predisposition to the impairment) and also behaviour that is a symptom or manifestation of an impairment. The reference to "behaviour that is a manifestation of the impairment" is for the avoidance of doubt and is not intended to limit the characteristic extension that may apply to other attributes in accordance with clause 7(2). Industrial activity The Bill re-enacts the definition of industrial activity that was in the Equal Opportunity Act 1995. Industrial association The Bill re-enacts the definition of industrial association that was in the Equal Opportunity Act 1995. 8

 


 

Industrial organisation The definition of industrial organisation that was in the Equal Opportunity Act 1995 has been amended to refer to a State or Commonwealth Act (as well as an enactment). Lawful sexual activity The Bill re-enacts the definition of lawful sexual activity that was in the Equal Opportunity Act 1995. Marital status The Bill re-enacts the definition of marital status that was in the Equal Opportunity Act 1995. Member of staff The Bill re-enacts the definition of member of staff that was in the Equal Opportunity Act 1995. Occupational qualification The Bill re-enacts the definition of occupational qualification that was in the Equal Opportunity Act 1995. Owners corporation The Bill incorporates the definition of owners corporation used in the Owners Corporation Act 2006. Owners corporation is defined in the Owners Corporation Act 2006 as a body corporate which is incorporated by registration of a plan of subdivision or a plan of strata or cluster subdivision. Parent The Bill re-enacts the definition of parent that was in the Equal Opportunity Act 1995. Parental status The Bill re-enacts the definition of parental status that was in the Equal Opportunity Act 1995. Party The definition of party replaces the definition of party in the Equal Opportunity Act 1995 and now encompasses people that can bring a dispute under the dispute resolution process under Part 8 and a person about whom a dispute is brought. Person The Bill re-enacts the definition of person that was in the Equal Opportunity Act 1995. 9

 


 

Physical features The Bill re-enacts the definition of physical features that was in the Equal Opportunity Act 1995. Political belief or activity The Bill re-enacts the definition of political belief or activity that was in the Equal Opportunity Act 1995. Practice guidelines Practice guidelines are those guidelines issued by the Commission in accordance with Division 1 of Part 10 of the Bill. Principal The Bill re-enacts the definition of principal that was in section 15(3) of the Equal Opportunity Act 1995. Qualifying body The Bill re-enacts the definition of qualifying body that was in the Equal Opportunity Act 1995. Race The Bill re-enacts the definition of race that was in the Equal Opportunity Act 1995. Relative The definition of relative in the Bill is the same as the definition that was used in the Equal Opportunity Act 1995 except that paragraph (c) clarifies that it is irrelevant whether or not a grandchild (as well as a child) is under the age of 18. Religious belief or activity The Bill re-enacts the definition of religious belief or activity that was in the Equal Opportunity Act 1995. Services The Bill re-enacts the definition of services that was in the Equal Opportunity Act 1995. Sexual orientation The Bill re-enacts the definition of sexual orientation that was in the Equal Opportunity Act 1995. Spouse The Bill re-enacts the definition of spouse that was in the Equal Opportunity Act 1995. 10

 


 

State owned enterprise The Bill re-enacts the definition of State owned enterprise that was in the Equal Opportunity Act 1995. Terms The Bill re-enacts the definition of terms that was in the Equal Opportunity Act 1995. Tribunal The Bill re-enacts the definition of Tribunal that was in the Equal Opportunity Act 1995. Work arrangements The Bill re-enacts the definition of work arrangements that was in the Equal Opportunity Act 1995. Clause 5 provides for the Bill to bind the Crown. PART 2--WHAT IS DISCRIMINATION Clause 6 lists the attributes on the basis of which discrimination is prohibited under the Act. The attributes listed in clause 6 are the same attributes that were protected under the Equal Opportunity Act 1995. Clause 7 sets out the meaning of discrimination for the purposes of the Bill. Discrimination means-- direct or indirect discrimination on the basis of an attribute; a contravention of the requirements to-- not unreasonably refuse to accommodate parental or carer responsibilities in the employment and employment-related contexts; make reasonable adjustments for people with impairments in the employment and employment-related areas, and in education and the provision of goods and services; allow reasonable alterations to accommodation to meet the special needs of a person with an impairment; 11

 


 

not refuse to provide accommodation to a person with an impairment because he or she has an assistance dog or to require the person to pay an extra charge or to keep the assistance dog elsewhere-- as provided for in clauses 17, 19, 20, 22, 32, 33, 40, 45, 54, 55 and 56; discrimination on the basis of an actual or presumed attribute, or on the basis of a characteristic that a person with the attribute generally has or that is imputed to that attribute. Clause 7(1)(b) is similar to section 7(1) of the Equal Opportunity Act 1995 except that it lists new stand alone duties to make reasonable adjustments for persons with an impairment and to make reasonable alterations to common property. Like the existing duties to not unreasonably refuse to accommodate a worker's parental or carer responsibilities, a breach of these new stand alone duties will amount to discrimination without needing to prove direct or indirect discrimination. In addition, subclause (3) has been inserted to clarify that if a person with an impairment is accompanied by or possesses an assistance aid, being accompanied by or in possession of the assistance aid is taken to be a characteristic that a person with that impairment generally has. Assistance aid is defined broadly to encompass equipment, a person providing assistance or services and an assistance dog. Some situations where assistance aids are used would already covered by subclause (2)(b). The intention of subclause (3) is to avoid situations where, if a person is unable to prove that others with the same impairment generally use the supports they do the person's complaint will fail, such as in Walker v State of New South Wales [2003] ADT 13. Clause 8 defines direct discrimination. Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of the attribute. Clause 8 differs from section 8 of the Equal Opportunity Act 1995 as it removes the requirement to prove that the treatment was less favourable than the person would treat someone without the attribute or with a different attribute, in the same or similar circumstances and replaces that "comparator test" with a new test based on unfavourable treatment. The intention of the new definition is to overcome the unnecessary technicalities 12

 


 

associated with identifying an appropriate comparator when assessing whether direct discrimination has occurred. Subclause (2) is similar to section 8(2) of the Equal Opportunity Act 1995 but paragraph (a) refers to "unfavourable treatment" instead of "less favourable treatment" to reflect the removal of the "comparator test". Clause 9 defines indirect discrimination. Indirect discrimination occurs is a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with an attribute and that is not reasonable. The new definition simplifies the definition in section 9 of the Equal Opportunity Act 1995 by removing unnecessary technicalities and providing clarity around the factors to consider in determining whether a requirement, condition or practice is reasonable. Clause 9 changes the test for indirect discrimination from section 9 of the Equal Opportunity Act 1995 by-- removing the requirement that the person claiming indirect discrimination must demonstrate that he or she cannot comply with the requirement, condition or practice and instead requiring the person to show that the requirement, condition or practice causes, or is likely to cause, him or her disadvantage removing the requirement that the person claiming indirect discrimination must establish that a substantially higher proportion of people without the attribute that he or she has can comply with the requirement, condition or practice (proportionality test); shifting the onus of proof regarding the reasonableness of the requirement, condition or practice from the person claiming indirect discrimination to the person who imposed or proposes to impose it; extending the factors to be considered in determining whether a requirement, condition or practice is reasonable. Requiring the person imposing the requirement, condition or practice to demonstrate that it is reasonable in all of the circumstances reflects the fact that information necessary to make an assessment of what is reasonable is most likely to lie 13

 


 

with the person who has imposed the requirement, condition or practice and not the person claiming indirect discrimination. None of the factors listed in subclause (3) are determinative on their own and there may be other factors that are relevant to a particular case. In addition, the reference in subclause (3)(e) to "reasonable adjustments" is not intended to be restricted to the duties to make reasonable adjustments for people with impairments in clauses 20, 33, 40 and 45. In the context of indirect discrimination, the concept of reasonable adjustments has a general meaning that could apply to other attributes. Similarly, the reference to "reasonable accommodation" subclause (3)(e) is not restricted to duties not to unreasonably refuse to accommodate parental and carer responsibilities in clauses 17, 19, 22 and 32. Clause 10 provides that in determining whether a person discriminates, the person's motive for discriminating is irrelevant. For example, an employer who refuses to employ a person because of their race, not because the employer dislikes people of that race, but because the employer believes that the person would be mistreated by other staff, some of whom are prejudiced against people of that race, still discriminates against the person. Clause 10 re-enacts section 10 of the Equal Opportunity Act 1995. Clause 11 provides that it is irrelevant whether discrimination occurs by a person-- acting alone or in association with any other person; doing an act or omitting to do an act. Clause 11 re-enacts section 11 of the Equal Opportunity Act 1995. Clause 12 provides that taking measures for the purpose of promoting or realising substantive equality for members of a group with a particular attribute is not discrimination. Including the special measures provision within Part 2 of the Bill reflects the intention that special measures be viewed as a means of progressively realising substantive equality, rather than as an exception to discrimination. The objectives of the Bill also recognise special measures as one of the means by which equality may be progressively realised, as far as reasonably practical. 14

 


 

Subclause (1) requires that a special measure must have the purpose of promoting or realising substantive equality for members of a group with a particular attribute. The reference to "members of a group with a particular attribute" is intended to also encompass a group with one or more attributes. For example, special measures may be taken for the benefit of young hearing-impaired men. Subclause (3) lists factors that a measure must satisfy in order to be deemed a special measure for the purposes of the Bill. These factors reflect the intention that the purpose of a special measure must be necessary, genuine, objective, and justifiable. In addition, the measure itself must be reasonably likely to achieve its remedial purpose and be a proportionate means of achieving that purpose. These factors do not specifically require consultation with the group that is to be assisted or advanced by the measure in question. However, in practice, evidence of some consultation with the group to be assisted or advanced is likely to be necessary. It is not intended that special measures under clause 12 authorise conduct that is not wanted and not welcome by the target group. Subclause (4) allows a special measure to be taken for multiple purposes as long as one of the purposes is to promote or realise substantive equality in accordance with subclause (1) (and the measure satisfies the factors in subclause (3)). Subclause (5) allows a person who takes a special measure to impose reasonable restrictions on eligibility for the measure. This recognises that the person may be subject to budgetary or other constraints and allows the eligibility for special measures to be limited to a subset of the target group, such as people in the target group who are of a particular age. Subclause (6) provides that the burden of proving that a measure is a special measure for the purposes of clause 12 lies with the person undertaking the measure. It is intended that the standard of proof is the ordinary civil standard of the balance of probabilities. If the person taking the measure cannot show it is a special measure, then it may be unlawful discrimination. 15

 


 

Subclause (7) provides that on achieving the purpose of promoting or realising substantive equality the measure will cease to be a special measure. This means that continuation of a special measure past the point where substantive equality has been achieved would be discriminatory. However, it is intended to allow a person to continue the special measure if removing the special measure would result in a decline in substantive equality, such as where substantive equality may on its face appear to have been achieved but cannot be sustained unless the special measure continues to operate. Clause 13 provides for the effect of exceptions and exemptions from the scope of discrimination prohibited by the Bill. This replaces section 12 of the Equal Opportunity Act 1995. Clause 13 clarifies that conduct will not be unlawful discrimination if an exception or an exemption applies. It clarifies that this will be the case where an exception in the same Division as the prohibition on the conduct applies or if a general exception applies. Subclause (1)(b) clarifies that in cases where the conduct may be characterised as prohibited conduct under more than one Division, an exception may apply, regardless of the way in which the conduct is characterised in a dispute. Subclause (2) provides that an exception or an exemption is a defence to discrimination and that the onus is on the person relying on the exception to show that it applies. PART 3--DUTY TO ELIMINATE DISCRIMINATION Clause 14 provides that the purpose of Part 3 of the Bill is to promote the taking of positive action to eliminate discrimination, sexual harassment and victimisation. Clause 15 requires duty holders under Part 4, 6 or 7 of the Bill to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation as far as possible. The duty is aimed at overcoming the limitations of a complaints-based system (as in the Equal Opportunity Act 1995) in addressing entrenched and systemic discrimination. A complaints-based system only makes an assessment of whether there has been compliance with the Bill after a complaint has been lodged. This means that if no complaints are lodged, compliance is taken for granted (often erroneously). The complaints-based system places the burden on the individual to complain and not on the organisation to comply. 16

 


 

The duty will mean that duty holders will need to think proactively about their compliance obligations rather than waiting for a dispute to be brought to elicit a response. It may involve organisations doing such things as-- identifying potential areas of non-compliance; developing a strategy for meeting and maintaining compliance (such as undertaking training or establishing policies); reviewing and improving compliance where appropriate. It is intended that, by stating the existing obligations in a positive and explicit way that does not rely on an individual dispute being brought, this duty will promote proactive compliance with the Bill and provide the Commission with a platform to facilitate compliance in the absence of a dispute. Subclause (3) provides that a contravention of the duty will not be able to be the subject of a dispute under Part 8 of the Bill. If the contravention of the duty is of a serious nature and relates to a class or group of people, the Commission may decide to conduct an investigation under Part 9 of the Bill, if the investigation would advance the objectives of the Bill. If an investigation reveals that a breach of the duty has occurred, is occurring or is occurring, the Commission will be able to take appropriate enforcement action in accordance with Division 4 of Part 9 of the Bill. Subclause (5) provides that the duty is in addition to the existing obligations of duty holders not to engage in discrimination, sexual harassment or victimisation. The duty is also in addition to the duty on public authorities in section 38 of the Charter of Human Rights and Responsibilities to act compatibly with the Charter. The duty is to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation as far as possible. The words "as far as possible", combined with the assessment of whether measures are reasonable and proportionate, will ensure that compliance with the duty is appropriate and proportionate to the size and operations of the duty holder. Subclause (6) sets out specific considerations that are relevant in assessing whether a measure is reasonable and proportionate. 17

 


 

