Discrimination law

SCRU T I N Y OF ACT S AN D REGU LAT I ON S COM M I T T EE 5 5 t h Pa rlia m e nt Discrimination in the Law Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report: Summary of Submissions, Statutory Compliance Defences and Human Rights Protections Ordered to be Printed By Authority. Government Printer for the State of Victoria. N° 106 Session 2003-2004 i Scrutiny of Acts and Regulations Committee Parliament of Victoria, Australia Scrutiny of Acts and Regulations Committee Discrimination in the Law: Inquiry under Section 207 of the Equal Opportunity Act 1995 Progress Report – Summary of Submissions, Statutory Compliance Defences and Human Rights Protections Bibliography ISBN 0 7311 3008 1 ii Scrutiny of Acts and Regulations Committee Members Staff Address Ms Lily D’Ambrosio MLA (Chair) Mr Murray Thompson MLA (Deputy Chair) The Hon. Lidia Argondizzo MLC The Hon. Andrew Brideson MLC Mr Ken Jasper MLA Mr Michael Leighton MLA Mr Peter Lockwood MLA Mr Andrew McIntosh MLA Mr Jude Perera MLA Mr Andrew Homer Ms Helen Mason Ms Dominique Saunders Mr Simon Dinsbergs Ms Sonya Caruana Level 8, 35 Spring Street MELBOURNE VIC 3000 Telephone (03) 9651 4008 Facsimile (03) 9651 3674 Email Internet Senior Legal Adviser Legal Adviser, Regulations Consultant, Equal Opportunity Assistant Executive Officer Office Manager andrew.homer@parliament.vic.gov.au (Andrew Homer) www.parliament.vic.gov.au/sarc iii Functions of the Committee The statutory functions of the Scrutiny of Acts and Regulations Committee as set out in section 17 of the Parliamentary Committees Act 2003 are — 17. Scrutiny of Acts and Regulations Committee The functions of the Scrutiny of Acts and Regulations Committee are – (a) to consider any Bill introduced into the Council or the Assembly and to report to the Parliament as to whether the Bill directly or indirectly– (i) trespasses unduly upon rights or freedoms; (ii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers; (iii) makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions; (iv) unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000; (v) unduly requires or authorises acts or practices that may have an adverse effect on privacy of health information within the meaning of the Health Records Act 2001; (vi) inappropriately delegates legislative power; (vii) insufficiently subjects the exercise of legislative power to parliamentary scrutiny; (b) to consider any Bill introduced into the Council or the Assembly and to report to the Parliament – (i) as to whether the Bill directly or indirectly repeals, alters or varies section 85 of the Constitution Act 1975, or raises an issue as to the jurisdiction of the Supreme Court; (ii) if a Bill repeals, alters or varies section 85 of the Constitution Act 1975, whether this is in all the circumstances appropriate and desirable; (iii) if a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue; (c) to consider any Act that was not considered under paragraph (a) or (b) within 30 days immediately after the first appointment of members of the current Committee and to report to the Parliament with respect to that Act on any matter referred to in those paragraphs; (d) the functions conferred on the Committee by the Subordinate Legislation Act 1994; (e) the functions conferred on the Committee by the Environment Protection Act 1970; (f) the functions conferred on the Committee by the Co-operative Schemes (Administrative Actions) Act 2001; (g) to review any Act in accordance with the terms of reference under which the Act is referred to the Committee under this Act. iv Terms of Reference The Lieutenant-Governor as the Governor’s deputy, with the advice of the Executive Council, under section 4F of the Parliamentary Committees Act 1968, requests that the: Scrutiny of Acts and Regulations Committee of Parliament inquire into, consider and report to Parliament on: Provisions which discriminate, or may lead to discrimination, against any person as provided in section 207 of the Equal Opportunity Act 1995. In particular the Committee is requested to: 1) identify provisions in Victorian Acts and enactments that operate to discriminate, or may lead to discrimination, against any person; 2) consider policy considerations for the retention, amendment or repeal of the provisions; and 3) make recommendations as to whether the provisions should be retained, amended or repealed. In considering this reference the Committee should note the objectives of the Equal Opportunity Act 1995 which include: 1) to promote recognition and acceptance of everyone’s right to equality; and 2) to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes. The Committee is required to report to Parliament by 31 March 2004. Dated 3 June 2003 Responsible Minister: STEVE BRACKS Premier BRIAN TUKE Acting Clerk of the Executive Council Victoria Government Gazette, S 108 Thursday 5 June 2003 v Scrutiny of Acts and Regulations Committee vi Table of Contents Committee Membership iii Functions of the Committee iv Terms of Reference v Chapter One The Inquiry Discrimination Law Update Direct discrimination Indirect discrimination Purvis’ case Issues before the High Court Schou’s case Implications Justice Statement Overview of the Interim Report 1 2 3 3 4 4 6 6 7 7 Chapter Two Discrimination in Victorian Statutes Age Breastfeeding Gender identity Impairment Industrial activity Lawful sexual activity Marital status Parental status or status as a carer Physical features Political belief or activity Pregnancy Race Religious belief or activity Sex Sexual orientation 9 9 11 11 12 21 21 21 22 22 22 22 23 27 28 29 Chapter Three Submissions about the EOA Section 3 Definitions Section 6 Attributes 35 35 35 vii Scrutiny of Acts and Regulations Committee Section 21 Small Business Exception Sections 16-28 Employment Exceptions Section 38 Educational Institutions for Particular Groups Exception Section 43 Insurance Exception Section 51 Discrimination by Refusing to Allow Alterations Sections 66-68 Competitive Sporting Activities Exception Section 69 Exception for Things Done With Statutory Authority Section 70 Exception for things done to comply with an Order of Court or Tribunal Sections 75-77 Religious Bodies Exception Section 78 Private Clubs Exception Section 82 Welfare measures and special needs exception Section 83 Exemptions by the Tribunal Section 85 Sexual Harassment viii 36 37 40 40 40 41 43 44 44 45 46 47 48 Chapter Four Discrimination in compliance with legislation Background Federal Discrimination Law Racial Discrimination Act 1975 Sex Discrimination Act 1984 Disability Discrimination Act 1992 States and Territories New South Wales South Australia Australian Capital Territory Victoria Review of the 1984 EOA The EOA 1995 Comparison of Victorian Approach with Other Jurisdictions 51 51 52 52 52 52 53 54 54 55 55 55 57 61 Chapter Five Human rights protections New Zealand Australian Capital Territory Human Rights in Victoria Justice Statement 63 63 65 66 66 Appendices 1 – List of Submissions 2 – New Zealand Experts visited July 2004 3 – Table of Acts identified in Submissions 69 85 81 Abbreviations 87 Minority Report 89 Chair’s Introduction and Next Phase of the Inquiry The Scrutiny of Acts and Regulations Committee is conducting an inquiry into Discrimination in the Law. The focus of the inquiry is Victorian Acts and Regulations that discriminate or may lead to discrimination against any person. Twelve months ago the Committee released a Discussion Paper that described discrimination law, the different types of discrimination and explained how the different exemptions and exceptions in the Equal Opportunity Act 1995 (‘EOA’) operated. It was explained that the inquiry is about discrimination that concerns one or more of the attributes in the EOA. It was also explained that a particular concern for the Inquiry was the exception for anything done to comply with another law. The Discussion Paper was published by the Committee to assist people and organisations to focus on the issues and then make a comment or submissions. The Committee advertised the Inquiry and the Discussion Paper in metropolitan, regional and local newspapers and in community languages. The Committee was pleased to receive over 400 submissions from the public. This Progress Report summarises the submissions received by the Committee, except for a small number that did not fall within the Terms of Reference of the Inquiry, examines the defence of statutory compliance in other jurisdictions and describes human rights protections models in New Zealand and the Australian Capital Territory. The Committee was grateful for the opportunity of visiting New Zealand and for the valuable information provided by our hosts about their experiences in the Consistency 2000 project, a similar project to the Victorian Inquiry. Since the publication of the Discussion Paper the Attorney-General Rob Hulls has released the Justice Statement. One of the key initiatives of the Justice Statement is to establish a process for discussion and consultation with the Victorian community on how human rights and obligations can best be promoted and protected, including examination of options such as a charter of human rights and responsibilities, new approaches to citizenship and to modernising anti-discrimination law, reducing systemic discrimination and promoting attitudinal change. The Committee will note the consultation for the development of these initiatives with interest. The next phase of the Inquiry will be to seek the views of the Minsters responsible for the administration of the Acts listed in this report, as well as their respective Government Departments, on what actions they would consider appropriate to remedy any inconsistencies and, if the defence of statutory compliance were repealed, what alternatives they would consider appropriate. ix Scrutiny of Acts and Regulations Committee The Committee will publish draft recommendations and conduct public hearings before tabling a final report in Autumn 2005. Lily D’Ambrosio MP Chairperson x Chapter One The Inquiry Under the Parliamentary Committees Act 1968 the Scrutiny of Acts and Regulations Committee (‘Committee’) is required to examine legislation before Parliament to consider the operation of human rights principles and the manner in which legislation provides or hinders access to human rights and freedoms.1 The Committee also has the responsibility to review any Act where required to do so by or under the Parliamentary Committees Act, in accordance with the terms of reference under which the Act is referred to the Committee. The Committee has been asked to inquire into, consider and report to Parliament on: Provisions which discriminate, or may lead to discrimination, against any person as provided in s.207 of the EOA. In particular, the Committee is requested to: 1) identify provisions in Victorian Acts and enactments that operate to discriminate, or may lead to discrimination, against any person; 2) consider policy considerations for the retention, amendment or repeal of the provisions; and 3) make recommendations as to whether the provisions should be retained, amended or repealed. In considering this reference the Committee should note the objectives of the EOA which include: 1) to promote recognition and acceptance of everyone’s right to equality; and 2) to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes. The review arises under s.207 of the EOA, which imposes an obligation on the Attorney-General as the Minister responsible for its administration. Section 207 provides— The Minister must cause a review of all Acts and enactments (other than municipal council bylaws or local laws) to be undertaken for the purpose of identifying provisions which discriminate, or may lead to discrimination, against any person. The primary objective of the EOA is to promote recognition and acceptance of everyone's right to equality of opportunity. This is founded in universal principles of human rights. It is an unqualified goal where generality and breadth are emphasised by the assertions that equality of opportunity is the ‘right‘ of every person and that acceptance, and not merely recognition, of that right is important. 1 Parliamentary Committees Act 1968, s.4D 1 Scrutiny of Acts and Regulations Committee The Committee has not approached the task of the inquiry as merely the identification of discriminatory provisions in the statute book. In considering the reference and the submissions made to the inquiry the Committee is mindful of the objectives of the EOA: to promote recognition and acceptance of everyone’s right to equality and to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes. A simple examination of the Victorian statute book, (some 1500 Acts and Regulations currently in force) searching for keywords such as ‘height’, ‘weight’, ‘race’, ‘colour’ and ‘age’ identified more than 500 Acts. The Committee found that such an approach to the task was not helpful as the keyword matches did not identify provisions that were discriminatory, nor did the matches assist in the identification of provisions that led to discrimination in the way or manner in which the provision was operationalised, that is, how government decision-makers gave meaning to the provision.2 The Committee was keen to hear from the Victorian community about their experience of how laws that discriminate or lead to discrimination affect them in their lives. The Committee received more than 400 submissions.3 Some of these identify Acts and Regulations but some focus on the operation of the EOA. The Committee decided that as the EOA is a Victorian law it would accept submissions concerning how the EOA itself discriminates or leads to discrimination. The Committee has not reported on provisions where there is a defence in the EOA. For example s.26 provides an exception for the compulsory retirement of judges. The provisions in the Constitution Act 1975 pertaining to the commissions and retirement of judges discriminate on the basis of age.4 However the EOA defines when discrimination is prohibited in employment and the statutory exceptions. Similarly the Committee has not identified or commented on provisions relating to judges’ pension entitlements. Another example is s.79(1) which provides that nothing in the EOA is intended to affect the law in relation to the age of majority. In the Coroners Act 1986 use of the age of 18 discriminates on the basis of age but, in the Committee’s view, would be in accordance with the rights and responsibilities of an adult.5 However, where the Committee has received submissions about legislative provisions that are discriminatory, even where there may be a defence, they have been included in the Progress Report. Discrimination Law Update In the December 2003 Discussion Paper, Discrimination in the Law, the Committee outlined the key principles of discrimination law. Discrimination generally means doing something in favour of, or against a person. This involves making a distinction between one person and another and treating him or her differently. Discrimination, in anti-discrimination law, means not only different treatment but also less favourable treatment. 2 3 4 5 2 The Committee was not resourced to undertake an examination of the statute book provision by provision and nevertheless is of the opinion that such an approach would bring a similarly limited result See Appendix 1 for a list of submissions Sections 77 and 83(1) The Discussion Paper gave other examples of exceptions such as superannuation and pension entitlement Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report Less favourable treatment implies a comparison between two people where one person is treated less favourably than the other. Discrimination is seen as being against one person,6 namely the one who has been treated in an unfair or unequal manner. In many situations this less favourable treatment will be unlawful under anti-discrimination law. Discrimination can be direct or indirect. The concept of direct discrimination operates from the principle that all people in the same situations should be treated the same. Direct discrimination requires a comparison to be made between the treatment of the person discriminated against and a different, real or hypothetical, person.7 The concept of indirect discrimination is that people who are not alike should not be treated the same. Indirect discrimination involves treatment which appears to be neutral or fair but which has the effect of disadvantaging a particular group. Laws against indirect discrimination attempt to address structural discrimination by acknowledging that treating people as if they were the same when they actually differ in significant ways is just as discriminatory as penalising them directly for their difference.8 Direct discrimination Direct discrimination tends to focus on individual disadvantage but indirect discrimination centres more on group-based disadvantage.9 However this does not mean that direct discrimination happens only to individuals or that indirect discrimination happens only to groups.10 Making a comparison between two groups involves an assumption that two groups or sorts of people can be compared and that they should be treated equally.11 This is not always possible as there are occasions when such a comparison is unhelpful or inappropriate, such as trying to compare pregnant women to men. Indirect discrimination Indirect discrimination occurs if a person imposes or proposes to impose a requirement, condition or practice – • that someone with an attribute does not or cannot comply with; and • that a higher proportion of people without that attribute or with a different attribute do or can comply with; and • that is not reasonable Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including – • the consequences of failing to comply with the requirement, condition or practice; • the cost of alternative requirements, conditions or practices; and 6 Thornton, M., The Liberal Promise: Anti-Discrimination Legislation in Australia, Oxford University Press, Melbourne, 1990, p.2 Oyekanmi v National Forge Operations Pty Ltd & Anor (1996) EOC 92-797 citing Boehringer Ingelheim v. Reddrop (1984) EOC 92-108 at 76,052; Haines v. Lewes (1987) EOC 92-192 at 76,842 Hunter, R., Indirect Discrimination in the Workplace, The Federation Press, Sydney, 1992, p.6 Hunter, R., ibid. p.11 Hunter, R., ibid. p.11 New South Wales Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW), Discussion Paper 30, 1993, p.64 7 8 9 10 11 3 Scrutiny of Acts and Regulations Committee • the financial circumstances of the person imposing or proposing to impose, the requirement, condition or practice . Since the release of the Discussion Paper in December 2003 there have been two leading cases decided by the Courts. The Committee is of the view that these cases significantly impact on anti-discrimination law and therefore summarise the decisions below. Purvis’ case The High Court decision in Purvis’ case12 concerned Daniel Hoggan who was born on 8 December 1984 and sustained a severe brain injury when he was 6 or 7 months old and, as a result, suffers from behavioural problems and other disabilities. In 1989 Daniel came into the foster care of Mr and Mrs Purvis. Mr Purvis made a complaint of discrimination on behalf of his foster son to the NSW Department of Education and Training. In 1996 Daniel was enrolled at South Grafton High School (‘the School’). He attended, with sporadic interruptions, from April 1997 until December 1997 when he was permanently excluded because of his antisocial and violent behaviour, which included verbal abuse and incidents involving kicking and punching. Mr Purvis claimed that the respondent had discriminated against Daniel by subjecting him to a 'detriment' in his education and by suspending and eventually excluding him from the School because of his misbehaviour. Issues before the High Court (a) The definition of disability in s.4 of the Disability Discrimination Act 1992 Section 4 of the DDA defines disability as “a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour”. The issue before the High Court was whether the definition of disability refers only to the underlying disorder suffered by Daniel, that is, his brain injury, or whether it includes the behavioural manifestation of that disorder. All members of the Court (other than one judge who did not consider it necessary to reach a conclusion13) found that the definition of disability can include the functional limitations that may result from an underlying condition. Three of the judges also noted that to identify Daniel's disability by reference only to the physiological changes which his illness brought about in his brain, and not the behaviour it causes, would describe his disability incompletely.14 This view was shared by two of the judges who said: It is his inability to control his behaviour, rather than the underlying disorder, that inhibits his ability to function in the same way as a non-disabled person in areas covered by the Act, and gives rise to the potential for adverse treatment. To interpret the definition of 'disability' as 12 13 14 4 Purvis on behalf of Daniel Hoggan v State of NSW (Department of Education and Training) & HREOC [2003] HCA 62 Callinan J at p.272 Gummow, Hayne and Heydon JJ at p.211 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report referring only to the underlying disorder undermines the utility of the discrimination prohibition in the case of hidden impairment.15 (b) The appropriate ‘comparator’ for the purposes of s.5 of the DDA. Section 5 of the DDA requires a comparison between the treatment that the discriminator (in this case, the School) gives or proposes to give to the aggrieved person (Daniel) and the treatment that the School would give or would propose to give to a person without Daniel’s disability “in circumstances that are the same or are not materially different.”16 A majority of the Court17 required a comparison between the treatment accorded to Daniel and the treatment that would have been accorded to a student who was not disabled but who had acted as Daniel had acted. The majority judges held that the 'circumstances' referred to in s.5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the alleged discriminator.18 Chief Justice Gleeson stated: The circumstances to which s.5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence... The law does not regard all bad behaviour as disturbed behaviour; and it does not regard all violent people as disabled.19 The two judges20 who disagreed held that the proper comparator was a student who did not misbehave. Their Honours suggested that the structure of the Act generally required that an alleged discriminator accommodate the disabilities of a disabled person unless it would impose 'unjustifiable hardship,' as defined in s.11 of the Act, on the discriminator. In the present case, the provisions of s.22 relating to discrimination in the field of education made available the defence of unjustifiable hardship only in relation to the decision to admit a student. The defence was not available in the present case where the discrimination took place after the student had been accepted. Justice McHugh and Kirby described this as an ‘anomaly’ which required correction by Parliament. (c) Causation: less favourable treatment 'because of' a disability. Three of the judges commented on causation and stated: [T]he central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'.21 15 16 17 18 19 20 21 Kirby and McHugh JJ at p.80 Section 5(1) Gummow, Hayne and Heydon, Callinan JJ and Gleeson CJ, McHugh and Kirby JJ dissenting Gummow, Hayne and Heydon JJ (Callinan JJ agreeing) At p.11 McHugh and Kirby JJ Gummow, Hayne and Heydon JJ.at p.282 5 Scrutiny of Acts and Regulations Committee The focus should be on the 'real reason' or ‘true basis’ for the alleged discrimination. In Daniel Hoggan’s case the real reason for the decision to expel him from the School was the violent conduct and concern for the safety of other students and staff members. At the outset the Human Rights and Equal Opportunity Commission (’HREOC’) decided that Daniel Hoggan had been treated less favourably by the school because they did not adjust school policies to suit his needs, provide teachers with the skills to manage his behaviours or obtain expert assistance to address the problems. Schou’s case The Court of Appeal in State of Victoria v Schou22 examined the definition of ‘indirect discrimination’ in s.9 of the EOA. Ms Schou had brought a complaint of indirect discrimination against her employer, the Parliament of Victoria, in requiring her to attend at her workplace as a Hansard editor on sitting days of Parliament. Ms Schou was required to care, at home, for her second child who had an ongoing illness. She claimed that a requirement was imposed on her that she could not meet because of her status as a parent and carer. The Court of Appeal, by a majority,23 found that Ms Schou was for a period of time unable to comply with the requirement that she attend full-time on sitting days because of her responsibilities as a parent. According to the majority, the critical issue was the reasonableness of the requirement to attend at her workplace full-time on sitting days. In order to be relevant any alternative must have been as suited to the task as the requirement itself. The Court found that the requirement that Ms Schou attend full-time on sitting days was appropriate to the needs of the employer and the task which she was required to perform, but that the ‘modem proposal’ (that she work from home but ‘on-line’) was not as well suited. Therefore, the Court concluded, although Ms Schou as a parent and carer of an ill child could not comply with the requirement that she attend full-time on sitting days, because the requirement itself was reasonable the imposition of the requirement did not constitute indirect discrimination against her. The significant implications of the Schou case to the jurisprudence of discrimination law may be summarised as: • In situations where someone with a particular attribute may not be able to comply with a specific requirement, condition or practice, the issue at stake is whether the requirement, condition or practice is reasonable; and • In determining this question, only alternatives which are equally suited to the task will impact on the reasonableness of the requirement, condition or practice. Implications The Schou decision makes it clear that whether a requirement, condition or practice imposed by an employer is ‘reasonable’ must first be determined by examining its reasonableness against the business needs of the employer and the requirements of the job being performed. The mere presence of alternatives will not make a requirement, condition or practice imposed by an employer unreasonable unless the alternative is at least as suitable to the employer’s business and the performance of the job as the requirement, condition or practice imposed. 