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12 March 1991 - Current

 
EQUAL OPPORTUNITY BILL
Page 764
10 March 2010
ASSEMBLY Statement of Compatibility HULLS
                             EQUAL OPPORTUNITY BILL
                           Statement of compatibility
Mr  HULLS  (Attorney-General)  tabled  following statement  in  accordance  with
Charter of Human Rights and Responsibilities Act:
  In   accordance  with  section   28  of  the  Charter   of  Human  Rights  and
  Responsibilities, I make this statement of  compatibility with respect  to the
  Equal Opportunity Bill 2010.
  In my opinion, Equal Opportunity Bill 2010 (the bill),  as  introduced  to the
  Legislative  Assembly, is compatible  with  the human rights  protected by the
  charter. I base my opinion on the reasons outlined in this statement.

  Overview of bill
  The bill will replace  the  Equal  Opportunity  Act 1995, the current law that
  protects Victorians from discrimination  based on certain characteristics such
  as race, sex, age and impairment. The bill improves the effectiveness of equal
  opportunity law in Victoria.
  The   bill  seeks   to  eliminate   discrimination,   sexual  harassment   and
  victimisation to the  greatest extent possible. The  bill also aims to promote
  and facilitate  the progressive realisation of substantive equality, as far as
  reasonably  practicable.  It  does this not only by prohibiting discrimination
  based  on  particular attributes  but  also by  recognising  that  in  certain
  circumstances, special measures may  be required to redress the impact of past
  or continuing disadvantage.

  A key purpose of the reforms in the bill is to provide a framework for dealing
  more effectively with systemic discrimination. In order to encourage proactive
  compliance and alleviate the  burden  on individuals to address discrimination
  through making complaints, the bill reframes  existing  implied obligations to
  eliminate  discrimination and to make reasonable adjustments for  people  with
  impairments,  as  positive  obligations.  Other  reforms  include  giving  the
  Victorian  Equal Opportunity and Human Rights Commission (the commission) more
  effective options to respond to systemic discrimination such as:
    a clear role in conducting research and education;
    the ability to investigate serious systemic discrimination in the absence of
    a  complaint and to conduct  a  public  inquiry  with  the  consent  of  the
    Attorney-General;