PART 4--WHEN IS DISCRIMINATION PROHIBITED? Division 1--Discrimination in employment Clause 16 specifies the circumstances where an employer is prohibited from discriminating against a job applicant and re-enacts section 13 of the Equal Opportunity Act 1995. Clause 17 provides that an employer must not, in relation to the work arrangements of a person offered employment, unreasonably refuse to accommodate the responsibilities that the person has as a parent or carer. In this case, work arrangements means arrangements that would apply to the person as an employee, or arrangements applying to the workplace. Clause 17 re-enacts section 13A of the Equal Opportunity Act 1995. Subclause (1) includes examples of how an employer may be able to accommodate the responsibilities that the person has as a parent or carer, such as by offering work on the basis that the person could work additional daily hours to provide for a shorter working week or occasionally work from home. There may be other ways that an employer can accommodate a person's parental or carer responsibilities but this will depend on the particular circumstances of the case. clause (2) provides that all relevant facts and circumstances must be considered in determining whether an employer unreasonably refuses to accommodate the person's responsibilities as a parent or carer. These facts and circumstances include-- the person's circumstances, including the nature of his or her responsibilities as a parent or carer; the nature of the role that is on offer; the nature of the arrangements required to accommodate the person's responsibilities as a parent or carer; the financial circumstances of the employer; the size and nature of the workplace and the employer's business; 18

 


 

the effect on the workplace and the employer's business of accommodating those responsibilities, including-- the financial impact of doing so; the number of persons who would benefit from or be disadvantaged by doing so; the impact on efficiency and productivity and, if applicable, on customer service of doing so; the consequences for the employer of making such accommodation; the consequences for the person of not making such accommodation. None of the factors listed in subclause (2) are determinative on their own and there may be other factors that are relevant to a particular case. The references to "workplace" in subclauses (2)(e) and (f) are intended to acknowledge that businesses may have multiple workplaces and to allow an appropriate assessment in the particular context. A contravention of clause 17 will be discrimination. Clause 18 re-enacts section 14 of the Equal Opportunity Act 1995 and specifies the circumstances where an employer is prohibited from discriminating against an employee. Clause 19 re-enacts section 14A of the Equal Opportunity Act 1995. Subclause (1) provides that an employer must not, in relation to the work arrangements of an employee, unreasonably refuse to accommodate the responsibilities that the employee has as a parent or carer. In this case, work arrangements means arrangements applying to the employee or to the workplace. Subclause (1) includes examples of how an employer may be able to accommodate an employee's parental or carer responsibilities, such as by allowing the employee to work from home on Wednesday mornings or have a later start time on that day or, if the employee works part-time, by rescheduling a regular staff meeting so that the employee can attend. There may be other ways that an employer can accommodate an employee's parental or carer responsibilities, such as by allowing an extension of unpaid leave, but this will depend on the particular circumstances of the case. 19

 


 

Subclause (2) provides that all relevant facts and circumstances must be considered in determining whether an employer unreasonably refuses to accommodate the employee's responsibilities as a parent or carer, and sets out a list of factors that could be relevant. These factors are similar to those listed in clause 17(2). None of the factors listed in subclause (2) are determinative on their own and there may be other factors that are relevant to a particular case. For example, relevant considerations in a particular case might include when proposed work arrangements are to commence and for how long they are to continue, what information has been provided by the employee in respect of their circumstances and the ability of the employer to reorganise the employee's work. The references to "workplace" in subclauses (2)(e) and (f) are intended to acknowledge that businesses may have multiple workplaces and to allow an appropriate assessment in the particular context. A contravention of clause 19 will be discrimination. Clause 20 provides that if a person who is offered employment or an employee has an impairment and requires adjustments in order to perform the genuine and reasonable requirements of the employment, the employer must make reasonable adjustments unless the person or employee could not adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made. Subclause (2) includes examples of ways in which an employer could make adjustments for a person with an impairment. An employer may be able to make adjustments such as-- providing a ramp for access to the workplace or particular software packages for computers; modifying work instructions or reference manuals; allowing a person to be absent during work hours for rehabilitation, assessment or treatment; allowing a person to take more frequent breaks during work hours. There may be other ways that an employer can make adjustments for a person's or employee's impairment but this will depend on the particular circumstances of the case. 20

 


 

Subclause (3) provides that in determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered, and sets out a list of factors that must be considered. The references to "workplace" in subclauses (3)(e) and (f) are intended to acknowledge that businesses may have multiple workplaces and to allow an appropriate assessment in the particular context. There may be other factors that are relevant to a particular case and none of the factors listed in subclause (3) are determinative on their own. Subclause (4) provides that in determining whether or not a person or employee can or could adequately perform the genuine and reasonable requirements of the employment, all relevant factors and circumstances must be considered, including-- the person's or employee's training, qualifications and experience; the person's or employee's current performance in the employment, if applicable. In creating this positive duty to make reasonable adjustments, it is not intended to preclude a person with an impairment from taking other action under the Bill for direct or indirect discrimination or otherwise affect the way in which the reasonableness of a requirement, condition or practice is considered in the context of indirect discrimination. A contravention of clause 20 will be discrimination. Clause 21 re-enacts section 15 of the Equal Opportunity Act 1995 and specifies the circumstances where a principal is prohibited from discriminating against a contract worker. A contract worker is a person who does work for another person (the principal) under a contract between the person's employer and the principal. A person does not discriminate against a contract worker if the principal does or omits to do anything in relation to the contract worker that would not contravene the Bill if done or omitted to be done by the employer of the contract worker. 21

 


 

Clause 22 re-enacts section 15A of the Equal Opportunity Act 1995. Subclause (1) provides that a principal must not, in relation to the work arrangements of a contract worker, unreasonably refuse to accommodate the responsibilities that the contract worker has as a parent or carer. In this case, work arrangements means arrangements that apply to the contract worker or to the principal's workplace. Subclause (1) includes an example of how a principal may be able to accommodate a contract worker's parental or carer responsibilities, that is by allowing the contract worker to have flexible start, finish or break times. There may be other ways that a principal can accommodate a contract worker's parental or carer responsibilities but this will depend on the particular circumstances of the case. Subclause (2) provides that all relevant facts and circumstances must be considered in determining whether a principal unreasonably refuses to accommodate the contract worker's responsibilities as a parent or carer, and sets out a list of factors that could be relevant. These factors are similar to those listed in clause 17(2). There may be other factors that are relevant to a particular case and none of the factors listed in subclause (2) are determinative on their own. The references to "workplace" in subclauses (2)(e) and (f) are intended to acknowledge that businesses may have multiple workplaces and to allow an appropriate assessment in the particular context. A contravention of clause 22 will be discrimination. Clause 23 allows an employer to discriminate against a person on the basis of impairment in any of the areas currently specified in clauses 16 and 18 of the Bill if the person requires adjustments in order to perform the genuine and reasonable requirements of the employment and-- the adjustments are not reasonable, or the person could not perform the genuine and reasonable requirements of the employment even if the adjustments were made. This exception requires an employer to, if the duty under clause 20 to make reasonable adjustments applies to the person or employee who requires adjustments, first apply that duty before being able to take any further action that would otherwise amount to unlawful discrimination, such as dismissing an employee or limiting the employee's access to training. 22

 


 

Clause 24 provides an exception in relation to employment to provide domestic or personal services, including the care, instruction or supervision of children, for a person in that person's home. Clause 24 replaces section 16 of the Equal Opportunity Act 1995. It clarifies that the exception is intended to cover employment to provide personal or domestic services only in the home of the person who is to receive the services. It is intended that the exception apply regardless of whether-- the person directly employs the service provider; or another person, such as a carer, relative or proprietor of a retirement village employs the service provider on behalf of the person receiving the service; or whether the person is employed through an agency to provide the services. Clause 25 provides an exception for employment that involves the care, instruction or supervision of children. The prohibitions in clause 16 and 18 do not apply to discrimination by an employer against a prospective employee or an employee if the employment involves the care, instruction or supervision of children and the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of the children. Like current section 25 of the Equal Opportunity Act 1995, the exception, does not apply to post secondary education providers. Clause 26 allows employers to limit the offering of employment to people of one sex where it is a genuine occupational requirement that employees be people of that sex. This clause re-enacts section 17 of the Equal Opportunity Act 1995. Subclause (2) non-exhaustively lists situations which fall within this exception. The situations include where the employment can only be performed by a person having particular physical characteristics (other than strength or stamina) and where the employment needs to be performed by a person of a particular sex to preserve decency or privacy. Subclause (2) provides examples of types of jobs that fall into that category such as where the job involves fitting clothes or conducting body searches. 23

 


 

Subclause (3) allows employers to limit the offering of employment to people of a particular age, sex or race, or to people with or without a particular impairment in relation to a dramatic or artistic performance, entertainment, photographic or modelling work or any other employment if it is required for authenticity or credibility. An example of employment other than dramatic or artistic related work that may require discrimination for authenticity is the employment of an Indigenous person to provide educational information about Indigenous culture at a cultural centre. Subclause (4) allows employers to discriminate on the basis of physical features in the offering of employment in relation to a dramatic or artistic performance, photographic or modelling work or any similar employment. The term "similar employment" in this subclause limits the exception to dramatic or artistic related work for which a person's physical features are relevant. Clause 27 allows discrimination on the grounds of political belief or activity in the offering of employment to a person as a ministerial adviser, member of staff of a political party, member of the electorate staff of any person or any similar employment. It is intended that this exception apply only to employment where a person's political belief or activity is relevant to the job. Clause 27 re-enacts section 18 of the Equal Opportunity Act 1995. Clause 28 allows an employer to limit an offer of employment to people with a particular attribute where the employment is to provide services that are special measures under clause 12 or meet the special needs of people with a particular attribute under clause 88 if those services can be provided most effectively by people with that attribute. Clause 28 is similar to section 19 of the Equal Opportunity Act 1995 but has been amended to clarify that the exception allows an employer to limit the offering of employment to people with a particular attribute in relation to the provision of services that are special measures (within the meaning of clause 12) or services that meet the special needs of groups with a particular attribute (within the meaning of clause 88), if those services can be provided most effectively by people with that attribute. 24

 


 

The circumstances in which a service "can be provided most effectively" by a person with the same attribute as the target group of the services is not defined in the clause, as there are a range of reasons why services may be provided most effectively by a person from the same group as the target group. For example it may be that only a person from the target group will have insight into the particular issues faced by the target group, or it may not be culturally appropriate to have anyone other than a member from the target group providing the services, or the target group may have a fear or mistrust of anyone who is not from the target group because of their experience. Clause 29 provides that an employer may consider the age of an employee, together with that employee's eligibility to receive a superannuation retirement benefit, in deciding the terms on which to offer an employee an incentive to resign or retire. Clause 29 re-enacts section 27A of the Equal Opportunity Act 1995. Division 2--Discrimination in employment-related areas Clause 30 replaces section 30 of the Equal Opportunity Act 1995. Subclause (1) re-enacts section 30 of the Equal Opportunity Act 1995 by prohibiting a person intending to establish a firm comprising 5 or more partners from discriminating against another person in the terms on which the person is invited to become a partner. Discrimination is only prohibited in relation to the terms of partnership. A person can discriminate in determining who to invite to become a partner while in the process of establishing a firm. Subclause (2) permits a person intending to establish a firm with 4 or less partners to discriminate when offering partnership, if the discrimination is reasonable. It is intended that the term "reasonable" will import the reasonable limitations test in s 7(2) of the Charter of Human Rights and Responsibilities. Clause 31 replaces section 31 of the Equal Opportunity Act 1995. Subclauses (1) and (2) re-enact section 31 of the Equal Opportunity Act 1995. These subclauses specify the circumstances in which it is unlawful for a firm comprising 5 or more partners to discriminate. 25

 


 

Subclauses (3) and (4) provide an exception allowing discrimination by firms with 4 or less partners where it is reasonable. Like clause 30(2), it is intended that the term "reasonable" will import the reasonable limitations test in section 7(2) of the Charter of Human Rights and Responsibilities. An example of a circumstance in which discrimination in a small firm may be reasonable may be where the existing partners are all elderly and wish to select a younger person to join as a partner to secure the long term future of the partnership. Clause 32 re-enacts section 31A of the Equal Opportunity Act 1995. Subclause (1) provides that a firm comprising 5 or more partners must not, in relation to the work arrangements of a person invited to become a partner in the firm or a person who is a partner in the firm, unreasonably refuse to accommodate the responsibilities that the person has as a parent or carer. In the case of a person invited to become a partner in a firm, work arrangements means arrangements that would apply to the person as a partner or arrangements applying to the firm's workplace. In the case of a partner in a firm, work arrangements means arrangements applying to the partner or to the firm's workplace. Subclause (1) includes an example of how a firm may be able to accommodate a person's parental or carer responsibilities by allowing the person to have flexible attendance arrangements. There may be other ways that a firm can accommodate a person's parental or carer responsibilities but this will depend on the particular circumstances of the case. Subclause (2) provides that all relevant facts and circumstances must be considered in determining whether a firm unreasonably refuses to accommodate the person's responsibilities as a parent or carer, and sets out a list of factors that must be considered. These factors are similar to those listed in clause 17(2). There may be other factors that are relevant to a particular case and none of the factors listed in subclause (2) are determinative on their own. A contravention of clause 32 will be discrimination. 26

 


 

Clause 33 provides that if a person invited to become a partner or a partner of a firm has an impairment and requires adjustments in order to perform the genuine and reasonable requirements of partnership in the firm, the firm must make the reasonable adjustments unless the partner or person seeking admission to the firm as a partner could not adequately perform the genuine and reasonable requirements of partnership in the firm even after the adjustments are made. Subclause (2) includes examples of ways in which a firm could make adjustments for a person with an impairment, such as-- making physical adjustments to the office in which the partner would be working; allocating some of the partner's duties to another partner. There may be other ways that a firm can make adjustments for a person's or partner's impairment but this will depend on the particular circumstances of the case. Subclause (3) provides that in determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered, and sets out a list of factors that must be considered. These factors are similar to those listed in clause 20(3). There may be other factors that are relevant to a particular case and none of the factors listed in subclause (3) are determinative on their own. Subclause (4) provides that in determining whether or not a person or partner can or could adequately perform the genuine and reasonable requirements of partnership in the firm, all relevant factors and circumstances must be considered, including-- the person's or partner's training, qualifications and experience; the person's or partner's current performance in partnership, if applicable. In creating this positive duty to make reasonable adjustments, it is not intended to preclude a person with an impairment from taking other action under the Bill for direct or indirect discrimination or otherwise affect the way in which the reasonableness of a condition, practice or requirement is considered in the context of indirect discrimination. A contravention of clause 33 will be discrimination. 27