22 23 6 [2004] VSCA 71 Phillips and Buchanan JJ. Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report It may be argued that the Schou decision is an indication that the courts will be sympathetic to employers’ needs and their inability to automatically provide flexible working arrangements. As Phillips JA observed, to apply the test of indirect discrimination in a way other than that proposed by the Court of Appeal would result in every claim by an individual to some special allowance or privilege to recast their claim, when refused, as a claim to discrimination under the Act. Justice Statement In the Discussion Paper the Committee referred to the election platform of the second Bracks Government and in particular to the Government’s commitment to a Justice Statement outlining the vision for the system of justice in Victoria. The Attorney-General Rob Hulls announced the Justice Statement in May 2004. The Committee is of the view that this Inquiry and any reports and recommendations of the Inquiry may contribute to the development of the initiatives announced in the Justice Statement. This is discussed in more detail in Chapter Five. Overview of the Interim Report It is with this background in mind that the Committee, in Chapter Two, provides a summary of the submissions identifying legislation that contains provisions that are discriminatory or may lead to discrimination. The submissions are organised by the attributes upon which discrimination is unlawful. Chapter Three contains a summary of submissions from the public that specifically concern the operation of the EOA. The Committee is of the view that while the task of the Inquiry is not a review of the EOA, the EOA is a Victorian Act that contains provisions that are discriminatory. Chapter Four examines discrimination in compliance with legislation and examines Federal, State and Territory legislation to identify provisions in other jurisdictions that parallel the Victorian s.69 defence of statutory compliance. Chapter Five considers models of human rights protections, examines the statutory framework for human rights protections in New Zealand and briefly describes the background to the introduction of the first Australian Human Rights Act in the Australian Capital Territory24 and to the Victorian Government’s Justice Statement. 24 Human Rights Act 2004 (ACT) 7 Scrutiny of Acts and Regulations Committee 8 Chapter Two Discrimination in Victorian Statutes The Committee sought public submissions over a six month period. This Chapter provides a summary of the submissions identifying legislation that contains provisions that are discriminatory or may lead to discrimination. A number of submissions were received that, in the Committee’s view, did not fall within the Terms of Reference of the Inquiry. These are not included in this Chapter. The submissions are organised by the attributes upon which discrimination is unlawful. Age Accident Compensation Act 1985 The Law Institute of Victoria (‘LIV’)25 submits that ss.93E and 93F of the Accident Compensation Act, which deal with compensation for injuries sustained close to retirement age, may lead to discrimination against employees on the basis of age. They argue that a worker may not be planning to retire at retirement age and may therefore be placed at a disadvantage in comparison with workers who are not close to retirement age. The LIV submits that the provisions should be reviewed. Louisa Dickinson, on behalf of Job Watch26 recommends that the same provisions should be repealed because they discriminate on the basis of age in that those aged 64 and older cannot receive compensation to the same extent as younger workers. Job Watch argues that these provisions appear to presume that workers will retire at or around the age of 65 but that, with the abolition of the compulsory retirement age from 1 January 1997, workers are not legally prevented from working beyond the age of 65. In their view there is no reasonable basis to exclude workers aged over 64 from access to the same workers’ compensation benefits as younger workers. John Waters’27 submission relates to the provision of Workcover payments to injured workers. He argues that The Accident Compensation (Occupational Health & Safety) Act provides that payments should cease at the age of 65, or the normal retiring age for workers of the occupation the worker was employed in at the time that the injury was sustained, whichever is earlier. Waters contends that the cessation of his Workcover payments at age 65 is discriminatory. Mr 25 26 27 Submission 412 Submission 398 Submission 410 9 Scrutiny of Acts and Regulations Committee Waters says that in his own case he was employed in the Victorian Public Service, which has abolished compulsory retirement.28 Bail Act 1977 Rumiko Commons29 identifies s.4(3) of the Bail Act that provides a number of considerations that the court shall have regard to in deciding whether or not to grant bail. She submits that the provision should provide less discretion for judges and clearer guidelines for defendants and police so that young persons accused of a crime at the less serious end of the spectrum are not discriminated against because they are young and not legally represented.30 Children and Young Persons Act 1989 The Victorian Aboriginal Legal Service Cooperative (‘VALS’)31 submits that the definition of ‘child’ in s.3 of the Children and Young Persons Act leads to discrimination against children over the age of 17 in that they may be sentenced to an adult prison. They argue that the provision particularly affects young, Aboriginal people. They point out that Queensland and Victoria are the only jurisdictions that define children as ‘persons under the age of 17’ and recommend that s.3 be amended to define children as ‘persons under the age of 18’, in line with other jurisdictions and with international human rights obligations. VALS also refer to ss.240(1), 246, 248(1)(b) and 130(1) of the Act as provisions that purport to authorise the detention of children in adult prisons and recommends that they be amended so that it is unlawful to detain a child in an adult correctional facility.32 Guardianship and Administration Act 1986 The submission from the Office of the Public Advocate33 concerns the minimum age at which a person may have a guardian and/or an administrator appointed under the Guardianship and Administration Act. The Office points out that in Victoria the minimum age is currently 18 whereas under corresponding legislation in NSW it is 16. They submit that the difference between the two jurisdictions in relation to guardianship stems from the definitions of a ‘child’ in their respective legislation relating to the care and protection of children and young people. In NSW a child is defined as ‘a person under the age of 16’ while in Victoria a child is ‘a person under 17 years’. They propose that Children and Young Persons Act 1989 should be amended so that a protection application may be made in Victoria in relation to children aged 17.34 28 29 30 31 32 33 34 10 The Committee notes that the Accident Compensation Legislation (Amendment) Bill was introduced on 16 November 2004 Submission 364 The Committee notes that the Attorney-General announced in the Justice Statement this Act is to be reviewed. Submission 352 The Committee notes that the Children and Young Persons (Age Jurisdiction) Bill was passed on 3 November 2004. The Bill addresses this issue Submission 161 The Committee notes that the Children and Young Persons Act 1989 is currently under review Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report Occupational Health and Safety Act 1985 The submission from Dru Marsh35 relates to alleged discrimination under the Occupational Health and Safety Act. Ms Marsh argues that while there is little evidence of direct discrimination in the Act there are a number of instances of indirect and systemic discrimination. She argues that this is attributable mainly to the fact that the Australian approach to occupational health and safety is modelled on the UK approach which, in her view, was developed to fit a uniform, English-speaking, able-bodied, male, unionised workforce. Ms Marsh argues the legislation does not take into account the disproportionate number of young people who are injured in the workplace or that risk assessments can be legally utilised to exclude older employees from certain tasks. Police Regulation Act 1958 The submission from the Disability Discrimination Legal Service (‘DDLS’)36 contends that there are a number of discriminatory provisions in the Police Regulation Act. The Service believes the minimum age for acceptance into the Victorian Police Force is potentially discriminatory. They argue that if an applicant is under 21 years of age they must have completed VCE with a pass (or its equivalent) otherwise, at 21, an applicant is automatically eligible via mature age entry. They point out that the age requirement in some other states is 18. They submit that Victoria’s minimum age requirement may result in discrimination in cases where a person wants to join the Police and is under 21 years of age but has not completed VCE. They argue that illness or a particular condition, which may no longer exist, may have precluded completion of VCE or meant that schooling was undertaken part-time and has not yet been completed. Breastfeeding The Committee received no submissions concerning breastfeeding. Gender identity Births Deaths and Marriages Registration (Amendment) Act 2004 Victorian Legal Aid (‘VLA’)37 submits that it is arguable that the limitation of the benefit of the amendments in the Births Deaths and Marriages Registration (Amendment) Act38 to ‘persons who have undergone sex affirmation surgery’ has a discriminatory effect, on the basis of gender identity, against persons who seek to identify on a bona fide basis with a sex other than their biological sex but who have not undergone such surgery. They point out that the definition of ‘gender identity’ in s.4 of the EOA has broader application than only to persons who have undergone sex affirmation surgery and encompasses a person’s 35 36 37 38 Submission 401 Submission 405 Submission 394 According to s.1 the purpose of the Act is to amend the Births, Deaths and Marriages Registration Act 1996 to provide for the recognition of the sex of persons who have undergone sex affirmation surgery. This legislation was passed by both houses of the Victorian Parliament in May 2004, received assent on 1 June 2004 and, as at 4 August 2004 has yet to be proclaimed 11 Scrutiny of Acts and Regulations Committee bona fide identification with a sex other than their biological sex by assuming characteristics of that other sex by ‘medical intervention, style of dressing or otherwise’. VLA also submits that s.16 (registration of parentage details) appears to have a discriminatory effect because only biological parents are entitled to be registered as the parents of a child on a birth certificate. They acknowledge that there are complex policy considerations underlying this area of law but argue that the inability of a non-biological parent of a child to a same sex couple to be registered as a parent on that child’s birth certificate means that parent is unable to establish an enforceable legal relationship with their child. Impairment Building Act 1993 Bernd Bartl, on behalf of the Disability Support and Housing Alliance,39 argues that legislation which “operates to discriminate, or may lead to discrimination against any person” does not have to be explicitly discriminatory in its provisions to be discriminatory in its effect. He argues that the absence of specific considerations of ‘disability’, ‘inclusion’ and ‘accessibility’, even where there is a reference to consideration of ‘all’, can be and often is discriminatory in outcome. Mr Bartl argues that accessibility and inclusiveness standards should be directly built into building, planning and environment laws, rather than only in generic human rights and equal opportunity legislation. He contends that this would dispel the notion that human rights is ‘separate’ from other spheres of human endeavour make use of existing monitoring and enforcement mechanisms, where appropriate. The Alliance submits that it is astonishing that the Building Act does not deal, at all, with disability access and recommends that it should be amended to explicitly include accessibility and inclusiveness of the built environment amongst its objects and specific provisions. They submit that where accessibility and inclusiveness objectives in the legislation are not met there should be a requirement to provide reasons for the failure that outweigh the disadvantage to people with a disability. They submit that there is a lack of clarity in the Building Act in relation to the responsibility of municipal authorities to enforce compliance with building regulations brought about by the Act’s authorisation of both municipal building surveyors (employed, appointed or nominated by councils) and private building surveyors to exercise discretion in their decisions regarding compliance with building standards. They refer to s.212 (Council to administer building provisions in its municipal district) and contend that this provision clearly places ultimate responsibility with councils. They outline a specific dispute (involving the submission’s author, Mr Bartl) during which the Mooney Valley City Council argued that it had no jurisdiction to intervene in a discretionary decision by a private building surveyor to allow partial compliance with a building regulation relating to access for disabled persons. In this case a permit was approved where no ramp was provided for disabled access to a take-away shop. The Council’s interpretation was later disputed by the Practitioner Compliance Unit of the Building Commission however Mr Bartl comments in the submission that “the step at the [take-away shop] is still there…” 39 12 Submission 404 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report The Alliance submits that the Building Act should be amended to ensure that local governments bear responsibility for ensuring equal outcomes, including but not limited to compliance with the EOA and DDA, and that accessibility and inclusion conditions in planning permits must be complied with and that they cannot exercise any discretion to waive all or part of these statutory requirements. They submit that a new Building Regulation should be introduced that requires public and commercial buildings, facilities and areas to comply with Australian Standard 1428 Part 2 (enhanced access standard). Corrections Act 1986 and Corrections Regulations 1998 The DDLS40 contends that compliance with the Corrections Act and Corrections Regulations can, in certain circumstances, be discriminatory or lead to indirect discrimination. They argue that similar concerns arise in relation to the Corrections (Police Gaols) Regulations 1995. The Legal Service argues that the Standard Guidelines for Corrections in Australia, and in particular Guideline 5.81 which emphasises the provision of “specialised facilities under appropriate professional management … for the observation and treatment of prisoners who are mentally ill or intellectually disabled” should be adopted as legally binding in Victoria. Anna Hacker41 also submits that the Corrections Act does not address the needs of many of its special prisoners and can therefore lead to indirect discrimination. She argues that while subordinate regulations and individual prison operating procedures attempt to rectify this, without the guidance of the Corrections Act, a uniform system of dealing with more vulnerable prisoners has not emerged. She asserts that this has resulted in the needs of many disadvantaged prisoners’ not being met and indirect discrimination occurring. Ms Hacker contends that in order to align itself with the provisions of the EOA the Corrections Act should make specific references to the mentally ill, non-English speaking background and Aboriginal prisoners. Ms Hacker argues that the framework for policies and standards for correctional institutions is established by the interrelating Correctional Policy and Management Standards, contractual arrangements between the private operators and the Victorian Government in the Prison Services Agreement and the Corrections Act and Regulations. She points out that intellectually disabled prisoners are referred to only once in the Corrections Act, however there are many more references in the published standards, including the provision that intellectually disabled prisoners who either refer themselves or are determined to be intellectually disabled by the correctional officers should be provided with a comprehensive intellectual development screening within 24 hours. The DDLS contends that the segregation of prisoners with intellectual disabilities and mental health problems in privatised Victorian prisons, while necessary in current circumstances, is discriminatory. They argue that the necessity to segregate these prisoners points to broad systemic problems relating to securing the safety of such prisoners within the prison population and recommend that these systemic problems should be addressed so that the direct discrimination becomes unnecessary. 40 41 Submission 405 Submission 407 13 Scrutiny of Acts and Regulations Committee The service further submits that the broad discretion to segregate prisoners conferred upon the Secretary under reg 22(1) may be interpreted as authorising discriminatory conduct against prisoners with a mental illness or physical impairment because there is no obligation to consider any special needs, including medical needs, and no provision for monitoring by a qualified medical officer or occasional exercise as a means of regulating mental and physical health. The Legal Service argues that both Queensland and Western Australia afford prison authorities less discretion in relation to solitary confinement and related conditions and provide more health safeguards. Queensland’s legislation requires the performance of medical examinations before and after solitary confinement and specifies seven days as the maximum period of confinement. Western Australia’s legislation requires that a person be isolated for not more than 30 days and that they be afforded at least an hour for taking air and exercise. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 The Mental Health Legal Centre (‘MHLC’)42 submission deals with the regime in the Crimes (Mental Impairment and Unfitness to be Tried) Act governing forensic patients, that is, persons found unfit to be tried or not guilty of offences because of mental illness. The Centre argues that the Act discriminates between forensic patients and persons convicted of the same offences under the general criminal law in that it does not impose a finite limit on supervision orders made by a court or Persons convicted of the same offences under the criminal law, they argue, are given finite sentences which are generally much shorter. The Centre also submits that forensic patients receive less favourable treatment in relation to victim notification and report procedures. They argue that under the Act victims of forensic patient offenders must be notified of any hearing and victim reports must be considered where the Court is reviewing level of supervision or release. The Centre argues that other convicted offenders are treated more favourably in that there is no mandatory requirement that their victims be notified or victims’ views considered when the Parole Board is considering parole applications. Disabilities Services Act 1991 Lisa Pryles43 submits that the Disabilities Services Act should be amended to avoid the systemic discrimination she argues is suffered by persons under the age of 65 who have physical and sensory disabilities and who are accommodated in aged care nursing homes. She argues that young people in nursing homes are discriminated against on the basis of age and disability. Ms Pryles argues that many young people with sensory disabilities such as multiple sclerosis, acquired brain injury and other neurological conditions are inappropriately accommodated in aged care nursing homes throughout Victoria and Australia. She submits that placement in aged care facilities has become the only option for these people due to their high support needs and the failure of the disability sector to deal adequately with their situation. According to Ms Pryles, people under 65 with physical and sensory disabilities who are resident in nursing homes fall between Commonwealth and State jurisdictions, between the public and private sectors and between aged care and disability services. She argues that, although young people in nursing homes come under the jurisdiction of the Disabilities Service Act and the Commonwealth State Territory Disability Agreement, they are denied the benefits that they are 42 43 14 Submission 370 Submission 409 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report entitled to under these schemes because once they reside in an aged care facility they are deemed to fall under the Aged Care Act 1997 (Cth) and, thus, under Commonwealth jurisdiction. She contends that if s.69 of the EOA was not a bar to such action, an individual or class of complainants may have a claim for discrimination, under the EOA, against particular nursing homes, in respect of services provided, against the Victorian Government for failing to provide services under both the Disabilities Service Act and the Commonwealth State Territory Disability Agreement, or in respect of the different regimes administered by the Government for those with intellectual disabilities and those with physical or sensory disabilities. The submission from Tom Byrnes44 concerns the Victorian Government Funding Program for Students with Disabilities and contends that there is evidence of increased enrolment of students with disabilities at independent schools. He argues that this upward trend has resulted in significant financial strain for independent school communities because, unlike government schools, they are not fully supported by governments. Mr Byrnes states that in most (if not all) instances, students receive more assistance in relation to their disability if they attend a government school. He contends that, even when the combined State and Commonwealth targeted funding for students with disabilities is considered, students with disabilities enrolled in independent schools receive approximately one tenth of that received by students with a similar disability enrolled in government schools and that this disparity is most obvious in State Government funding arrangements. Mr Byrnes discusses the experiences of his granddaughter who has Cerebral Palsy and whose annual assistance was cut from $23,000 to $3,000 when she moved from a government school to an independent Christian College. He says that, as a consequence, there has been a significant