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engaging directly with duty holders to reach enforceable undertakings and issuing compliance notices where systemic discrimination is found to have occurred. In line with equal opportunity law in other Australian jurisdictions, the reforms extend protection from discrimination to people who work on a voluntary or unpaid basis. The bill also introduces a new system for dealing with disputes about discrimination, sexual harassment and victimisation. The changes will make dispute resolution quicker, more flexible and more responsive to individual disputes. In addition, it will eliminate the current duplication in the complaints process by allowing people with a dispute to go directly to the Victorian Civil and Administrative Tribunal (VCAT), rather than requiring them to lodge a complaint with the commission first, as is currently the case. Finally, the bill updates and modernises the exceptions to unlawful discrimination. Human rights issues 1. Human rights protected by the charter that are relevant to the bill The bill will be part of a framework of laws in Victoria, along with the charter and the Racial and Religious Tolerance Act 2001, that promote respect for human rights. The human right that is most relevant to the bill is the right to equality (section 8 of the charter). Indeed, one of the objectives of the bill is to promote the right to equality under the charter. However, as well as promoting the right to equality, the bill, through the exceptions, limits the right to equality in certain circumstances. The bill also limits other charter rights. The right to freedom of association (section 16 of the charter) is limited through the prohibition against discrimination in relation to membership of clubs. The right to a fair hearing (section 24) may be limited by the provisions allowing the commission to order non-disclosure of information in certain circumstances. The right to freedom of expression (section 15) is limited by the secrecy requirements that bind the commission's staff and board members. Finally, the right to be presumed innocent (section 25(1)) is limited by the formulation of the defence to the offence of discriminatory advertising. This statement of compatibility first discusses the exceptions and then considers the other provisions in the bill that engage charter rights, and finally the other provisions in the bill that limit charter rights. 2. Consideration of reasonable limitations -- section 7(2) THE EXCEPTIONS The purpose of exceptions in equal opportunity law Exceptions are an integral part of equal opportunity law. Equal opportunity law creates prohibitions in relation to conduct that falls within the definition of discrimination, and creates the right to seek relief from discrimination in specific circumstances. Exceptions, in certain circumstances, prevent relief from being sought in relation to conduct that would otherwise fall within the definition of discrimination. The review of the exceptions The exceptions in the Equal Opportunity Act were the subject of extensive review, first by the Department of Justice and then by Parliament's Scrutiny of Acts and Regulations Committee (SARC). The review processes attracted over a thousand submissions from a diverse range of stakeholder groups and individuals. In addition, evidence was received through public hearings on particular issues from key stakeholder groups. Many of the submissions contributed ideas about how the exceptions could be improved. In conducting its review and making its final recommendations, SARC considered whether each exception was a reasonable limitation on the right to equality under the charter. SARC's review has made a valuable contribution to the development of the government's position on the exceptions as reflected in the bill. I note that the government supports either fully, in part or in principle, 56 of SARC's 59 recommendations. The government's response to each of SARC's recommendations is detailed in the response to the SARC report, which is being tabled today along with the bill. The fact that the exceptions have been subjected to detailed analysis by SARC for their compatibility with the charter strengthens the conclusions I have reached on those exceptions that align with SARC's recommendations. The nature of the right to equality Section 8 of the charter is a collection of rights relating to recognition and equality before the law. Justice Bell, in Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869, stated that the human rights of equality and non-discrimination are of fundamental importance to individuals, society and democracy (at [107]). His Honour noted that the equality rights in section 8 are 'the keystone in the protective arch of the charter' (at [277]). Furthermore, the concept of equality enshrined in the charter is one of substantive equality, not just formal equality (at [107] and [118]), and that the fundamental value underlying the equality right in section 8 is the 'equal dignity of every person' (paragraph 277). Section 8(3) is particularly relevant to equal opportunity law. It provides that 'every person is equal before the law ... and has the right to equal and effective protection against discrimination'. Discrimination is currently defined in section 3 of the charter as 'discrimination (within the meaning of the Equal Opportunity Act) on the basis of an attribute in section 6 of that act'. The value underpinning section 8(3) is personal dignity. To treat somebody differently because of an attribute rather than on the basis of individual worth and merit can undermine personal autonomy and self-realisation. Therefore, it is important that the exceptions, which limit the right to equality, are justified as reasonable limitations. In my view, the exceptions in this bill are reasonable and justifiable limitations on the right to equality, in accordance with section 7(2) of the charter. The categories of exceptions For the purposes of this analysis, the exceptions have been grouped according to the rationales that underpin them. The rationales fall into the following categories:
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A. Targeted measures. These exceptions allow targeted measures to meet the special needs of groups with particular attributes. B. Conduct that falls within the private realm. These exceptions are designed to ensure people's personal and private choices are infringed as little as possible. C. Competing rights. Exceptions that limit the right to equality to balance other important rights. D. Other justifications. Exceptions that are justified for another important reason, such as health and safety. These four categories are used to structure the discussion on the exceptions in this Statement of Compatibility. Each exception is analysed below according to the test set out in section 7(2) of the charter. A. Targeted measures Many of the exceptions in the bill are measures targeted towards groups with special needs. The aim of these exceptions is to allow differential treatment between people with particular attributes and those without the attribute. The purpose of targeted measures is to provide a benefit or facilitate appropriate services for the target group for the welfare of members of the group. The principle behind targeted measures is that one size doesn't necessarily fit all -- groups with certain attributes have particular needs that require or would benefit from targeted services, benefits or facilities. While targeted measures may limit the right to equality in that they provide services, benefits or facilities to particular groups only, these limitations are reasonable. The exceptions that are targeted measures in the bill do not limit the access of people other than the target group to generalist or other specialist services, benefits or facilities. A.1. Clause 28 allows an employer to limit the offering of employment to people with a particular attribute where the employment is to provide services that are special measures to promote or realise substantive equality or services that meet the special needs of a group with particular attributes if those services can be provided most effectively by people with that attribute. The exception applies to all attributes. The exception limits the right to equality (section 8(3)) by preventing certain persons who do not possess the relevant attribute from gaining employment in certain circumstances. The importance of the purpose of the limitation The purpose of this exception is to facilitate services to disadvantaged groups or groups with a special need that are for the welfare and advancement of those groups. The exception recognises that, in certain circumstances, such services can best be provided by people who share the same attribute as the group. This may be because having the attribute provides the service provider with a particular insight into the needs of the group. For example, support services for people with a mental illness may most effectively be provided by a person who has previously been a user of mental health services, as that person will have an insight into the issues facing people with a mental illness. Appropriate service provision to disadvantaged groups and groups with special needs is an important purpose. The nature and extent of the limitation The exception will only apply where the services to be provided are special measures or welfare measures or services for special needs as prescribed by the bill and where those services can be most effectively provided by people with the same attribute. The relationship between the limitation and its purpose The relationship between the limitation and its purpose is rational. Any less restrictive means reasonably available to achieve its purpose As the circumstances in which the exception will apply are narrowly restricted by the thresholds for special measures and welfare measures or services for special needs, there are no less restrictive means reasonably available to achieve the purpose. A.2. 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. This exception limits the right to equality (section 8(3)) for students who do not have the particular attribute for whom the school or program was designed. However, in relation to many of the groups, the exception may also promote freedom of thought, conscience religion and belief (section 14), facilitate the protection of families and children, where limiting the provision of educational services to persons of particular attributes is in the best interests of children (section 17) and facilitates the protection and promotion of cultural rights (section 19). The importance of the purpose of the limitation The purpose of this limitation is to allow schools to provide educational settings that are targeted towards the needs of particular groups. Excluding students who are not of that group allows resources to be concentrated on the needs of the target group. The nature and extent of the limitation As the exception applies to five grounds only -- sex, race, religious belief, age and impairment -- the right to equality is only limited in restricted circumstances. In the great majority of instances, alternate schools or programs that cater for the students who are excluded from a particular school or program exist (for example schools for boys and schools for girls). In these circumstances, the extent of the limitation will be minimal as those students who are excluded from one particular school or program will be able to access similar educational facilities and programs elsewhere. Further, the extent of the limitation is balanced by the other rights promoted by the exception. The relationship between the limitation and its purpose Due to limited resources, all schools must have the ability to restrict eligibility to enrol in the school or to access particular programs within the school. Usually eligibility criteria for enrolment relate to geographical distance from the school, or priority being given to siblings of existing students. Eligibility for
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particular programs is often restricted to those with particular needs. This exception allows schools to take sex, race, religious belief, age and impairment into account when setting eligibility criteria for access to enrolment or particular programs. As its purpose is to provide educational settings targeted towards the needs of particular groups, and the limitation is restricted as other options will be available in the great majority of cases, the limitation is reasonable and rational. Any less restrictive means reasonably available to achieve its purpose If schools do not have the ability to exclude students from enrolment or programs targeted towards the needs of students with particular attributes, students with those attributes may miss out on receiving targeted educational opportunities. A.3. Clause 43 allows educational authorities to select students for a program on the basis of an admission scheme that has a minimum qualifying age or that imposes quotas in relation to students of different age groups. This limits the right to equality (section 8(3)), as students of particular ages may not gain admission to a program or a scheme and thus may be denied an opportunity because of their age. The importance of the purpose of the limitation The purpose of this exception is to enable educational authorities to ensure the different developmental and learning needs of students of different ages can be catered for by schools. This is an important purpose as it advances the welfare of students. The nature and extent of the limitation While the exception may limit students of a certain age accessing particular programs, other age-appropriate programs will be available to those students. Further, subject to particular age-specific programs continuing, students who are not yet eligible to access a particular program because of their age will be able to do so in the future. Therefore, the limitation is not extensive. The relationship between the limitation and its purpose The limitation is connected to its purpose, as there is no other way of ensuring children receive age-appropriate educational programs. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means reasonably available to achieve the purpose of the exception. A.4. Clause 60 allows hostels and 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. This exception limits the right to equality (section 8(3)), as persons who do not possess a relevant attribute may be refused accommodation. The importance of the purpose of the limitation The purpose of this limitation is to allow hostels and similar institutions providing accommodation for groups with particular needs to restrict accommodation to those people with the same attribute. Targeted accommodation can facilitate the right to privacy (section 13), the right to freedom of thought, conscience, religion and belief (section 14) and protection and promotion of cultural rights (section 19) where a hostel or similar institution facilitates an environment which respects the observance of a particular religion or cultural belief. Accommodation for women and children experiencing family violence promotes the protection of families and children (section 17). The nature and extent of the limitation The limitation applies only to those accommodation providers who can show that they are run wholly or mainly for the welfare of persons with a particular attribute. Therefore, the limitation will only apply in restricted circumstances. The relationship between the limitation and its purpose The limitation is rationally connected to its purpose in that excluding people without the attribute that the accommodation is targeting will allow such accommodation providers to reserve their limited facilities for members of the target group. Any less restrictive means reasonably available to achieve its purpose While narrowing the exception so it only applies to the provision of accommodation established wholly for the welfare of people of a particular sex, age, race or religious belief is less restrictive, it potentially denies a provider of welfare-related accommodation the ability to rely on the exception if the provider accepts a person not in the target group for any reason. For example, the manager of a hostel for women with children under the age of 18 may be denied the ability to rely on the exception in the future if she accepts a woman with a 19-year-old child where no other accommodation is available for that family. Given this, the more restrictive limitation is reasonable. A.5. Clause 61 allows educational authorities that operate schools wholly or mainly for students of a particular sex, race, religious belief, age or impairment to provide accommodation wholly or mainly for students with the particular attribute. This exception operates in conjunction with clause 39, allowing for such educational authorities to exclude students without the targeted attribute. As for clause 39, clause 61 limits the right to equality (section 8(3)) for students who do not have the particular attribute for whom the school or program was designed. The importance of the purpose of the limitation This limitation is aimed at allowing schools targeted towards particular groups that provide accommodation to reserve the accommodation for the target groups. The nature and extent of the limitation As the exception applies to five grounds only -- sex, race, religious belief, age and impairment -- the right to equality is only limited in restricted circumstances. Further, the limitation only applies to those schools that target particular groups and provide accommodation. Therefore, the limitation is not extensive.
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The relationship between the limitation and its purpose The limitation is rational and proportionate to its purpose. Any less restrictive means reasonably available to achieve its purpose SARC recommended that this exception be amended to clarify that if an educational institution that provides accommodation does accept students outside the target group, it may not discriminate in the allocation of that accommodation. However, it is not considered that the exception allows discrimination in allocating accommodation to existing students, but only in deciding who to provide accommodation to. On this basis, SARC's recommendation is not considered a more restrictive option. Given this, there are no less restrictive means reasonably available to achieve the purpose of the exception. A.6. Clause 66 allows for clubs that operate principally to preserve a minority culture to exclude from membership people who are not members of the minority culture. This exception limits the right to equality (section 8(3)). The importance of the purpose of the limitation This limitation recognises that the preservation of minority cultures may be enhanced by allowing clubs for those groups only. This exception facilitates the sharing of culture (section 19) and also freedom of association (section 16). The nature and extent of the limitation This exception is limited to those clubs that operate principally to preserve a minority culture. It is also limited in that the exception only applies to membership of such clubs and not to service provision or employment. The relationship between the limitation and its purpose The limitation is rational and proportionate to its purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means reasonably available to achieve the purpose of this limitation. A.7. Clause 67 allows clubs established for people of a particular age group to exclude from membership people who are outside that age group. It also allows clubs to provide different benefits to different members on the basis of their age where it is reasonable to do so. This exception limits the right to equality (section 8(3)). The importance of the purpose of the limitation This exception recognises that different age groups will have different needs and interests and allows clubs to cater for this by allowing clubs and membership benefits for different age groups. In so doing, it promotes freedom of association (section 16) and facilitates appropriate service provision to groups of different ages. The nature and extent of the limitation This exception only differentiates on the ground of age in the area of clubs. Therefore, it is not extensive. Although the application of this exception may mean that certain age groups are excluded from certain clubs or certain benefits of membership, other clubs may cater for that group or provide those benefits. The relationship between the limitation and its purpose The limitation is rationally connected to its purpose, which is to facilitate the exclusive association of people of particular age groups. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means reasonably available to achieve the purpose of this limitation. A.8. Clause 87 allows benefits, including concessions to be provided to people based on age. This exception limits the right to equality (section 8(3)), by preventing certain people from obtaining the benefit of concessions based on their age. The importance of the purpose of the limitation This exception recognises that different age groups may have particular needs or may have limited capacity to pay and allows these needs or limited capacity to be met through the provision of benefits including concessions. An example of this is the provision of travel concessions to senior citizens or discounted museum entry to children. The nature and extent of the limitation The exception is limited to age and only extends to eligibility for benefits or concessions. Therefore, it is not extensive. Further, as a person's age changes, their eligibility for age-based benefits changes, so that such discrimination is likely to impact in both a negative and positive way over a person's lifetime. The relationship between the limitation and its purpose The limitation is directly related to its purpose. Any less restrictive means reasonably available to achieve its purpose It may be argued that not all people in a particular age group have a particular need that should be met through a benefit or concession. It may be argued that other means of assessing eligibility for such benefits or concessions, such as a person's actual ability to pay, should be used. However, the difficulty and intrusiveness of obtaining such information is not proportionate to the benefit or concession conferred and therefore is not reasonable. A.9. Clause 88(1) provides an exception for the establishment of services, benefits or facilities that meet the special needs of people with a particular attribute and allows eligibility for those services, benefits or facilities to be limited to people with the target attribute. Clause 88(3)(a) and (b) are specific examples of circumstances in which special needs may be met by targeted services. Clause 88(3)(a) allows rights, privileges and benefits to be offered in relation to pregnancy or childbirth. Clause 88(3)(b) allows holiday tours to be restricted to people of a particular age or age group. These exceptions limit the right to equality in that people who are not in the target group will not be able to access the services, benefits or facilities allowed by the exceptions.