 


 

Clause 34 allows a firm to discriminate against a person on the basis of impairment in any of the areas currently specified in clauses 30 and 31 of the Bill if the person requires adjustments in order to perform the genuine and reasonable requirements of partnership and: the adjustments are not reasonable, or the person could not perform the genuine and reasonable requirements of partnership even if the adjustments were made. This exception requires a firm to, if the duty under clause 33 to make reasonable adjustments applies to the person or partner who requires adjustments, first apply that duty before being able to take any further action that would otherwise amount to unlawful discrimination, such as expelling the partner from the firm. Clause 35 prohibits discrimination by industrial organisations. An industrial organisation is an organisation of employees, an organisation of employers or any other organisation established for the purposes of people who carry on a particular industry, trade, profession, business or employment. Clause 35 re-enacts section 34 of the Equal Opportunity Act 1995. Clause 36 prohibits discrimination by qualifying bodies. A qualifying body is a person or body that is empowered to confer, renew or extend an occupational qualification. Clause 36 re-enacts section 35 of the Equal Opportunity Act 1995. Clause 37 provides that where a person cannot meet the terms or requirements of an occupational qualification because of an impairment, it is not unlawful discrimination for a qualifying body to set reasonable terms in relation to the occupational requirement, or to make reasonable variations to those terms, so that the person can practise the profession, carry on the trade or business or engage in the occupation or employment to which the qualification relates. Clause 37 is similar to section 36 of the Equal Opportunity Act 1995 but it does not refer to the attribute of physical features. 28

 


 

Division 3--Discrimination in education Clause 38 prohibits discrimination by educational authorities. An educational authority is a person or body administering an educational institution. An educational institution is a school, college, university or other institution at which education or training is provided. Clause 38 re-enacts section 37 of the Equal Opportunity Act 1995. Clause 39 allows educational institutions that operate wholly or mainly for students of a particular sex, race, religious belief, age or age group or students with a general or particular impairment to exclude students without the particular attribute from the school or an educational program. The purpose of this limitation is to allow schools to provide educational settings targeted towards the needs of particular groups. Clause 39 re-enacts section 38 of the Equal Opportunity Act 1995. Clause 40 provides that if a person with an impairment requires adjustments in order to participate or continue to participate or to derive substantial benefit from an educational program of an educational authority, the educational authority must make reasonable adjustments unless the person could not participate or continue to participate or to derive or continue to derive any substantial benefit from the educational program even after the adjustments are made. Subclause (2) includes examples of ways in which an educational authority could make adjustments for a person with an impairment, such as-- providing a teacher's aide or particular software packages for computers; relocating a particular course or event from an inaccessible venue to an accessible one. There may be other ways that an educational authority can make adjustments for a person's impairment but this will depend on the particular circumstances of the case. Subclause (3) provides that in determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered, and sets out a list of factors that must be considered. These factors are similar to those listed in clause 20(3). There may be other factors that are relevant to 29

 


 

a particular case and none of the factors listed in subclause (3) are determinative on their own. In creating this positive duty to make reasonable adjustments, it is not intended to preclude a person with an impairment from taking other action under the Bill for direct or indirect discrimination or otherwise affect the way in which the reasonableness of a requirement, condition or practice is considered in the context of indirect discrimination. A contravention of clause 40 will be discrimination. Clause 41 allows an educational authority to discriminate against a person on the basis of impairment if the person requires adjustments in order to participate or continue to participate in, or to derive or continue to derive substantial benefit from, the educational program of the authority and-- the adjustments are not reasonable; or the person could not participate or continue to participate in, or derive or continue to derive substantial benefit from the educational program even after reasonable adjustments were made. This exception requires an educational authority to first apply the duty to make reasonable adjustments under clause 40 of the Bill before being able to take any further action that would otherwise amount to unlawful discrimination, such as refusing to accept the person's application for admission as a student. Clause 42 allows an educational authority to set and enforce reasonable standards of dress, appearance and behaviour for students. Clause 42 is similar to section 40 of the Equal Opportunity Act 1995 except that subclause (2) amends subsection 40(2) of the Equal Opportunity Act 1995 by providing that the views of the school community are a relevant but not determinative factor in assessing whether the standard is reasonable. Clause 42 is not intended to allow schools to apply standards in a way that unreasonably restricts the rights of students and teachers to adhere to religious dress codes, for example by wearing a turban or hijab. Clause 43 allows educational authorities to select students for a program on the basis of an admission scheme that has a minimum qualifying age (for instance, a student must be 5 years old to start school) or that imposes quotas in relation to students of different age groups. This clause is intended to enable 30

 


 

educational authorities to ensure the different developmental and learning needs of students of different ages can be catered for by schools. Clause 43 re-enacts section 41 of the Equal Opportunity Act 1995. Division 4--Discrimination in the provision of goods and services and disposal of land Clause 44 prohibits discrimination in the provision of goods and services. Services are defined inclusively in clause 4, but exclude education or training in an educational institution because such services are specifically covered by Division 3. However, other services provided by an educational authority are covered by this clause. Clause 44 re-enacts section 42 of the Equal Opportunity Act 1995. Clause 45 provides that if a person with an impairment requires adjustments to be made to the provision of service by another person (referred to as the service provider), the service provider must make reasonable adjustments unless the person could not participate in or access the service, or derive substantial benefit from the service even after the adjustments are made. Subclause (2) includes examples of ways in which a service provider could make adjustments for a person with an impairment, such as-- providing a ramp to enable access to a shop; including subtitles on recorded visual presentations. There may be other ways that a service provider can make adjustments for a person's impairment but this will depend on the particular circumstances of the case. Subclause (3) provides that in determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered, and sets out a list of factors that must be considered. These factors are similar to those listed in clause 20(3). There may be other factors that are relevant to a particular case and none of the factors listed in subclause (3) are determinative on their own. In creating this positive duty to make reasonable adjustments, it is not intended to preclude a person with an impairment from taking other action under the Bill for direct or indirect discrimination or otherwise affect the way in which the 31

 


 

reasonableness of a requirement, condition or practice is considered in the context of indirect discrimination. A contravention of clause 45 will be discrimination. Clause 46 allows a service provider to discriminate against a person with an impairment if the person requires adjustments to be made to the provision of a service in order to participate in or access the service or derive any substantial benefit from the service and-- the adjustments are not reasonable, or the person with the impairment could not participate in or access the service, or derive any substantial benefit from the service even after reasonable adjustments to the service were made. This exception requires a service provider to first apply the duty to make reasonable adjustments under clause 45 of the Bill before being able to take any further action that would otherwise amount to unlawful discrimination, such as refusing to provide services. Clause 47 provides a limited exception to the provision of insurance in the circumstances specified. Like section 43(1)(a) of the Equal Opportunity Act 1995, paragraph (a) provides that an insurer will be able to discriminate in the provision of insurance if the discrimination is permitted under the specified Commonwealth anti- discrimination legislation. Paragraphs (b) and (c) are similar to sections 43(1)(b) and (c) of the Equal Opportunity Act 1995 but have been amended to bring the circumstances in which discrimination in insurance is allowed into line with those in the Commonwealth Age Discrimination Act 2004. Discrimination will be allowed if-- it is based upon actuarial or statistical data on which it is reasonable for the insurer to rely; it is reasonable having regard to that data and any other relevant factors; in a case where no actuarial or statistical data is available and can not reasonably be obtained, the discrimination is reasonable having regard to any other relevant factors. 32

 


 

Clause 48 provides a limited exception, on the basis of age only, for credit providers in the circumstances specified. Clause 48 is similar to section 44 of the Equal Opportunity Act 1995 but has been amended to bring the circumstances in which discrimination is allowed into line with those in the Commonwealth Age Discrimination Act 2004. Clause 48 provides that a credit provider will be able to discriminate on the grounds of age if-- it is based on actuarial or statistical data on which it is reasonable for the credit provider to rely; the discrimination is reasonable having regard to the data; in a case where no actuarial or statistical data is available and can not reasonably be obtained, the discrimination is reasonable having regard to any other relevant factors. Clause 49 allows a person providing goods and service to a child to require the child be accompanied or supervised by an adult if there is a reasonable risk that the child may cause a disruption or endanger himself or herself or another person. This exception is intended to protect the health and safety of children and the general public. Clause 49 re-enacts section 45 of the Equal Opportunity Act 1995. Clause 50 prohibits a person from discriminating against another person in dealings in land. This prohibition on discrimination overrides anything to the contrary in any other legislation or instruments, including in any owners corporation or service company rules in relation to subdivided land. Clause 50 re-enacts section 47 of the Equal Opportunity Act 1995. Clause 75(3) specifically provides that subclause (3) prevails over clause 75 (which authorises discriminatory conduct that is necessitated or authorised by an Act or enactment). Clause 51 allows a person to discriminate against any person on the basis of any attribute in the disposal of land by will or gift. Clause 51 re-enacts section 48 of the Equal Opportunity Act 1995. 33

 


 

Division 5--Discrimination in accommodation Clause 52 prohibits a person from discriminating against another person when offering to provide accommodation to the other person. Accommodation is defined widely in clause 4, and includes both permanent and temporary accommodation and business premises as well as residential accommodation. Clause 52 re-enacts section 49 of the Equal Opportunity Act 1995. Clause 53 prohibits a person from discriminating against another person when providing accommodation to that person in the circumstances specified. Clause 53 re-enacts section 50 of the Equal Opportunity Act 1995. Clause 54 provides that a person must not refuse to provide accommodation to a person with an impairment because that person has an assistance dog, and must not charge any extra because of the dog or require it to be kept elsewhere. Assistance dog is defined in clause 4 as a dog that is trained to perform tasks or functions that assist a person with an impairment to alleviate the effects of their impairment. Subclause (3) provides that the clause does not affect the liability of the person with the assistance dog for any damage caused by the dog. Clause 54 is similar to section 52 of the Equal Opportunity Act 1995, except that there is a new, broader definition of assistance dog (that replaces the term "guide dog") in clause 4. A contravention of clause 54 will be discrimination. Clause 55 requires a person who has provided accommodation to another person with an impairment to allow the other person to make reasonable alterations to the accommodation to meet that person's special needs, if specified conditions are met. These conditions include that the person with the impairment pays for the alterations and agrees to restore the accommodation to its previous condition before leaving. This clause is in addition to and does not affect or take away from any requirements imposed by or under the Building Act 1993. Clause 55 re-enacts section 51 of the Equal Opportunity Act 1995. 34

 


 

Clause 56 provides that where a person with an impairment owns or occupies a lot affected by an owners corporation, the owners corporation must allow the person to make reasonable alterations to common property managed by the owners corporation to meet the person's special needs, if certain specified conditions are met. These conditions are similar to those set out in clause 55 but also include additional conditions specific to common property, being that the alterations do not adversely impact on the interests of-- another occupier who also uses the common property; an owner of a lot within the same plan of subdivision or plan of strata or cluster subdivision; the owners corporation itself. Common property and lot affected by an owners corporation are defined by reference to the Owners Corporation Act 2006. Common property means land shown as common property on a plan of subdivision or a plan of strata or cluster subdivision. Lot affected by an owners corporation means a lot the owner for the time being of which is a member of the owners corporation. It is not intended that the clause would change or replace the mechanism for raising issues and resolving disputes for lot owners and occupiers established under the Owners Corporation Act 2006. A breach of clause 56 will be discrimination. This clause is in addition to and does not affect or take away from any requirements imposed by or under the Building Act 1993. Clause 57 provides that a person must not discriminate against another person on the basis of the other person's impairment in relation to the access to or the use of any premises that the public or a section of the public is entitled or allowed to enter or use, in the circumstances specified. For the purpose of this clause, premises is defined broadly to include a structure, building, aircraft, vehicle or vessel, a place (whether enclosed or built on or not) and a part of premises. Clause 57 is intended to mirror section 23 of the Commonwealth Disability Discrimination Act 1992. 35

 


 

Clause 58 provides an exception to the prohibition on discrimination in relation to the access or use of premises where the person cannot reasonably be expected to avoid the discrimination. Subclause (2) sets out factors that must be taken into account in determining whether the person can be reasonably expected to avoid the discrimination. There may be other factors that are relevant to a particular case and none of the factors listed in subclause (2) are determinative on their own. This exception to unlawful discrimination in relation to access to public premises will generally only relate to physical barriers. Clause 59 provides that a person may discriminate in deciding who is to occupy residential accommodation in which the person or his or her near relative live and intend to continue to live, and that is to accommodate no more than three people in addition to either the person or the person's near relative or the near relatives of the person or the person's near relative. The definition of near relative for the purpose of clause 59 is based on the definition in the Commonwealth Sex Discrimination Act 1984 and the Commonwealth Age Discrimination Act 2004 but replaces the term "de facto spouse" with "domestic partner". The definition provides that a near relative in relation to a person means-- (a) a parent, child, grandparent, grandchild, brother or sister of the person; (b) the spouse or domestic partner of the first-mentioned person or of a person referred to in paragraph (a). Clause 59 is similar to section 54 of the Equal Opportunity Act 1995 but has been amended to align with the Commonwealth Sex Discrimination 1984, the Commonwealth Disability Discrimination 1992 and the Commonwealth Age Discrimination Act 2004. Clause 60 allows hostels or similar institutions which are run wholly or mainly for the welfare of persons of a particular sex, age, race or religious belief to refuse accommodation to people who do not have the particular attribute. For example, this clause would apply to allow an aged care facility targeted at the Greek community, to refuse to accept non-Greek people. Clause 60 re-enacts section 55 of the Equal Opportunity Act 1995. 36

 


 