reduction in funding for her physiotherapy, speech therapy and occupational therapy. Mr Byrnes submits the Committee should recommend to Parliament that the existing policy of inequality of funding for disabled students in independent schools should be repealed. The Autism Behavioural Intervention Association45 argues that the operation of the Disability Services Act discriminates against people with autism. According to the association there is currently no effective treatment offered for autistic children until they are three years of age, however due to increasingly sophisticated diagnosis it is now possible to diagnose a child with autism at age two and to detect many children at risk as early as 18 months. The association argues that the current early intervention provided at autism-specific centres is inadequate in terms of hours and intensity of intervention. They state that at age three, depending on waiting lists, diagnosed children are able to receive approximately two hours per week of early intervention at a recognised, autism-specific early intervention centre but that due to inadequate funding many families are placed on waiting lists. According to the association this means that many children with autism will not be able to access any early intervention from autism-specific centres. The submission from Michael Donnelly of Distinctive Options46 relates to discrimination against people with disabilities who undertake designated training at Victorian Department of Human 44 45 46 Submission 33 Submission 413 Submission 3 15 Scrutiny of Acts and Regulations Committee Services-funded Adult Training and Support Services (‘ATSS’) or who are using the specialist employment assistance of a Commonwealth Department of Family and Community Servicesfunded Open Employment Agency. Distinctive Options argue that neither group has the statutory protection necessary to enable them to undertake work experience. They say discrimination is more apparent in the ATSS situation than for people, with and without disabilities, who attend schools or Technical and Further Education (‘TAFE’) colleges. This is because, he submits, school and TAFE students are afforded statutory protection through regulations. They submit that the regulations covering work experience programs in schools and TAFE colleges could easily be amended to remedy the current discrimination. According to their submission the regulations now in force are the Education Regulations 2000 made under Part IVA of the Education Act 1958 and there are no provisions in these Regulations which deal with workplace training or work experience. They state that the Education Regulations 1988 that were revoked in accordance with a sunset clause in June 2000 did cover workplace training and work experience. The submission refers to the case of the State of Victoria v. Bacon & Ors47 in which the complainants were persons who, because of their impairment, could not comply with a condition that they must be involved in a VCE course before they turned eighteen years. It was common ground that a higher proportion of persons without impairment could comply with the condition. According to the submission, the Victorian Court of Appeal decided that implementation of the aged-based policy amounted to discrimination in education and was contrary to the EOA. Following this decision, the Victorian Government introduced legislation to address the effect of the decision of the court however, according to the submission from Distinctive Options there is a gap in current government programs and guidelines so that it is possible that young people with a disability are discriminated against because they do not fit into the category of secondary school or TAFE students or ATSS employed workers. Juries Act 2000 The MHLC48 submits that under the Juries Act the ineligibility for jury duty of ‘patients’ within the meaning of the Mental Health Act is discriminatory. They argue that this provision assumes that all involuntary patients do not have capacity to perform jury service and recommends amendment by the provision’s replacement with an alternative provision that a person with “any disability or condition that renders them incapable of performing jury duty” is ineligible. Local Government Act 1989 Bernd Bartl, on behalf of the Disability Support and Housing Alliance49 argues that accessibility and inclusiveness standards should be directly built into building, planning and environment laws, including the Local Government Act, rather than only in generic human rights and equal opportunity legislation.50 47 48 49 50 16 [1998] 4 VR 269 Submission 370 Submission 404 The DSHA also recommend amendments the Building Act and the Planning and Environment Act in relation to empowering and obliging local governments to ensure compliance with the EOA and DDA Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report Magistrates’ Court Act 1989 The MHLC51 submits that the Magistrates’ Court Act and PERIN Fines regime, whilst neutral on their face, have a disproportionately adverse impact on people with mental illness. They argue that people with mental illness are over-represented amongst those incurring large numbers of fines for petty infringements. Medical Treatment Act 1988 The MHLC52 submits that the interaction between the Mental Health Act and the Medical Treatment Act on the issue of Refusal of Treatment Certificates results in discrimination on the basis of impairment. They argue that a competent person can execute a Refusal of Treatment Certificate in relation to a presently existing medical condition and be assured that it will be respected if they lose capacity. They point out that s.41 of the Guardianship and Administration Act 1986 provides that the consent of a ‘Person Responsible’ cannot justify treatment without the person’s consent where they have executed a Refusal of Treatment Certificate. They argue that s.4(3)(b) of the Medical Treatment Act, which provides that the Act does not limit the operation of any other law, means that the involuntary treatment provisions of the Mental Health Act prevail over the refusal of treatment provisions. Mental Health Act 1986 The MHLC53 submits that the criteria for involuntary treatment under s.8(1) of the Mental Health Act leads to particular concerns for people considered able to consent and those unable to consent to treatment. The submission argues that involuntary treatment is best categorised as direct discrimination because where a specific impairment exists – mental illness – people subject to the Act are at risk of receiving involuntary treatment. Section 120A allows for the disclosure of confidential information to carers and thus, they argue, provides less protection to users of mental health services than to users of general health services. Section 121 provides a statutory immunity for anything done in good faith and with reasonable care in reliance on any authority or document apparently given or made in accordance with the requirement of the Act. The legal service argues that there is no comparable provision in the Health Services Act 1988. They submit that users of general health services therefore have greater entitlement to remedies where clinicians take action mistakenly believing that consent has been given than do users of mental health services. The Centre further submits that under the Mental Health Act police officers are authorised to transport people to mental health services and use whatever force is reasonably necessary however people being treated for other health problems are not subject to police involvement in their health service provision. 51 52 53 Submission 370 Submission 370 Submission 370 17 Scrutiny of Acts and Regulations Committee Mr/s Hughes54 expresses concern that a person receiving treatment as an involuntary psychiatric inpatient may not be in a position to consent to treatment or consider treatment options should they be diagnosed with cancer. Mr/s Hughes contends that this constitutes discrimination on the basis of disability. Occupational Health and Safety Act 1985 Dru Marsh55 argues that employers may abuse the reasonableness test under s.22(1)(a)(ii) of the EOA to justify discrimination on the basis of workplace safety principles. Planning and Environment Act 1987 Bernd Bartl, on behalf of the Disability Support and Housing Alliance,56 submits that the Planning and Environment Act does not require disability access and inclusion issues to be considered in the planning process and should be amended so that it does so. In support of this recommendation the Alliance refers to the legislation’s objective at s.4(1)(c): “to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria”; and describe it as ‘vaguely aspirational’ and ‘not good enough’. They refer to the Melbourne City Council’s Disability Action Plan: 2001-2004 which includes an objective to “improve Council’s planning, building and urban design processes to ensure the accessibility of new developments in the municipality” and argue that, despite this policy commitment, the Melbourne City Council’s Municipal Strategic Statement is “almost completely silent on disability access issues” except for some references to access to transport and public space. They refer to a recent decision of the Moreland City Council to approve a ‘rectilinear grid’ design of streets for the Parkville/Brunswick site of the Commonwealth Games Village, rather than the ‘curvy’ design suggested by the developer. They understand that the ‘curvy’ design would have allowed all buildings, including dwellings, to be built so that the slope of the land could accommodate entries into buildings without steps. They say that the developer believes that the grid design will make it impossible for many of the buildings to have step-less entries. They recommend that the Planning and Environment Act should be amended so that discrimination in planning decisions would be unlawful and to explicitly empower municipal councils/responsible authorities to ensure compliance with the EOA and the DDA and to require equal outcomes for all in planning matters, rather than relying on action by individual complainants. The Alliance submission cites seven VCAT decisions that, in their view, indicate there is confusion as to whether the Planning and Environment Act allows municipal councils/responsible authorities to impose accessibility and inclusion conditions when granting planning permits. 54 55 56 18 Submission 36 Submission 401 Submission 404 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report They submit that if there is any doubt as to whether municipalities can include accessibility and inclusion requirements in the Local Planning Schemes or amendments to same, or as conditions on planning permits, such doubt should be removed by legislative amendment. Police Regulations 2003 Paul Mullett on behalf of The Police Association57 contends that Regulation 21 Part (1) of the Police Regulations, which provides that a member of the force is liable to immediate transfer to any part of the State, is relied upon by the Police Force to compulsorily transfer newly confirmed recruits to ‘difficult to fill’ positions. The Police Association submission suggests that the exercise of the power may result in indirect discrimination because of an attribute listed in s.6 of the EOA: impairment, marital status, parental status or status as a carer. The DDLS58 submits that Regulation 5, which requires satisfactory completion of a medical examination, general intelligence test, written examination and agility test for admission to the police, is discriminatory because the nature of medical assessment and examination is subjective and can only amount to the professional opinion of the medical practitioner concerned. They also argue that people with inner ear conditions might be unfairly discriminated against in relation to the balance beam component of the agility test. Furthermore, some people with a fear of heights might be unfairly discriminated against in relation to the chain mesh component. They argue that such conditions are easily ameliorated and stabilised by treatment. They contend that agility testing should be removed from the eligibility criteria as it operates to impede people with and without disabilities who wish to become police officers. The Legal Service also contends that the Regulations may lead to discrimination in relation to promotion. They object to the requirement that family medical history be taken into account upon application to join the Police Force. They argue that this requirement is only in place in Victoria and South Australia. They comment that this concern has also been discussed by the Australian Law Reform Commission in its report on the protection of human genetic information. That report recommended discrimination laws should be changed to prohibit discrimination on the basis of a person’s real or perceived genetic status. The service recommends that the regulations should be amended so that family medical history may not be taken into account and replaced, if at all, by a provision that medical conditions rendering a person incapable of completing duties will be considered, as is the case in Queensland and Tasmania. The Legal Service argues that the requirement that applicants undergo urine drug testing does not take into account people who have a disability that makes such testing difficult, such as people with prostate conditions. Residential Tenancies Act 1997 The MHLC59 submits that the Residential Tenancies Act discriminates by excluding health or residential services from its coverage. 57 58 59 Submission 56 Submission 405 Submission 370 19 Scrutiny of Acts and Regulations Committee Under the Act ‘supported residential services’ have the same definition as under the Health Services Act and ‘community care units’ as under the Mental Health Act. The Legal Centre argues that in both these categories of services residents pay rent and, apart from the support or treatment they receive, their residential situations are similar to those of tenants who are covered by the Residential Tenancies Act. They submit that exclusion from coverage means such residents have no clear mechanism by which they can pursue rooming house rights such as rights to adequate maintenance, repairs and privacy and quiet enjoyment and to challenge rent increases, formal notices to vacate or eviction. The Centre submits that the Act should be amended so that residential tenancy rights apply to tenants in supported residential services and community care units and to the range of other disability accommodation types currently excluded. The DDLS60 contends that s.23 discriminates against recipients of health or residential services with a disability (which includes persons with a physical or intellectual disability or with mental health issues) by denying them the protections afforded by the Act, including the right to appeal to the Residential Tenancies Tribunal. They submit that this contravenes s.49(c) of the EOA which provides that a person must not discriminate against another in the terms on which accommodation is offered to the other person.61 Sentencing Act 1991 The MHLC62 submission refers to the provisions for ‘Justice Plans’, or specialised non-custodial sentencing options for people with intellectual disabilities under Division 6 of Part 3 of the Sentencing Act, and argues that there is a need to introduce tailored sentencing options to reduce the number of people with mental illness in prison. The Centre argues that magistrates and judges should have a statutory discretion to dismiss charges without a finding of guilt in appropriate cases. They point out that such power exists in relation to summary offences for persons suffering from a mental illness or intellectual disability under s.20 BQ of the Crimes Act 1914 (Cth). Summary Offences Act 1966 The MHLC63 submits that the begging offences in the Summary Offences Act and Vagrancy Act 1966 may often be closely bound up with mental illness and homelessness. They also argue that public drunkenness offences should be abolished.64,65 60 61 62 63 64 65 20 Submission 364 The Committee notes that this issue is included in the Review of Disability Legislation: Report of Recommendations October 2004 Submission 370 Submission 370 In 2001 the Committee reported on its review of the Summary Offences Act 1966 and in 2002 reported on its review of the Vagrancy Act 1966. The Government in its response commented that in any large-scale reform of the Acts must be done in tandem The Committee notes the inquiry of the Crime Prevention and Drug Committee and its Report on Public Drunkenness 2001 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report Wrongs Act 1958 The MHLC66 submits that s.28LB of the Wrongs Act, regarding damages in civil actions for noneconomic loss, may discriminate against people with a psychiatric disability in that it provides that the threshold for non-psychiatric injury is an impairment level of more than 5%, and for psychiatric injury it is a level of more than 10%. The Centre submits that there may be a similar discrepancy in relation to certain compensation entitlements under either the Accident Compensation Act 1985 or the Transport Accident Act 1986. Industrial activity Occupational Health and Safety Act 1985 Dru Marsh67 contends that amendments to the OHSA to prevent victimisation of Health and Safety Representatives demonstrate how the objectives of the OHSA and EOA can be integrated in the prevention of victimisation. Lawful sexual activity The Committee received no submissions that concerned lawful sexual activity. Marital status Evidence Act 1958 The submission from Greg Taylor68 concerns ss.27 and 28(1) of the Evidence Act. These sections concern privileges, disabilities and obligations of witnesses. Section 27 provides a protection for parties to a marriage in that they cannot be compelled to disclose any communication they have had, other than in a criminal proceeding or one that concerns bail. Section 28(1) provides that a clergyman cannot be compelled to disclose a confession without the consent of the person concerned. This is whether the matter is either a civil or a criminal matter. Mr Taylor submits that these provisions may lead to discrimination on the basis of marital status as well as sex, sexual orientation and, arguably, personal association.69 Police Regulations 2003 The submission from Paul Mullett on behalf of The Police Association70 contends that under Regulation 21 Part (1) of the Police Regulations, members of the force who are married or in de 66 67 68 69 70 Submission 370 Submission 401 Submission 400 The Committee notes that the Attorney-General announced in the Justice Statement that this Act is to be reviewed Submission 56 21 Scrutiny of Acts and Regulations Committee facto relationships may be faced with living apart for the period of a transfer, which is a minimum of two years. They can also be obliged to occupy and service two homes, causing strain on relationships because the alternative would be for partners to abandon their careers. Parental status or status as a carer Police Regulations 2003 The submission from Paul Mullett on behalf of The Police Association71 contends that under Regulation 21 Part (1) of the Police Regulations, members of the force who are parents may have to relocate their families involving disruption to the children’s education and partner’s work, or split up the family for the period of the transfer. They submit that there are also examples of members of the Force who are parents of children with impairments who require specialist medical care being subject to transfers to locations where medical treatment is not available for their children. The Association submits that separation from children is a detriment suffered by members of the Force who are subject to such transfers. Physical features The Committee received no submissions that concerned physical features. Political belief or activity Racial and Religious Tolerance Act 2001 The Committee received over 250 submissions concerning this Act. Only one submission, from a prisoner,72 concerned discrimination on the basis of political belief or activity. That submission argues that the protection provided by the EOA extends only to popular or commonly-held political beliefs and does not protect far-right or racist beliefs. The author contends that this perception has become further entrenched with the passage of the Racial and Religious Tolerance Act, which he contends is discriminatory. Pregnancy Long Service Leave Act 1992 Louisa Dickinson, on behalf of Job Watch73 recommends that s.63, which provides that any period of maternity leave that is less than or more than 48 weeks is not to be counted as part of the period of an employee’s employment for long service leave purposes, should be amended so that periods of maternity leave are counted as part of the period of an employee’s employment, or alternatively that periods of maternity leave of less than 48 weeks are counted as part of the period of an employee’s employment. Job Watch recommends that s.64, which provides for long service leave to be paid at the rate of ordinary pay and defines ordinary as the pay the employee is entitled to receive at the time he or 71 72 73 22 Submission 56 Submission 99 Submission 398 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report she takes leave, should be amended to provide recognition of employment worked at full-time hours where an employee drops to part-time hours during their employment. The LIV74 also argues that the Long Service Leave Act may result in discrimination on the basis of sex, pregnancy, parental status and status as a carer by not allowing a female to accrue long service leave during periods of absence due to maternity leave. The Institute submits that the Act should be amended so that maternity leave counts towards the accrual of long service leave. Occupational Health and Safety (Lead) Regulations 2000 Dru Marsh75 argues that the Occupational Health and Safety (Lead) Regulations legalise discrimination of females on the basis of pregnancy. Race Bail Act 1977 Rumiko Commons76 identifies s.4(3) of the Bail Act as leading to discrimination on the basis of race.77,78 Constitution Act 1975 VALS79 submits that the absence of recognition of Indigenous Australians in the Victorian Constitution is discriminatory. VALS welcomes the Victorian Government’s announcement of a draft amendment to the Constitution that addresses this discrimination – the Constitution (Recognition of Aboriginal People) Amendment Bill 2004 – but says that consultation with Indigenous Australians during drafting of the Bill has been insufficient. VALS also considers that the Bill is not sufficient and that further amendments are necessary to address discrimination, including constitutional recognition and guarantee of the rights of Indigenous Australians in Victoria. Coroners Act 1985 VALS80 submits that s.29(3) of the Coroners Act is arguably discriminatory towards members of the Aboriginal community in that it excludes people, other than senior next of kin, from objecting to an autopsy. The Legal Service argues that the Act should be amended to allow Aboriginal elders and respected persons to object to the performance of an autopsy, in recognition of the relevance of cultural objections to autopsy. 