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The importance of the purpose of the limitation This limitation recognises that targeted services may be required to meet the needs of particular groups. This may be because only people in the target group have the need (for example, only pregnant women or women in childbirth require services targeted to this group), or because general services may not meet or may not best meet the particular needs of people in the target group (for example, a general mental health service may not adequately meet the mental health needs of young men). This is an important purpose and may assist in promoting other rights, depending on the nature of the service, benefit or facility to be provided. The nature and extent of the limitation The exception is restricted in that it only allows for the establishment of services, benefits or facilities to meet the special needs of groups with an attribute and for the eligibility for those services, benefits or facilities to be limited to people within the target group. It does not allow for discrimination in the administration of those services, benefits or facilities to eligible people. Further, it does not prevent generalist services from existing. Where a special service, facility or benefit is provided because generalist services do not adequately meet the needs of the target group, the limitation is not extensive because people outside the target group will still be able to access generalist services, benefits and facilities. Where people outside the target group do not have the need for the service, benefit or facility, then there is no limitation on the right to equality. In relation to the specific examples in subclauses 88(3)(a) and (b), the extent of the limitation is further mitigated by the fact that being pregnant and being a particular age are not immutable attributes. Consequently, individuals may have the benefit of the services allowed by the exception at a particular point in their life. The relationship between the limitation and its purpose The limitations in this exception are rationally connected to their purpose, which is to meet the special needs of people with a particular attribute. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means reasonably available to achieve the purpose of these limitations. B. Conduct that falls within the private realm The exceptions, which fall within this category, are designed to protect personal autonomy in the private sphere. Equal opportunity law focuses on activities that are in the public sphere and interferes as little as possible in conduct that occurs in the private sphere. These exceptions reflect that divide. B.1. Clause 24 allows people to discriminate in relation to employment to provide domestic and personal services, including child-care services, in their own home. The exception covers employers, such as agencies who provide staff to provide home-based domestic or personal care services where the person receiving the services requests this. This limits the right to equality (section 8(3)) by excluding people with particular attributes from employment in another person's home in certain circumstances. The importance of the purpose of the limitation The purpose of this limitation is to protect the privacy of the family and the home. It is important to preserve the distinction between the private sphere, which is not regulated by equal opportunity law, and the public sphere that is. The nature and extent of the limitation The limitation is restricted in nature and extent. It applies only in relation to certain types of employment, in limited circumstances. It does not apply to other types of employment, such as business-related employment conducted in a person's home. The relationship between the limitation and its purpose The limitation is rational and, as it is not extensive, is proportionate to the purpose of protecting people from arbitrary interference with their privacy. Any less restrictive means reasonably available to achieve its purpose Accepting that the protection of privacy is an important purpose, there are no less restrictive means available to achieve the purpose of the exception. B.2. 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. This limits the right to equality (section 8(3)), by excluding persons with particular attributes from receiving benefits in certain circumstances. The importance of the purpose of the limitation The purpose of this limitation is to allow individuals the freedom to choose to whom they will or give their property. This limitation consequently protects the right to privacy (section 13), and also potentially the right to protection of families and children (section 17), the right to freedom of thought, conscience, religion and belief (section 14) and the right to freedom of expression (section 15). The nature and extent of the limitation While the limitation is broad in that it allows discrimination on all attributes, it is limited to the specific circumstances of disposal of land by gift or will. The relationship between the limitation and its purpose The limitation is rationally connected to its purpose given the importance of the competing rights it promotes. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means available to achieve the purpose of the limitation. B.3. Clause 59 allows a person to discriminate on the basis of any attribute in determining who is to occupy residential accommodation in which the person or their near relatives lives and intends to continue to live and that is to accommodate no more than three people in addition to the person or their near relatives. This exception limits the right to equality (section 8(3)), by preventing persons with particular attributes from occupying residential accommodation in certain circumstances.
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The importance of the purpose of the limitation This exception allows a person freedom of choice in relation to who should live in their home when it is occupied by them or their near relative. This exception facilitates the protection of families and children (section 17) and the right to privacy (section 13). The nature and extent of the limitation This limitation applies only in restricted and defined circumstances. The restriction of this exception to accommodation for the person or their near relatives and for no more than three additional people reflects the principle that the bill does not seek to regulate conduct in the private sphere. The relationship between the limitation and its purpose The limitation is a rational and proportionate means of achieving its purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means reasonably available to achieve the purpose of the limitation. B.4. Clause 62 provides that an accommodation provider may refuse to provide accommodation for or in connection with lawful sexual activity. The importance of the purpose of the limitation This exception complements other laws that control the regulation of commercial sexual services and laws that allow landlords to decide the type of businesses that are conducted from their premises. Tenants may not conduct businesses from home as of right. For example, under the Residential Tenancies Act 1997, tenants may conduct business from home with the consent of the landlord. The nature and extent of the limitation The limitation applies only to the conduct of commercial sexual services. It does not allow landlords, in determining a person's rental application, to discriminate on the basis of lawful sexual activity. The relationship between the limitation and its purpose The limitation is rationally connected to its purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means of achieving the purpose of this limitation. B.5. Clause 80 provides that the bill does not affect deeds, wills or other instruments that confer charitable benefits. This limits the right to equality (section 8(3)). The importance of the purpose of the limitation The purpose of this limitation is to allow donors the freedom to choose whom to confer charitable benefits on. Such choices promote the right to privacy (section 13), freedom of thought, conscience, religion and belief (section 14) and freedom of expression (section 15). The nature and extent of the limitation The exception applies only where charitable benefits are being or are to be conferred. Therefore, the limitation is not extensive. Further, depending on the recipient, the exception may provide benefits to disadvantaged groups. The relationship between the limitation and its purpose The limitation is rationally connected to its purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means of achieving the purpose of this limitation. C. Competing rights In certain circumstances, a person's right to equality in section 8 of the charter may be at odds with another person's rights under the charter, such as the right to privacy or the right to freedom of association. In such circumstances, it is necessary to engage in a balancing exercise to determine how best to resolve the tension between competing rights. In my view, the exceptions in this category achieve the appropriate balance between competing charter rights. C.1. Clause 26(1) allows employers to discriminate on the basis of sex where it is a genuine occupational requirement that employees be of that sex. Subclause 26(2) non-exhaustively lists situations that 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. Further subsections provide examples of types of jobs that fall into that category such as where the job involves fitting clothes or conducting body searches. The importance of the purpose of the limitation The purpose of the limitation is to preserve the privacy and dignity of the people receiving the service provided by the person employed under the exception. This is an important purpose. The nature and extent of the limitation The exception is confined to recruitment where it is a genuine occupational requirement. This means that the discrimination must be necessary to do the job, not just desirable. Further, the exception applies equally for jobs requiring men and jobs requiring women. The relationship between the limitation and its purpose The limitation is a rational way of achieving its purpose, which is the preservation of privacy and dignity. Any less restrictive means reasonably available to achieve its purpose The exception will only apply where an employer can show that the requirement that a person be of a particular sex is a genuine occupational requirement. Where the requirement that a person be of a particular sex is not genuine, the exception will not apply. Accordingly, the exception is
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limited in nature and there are no less restrictive means reasonably available. C.2. Clause 26(3) allows employers to discriminate on the basis of sex, age or race, or in favour of 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. Clause 26(4) allows employers to discriminate on the basis of physical features in relation to dramatic or artistic performance or similar employment. The importance of the purpose of the limitation The underlying purpose of the limitations in clause 26(3) and (4) is to allow freedom of expression where this is required for authenticity or credibility in the limited context of artistic and related employment. This is based on the acceptance that in artistic endeavours, a particular aesthetic may be required to give full expression to the work of the artist. The limitation facilitates the contribution of artistic endeavours to the cultural life of Victoria. The purpose of allowing the limitation in clause 26(3) to extend to other employment for reasons of authenticity or credibility is to allow targeted recruitment in cases where the person's attribute is central to authenticity or credibility. An example of the type of other employment this exception will cover is the employment of an Aboriginal person to provide information and education on Aboriginal heritage in an Aboriginal cultural centre. The nature and extent of the limitation The limitation in clause 26(3) only applies to certain attributes -- sex, race, age and impairment. It is restricted by the type of employment it relates to, namely, artistic and related employment, a limited field of employment. While the limitation also extends to other employment, it will only apply where it is necessary to do so for reasons of authenticity or credibility. The limitation in clause 26(4) only applies to the attribute of physical features and is restricted to artistic and related employment. It does not extend more generally to other types of employment, as is the case with the limitation in clause 26(3). The relationship between the limitation and its purpose The limitation is rationally related to its purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means available to achieve the purpose of these limitations. C.3. Clauses 30(2) and 31(3) and (4) provide that a person who intends to establish a firm of less than five partners and an existing firm of less than five partners can discriminate on any ground where this is reasonable. This exception limits the right to equality (section 8(3)). However, because the nature of financial and fiduciary relationships between partners in a firm is more personal than those between employers and employees, this exception also promotes the right to privacy (section 13) and freedom of association (section 16). The importance of the purpose of the limitation The purpose of this limitation is to protect privacy and freedom of association by allowing partners in small firms some choice in who they choose to enter into particular types of financial and fiduciary relationships with. The nature and extent of the limitation The extent of the limitation is inherently restricted by the requirement that any discrimination be reasonable. The relationship between the limitation and its purpose The limitation is a rational means of achieving the aim of allowing partners in small firms freedom of privacy and association. Any less restrictive means reasonably available to achieve its purpose The requirement that any discrimination be reasonable inherently incorporates consideration of whether there are any less restrictive means reasonably available to achieve the purpose of the exceptions. C.4. Clause 82(1) allows discrimination in relation to the training and appointment of priests, ministers of religion or members of a religious order. This limits the right to equality (section 8(3)). However, it promotes the right to freedom of religion (section 14). The right in section 14 of the charter establishes a right to freedom of thought, conscience, religion and belief and a right to demonstrate one's religion or belief. Under the equivalent right in the International Covenant on Civil and Political Rights, the first aspect of the right is considered to be absolute. However, the second aspect may be limited, because the way in which religion or belief is practised or observed can impact on others. For the purpose of analysing the religious exceptions in the bill against the charter, there is clearly a need to balance the right to equality with the right to freedom of religion. In Christian Education South Africa v Minister of Education (2000) 9 BHRC 53, Sachs J stated (at [35]) there is a question in any open and democratic society based on human dignity, equality and freedom in which conscience and religious freedom have to be regarded with appropriate seriousness, as to how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. While there is no automatic right to be exempted by religious beliefs from the laws of the land, the state should, wherever reasonably possible, 'seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law'. Additionally, courts tend to defer to Parliament in relation to how best to achieve a balance between these two rights. In The Christian Institute & Ors, An Application for Judicial Review [2007] NIQB 66, the High Court of Justice in Northern Ireland was asked by various religious groups to assess the compatibility of regulations made under the Equality Act 2006 relating to discrimination and harassment on the grounds of sexual orientation. The religious groups contended that the exemptions in the regulations were insufficient to protect their freedom to manifest religious belief. On the balance to be accorded the competing rights,