Clause 61 allows educational authorities that operate an educational institution (including schools, colleges, universities or other education or training institution) wholly or mainly for students of a particular sex, race, religious belief, age or age group or students with a general or particular impairment (as allowed by the exception in clause 39) to provide accommodation wholly or mainly for students with the particular attribute. It is not intended that the exception allow discrimination in the allocation of accommodation to people who have been accepted into the accommodation by the educational authority. Clause 61 re-enacts section 56 of the Equal Opportunity Act 1995. Clause 62 provides that a person may refuse to provide accommodation to another person if the other person intends to use the accommodation for, or in connection with, a lawful sexual activity on a commercial basis, such as a licensed brothel. Clause 62 re-enacts section 57 of the Equal Opportunity Act 1995. Clause 63 re-enacts section 58 of the Equal Opportunity Act 1995 with amendments. Clause 63 provides that the prohibitions in Division 5 of Part 4 of the Bill which relate to discrimination in accommodation and access to public premises override anything to the contrary in any other document relating to the land on which the accommodation or premises are situated. The origins of this clause is in section 30 of the Equal Opportunity Act 1984, which was re-enacted in section 58 of the Equal Opportunity Act 1995. The clause recognises that there are documents created in land transactions and subdivisions that continue to affect land titles decades after their creation. For example, more recent legislative schemes regulating subdivisions and owners corporations have preserved former special rules and by-laws. In addition, privately created agreements, leases and mortgages may contain covenants and obligations that are contrary to provisions in the Bill. Clause 75(3) provides that clause 63(1) prevails over subclause 75 (which authorises discriminatory conduct that is necessitated or authorised by an Act or enactment). 37

 


 

Division 6--Discrimination by clubs and club members Clause 64 re-enacts section 59 of the Equal Opportunity Act 1995. Clause 64 prohibits a club from discriminating against applicants for membership. A club is now defined in clause 4 as an association of more than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that has a licence (other than a temporary limited licence or a major event licence) to supply liquor under the Liquor Control Reform Act 1998, and runs its facilities wholly or partly from its own funds. This definition of club aligns with the approach in the Commonwealth Sex Discrimination Act 1984 and most other Australian jurisdictions. It is intended that associations that do not meet the new definition of club, will not be regulated by the Bill in relation to membership, although they will still be covered in relation to other areas in which discrimination is prohibited by the Bill, such as employment, goods and services, sport and accommodation. Clause 65 prohibits a club from discriminating against members of the club. Clause 65 re-enacts section 60 of the Equal Opportunity Act 1995. Clause 66 provides an exception for clubs that operate principally to preserve a minority culture, to allow them to exclude from membership a person who is not a member of the group of people with an attribute for whom the club was established. Clause 66 re-enacts section 61(b) of the Equal Opportunity Act 1995. Clause 67 allows clubs established for people of a particular age group to exclude from membership people who are outside that age group. Subclause (2) allows all clubs to restrict benefits to different members on the basis of their age where it is reasonable to do so. Clause 67 re-enacts section 62 of the Equal Opportunity Act 1995. 38

 


 

Clause 68 allows clubs to exclude from membership a person on the basis of that person's sex if membership of the club is available only to persons of the opposite sex. Subclause (2) provides that such a club must make its rules of eligibility for membership publicly available, without charge. Clause 69 allows clubs to limit a member's access to benefits on the basis of their sex where it is not practicable for men and women to enjoy the same benefit together and access to the same or an equivalent benefit is provided separately for men and women or men and women are each entitled to a reasonably equivalent opportunity to enjoy the benefit. This exception may apply to allow clubs to limit access to facilities to members of one sex at certain times if the facilities only have change rooms suitable for use by members of one sex at a time. However, if a club does restrict access in this way it would need to provide equivalent access to members of the opposite sex in order to attract the protection of the exception. Clause 69 re-enacts section 63 of the Equal Opportunity Act 1995. Division 7--Discrimination in sport Clause 70 is a definition section for the purposes of Division 7 of Part 4 and defines competitive sporting activity, participating in a sporting activity, sport and sporting activity. Participating in a sporting activity includes-- coaching people involved in a sporting activity; umpiring or refereeing a sporting activity; participating in the administration of a sporting activity. Sporting activity includes games and pastimes, for instance, chess or debating. Clause 70 re-enacts section 64 of the Equal Opportunity Act 1995. Clause 71 provides that a person must not discriminate against another person-- by refusing or failing to select the other person in a sporting team; by excluding the other person from participating in a sporting activity. 39

 


 

Clause 71 re-enacts section 65 of the Equal Opportunity Act 1995. Clause 72 re-enacts section 66 of the Equal Opportunity Act 1995. Subclause (1) together with subclause (3) allows for competitive sporting activities for people over the age of 12 to be restricted to members of one sex where the strength, stamina or physique of the competitors is relevant. It also allows for the exclusion of people on the basis of gender identity from such competitions in those circumstances. Subclause (2) allows competitive sporting activities to be restricted to people who can effectively compete, people of a specified age or age group or people with a general or particular impairment. This clause is intended to allow for fair competition in sport. Division 8--Discrimination in local government Clause 73 prohibits councillors from discriminating against fellow councillors and council committee members in the performance of their public functions. Clause 73 re-enacts section 67 of the Equal Opportunity Act 1995. Clause 74 allows a councillor of a municipal council to discriminate against another councillor or member of a council committee on the grounds of their political belief or activity. This exception is intended to allow councillors to form political alliances within municipal councils. Clause 74 re-enacts section 68 of the Equal Opportunity Act 1995. PART 5--GENERAL EXCEPTIONS TO AND EXEMPTIONS FROM THE PROHIBITION OF DISCRIMINATION Clause 75 allows a person to discriminate if the discrimination is necessary to comply with or is authorised by an Act or enactment. Clause 75 is intended to preserve discriminatory provisions in other Acts or enactments but only applies where the discrimination is authorised or necessitated by that Act or enactment. Enactment is defined in clause 4 to mean a rule, regulation, by-law, local law, order, Order in Council, proclamation of other instrument of a legislative character. Clause 75 re-enacts section 69 of the Equal Opportunity Act 1995. 40

 


 

Clause 76 allows a person to discriminate if the discrimination is necessary to comply with an order of any tribunal or court. Clause 76 re-enacts section 70 of the Equal Opportunity Act 1995. Clause 77 provides that nothing in Part 4 affects discriminatory provisions relating to pensions. Clause 77 re-enacts sections 71 of the Equal Opportunity Act 1995. Clause 78 allows a person to discriminate by retaining an existing discriminatory superannuation fund condition in relation to a person who is a member of the fund and was a member of the fund at 1 January 1996 (the date on which the Equal Opportunity Act 1995 commenced) or who became a member within a period of 12 months after that date. Existing superannuation fund condition refers to a condition of a fund that was in operation at 1 January 1996. Clause 78 re-enacts section 72 of the Equal Opportunity Act 1995. Clause 79 allows a person to discriminate against another person on the basis of age by imposing conditions in relation to a superannuation fund in a number of circumstances. This clause is similar to section 73 of the Equal Opportunity Act 1995 except that paragraphs (c) and (d) have been amended to bring the circumstances in which discrimination is allowed into line with those in the Commonwealth Age Discrimination Act 2004. Discrimination is allowed if-- it is based upon actuarial or statistical data on which it is reasonable for the person to rely; it is reasonable having regard to that data and any other relevant factors; in a case where no actuarial or statistical data is available and can not reasonably be obtained, the discrimination is reasonable having regard to any other relevant factors. 41

 


 

Clause 80 permits discrimination where it is in accordance with the provisions of a charitable deed or will. The purpose of this exception is to enable persons to decide upon whom to confer a charitable benefit. Clause 80 re-enacts section 74 of the Equal Opportunity Act 1995. Clause 81 provides the definition of religious body for the purposes of clauses 82 and 83. This definition is the same as the definition of religious body in section 38(5) of the Charter of Human Rights and Responsibilities. Clause 82 re-enacts and amends section 75 of the Equal Opportunity Act 1995. Clause 82 provides that religious bodies may discriminate in certain circumstances. Subclause (1) re-enacts section 75(1) of the Equal Opportunity Act 1995. It allows religious bodies to discriminate on the basis of any attribute in relation to the-- ordination or appointment of priests, ministers of religion or members of a religious order; or training or education of people seeking ordination or appointment of priests, ministers of religion or members of a religious order; or the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice. The exceptions in subclauses (2) and (3) only apply to discrimination on the basis of a person's religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity. Subclause (2) applies to conduct by religious bodies other than in relation to employment. It allows discrimination that conforms with the doctrines, beliefs or principles of the religion or is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion. The term "doctrines, beliefs or principles" in subclause (2)(a) has been adopted to consolidate the two different terms used in section 75(2)(a) and sections 76(1)(b) and (2) of the Equal Opportunity Act 1995. It is not intended that this consolidated term provide a lower threshold for the exception than that in section 75(2)(a) of the Equal Opportunity Act 1995. 42

 


 

It is intended that the term "reasonably necessary" in subclause (2)(b) require an objective assessment of whether the discrimination is necessary to avoid injury to the religious sensitivities of adherents of the religion. Subclause (3) applies to employment by religious bodies. Subclause (3) allows discrimination where conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position and that the person's religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity means that they do not meet that inherent requirement. Subclause (4) provides that the nature of the religious body and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account when determining whether conformity with religious doctrines is an inherent requirement of a particular position. Clause 83 re-enacts and amends section 76 of the Equal Opportunity Act 1995. Clause 83 provides that religious schools may discriminate in certain circumstances. Subclause (1) provides that the clause applies to a person or body including a religious body that established, directs, controls or administers or is an educational institution that is, or is to be conducted in accordance with religious doctrines beliefs or principles. The exceptions in subclauses (2) and (3) only cover discrimination on the basis of a person's religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity. Subclause (2) allows discrimination by educational institutions, including religious schools, covered by subclause (1) on the attributes covered by the exception (as noted above) in the course of establishing, directing, controlling or administering the educational institution where the discrimination conforms with the doctrines, beliefs or principles of the religion or is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion. This mirrors the threshold for the exception in clause 82(2). Subclause (3) applies to employment by educational institutions, including religious schools, covered by subclause (1). Subclause (3) allows discrimination where conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position and that the person's religious belief or activity, sex, sexual 43

 


 

orientation, lawful sexual activity, marital status, parental status or gender identity means that they do not meet that inherent requirement. Subclause (3) mirrors the threshold for the exception in clause 82(3). Subclause (4) provides that the nature of the educational institution and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account when determining whether conformity with religious doctrines is an inherent requirement of a particular position. Subclause (4) mirrors clause 82(4). Clause 84 re-enacts and amends section 77 of the Equal Opportunity Act 1995. Clause 84 provides that a person may discriminate against another person on the grounds of a person's religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion. It is intended that the term "reasonably necessary" require an objective assessment of whether the discrimination is necessary to conform with the doctrines, beliefs or principles of the person's religion. Clause 85 provides that a person may discriminate against another person who is subject to a legal incapacity because of their age or impairment and the incapacity is relevant to the transaction or activity. Clause 85 is similar to section 79 of the Equal Opportunity Act 1995 except that subclause (2) has been amended to clarify that where a person is subject to a legal incapacity by virtue of his or her age or impairment, it is not unlawful age or impairment discrimination to treat the person differently because of the incapacity in circumstances where the incapacity is relevant to the transaction or activity. It is intended that subclause (2) only allow discrimination that is required because of the incapacity in circumstances where the incapacity is relevant. Clause 86 re-enacts section 80 of the Equal Opportunity Act 1995. Subclause (1) allows discrimination on the basis of impairment and physical features where the discrimination is reasonably necessary to protect the health, safety or property of any person (including the person discriminated against or the public generally). Subclause (2) allows discrimination on the basis of pregnancy where it is reasonably necessary to protect the health 44

 


 

and safety of any person (including the person discriminated against). Clause 87 re-enacts section 81 of the Equal Opportunity Act 1995. Clause 87 provides that a person may provide benefits, including concessions, to another person based on age. Clause 88 allows a person to establish services, benefits or facilities that meet the special needs of people with a particular attribute and to restrict eligibility for such services, benefits or facilities to people with the relevant attribute. Clause 88 replaces section 82(1)(a) of the Equal Opportunity Act 1995. Section 82(1)(b) of the Equal Opportunity Act 1995 has been repealed and reframed in clause 12, which provides that special measures for achieving substantive equality do not constitute discrimination. Clause 12 is limited in scope to measures taken to promote or realise substantive equality for members of a group with a particular attribute who have a particular need for advancement or assistance. It is intended that clause 88 allow services, benefits or facilities for people with a particular attribute who have special needs related to their attribute, whether or not they are disadvantaged. For example, clause 88 would allow the establishment of a support service for single fathers (if there is a need for such a service) regardless of whether or not single fathers are categorised as disadvantaged. The intention of clause 88 is to allow a person to establish services, benefits or facilities where the services, benefits or facilities are established to meet the demonstrable special needs of people with a particular attribute and where the services, benefits or facilities are objectively capable of meeting these needs. Subclause (3) provides further specific examples of exceptions that meet the special needs of particular groups. Subclause (3)(a) allows a person to grant a woman any right or benefit in relation to pregnancy or childbirth. Subclause (3)(b) allows a person to provide or restrict the offering of holiday tours to people of a particular age or age group. Clause 89 provides for the granting, renewing or revoking of exemptions from any provisions in the Bill. Clause 89 is similar to section 83 of the Equal Opportunity Act 1995 except that section 83(1)(b) has been repealed as section 28 of the Equal Opportunity Act 1995 has been repealed. In addition, the maximum period for which an 45

 