74 75 76 77 78 79 80 Submission 412 Submission 401 Submission 364 See earlier reference under the attribute of “age” The Committee notes that the Attorney-General announced in the Justice Statement that this Act is to be reviewed Submission 352 Submission 352 23 Scrutiny of Acts and Regulations Committee They cite, with approval, the definition of ‘next of kin’ in the Coroners Act 2000 (NT): “where a person is an Aborigine - a person who, according to the customs and tradition of the community or group to which the person belongs, is an appropriate person.” They further submit that the Coroners Act should be amended so that no autopsy may be performed until the coroner has made every reasonable effort to contact the deceased’s family and other interested persons. The Committee notes that an objection to an exhumation can only be raised by those identified in s.30 that requires the State Coroner to notify ‘next of kin’ when a body is to be exhumed. This may lead to discrimination for the same reasons as outlined in relation to s.29. Corrections Act 1986 VALS81 submits that s.35 of the Corrections Act, which provides that a person’s criminal record may be taken into account when appointing or refusing to appoint an Aboriginal Official Prison Visitor, could lead to indirect racial discrimination. The Legal Service states that it is aware of the public policy grounds for not allowing people with criminal records to become Aboriginal Official Prison Visitors but argues that there are also strong public policy reasons for permitting Aboriginal people who have a distant and minor history of crime to be appointed. VALS recommends that the Corrections Act and Regulations be amended to guide the discretion in s.35 and suggests that if a person has been convicted of a minor offence, is 25 years of age or older and has not re-offended within the last five years they should be considered eligible for appointment under those guidelines. Anna Hacker82 submits that there is a lack of provision in the Corrections Act for non-Englishspeaking-background prisoners. She argues that the consequent denial of access to information affects the ability of such prisoners to understand the commands of prison guards, to understand prison announcements and to comprehend the rules and regulations of the prison. She points out that a statistical profile of the Victorian prison system shows that the percentage of NESB prisoners is presently around 16% and is increasing. Ms Hacker argues that the Corrections Act should be amended to incorporate specific provisions such as requiring all prison material to be translated into community languages and the provision of interpreters. Crimes Act 1958 Rumiko Commons83 addresses s.399(3) of the Crimes Act which provides that it is desirable for a trial judge to formally warn a jury that the failure of an accused to give evidence is not, of itself, evidence against that person. Ms Commons argues that the provision may lead to discrimination against young, female and Asian defendants who are less likely other than accused persons to be benefit from the provision as they are more likely to be cooperative with authorities.84 81 82 83 84 24 Submission 352 Submission 407 Submission 364 In 1999 the Committee in its Final Report Right to Silence found that there was a case for reform of law relating to judicial comment of an accused person’s failure to testify Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report She submits that, considering that the right to remain silent is already protected by other parts of legislation and under the common law, and also that, in her submission, s.399(3) has been an obstacle to the successful prosecution of a number of serious alleged sexual offenders, evaluation and repeal of s.399(3) should be considered. Ms Commons also refers to s.464A of the Crimes Act which requires police to inform a detained person of their common law right to remain silent. She submits that the characteristics and attitudes of young, female and Asian accused persons make them more likely than other accused persons to cooperate with authorities is not likely to be affected by information given to them just moments before being questioned by police. Energy Legislation (Consumer Protection and Other Amendments) Act 2003 VALS85 submits that Aboriginal people suffer indirect discrimination in the provision of essential services under the Energy Legislation (Consumer Protection and Other Amendments) Act in that they are more likely to experience long disconnections, for example of gas and electricity supply, than non-Aboriginal people. The Legal Service says that some relief has been provided by the ‘safety net’ provisions of the Act but they are concerned that the legislation is due to ‘sunset’ on 31 December 2004. They recommend that the safety net provisions should be ongoing and that there should be a legislated minimum guarantee of essential services at a cost not exceeding a nationally agreed proportion of income.86 Land Titles Validation Act 1994 VALS87 submits that the Land Titles Validation Act, insofar as it provides for the retrospective validation of past, intermediate and future acts with a clear and plain intention to invalidate native title, is racially discriminatory. They argue that the provisions render native title more liable than non-Indigenous land titles to extinguishment. They call for reform of the legislation with involvement by Indigenous Australians. Occupational Health and Safety Act 1985 Dru Marsh88 submits that training and provision of safety information for non-English-speakingbackground workers are not adequately addressed by the Codes of Practice under the Occupational Health and Safety Act. For example, she submits, Material Safety Data Sheets are not required to be provided in any language other than English. Registration of Births Deaths & Marriages Act 1996 The submission from Denis Moriarty89 relates to the Registration of Births Deaths & Marriages Act and outlines the case of a person who adopted an overseas born child through the appropriate adoption processes under Australian law. He states that the adoption was approved by the 85 86 87 88 89 Submission 352 The Committee notes that the Energy Legislation (Amendment) Bill was introduced on 14 September 2004 and extends the safety net period until 31 December 2007 Submission 352 Submission 401 Submission 292 25 Scrutiny of Acts and Regulations Committee Victorian Government through its delegated agency, the Department of Human Services. He says that when the child was adopted in China she was not given a birth certificate but a ‘Certificate of Abandonment’ that certified that the child was a female born on a particular date but the “birth place and biological parents are unidentified.” He states that the Registrar of Births Deaths and Marriages has refused to issue a new birth certificate for the child, but would approve a certificate for a change of name. He points out that the child is eligible for an Australian passport and argues that the State of Victoria is discriminating against the child in relation to the issuing a birth certificate. Sentencing Act 1991 VALS90 submits that the system of fines in the Sentencing Act indirectly discriminates against Indigenous Australians because it impacts more seriously on people from a low socio-economic background in that they are less likely to be able to pay a fine and more likely to serve prison time in default. The legal service is supportive of current moves by the Victorian Government to reform the fine system and calls for a system that is more flexible in relation to people experiencing financial or social hardship and which includes means testing. Summary Offences Act 1966 VALS submits that the public drunkenness provisions in the Summary Offences Act indirectly discriminate against Aboriginal and Torres Strait Islander people. They argue that public order laws, and the manner in which they are policed, lead to indirect discrimination against Indigenous Australians in that they lead to overrepresentation of Aboriginal people in the criminal justice system. They argue that Aboriginal people are more likely to be poor, more likely to congregate in public places due to lack of alternatives and therefore are more likely to be over-policed. The service submits that s.13 that creates an offence of public drunkenness should be revised to decriminalise the offence and limit police custodial powers to civil action directed at the prevention of harm to persons or property. They argue that decriminalisation should be accompanied by measures to ensure that other public order offences are not used as a substitute by police. They submit that the offence of obscene and offensive language should be abolished and that legislative rules should be introduced to provide guidance to police in relation to diversionary measures and cautions. Transport Act 1983 The LIV91 submits that s.221(1A) of the Transport Act, which grants a discretion to the Secretary or Director of Public Transport to determine ticket conditions, has the effect of preventing full time international students from accessing concession fares on the metropolitan public transport network. 90 91 26 Submission 352 Submission 412 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report The Institute argues that the Act should be amended to ensure that conditions or policies regarding public transport concessions are not made or exercised in a discriminatory manner. Religious belief or activity Evidence Act 1958 Rumiko Commons92 submits that s.28 of the Evidence Act, which prevents ‘clergymen’ from giving evidence in court without the consent of the accused, has a discriminatory effect against persons who practice religions that do not include the confessional and non-religious persons. She further submits that the term ‘clergyman’ is gender specific and should be amended to ‘clergyperson’. VLA93 submits that the provisions relating to the swearing of oaths in ss.100 and 101 indirectly discriminate on the basis of religious belief because, although there is an option to affirm rather than swear, the court procedures presume an affinity to Christianity and people who are not Christians are therefore treated less favourably than people who are. They refer to their submission to the Parliamentary Law Reform Inquiry into Oaths and Affirmations in which they recommended a standard affirmation or solemn promise to be administered to all persons, regardless of their religious belief.94 Racial and Religious Tolerance Act 2001 The Committee received 241 submissions concerning the Racial and Religious Tolerance Act. The flavour of the submissions is that the Act infringes freedom of speech and freedom of religious expression. The submissions argue that the Act is poorly drafted and ambiguous and that it limits freedom of speech and expression. Victoria’s first hearing95 under s.8 of the Act, which makes religious vilification unlawful, has been heard before Judge Higgins in the Victorian Civil and Administrative Tribunal and a decision is pending at time of writing. The case centres on whether certain acts of the Catch the Fire Ministries, and others, constitute religious vilification under the Act. Religious vilification is unlawful in that a person must not engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, a person or class of persons on the ground of their religious belief. Conduct can be a single occasion, or a number of occasions over a period of time and the conduct can occur in or outside of Victoria. ‘Conduct’ includes use of the internet or email to publish or transmit statements or material. The conduct in this case related to a public seminar, where the Respondents spoke and provided information about the teachings of Islam and to the provision of written material and material contained on a website. 92 93 94 95 Submission 364 Submission 394 The Committee notes that the Attorney-General announced in the Justice Statement that this Act is to be reviewed Islamic Council of Victoria Inc v Catch the Fire Ministries, Danny Nalliah, Daniel Scot [2003] VCAT 1753 27 Scrutiny of Acts and Regulations Committee The question for the Judge to determine is whether or not the conduct incited hatred against Muslim people. Vagrancy Act 1966 VLA96 submits that s.13 of the Vagrancy Act, which prohibits fortune telling and pretending to exercise witchcraft, discriminates on the basis of religious belief or activity and recommends its repeal. They refer to a VLA submission made to the Redundant Legislation Sub-committee of the SARC in 2002 in which they recommended the repeal of the entire Vagrancy Act as “not in keeping with contemporary social values and practices”.97 Sex Bail Act 1977 Rumiko Commons98 identifies s.4(3) of the Bail Act as leading to discrimination on the basis of sex.99 Control of Weapons Act 1990 Rumiko Commons100 submits in relation to the offence of carrying a dangerous article without lawful excuse under the Control of Weapons Act. Ms Commons argues that the purpose of the Act, set out in s.1, is to regulate the use of weapons (other than firearms) and body armour. The submission refers to the finding of the High Court in Taikato v The Queen101 that there was no lawful excuse for the appellant, Ms Taikato, to keep a canister of an irritant spray for the purpose of self defence. The submission argues that the purpose of the Act should be amended to include the purpose of creating a safer community. Ms Commons argues that when ss.7(1) and 10 are read in the light of the purpose set out in s.1 the effect may be discriminatory as against vulnerable members of the community as they are more likely to be successfully prosecuted under the provisions. Long Service Leave Act 1992 Louisa Dickinson, on behalf of Job Watch102 submits that the Long Service Leave Act should be amended to provide that all periods of service with an employer should be added together when calculating the period of an employee’s employment for long service leave purposes and that if there is a doubt over the entitlement of casual employees to long service leave the Act should state expressly whether or not they are covered. Job Watch points out that s.62 of the Act provides that a female employee’s employment is not ‘continuous’ where she is absent from work for more than 12 months because of pregnancy or to care for her children unless the absence is approved by the employer. They submit that this discriminates against older people who are carers. 96 97 98 99 100 101 102 28 Submission 394 See footnote 61 Submission 364 See earlier reference under the attribute of “age” Submission 364 (1996) 186 CLR 454 Submission 398 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report Job Watch recommends that s.63, which provides that maternity leave is not to be counted as part of the period of an employee’s employment for long service leave purposes, should be amended so that periods of maternity leave are counted as part of the period of an employee’s employment, or alternatively that periods of maternity leave of less than 48 weeks are counted as part of the period of an employee’s employment. They recommend that s.64, which provides for long service leave to be paid at the rate of ordinary pay and defines ordinary as the pay the employee is entitled to receive at the time he or she takes leave, should be amended to provide for some recognition of employment worked at full-time hours where an employee drops to part-time hours during their employment. The submission of the LIV103 also argues that the Long Service Leave Act may result in discrimination on the basis of sex, pregnancy, parental status and status as a carer by not allowing a female to accrue long service leave during periods of absence due to maternity leave. The Institute submits that the Act should be amended to reflect that maternity leave should count towards the accrual of long service leave. Property Law Act 1958 VLA104 submits that Part V of the Property Law Act, which provides for a process for identifying lineage in property law proceedings that concern inheritance, is discriminatory in that it is based on the ‘male line’ and therefore discriminates against women. They submit that s.241 re preference for the male line, s.242 re the mother of more remote male ancestor to be preferred to the mother of the less remote male ancestor, s.243 re the failure of male maternal ancestor, and s.244 re half blood if on the part of a male ancestor to inherit after the whole blood of the same degree if on the part of a female ancestor after her, should all be replaced with provisions that bring them into line with contemporary attitudes and values. Sexual orientation Adoption Act 1984 Tamara Wood105 submits that the provisions of the Adoption Act that provide that an adoption order may be made in favour of a man and a woman who have been married or have lived in a de facto relationship for not less than two years has discriminatory effect against persons on the basis of sexual orientation and recommends that they should be amended. VLA106 submits that s.11, providing for persons in whose favour adoption orders may be made, discriminates on the basis of sexual orientation and marital status because it creates a presumption in favour of heterosexual couples and therefore treats single persons and persons in same-sex relationships less favourably than persons in heterosexual relationships. 103 104 105 106 Submission 412 Submission 394 Submission 305 Submission 394 29 Scrutiny of Acts and Regulations Committee VLA also submits that insofar as s.4 defines a ‘de facto relationship’ as “the relationship of a man and a woman…” it should be amended in line with the purpose at s.1(3) of the Statute Law Amendment (Relationships) Act 2001.107 The LIV108 also submits that the Adoption Act should be amended to make gay and lesbian couples eligible to apply to adopt a child. Anzac Day Act 1958 The LIV109 submits that the reference in the Anzac Day Act to ‘dependants’ should be amended at s.4A to ensure that the Act is free from discrimination against the children of same sex couples. Attorney General and Solicitor General Act 1972 VLA110 submits that the Attorney General and Solicitor General Act is discriminatory insofar as s.3 (Pensions) refers to ‘spouse’ and that it should be amended in line with the purpose at s.1(3) of the Statute Law Amendment (Relationships) Act. The LIV111 submits that in the same Act, the words ‘spouse’, ‘wife’, ‘husband’ and ‘marriage’ should be removed from s.6 that provides for pensions for the solicitor general to ensure that the Act is free from discrimination against same sex couples. Constitution Act 1975 The LIV112 submits that the words ‘spouse’, ‘wife’, ‘husband’ and ‘marriage’ should be removed from the Constitution Act at ss.7A, 7B, 7C, 7D, 7E, 7F, 7G, 7H, 7I, 7J, 83, 83AA, 83AB, 83AC, 83AD, 83AE, 83AF, 83AG, 83AH, 83AI and 87AF to ensure that the Act is free from discrimination against same sex couples. These provisions regulate the payment of pensions to judges, masters, their spouses and eligible children. Constitution Amendment Act 1958 VLA113 submits that insofar as s.41 in the Constitution Amendment Act, providing for the deduction from salaries of members, uses language that is not gender neutral (‘widow’) and excludes same-sex relationships. Therefore it is argued that it should be amended in line with the purpose at s.1(3) of the Statute Law Amendment (Relationships) Act. 107 108 109 110 111 112 113 30 “…to prevent discrimination under legislation specified in the schedules by ensuring that all couples irrespective of gender have the same rights and obligations while at the same time recognising the importance of a commitment to a long term relationship and the security of children” Submission 412 Submission 412 Submission 394 Submission 412 Submission 412 Submission 394 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report County Court Act 1958 VLA114 and the Law Institute of Victoria115 submit that insofar as ss.14-14AI of the County Court Act use both gender specific language and language that excludes same sex relationships (‘widow’ and ‘spouse’) they should be amended in line with the purpose at s.1(3) of the Statute Law Amendment (Relationships) Act. The LIV further submits that the words ‘spouse’, ‘wife’, ‘husband’ and marriage’ should be removed from ss.17B-17K that provide for pensions to master their spouse and children to ensure that the Act is free from discrimination against same sex couples. Credit Act 1958 Both VLA116 and the LIV117 submit that insofar as the definition of ‘guarantor’ in s.5 of the Credit Act uses the word ‘spouse’ it should be amended in line with the purpose at s.1(3) of the Statute Law Amendment (Relationships) Act. Crimes Act 1958 VLA118 submits that insofar as s.399 of the Crimes Act providing for the accused, husbands and wives as witnesses for the defence; evidence of character of accused and s.400 that provides that the wife or husband etc. of the accused to be competent and compellable witnesses, use language (‘husband’ and ‘wife’) that does not encompass same sex relationships they should be amended in line with the purpose at s.1(3) of the Statute Law Amendment (Relationships) Act. The LIV119 submit that the words ‘spouse’, ‘wife’, ‘husband’ and ‘marriage’ should be removed from the Act at ss.35(1), 44, 51, 52, 95, 177, 337, 338, 339, 399, 400 and 574 to ensure that the Act is free from discrimination against same sex couples. 120 Evidence Act 1958 The LIV121 submits that the words ‘spouse’, ‘wife’, ‘husband’ and ‘marriage’ should be removed from the Evidence Act at ss.26, 27 and 31 to ensure that the Act is free from discrimination against same sex couples.122 Infertility Treatment Act 1995 On 11 October 2002, the Victorian Attorney-General asked the Victorian Law Reform Commission to undertake a reference on assisted reproduction and adoption. The Commission 114 115 116 117 118 119 120 121 122 Submission 394 Submission 412 Submission 394 Submission 412 Submission 394 Submission 412 The Committee notes that the Attorney-General announced in the Justice Statement that this Act is to be reviewed Submission 412 The Committee notes that the Attorney-General announced in the Justice Statement that this Act is to be reviewed 31 Scrutiny of Acts and Regulations Committee released their Consultation Paper on Assisted Reproductive Technology and Adoption on 20 January 2004. The Commission has been tasked to enquire and report on the desirability and feasibility of changes to the Infertility Treatment Act and the Adoption Act 1984 to expand eligibility criteria in respect of all or any forms of assisted reproduction and adoption and make the recommendations for any consequential amendments which should be made to the Status of Children Act 1974, Births Deaths and Marriages Registration Act 1996, Human Tissue Act 1982, Equal Opportunity Act 1995 and any other relevant Victorian legislation and to consider whether changes should be made to the Act to reflect rapidly changing technology in the area of assisted reproduction. Several submissions received by the Committee relate to the Infertility Treatment Act. Most argue that that the Act discriminates on the basis of sexual orientation or marital status. In the case of Mc Bain v State of Victoria123 the Court found the Infertility Treatment Act has been ruled inconsistent with the Federal Sex Discrimination Act 1984 by reason of discrimination. Sundberg J held that the Act is inoperative to the extent that it restricts access to assisted reproductive technology to married and de facto couples. The case involved a single infertile woman who wanted to have a child. The McBain decision makes it unlawful for a provider of reproductive services to discriminate on the basis of marital status. Following the McBain decision, the Infertility Treatment Authority stressed that fertility clinics must only provide infertility treatment to single women and women if they are in same-sex relationships, who are clinically infertile or likely to have a child with a genetic abnormality.124 VLA125 submits that s.8, which specifies the persons who may undergo treatment procedures, discriminates on the basis of sexual orientation and marital status because single women and women in same-sex relationships are treated less favourably than women in heterosexual relationships. They refer to the McBain decision as authority for the proposition that it is unlawful for a provider of reproductive services to discriminate on the basis of marital status but assert that, despite this decision the law remains discriminatory in that “a married woman must be ‘unlikely to become pregnant’, whereas a single women must be clinically infertile…”126 Salt Shakers127 submit that access to the creation of children should be limited to heterosexual, married couples. They further submit that the issue is not about choice but rather a responsible allocation of government money to cases that will allow a child to grow up in a loving, nuclear family environment. Liquor Control Reform Act 1998 VLA128 submit that insofar as the Liquor Control Reform Act s.119 concerning the supply of liquor to minors, s.120 allowing minors on licensed or authorised premises and s.123 that creates 123 124 125 126 127 128 32 (2000) 117 ALR 320 Peterson, K. (2002) “The regulation of assisted reproductive technology: a comparative study of permissive and prescriptive laws and policies (2002) 9 Journal of Law and Medicine 483, 193 Submission 394 Victorian Law Reform Commission consultation paper on Assisted Reproductive Technology and Adoption (2004) Submission 346 Submission 394 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report offences for minors use the word ‘spouse’ rather than ‘domestic partner’ they should be amended in line with the purpose at s.1(3) of the Statute Law Amendment (Relationships) Act. The LIV129 also submits that the words ‘spouse’, ‘wife’, ‘husband’ and ‘marriage’ should be removed from the Act at ss.119, 120 and 123 to ensure that the Act is free from discrimination against same sex couples. Marriage Act 1958 The submission from Kendall Lovett and Mannie De Saxe, on behalf of Lesbian and Gay Solidarity (Melbourne)130 submit that in the Statute Law Amendment (Relationships) Act there is no official ‘licence’ to define the term ‘domestic partner’ as the marriage licence does for the female/male relationship. They argue that the Government of Victoria should be prepared to provide a Certificate or Licence to validate those in domestic partner relationships and give them the same rights as provided by the Marriage Certificate to heterosexual spouses. Public Prosecutions Act 1994 The LIV131 submits that the words ‘spouse’, ‘wife’, ‘husband’ and ‘marriage’ should be removed from the Public Prosecutions Act at s.18 providing a pension for the chief prosecutor, s.35 the senior prosecutor and their spouses and children, to ensure that the Act is free from discrimination against same sex couples. Registration of Births Deaths and Marriages Act 1996 Kate Clarke and Karen Gurney132 of the Australian WOMAN Network133 are concerned with recognition of post-operative legal status of transsexuals and submit that the current Bill134 to amend the Registration of Births Deaths and Marriages Act has failed to comprehend what are very complex issues and has lead to several discriminatory outcomes. Settled Land Act 1958 The LIV135 submits that the reference to ‘husband’ should be removed from the Settled Land Act at s.24 to ensure that the Act is free from discrimination against same sex couples. Supreme Court Act 1986 VLA136 and the LIV137submit that the Supreme Court Act insofar as ss.104A-104J use language that do not encompass same sex relationships (ie ‘their spouses and children’) they should be amended in line with the purpose at s.1(3) of the Statute Law Amendment (Relationships) Act. 129 130 131 132 133 134 135 136 137 Submission 412 Submission 262 Submission 412 Submission 211 “a lobby and support group established to advocate for women born with transsexualism” As of 3 December 2004 the amendments are not yet proclaimed Submission 412 Submission 394 Submission 412 33 Scrutiny of Acts and Regulations Committee 34 Chapter Three Submissions about the EOA The Committee accepted a number of submissions from the public that specifically concern the operation of the EOA. While the task of the Inquiry is not to review the EOA it is a Victorian Act and contains provisions that may be discriminatory. This Chapter provides a summary of those submissions organised by the provisions of the EOA. Section 3 Definitions Racism The submission from Mr Paul Richardson138 contends that a definition of the term ‘racism’ is required in both the EOA and the Racial Discrimination Act 1975 (Cth). Mr Richardson submits that racism consists of four inter-related elements: • The belief that one’s own culture is superior to that of others; • The belief that there are ‘races’ which are biologically constituted; • The belief that the cultural inferiority of other groups is based on biological inferiorities in the ‘racial’ group; and • The belief that these three factors provide a legitimate basis for discriminating against these groups politically, economically and personally. Mr Richardson also proposes the inclusion of the term ‘nepotism’ in the EOA. Mr Richardson says that as an Indigenous Australian, he believes that racism (including nepotism) is regularly practiced in all Aboriginal communities, between friends, outsiders and family members. Mr Richardson recommends that the term ‘nepotism’ be inserted into Part 2, s.6 of the EOA as an additional attribute. Section 6 Attributes The Committee received a number of submissions concerning limitations on existing attributes as well as for the inclusion of new attributes. 