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Weatherup J said at paragraph 92: '[t]here are inevitably different views about the proper balance between the respective interests and about the balance achieved by the regulations. This balance is essentially a matter for the legislative decision-makers ...'. The importance of the purpose of the limitation The purpose of this limitation is to allow religious bodies the freedom to decide the manner in which the training and appointment of priests and the selection of others to perform functions related to religious observance and practice should be conducted. This is important as it protects freedom of thought, conscience, religion and belief (section 14). The nature and extent of the limitation While this exception covers all attributes, the exception only applies in the context of the teaching, practice, worship and observance of religion. The relationship between the limitation and its purpose The limited nature of the exception is appropriate to achieving its purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means reasonably available to achieve the purpose of the limitation. C.5. Clauses 82(2) and 83(2) allow religious bodies and religious schools to discriminate on the grounds of religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity in certain circumstances. This limits the right to equality (section 8(3)). However, it protects the right to freedom of thought, conscience, religion and belief (section 14). The importance of the purpose of the limitation The purpose of these exceptions is to allow religious bodies and schools to discriminate in certain circumstances where this is required to avoid conflict with their religious doctrines or where it is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion. This is important in a pluralistic society that values freedom of religion. The freedom to manifest religion or belief in worship, observance, practice and teaching covers a broad range of acts. For example, the right encompasses freedom to establish religious schools and the liberty of parents and guardians to provide religious and moral education to children. The right also protects acts that are intimately linked to religious beliefs. The nature and extent of the limitation The limitation in clauses 82(2) and 83(2) does not apply in relation to employment, but rather will apply in relation to other activities conducted by religious bodies, such as providing services, and by religious schools, such as providing education. The limitation is restricted to certain attributes. These attributes were identified as relevant attributes through consultation with faith groups, as such attributes may conflict with core beliefs and values held by religious organisations. The exceptions are limited by the threshold requirement that the discrimination either must conform with the religion's doctrine or must be reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion. The addition of the word 'reasonably' in clauses 82(2)(b) and 83(2)(b) incorporates an objective element in the provision so that action must not only be necessary to avoid injury to the religious sensitivities of adherents of the religion, but also must be reasonable. In addition, in order to be covered by the exception, the religious body or school must meet the threshold of being either an entity established for a religious purpose or an entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles. The relationship between the limitation and its purpose The threshold test requiring connection to religious doctrine or religious sensitivities ensures that the limitation is directly related to its purpose, which is to allow freedom of religion in these circumstances. Any less restrictive means reasonably available to achieve its purpose There are inevitably different views about the proper balance between respective interests in relation to these exceptions, and about the best way to deal with the tension between sections 14 and 8 of the charter. In my view, these provisions represent an appropriate balance between the right to freedom of religion and the right to equality. C.6. Clause 82(3) and 83(3) provide that nothing in part 4, which prohibits discrimination in certain circumstances, applies to anything done in relation to the employment of a person by a religious body or religious school where conformity with the doctrines of the religion is an inherent requirement of a position and 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. The importance of the purpose of the limitation The purpose of this exception is to allow religious bodies to discriminate in employment where conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the relevant position. Again, this limitation is important in a pluralistic society that values freedom of religion. The nature and extent of the limitation This clause will only apply in the context of employment where conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position. As with clauses 82(2) and 83(2), the limitation is restricted to certain attributes which are most likely to impact upon core religious beliefs. The relationship between the limitation and its purpose The threshold test requiring connection between the doctrines, beliefs or principles of the religion and the inherent requirements of the particular position ensures that the limitation is directly related to its purpose, which is to allow freedom of religion in these circumstances.
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Any less restrictive means reasonably available to achieve its purpose As is the case with clauses 82(2) and 83(2), there are inevitably different views about the proper balance between sections 14 and 8 of the charter, but, in my view, clause 82(3) and clause 83(3) represent an appropriate balance between the right to freedom of religion and the right to equality. C.7. Clause 84 provides that nothing in part 4 (that is, none of the prohibitions against discrimination) applies to discrimination by a person against another person on the grounds of religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity where this is reasonably necessary for the individual to comply with the doctrines, beliefs or principles of their religion. This limits the right to equality (section 8(3)). The importance of the purpose of the limitation The purpose of this limitation is to allow individuals the freedom to express and demonstrate their religious beliefs, even if such beliefs are discriminatory, where this is reasonably necessary for the person to conform with religious doctrine, practice or belief. The nature and extent of the limitation This exception will only apply in relation to certain attributes (those which are most likely to impact on core religious beliefs), and thus is limited in scope. Further, it will only apply in circumstances where the conduct is reasonably necessary for compliance with the doctrines, beliefs or principles of the religion. The addition of the word 'reasonably' incorporates an objective element in the provision so that action must not only be necessary to comply with the doctrines, beliefs or principles of the religion, but also must be reasonable. Consequently, the limitation is relatively narrow in nature. The relationship between the limitation and its purpose The limitation is rationally connected to its purpose. Any less restrictive means reasonably available to achieve its purpose In a society that values freedom of religion, there are no less restrictive means reasonably available to achieve the purpose of this limitation. In my view, this clause strikes the appropriate balance between the right to freedom of religion and the right to equality. D. Other justifications The exceptions that are in this category rely on a range of justifications including health and safety and allowing statistic-based services, such as credit provision and insurance. D.1. Clauses 23, 34, 41 and 46 allow discrimination where reasonable adjustments for people with impairments cannot be provided or where the person could not do the job or participate in the educational program or service even if reasonable adjustments were provided. Clause 58 allows discrimination where a person who provides public premises could not reasonably be expected to avoid discrimination. These exceptions limit the right to equality (section 8(3)) by allowing discrimination against people with impairments in certain circumstances. The importance of the purpose of the limitation These exceptions allow employers, firms, educational authorities and service providers to discriminate where reasonable adjustments are not possible, or would not achieve the purpose of allowing the person with an impairment to work or participate in education or receive a service or, in the case of clause 58, where it is not reasonable to avoid discrimination. These exceptions recognise that it is not always reasonable or possible to make adjustments or alterations to allow a person with an impairment to participate. The nature and extent of the limitation The exceptions will only apply after consideration of whether the duty holder can make reasonable adjustments or whether any reasonable adjustments would allow the person to do the job or participate in the educational program or service. In this way, discrimination is the last resort. The relationship between the limitation and its purpose The limitation is rationally connected to its purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means reasonably available to achieve the purpose of these exceptions. D.2. Clause 25 allows discrimination on the basis of any attribute by an employer against an employee or prospective 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. This exception limits the right to equality (section 8(3)). The importance of the purpose of the limitation The purpose of the limitation is to protect children. This is an important purpose. The nature and extent of the limitation The exception is limited by the requirement that the discrimination be reasonably necessary. This requirement means that the exception will only apply when the need for the discrimination can be objectively justified. The exception is further limited as it does not apply to employment by a post-secondary education provider, where the employment is only likely to involve the care, instruction or supervision of older children. The relationship between the limitation and its purpose The limitation is rationally connected to its purpose. Any less restrictive means reasonably available to achieve its purpose. As the exception includes an inherent limitation that the need for the discrimination be reasonable, there are no less restrictive means reasonably available to achieve the purpose.
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D.3. 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. This exception may limit the right to equality (section 8) and the right to privacy (section 13) to the extent that some of the information that job applicants will be asked to disclose will relate to political memberships, associations and activities that may be personal and are closely connected to individual identity and autonomy. It may also engage freedom of expression (section 15), to the extent that this right also protects the right not to impart information and because an employer may be able to consider a job applicant's previous activities in publishing political opinions when it determines offers of employment, freedom of association (section 16) and participation in public life (section 18). The importance of the purpose of the limitation The underlying purpose of this limitation is to promote the efficiency of Parliament and to facilitate the proper working of democracy. The exception does this by facilitating the trust and confidence of political employers in their employees to conduct their work in the best interests of the employer they are serving. The nature and extent of the limitation While the exception limits a number of rights, it does so to a small extent. The exception applies to a restricted type of employment and applies only to the offering of that employment. The relationship between the limitation and its purpose Ministers and political parties must have confidence that the staff they employ will serve the interests of the party, including by maintaining confidentiality. Allowing discrimination on the grounds of political belief in such employment is a rational way of achieving this purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means available to achieve the purpose of this limitation. D.4. Clause 29 allows employers to take the age of an employee and their eligibility to receive a retirement benefit from a superannuation fund into account in deciding the terms on which to offer employees incentive to resign or retire through early retirement schemes. This exception limits the right to equality (section 8(3)), as it allows the offering of different incentives to resign or retire based on a person's age. It also allows employers to only offer early retirement schemes to employees over a certain age. The importance of the purpose of the limitation The purpose of the exception is to provide employers who are restructuring or reducing their workforce a way of providing meaningful incentives for employees to retire or resign early. As all employers have finite funds, where an employer cannot differentiate between employees, the amount offered as an incentive will be smaller than if they can differentiate between employees. This will limit the attractiveness of the incentive and may not achieve the desired purpose of the scheme. The ability to provide incentives to retire or resign assists employers to restructure their businesses to meet changing needs and circumstances and, in this way, promotes a healthy economy. This is an important purpose as it assists all Victorians. The nature and extent of the limitation The limitation only applies to the offering of incentives to retire or resign. This gives the employees the option to retire or resign, but does not force them to do so. The relationship between the limitation and its purpose Differentiating on the basis of age and eligibility for superannuation benefits provides a rational way of differentiating between employees, by ensuring that all employees in the business will have income security following a restructure. I note that the commonwealth Income Tax Assessment Act 1997 (section 83.180) provides for tax exemptions for payments pursuant to approved early retirement schemes. The existence of this tax benefit underscores the rationality of age-based early retirement schemes. Any less restrictive means reasonably available to achieve its purpose There are other ways of differentiating among employees when creating incentives to resign or retire. For example, differentiation could be on the grounds of performance or workplace location. While these options do not limit the right to equality, they may not always be available. Further, the Supreme Court held in Sabet v Medical Practitioners Board of Victoria [2008] VSC 248 (at [188]), that in considering whether there are less restrictive means available, it was sufficient to consider whether the chosen measures fall within a range of reasonable alternatives. Given this, allowing differentiation on the grounds of age is a reasonable option. D.5. Clause 37 allows qualifying bodies to set reasonable terms or make variations to reasonable terms where a person cannot meet the terms of a qualification to allow the person to practise their occupation. The reasonable terms may be a restriction on full practice of the profession or trade. The importance of the purpose of the limitation The purpose of this limitation is to ensure that a person with an impairment that limits their ability can gain entry to a profession or trade or continue to work in a profession or trade to the fullest extent possible. The nature and extent of the limitation The limitation aims to facilitate the participation in the workforce of people with impairments. While it may mean that there is a restriction on full practice of the profession or trade, this is justified by the need to ensure public health and safety. The relationship between the limitation and its purpose The limitation is rationally connected to its purpose.
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Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means to achieve such a purpose. D.6. Clause 42 allows educational authorities to set and enforce reasonable standards of dress, appearance and behaviour for students. Subclause 42(2) clarifies the views of the school community are a relevant factor in assessing the reasonableness of the standard. This exception limits the right to enjoy human rights without discrimination (section 8(2)) and the right to equality (section 8(3)). In its application, it may also engage the right to bodily privacy (section 13) in that the provision may control physical appearance, the right to freedom of thought, conscience, religion and belief (section 14) in that a person may be prohibited from demonstrating their religious beliefs through limitations on dress or conduct, the right to freedom of expression (section 15) in that a person may be denied the right to freely express themselves through dress or conduct and cultural rights (section 19) in that a person may be prohibited from enjoying their culture or practising their culture. The importance of the purpose of the limitation The purpose of allowing a school to set reasonable standards of dress, appearance and behaviour is to promote appropriate standards of behaviour and decency and ensure the health and safety of students. In some respects, the purpose may also be to promote equality between students by setting a standard school uniform. The nature and extent of the limitation The exception is inherently limited by the requirement that any standard set by the school be reasonable. For public schools, which are public authorities and therefore bound by the charter in their decision making, any standard set must be a reasonable limitation on any right that the standard engages. The provision in clause 42(2), which clarifies that consultation with the school community is a relevant factor in determining reasonableness, recognises that there may be different standards and expectations between schools. That the school community is an important stakeholder in the setting of appropriate standards of dress for each school is confirmed by the recommendation of the Education and Training Committee of Parliament's Inquiry into Dress Codes and School Uniforms in Victorian Schools that 'decisions regarding dress codes and school uniform policies remain the responsibility of school councils, in consultation with their communities'. 1 The relationship between the limitation and its purpose The limitation is rationally connected to its purpose. There is no other way for schools to regulate standards of dress, behaviour and appearance aside from providing an exception to allow them to do so. Any less restrictive means reasonably available to achieve its purpose As noted above, there is no other way for schools to achieve the purpose of the limitation. D.7. Clause 47 allows insurance providers to discriminate on any attribute by refusing to provide an insurance policy to the other person, or on the terms on which an insurance policy is provided where it is allowed by a commonwealth act or where it is justified by actuarial or statistical data or where it is otherwise reasonable, if no such data exists and it is not reasonable to attain it. This exception limits the right to equality (section 8(3)). The importance of the purpose of the limitation The purpose of this exception is to enable insurers to provide affordable insurance to customers, by allowing different premiums to be offered to those groups with different levels of risk. The nature and extent of the limitation While the exception covers all attributes, the extent of the limitation is inherently restricted by the requirement that it be reasonable or allowed under a commonwealth act. The relationship between the limitation and its purpose As the insurance premiums are calculated on the generalised behaviour of different groups, justifiable discrimination is required to enable insurance to be offered. As such, the limitation is rationally limited to its purpose. Any less restrictive means reasonably available to achieve its purpose While it could be argued that the exception could be limited by restricting it to the attributes of age, sex and impairment, the in-built requirement that any differentiation based on an attribute must be reasonable and justifiable safeguards the exception against an unjustified broad application of the exception. D.8. Clause 48 allows credit providers to discriminate on the grounds of age by refusing to provide credit, or on the terms in which credit is provided, if the refusal is based on actuarial or statistical data on which it is reasonable for the credit provider to rely and is reasonable having regard to that data, or where no data is available, if the refusal or terms on which credit is provided are reasonable having regard to any other relevant factors. This limits the right to equality (section 8(3)) by preventing people from accessing credit, or affecting the terms under which a person can access credit, on the basis of their age. The importance of the purpose of the limitation The purpose of this limitation is to allow credit providers to use age as a basis for assessing the risk associated with extending credit. This may be beneficial to young people who are unaware of such risks and may otherwise unwittingly take on excessive debt. It may also be beneficial to older people who, by reason of reduced income after retirement, may not be able to pay back a loan.
Footnotes:
1. Education and Training Committee of Parliament, Inquiry into Dress Codes and School Uniforms in Victorian Schools - Final Report, December 2008, recommendation 2.1.