 

exemption can be granted under subclause (2) or renewed under subclause (3) has been increased from 3 years to 5 years. Clause 90 sets out a list of factors that the Tribunal must consider when assessing applications to grant, renew or revoke exemptions. Clause 90 is a new clause which provides that in granting, renewing or revoking an exemption granted under clause 89 the Tribunal must consider the following list of factors-- whether the proposed exemption is unnecessary because an exception or exemption already applies to the conduct or the conduct would not amount to prohibited discrimination; and whether the proposed conduct is a reasonable limitation on the right to equality in the Charter of Human Rights and Responsibilities; and all the relevant circumstances of the case. These factors reflect the Tribunal's current approach to considering exemption applications. It is intended that legislating the factors that the Tribunal must consider in assessing exemption applications will assist in improving the consistency of exemption decisions, as well as providing clearer guidance to applicants about when exemption applications are required and the information required to support an application. Clause 91 requires applicants for exemptions under clause 89 to provide a copy of their exemption application to the Commission at the same time as the application is lodged with the Tribunal. The intention of this clause is to allow the Commission to monitor exemption applications to support its education, research, intervention, amicus curiae and other functions. PART 6--PROHIBITION OF SEXUAL HARASSMENT Clause 92 defines the term sexual harassment for the purposes of the Bill as well as providing a definition for the phrase conduct of a sexual nature. Clause 92 re-enacts section 85 of the Equal Opportunity Act 1995. 46

 


 

Clause 93 prohibits sexual harassment by employers (in relation to job applicants and employees) and employees (in relation to co-workers, their employer or job applicants). This prohibition applies also to municipal councillors, company directors and association committee members in relation to their respective employees. Clause 93 re-enacts section 86 of the Equal Opportunity Act 1995. Clause 94 prohibits sexual harassment in common workplaces, regardless of whether the people involved are employees, employers or self-employed. The clause defines workplace broadly, so that it need not be a person's principal place of business or employment but encompasses any place where a person attends for the purpose of carrying out any functions in relation to his or her employment, occupation, business, trade or profession. Clause 94 re-enacts section 87 of the Equal Opportunity Act 1995. Clause 95 prohibits sexual harassment by a partner in a firm of a person seeking admission to the firm as a partner and other partners in the firm. Clause 95 re-enacts section 88 of the Equal Opportunity Act 1995. Clause 96 prohibits sexual harassment by a member of the industrial organisation of a person seeking membership of the organisation, other members and employees. Clause 96 also prohibits sexual harassment by an employee of an industrial organisation of a person seeking membership or a member of the industrial organisation. Clause 96 re-enacts section 89 of the Equal Opportunity Act 1995. Clause 97 prohibits sexual harassment by a member of a qualifying body of people seeking action in connection with an occupational qualification, members of the qualifying body and employees of the qualifying body. Clause 97 also prohibits sexual harassment by an employee of a qualifying body of a person seeking action in connection with an occupational qualification or a member of the qualifying body. 47

 


 

Clause 97 re-enacts section 90 of the Equal Opportunity Act 1995. Clause 98 prohibits sexual harassment by an employee or student of an educational institution or by a member of an educational authority. Clause 98 also prohibits sexual harassment of prospective students, students, employees and members of the educational authority administering the educational institution. Clause 98 re-enacts section 91 of the Equal Opportunity Act 1995. Clause 99 prohibits sexual harassment in the course of providing, receiving or selecting goods and services, whether or not the goods or services are provided or received for payment. Clause 99 re-enacts section 92 of the Equal Opportunity Act 1995. Clause 100 prohibits sexual harassment in the course of providing or offering accommodation. Clause 100 re-enacts section 93 of the Equal Opportunity Act 1995. Clause 101 prohibits sexual harassment by a member of a club of a prospective member, a member or an employee of the club. Although clause 101 re-enacts the prohibition on sexual harassment by members of clubs in section 94 of the Equal Opportunity Act 1995, it should be noted that the definition of club has been amended by clause 4 of this Bill. Clause 102 prohibits the sexual harassment by councillors of other councillors of that council or a member of a committee of that council. Clause 102 re-enacts section 95 of the Equal Opportunity Act 1995. PART 7--PROHIBITION OF OTHER CONDUCT AND VICARIOUS LIABILITY FOR DISCRIMINATION Division 1--Victimisation Clause 103 prohibits victimisation. This clause re-enacts section 96 of the Equal Opportunity Act 1995. 48

 


 

Clause 104 defines victimisation. Clause 104 is similar to section 97 of the Equal Opportunity Act 1995 and has been modified in order to reflect the new dispute resolution process under Part 8 of the Bill. Victimisation is prohibited in a range of circumstances, including because the person brought a dispute to the Commissioner, brought proceedings at the Tribunal or made allegations of discrimination, sexual harassment or victimisation. Clause 104 also protects a person who took action under the Equal Opportunity Act 1995. Division 2--Authorising or assisting discrimination Clause 105 prohibits a person from requesting, instructing, inducing, encouraging, authorising or assisting another person to discriminate against, sexually harass or victimise another person. Clause 105 re-enacts section 98 of the Equal Opportunity Act 1995. Clause 106 provides that both the person authorising or assisting the discrimination, sexual harassment or victimisation and the person who carries out the prohibited action are jointly and severally liable for the contravention. Clause 106 re-enacts and amends section 99 of the Equal Opportunity Act 1995 to reflect the changes to the dispute resolution procedure in the Bill. Division 3--Discriminatory requests for information Clause 107 prohibits a person from requesting or requiring (verbally or in writing) another person to supply information that could be used by the first person to form the basis of discrimination against the other person. Clause 107 re-enacts section 100 of the Equal Opportunity Act 1995. 49

 


 

Clause 108 provides an exception to the prohibition on requesting discriminatory information if the person proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve prohibited discrimination. For example, a special measure under clause 12 is not prohibited discrimination. If a law firm has, for example, established a mentoring scheme for their Indigenous employees and asks all employees whether they are Aboriginal or Torres Strait Islander to determine eligibility for that special measure, that question would be lawful because clause 108 would apply. Clause 108 differs from section 101 of the Equal Opportunity Act 1995 in the following ways-- the onus of proving that the information was reasonably required for a purpose that does not involve prohibited discrimination rests on the person requesting the information; the person who obtains the information under clause 108 must keep the information confidential-- that is, they must not, directly or indirectly, disclose the information to someone else other than in relation to the purpose that does not involve prohibited discrimination; the person who obtains the information under clause 108 must also destroy or permanently de-identify the information when it is no longer needed for the purpose that does not involve prohibited discrimination. The person who obtains the information under this clause will not be able to use the information for any purposes other than allowed for by the clause. Division 4--Vicarious liability Clause 109 sets out the circumstances in which an employer or principal will be found to be vicariously liable for an employee's or agent's contravention of Part 4, Part 6 or Part 7 of the Bill. Clause 109 re-enacts section 102 of the Equal Opportunity Act 1995. 50

 


 

Clause 110 provides that an employer or principal will not be vicariously liable for an employee's or agent's contravention of Part 4, 6 or 7 of the Bill where the employer or principal proves on the balance of probabilities that he or she took reasonable precautions to prevent the contravention. Clause 110 re-enacts section 103 of the Equal Opportunity Act 1995. PART 8--DISPUTES Division 1--Dispute resolution by the Commissioner Clause 111 provides that the Commissioner's functions in relation to dispute resolution are-- to offer dispute resolution services designed to facilitate resolution of disputes; to establish policies and issue procedures and about how dispute resolution under the Bill should be conducted. The dispute resolution functions in the Bill rest with the Commissioner, however it should be noted that clause 175(4) permits the Commissioner to delegate to a member of staff of the Commission any of the Commissioner's powers, functions or duties under the Bill (other than this power of delegation). This includes functions in relation to dispute resolution services. Clause 112 sets out the principles that are to apply to dispute resolution offered by the Commissioner. The principles include that dispute resolution should be brought as early as possible, be appropriate to the nature of the dispute, be fair, be voluntary and be consistent with the objectives in clause 3. The intention of Part 8 is to replace the complaint-handling process in Part 7 of the Equal Opportunity Act 1995 with a new model based on the system operating in New Zealand under the Human Rights Act 1993 (NZ) that is quicker, more flexible and more appropriate to achieving individual outcomes. Unlike under the Equal Opportunity Act 1995, the Commission will not-- require complaints to be lodged in writing; assist in the formulation of a complaint; 51

 


 

have an investigation function in respect of individual disputes. The term "dispute" is used in the Bill instead of the term "complaint", which was the term used in the Equal Opportunity Act 1995. This new terminology is intended to reflect the less formal and more responsive dispute resolution model. It is intended that the Commissioner have the discretion to use a wide variety of methods to resolve a dispute, such as making a telephone call to inform someone of their duties and obligations, providing information or advice on compliance, writing a letter or email, calling a meeting or offering the parties telephone or face-to-face conciliation. It is not intended that the Commissioner provide legal advice to parties. Clause 113 sets out who may bring a dispute to the Commissioner for dispute resolution. It is intended that the same persons that could lodge a complaint with the Commission under section 104 of the Equal Opportunity Act 1995 will be able to bring a dispute to the Commissioner for dispute resolution (these persons will also be able to make an application directly to the Tribunal under clause 122). Those people are: the person alleging discrimination, sexual harassment or victimisation (or other breaches of Part 7), a person who is authorised to bring a dispute on behalf of a person with an impairment or a child, or a representative or representative body (under clause 114). Clause 114 provides that a representative body with sufficient interest in the dispute may bring a dispute to the Commissioner on behalf of a named person or persons, where the alleged contravention arises out of the same conduct. Subclause (2) sets out the circumstances in which a representative body will have sufficient interest. Clause 114 is based on sections 104(1B) and (1C) of the Equal Opportunity Act 1995 and is intended to have the same effect in the context of dispute resolution under Part 8 of the Bill. Clause 115 sets out when dispute resolution is deemed to commence and when it is deemed to end. In practice there will be two steps to commencing a dispute under Part 8. The first step will be the bringing of the dispute to the Commissioner and the second step will be when the person informs the Commissioner that he or she wishes to proceed with dispute resolution. The dispute resolution can only start with 52

 


 

the consent of the person bringing the dispute under clause 113 or 114. Unlike under the Equal Opportunity Act 1995, the party bringing the dispute is no longer required to lodge a complaint in writing in order to commence the dispute resolution service. In practice, a person who contacts the Commissioner seeking dispute resolution services will be required to provide enough information to enable to Commissioner to take action. In some instances, only verbal information will be required, in others it may be necessary to provide written information. Dispute resolution is deemed to end when the Commissioner declines to provide or to continue to provide dispute resolution, a party withdraws from dispute resolution or the parties settle the dispute. It should be noted that the statutory timeframes in the Equal Opportunity Act 1995 around notifying the respondent of the complaint (section 107) or the decision to decline to entertain the complaints (section 108) and the dismissal of stale complaints (section 110) have not been replicated in the Bill. This is because one of the principles of dispute resolution in the Bill is that the dispute resolution should be provided as early as possible (clause 112(a)) and the Bill permits applications directly to the Tribunal under clause 122. Clause 116 provides the Commissioner with the discretion to decline to provide or continue dispute resolution in certain circumstances. These circumstances are similar to those grounds on which the Commission could decline to entertain complaints under section 108 of the Equal Opportunity Act 1995, with some differences. The Commissioner does not have a specific power to decline to provide or continue to provide dispute resolution if a complaint is frivolous, vexatious, misconceived or lacking in substance. However, paragraph (e) allows the Commissioner to decline to provide or continue to provide dispute resolution if, having regard to all the circumstances, the Commissioner considers dispute resolution by the Commissioner is not appropriate. Clause 117 provides that anything said or done in the course of dispute resolution is inadmissible in proceedings before the Tribunal or any other legal proceeding relating to the subject matter of the dispute. 53

 


 

Clause 117 is based on section 116 of the Equal Opportunity Act 1995 but refers to "dispute resolution" instead of "conciliation" to reflect the new dispute resolution process under Part 8 of the Bill. Clause 118 provides that a party to a dispute may withdraw from dispute resolution at any time by informing the Commissioner. The intention of clause 118 is to make it clear the dispute resolution undertaken by the Commissioner is voluntary. This is different from the Equal Opportunity Act 1995 which gave the Chief Conciliator power to require attendance at conciliation (section 114) and made it an offence not to comply (section 201). Subclause (2) clarifies that withdrawal by a party from dispute resolution does not affect a person's right to lodge a claim with the Tribunal under clause 122 or in any other jurisdiction (if applicable). This means that a person may withdraw from the Commissioner's dispute resolution services and make an application to the Tribunal without requesting a formal referral of the complaint from the Commission to the Tribunal (as was required under the Equal Opportunity Act 1995). Clause 119 provides that if following dispute resolution an agreement has been reached in relation to a dispute, any party may request that a written record of the agreement be prepared by the parties or the Commissioner. Subclause (3) requires that a request to prepare a written record of agreement be made within 30 days after the agreement is reached. Subclause (4) provides that if the record of agreement is prepared by the Commissioner, the record must be signed by or on behalf of each party and certified by the Commissioner. It is intended that the Commissioner can decline a request to prepare an agreement if the Commissioner is not prepared to certify the agreement. Subclause (5) provides that if the record of agreement is prepared by the parties, the record must be signed by or on behalf of each party and may be certified by the Commissioner if a party requests this. It is intended that the Commissioner can decline to certify an agreement prepared by the parties if, for example, he or she considers it is inconsistent with the objectives of the Act. 54

 


 

Subclause (6) provides that the Commissioner must give each party a copy of any agreement it certifies. Subclause (7) provides that the refusal of the Commissioner to certify the record of agreement does not affect the validity of the agreement. Clause 119 is based on section 115(1) of the Equal Opportunity Act 1995, which provided for a record of the agreement to be prepared, signed and certified in the context of conciliation under that Act. Clause 120 provides for the registration of signed and certified records of settlement agreements at the Tribunal. The Tribunal, constituted by a presidential member, must register a settlement agreement (or part of a settlement agreement) that it considers to be practicable to enforce or to supervise compliance with. The clause porvides that for the purposes of registering the agreement, the Tribunal will be able to sever those parts of the agreement that it considers impracticable to enforce or to supervise compliance with and only register the enforceable parts. Clause 120 differs from section 115(4) of the Equal Opportunity Act 1995, which provided that where certain parts of the agreement were unenforceable, the Tribunal could refuse to register the entire agreement. Under section 115 the Tribunal did not have the discretion to register parts of agreements. It is intended that clause 120 will encourage the registration of a greater number of settlement agreements. Subclause (4) provides that once the record of agreement (or part of the agreement) is registered it becomes an order of the Tribunal and is enforceable as such. The fact that the Tribunal has only registered part of the agreement will not affect the legal validity of the original agreement. However, the unregistered part will not be enforceable as an order of the Tribunal. Clause 121 provides that the Tribunal may make interim orders to prevent prejudice to dispute resolution or to any subsequent Tribunal decision. The clause lists a number of factors the Tribunal must consider in making an interim order. Clause 121 is based on section 131 of the Equal Opportunity Act 1995, which enabled the Tribunal to make interim orders in the context of a complaint lodged under that Act. 55