138 Submission 131 35 Scrutiny of Acts and Regulations Committee Homelessness, social status A number of submissions argue that ss.4 and 6 should be amended to include ‘unemployment’, ‘social status’, ‘homelessness’ and ‘receipt of social security payments’ to the list of protected attributes. They argue that homeless and transient people, unemployed people and social security recipients face widespread discrimination, particularly in accommodation and the provision of goods and services, and currently have no protection under the Act. The submissions cite with approval an article on this point by Phillip Lynch and Bella Stagoll of the Public Interest Law Clearing House. 139 Irrelevant criminal record VALS140 submits that s.6 should be amended to prohibit discrimination on the basis of ‘irrelevant criminal record’ and cite, with approval, the definition of ‘irrelevant criminal record’ at s.3(1) of the Anti Discrimination Act 1996 (NT). They argue that there is currently protection from discrimination on the basis of ‘spent’ criminal record in NSW, QLD, WA and the NT and similar protection should be introduced in Victoria. Drug use VALS also submits that s.6 should be amended to include ‘drug use’ as an attribute on the basis of which discrimination is prohibited. They argue that discrimination against drug users exacerbates the economic and social marginalisation of Aboriginal and Torres Strait Islander people. Female born lesbians Submissions were received from a number of women who were born and live as female and whose sexual orientation is lesbian141 some named, others requesting that they be anonymous. Their submissions relate to s.6 which they are concerned permits a male to female transgender or transsexual person to raise a complaint against lesbians who seek to exclude members of those groups from gatherings of lesbians who are naturally born female. They argue that the objectives of the EOA include the promotion, recognition and acceptance of everyone’s right to equality. They submit that there should be a right to express gender without suffering discrimination and persecution and this should include the right to legally gather at female events for female born lesbians. They argue that lesbians and transgender persons have differing needs and therefore it is a priority that the two genders be legally recognised as different. Section 21 Small Business Exception Professor Margaret Thornton of La Trobe University142 submits that restricting complaints of discrimination to workplaces of more than five people significantly erodes the force of the EOA. 139 . Promoting Equality: Homelessness and Discrimination [2002] Deakin Law Review Submission 352 141 Submission 32 142 Submission 361 140 36 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report Section 21 provides that an employer may discriminate in determining who should be offered employment if the employer employs no more than the equivalent of five people on a full-time basis (being 30 hours a week). Relatives of the employer are not included amongst the five. Professor Thornton argues that small, entrepreneurial concerns should not be treated as ‘private’, as though they were part of the domestic sphere. She argues that, just as employers are not free to pay whatever wages they wish, or to ignore occupational health and safety legislation or other mandatory requirements, they should not be permitted to treat the non-discrimination principle as optional. No comparable exception is found in any other Australian federal, State or Territory legislation. Professor Thornton recommends that s.21 be repealed. Sections 16-28 Employment Exceptions Ms Louisa Dickinson, on behalf of Job Watch143 recommends that s.16, which allows an employer to lawfully discriminate when employing people to provide domestic or personal services in their home, should be repealed. Job Watch contend that while there is a social expectation that, as a matter of general principle, everyone should be free to express themselves and live comfortably in their homes, this should not create an unfettered right to unfairly discriminate against potential domestic workers. Regardless of whether paid work is performed in a large organisation, a small business or in the domestic sphere, it constitutes employment and must be subject to a level of regulation if the paramountcy of human rights is to be respected. Job Watch recommends that s.17 be repealed. That section allows employers to limit employment to one sex if there is a genuine occupational requirement, such as a necessary physical characteristic particular to people of one sex, other than strength or stamina; or the preservation of decency or privacy. They also recommend that the measures contained within this exception should be incorporated into a new ‘inherent requirements’ exception (see Proposal for Inherent Requirements Exception below). They argue that such an exception is based on balancing equality of opportunity with the attainment of logical and practical outcomes which are essentially grounded in the public interest. Job Watch recommends that s.18 be repealed. That section allows an employer to discriminate on the basis 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. Job Watch contends that this exception does not operate in a manner which is consistent with the objectives of the Act. Rather than eliminating discrimination or expanding opportunities, similarly to the domestic service exception, it appears to allow for a ‘protected’ area where discrimination is tolerated and tolerable. In most cases, a person’s political beliefs, whether expressed through their vote, political party membership or stated opinions, do not preclude them from performing work in accordance with their specific contract of employment. Job Watch recommends the repeal of s.19, which allows an employer to limit the offering of employment to people with a particular attribute in relation to the provision of services for the promotion of the welfare or advancement of people with the same attribute, if those services can be provided most effectively by people with that attribute. They allow that in some cases, it may be appropriate for welfare services to be provided by people with a particular attribute if they could do so significantly more effectively than those without the attribute. An example of this would be multi-lingual social workers engaged in a service run for the benefit of speakers of a language other than English. However they argue that there is also scope for this exception to 143 Submission 398 37 Scrutiny of Acts and Regulations Committee exclude particular groups from access to certain employment which may be characterised as being for the advancement of people with a particular attribute. Job Watch recommends that s.20, which allows an employer to limit the offering of employment, in a business carried on by him or her, to people who are his or her relatives, be retained. Their view is that while this exception is not in accordance with the objects of the Act, there is some social justification for its retention. From an economic and social perspective, a family should be at liberty to establish a business in which some or all of its members are employed. This does not have the effect of discriminating against any particular group and enables the family unit to work cooperatively to earn income. Job Watch recommends the repeal of s.21. That provision exempts businesses that employ no more than the equivalent of 5 people (other than family or relatives) on a full time basis (30 hours a week or more) from anti-discrimination provisions when recruiting staff. They argue that while recruitment and selection processes should afford equality of opportunity to prospective candidates, but this exception operates to allow, rather than eliminate, discrimination based on nothing more than the size of the entity. In a similar way to the domestic services exception, this provision also artificially restricts the application of regulation to a particular form of paid employment. The exception undermines the operation of the Act by suggesting that the Act itself otherwise imposes an onerous burden that small businesses are either not capable of complying with, or with which they could not possibly be expected to comply. Job Watch recommends retaining the exception in s.22 which allows an employer to discriminate against another person on the basis of impairment if the person with a disability would require special services and facilities in order to perform the genuine and reasonable requirements of the employment, and it is not reasonable in the circumstances for those special services and facilities to be provided, or the person could not adequately perform the genuine and reasonable requirements of the employment even after provision of special services and facilities. Job Watch considers that there are strong benefits and policy arguments to support the retention of this provision. While it provides an exception to employers, it also implicitly recognises both the importance of providing all people with an equal opportunity to obtain gainful employment and the intrinsic value of work in people’s lives. Job Watch recommends the reformulation of s.23 which currently allows an employer to set reasonable terms or requirements of employment or make reasonable variations to those terms to take into account any of the following: • The reasonable and genuine requirements of the employment; • Any special limitations that a person’s impairment or physical features imposes on his or her capacity to undertake the employment; • Any special services or facilities that are required to enable him or her to undertake the employment or to facilitate the conduct of the employment. Job Watch contends that while this section operates to limit the scope of the Act it is apparent that there are circumstances where it is necessary, just and reasonable so as to ensure the fair and practical application of the Act. Job Watch recommends the repeal of s.24. They argue that this section allows an employer to set and enforce standards of dress, appearance and behaviour of employees that are reasonable having regard to the nature and circumstances of the employment. They argue that this exception does not pertain to any protected attribute and does not fit within the concept of discrimination contained within the Act or deal in any way with matters that are relevant to its 38 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report operation. Rather, it merely confirms an employer’s common law right to set reasonable terms and conditions of employment. Job Watch recommends that s.25, which gives employers the right to discriminate against employees or prospective employees if the employment involves the care, instruction or supervision of children, be repealed. Job Watch contends that this exception is at odds with the objects of the Act and effectively undermines its integrity and effectiveness by inferring that oblique criteria based on non-specific attributes are an acceptable basis for discrimination. In their view the provision is illogical and offensive to the principles of the Act as it implies an endorsement of ill-founded assumptions about the suitability of persons with certain attributes to work with children. Section 25 was also identified by the Equal Opportunity Commission Victoria (‘EOC’) which argues that the section is largely irrelevant in relation to employment situations involving the care of children. If an employee working with children was considered to pose a threat to the children he/she worked with, and action was taken to address the situation, this could not amount to discrimination as there is no link to an identifiable attribute. Job Watch recommends the repeal of s.26. That exception allows for Judges of the Supreme and County Courts, Magistrates and Bail Justices to be discriminated against on the basis of age by allowing for a compulsory retirement age. Rather than being founded on an objectively defensible ground, this exception gives rise to an inference that judicial officers somehow lose capacity upon reaching a certain age. They submit that such an inference is without foundation as age is an arbitrary measure, which does not bear any necessary relationship with a person’s capacity to fill most roles. Job Watch recommends the repeal of s.27, which makes it lawful for employers to pay a youth wage. They argue that from a policy and justice perspective, work of equal value should be remunerated as such. The payment of different rates to employees on the basis of age is discriminatory treatment that should be eliminated, rather than sanctioned by government policy or supposedly beneficial legislation such as the Act. They suggest that an appropriate alternative to youth wages would be a competency-based wage system which addresses any arguments that young employees work at a reduced level of skill or competency. Section 27 was also identified by the EOC as it allows discriminatory rates of pay to employees under the age of 21. It is argued that it should be amended to provide that it ceases to operate within a reasonable time after that amendment to the Act comes into effect and should operate to allow an employer to pay a trainee wage irrespective of age. Job Watch recommends the repeal of s.27A. That section allows an employer to take into account the age of the employee and any eligibility of the employee to receive a retirement benefit from a superannuation fund when deciding the terms on which to offer an employee an incentive to resign or retire. Job Watch contends that the exception is inconsistent with the objects of the Act and serves to entrench rather than eliminate the increasingly reported problem of age discrimination. It may also be used as a substitute for proper management processes to deal with performance problems in the workplace and mitigates against broader social policy attempts to encourage later retirement. Job Watch recommends that s.27B be repealed. That section allows an employer to discriminate against potential and existing employees on the basis of gender identity if (a) the person does not give the employer adequate notice of the person’s gender identity; or (b) the person gives the employer adequate notice of the person’s gender identity but it is unreasonable in the 39 Scrutiny of Acts and Regulations Committee circumstances for the employer not to discriminate against the person. Job Watch contends that there is no sound or defensible justification for this exception. Rather, it clearly offends against the objectives of the Act by authorising discrimination against a group. They argue that there are very few circumstances in which an employer could establish that it would be ‘unreasonable in the circumstances’ for them not to discriminate against a person on the ground of gender identity, as there do not appear to be many occupations in which any particular sex or gender identity is an inherent requirement. Job Watch recommends that s.28, which allows the Tribunal to grant an employer a temporary exemption from the operation of the Act to enable them to limit the offering of employment to people of one sex if the employees will be required to live in communal accommodation provided by the employer that is not suitable for occupation by people of both sexes, should be retained. The LIV144 submits that s.27B of the EOA should be repealed. The LIV notes that since its enactment, s.27B has not been referred to in any case law. An employer has never used it as a defence since its introduction. They submit that this section unnecessarily discriminates against transgender people and should not exist for the purpose of protecting businesses from the discriminatory attitudes of customers. Section 38 Educational Institutions for Particular Groups Exception Professor Margaret Thornton of La Trobe University145 argues that approximately 50% of Victorian children attend non-government schools and there are very few single-sex public schools, and no race-based or ‘religious public’ schools, the provision has the effect of immunising private schools. She remarks that such schools are now the recipients of significant public funding and contends that as a matter of public policy, it is inappropriate that any educational institution that is the beneficiary of public funding should be permitted to discriminate on any of the legislatively proscribed grounds. Proof of the existence of nondiscriminatory policies should be a precondition to the receipt of public funds. Sections 39, 41 and 76 of the EOA already deal with the particularities of impairment, religion and age. The inclusion of s.38 is over-inclusive and unnecessary. Professor Thornton recommends that s.38 be repealed. Section 43 Insurance Exception The DDLS146 argues that s.43(1)(a), which allows an insurer to discriminate against a person in some circumstances when providing insurance, is capable of producing unfair outcomes. They argue that this exception permits the insurer to discriminate against people reasonably considered a bad risk by either refusing to issue a policy or by issuing a policy on discriminatory terms. Section 51 Discrimination by Refusing to Allow Alterations The submission from Mr Bernd Bartl on behalf of the Disability Support and Housing Alliance147 argues that s.51 is inadequate because it does not require the owner of accommodation to make the necessary alternations to render the accommodation accessible. 144 145 146 147 40 Submission 412 Submission 361 Submission 405 Submission 404 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report The Alliance argues that such an obligation would provide a real incentive for inexpensive provision to be made for accessibility from the beginning of construction and this would have many broad benefits, social, economic and ecological, beyond the benefits to people with a disability. They also argue that housing should not be “relegated to the private realm” and thus considered outside the reach of human rights law. They argue that “houses may be a private asset but they are a social good”. They define a spectrum across which accessibility can be provided: from ‘visitability’ (at the lowest level) through ‘adaptability’ and up to full ‘accessibility’. The recommend that all new housing and major alternations to housing should be required, via the importation of Australian Standard 1428 Part 2 into the Building Regulations 1994, to be ‘visitable’ and ‘adaptable’. Sections 66-68 Competitive Sporting Activities Exception Mr Andrew Taylor,148 the father to one of the complainants in the sex discrimination case of Taylor, Cula-Reid & Stanyer v Moorabbin Saints Junior Football League and Football Victoria Ltd149 questions the purpose of the s.66(1) exemption from sex discrimination in the case of competitive sporting activities. He asks whether its purpose was to aid those who have an advantage in competitive sport. He makes two points: • to remove boys from girls sporting competitions because they are ‘too strong’ for girls to compete with is neither equal, nor opposite to removing girls from boys sporting competitions because they are ‘too weak’ to compete. • excluding a player from a sport because they have a disadvantage defies the very logic of what sport is about. Mr Taylor recommends either repeal of the section or its amendment to read: A person may exclude people of one sex or with a gender identity from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant, where those people have an advantage. VALS150 submits that the distinction in s.66(3) between people over and under the age of 12 is arbitrary and may lead to discrimination against people over the age of 12. They submit that the section should be amended to remove the distinction. President of VCAT, Justice Stuart Morris151 submits his decision of Taylor v Moorabbin Saints Junior Football League and Football Victoria Ltd152 for consideration by the Committee. The Committee notes that the case centred on the meaning of the exemption in s.66 which provides: 148 149 150 151 152 Submission 340 [2004] VCAT 158 Submission 352 Submission 22 [2004] VCAT 158 41 Scrutiny of Acts and Regulations Committee (1) A person may exclude people of one sex or with a gender identity from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant. (2) A person may restrict participation in a competitive sporting activity(a) to people who can effectively compete; (b) to people of a specified age or age group; (c) to people with a general or particular impairment. (3) Sub-section (1) does not apply to a sporting activity for children under the age of 12 years. In his judgment, Morris J closely examined this exemption and commented: The context of the words used in s.66(1) is to create an exception from the general rule so as to allow people of one sex to be excluded from a competitive sporting activity. This points to the legislature being fundamentally concerned with differences between the sexes in strength, stamina or physique, and not just the nature of the sport as such. And because this is the purpose of the sub-section, it follows that it is the relative strength, stamina or physique of female and male competitors which should be relevant to participation in the competitive sporting activity. It does not matter that the word relative is not found in the subsection. Further, he commented: For my part, I am persuaded that a purpose of the exception in s.66(1) of the Act is to ensure that females are not disadvantaged in competitions which rely on strength, stamina or physique. But I am not so sure that this purpose was originally the only purpose of the exception, either in the Commonwealth Act or in the Victorian Act. A closer analysis of the history of these Acts may shed light on the subject. In my opinion, the word relevant in s.66(1) relates to, or bears upon, the strength, stamina or physique of competitors of the sex to be excluded, compared with the sex to be included, in the competitive sporting activity in question. Thus it is necessary to have regard to the relative differences between the sexes. Further, for the relative differences between the sexes to be relevant, these differences must be significant, in the sense that they have an appreciable effect on the ability to compete. To have been subjected to interpretation so many times since its introduction, this provision requires amendment, to make clear its intention and meaning. The submission from Dr Michael Burke153 is based on his experience as coach of a girls’ basketball team. The author relies on two decisions to demonstrate that the anatomical exception clause under s.66(1) results in the potential for discriminatory outcomes and contends that the anatomical exception clause reinforces the historically produced discourse of the physical superiority of men and the inferiority of women. Dr Burke argues that while the intent of the EOA was to avoid sexist attitudes based on historical stereotypes about the different capabilities and interests of the two genders, the anatomical exception clause forces the judging tribunals and courts to take into account the average physiological and anatomical capabilities of each gender, and as such averages reinforce, rather than challenge, the stereotypes. The eccentric female is offered no protection by the Act – a female’s individual capabilities are not to be considered as the basis for inclusion into male sports. 