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The nature and extent of the limitation The exception only restricts the right to equal treatment on the grounds of age. The exception is inherently limited by the requirement that it be reasonable and justifiable. The relationship between the limitation and its purpose As terms and conditions of the provision of credit are calculated on the generalised behaviour of different age groups according to data on the ability of such groups to pay back the credit, justifiable discrimination is required to enable credit to be offered. As such, the limitation is rationally limited to its purpose. Any less restrictive means reasonably available to achieve its purpose A less restrictive means of assessing risk in relation to credit would be by reference to the person's credit history once they have one. However, as information about a person's history may not be readily available to credit providers, allowing credit providers to use age is a rational and proportionate means of allowing them to assess risk. D.9. Clause 49 allows a person providing goods and services 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 limits the right to equality (section 8(3)), as it may prevent parents (or others caring for children) and children themselves from accessing certain places or participating in certain activities. In its application, it may also engage the right to freedom of thought, conscience, religion and belief as it may be used to deny a person access to religious institutions. Similarly, it may engage cultural rights (section 19) as it may restrict the capacity to access particular venues for the purpose of taking part in cultural practices. However, it may also facilitate the protection of families and children (section 17) and other individuals' privacy (section 13) where this is at risk of disruption by a child. The importance of the purpose of the limitation This limitation is aimed at ensuring children do not unreasonably cause disruption or danger to themselves or other people. The nature and extent of the limitation The limitation is not extensive. It only allows a provider of goods and services to require that a supervising adult be present and by default would allow the provider to refuse the goods and services where this condition was not met. Further, it is restricted by the requirement that the risk of disruption or risk to safety be reasonable. The relationship between the limitation and its purpose Requiring an adult to supervise a child where a reasonable risk of disruption or danger presents is a rational and proportionate way of achieving the aim of the limitation. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means reasonably available to achieve the purpose of the limitation. D.10. Clause 68 allows clubs established for one sex only to exclude from membership people of the opposite sex. This exception limits the right to equality (section 8(3)). The importance of the purpose of the limitation The main purpose of this limitation is to avoid inconsistency with the commonwealth Sex Discrimination Act 1984, which defines clubs in the same way as the bill and contains an exception allowing single-sex clubs to discriminate in relation to membership. If Victorian law is inconsistent with commonwealth law, the Victorian law will be invalid to the extent of the inconsistency. However, there are other purposes of single-sex clubs, namely, to promote freedom of association between members of the same sex. This may be particularly important for women, where associating with other women members promotes equality. This is likely to be the justification for the exception for single-sex clubs in the Sex Discrimination Act, as one of the objectives of that act is to give effect to the Convention on the Elimination of All Forms of Discrimination Against Women. The nature and extent of the limitation The limitation arising from allowing single-sex clubs is restricted by the definition of 'club' in the bill. Only clubs with more than 30 members and that have a liquor licence (other than a temporary licence or a major event licence) will be regulated by the bill. The relationship between the limitation and its purpose The limitation is directly connected to its primary purpose, which is to avoid inconsistency with the commonwealth Sex Discrimination Act. Any less restrictive means reasonably available to achieve its purpose Given the definition of 'club' in the bill is the same as that in the commonwealth Sex Discrimination Act, there are no less restrictive means available to avoid inconsistency. D.11. Clause 69 allows clubs to provide equivalent but separate benefits to male and female members where it is not practicable for men and women to enjoy the same benefit together. This exception may limit the right to equality (section 8(3)) in its application, by preventing either male or female club members from enjoying a benefit. The importance of the purpose of the limitation The purpose of this exception is to ensure men and women have reasonably equivalent access to member benefits of a club, if it is not practicable for men and women to enjoy those benefits at the same time. For example, where there is only one change room available at a sporting club, it may be reasonable to provide separate access to men and women. In such cases, the exception will operate to protect the right to bodily privacy (section 13). The nature and extent of the limitation This exception applies only to sex discrimination in the area of clubs. Further, it will only apply where it is not practicable for the benefits to be enjoyed by men and women at the same time. The nature of the limitation is inherently restricted by the requirement that it not be practicable to provide the benefit to men and women at the same time. The extent of the
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limitation is minimised by the requirement that separate benefits be the same or reasonably equivalent. The relationship between the limitation and its purpose The restricted nature of the limitation means that it is rational and proportionate to its purpose. Any less restrictive means reasonably available to achieve its purpose The assumption underlying the limitation is that the club's resources are limited and that therefore providing the benefit simultaneously to men and women is not practicable. While it may be appropriate for clubs to move towards the position where they are able, through redesign of premises or other means, to provide the benefit simultaneously, there are no less restrictive means reasonably available to achieve the purpose of the limitation where clubs are hampered by limited resources. D.12. Clause 72(1) combined with clause 72(3) allows for single-sex sporting competitions for people over the age of 12, 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. Clause 72(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 limits the right to equality (section 8(3)). In allowing discrimination on the basis of gender identity, it may also limit their right to privacy (section 13). The importance of the purpose of the limitation The purpose of this limitation is to allow fair competition in competitive sporting activities by differentiating between people based on attributes which may mean they cannot compete at the same level as people without those attributes. This is an important purpose in a society that values competitive sport. Doing this may increase participation in some sports, and thereby facilitate freedom of association between members of these groups (section 16). The nature and extent of the limitation The extent of the limitation is restricted in that it only applies to competitive sporting activities and (in relation to sex and gender identity) those in which strength, stamina or physique are relevant. The effect of this limitation may be far reaching in circumstances where no equivalent sporting competitions are provided to people in the groups excluded by the exception. However, such circumstances depend on the availability of resources, and in some instances, the history and culture of the sport, which are issues that equal opportunity law cannot adequately address. The relationship between the limitation and its purpose By restricting the application of the limitation to competitive sporting activities and (in relation to sex and gender identity) those in which strength, stamina or physique are relevant, the limitation is rationally connected to its purpose. Any less restrictive means reasonably available to achieve its purpose The exception allowing discrimination on the grounds of gender identity assumes that a transgender person may have a competitive advantage associated with their birth gender. This may not necessarily be the case. For example, female to male transgender people competing in male competitive sporting activities are unlikely to have a competitive advantage. Given this, limiting the exception to instances where people have a competitive advantage because of their gender identity may be a less restrictive means of achieving the purpose of the exception. However, framing the exception in this way may be difficult to apply, as it would involve assessing the effects of the person's gender identity on their sporting ability, an assessment that would be beyond the capability of most sporting organisations and may involve intrusive questioning and testing. For example, the International Olympic Committee's rules on participation by transgender athletes in competitions for the sex with which they identify require athletes to have had surgery at least two years prior to the competition, to be taking hormone replacement therapy for an appropriate period of time and to be legally recognised as a member of the gender with which they identify. In light of this, and in light of the fact that the exception is limited to competitive sporting activities, the exclusion of people on the basis of gender identity is a reasonable means of achieving the purpose of the limitation. D.13. Clause 74 allows a councillor of a municipal council to discriminate against another councillor or member of a council committee in the performance of their public functions on the grounds of their political belief or activity. This exception limits the right to equality (section 8(3)). The importance of the purpose of the limitation The purpose of this exception is to facilitate the efficacy of local government through democratic political affiliations, and thereby enabling councillors to interact with other councillors on the basis of their political affiliations. This is a legitimate and important purpose in a free and democratic society. The nature and extent of the limitation This limitation is restricted to very narrow circumstances and therefore is not extensive. The relationship between the limitation and its purpose The limitation is rationally connected to its purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means available to achieve the purpose of the limitation. D.14. Clause 75 allows a person to discriminate on any grounds where it is necessary to comply with or is authorised by an act or enactment. While this exception is not discriminatory itself, it may facilitate the limitation of a number of charter rights, including the right to equality (section 8(2) and 8(3)), depending on the provision in the act or enactment.
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The importance of the purpose of the limitation This exception recognises that, in limited circumstances, it will be intended that an act or enactment allows discrimination, and while the discrimination does not fall within an exception, it is considered to be a reasonable limitation on the right to equality. The nature and extent of the limitation Prior to the commencement of the charter, the exception in section 69 of the Equal Opportunity Act was very far reaching. However, since the commencement of the charter, there are a number of processes for ensuring human rights are taken into consideration in the development of new policy and legislation. These processes are designed to ensure new acts or enactments are charter-compatible, or that the decision to enact legislation that is not compatible is intended and explained. In addition: all government departments undertook an audit of the existing legislation they administer in 2007 and 2008 to identify incompatible provisions; since 1 January 2008, section 32 of the charter requires courts and tribunals to interpret laws in a way that is human rights compatible as far as possible; section 38 of the charter requires public authorities to act in a manner that is compatible with human rights. This applies to all decisions made by public authorities, including where a public authority has decision-making discretion; clause 156(2) of the bill provides the commission with a monitoring role and requires the commission to report to the relevant minister and the Attorney-General on any legislation that discriminates or has the effect of discriminating against any person. The relationship between the limitation and its purpose The limitation is rationally connected to its purpose. Any less restrictive means reasonably available to achieve its purpose It may be argued that listing any provisions that are intended to discriminate in a schedule to the act is a less restrictive means of achieving the purpose of the limitation, as such a schedule would be definitive. However, given the checks and balances already available to ensure legislation is charter-compatible, such a time and resource-intensive process may not be a reasonable alternative. Further, such a scheme may have unintended consequences for any discriminatory acts or enactments that have been overlooked and are not included in the schedule. D.15. Clause 76 allows discrimination where this is necessary to comply with an order of VCAT or any other court or tribunal. This exception may facilitate the limitation of a number of charter rights, including the right to equality (section 8(2) and 8(3)) depending on the order. The importance of the purpose of the limitation This limitation is to ensure orders of courts and tribunals are complied with. This is important in a democratic society committed to the rule of law. The nature and extent of the limitation As courts and tribunals are required by the charter to interpret all legislative provisions consistently with the charter, it is likely that the restriction will not be broad. The relationship between the limitation and its purpose The limitation is rational and proportionate to its purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means reasonably available to achieve the purpose of the limitation. D.16. Clause 77 allows discriminatory provisions relating to pensions. This limits the right to equality in section 8(3). The importance of the purpose of the limitation The purpose of this exception is to allow provisions relating to pensions to discriminate. This recognises that entitlements to benefits are linked to the way in which certain attributes, such as marital status, sex and impairment are defined by particular laws. Most of these laws are commonwealth laws, not Victorian laws. In these cases, Victoria cannot control discriminatory provisions in pensions. Further, anomalies between the way in which particular attributes are defined for the purposes of the Equal Opportunity Act and other Victorian laws may result in terms in pensions being discriminatory. For example, while the Equal Opportunity Act has a broad definition of gender identity for the purpose of protecting people from discrimination, the Births, Deaths and Marriages Registration Act 1996 has a much narrower definition for the purpose of legal recognition of sex. Similarly, while the Equal Opportunity Act has a broad definition of impairment for the purpose of protection from discrimination, other laws have narrower definitions. Where pension entitlements are based on the narrower definition of the attribute, the term may be discriminatory. The nature and extent of the limitation While the commonwealth has recently amended some laws that allowed discrimination in pension entitlements on the grounds of sexual orientation, other laws that allow discriminatory pensions still exist. This is recognised by the exemption of certain pensions that contain discriminatory terms from commonwealth antidiscrimination laws. The relationship between the limitation and its purpose The limitation is rationally limited to its purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means reasonably available to achieve this purpose.
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D.17. Clause 78 allows discrimination on any ground in relation to superannuation fund conditions existing prior to 1 January 1996. The importance of the purpose of the limitation This exception recognises the point of time in which superannuation funds became subject to the Equal Opportunity Act 1995 and allows discrimination existing at the time to apply to people who were members at the time or became members within 12 months of the act commencing. This is important to ensure that agreements made during that time remain valid and binding. The nature and extent of the limitation This exception is limited in that it only applies to discriminatory terms existing as at 1 January 1996 and to people who were already members of the fund or became members of the fund within 12 months from that date. The relationship between the limitation and its purpose The limitation is rationally limited to its purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means reasonably available to achieve this purpose. D.18 Clause 79 allows discrimination in superannuation fund conditions after 1 January 1996 on the grounds of age, sex, marital status or impairment where this is allowed under commonwealth acts and in relation to age if it is based upon actuarial or statistical data on which it is reasonable for the person to rely and is reasonable having regard to that data and any other relevant factors; or 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. This exception limits the right to equality (section 8(3)) and may also limit other rights, depending on the nature of the discriminatory provision. The importance of the purpose of the limitation The purpose of this exception is to ensure compatibility with commonwealth laws relating to superannuation. The nature and extent of the limitation This exception is restricted to discrimination in superannuation allowed under commonwealth laws, and, in relation to age, where the discrimination is reasonable. The relationship between the limitation and its purpose The limitation is rationally connected to its purpose. Any less restrictive means reasonably available to achieve its purpose The exception refers to the exceptions under commonwealth laws and in relation to age, mirrors the exception. This ensures the exception only allows discrimination on the same terms as that is allowed under the commonwealth laws. D.19. Clause 85 allows discrimination against a person who is subject to a legal incapacity that is relevant to the transaction or activity in which they are involved. The importance of the purpose of the limitation The purpose of this exception is to prevent people with a legal incapacity entering into transactions or engaging in certain activities for which it is considered they are insufficiently mature, or have other legal incapacity. The nature and extent of the limitation The nature and extent of the limitation is confined in that it extends only to those transactions in which the person's legal capacity is at issue. Therefore, it is not extensive. The relationship between the limitation and its purpose As the exception only applies where the person's incapacity is relevant to the transaction, it is directly related to its purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means reasonably available to achieve the purpose of the limitation. D.20. Clause 86(1) permits discrimination on the grounds of impairment or physical features where this is reasonably required to protect the health, safety or property of any person. Clause 86(2) permits discrimination on the grounds of pregnancy where this is reasonably required to protect the health or safety of any person. This clause limits the right to equality (section 8(3)). However, it promotes the protection of life (section 9) and the right to security of person (section 21). The importance of the purpose of the limitation This limitation has an important public purpose of allowing discrimination where this furthers the right to safety and security of people, or where it is necessary to protect public property. The nature and extent of the limitation The limitation is confined to discrimination on the grounds of impairment, physical features and pregnancy. The requirement that the discrimination be reasonably necessary to protect health and safety or property inherently requires consideration of whether the discrimination is reasonable, rational and proportionate. The relationship between the limitation and its purpose The limitation is rationally connected to its purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means to achieve such a purpose. OTHER CLAUSES THAT ENGAGE CHARTER RIGHTS Right to equality The provision clarifying that taking special measures to promote or realise substantive equality is not discrimination (clause 12) and the provisions that create a duty for certain duty holders to make reasonable adjustments for people with impairments (clauses 20, 33, 40 and 45) engage but do not limit the right to equality in section 8(3). As I noted in the introduction to this statement of compatibility, section 8(4) of the charter specifically