 


 

Nothing in clause 121 affects or takes away from the Tribunal's power under section 123 of the Victorian Civil and Administrative Tribunal Act 1998 to make interim orders in a proceeding in the Tribunal. Division 2--Applications to the Tribunal Clause 122 provides that a person may make an application to the Tribunal in respect of an alleged contravention of Part 4, 6 or 7 of the Bill, whether or not the person has brought a dispute to the Commissioner for dispute resolution. The intention of clause 122 is to allow a person with a dispute to have direct access to the Tribunal without having to lodge a complaint at the Commission as was the case under the Equal Opportunity Act 1995. Clause 122 does not impose a set time frame on applications. However, Item 18 of Part 7 of Schedule 1 to the Victorian Civil and Administrative Act 1998 (as inserted by clause 207 of the Bill) enables the Tribunal to summarily dismiss an application if the alleged contravention occurred more than 12 months before the application was made. Clause 123 sets out who can make an application to the Tribunal in respect of an alleged contravention of Part 4, 6 or 7 of the Bill. The same people who can bring a dispute to the Commissioner under clause 113 can apply directly to the Tribunal. Clause 124 provides that a representative body may apply to the Tribunal. Clause 124 mirrors clause 114 in that the same representative bodies that can bring a dispute to the Commissioner can apply directly to the Tribunal. Clause 125 sets out what the Tribunal may decide. Clause 125 re-enacts section 136 of the Equal Opportunity Act 1995. Specifically, clause 125 confirms that the Tribunal may find a contravention of Part 4, 6 or 7 and make orders or decline to take further action. The Tribunal may also find there has been no contravention and order that the application (or part of it) be dismissed. Clause 126 enables the Commission to apply to enforce an order of the Tribunal where a person has failed to comply and the applicant consents to the Commission enforcing the order on his or her behalf. 56

 


 

PART 9--INVESTIGATIONS AND PUBLIC INQUIRIES Division 1--Commission may conduct investigation or public inquiry Clause 127 enables the Commission to conduct an investigation into matters relating to the operation of the Bill that are serious in nature, relate to a class or group of persons and involve a possible contravention of the Bill. An investigation should further the objectives of the Bill. The purpose of clause 127 is to overcome the limitations of the investigation process provided for under section 156 of the Equal Opportunity Act 1995. As such, the ability of the Commission to commence an investigation will not be dependent on a dispute having been brought to the Commission under Part 8, and investigations under clause 127 need not be conducted in the same manner as investigation into a complaint (as required by section 158 Equal Opportunity Act 1995). The Commission will not be able to conduct an investigation into an individual dispute. However, a person will still be able to seek individual redress under Part 8 for a dispute that may be related to a systemic matter being investigated by the Commission. The Commission may become aware of a possible contravention in any number of ways, including though its general inquiry line, through reports in the media, in the course of performing any of its functions under the Bill (such as research) or through submissions from stakeholders or community groups. The Commission will no longer be able to investigate contraventions of Part 2 of the Racial and Religious Tolerance Act 2001 as it could under section 156 of the Equal Opportunity Act 1995. Clause 128 enables the Commission to recommend to the Attorney-General that a public inquiry be conducted into a matter that raises an issue that is serious in nature and relates to a group or class of persons, if the Commission considers that the inquiry would be in the public interest. Clause 128 will allow the Commission, with the Attorney- General's consent, to conduct public inquiries into serious, systemic matters of public importance concerning any matter relating to the operation of the Bill. 57

 


 

Public inquiries could be thematic (such as inquiring into ways to promote the progressive realisation of equality), sectoral (such as inquiring into the employment of people with disabilities in particular sectors) or in relation to one or more named parties. Clause 129 provides that the Tribunal may refer a matter (other than a matter that is the subject of proceedings before the Tribunal) to the Commission to consider whether the Commission should either conduct an investigation or recommend to the Attorney- General that the Commission conduct a public inquiry. The Commission will need to determine whether the matter that has been referred by the Tribunal satisfies the threshold for conducting either an investigation under clause 127 or a public inquiry under clause 128. Division 2--Conduct of investigations and public inquiries Clause 130 allows the Commission to conduct an investigation or public inquiry in the manner it thinks fit, subject to the principles of natural justice or unless otherwise expressly provided for in Part 9. The clause enables the Commission to conduct investigations and inquiries in a way that is most appropriate and effective, given the nature and the scope of the issue and the resources available to the Commission. Natural justice principles would require the Commission to-- give a person whose interests may be adversely affected by an investigation or public inquiry an opportunity to present his or her case act without bias base any conclusions arising from the investigation or public inquiry on logically probative evidence. Clause 131 provides that if the Commission decides to hold a hearing for the purposes of conducting a public inquiry, the hearing must be held in public unless the Commission has made a direction under either clause 136 prohibiting disclosure of a person's identity or information that would be reasonably likely to identify a person or clause 137 prohibiting or limiting the publication of evidence, information or the contents of any document. 58

 


 

Clause 132 provides the Commission with the power to compel the production of information or documents that the Commission reasonably believes to be relevant and necessary for an investigation or public inquiry. Clause 132 is similar to section 114(2)(b) of the Equal Opportunity Act 1995, which empowered the Chief Conciliator to compel the production of documents in the context of conciliating a complaint. Like section 114 of the Equal Opportunity Act 1995, clause 132 requires the Commission to provide written notice specifying what is required and a reasonable period in which the person can respond. Subclause (3) also requires the person providing information to sign the document containing the information to indicate that the information provided is authentic and accurate. Clause 133 provides the Commission with the power to compel the attendance of a person before the Commission if the Commission reasonably believes the person has information that is relevant and necessary for an investigation or public inquiry. Clause 133 is similar to section 114(2)(a) in the Equal Opportunity Act 1995, which empowered the Chief Conciliator to compel the attendance of persons in the context of conciliating a complaint. Like section 114 of the Equal Opportunity Act 1995, clause 133 requires the Commission to provide written notice specifying a reasonable time and place for the person to attend before the Commission. Under subclause (2) the person who is required to attend before the Commission is entitled to be paid a reasonable sum for their attendance and to have legal representation or representation from a personal support person. Clause 134 provides that it is an offence to fail to comply with a notice requiring the production of documents or attendance before the Commission unless there is a reasonable excuse. Clause 134 is based on section 201 of the Equal Opportunity Act 1995 except that the penalty has been increased from 20 to 60 penalty units for a natural person and a new penalty for bodies corporate has been introduced (300 penalty units). 59

 


 

Clause 135 re-enacts section 204 of the Equal Opportunity Act 1995. Clause 135 provides that it is a reasonable excuse for a natural person to refuse to give information, answer a question or produce a document under the Bill if it would tend to incriminate the person. No similar excuse applies to bodies corporate. Other common law privileges, such as legal professional privilege, apply as they have not been expressly overridden in the Bill. Clause 136 enables the Commission to prohibit disclosure of the identity of a person who has given or will give information or documents to the Commission in the context of an investigation or public inquiry. The purpose of clause 136 is to allow the Commission to preserve the anonymity of any person who provides evidence to the Commission where it is necessary to protect the security of employment or the privacy or any human rights of the person. Clause 137 provides that the Commission may give a direction prohibiting the publication of certain evidence, information or documents given in the course of an investigation or public inquiry, where it is necessary to avoid prejudice to Government relations or law enforcement or the endangering of the life or safety of a person, and various other circumstances based on overriding public interest considerations. These factors are similar to the factors considered under section 14 of the Commonwealth Australian Human Rights Commission Act 1986. Clause 138 provides that the Commission may apply to the Tribunal for an interim order to prevent any person acting in a manner prejudicial to an investigation or public inquiry while the investigation or public inquiry is being undertaken. Clause 138 is similar to section 131 of the Equal Opportunity Act 1995 and also clause 121 of the Bill, which allows the Tribunal to make an interim orders in the context of dispute resolution under Part 8. Clause 138 does not alter the Tribunal's power under the Victorian Civil and Administrative Tribunal Act 1998 to make interim orders. 60

 


 

Division 3--Outcomes of investigations and inquiries Clause 139 provides that after conducting an investigation, the Commission may take any action it thinks fit, including taking no action, entering into an agreement with a person about action required to comply with the Bill, accepting an enforceable undertaking and issuing a compliance notice. The process for accepting enforceable undertakings and issuing compliance notices is provided for in Division 4 of Part 9. The actions described in subclause (2) are not an exhaustive list of the actions the Commission can take. The intention of clause 139 is to enable the Commission to encourage best practice and compliance with the Bill through a range of strategies (for example educative, facilitative and enforcement). Clause 140 provides that after conducting a public inquiry the Commission may provide a report on the inquiry to the Attorney-General. The Attorney-General may then decide to table the report in Parliament. For the avoidance of doubt, subclause (3) clarifies that the Commission may publish a report of a public inquiry regardless of whether the Attorney-General tables the report in Parliament. Clause 141 provides that where the Commission believes there are grounds for making adverse findings in a public inquiry, the Commission must give the person who is the subject of the adverse findings a reasonable opportunity to respond to the findings before the report is given to the Attorney-General or published by the Commission. Subclause (2) enables the Commission to exclude from the report any matter it sees fit, having regard to the public interest factors listed in clause 136, which deals with suppression of information likely to identify an individual, and clause 137, which deals with suppression of information and documents in the context of an investigation or public inquiry. If the Commission provides the report to the Attorney-General, the Commission must advise the Attorney-General about any matter excluded and the reason for its exclusion. Clause 142 provides that the prohibitions on disclosure of information by the Commission in clause 176 of the Bill do not apply to the Commission's ability to report on the findings of a public inquiry. However, in reporting the findings of a public inquiry the Commission is required to act in accordance with clause 141 and the objectives of the Bill, as well as compatibly with the Charter of Human Rights and Responsibilities and the Information Privacy Act 2000. 61

 


 

Division 4--Enforceable undertakings and compliance notices Clause 143 sets out the definition of unlawful act for the purposes of Division 4 of Part 9. Unlawful act means a contravention of the duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation in clause 15, or a contravention of the prohibitions on discrimination, sexual harassment and victimisation in Part 4, 6 or 7. Division 4 of Part 9 sets out enforcement action that may be taken by the Commission in relation to unlawful acts. Clause 144 enables the Commission to accept a written undertaking from a person under which the person undertakes to take certain actions or refrain from taking certain actions to comply with the Bill. This provision only applies if the Commission has conducted an investigation and believes that an unlawful act has occurred, is occurring or is likely to occur. It is intended that enforceable undertaking be given voluntarily and as the result of agreement. It is therefore appropriate as a response to a likely or potential breach of the Bill as well as an actual breach. Evidence that an unlawful act is likely to occur could include evidence of past breaches without subsequent adjustment of policies or practices, the existence of a corporate policy that has or is likely to have the effect of disadvantaging people with a particular attribute and which is not reasonable (indirect discrimination), or a lack of policies and procedures to prevent discrimination or to respond to complaints of discrimination. The Commission can apply to the Tribunal to enforce an undertaking in accordance with clause 147. Clause 145 provides that the Commission may keep a register of enforceable undertakings that is available to the public. It is intended that such a register would ensure transparency and accountability and also have an important educative effect by encouraging compliance by example. Clause 146 provides that if, following an investigation, the Commission believes that an unlawful act has occurred or is occurring, the Commission may issue a compliance notice to the person responsible for the unlawful act. The purpose of a compliance notice is to require the unlawful act to be remedied. 62

 


 

Clause 146 is intended to allow the Commission to enforce compliance with the Bill, even in the absence of a dispute being brought. The Commission can only issue a compliance notice for a breach of the Bill that has occurred or is occurring (not that is likely to occur), in contrast to enforceable undertakings under clause 144. Subclause (2) sets out certain information that the compliance notice must include, such as the basis for it being issued, the time frame for remedy of the unlawful act, what will happen if the unlawful act is not remedied and the person may appeal the issuing of the notice or any term of it at the Tribunal. Under subclause (3) the person will have 28 days from the date of issue to apply to the Tribunal for a review. This means that the Commission's issuing of compliance notices will be subject to Tribunal oversight. Clause 147 provides that where a person fails to comply with an enforceable undertaking or compliance notice, the Commission can apply to the Tribunal for an order requiring the person to comply. Section 133 of the Victorian Civil and Administrative Tribunal Act 1998 will apply if the person fails to comply with any enforcement order issued by the Tribunal. That section makes it an offence to not comply with a non-monetary order of the Tribunal and the penalty is imprisonment, a fine, or both. PART 10--PRACTICE GUIDELINES, REVIEWS AND ACTION PLANS Division 1--Practice guidelines Clause 148 enables the Commission to issue practice guidelines on any matter relating to the Bill. The purpose of clause 148 is to enable the Commission to assist duty holders to understand their obligations under the Bill. Practice guidelines will provide constructive advice and information to duty holders for use in the development of their own policies or procedures. While the Bill does not restrict the Commission in determining the scope or subject matter of practice guidelines, subclause (2) requires the Commission to consult with appropriate persons and bodies in preparing any practice guidelines. 63

 


 