153 42 Submission 1 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report Dr Burke refers to two decisions of the Anti-Discrimination Tribunal: • In Robertson v Australian Ice hockey Federation154, a fifteen year-old girl was banned from playing the sport by the controlling bodies, which had implemented rules banning the involvement of females over the age of twelve in mixed ice-hockey competitions on the basis that full contact ice-hockey was considered too dangerous for girls. The girl appealed to the Anti-Discrimination Tribunal, which held that she could not be precluded from playing in a non-contact position, such as goal-keeper. The author contends that this decision failed to take into account the eccentricities of both large females, and small males in deciding that mismatches are gender based, rather than based on anatomical and physiological characteristics. • In South v Royal Victorian Bowls Association155, South, a nineteen year-old full-time university student, lodged a complaint with the EOC on the basis that the Royal Victorian Bowls Association (‘RVBA’) had discriminated against her on the basis of sex. The RVBA had denied South affiliation on the basis of clause 3 of their constitution which stated that an affiliated (and therefore eligible) player was “… a male member of any affiliated club.” The RVBA was unsuccessful in its attempt to rely on s.66(1) as it was unable to show that strength, stamina and physique gave one gender in particular a competitive advantage over the other in the sport. Dr Burke argues that the effect of the legislation has been to give male sporting organisations the legal power to prevent elite female athletes from participating in their competitions. The only protection afforded to athletes by equal opportunity legislation as it is currently worded, is to male competitors from having to play against elite female athletes. Dr Burke considers that more philosophically sound equal opportunity legislation may commence with the same premise as the biological exclusion clauses; that is there are sports where the average male will have a biological advantage over the average female. This establishes a hierarchy of competitions in those sports. This hierarchy could then be adapted in the same way as junior sporting competitions adapt to age group hierarchies, and combat sports adapt to weight hierarchies. An eccentrically talented under-age athlete may play in a higher age group than he/she is eligible to play in, but an older player is not permitted to play in a younger age group. A fighter may fight above his/her weight category, but may not fight below it. An eccentric (or normal) female may play in the men’s competition, but a male may not play in the women’s competition. Section 69 Exception for Things Done With Statutory Authority The EOC156 made a lengthy and considered submission to the Committee. This and other submissions concerning s.69 are examined in the following Chapter where the Committee examines in more detail the statutory compliance provision in Victoria along with other Australian jurisdictions.157 154 155 156 157 [1998] VADT 112 [2001] VADT 207 Submission 377 See Chapter Four 43 Scrutiny of Acts and Regulations Committee Section 70 Exception for things done to comply with an Order of Court or Tribunal Job Watch158 recommends that s.70 be retained. That section allows a person to discriminate if the discrimination is necessary to comply with an order of the Tribunal or an order of any other tribunal or court. Job Watch contends that it is in the interests of the efficient administration of justice that this section should be retained. Sections 75-77 Religious Bodies Exception Kendall Lovett and Mannie De Saxe, on behalf of Lesbian and Gay Solidarity (Melbourne)159 submit that, pursuant to ss.75 and 77 of the EOA, religious bodies are permitted to discriminate in appointments of those selected to perform religious duties in their institutions. They argue that this tends to sanction homophobia in welfare, educational and aged care organisations as well as in its hostels and hospitals. Job Watch160 recommends that ss.75 and 76 be repealed. These provisions allow religious bodies to discriminate on the basis of any attribute when employing people, provided that the discrimination is necessary to conform with religious beliefs or sensitivities, and extend this exception to religious schools run according to religious beliefs and principles but not run by religious bodies. They argue that this exception raises the potential for conflict between different but equally important human rights, namely the right to freely practice religious beliefs and the right to equal opportunity in employment. Job Watch supports the value of the exception in allowing religious freedom. However, this support is on the proviso that it is applied narrowly. VLA161 submits that ss.75 and 76, taken together, authorise a religious institution to “offend the principle of equality by pointing to, or hiding behind, the ‘sensitivities’ of any (unreasonable) people of the religion”. They are concerned that this has wide-reaching implications for employment of teachers in, and access of students to, religious schools. They quote, with approval, from the judgment in Griffin v The Catholic Education Office162 on this point. The EOC of Victoria163 raises similar concerns in relation to exceptions applicable to genuine religious beliefs and discrimination within religious schools in both employment and education. The Young Lawyers’ Section of the LIV164 supports and endorses the EOC’s recommendation that ss.76 and 77 of the EOA should be narrowed to incorporate an objective test and its opinion that the rights of staff and students in private schools should be consistent with those of staff and students attending public schools. The Section also recommends consideration of equivalent Tasmanian anti-discrimination legislation which provides a narrower basis for the use of exemptions with respect to religious institutions, and a review of ss.75-77 of the EOA in light of the resultant unjustified discrimination against staff and students of religious schools. Alternatively, due to the operation of s.38 of the EOA, the Young Lawyers’ Section queries whether ss.76 and 77 are necessary. 158 159 160 161 162 163 164 44 Submission 398 Submission 262 Submission 398 Submission 394 (1998) EOC 92-928 Submission 377 Submission 412 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report The Workplace Relations Section of the LIV165 recommends that the exemptions from discrimination laws in ss.75-77 of the EOA should not be deleted. They submit that the exemptions from discrimination laws that religious schools enjoy at present relate to normative values. They submit that it is impossible to ignore the practical ramifications of the deletion of any such exemptions. Their view is that obtaining exemptions from the Victorian Civil and Administrative Tribunal in respect of the requirements of the EOA is not an easy and inexpensive procedure. Parties applying for exemptions participate in formal hearings, the proceedings are open to the public and usually necessitate the applicants being legally represented. They are concerned that the possible proposed exemption hearings would require additional resources from VCAT and religious schools. They submit that a review of the exemptions in ss.75-77 of the EOA may be appropriate so as to ensure that the exemptions are not being abused in circumstances where the alleged offender/offenders are “hiding” behind the religious exemption/belief. If such a review indicates that there is such abuse, consideration may then need to be given to ways to curb any such abuse. However, the submission states that the Workplace Relations Section of the Law Institute is unable to state a view on this until any such abuses are identified. Section 78 Private Clubs Exception Australian Women Lawyers166 (‘AWL’) argues that while the EOA outlaws discrimination in the ‘public life’ area of ‘clubs’ in Part 3, Division 6 of the Act, the definition of what is a club pursuant to s.4 is very limited and does not reflect the public life nature of clubs and associations. AWL contends that clubs and associations formed for a common purpose are not just ‘private’ groupings of individuals; they are intrinsically creatures of ‘public’ life. As such, its preliminary submission is that the definition of a ‘club’ for the purposes of the EOA should reflect the proposition that all associations of persons formed to further a common objective, which benefits the public or a section of the public (whether incorporated or unincorporated) are ‘public life’ entities. For that reason, AWL supports a wider definition of ‘club’ similar to that contained in the Federal Disability Discrimination Act. AWL submits that the definition of club in s.4 of the EOA should look something like: (a) any association of persons incorporated or registered as corporations within Australia167; and (b) any association (whether incorporated or unincorporated) of persons associated together for social, literary, cultural, political, commercial, sporting, athletic or any other lawful purposes. The submission raises questions about the appropriateness of exemptions/exceptions in the clubs area. It is argued that the only exceptions that have a sound public policy basis in the clubs area are ‘special measures’ exceptions, which are designed to assist groups who have been disadvantaged in society to achieve equality. These exceptions are consistent with antidiscrimination legislation objectives. 165 166 167 Submission 412 Submission 406 AWL remarks that: the definition may also incorporate specific credit unions, building and friendly societies, and industrial associations, as referred to in clause 53 of the Draft Bill attached as Appendix A to the New South Wales Law Reform Commission’s Report 92 (1999) - Review of the Anti-Discrimination Act 1977 (NSW) 45 Scrutiny of Acts and Regulations Committee In addition, AWL notes that the EOA currently contains two particular ‘non-special’ measures exceptions in the clubs area that are antithetical to the legislation’s objectives and which, it its submission, do not have a sound public policy basis. The exceptions are the blanket exception from the EOA for private clubs (s.78) and the ‘single sex facilities’ exception (s.63) where discrimination is permitted if the equal or simultaneous use or enjoyment of benefits by both sexes is not practicable. AWL contends that if a club genuinely needs to limit its membership for legitimate reasons (that will breach the proscribed grounds in the EOA), the better legislative vehicle for allowing this to occur is through the ‘special measures’ exemption in s.61 or failing that, through the Tribunal exemption process in s.83. Therefore they argue that s.78 of the EOA should be repealed. AWL also submits that s.63 of the EOA should be repealed. They contend that the single sex facilities exemption in the clubs area reinforces the disparate treatment of men and women in circumstances where the ‘legitimate situation’ warranting the differential treatment may simply be a product of historical stereotyping or cost aversion by the respondent organisation (which may be deliberate to avoid female membership). The same section was raised in the submission of the EOC of Victoria168 where it is argued that the section should be abolished, where it is also agreed with the LIV’s submission to the 1993 SARC review that “… Private institutional discrimination is just as insidious and injurious as publicly institutionalised discrimination.” Section 82 Welfare measures and special needs exception The Office of the Public Advocate169 submits that the effectiveness of anti-discrimination law is limited by operation of s.82 in relation to specialist services. They argue that the section should be amended to ensure that it does not legitimise discrimination between classes of people on the basis of disability. They give an example of a residential service provider who provides accommodation for people who have an intellectual disability. Some of the people in the residence also have autism. If the residential service provider were to treat the person with autism less favourably than those with an intellectual disability the person with autism would be unable to bring an action for discrimination against the service provider because of s.82. They refer to the case of Colyer v State of Victoria.170 They argue that s.82 should be amended to ensure that welfare measures and special needs are not exempt if they do not benefit the people for whom they are provided or constructed. The subjective intention of the designer should be replaced by an objective assessment of the outcomes for the relevant group. The EOC of Victoria171 argues s.82 should be retained. However, the Commission’s experience has been that s.82 can operate to keep beneficial government programs and services outside the reach of the EOA, particularly in respect of essential services targeted at groups with particular disabilities. 168 169 170 171 46 Submission 377 Submission 161 [1998] 3 VR 759 Submission 377 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report The EOC suggests that significant areas of government action in the delivery of programs aimed at addressing need for individuals with particular attributes should be subject to a tighter formulation of the welfare/special measures exemption under s.82. The EOC also contends that insofar as s.82 exempts government services, benefits and initiatives that are essentially designed to operate as welfare or special needs measures, allowing this exception to continue to operate in its current formulation creates the potential for inconsistency between the standard that the EOC suggests should be applied to other Victorian legislation, and the standard applied by the EOA itself to services and benefits provided by government. Put simply, the removal of s.69 would not address all areas of government action without appropriate consideration being given to the terms of s.82 because it too exempts significant areas of government activity. The Police Association172 argues that dealing with welfare measures and special needs is consistent with the objects of the EOA. Section 83 Exemptions by the Tribunal In discussions with the Committee Chair, representatives of the Victorian Trades Hall Council raised concerns about the manner in which exemptions may be granted by the Tribunal in the absence of interested parties.173 ADI Limited, a private defence contractor, and a number of its related bodies corporate have applied in several states for an exemption from the race discrimination provisions of the relevant state anti-discrimination legislation. They have argued it is necessary to obtain these exemptions in order to comply with contractual obligations under US laws. ADI sought permission to discriminate against workers in relation to projects involving US defence technology and information by: • requiring current and potential workers to provide details of their birth, nationality or national origin; • identifying (by means of a badge and/or inclusion on a list) those workers who are permitted by US law to work on such projects; • restricting access to defence and technology information that is regulated by US law, based on nationality and national origin; and • rejecting applications for employment, and transferring current employees from these projects based on nationality and national origin. The application before VCAT proceeded ex parte and was granted for the maximum period of three years. Boeing Australia Holdings Pty Limited and some of its related bodies corporate have applied for and been granted similar exemptions in both Victoria and Queensland. It has been argued that the scope and subject matter of these applications raises serious concerns about the fragility of the protection against discrimination afforded by anti-discrimination legislation. The manner in which the applications are dealt with, at least in NSW and Victoria, demonstrate a concerning lack of transparency in the decision-making process.174 172 173 174 Submission 56 Field notes of meeting 12 May 2004 with Victorian Trades Hall Council Public Interest Advocacy Centre (NSW), newsletter 47 Scrutiny of Acts and Regulations Committee Section 85 Sexual Harassment A confidential submission175 raises concerns about the difficulties experienced in making a complaint of sexual harassment. The key issue raised in the submission is the considerable financial burden that must be carried by complainants. It is argued that there is no incentive to lodge a complaint with the EOC (and through to VCAT) if complainants perceive that there is limited authority at EOC and the potential to incur significant financial costs that may never be recovered. Proposal for ‘Inherent Requirements’ exception Job Watch176 suggests an alternative to the current exemptions contained in the Act would be the repeal of many of them in their current form and the inclusion of a new provision: • A statement that discrimination in employment is prohibited, unless a person is unable to perform the inherent requirements of the particular employment; • A list of the factors to be considered when determining whether a particular requirement is ‘inherent’ to a position. This list should include: o Whether a particular task is genuinely essential to the position; o The skill set and qualifications required to do the job; o Whether the job could be performed with modifications being made to accommodate its performance by a person with an impairment; o Whether public standards of decency require that the position be filled by a person of a particular sex; o Whether reasons of artistic credibility require the position to be filled by someone with a particular attribute; o Whether it is a genuine occupational requirement that a person be of a particular sex, such as necessary physical characteristics particular to people of one sex, other than strength or stamina; or the preservation of decency or privacy; for example where employment involves fitting clothing, doing body searches or entering lavatories or other areas where people are in a state of undress; o Whether the most effective delivery of welfare services to a particular group requires that the job be performed by a person with a specific attribute; o Whether adherence and commitment to the particular beliefs and tenets of a religion are required in order to carry out the fundamental requirements of a position with a religious body or religious school. General Comments The DDLS177 argues that their practical experience shows that the needs of the community are given more weight than the needs of people with disabilities. Given that a majority of cases are decided contrary to the interests of people with disabilities, DDLS argues that there is a clear 175 176 177 48 Submission 46 Submission 398 Submission 405 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report mandate to re-examine provisions of the EOA intended to act as an effective barrier to continual discrimination against one of the most marginalised sectors of our society. For example, DDLS contends that ‘unjustifiable hardship’ is a better test because it shifts the burden of proof onto the respondent. It also emphasises to all stakeholders that the rights of people with disabilities to employment, education, goods and services should normally be accommodated with appropriate facilities. In the light of the enormous resources often available to public and private stakeholders, such a normative approach more exactly corresponds to the ideal of a more compassionate society. Mr Brian Fitzgerald178 submits that the EOA has been used to deliberately discriminate against men and boys and may have been designed to do so. He makes a series of recommendations for legislative amendments that would reduce discrimination against men and boys including repeal of the EOA. The submissions of Kate Clarke and Karen Gurney of the Australian WOMAN Network179 argue that the EOA itself currently affords no protection to people in transition between phenotypic sexes from the extreme forms of discrimination, vilification or harassment. They submit that a further shortcoming in the scope of the EOA, is that it does not provide protection from either harassment or vilification for all of the attributes otherwise protected from discrimination. 178 179 Submission 220 Submission 211 49 Scrutiny of Acts and Regulations Committee 50 Chapter Four Discrimination in compliance with legislation The Committee has examined Federal, State and Territory legislation to identify other provisions comparable to the Victorian s.69 defence of statutory compliance. Background In the Discussion Paper the Committee outlined exemptions and exceptions that can apply in certain circumstances under the EOA. Where they apply, discrimination is not unlawful under the Act; that is there is an excuse for the discrimination. Such exemptions and exceptions can be positive and beneficial in assisting the promotion and protection of equal opportunity. It has been argued that the reliance on exemptions and exceptions is based on the provisions of the statutory scheme which recognises that, in certain circumstances, a balancing of competing interests may need to occur and the outcome of an act of discrimination (otherwise unlawful under the legislation) may be avoided (by making it lawful).180 Therefore exceptions allow a person to discriminate in limited circumstances. The Committee also described how all discrimination laws recognise the general principle that there is some legislation which may conflict with the content of anti-discrimination laws and principles.181 As discussed in the previous Chapter, various submissions to the Committee raise issues with the operation of s.69 of the EOA that provides discrimination which is necessary to comply with or is authorised by a legislative provision is not unlawful under the EOA. Section 69 states— Things done with statutory authority (1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of– (a) an Act, other than this Act; (b) an enactment, other than an enactment under this Act. (2) For the purposes of sub-section (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination. An enactment referred to in the section includes a rule, regulation, by-law, local law, order, Order in Council proclamation or other instrument of a legislative character.182 In order for the provision to come into operation it is not necessary that the provision in another Act or 180 181 182 Ronalds and Pepper op cit at p.153 Quoting Ronalds, C., Discrimination Law and Practice, Federation Press, Sydney 1998, at p.146 CCH Australian & New Zealand Equal Opportunity Law & Practice 74-940 51 Scrutiny of Acts and Regulations Committee enactment refer to discrimination. It must however authorise or necessitate the relevant conduct that would otherwise constitute discrimination. In the decision of Public Transport Commission v Waters,183 the High Court considered a similar provision in the 1984 Equal Opportunity Act.184 Three of the judges considered that the section should be construed narrowly so as to refer only to something which is done in order to comply with a specific obligation directly imposed by an actual provision of another Act. In Heinz Company Australia Ltd v Turner185 the Supreme Court of Victoria considered the extent of the requirement, ‘necessary to comply’. The Court decided that it was lawful for an employer to refuse an employee’s request to work overtime because it would exacerbate a work related injury. The refusal discriminated against the employee on the basis of his impairment but was necessary in order to comply with the Occupational Health and Safety Act. A managerial policy or directive made under an Act does not come within the exception as it has not been gazetted or introduced into parliament.186 Federal Discrimination Law Racial Discrimination Act 1975 The Racial Discrimination Act contains very limited exceptions to its operation. The exception for special measures relates to the definition of discrimination and also creates a positive duty to ensure that minority racial groups are guaranteed the enjoyment of human rights and fundamental freedoms. Sex Discrimination Act 1984 Section 40(2) of the Sex Discrimination Act (‘SDA’) exempts certain marital relationships and their connection to the payment of pensions and benefits. It also exempts marital status preference in income tax arrangements and sales tax and gift duty benefits.187 The SDA also provides an exemption for anything done by a person in compliance with a provision of a law of the Commonwealth, State or Territory, being a provision that is included for the purpose of a special measure for the purposes of achieving equality between men and women; people of different marital status and women who are, or potentially may be, pregnant.188 Disability Discrimination Act 1992 The Disability Discrimination Act (‘DDA’) under s.47 provides an exception for acts done with statutory authority. With the introduction of the DDA a statutory defence operated for three years after which time the defence operated only in relation to Acts and Regulations prescribed under the DDA. The three year period ended on 1 March 1996. 