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recognises that taking special measures to achieve substantive equality for disadvantaged groups is not discrimination. Clause 12 reflects this model. Clause 12 contains a number of safeguards to ensure that special measures may only be used for the purpose of promoting or realising substantive equality of the target group. In addition to providing that the person taking the measure bears the onus of proving that the measure is a special measure, the clause provides that once the measure meets its purpose, it is no longer a special measure. Therefore, continuing special measures beyond the achievement of substantive equality may be discrimination. The reasonable adjustments provisions in clauses 20, 33, 40 and 45 also engage but do not limit the right to equality. The purpose of the duty to make reasonable adjustments is to enable people with impairments to participate in areas they would not be able to participate in unless the adjustments were made. Making reasonable adjustments for people with impairments requires taking measures that would not be taken for people without an impairment. However, as people without impairments would not need the adjustments, the right to equality is not limited. Clause 89 allows for the granting, revocation or renewal of applications to the tribunal for a temporary exemption from the act. An exemption makes conduct that would otherwise be unlawful, lawful for the duration of the exemption. While the process prescribing the exemption process does not itself limit the right to equality, an exemption will limit the right to equality and may impact on other rights depending on the nature of the exemption. Clause 90 provides that the tribunal must consider certain factors when making decisions to grant, renew or revoke an exemption. One of these is whether the proposed exemptions is a reasonable limitation on the right to equality in the charter. In this way, the exemption process ensures that all exemption applications will be assessed according to the reasonable limitations test in section 7(2) of the charter and that all exemptions that are granted or renewed will be compatible with the charter. Freedom of expression Clauses 132 and 133 enable the commission to compel the production of information or documents as part of an investigation or public inquiry into a serious systemic matter, and to compel attendance. Clause 134 provides a penalty for failure to comply with the request for information, to produce documents or to attend without reasonable excuse. Clauses 132 and 133 may engage the right to freedom of expression in section 15 of the charter, which includes the freedom to impart information and ideas of all kinds, as well as the right not to impart information. However, to the extent that the right is engaged, these clauses would fall within the exceptions to the right in section 15(3), as reasonably necessary to respect the rights of other persons, or for the protection of public order. The powers to compel information and attendance apply only in the context of an investigation or public inquiry; they are not powers used by the commission in relation to individual disputes. The powers enable the commission to properly carry out its investigatory functions and are appropriately circumscribed, ensuring that they are only used when the information is necessary for the investigation or public inquiry, and that the person required to provide the information or to attend is given a reasonable time in which to comply. The powers are further limited by the protection against self-incrimination in clause 135 and the bill does not override any other relevant privileges that would apply at common law. On a more general level, the commission is bound by the principles of natural justice in conducting an investigation or public inquiry. Accordingly, I consider that clauses 132 and 133 do not limit the right to freedom of expression in the charter. The right to privacy Clause 140 allows the commission to publish a report on a public inquiry. It also allows the commission to provide a report on a public inquiry to the Attorney-General who may then table the report in Parliament. This may engage the right to privacy (section 13). However, the bill includes a number of provisions that ensure that the right to privacy is not unlawfully or arbitrarily interfered with. Clauses 136 and 137 of the bill act to protect individuals who give information or documents to the commission as part of a public inquiry. Under clause 136, the commission can order non-disclosure of a person's identity where this is necessary to protect the person's security of employment, privacy or other charter right, or to protect the person from victimisation. Under clause 137, the commission may give directions prohibiting or limiting publication of evidence of information having regard to well-established public interest criteria. These criteria include the unreasonable disclosure of the personal affairs of any person. Under clause 141(2), the commission may exclude from the report of a public inquiry, any matter it considers desirable to do so, having regard to the factors in clauses 136 and 137. The bill also includes protection for people who may be the subject of an adverse finding in a report on a public inquiry. Pursuant to clause 141, where the commission believes there are grounds for making adverse findings, it must give the person who is the subject of the adverse findings the opportunity to comment on the subject matter of the public inquiry and respond to the grounds for making the adverse findings, before the report is given to the Attorney-General or published by the commission. On a more general level, the commission is bound by the principles of natural justice in conducting the public inquiry and is also bound by the Information Privacy Act 2000, which regulates the circumstances in which personal information may be made public. Consequently, clause 140 does not limit the right to privacy. OTHER CLAUSES THAT LIMIT RIGHTS Freedom of association Clause 64 prohibits discrimination against applicants for membership of clubs. Clause 4 defines a 'club' as an association of more than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purpose that has a liquor licence (other than a temporary limited licence or a major event licence) and runs its facilities wholly or partly from its own funds. With some exceptions, associations that meet the definition of 'club' will not be able to discriminate in relation to membership. Regulating the membership of a club limits the right to freedom of association (section 16).
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The importance of the purpose of the limitation The purpose of regulating clubs over a certain size and that have a liquor licence in the bill is to ensure that people are not prevented from becoming members of such clubs on the grounds of a protected attribute. This purpose promotes the right to equality. This is important given that membership of clubs can be a gateway to other opportunities, such as employment or sporting benefits. The nature and extent of the limitation As noted in this statement of compatibility, there are a number of exceptions that allow discrimination on the basis of certain attributes, namely, clubs for minority cultures, clubs for particular age groups and single-sex clubs. In addition, a club that is established to promote or realise substantive equality for people with a particular attribute will be a special measure and therefore not discriminatory under the bill or charter. Further, the bill enables clubs, who are not covered by an exemption or undertaking a special measure, who wish to discriminate in relation to membership for reasons such as freedom of movement, to apply for an exemption from VCAT. This would then be a matter for VCAT to consider based on the relevant circumstances of the case, and whether the proposed exemption is a reasonable limitation on the equality right in the charter. Consequently, the limitation is circumscribed by the exceptions, special measures and exemption process in the bill. The relationship between the limitation and its purpose Defining clubs to be regulated by reference to size and whether they hold a liquor licence is a rational way of achieving the purpose of balancing the right to freedom of association with the right to equality. Smaller associations are more akin to a private gathering, whereas larger associations are more likely to be considered as operating in the public sphere. Having a liquor licence subjects the association to licensing regulation. This is an indication that the association is operating in the public sphere and should be subject to equal opportunity regulation. The rationale of adopting this definition of 'clubs' is supported by the fact that most other states in Australia and the commonwealth Sex Discrimination Act use the same definition. Any less restrictive means reasonably available to achieve its purpose There are a number of ways in which the line could be drawn between the public and private spheres in relation to clubs. For example, the Equal Opportunity Act draws the distinction based on whether or not the association is on public land or receives public funding. Private clubs are currently exempt from the act. This scheme could be seen as intruding less on the right to freedom of association of private clubs. However, the current definition of 'clubs' captures a greater number of associations. Not regulating any associations in relation to membership is another option that promotes freedom of association. However, this is done at the expense of the right to equality. On balance, defining 'clubs' in this way, together with the exceptions for clubs included in the bill, is a justifiable way of balancing the right to freedom of association with the right to equality. The right to a fair hearing As discussed above, clause 136 empowers the commission to give directions prohibiting the disclosure of the identity of a person who provides information as part of an investigation or public inquiry, as well as the disclosure of information that would be reasonably likely to identify the person, where the commission considers that the preservation of the person's anonymity is necessary to either protect the person's security of employment, privacy or any right protected by the charter, or to protect the person from victimisation. Clause 137 allows the commission to prohibit or limit the disclosure of other information on public interest grounds. These clauses may engage the right to a fair hearing under section 24(1) of the charter. The right to a fair hearing applies to proceedings that are determinative of private rights and interests in a broad sense. It is arguable that an investigation of a serious systemic matter by the commission could constitute a 'civil proceeding' given the ability for the commission to issue a compliance notice as an end result of an investigation (but not a public inquiry), and that an individual (as opposed to an organisation or corporation) who is the subject of the investigation could be regarded as a 'party'. If an investigation does constitute a civil proceeding, then it must be 'fair' within the meaning of section 24(1) of the charter. While the commission may order that certain information not be disclosed, in my view, investigations carried out under part 9 will be fair, particularly given that the commission must afford natural justice throughout the investigative process, and that an affected person can apply to VCAT to seek review of a compliance notice issued by the commission. The commission would be unable to issue a compliance notice without first complying with the rules of natural justice in conducting its investigation. This would include giving the person the chance to challenge any adverse conclusions that might be the basis for a compliance notice. However, if the provision amounts to a limitation of section 24(1) of the charter, I consider that the limitation would be reasonable and justified for the following reasons. The importance of the purpose of the limitation In considering the possible limitation on the right to a fair hearing, it is important to look at the context for an investigation by the commission. Clause 127 allows the commission to conduct an investigation into any matter that raises an issue that meets the criteria for an investigation and which would advance the objectives of the act. The objectives include encouraging the identification and elimination of systemic causes of discrimination, sexual harassment and victimisation. The outcomes of an investigation, such as a compliance notice, are aimed at encouraging compliance and changing the culture of organisations, as opposed to providing redress to an individual who has been discriminated against. In order to ensure that investigations are effective, it is also important that the commission is able to protect the identity of people providing information or evidence as part of the investigation, and to limit disclosure on other public interest grounds. Without these protections, people may be reluctant to provide relevant information.
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The nature and extent of the limitation The assessment of whether or not a proceeding is 'fair' so as to satisfy section 24(1) of the charter is to be undertaken 'globally', taking account of available safeguards before the relevant body and the availability of review before a court or tribunal. Taking this global approach, the first point to note is that the commission is bound by the principles of natural justice in conducting an investigation that could lead to the issuing of a compliance notice. This means that a person or organisation that will potentially be issued with a compliance notice will know about the investigation, and any allegations of breaches of the legislation, and have had an opportunity to respond to these matters. A direction prohibiting disclosure of the identity of a person or other information will only be given if this is necessary for the above purposes. The commission must also set out in a compliance notice issued under clause 146, the basis for its belief that an unlawful act has occurred and that the person may apply to VCAT for a review of the notice. This ensures that the person understands what they are being asked to remedy and why, and what legal options they have to challenge this. The bill provides that a person issued with a compliance notice has 28 days to apply to VCAT for a review of the issuing of the notice or of any term of the notice. The relationship between the limitation and its purpose The possible limitation is directly connected to its purpose, which is to enable the commission to properly carry out its investigative functions. Any less restrictive means reasonably available to achieve its purpose As the circumstances in which the possible limitation will apply are restricted to where the commission considers that non-disclosure is necessary to protect a person's anonymity or is otherwise in the public interest, the extent of the limitation is such that there are no less restrictive means reasonably available to achieve the purpose of the clauses. If the right to fair hearing is limited by the bill, then any limitation is reasonable within the meaning of section 7(2) of the charter. Freedom of expression Clause 176 prevents the recording, disclosure or communication of personal information by the commissioner, board members and staff of the commission (and other specified people) unless it is necessary to do so for the purpose of, or in connection with, the performance of a function or duty or the exercise of a power under the bill. It does not prevent the parties themselves from disclosing information. This limits the right to freedom of expression including the freedom to seek, receive and impart information and ideas of all kinds (section 15(2)) by making it an offence for specified people to make a record of, disclose or communicate certain information. The importance of the purpose of the limitation The purpose of this limitation is to ensure that confidential information provided or obtained in the course of working for the commission is protected. This is important to protect the right to privacy of individuals or organisations to whom such information relates and to protect the integrity of the work of the commission. The nature and extent of the limitation Commission staff are already covered by the Information Privacy Act and are required to act compatibly with the charter. These acts require commission staff and board members to protect the privacy of certain information. The limitation in clause 176 does not extend beyond the obligations under these acts. The relationship between the limitation and its purpose The limitation is rationally connected to its purpose. Any less restrictive means reasonably available to achieve its purpose There are no less restrictive means reasonably available to achieve the purpose. The right to the presumption of innocence Clause 183 of the bill provides that it is a defence to the offence of discriminatory advertising if the defendant proves they took reasonable precautions and exercised due diligence to prevent the publication or display of the discriminatory advertisement. This limits the right to the presumption of innocence in section 25(1) of the charter, as it places a legal onus on a defendant by providing that the defendant must prove certain factors in order to avail himself or herself of the defence. The importance of the purpose of the limitation The purpose of imposing a burden of proof on persons regarding the offence of discriminatory advertising is to ensure that these offences can be effectively prosecuted and that they operate as a deterrent to discriminatory advertising by imposing a duty on persons to take responsibility for the manner in which they advertise. The limitation will importantly protect the right to equality in section 8 of the charter by ensuring that persons of a particular attribute are not discriminated against in advertising. The nature and extent of the limitation When an individual has engaged in discriminatory advertising, a burden is placed on that individual to prove that they have taken reasonable precautions and exercised due diligence to prevent the offence. By choosing to engage in a public activity, it is reasonable to expect individuals who are publishing advertisements to take steps to ensure that the advertisements are not discriminatory. If reasonable steps have been taken, proof ought not to be difficult. Whilst the prescribed penalty can involve low-level fines, it does not involve imprisonment. The relationship between the limitation and its purpose The imposition of a burden of proof on the defendant is directly related to its purpose as described above.
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Less restrictive means reasonably available to achieve the purpose An evidential onus would not be effective as it could be too easily discharged by the defendant. Having regard to the purpose of the offence, it would be unduly difficult and onerous for the state to investigate and prove what steps the defendant took to discharge his or her responsibilities. Accordingly, I consider these provisions to be compatible with the right to be presumed innocent in the charter. Conclusion The bill is an important vehicle for promoting the right to equality. However, in some instances, that right and other rights must be limited to properly balance competing rights or for other important reasons, such as public health and safety.
  As discussed in this statement of compatibility, all of the limitations in the
  bill are reasonable and justifiable.
  Rob Hulls, MP
  Attorney-General

