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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
561327 1 BILL LA INTRODUCTION 10/3/2010
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.
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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
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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;
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· 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
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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
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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.
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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.
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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.
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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.
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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;
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· 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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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).
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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.
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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.
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