183 184 185 186 187 188 52 (1991) 173 CLR 349 Equal Opportunity Act 1984 (Vic), s.39(e) (1999) EOC 92-964 X v Western Australia (1997) EOC 92-878 Ronalds and Pepper, op.cit. at p.163 See ss.40(6) and 7D Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report The prescribed laws are listed in the Disability Discrimination Regulations 1996. There are only eight prescribed laws including the NSW Mental Health Act 1990 and Mental Health Regulations 1990; certain provisions of the SA Firearms Act 1977 and Motor Vehicles Act 1959. Only NSW and SA have sought the prescribing of legislation to attract immunity under s.47 of the DDA. The Productivity Commission in its report of the review of the DDA189 considers that prescribing laws provides a useful mechanism for identifying laws that government considers should take priority over the DDA. HREOC and the South Australian Government made submissions to the inquiry expressing similar views. It is noted that the mechanism allows for parliamentary scrutiny as well as consultation across government.190 HREOC also submitted to the DDA inquiry that the prescribed laws should be reviewed after five years to ensure that the reasons for the prescription of the law remain current and appropriate. The Productivity Commission accepted this view and made such a recommendation.191 In McBride v Victoria (No 1),192 McInnis FM considered issues surrounding the return to work, in 1994, of an employee with a disability which resulted from a workplace injury. While finding that there was no unlawful discrimination arising out of the allegations relating to the applicant's return to work, he commented that a narrow interpretation of the expression ‘in direct compliance’ as it appears in ss.47(2) and (3) should be taken. On this view, it is not sufficient for a respondent to show that it was acting generally in pursuance of its statutory authority. His Honour stated, in the context of the administration of a prison pursuant to the Corrections Act 1986 (Vic), at which the applicant was employed: The general nature of the conduct, whilst no doubt complying with the requirements of the Respondent to properly administer prisons as a public correctional enterprise and service agency within the Department of Justice of the State of Victoria, does not of itself provide a sufficient basis which would enable s.47(3) to apply to this application. I am mindful of the fact that the Corrections Act 1986 and regulations made thereunder place upon the Governor of the prison duties and obligations which relate to security and welfare and officers, subject to directions (see ss.19, 20 & 21). However compliance with that Statute, as indeed the Respondent is required to comply with the Accident Compensation Act 1985, does not of itself constitute direct compliance with a law which would otherwise attract the operation of s.47(2) and (3). To do so would be to ignore the reality of the general nature of the allegations in this matter though of course if part of the response in the matter includes compliance with the law then that would be relevant but not determinative of the merits of the application. Where part of the conduct of a Respondent may be said to be compliance with the law but forms only part of the overall conduct then it would be inappropriate to then excuse all of the conduct of the Respondent in a claim for unlawful discrimination.193 States and Territories The South Australian Act does not contain a general exemption for Acts and Regulations. 189 190 191 192 193 Productivity Commission Review of the Disability Discrimination Act 1992 Volume 1 April 2004 At p.355 At p.357 [2003] FMCA 285 As quoted in HREOC, Federal Discrimination Law, 2004 at p.141 53 Scrutiny of Acts and Regulations Committee Like Victoria, the New South Wales Act has a broad exemption for all statutory instruments for anything done by a person if it is necessary to comply with the other statute. The Queensland Act provides a broad exemption for anything done in compliance with a statute in force on 30 June 1992. The effect of such wording is that it exempts legislation enacted up to June 1992 but not after that date. The Tasmanian, Northern Territory and Australian Capital Territory Acts use a similar approach but have no date limitation.194 On the introduction of the Western Australian Act a general exemption existed but it expired after two years. The Committee wrote to each of the States and Territories seeking views on the existence and operation of the statutory compliance defence in the respective legislation of each jurisdiction. The Committee received responses from South Australia, New South Wales and the Australian Capital Territory. NEW SOUTH WALES The Anti-Discrimination Board of NSW wrote that the statutory authority exception applies to all forms of prohibited discrimination under the Anti-Discrimination Act 1977. The area where the defence is most frequently raised is in relation to disability discrimination complaints where a respondent may argue that their actions are necessary in order to comply with occupational health and safety legislation.195 The Board provided a summary document of case law of the Equal Opportunity Division of the Administrative Decisions Tribunal. The Board stated the case law emphasises the need for the action taken to be ‘necessary’ in order to comply with another Act and thereby attract the defence. In 1993, in a review of the NSW Act, the NSW Law Reform Commission recommended that a new Anti-Discrimination Act be enacted.196 The Board advised that recommendation 43 puts forward the repeal of section 54 for acts done under statutory authority with effect from 12 months after the commencement of the proposed new Act. The Law Reform Commission further recommended that all new legislation should be scrutinised to ensure compliance with the ADA. SOUTH AUSTRALIA The Commissioner for Equal Opportunity in South Australia advised the Committee197 that the SA Equal Opportunity Act does not contain an express statutory immunity defence, nor has this issue been raised as one for consideration as part of the government’s recent Framework Paper.198 194 195 196 197 198 54 Ronalds and Pepper op cit at p.163. Letter of 8 July 2004. Report 92: Review of the Anti-Discrimination Act 1977 (NSW) Letter of 10 June 2004 Review of South Australian Equal Opportunity Legislation: Framework Paper 3 February 2004 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report In the absence of such a provision, ordinary rules of statutory interpretation apply. This means that principles entrenched in the Act do not apply where more specific or recent provisions are contained in other legislative enactments. It is the Commissioner’s view that, for the most part, statutory provisions in SA which derogate from equal opportunity principles can be justified on alternative public policy grounds. The Commissioner wrote that it is therefore incumbent upon parliaments during the passage of legislation to assess the appropriateness and necessity of public policy principles which may be inconsistent with equal opportunity principles. Ultimately, it is the responsibility of Parliament to assess whether legislative proposals brought before it accurately reflect current community standards. Similarly, government agencies proposing new or amending legislation should turn their minds towards possible discriminatory effects that may result. AUSTRALIAN CAPITAL TERRITORY The Commissioner in the ACT advised the Committee that s.30 of the ACT Discrimination Act 1991 provides that the Act “does not make unlawful anything done necessarily for the purpose of complying with a requirement of (a) a Territory law; or (b) a determination or direction made under a Territory law.” The Act also provides power under subsection 30(2) for the Minister to declare that these paragraphs expire on a day stated, but no such declaration has been made. These provisions were meant to be transitional in nature, similar to the sunset clause in the Commonwealth Disability Discrimination Act 1992. The Commissioner is of the view that a declaration should be made by the Attorney-General, as paragraphs 30(1)(a) and (b) may be inconsistent with our Human Rights Act 2004, which became operational from 1 July 2004.199 200 VICTORIA Review of the 1984 EOA In 1993 the Committee (primarily constituted by different members) reported on its review of the 1984 EOA (‘1993 Report’).201 In its introduction the 1993 Report stated that the restrictions on the application of the Act within those areas to which it applies balance the aims of equal opportunity and elimination of discrimination against a number of competing considerations, such as the desire to infringe as little as possible on the ‘private’ sphere of activity. The Act creates exceptions in relation to specific areas as well as general exemptions. For example there is an exemption in relation to superannuation and an exception to the general prohibition on discrimination by employers which allows a person who employs no more than three people to discriminate if the employment is of a domestic or personal services nature, or connected with the employer’s home. In the examination of the exemption for acts done in compliance with another statute the 1993 report states: Section 39(e) of the Act exempts actions done by a person if it was necessary for the person to do it in order to comply with a provision of: (i) an order of the Board (ii) any other Act 199 200 201 Letter received by the Committee 28 May 2004 See discussion of the ACT Human Rights Act 2004 in Chapter 5 of this Progress Report Review of the Victorian Equal Opportunity Act 1984, Final Report, November 1993 55 Scrutiny of Acts and Regulations Committee (iii) an instrument made or approved by or under any other Act. In the High Court decision in Public Transport Commission v Waters202 three members including the Chief Justice argued that section 39(e) should be construed narrowly so as to refer only to something which is done in order to comply with a specific obligation directly imposed by an actual provision of another Act. At the time of the 1993 Report the Committee identified that overseas and in some Australian jurisdictions, anti-discrimination legislation overrides provision in other legislation unless those legislative provisions are specifically exempted. The 1993 Report provided the example of the Ontario Human Rights Code 1981 where a provision in an Act or regulation, enacted more than two years after the Code came into force, purports to require or authorise conduct that is in contravention of the Code’s non-discrimination principles, the Code: .. applies and prevails unless the Act or regulation specifically provides that it is to apply notwithstanding the Code.203 Other Canadian provinces have a similar provision that have been examined by the Committee for the purposes of this inquiry.204 The 1993 Report identified three main arguments in favour of repealing the section as follows: • When the 1984 Act was introduced, the intention was that section 39(e) should be read linked to section 16(2) which provides: The Board shall undertake a review of the provisions of Acts with a view to identifying provisions that discriminate or have the effect of discriminating against persons on the ground of status or by reason of the private life of persons. This section implies that if this review process revealed inconsistencies with the principles of the Equal Opportunity Act, those inconsistencies would be remedied. However, for the past nine years, no review has taken place, due to constraints on the Commissioner’s time and resources. The Committee is disturbed that this review remains undone. • It is highly unfair for government enactments to be shielded from anti-discrimination legislation when all relevant actions of private industry and private citizens are obliged to be in compliance. • Given that a fundamental aspect of anti-discrimination law is that discriminatory treatment is an issue of public importance rather than individual choice, by exempting legislation the Act’s public nature is seriously undermined. Options identified by the Committee in 1993 were to: • 202 203 204 56 retain the complete exemption; (1991) EOC 92-390 47(2) See also Human Rights Codes of: Manitoba s.58; Newfoundland and Labrador s.5; and Saskatchewan s.44. Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report • introduce a partial exemption, in which Acts or provisions may be specifically exempted by regulation; or • abolish the exemption altogether. The Committee at that time saw no reason for retaining the complete exemption. The intention was for it to operate while a thorough review of legislation was conducted to identify discriminating provisions. However the Committee stated that the case for abolishing the exemption altogether had weaknesses, and gave obvious examples, such as ‘agent of consent’ provisions, which should continue to exist. The 1993 Report stated that the Committee believed that the achievement of equal rights and opportunities was of sufficient importance to adopt a proactive approach. A law should only discriminate if a deliberate decision has been made that it should do so. The 1993 Report recommended that acts done in compliance with a statutory requirement should only be exempt if that is specifically provided for on a statutory basis. It was the committee’s view that a two year lead time should be given for such legislation to be identified and amended where necessary. The EOA 1995 The EOC of Victoria205 made a valuable and considered submission to the Inquiry. The Commission submits that the EOA and its predecessors have served Victoria well, yet the limitations of this legislation have become manifest over the years, as our understanding of discrimination has deepened, as our ability to identify systemic patterns has increased, and as we look to more sophisticated redress models. The EOC recommends that any review of discriminatory laws must seriously consider the extent to which an increasingly outdated EOA can effectively respond to discriminatory legislation and discriminatory exercises of administrative power, as well as the process by which such laws and actions come about. Even without the exemption of Victorian legislation from the operation of the EOA afforded by s.69, the current potential to address discrimination in the law is limited to the individual complaints system that underpins the EOA. This would indicate that, even were the effect of s.69 restricted or removed, there is still a need to consider greater regulatory powers under the EOA that provide redress for discrimination and address the obstacles presented by the individual complaint system for access to justice. The EOC is of the opinion that s.69 provides a blanket exemption to all legislation that has a discriminatory effect. There is no mechanism to restrict the operation of s.69, other than through the review mechanism contained in s.207. The EOC provides the following decisions as examples of relevant case law dealing with s.69 and its predecessors: • 205 206 In Waters v Public Transport Corporation,206 the High Court held by majority that the actions of the Transport Minister in removing conductors from trams pursuant to powers under the Transport Act 1993 were not exempted under the then equivalent Submission 377 Waters v Public Transport Corporation (1992) 173 CLR 349 57 Scrutiny of Acts and Regulations Committee to s.69 given that, on a narrow construction of the exception, the Transport Act did not specifically authorise the conduct of the respondent. The relevant provision under that Act allowed the Minister or Director-General to make specific or general directions with which the Public Transport Corporation then had to comply. 207 208 209 210 211 58 • In Bolton v State of Victoria,207 VCAT considered whether provisions of the Education State Schools Act and regulations authorised the exclusion of a student with an intellectual disability from a school and from participating in a particular program within the school. While it held that the scope of s.69 was broader than its predecessor, the Tribunal ultimately found that the relevant discretion to exclude students on the basis of age did not extend to excluding students in circumstances where that exclusion would also amount to impairment discrimination. Secondly, both the exclusion of the student, as well as the making of a complaint under the EOA, took place prior to the enactment of the provision upon which the respondent relied. • In Norman v Australian Red Cross Society,208 the Tribunal held that provisions of the Health Act and relevant regulations authorised the Red Cross’ refusal of donors who disclosed male to male sexual activity, on the basis of increased risk of HIV status. • In Lund James v Eyrie Community Equity Rental Housing Co-op,209 it was held that discriminatory conduct in respect of the provision of accommodation is not exempted under the EOA, even where it occurs under statutory authority. This is because the operation of s.69 is specifically limited in this area by s.58. This means that where discriminatory action in the area of provision of accommodation might be sanctioned by another statute, s.58 removes the protection given by s.69 for that discriminatory action. On that basis the Tribunal refused to dismiss the complaint, even though the complainant had been issued with a valid notice to vacate pursuant to the Residential Tenancies Act, on the ground of malicious damage to rented premises and endangering neighbours’ safety. • In Leighton v State of Victoria,210 the Tribunal dismissed a complaint of discrimination on the basis of religious belief by the Department of Education in light of its refusal to transport the complainant’s children to and from school, as the children did not attend a state school. The Tribunal agreed with the Department that it was only authorised under the Education Act to arrange bus services for children attending State schools. • In Finamore v QBE Mutual Worker’s Compensation,211 VCAT struck out a complaint of age based discrimination in the payment of worker’s compensation benefits that were suspended by the insurer upon the complainant, an injured worker, attaining 65. VCAT did so on the basis that the insurer validly refused to make further payments under the Accident Compensation Act which removed the entitlement to payments after retirement age. [1997] VADT 12 (31 December 1997) Complaint number 142 of 1998 unreported decision 27 November 1998 [1999] VCAT 617 (26 March 1999) [2000] VCAT 416 (29 January 2000) [2003] VCAT 1293 (19 September 2003) Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report While the EOC212 argues for greater devolution of responsibility to government departments and instrumentalities to achieve compliance with the EOA, it does not believe that an expectation that these bodies understand and appreciate the complexities of discrimination law is realistic, nor reasonable, given the way the EOA presently identifies some forms of discrimination. The EOC believes that the next challenge faced by legislators, policy makers and administrators will be to achieve enhanced understanding of what discrimination is and when it occurs. Clearer more simple definitions, sophisticated and comprehensive consultation processes, and the introduction of a fundamental human rights instrument, will be significant markers along the way to this achievement. The EOC also contends that the EOA itself sanctions discrimination in a number of circumstances – and believes that the range and nature of some exceptions detract from the educative power and image of the EOA. It argues that the objectives of the EOA would be better served by removing some of the broad exceptions that operate under the Act, and, where appropriate, substituting exceptions that are more specific and narrowly focussed on the activity sought to be exempted. The EOC has recommended in the past that the exception in s.69 be repealed within a reasonable time. However, were s.69 to be retained in some form, the EOC would argue that, at a minimum, the test for compliance by other statutes should be strictly one of necessity and not of convenience, as is currently the case. The EOC had also recommended that Departments and agencies responsible for Acts affected by the repeal of s.69 could make submissions to the Attorney-General for consideration as to whether they could continue to enjoy protection under the EOA. In some instances it may only be appropriate to exempt a particular Act or Regulation in relation to certain attributes. The EOC is of the opinion that in addition to the Committee’s inquiry, the development of Victoria’s 2004 Justice Statement signals a more global approach to the promotion of human rights and equality of opportunity, and greater support for human rights principles. It is critical that this timely policy platform be reflected in and enhanced by the introduction of reform to the EOA that improves the enjoyment of human rights amongst Victorians, and thereby provides better protection of those rights through the strengthening of existing laws and the provision of effective monitoring systems. It also recommends that in addition to the repeal of s.69 a provision should be introduced, subject to an ample lead-in period, that expressly lays down the primacy of the EOA notwithstanding the operation of other Victorian laws (that are not the subject of an exemption by the Minister or have not been exposed to the monitoring mechanisms proposed for the legislative enactment process). Job Watch213 submits that in order to be effective, anti-discrimination legislation should not be subordinate to any other legislation. Rather, there should be a presumption that equal opportunity principles prevail over any inconsistent statutory provision unless that legislation specifically provides to the contrary. They suggest that the Act should be amended to expressly include this presumption and to remove any doubt or confusion that would otherwise be generated on the part of those otherwise obliged to comply with possibly competing statutory obligations. Job Watch discusses three possible options to replace s.69: 212 213 Submission 377 Submission 398 59 Scrutiny of Acts and Regulations Committee • Prescription of laws that discriminate – as with the Disability Discrimination Act 1992 (Cth) the Act should prescribe which legislation must prevail over it, either by a Schedule to the Act or by regulations made under the Act; or • Declaration of laws that discriminate – the EOC of Victoria could have the power to declare that certain laws lead to discrimination or are inconsistent with the Act. Such a power could replace s.207, and could mirror the relevant parts of s.67(1) of the Commonwealth Act, which provide the HREOC with that power; or • Combination of the two – discrimination should not occur without explicit authorisation by Parliament. Parliament should not be presumed to intend to discriminate, and this should be reflected in the Act itself. This presumption should be even stronger where legislation is or has been enacted after the commencement of the Act itself. VLA214 submits that the general statutory authority exemption in s.69 works to undermine the efficacy of Victoria’s equal opportunity regime and should be repealed and replaced with a general prohibition on discrimination, in all contexts (applying either to laws passed after a certain date or to all laws, new and existing) that requires any particular exemptions to be justified on the basis of ‘persuasive and reviewable’ policy considerations. They refer to the power of the Tribunal to grant exemptions to the operation of the EOA in s.83 and propose that this power could be extended so that exemptions longer than the current three year limit could be granted. In relation to discrimination based on statutory authority a prisoner 215 argues that the exemption for discriminatory action provided by s.69 is too broad and, in practice, extends far beyond the examples contemplated by the Discussion Paper. The submission also recommends that s.69 be amended to either limit the extent of s.69(2) or impose an obligation on the taker of discriminatory action to justify the action taken in specific rather than general terms. Professor Margaret Thornton of La Trobe University216 argues that s.69 should be repealed. Moreover, entrenchment of the EOA would mean that all legislation, including prospective enactments, is subject to it. As a sovereign body the Victorian Parliament has the power to bind itself in this way. The MHLC217 submits that there is no justification for acceptance of discrimination which is necessary or authorised pursuant to legislation or regulations. Any inconsistent legislation is simply not justifiable. They argue that this is recognised in the comparable provision of the Commonwealth Disability Discrimination Act. The Police Association218 argues the general exceptions and exemptions within the Act should be examined by the Committee to determine consistency with the objects of the Act. It also suggests that any exemptions that are not consistent with the objectives of the Act should be heard and determined by VCAT. Victoria should adopt a model similar to that in New Zealand, the United Kingdom and Canada which recognises the primacy of human rights legislation, from which divergence is cautiously administered. Section 69 should be re-cast so that any reliance on statutory compliance should be assessed by VCAT. 214 215 216 217 218 60 Submission 394 Submission 99 Submission 361 Submission 370 Submission 56 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report Comparison of Victorian Approach with Other Jurisdictions In considering the operation of equal opportunity laws throughout Australia, the EOC219 provides the following comprehensive summary and comparison table. 