Second reading

Mr HULLS (Attorney-General) -- I move: That this bill now be read a second time. Introduction and background -- A fair go for all Victorians It would be difficult, Speaker, to find a Victorian who did not support the idea of the fair go. After all, everyone wants to be happy and healthy, to have a good education and secure employment. Everyone wants to be included in the economic prosperity we have worked hard together to achieve, as well as in the community we have built together -- one that values diversity, that values opportunity, that values the contribution that every member of our rich and varied society can make, if given the chance to make it. That is why, over three decades ago, Victoria adopted equal opportunity legislation -- legislation that attracted bipartisan support, that signalled our aspirations for fairness with new strength and clarity. That legislation has been a bulwark of Victorian civic life ever since, providing a foundation for our society as it has developed and matured. It could not have done this properly, however, unless it had progressed with the community it was designed to protect. Speaker, whether in demographics or in population, Victorians are not the same as they were in 1977. Nor is our understanding of their varied experiences and the barriers that some still face to participating and contributing in full. We can see that, though progressive in its day, the legislation of a generation ago contained no provision for the diversity that we now assume. That is why, in 1995, it was amended to prohibit discrimination on the basis of, amongst other things, lawful sexual activity, age and pregnancy. In 2000, breastfeeding, sexual orientation and gender identity discrimination were included. In 2008 it was amended to protect employees who requested flexible working arrangements to accommodate their family responsibilities. Gradually, its scope has changed to reflect the scope of the wider community. What the legislation has not done until today, however, is change to reflect and address the varied forms of discrimination that Victorians continue to experience -- yes, as individuals, but also as members of whole groups in the community. What this means is that, while the right to participate fully is available to all Victorians -- the right, if you like, to congregate at the starting line -- for many the track ahead remains full of hurdles. Pay inequity between men and women; persistent indigenous disadvantage; facilities that are physically accessible to some but not to others -- these inequalities endure because they are systemic, rather than isolated; because they cannot be redressed by an individual complaint. As a result, discrimination can disadvantage entire groups in a variety of ways. Recent ANU research cites employment as one such area. According to the research, 21st century employers are still more likely to grant interviews to candidates with Anglo-Celtic names, on otherwise identical job applications in a supposedly open field. Further, a 2004 report of the Productivity Commission found that only 53.2 per cent of people with disabilities were in work compared to 80.6 per cent of those without a disability. If such basic forms of discrimination are still entrenched, then we need to acknowledge that some opportunities remain more equal than others -- that Victorians are competing on uneven ground and that we need to level the playing field. We need a legal framework and commission that is properly equipped to tackle all forms of discrimination -- individual or systemic -- to dismantle it where it does exist, and nurture and encourage a future in which it does not. That is why the government commissioned the former public advocate, Mr Julian Gardner, to conduct a review 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 for reform.
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The government has responded to the Gardner report in two stages. The first stage saw the passage of the Equal Opportunity Amendment (Governance) Act 2009, which implemented recommendations relating to the governance structure of the Victorian Equal Opportunity and Human Rights Commission (the commission). This act commenced operation on 1 October 2009. The commission is now stronger, more accountable and better prepared to adapt to the changes that this second stage of reform represents. This bill introduces key reforms to respond to the limitations of the current act. In particular the bill: changes the commission from a complaints-handling body to one that educates and facilitates dispute resolution, best practice and compliance; gives the commission more effective options to respond to systemic discrimination; encourages best practice and proactive compliance by duty-holders without reliance on individual complaints; provides a more effective and efficient complaints resolution system by placing the focus on early and flexible dispute resolution at the commission but allowing complainants to also go directly to VCAT to have their matter determined; and removes legal and technical barriers to the elimination of discrimination. The bill also clarifies, updates and amends exceptions to unlawful discrimination in response to a separate review by the Scrutiny of Acts and Regulations Committee (SARC). The government is tabling its response to SARC's report tomorrow. Overall, these reforms equip Victoria to prevent discrimination, rather than just react to it; to resolve it in an early and more enduring way where it does occur; to build relationships and collaboration with business and support best practice; to encourage productivity and innovation; to remove the obligation from individual shoulders and assume it together. Before I go into further detail, Speaker, I want to emphasise that we take these steps not as an optional extra, nor for the warm inner glow they may excite in even the stoniest of hearts. We must do this because, while individuals and particular groups within the community suffer when they experience discrimination, we also know that society as a whole cannot be strong and prosperous without also being fair. In fact, we know that society flourishes, both socially and economically, when all members are able to contribute productively to its social and economic life; when businesses are more innovative and diverse; when workforces and communities are more healthy, cohesive, stable and secure. In turn, we are all harmed when discrimination occurs. We are all diminished when Victorians with disabilities cannot find employment; when pay inequity persists; when violence or hate-motivated crime is perpetrated against our Indian community. We are diminished not just by the breakdown of trust and respectful relationships; but also by the very tangible effects that unfavourable treatment, violence or harassment can have on a person's mental and physical health; on their economic or educational security; on their basic capacity to participate. In fact, research reveals that experiencing race-based discrimination, for example, is associated with an increased risk of anxiety and depression, and possibly associated with diabetes, obesity and cardiovascular disease, as well as with a lack of productivity. Ill health comes at a cost to the public, as well as the individual, purse. This means, then, that in a variety of ways, discrimination has an economic cost, as well as a social one -- vindicating the Brumby government's view that social and economic progress are inextricably linked: that a strong economy is needed to develop a healthy and strong community, and that a healthy and strong community is vital for continued economic growth. Just like the health arena, then, we owe it to ourselves to opt for prevention, rather than just cure. Key reforms I would now like to touch on some of the key reforms in the bill in more detail. Changing the role of the commission The bill gives the commission a new focus. Rather than concentrating its resources solely on processes for handling complaints, the commission will now focus on flexible and responsive dispute resolution that will help parties resolve a dispute as quickly as possible. The commission will have an increased role in working with and encouraging duty-holders to comply with the legislation through education, the development of industry-specific guidelines and organisational engagement. The bill also clearly recognises the commission as a body with specialist expertise, allowing the commission
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to intervene in legal proceedings involving issues of equal opportunity or discrimination if permitted to do so by the court or tribunal. Giving the commission more effective tools to respond to systemic discrimination The commission has a limited range of options to enable it to investigate circumstances in which discrimination may be occurring. This bill provides for a graduated and effective range of options aimed at addressing systemic discrimination. However, I should emphasise, this does not involve allowing the commission to enter premises, conduct searches or to seize property. What it does involve is enabling the commission, following a decision of the board of the commission, to conduct an investigation into a serious matter that affects a class or group of people and that indicates a possible contravention of the act, if the investigation would advance the objectives of the act. For example, a company may have a policy that appears to indirectly discriminate against people with a disability. While the company settles several individual complaints about the policy, the policy has not been changed and continues to disadvantage people with a disability. This is the point at which the commission may step in and gather information about the extent of the problem, and decide whether further action is warranted. Where the commission's investigation reveals a problem, the commission will be able to engage with the individuals and organisations concerned to collaborate on a solution. This may simply involve an agreement to change a particular practice; or a series of practical and measurable steps to address the issue. The commission may also accept a more formal undertaking in which the person or organisation agrees to take action or refrain from taking action, and such an undertaking will be enforceable at VCAT if breached. Where an outcome cannot be reached by agreement, the commission will be able to issue a compliance notice for a person or organisation to remedy a breach of the act. If that notice is not complied with, the commission can apply to VCAT to enforce it. The notice, or any part of it, can also be appealed to VCAT. Where it is in the public interest, the commission will be able to recommend to the Attorney-General that a broader public inquiry be conducted into a serious systemic matter. In order to ensure that an inquiry is in the public interest, the commission will only be able to conduct a public inquiry with the Attorney-General's consent. At the conclusion of a public inquiry, the commission will provide a report to the Attorney-General, which may be tabled in Parliament. The commission already has the option of compelling the production of documents and attendance. The bill also sets out, then, that the commission can exercise the powers to compel only after issuing a written notice setting out what it is seeking and why; as well as providing that the commission is generally bound by the principles of natural justice. In this way, the bill provides a number of checks and balances to safeguard the rights of individuals and organisations. The commission is, of course, also required to act compatibly with the Charter of Human Rights and Responsibilities. Encouraging best practice and proactive compliance These tools are about supporting business and encouraging the best practice that already exists in the vast majority of Victorian organisations. While the current act contains implied duties to not discriminate, sexually harass or victimise, stating these duties in a positive way -- a way that does not rely on a complaint being lodged -- promotes proactive compliance and allows the commission to engage more easily with organisations about their practices where there is evidence of systemic discrimination. Duty-holders are, of course, only required to take measures that are reasonable and proportionate. Including the words 'as far as possible' ensures practicability and that any costs of meeting their obligations are proportionate to the size and operations of the organisation. By providing a list of factors relevant to consideration of when a measure is reasonable and proportionate, the bill recognises that different duty-holders have different capacities to eliminate discrimination; and that what may be possible for one organisation will not be possible for another. In practice, the duty will mean that organisations will need to think proactively about their compliance obligations, rather than wait for a complaint to trigger a response. In other words, prevention is better than cure and many organisations already recognise this as a matter of best practice. It may involve organisations identifying potential areas of non-compliance, developing a strategy for meeting and maintaining compliance, for example through training, or clear policies, and having a process for reviewing and improving compliance where appropriate.
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This duty will not be enforceable through individual complaints. However, the duty may form the basis upon which the commission takes action to investigate allegations of systemic discrimination and, if appropriate, take action to enforce compliance. In this way, the baseline obligations for duty-holders will not change. Rather, the change will be that compliance will be systemic and proactive, rather than being activated by individual complaint after the event. Creating a more effective and efficient dispute resolution system The individual complaints process, too, will be significantly reformed under this bill. The changes will make dispute resolution faster, more flexible and more appropriate to individual disputes. In addition, it will eliminate the current duplication in the complaints process by allowing people with a dispute to go directly to VCAT, rather than requiring them to lodge a complaint with the commissioner first, as is currently the case. This new model will be supported by the establishment of an independent specialist legal advice and assistance service designed to give people early strategic advice about their matter and to provide representation where appropriate. The commissioner must offer services to facilitate the resolution of disputes; but use of these dispute resolution services will be voluntary, meaning any party can withdraw at any stage. People with a dispute will not be required to go through the commissioner's dispute resolution services before they can take their dispute to VCAT, though VCAT will continue to have the power to order compulsory mediation and strike out claims in certain circumstances. Changing the commission's focus from formal complaint handling to flexible dispute resolution will allow disputes to be resolved more quickly, minimising the harm caused not only by discrimination and sexual harassment, but by the expense associated with protracted complaints processes. It will also allow relatively minor disputes to be resolved quickly and at a low level, through the provision of information to duty-holders. In this way, while direct access to VCAT will be available, it is intended that the commission retain its critical functions; providing general information and education to both duty-holders and people with a dispute. Removing legal and technical barriers to the elimination of discrimination Simpler definitions of discrimination The bill clarifies the meaning of discrimination so that it is easier to understand for both duty-holders and complainants, and so that a complaint will no longer fail on unnecessary technicalities. The bill provides that direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute unfavourably because the other person has the attribute. This definition removes the technical difficulties associated with the current requirement to compare the treatment of the person with a person in the same or similar circumstances. The bill provides that indirect discrimination occurs if a person imposes a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging people with an attribute and the requirement or condition is not reasonable. The definition removes technical difficulties associated with the current definition, which requires a complainant to show that a substantially higher proportion of people without the attribute can comply with the requirement, condition or practice. The definition also requires the person imposing the requirement, condition or practice to show that it is reasonable. This reflects the fact that the evidence about what is reasonable is usually controlled by the duty-holder, not the person being discriminated against, and follows the approach taken in other Australian jurisdictions. The definition includes a list of factors to provide guidance about what may be relevant when assessing the reasonableness of a requirement, condition or practice. Special measures are not discrimination The bill makes a clear statement that taking special measures to address the disadvantage of a particular group protected by the act is not discrimination. Special measures recognise that achieving equality is not about treating all people the same, but is about treating people differently in order to cater for different experiences and circumstances; to aim for equality of outcome, rather than just equality of opportunity. Special measures are therefore an expression of equality, rather than an exception to it.
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Duty to make reasonable adjustments for people with impairments The current act imposes duties on employers, firms, educational authorities and service providers to make reasonable adjustments for people with impairments. These duties are implied by the requirement not to indirectly discriminate and by various exceptions allowing discrimination against people with impairments in certain circumstances. The bill reframes the existing exceptions as positive duties to make reasonable adjustments for a person with an impairment. This approach provides greater clarity and certainty about the obligations of duty-holders under the act and will more effectively address systemic discrimination experienced by people with disabilities. The new provisions set out a list of factors relevant to determining whether an adjustment is reasonable, which provides guidance about how to balance the action to be taken with the expense or effort involved. If an adjustment requires disproportionately high expenditure or disruption, then it will not be reasonable. The bill continues to allow discrimination where an adjustment is not reasonable or would not be effective. Extending protection from discrimination to volunteer workers The bill extends the existing protection against discrimination for employees to unpaid workers and volunteers. Victoria values the countless numbers of volunteers that contribute to the life of this community and this change recognises the simple fact that a person can experience discrimination or sexual harassment in the workplace even if they are not paid a wage. Most other Australian jurisdictions provide some protection against discrimination or sexual harassment for unpaid workers and volunteers, and have done so for many years. However, it is also recognised that this change will present challenges to some organisations, especially those in the community and not-for-profit sector that have limited resources. The bill therefore delays the commencement of these amendments until 1 July 2012. This will give organisations sufficient time to understand, and prepare for, the changes. It will also allow the commission to develop education material and to conduct training with affected organisations. It is anticipated that the commission will collaborate with a range of representatives from organisations that rely on volunteers in developing this material. Exceptions to unlawful discrimination As noted above, given the high level of community interest that the issue attracted, the government requested SARC to undertake a review of the exceptions and exemptions in the current act. SARC tabled its final report in November last year. The government has considered SARC's recommendations and is tabling both this bill and a formal response to set out very clearly its position on the exceptions to unlawful discrimination. The government's aim in reforming the exceptions is to ensure that they are reasonable and appropriate, and in line with other government policies and laws. The government agrees with SARC that consistency with other jurisdictions is desirable and this approach has been adopted where appropriate. However, exceptions that allow discrimination that is already allowed by another law are redundant and have been repealed. The bill has also repealed exceptions from the 1995 act that served no purpose and, in some cases, caused considerable confusion. There will always be circumstances in which discrimination is justified. In equal opportunity law, these circumstances are reflected in the exceptions. Exceptions balance the right to be free from discrimination with other important rights. Most exceptions are straightforward, non-contentious and indeed expected, such as allowing sex discrimination in employment for jobs involving fitting clothes or conducting body searches; or allowing discrimination against a person with an impairment where not doing so puts a person's, or the public's health and safety at risk. Other exceptions are not so straightforward and framing them involves the difficult task of balancing competing rights. This bill draws that necessary line. The religious exceptions -- those allowing discrimination by religious bodies, religious schools and individuals based on their religious belief -- have been particularly contentious. Framing the religious exception involves striking the balance between freedom of religion and freedom from discrimination. The bill retains, but tightens, the religious exceptions. Discrimination by religious bodies and religious schools will no longer be allowed on grounds such as race, age and impairment, which are not connected to any religious doctrine. However, discrimination will continue to be allowed on other grounds such as religious beliefs, sex and sexual orientation, which may be connected to particular religious doctrines.
Page 788
In order to rely on the exceptions, religious bodies and schools will have to show that the discrimination conforms with the doctrines of the religion, or is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion. In relation to employment, religious bodies or schools who wish to discriminate will have to show that having a particular attribute, for example being heterosexual, or being of a particular faith, is an inherent requirement of the particular job. This will continue to allow religious organisations to remain faithful to their religious doctrines where this is required for a particular job while prohibiting discrimination where it is irrelevant to the job. In order to avoid requiring people to act in a way that is inconsistent with their faith, the exception allowing individuals to discriminate where this is reasonably necessary to conform with the doctrines of their religion has been retained. This exception has also been narrowed to only apply to certain attributes and to require a more objective assessment of when such discrimination is necessary. Another area that has been contentious is that of private clubs. Regulation of club membership grapples with the right to freedom of association as well as the right to freedom from discrimination. Most jurisdictions in Australia define clubs by reference to their membership size and whether they hold a liquor licence. The bill adopts this definition and drops the distinction between private and other clubs in the current act. The rationale behind this approach is that the granting of a liquor licence by the government is accompanied by responsibilities to the community, and this should include the responsibility not to discriminate without justification. No other jurisdiction defines clubs by reference to whether they are on public land or receive public funding, which is the definition in the current act. No other jurisdiction allows clubs to discriminate in a wholesale fashion simply because they occupy private land or do not receive public funding. There are some exceptions to the prohibition against discrimination in relation to club membership. Exceptions exist in the current act to allow clubs for minority cultures and for different age groups. These are retained in the bill. The bill also includes a new exception allowing single-sex clubs, one that has been included to avoid inconsistency with the commonwealth Sex Discrimination Act 1984. While there are various community views on this issue, and the house would be well aware of my view, I believe we have struck the right balance, limiting the ability of single-sex clubs to discriminate at whim against a whole range of people. Obviously it is a matter for the commonwealth government to decide whether to amend their Sex Discrimination Act in relation to single-sex clubs, and if they took such action, all states, including Victoria, would have to review their law in this area. In order to promote transparency and ensure that the exception is being applied in as narrow a way as possible, however, single-sex clubs will be required to make their membership rules publicly available. In addition to reforms to these two contentious issues, reforms have also been made to a number of exceptions in relation to employment. While modest, these reforms will clarify the rights and duties of employers and employees. A number of exceptions in the current act appear to give rights to employers that they already have. These exceptions have been repealed. For example, employers have the right at common law to set reasonable terms of employment and to set reasonable standards of dress and behaviour, so the exceptions appearing to give those rights to employers have been repealed. I wish to make it clear that in repealing these redundant exceptions the government in no way intends to take rights away from employers. Rather, it intends to avoid the confusion that can arise from including such rights as exceptions in equal opportunity law. Repealing these exceptions aligns Victoria with other Australian states. Conclusion Each example I have cited tonight illustrates the way in which the government has taken a measured approach and, step by step, struck the right balance. We have sought the views of the community; we have carefully considered the recommendations both of the independent reviewer Julian Gardner, and those of SARC in relation to exceptions and exemptions; we have recognised that an appropriate amount of time is required to prepare for commencement of the new legislation, which is why the bill builds in a default commencement date of 1 August 2011. Just as importantly, we recognise that this legislation is just part of a broader framework -- one that includes other laws such as the Charter of Human Rights and Responsibilities and the Racial and Religious Tolerance Act 2001, yes, but which also includes wider efforts, such as programs which educate, which raise
Page 789
awareness, which strengthen communities and equip them to support the fair go. In introducing this bill to the house today, then, I take the opportunity to thank Julian Gardner, whose report provided the opportunity for us to look at this area of the law with new eyes; as well as the members of SARC, a committee that plays a very important role in our parliamentary process. I thank the many, many contributors who took the time to express their views to both the Gardner review and to the SARC inquiry; and I thank the commission for their tireless support of a fair go for all Victorians. I also thank the hardworking officers from the Department of Justice, as well as Mr Brian Tee, MLC, for their commendable work on this significant piece of reform. This bill is about bringing equal opportunity law into the 21st century. Supported by the best academic and industry research, and by the practical firsthand experiences of businesses that have long known the value of tackling discrimination on a systemic rather than just an individual level, this bill is about reflecting the value that Victorians place on the fair go -- on the opportunity of every person who lives here to contribute to the social and economic life of this great state. I know all members of this house who support the fair go will support this legislation, all members who have a belief in the equal rights and dignity of every person. As much as we may champion the equal opportunity reforms of 30 years ago, our understanding of the way discrimination operates has changed. We now understand that we cannot satisfy the fair go by merely reacting to discrimination once it has occurred -- that we must instead be positive and proactive about tackling it in all its various forms. It is time, then, to take this next step in our journey towards a fairer society, towards realising our shared affection and ambition for the fair go. It is time to make every opportunity in Victoria a genuinely equal one. I commend the bill to the house. Debate adjourned on motion of Mr CLARK (Box Hill). Mr HULLS (Attorney-General) -- I move: That the debate be adjourned for two weeks.
  Mr CLARK (Box Hill) --  I am sure the  Attorney-General would be the first  to
agree that this is  a very far-reaching bill  he has introduced to the  house. A
quick assessment reveals that it  make changes  in a  wide range  of areas  that
affect many  different groups within the  community. Picking up  briefly  on the
second-reading speech,  matters  the  Attorney-General has referred to include a
proposal for new powers for  proactive investigation of systemic discrimination,
a restatement of the  definitions of discrimination  in positive terms,  further
changes to  the definitions of discrimination,  a goal of  equality of outcomes,
the  establishment of  positive  duties  to  make  reasonable  adjustments,  the
extension of  prohibitions  from  discrimination to volunteer workers, the terms
for the implementation of the exemption for religious and faith-based bodies and
schools  and whether  or not  the bill gives effect to the announcements made by
the government some time ago, and the provisions relating to private clubs.