The power to issue practice guidelines is broader than the power to issue guidelines and directions on the manner in which conciliation procedures should be conducted under section 161(1)(a) of the Equal Opportunity Act 1995. Clause 149 provides that practice guidelines issued by the Commission under clause 148 are not legally binding, but a court or Tribunal may consider evidence of compliance with them if relevant. Clause 150 provides that the Commission must publish notification of the issuing of practice guidelines and notification of withdrawal of practice guidelines in the Government Gazette and another appropriate publication. The practice guidelines themselves must be published on the Commission's Internet site. An appropriate publication may be a professional, trade or public interest publication if the guidelines affect a particular profession, trade or sector of the community or a newspaper generally circulating in Victoria if the guidelines have general effect. Division 2--Reviews Clause 151 provides that when requested by a person (including an unincorporated association), the Commission may review that person's programs and practices to determine their compliance with the Bill. It is intended that, unlike the Commission's review function under the Charter of Human Rights and Responsibilities, the exercise of the review function in clause 151 is discretionary. Subclause (2) provides that the giving of any advice by the Commission about compliance with the Bill does not give rise to any liability or claim against the Commission or right, expectation, duty, obligation or defence that would not otherwise have been available to the person. Division 3--Action plans Clause 152 provides that a person may voluntarily prepare and implement an action plan which specifies steps that need to be taken to improve compliance with the Bill. The Commission may provide advice about preparing and implementing action plans and set minimum requirements that action plans must satisfy before they will be published in a Register of Action Plans under clause 153. 64

 


 

Subclause (3) provides that action plans are not legally binding but can be considered by a court or Tribunal if relevant. Clause 153 provides that a person may provide a copy of an action plan to the Commission. There will be many instances where action plans are prepared and implemented without assistance from the Commission. However, where a copy is provided to the Commission and that action plan meets the minimum requirements as set by the Commission, the Commission must include the action plan in the publicly-available Register of Action Plans. The Register of Action Plans must be available on the Commission's Internet site and may be published in any other manner as the Commission sees fit. It is intended that the Register of Action Plans provide added incentive for a duty holder to show good corporate citizenship and allow other duty holders to benefit from their work and experience. PART 11--VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION Division 1--The Commission Clause 154 provides for the continuation of the Victorian Equal Opportunity and Human Rights Commission. This clause re-enacts section 160 of the Equal Opportunity Act 1995. Clause 155 sets out the functions and powers of the Commission. These functions differ from section 161 of the Equal Opportunity Act 1995 as the Commission's role has changed. The Commission will no longer receive and investigate complaints and establish conciliation procedures. Disputes will instead be handled by the Commissioner (or delegate) under Part 8 of the Bill. One of the objectives of the Bill is to enable the Commission to encourage best practice and facilitate compliance with the Bill by undertaking research, educative and enforcement functions. Clause 155 therefore re-enacts section 161(1)(c) of the Equal Opportunity Act 1995, which provides that a function of the Commission is to establish and undertake information and education programs. 65

 


 

The Commission also has the new function of promoting and advancing the objectives of the Bill and being an advocate for the Bill. The Commission also has any other functions conferred on it by or under the Bill or any Act, including the Charter of Human Rights and Responsibilities. Subclause (3) recognises the interrelationship between the Bill and the Charter of Human Rights and Responsibilities by requiring the Commission to exercise all of its functions and powers in accordance with the Bill and compatibly with the Charter of Human Rights and Responsibilities. Clause 156 sets out the Commission's educative functions. These functions differ from section 162(1) of the Equal Opportunity Act 1995, as the duty of the Commission to educate is now expressly linked to the new objectives of the Bill (including, for example promoting and facilitating the progressive realisation of equality) and the Charter of Human Rights and Responsibilities. This provision is intended to reinforce the importance of the role of education in facilitating compliance and give the Commission a mandate to educate on the broad range of issues arising from the objectives of the Bill, the Charter of Human Rights and Responsibilities and the Racial and Religious Tolerance Act 2001. Subclause (2) provides that where the Commission becomes aware of any provision of an Act that discriminates or has the effect of discriminating against any person, the Commission is required to notify both the Attorney-General and the Minister responsible for administrating the discriminating Act. This amends section 162(3) of the Equal Opportunity Act 1995 which only required the Commission to notify the Minister responsible for administering the provision or Act. Clause 157 sets out the Commission's research and data collection functions. Clause 157 differs from section 162(2) of the Equal Opportunity Act 1995, as it encompasses both research and data collection, which are cast as two separate functions. In addition, the research and data collection functions are now expressly linked to the objectives of the Bill. Linking the Commission's research functions to the objectives of the Bill emphasises the importance of research, including data collection and analysis, in identifying and eliminating both individual and systemic instances of discrimination and progressively realising equality. For example, information and data collected by the Commission could be used to identify areas of discrimination and disadvantage which may be used to 66

 


 

support the introduction of special measures and provide an evidence base for policy and law reform. Clause 158 provides that the Commission may, at any time, submit a report to the Attorney-General on any matter arising from the performance of the Commission's functions under clause 156 or 157. This re-enacts section 162(4) of the Equal Opportunity Act 1995 and clarifies that the "Minister" referred to in section 162(4) is the Attorney-General. Clause 159 provides that the Commission may intervene in proceedings that involve issues of equality of opportunity, discrimination, sexual harassment or victimisation where the relevant court or tribunal has given leave. This function emphasises the importance of jurisprudence to the development of the law and to progressing the objectives of the Bill. This clause does not limit the power of the Tribunal to give leave at any time for a person to intervene in a proceeding subject to any conditions the Tribunal sees fit under section 73(3) of the Victorian Civil and Administrative Tribunal Act 1998. The expansion of the Commission's role in relation to court or tribunal proceedings will enable the courts and tribunal to benefit from the Commission's specialist knowledge and promote a consistent approach to the interpretation of the Bill. Clause 160 provides that the Commission may assist in certain proceedings as an amicus curiae where the relevant court or tribunal has given leave. An amicus curiae is a "friend to the court" and is not a party to the proceedings. The primary purpose of an amicus curiae is to provide assistance to the court or tribunal by way of specialist advice, usually by making a submission. The types of proceedings where the Commission may seek to leave to appear as amicus curiae are those where the Commission considers the outcome may affect the right to protection against discrimination of the broader community, those that have significant implications for the administration of the Bill; and those where the Commission is satisfied it would be in the public interest for it to assist the court or tribunal. Division 2--The Board Clause 161 provides that that the Board of the Commission consists of the Commissioner and either 4 or 6 other members, so the Board consists of a total of either 5 or 7 members. This re-enacts section 163(1) of the Equal Opportunity Act 1995. 67

 


 

Clause 162 sets out the Board's responsibilities. These are 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. Clause 162 re-enacts section 163(2) of the Equal Opportunity Act 1995. 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, setting 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 and developing and approving a stakeholder liaison and communication policy in consultation with the Commissioner. Subclause (4) provides that the Board has all powers necessary for it to perform its functions. The Governance Principles in Division 2 of Part 5 of the Public Administration Act 2004 apply to the Commission as a result of an Order that was made by the Governor in Council and published in the Government Gazette. Subclause (2) is new and sets out the responsibilities of the Board in the context of the new investigations and public inquiries functions in Part 9 of the Bill. The Board is responsible for the following functions in relation to Part 9-- deciding whether the Commission should conduct an investigation; deciding whether the Commission should recommend to the Attorney-General that the Commission conduct a public inquiry; deciding whether the Commission should commence a public inquiry. Clause 163 sets out the terms of appointment of appointed members of the Board and re-enacts section 164 of the Equal Opportunity Act 1995. Clause 163 provides that a member of the Board holds office for a term specified in the instrument of appointment. A term cannot exceed 5 years but a member is eligible for 68

 


 

reappointment. Subclause (2) provides that an appointed member is appointed on a part-time basis. Subclause (4) provides that the Public Administration Act 2004 (other than Part 3 of the Act which relates to public service employment) applies to an appointed member of the Board in respect of the appointment. Clause 164 provides for the resignation and removal of an appointed member of the Board and re-enacts section 165 of the Equal Opportunity Act 1995. Clause 164 provides that an appointed member of the Board ceases to hold office if a member has been convicted of an indictable offence or the member has become insolvent or resigns by writing delivered to the Governor in Council. Subclause (2) provides that the Governor in Council has the discretion to remove an appointed member from office on the grounds of unexplained absenteeism from 3 consecutive meetings of which reasonable notice has been given, incapacity, misconduct or a personal and significant breach of Australian equal opportunity or anti-discrimination law that would otherwise amount to misconduct. Clause 165 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. Clause 165 re-enacts section 166 of the Equal Opportunity Act 1995. Clause 166 provides for the payment of fees and allowances to eligible appointed members of the Board. This clause re-enacts section 167 of the Equal Opportunity Act 1995. Clause 167 provides for the procedure of the Board at meetings. This clause re-enacts section 168 of the Equal Opportunity Act 1995. Clause 168 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. This clause re-enacts section 169 of the Equal Opportunity Act 1995. 69

 


 

Division 3--The Commissioner Clause 169 continues the position of Commissioner. The Commissioner is appointed by the Governor in Council. The Commissioner is required (in addition to the other functions, powers and duties conferred by the Bill) 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. Clause 169 is similar to section 170 of the Equal Opportunity Act 1995 except that subclause (2) has been inserted to clarify that the Commissioner has the powers, functions and duties of the Commission. Subclause (4) has also been added to clarify that the exercise of a power or function by the Commissioner is subject to the exercise of a power or function of the Board under clause 162. That is, for example, the Commissioner must act in accordance with the strategic direction, policies, priorities and strategies set by the Board in relation to the performance of the Commission's functions. Clause 170 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. Clause 170 provides that the Commissioner is appointed on a full-time basis. This re-enacts section 171 of the Equal Opportunity Act 1995. Clause 171 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 clause 164. Clause 171 re-enacts section 172 of the Equal Opportunity Act 1995. Clause 172 enables the Governor in Council to appoint a person to act as Commissioner if the Commissioner ceases to hold office before his or her term of appointment expires, or does not cease to hold office but is unable to perform the duties or functions 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 clause 165. Clause 172 re-enacts section 173 of the Equal Opportunity Act 1995. 70

 


 

Clause 173 provides that the Commissioner is entitled to receive the remuneration and allowances fixed from time to time by the Governor in Council. This clause re- enacts section 174 of the Equal Opportunity Act 1995. Division 4--General provisions Clause 174 allows for staff to be employed if necessary for administering the Bill, the Charter of Human Rights and Responsibilities and/or the Racial and Religious Tolerance Act 2001. This clause re-enacts section 175 of the Equal Opportunity Act 1995. The Commissioner is the employer of Commission staff, pursuant to an order of the Governor in Council that lists the Commissioner as a public service body Head under section 16 of the Public Administration Act 2004. Commission staff are public sector employees under Part 3 of the Public Administration Act 2004. Clause 175 provides that the Commission, the Board and the Commissioner may, by instrument, delegate their powers, functions or duties (other than the power of delegation). 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 sub-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. Note that the Board may only delegate its powers, functions or duties under clause 162(2) (in relation to investigations and public inquiries) to an appointed member of the Board or to the members of a sub-committee of the Board. Clause 175 re-enacts section 176 of the Equal Opportunity Act 1995, with amendments. Clause 176 prohibits the unnecessary recording, disclosing or communicating to any person any information concerning the affairs of any person obtained in the course of performing functions or duties or exercising a power under the Bill. This clause re-enacts section 177 of the Equal Opportunity Act 1995. 71

 


 

The penalty for a breach of clause 176 is greater than the penalty for a breach of section 177 of the Equal Opportunity Act 1995 and a new penalty applies to a body corporate. A person who breaches the prohibition on recording, disclosing and communicating information covered by clause 176 is now liable to a fine of up to 60 penalty units in the case of a natural person, or 300 penalty units in the case of a body corporate. Clause 177 clarifies that a person to whom clause 176 applies may disclose information obtained in the course of performing functions or duties or exercising a power under the Bill where the disclosure is for the purposes of education and is consistent with the Commission's obligations under the Bill and any Act, including the Charter of Human Rights and Responsibilities and the Information Privacy Act 2000. Information may be disclosed only if it does not identify any person; or the information is already available in the public domain; or the relevant parties consented to the disclosure. Clause 178 provides for protection from personal liability for certain acts and omissions of people to whom the section applies. The Board of the Commission is not covered by this clause because the Government Policy and Guidelines on Indemnities and Immunities applies to appointed members of the Board. Clause 178 also specifies that any liability that would have attached to a person listed attaches instead to the Commission as the relevant legal entity. This clause re-enacts section 178 of the Equal Opportunity Act 1995. Clause 179 requires the Commission to include in its annual reports information on education programs, the review of Acts undertaken and research undertaken during the relevant financial year. This clause re-enacts section 179 of the Equal Opportunity Act 1995. PART 12--OFFENCES Division 1--Proceedings for offences Clause 180 sets out that the Commission or a member of the police force or any other authorised person may bring proceedings for an offence under the Bill. This provision is broader than section 206 of the Equal Opportunity Act 1995 which provides that the Commission may bring proceedings for offences. 72

 


 

Clause 181 provides that offences are to be dealt with summarily. This clause re-enacts section 205 of the Equal Opportunity Act 1995. Division 2--Discriminatory advertising Clause 182 contains the offence of discriminatory advertising. It prohibits the publication or display (or authorisation of the publication or display) of an advertisement or other notice that indicates that a person intends to breach a prohibition on discrimination, sexual harassment or victimisation. Clause 182 re-enacts section 195 of the Equal Opportunity Act 1995 except that the penalty for the offence has been increased to up to 60 penalty units for an individual and a new penalty of up to 300 penalty units for a body corporate has been introduced. Clause 183 provides for a defence to a charge of discriminatory advertising if the accused proves that the accused took reasonable precautions and exercised due diligence to prevent the publication or display of the advertisement or other notice. This clause re-enacts section 196 of the Equal Opportunity Act 1995. Clause 184 provides that the Commission may require the production of documents for the purpose of a proceeding in relation to discriminatory advertising, and that a failure to produce documents at the request of the Commission for the purpose of these proceedings attracts a penalty of up to 60 penalty units for an individual and up to 300 penalty units for a body corporate. Clause 184 re-enacts sections 197(2) and (3) of the Equal Opportunity Act 1995 except that the penalty has been increased and a new penalty introduced in respect of a body corporate. Division 3--Other offences Clause 185 contains the offence of obstructing a member of the Board, the Commissioner or a member of the staff of the Commission who is performing a function or exercising a power under the Bill. The penalty is up to 60 penalty units for an individual and up to 300 penalty units for a body corporate. Clause 185 re-enacts section 202 of the Equal Opportunity Act 1995 with amendments to increase the penalty for a natural person and to introduce a penalty for a body corporate. 73

