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EQUAL OPPORTUNITY BILL
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10 March 2010
Statement of Compatibility
HULLS
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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;
Page 765
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:
Page 766
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
Page 767
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.
Page 768
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.
Page 769
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.
Page 770
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
Page 771
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,
Page 772
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.
Page 773
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.
Page 774
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.
Page 775
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.
Page 776
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
Page 777
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
Page 780
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).
Page 781
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.
Page 782
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.
Page 783
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-GeneralMr 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. Second reading
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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.
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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
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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
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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
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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,
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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.