All  of these and many other  measures contained in the bill affect a wide range
of  different groups and  individuals within the community. It obviously follows
that there  is a  need, firstly, for  the opposition  and other  MPs to  consult
widely in relation to the  bill, and, secondly, a need for many different groups
in the  community to read and assess  what is obviously a large and complex bill
to  be able to be  in  a position to respond  to  matters that make  significant
alterations to the  existing  law and will  have  significant effects  on  their
activities.
Given those facts  and  given  that  Parliament  will  be sitting two weeks from
today, it may well  be that if the government brings the  bill  on for debate at
that time, there will not have been an adequate opportunity for those  community
groups and Victorian  citizens who  will be  affected by the bill to give proper
consideration to the legislation  and  make their views known to members of this
house.

There will also have been an inadequate opportunity for the opposition and other
members  to engage with and receive  the  views  of  those  various  groups  and
individuals. With that in mind I ask that the Attorney-General undertake, should
it prove necessary  and  should it prove to  be not feasible for all  groups and
individuals who will be affected by the bill to have a reasonable opportunity to
have input to members of Parliament on the legislation, to allow more  time than
the two weeks  set out in this motion before he seeks to bring the bill on again
for debate in this house.

  Mr HULLS (Attorney-General) (By leave) -- On the  question of time, it is true
that  this  piece  of  legislation  is  substantial  but  consultation  on  this
legislation has taken place over a long  period.  There has been community input
on this bill from the time we 


Page 790
announced that Julian Gardner was conducting a review of the act to the point at which SARC (Scrutiny of Acts and Regulations Committee) conducted public hearings in relation to the exceptions and exemptions. I do not recall any piece of legislation on which the government has embarked on such an extensive consultation process as the process for this bill. Groups right across the spectrum of the Victorian community have been consulted, not just by the government but also by members of SARC, which is a committee made up of representatives from all political parties. As a result of the SARC recommendations and the Julian Gardner review I contend there is nothing in this bill that requires any more than the normal consultation period.
I could understand the  shadow  Attorney-General's  view if this was a bill that
had been plucked out  of  the blue, if  there  had been no announcement  on  the
nature of  the forms,  if there  had been no indication given  to the  Victorian
community  about  the general tenor  of  the reforms,  including  the ability to
address systemic discrimination and the exceptions  and exemptions, but that has
not been  the case  with  this  bill.  I  repeat  that there  has been  enormous
consultation over a long period  of time, some years in  fact. In my opinion, if
the  shadow  Attorney-General  is  not  able  to  consult on this bill with  the
relevant stakeholders, then he is not doing his job appropriately.
It may well be that he wants to raise further issues  during the debate. This is
all  about getting down and  doing  the hard work and  consulting  on a piece of
legislation  that  has already  been  consulted  on. The  general  thrust of the
legislation has been consulted on, and there have been public inquiries into the
exceptions and exemptions in the legislation.

  Honourable members interjecting.

  Mr HULLS  -- Whilst it might  be  smart for those opposite  to be making inane
interjections  across the table, the fact is that this is an important  piece of
legislation. It is not due  to come into effect for a substantial period of time
to ensure that appropriate  processes  are put in place to phase the legislation
in. There  is  also  a further  phase-in  period,  particularly in  relation  to
volunteers.  It  is just  a nonsense  to be  saying  that  there  has  not  been
consultation  in  relation  to the general direction of this bill and that  this
bill has been sprung upon people.
I repeat that I do not know of one piece of legislation that has been introduced
in this place in the last 10 years  that has had so much  consultation to get it
to this stage. Two weeks is more than enough time  for the adjournment of debate
on this legislation. I urge the shadow Attorney-General to get on and consult.

I am more than happy  to offer him, through my department, as many briefings  as
he wants in relation to the legislation, but I would be most surprised if any of
this bill comes as  any surprise to him or  his colleagues because when he looks
at the exceptions  and exemptions aspect of the  bill he will find that  most of
SARC's   recommendations  are  being   implemented.  Let  us  get  on  with  the
consultation and  have the debate on this very important piece of legislation in
two weeks time.

  Mr O'BRIEN (Malvern) -- The time is 9.10 p.m. on Wednesday evening. The people
of Victoria have only had the opportunity to see this piece of legislation since
about 9 o'clock  tonight. This minister thinks that he can have all  the time in
the world to put it together, to get rolled in the process on some issues and to
be given his head on others, but that the people of Victoria and members of this
Parliament  should be allowed  to have  only two  weeks to  consider a  piece of
legislation which will turn equal opportunity on its head.

The reason more time is required on this matter can be summed up by referring to
page 7 of the second-reading speech, which says that achieving equality is about
treating people  differently 'to aim  for equality of outcome,  rather than just
equality of  opportunity'.  This is turning  the fundamental principle  of equal
opportunity  law in Victoria on its head. That is clearly  the intention  of the
Attorney-General  and  his government who  think that something which  is such a
fundamental change in how equal opportunity  legislation operates in  this state
should not be subject to proper scrutiny and debate.
If this  matter  were to go and be debated  in  Parliament in two weeks time, we
would  have at most one hour on the Wednesday night of the next sitting week and
then  one day. Quite clearly the idea is  that  the  Attorney-General  will  gag
debate on this bill. He does not want to give us time to consult.

He  does not  want  to  provide  time  for  the opposition  to consult  with the
Victorian community,  with  those  groups that are going to be affected by this,
like those new groups which  have  never been subject to these equal opportunity
laws before but are going to be brought into his net. The Attorney-General wants
us to  have  no  time to consult.  He  wants  to give  the  Victorian  people no
opportunity  to learn what this bill is going to do to them,  how it is going to
change the way they go about  their lives, businesses and private activities. He
does not want to give  them the time to do  that.  He wants to have this  rushed
through as quickly as possible so that he will not 


Page 791
be embarrassed in an election year by being exposed for what he is trying to do. The Attorney-General said that the general thrust of this bill has been known for quite some time. The Attorney-General must have gotten his law degree from the same place as Dennis Denuto from The Castle because the general thrust, the vibe -- call it what you will -- is not the same thing as a bill. A bill is a specific piece of legislation and it requires time to be consulted on. It requires time to be debated properly. The Attorney-General can talk about the general thrust all he likes, but the people of Victoria only saw this piece of legislation about 15 minutes ago and they deserve far better than to be shoehorned by this minister and his radical left-wing agenda into rushing this legislation into and through the Parliament with minimum debate, scrutiny and consultation. The member for Box Hill has put very reasonably and rationally why it is so important that there be adequate time for this bill to be debated and why it is so important that there be adequate time for consultation on this bill in relation to not only the way in which the bill is going to change the way equal opportunity works but also the fact that new groups are going to be subject to it. Does the Attorney-General really think members of the Parliament are not entitled to speak with volunteer organisations and to find out from them what impact this bill might have on their operations? Does the Attorney-General really think that two weeks are sufficient? The Attorney-General says, 'That is all right because we are phasing in the way in which the bill will impact on them'. The Attorney-General says, 'Take my word for it. Do not take time to consult on what is in here. Do not take time to debate it properly. Just pass it and it will be okay because it will not start for two years'. That is not the way Parliament is supposed to work. Parliament is supposed to work on the basis that legislative propositions contained in bills are thoroughly consulted on and thoroughly tested before they pass the Parliament. Why is the Attorney-General so frightened of giving the community, the Parliament and the opposition the opportunity to look through this bill and to discuss it with those organisations and businesses and individuals and groups who are going to be affected by it? What has he got to hide? The Attorney-General's failure to support the very reasonable position put by the member for Box Hill speaks volumes about what is contained in this bill.
  The ACTING SPEAKER (Mrs Fyffe) -- Order!

  Mr JASPER -- I understand what the Attorney-General  is saying.  Let us get it
quite correct:  it is  Julian Gardiner.  The  only person  who does  not make  a
mistake is one who says nothing, so the Attorney-General should not be laughing.
He says this legislation is serious. I believe  it is serious too. I  believe we
should look at  the information provided  in  the investigations  undertaken  by
Gardner and SARC and  be able to come back after we have been given further time
to understand the implications of this legislation and been 

able  to go to  the  people who will be  able  to respond appropriately  to  the
legislation,  whether it is  positive  or negative, and  see how the  government
responds.
I believe the Attorney-General should  stand  in  this  place  and  say  that if
further  time  is  required, he will consider the suggestion put forward by  the
member for  Box Hill.  To get  the best  legislation going forward, just as  the
Attorney-General suggests, let us have time for consultation so  we  can look at
the  legislation objectively and put forward representations from  the people we
represent in  our  electorates right  across  Victoria. I acknowledge  that  the
legislation will not be introduced until 2011  but we as a Parliament need to be
able to look at this bill  and see how it affects us as  members  of Parliament,
come back, adjust the bill and debate it accordingly.
Motion agreed to and debate adjourned until Wednesday, 24 March.

  Mr LUPTON (Prahran) -- I  rise to speak against the proposition the member for
Box  Hill has  advanced and to support the motion that this matter  be adjourned
for two weeks.

In that context I think it is important for the house to have a bit of a look at
the history of this legislation,  how  it has developed, the processes that have
gone into developing  the bill  that is currently before the chamber and the way
in which the community has been involved in that process over an extended period
of time.
The Equal Opportunity Act that is currently in place in Victoria has been on the
statute books for a considerable period of time, and  it  was  undoubtedly right
and  proper  for the government and Attorney-General to go through a process  of
review in  order to ascertain whether or not it  was appropriate  to reform  and
modernise that piece  of legislation  which was,  I have to say, advanced and in
some  respects groundbreaking for its time. It has been on the statute  books in
Victoria for  a considerable period of time,  so it was right that  a review was
undertaken and that the public,  the community of Victoria, was widely consulted
and involved in that review process.

The Attorney-General set up a public consultation and review  process chaired by
that well-known  law reformer Julian Gardner,  who has made a great contribution
to the community of Victoria over many years in a number of roles. He is in fact
regarded as an expert  not only in this field but also  in the area of community
consultation. The review that  was carried out  by Julian Gardner consulted  the
Victorian community very widely and over a significant period of time.
I think it is probably right to say that the review was carried out from Mildura
all  the  way to Mallacoota and everywhere in between, even Melbourne. No  doubt
there were people  from  Malvern,  Box  Hill  and  I suggest even from Doncaster
involved in that review. I can knowledgeably say that  many  people  involved in
the Prahran community were  part of that review process, and it was as  a result
of that  wide,  broad and deep  community consultation that  the  government has
developed this legislation.

Not  only  that  but  since  the  Gardiner  report was delivered there has  been
continuing consultation with a wide range of groups,  from clubs to churches and
community  organisations across the length and breadth of  this state, to ensure
that  the  views  of  the  community are well known, understood and  taken  into
account.
There is no  doubt that there is a wide variety of viewpoints about this sort of
legislation, but  as a  government we are determined to make sure that the equal
opportunity  legislation  in this state reflects modern times, reflects  current
community attitudes, 


Page 792
reflects modern Victoria and the people and the community that we represent. To suggest that the most appropriate process for this Parliament is to adjourn this legislation for some period of time other than a fortnight is wrong and outrageous and should be resisted and rejected. We need to get this debate going in this chamber and hopefully pass this legislation here and also through the other place so the community of Victoria can gain the benefit of modernised, up-to-date equal opportunity legislation that is fit for the 21st century. The delaying tactics employed by the opposition are wrong and should be resisted. This bill should be debated.