 


 

Clause 186 contains the offence of knowingly giving false or misleading information to the Commission or the Commissioner or a person acting on behalf of the Commission in the exercise of powers or functions under the Bill. Clause 186 is similar to section 203 of the Equal Opportunity Act 1995 except that the penalty has been increased to up to 60 penalty units for an individual and a new penalty introduced in respect of a body corporate (up to 300 penalty units). PART 13--GENERAL Clause 187 sets out the means by which a dispute or proceeding may be brought and continued against an unincorporated association Clause 187 re-enacts section 208 of the Equal Opportunity Act 1995 except that the reference to "a complaint" has been amended to refer to "a dispute" in accordance with the new dispute resolution system in Part 8. Clause 188 provides that a contravention of the Bill does not create civil or criminal liability except to the extent expressly provided by this Bill. This clause re-enacts section 209 of the Equal Opportunity Act 1995. Clause 189 provides that a person who brings a dispute to the Commissioner, or produces a document, evidence or information to the Commission or the Commissioner, is not liable for any loss, damage or injury suffered by another person as a result of that action. Clause 189 is based on section 210 of the Equal Opportunity Act 1995 but has been amended to reflect the new dispute resolution process under Part 8. Clause 190 sets out the power of the Governor in Council to make regulations. This clause re-enacts section 212 of the Equal Opportunity Act 1995. PART 14--REPEAL OF EQUAL OPPORTUNITY ACT 1995 AND TRANSITIONAL PROVISIONS Division 1--Repeal of the Equal Opportunity Act 1995 Clause 191 provides that the Equal Opportunity Act 1995 is repealed. 74

 


 

Division 2--Transitional provisions Clause 192 sets out the definitions for the transitional provisions in Division 2 of Part 14. In particular, the Equal Opportunity Act 1995 is referred to as the old Act for the purposes of Division 2 of Part 14, and commencement day means the day that Division 1 of Part 14 comes into operation. That Division provides for the repeal of the Equal Opportunity Act 1995. The terms complaint and complainant refer to complaints lodged under Part 7 of the old Act. Clause 193 sets out when a complaint lodged before the commencement day but not finally dealt with will be taken to be a complaint lodged under the old Act or a dispute brought under the Bill. If a respondent has been notified of a complaint before the commencement day, the old Act will continue to apply to the complaint. If the respondent has not been notified before the commencement day, the complaint will be taken to be a dispute brought under Part 8 of the Bill. A complaint lodged before the commencement date may be treated as a dispute brought under Division 1 of Part 8 of the Bill, with the parties' consent. Subclause (6) provides that a complaint lodged before the commencement day be dealt with as a dispute under the Bill, even if the conduct would not contravene the Bill. Clause 194 provides that a person may either bring a dispute to the Commissioner or make a direct application to the Tribunal about an alleged contravention of the old Act that occurred before the commencement day if a complaint had not been lodged under the old Act and the alleged contravention would also contravene the Bill. It is intended to avoid retrospective application of the Bill, but to ensure that disputes can be brought about a pre-commencement contravention of a re- enacted provision. It will not allow a dispute to be brought about a contravention of a provision that was not re-enacted or about a matter that was previously dealt with as a complaint. Item 18 of Part 7 of Schedule 1 to the Victorian Civil and Administrative Act 1998 (as inserted by clause 207 of the Bill) enables the Tribunal to summarily dismiss an application if the alleged contravention occurred more than 12 months before the application was made. 75

 


 

Clause 195 provides that an exemption granted under section 83 of the old Act that was in force before the commencement day continues to operate in accordance with its terms, but may be revoked or renewed under the Bill. Where a person had applied to the Tribunal for an exemption or a renewal or revocation of an exemption under the old Act and the application had not been determined before the commencement day, the old Act will continue to apply. It is intended that once this decision has been made, any reconsideration of that exemption should be under the Bill. This means that an exemption granted under the old Act will continue on its terms but could be renewed or revoked in accordance with the Bill. Clause 196 provides that the Tribunal may make orders of a transitional nature to resolve any difficulty that arises in a proceeding because of the operation of this Part of the Bill. PART 15--CONSEQUENTIAL AMENDMENTS TO THE RACIAL AND RELIGIOUS TOLERANCE ACT 2001 AND OTHER ACTS Division 1--Amendments to the Racial and Religious Tolerance Act 2001 Clause 197 repeals section 1(c) of the Racial and Religious Tolerance Act 2001, which provided that a purpose of that Act was to make consequential amendments to the Equal Opportunity Act 1995. As the Equal Opportunity Act 1995 is being repealed, it is no longer necessary. Clause 198 amends certain definitions in the Racial and Religious Tolerance Act 2001 to reflect the new dispute resolution process under Part 8 of the Bill. Clause 198 also updates references to "Equal Opportunity Act 1995" with "Equal Opportunity Act 2010". Clause 199 replaces the reference to "conciliation" in section 4(1)(c) of the Racial and Religious Tolerance Act 2001 with "dispute resolution", so that the objective reflects the new dispute resolution process under Division 1 of Part 8 of the Bill. Clause 200 amends the provision in the Racial and Religious Tolerance Act 2001 that deals with the prohibition on victimisation to reflect the new dispute resolution process under Part 8 of the Bill while retaining the prohibition on victimisation on the basis that a person has made a complaint under the Equal Opportunity Act 1995. 76

 


 

Clause 201 substitutes a new section 16 of the Racial and Religious Tolerance Act 2001, which describes the liability of a person who authorises or assists racial or religious vilification, to reflect the new dispute resolution process under Part 8 of the Bill. Clause 202 substitutes a new section 17 of the Racial and Religious Tolerance Act 2001, which sets out the vicarious liability of employers and principals, to reflect the new dispute resolution process under Part 8 of the Bill. Clause 203 substitutes a new Part 3 into the Racial and Religious Tolerance Act 2001, which sets out the new dispute resolution process that replaces the complaints and conciliation process. The dispute resolution process under the Racial and Religious Tolerance Act 2001 in new Part 3 is the same as the dispute resolution process that applies in Division 1 of Part 8 of the Bill. The same people may bring a dispute, including representative bodies. Section 23A of the Racial and Religious Tolerance Act 2001 currently provides that if the Commissioner declines under section 108(1) of the Equal Opportunity Act 1995 to entertain a complaint of racial or religious vilification, a complainant may apply to the Tribunal to have the matter heard, with the leave of the Tribunal. The effect of clause 203 is that the requirement to seek leave to have racial and religious vilification matters heard at the Tribunal is repealed and applications may be made to the Tribunal in the same way as applications under Division 2 of Part 8 of the Bill. The Commission may also apply to seek to enforce an order of the Tribunal, with the applicant's consent if a person fails to comply with the order. Clause 204 substitutes a new Part 5 into the Racial and Religious Tolerance Act 2001, which deals with transitional provisions. This new Part 5 sets out when a complaint lodged under the Racial and Religious Tolerance Act 2001 before the commencement day will be taken to be a complaint lodged under the old Act or a dispute brought under the Act. Like clause 193, if a respondent has been notified of a complaint before the commencement day the old Act will continue to apply to the complaint. If the respondent has not been notified before the commencement day the complaint will be taken to be a dispute brought under new Part 3 (as substituted by clause 203). Parties will be able to consent 77

 


 

to the new Part 3 applying to disputes which would otherwise be complaints under the old Part 3. Division 2--Consequential amendments to the Victorian Civil and Administrative Tribunal Act 1998 Clause 205 amends certain definitions in the Victorian Civil and Administrative Tribunal Act 1998. Clause 206 inserts a new transitional provision into the Victorian Civil and Administrative Tribunal Act 1998. For complaints where the respondent was notified of the complaint prior to the commencement of Division 1 of Part 14 or exemption applications where a person had applied for the exemption prior to that commencement, the Victorian Civil and Administrative Tribunal Act 1998 continues to apply as it existed prior to commencement. Clause 207 substitutes a new Part 7 of Schedule 1 in the Victorian Civil and Administrative Tribunal Act 1998. Part 7 of Schedule 1 contains the variations to Parts 3 and 4 of the Victorian Civil and Administrative Tribunal Act 1998 for Equal Opportunity Act 1995 proceedings. The new Part 7 does not include obsolete references to special complaints (item 13), items relating to expedited complaints, notification requirements and referral to the Commission by VCAT of any matter for negotiation or conciliation. New part 7 does allow the Tribunal to make an order summarily dismissing an application where the alleged contravention occurred more than 12 months before the application was made. Clause 208 Inserts a new Part 16C of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998. New Part 16C contains the variations to Parts 3 and 4 of the Victorian Civil and Administrative Tribunal Act 1998 for the purpose of Racial and Religious Tolerance Act 2001 proceedings. The new Part 16C mirrors the new Part 7 which is inserted by clause 207 in relation to proceedings under the Bill. Division 3--Consequential amendments to other Acts Clause 209 provides that the Acts specified in the Schedule are to be amended as set out. 78

 


 

Division 4--Repeal of Part and Schedule Clause 210 provides for the automatic repeal of Part 15 and the Schedule to the Bill on 1 August 2012, the first anniversary of their commencement. As suggested by SARC, the automatic repeal provision saves the time and expense of having to repeal amendments in statute law revision Bills. The repeal of this Part and Schedule does not affect in any way the operation of the amendments made by that Part or the Schedule (see section 15(1) of the Interpretation of Legislation Act 1984). PART 16--AMENDMENT OF EQUAL OPPORTUNITY ACT 1995 AND STATUTE LAW REVISION Division 1--Amendment to Equal Opportunity Act 1995 Clause 211 inserts two new subsections into section 170 of the Equal Opportunity Act 1995. Clause 211 clarifies that the Commissioner has the powers, functions and duties of the Commission under that Act or any other Act, for example the Charter of Human Rights and Responsibilities and the Racial and Religious Tolerance Act 2001. The exercise of the Commissioner's power is subject to the exercise of the Board's powers and functions under section 163. Division 2--Statute Law Revision Clause 212 corrects a typographical error in section 178(1)(c) of the Equal Opportunity Act 1995. Clause 213 is a statute law revision amendment to substitute "Commissioner's" for "Commission's" in sections 23A(2) and 23A(7)(a) of the Racial and Religious Tolerance Act 2001. Division 3--Repeal of Part 16 Clause 214 provides that Part 16 of the Bill is to be repealed on 1 August 2012. PART 17--AMENDMENTS TO EQUAL OPPORTUNITY ACT 2010 Clause 215 makes consequential amendments to clause 179 of the Bill to replace a reference to the Financial Management Act 1994, which will be repealed by the Public Finance and Accountability Bill (which is currently before Parliament). 79

 


 

Clause 216 amends the definitions of employee, employer and employment in the Bill so that unpaid workers and volunteers will be protected under the Bill on the same basis as employees. Clause 217 provides for the automatic repeal of Part 17 of the Bill on 1 July 2013, the first anniversary of its commencement. As suggested by SARC, the automatic repeal provision saves the time and expense of having to repeal amendments in statute law revision Bills. The repeal of this Part does not affect in any way the operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). SCHEDULE--CONSEQUENTIAL AMENDMENTS TO OTHER ACTS Item 1 substitutes a new definition of Commission in section 3(1) of the Charter of Human Rights and Responsibilities and ensures that the definition of discrimination in the Charter refers to the new Equal Opportunity Act 2010. Item 2 substitutes the reference to the Equal Opportunity Act 1995 for the Equal Opportunity Act 2010 in the Guardianship and Administration Act 1986. Item 3 substitutes the reference to the Equal Opportunity Act 1995 for the Equal Opportunity Act 2010 in the Information Privacy Act 2000. Item 4 substitutes the reference to the Equal Opportunity Act 1995 for the Equal Opportunity Act 2010 in the Local Government Act 1989 and updates the reference to those sections of the Act relating to the prohibition on discrimination, sexual harassment and victimisation. Item 5 amends sections 19(3)(a)(v) and 19(3)(a)(vi) of the Parliamentary Administration Act 2005 to replace the reference to complaints pursuant to the Equal Opportunity Act 1995 with reference to proceedings at the Tribunal under the Equal Opportunity Act 2010. Item 6 amends sections 64(3)(a)(v) and 64(3)(a)(vi) of the Public Administration Act 2004 to replace the reference to complaints pursuant to the Equal Opportunity Act 1995 with reference to proceedings at the Tribunal under the Equal Opportunity Act 2010. 80

 


 

Item 7 substitutes the new title Commissioner of the Victorian Equal Opportunity and Human Rights Commission in section 142(3)(b)(vi) of the Serious Sex Offenders (Detention and Supervision) Act 2009 and repeals the reference to the Equal Opportunity and Human Rights Commissioner in section 142(8). Item 8 substitutes the reference to the Equal Opportunity Act 1995 for the Equal Opportunity Act 2010 in the Sex Offenders Registration Act 2004. Item 9 substitutes the reference to the Equal Opportunity Act 1995 for the Equal Opportunity Act 2010 in section 220DA(3) of the Transport Act 1983. Item 10 substitutes the reference to the Equal Opportunity Act 1995 for the Equal Opportunity Act 2010 in section 10(2)(b)(ii) of the Working with Children Act 2005. Item 11 amends the Wrongs Act 1958. Item 11.1 amends section 24AG(2)(i) of the Wrongs Act 1958 to replace the reference to complaints pursuant to the Equal Opportunity Act 1995 with reference to proceedings at the Tribunal. Item 11.2 substitutes the reference to the Equal Opportunity Act 1995 for the Equal Opportunity Act 2010 in section 28C(2)(j) of the Wrongs Act 1958. 81

 


 

 


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