219 Submission 377 61 Scrutiny of Acts and Regulations Committee The operation and interaction of Australian State and Federal Equal Opportunity Laws Legislation AntiDiscrimination legislation precedes other laws? Yes AntiDiscrimination legislation overridden by other laws? No Sex Discrimination Act 1984 (Cth) Yes - to a limited extent, and ordinary statutory interpretation rules Yes - to a limited extent, and ordinary statutory interpretation rules Disability Discrimination Act 1992 (Cth) Yes - to a limited extent - except for prescribed laws AntiDiscrimination Act 1977 (NSW) AntiDiscrimination Act 1991 (Qld) No Yes - to a limited extent - except for non-prescribed laws Yes Racial Discrimination Act 1975 (Cth) Tests/limits/requirements Specific provision in s.10 establishing the supremacy of the RDA over other laws Limited to specifically identified legislation in s.40 - test provides for direct compliance with legislation set out in s.40 s.47 - anything done by a person in direct compliance with prescribed law Where the conduct is necessary to comply with another statute - s.54 Where the conduct is necessary to comply with or specifically authorised by another statute - s.106 Yes - to a limited extent re: laws coming into existence after the ADA enacted Yes - except for age discrimination in awards and industrial agreements No No - except for age discrimination in awards and industrial agreements Yes Equal Opportunity Act 1984 (WA) Yes - except those laws in force at the time the EOA enacted No - except those laws not in force at the time the EOA enacted Conduct necessary to comply with another provision - s.69 AntiDiscrimination Act 1992 (NT) No Yes AntiDiscrimination Act 1998 (TAS) No Yes Conduct necessary to comply with or specifically authorised under statute - s.53 Conduct reasonably necessary to comply with any other law – s.24 Equal Opportunity Act 1984 (SA) Discrimination Act 1991 (ACT) 62 Yes - to a limited extent re: laws in existence at the time ADA enacted Alternative Mechanisms Provision for review by Minister by June 1996 and tabling of a report before Parliament, as well as 2 years sunset provision No longer in force. Sunset provision allowing 3 years for compliance Limited to specific provisions Review Report tabled by Minister within 2 years of enactment Conduct necessary to comply with another law Provision for expiration of s.30 by Ministerial Declaration Provision for review by Commissioner with power to notify and make recommendations AND 2 year sunset provision for compliance Commissioner power to examine legislation and report to Minister Chapter Five Human rights protections This Chapter examines the statutory framework for human rights protections in New Zealand; briefly describes the background to the introduction of the first Australian Human Rights Act 2004 in the Australian Capital Territory and the Victorian Government’s Justice Statement. New Zealand The New Zealand Bill of Rights Act 1990 (‘Bill of Rights Act’) affirms a range of civil and political rights. It embodies New Zealand's commitment to the International Covenant on Civil and Political Rights. The Bill of Rights Act applies to acts done by the three branches of Government, as well as by any person performing a public function, power or duty conferred by law. These acts can include legislation, policies, practices and service delivery. As far as is possible the rights contained within the Bill of Rights Act apply to all legal persons. The Bill of Rights Act is not supreme law and cannot be used to override, or implicitly repeal or revoke, other legislation. However, s.6 of the Act requires legislation to be interpreted and applied in a manner consistent with the Bill of Rights Act where possible. The Bill of Rights Act also contains a mechanism for alerting Parliament to inconsistencies with the Act in draft legislation. Section 7 requires the Attorney-General to report to the House of Representatives on any provision of any bill introduced to the House that appears to be inconsistent with any of the rights and freedoms contained in the Act. However, s.5 accepts that the rights and freedoms contained within the Bill of Rights Act can be subject to reasonable and justified limitations. The NZ Human Rights Act 1993 (‘Human Rights Act’), like the Victorian EOA, is an antidiscrimination statute that provides that discrimination against particular groups or individuals is unlawful if it occurs in certain areas of activity. The Human Rights Act applies, in different ways, to discrimination in both the public and private sectors. The Human Rights Act provided a statutory immunity for government up until 31 December 1998, though this was extended until 2001. The Act required the Human Rights Commission to examine acts and regulations to identify whether they conflicted with provisions in the Act or infringed its spirit and intention. This became known as the Consistency 2000 project. Unlike in Victoria, the task also included an examination of government policy and administrative practice. During the course of the inquiry some members of the Committee visited New Zealand to learn more about Consistency 2000, the statutory framework and its operation. 63 Scrutiny of Acts and Regulations Committee Consistency 2000 commenced in 1994. Elements of the project included: • Self-audit by government agencies • External audit by the Human Rights Commission • Updated report by government agencies • Determinations by Commissioners leading to a report to the Minister for Justice The project included broad community consultation, focussed stakeholder consultation, development and testing of methodology, development of audit technology, training of government officials and interpretation of key legal points. The overall approach was that government officials would, under the Commission’s guidance, conduct self-audits in their areas of responsibility and the Commission would conduct external audits and determine areas of conflict. The Commission offered training to government staff, managed the project, provided legal opinion in areas of statutory uncertainty and developed a customised database for the self-audits and ultimate determinations on the external audit. The self-audit method was designed to achieve a comprehensive and consistent approach by all government departments. The Commission also initiated a training program to assist with the development of a legislative program that was in accordance with the Human Rights Act. The project was terminated before the completion of the task. Consequently the report covered only a modest proportion of the NZ statute book. The NZ Government made a commitment to the development of a robust human rights culture in New Zealand and identified two important features— • Human rights institutions that are able to effectively perform the dual functions of promoting and protecting human rights; and • An anti-discrimination standard for Government that is backed up by an accessible complaints process and effective remedies. This followed the expiry of the government exemption in s.151 of the Human Rights Act (which corresponds with the exemption in s.69 of the Victorian EOA). Amendments to the Human Rights Act were introduced that related to the anti-discrimination standard for Government activities and the associated, publicly-funded complaints process. The amendments provided that complaints may be made under the Human Rights Act in respect of all Government activities and that, the relevant anti-discrimination standard for all Government activities, except employment and the related areas of racial disharmony, and racial and sexual harassment as these are dealt with elsewhere, is that set out in the Bill of Rights Act. This means that everyone in New Zealand is entitled to freedom from discrimination on a prohibited ground under the Human Rights Act, subject to reasonable limits. The Bill of Rights Act discrimination standard is an essential reference point for both the Attorney-General and the Commission, when determining whether new government legislation is human rights compliant. Discrimination complaints may be lodged with the Human Rights Commission and be reviewed by the Human Rights Review Tribunal. If Government policies or practices are found by the Tribunal or the Courts to contain unjustified discrimination, the full range of remedies in the Human Rights Act are available. If statutes or regulations are found to contain unjustified 64 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report discrimination a ‘declaration of inconsistency’ is an available remedy. Following the making of such a declaration by the Tribunal or the Courts, the responsible Minister is required to bring the declaration to the attention of the lower house, along with a report containing advice on the Government’s response to that declaration. The development of policy and guidelines was seen as a key component in building a platform for robust human rights protections. Comprehensive guidelines have been developed for government and the public sector. The aim is to increase familiarity with discrimination standards and with the identification of discrimination and its relevance to the development and consideration of legislation, public sector policies and operations. These guidelines include: • Non-Discrimination Standards for Government and the Public Sector: Guidelines on how to apply the standards and who is covered. • Guidelines on Process and Content of Legislation – including a chapter on the NZ Bill of Rights and Human Rights Act. • Cabinet Manual – endorsed by each new government. The Committee was interested to note that while complaints of discrimination are made and conciliated at the Human Rights Commission with a right of review to the Human Rights Review Tribunal, in the period from January 2002 to July 2004 there had been no applications for review of complaints of discrimination against government. Australian Capital Territory After extensive consultation in the ACT the report Towards an ACT Bill of Rights Act was released.220 The Report recognised that while highly visible abuses of human rights were not commonplace in the ACT, rights are protected in a partial or piecemeal manner under Commonwealth and Territory laws. It was the ACT Committee’s view that a bill of rights should take the form of an ordinary piece of legislation rather than an entrenched bill of rights or a declaration of the parliament. They recommended that the legislation should be designed to encourage a dialogue between the branches of government and the community about the protection of human rights, rather than a judicial and legislative monologue of rights. They recognised that while such a document would have legal force its primary purpose would be to encourage the development of a human rightsconscious culture in ACT public life and in the community.221 On 22 October 2003 the Chief Minister of the ACT John Stanhope announced that the ACT Government would introduce a Bill of Rights in the form of a Human Rights Act, the first such legislation to be enacted in Australia. The Human Rights Act would: 220 221 • include the rights contained in the International Covenant on Civil and Political Rights (ICCPR); • require courts and tribunals to interpret laws to be compatible with the Human Rights Act as far as possible; Report of the ACT Bill of Rights Consultative Committee, May 2003 Ibid at p.2 65 Scrutiny of Acts and Regulations Committee • require pre-enactment scrutiny of all legislation, including a statement from the Attorney-General about whether legislation is compatible with the Human Rights Act; and • establish a Human Rights Commissioner to review existing legislation and conduct education programs relating to human rights. When introducing the Human Rights Bill, John Stanhope told the ACT Parliament: the object of this bill is to give recognition in legislation to basic rights and freedoms. It is a clear and unequivocal commitment by this government and by this community about those values that bind us together as a democratic, multicultural and rights-respecting people. By passing this bill we commit ourselves to minimum standards in our law making. In his second reading speech he also stated: To achieve that goal the bill requires that all ACT statutes and statutory instruments must be interpreted and applied so far as possible in a way that is consistent with the human rights protected in the act. Unless the law is intended to operate in a way that is inconsistent with the right in question, the interpretation that is most consistent with human rights must prevail. Decision makers in all government areas will have to incorporate consideration of human rights into their decision-making process, and a statutory discretion must be exercised consistently with human rights unless legislation clearly authorises an administrative action regardless of the human right. In practice, decision makers and others authorised to act by a Territory statute in the courts and tribunals must take account of human rights when interpreting the law.222 The legislation commenced on 1 July 2004. Human Rights in Victoria There is no guarantee of equality or non-discrimination, either express or implied, in the Australian Constitution.223 However, Australia is a signatory to many international agreements on human rights. Respect for these rights may be seen as part of our way of living but as is clear from this Inquiry the primary mechanism for protecting human rights in Victoria is the EOA.224 Justice Statement On 27 May 2004 the Government released a ten year plan to make Victoria’s justice system more efficient, cohesive and sensitive to the needs of victims, minorities and the disadvantaged. The Attorney-General’s Justice Statement lists 25 initiatives to be implemented within a decade to modernise the justice system. Attorney-General Rob Hulls said the blueprint set the government’s vision for justice for the next five to ten years. “It is the product of the most comprehensive analysis ever undertaken of our legal system by the Department of Justice,” he said.225 The statement calls for a public discussion on the best form of enshrining human rights and responsibilities. It suggests that one way to protect human rights is the introduction of a charter of human rights and responsibilities. It concludes that a US-style Bill of Rights is a less 222 223 224 225 66 Legislative Assembly for the ACT: 2003 Week 12 Hansard (18 November) O’Neill, N.,Rice, S and Douglas, R. Retreat from Injustice: Human Rights Law in Australia, 2nd ed Federation Press Sydney 2004. The Committee also notes the Racial and Religious Tolerance Act 2001 As reported 2004 78(7) Law Institute Journal p.20 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report appropriate form for Victoria’s Parliamentary democracy than a Statutory Charter of Rights favoured by the United Kingdom and New Zealand. In the Justice Statement the Attorney-General refers to the Government’s Growing Victoria Together policy as also expressing the importance of protecting rights, building cohesive communities and reducing inequalities. He comments that addressing disadvantage is integral to genuine equality of opportunity and equality under the law and that special measures are needed to ensure that the promise of equality is not destroyed by social and economic disadvantage. Disadvantage should not operate to deny people their rights or the ability to seek redress when those rights are breached.226 One of the key initiatives of the Justice Statement is to establish a process for discussion and consultation with the Victorian community on how human rights and obligations can best be promoted and protected, including examination of options such as a charter of human rights and responsibilities, new approaches to citizenship and to modernising antidiscrimination law, reducing systemic discrimination and promoting attitudinal change. Another key initiative is the identification of new approaches to reducing discrimination. As the Committee noted above, human rights protections in Victoria have focused on the protections in the EOA, a framework that relies on complaints of individuals and their resolution on a case by case basis. The Government is of the view that wide community consultation is important in understanding how human rights principles could be more clearly supported in Victoria. Therefore a consultation process is to be established in order to canvass the rights that need protection and the remedies and processes available to promote compliance with human rights obligations. The Committee will follow the progress of these initiatives with interest. 226 p.52 67 Scrutiny of Acts and Regulations Committee 68 Appendix 1 – List of Submissions No. Name Organisation 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Dr Michael Burke Ms SA Lock Mr Michael Donnelly Melville Miranda Confidential Confidential Confidential Confidential Marguerita Stephens Confidential Confidential Confidential Confidential Confidential Confidential Judy Burns F. Lagerwey Confidential Confidential Carole Ann Anah Holland-Moore Jonathan Leckie Peter Graham AM MMBS Confidential Confidential Confidential Confidential Sharon Follett P.L. LePlastrier Confidential Robyn Plaister Confidential Tom Byrnes Victoria University of Technology Distinctive Options Victorian Civil and Administrative Tribunal 69 Scrutiny of Acts and Regulations Committee No. Name 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 Confidential Confidential D. Hughes Adam Hair Edward John Scotten Confidential Cathy Wheel Stacey McCaig Robyn Jeanne Delmege Confidential Peter Antoniadis Confidential Confidential Mrs Sharon Suggate David Bernard Linda Starick Chistine England Karen Price Mrs Rosalie Huf Vida Roberts Vickie Janson Philip Hammond Paul Mullett Annie Goldflam Steve Gundry Michelle Stevens K.L. and S.E. Jeans Glen Huf Mr F and Mrs C Barillaro Piera Cerantola Peter Blades Patricia Hunt Mr Russell Bell Malcolm Dowell Josie Venema Colin M Brown Mr P D Milligan Elizabeth Milligan Carol J Mahieu Elma Wallage Pastor Ray Morel 70 Organisation Word Family Church The Police Association - Victoria Grace Community Church Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report No. Name Organisation 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 Dr Helen Szoke Infertility Treatment Authority RBK Hungerford Raymond Butrimavicius Gaynor Butrimavicius George Hansford Neville & Lyn Hunter Jud Field Pastor Julie Bailey Eaglenet Ministries International John F McCormack Paul Zadunajsky Gail Murphy Joyce Amery P Shannon R W Wade John & Joyce Freeman D S Anderson Serena Moore Lynn Scott Noel Portwine Living Waters Assembly of God Mrs Jenny Turner Anthony O'Neill Ken & Maurene Pearce Terry Shannon Barbara Tregonning Mr J. Knight Betty Wood Barry Gregor Dale Stephenson Mornington Baptist Church Bernard Nicholls Bill Muehlenberg Australian Family Association Marliese Wahl Lyn Sheppard Shaun Kelly Brenda Peralta Anthony Lococo Ram Gopal Raelle Smit Bruce Stewart Ian Dennert Daniel Thomas & Lauren McDonald Patricia M Pavey 71 Scrutiny of Acts and Regulations Committee No. Name 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 Kerry Matthews Laurel Leaney Susan Park Brent Zito Darren Breeden Jamie Morgan Mrs Lydia Pearce Gary & Dawn King Mrs E M Moore Jennifer Mioni Ivy Dennert Laurie Winth Peter M E Pavey Julian Manole Mrs Carina Rondo Paul Richardson Anna McGookin Cherie Freeman Mrs Laura Wheatland Brad Simcoe David Amery Judy Dwyer Trevor Pollard Helen Jacobson Gregory D Grist Stephen & Deanne Cooke Debra Nespar Ms I Wilson Russell C Doty Dr D Clarnette Mrs Helena Vanderkaay Stephen Vanderkaay Babette Francis Catherine & David Smith Gwenda Allan E N Harvey Mrs Leonie Cuthbertson Michaael Janson Dr Jason Smitheringale Margaret Clark Neil E Ryan 72 Organisation Endeavour Forum Inc Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report No. Name 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 Mrs Belen Balmer Madge Fahy Hazel Berry Belinda West Natalie Tomas Maureen McQuillan Doreen F Lees Mr N T Moore Jennifer Erasmus Mrs I E Pearce Des Kranz Kerry Lee Glasheen Brian Desmond Wheatley Laurie & Sandra Morley Mrs Lyn Bishop Mrs Marcia N Aitken Mrs Susan Bassett Mr Mark Bassett Ronald & Margaret Gillie Lorraine Kotsanis James Kotsanis Arthur Cherrie Matthew Hartwich Donald Stanley Mr David Owen Patricia Cheesley Rev Andrew M Clarke Mrs M S Sidwell Hilda Webb Jenny Wake Mark Hayward Simone Moore R G White Elizabeth Stevens Jim Stevens Monika Attard-Nortje Trevor Starick Geoff & Helen Wells Mrs Debbie Treiguts Rudalf Treiguts Sylvia Ford Organisation CWL Victoria & Wagga Wagga Inc Office of the Public Advocate Presbyterian Church of Victorian 73 Scrutiny of Acts and Regulations Committee No. Name 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 Laurie Ford Dr W Robert McQuillan CMACA Don & Joanne Cameron Kerry Kyriakou Dr John McBain Melbourne IVF John Hosking Ray & Therese Green Dr Helen Watchirs Australian Capital Territory Human Rights Office Confidential Confidential Confidential Russell Pike Lloyd Thomas Kate Clarke Australia Woman Network Mattew Doty Jill Hyatt Kerry Wilson Barney Tomasich Ian Nott Mark Bachelor Geraldine Murray Elizabeth Mostard Brian Fitzgerald Desmond John Lesley Tran Cecelia Conwaye-Wright J & D Eddy David Armstrong Dorcas Price S & T Rando R & M Hunter Elaine M. Clark J & W Roche Robert Vale Michael Christie Carey Cox N & R Uebergang Nicholas Lock 236 237 238 D & D Payne Lyn Douglass C Miller 74 Organisation Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report No. Name 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 Beryl MacGlashan Neil Bartsch Jeffrey Kraak Carol Cooper Gavin Elliot-Robynson David McBain Alice McBain D & W West J & G Palmer Patricia Whiffin W & L Ball J Allpress & P Grace Sue Owen Carol Ferrier Lorra Ruwoldt Eileen Whittingham Donald Whittingham K Wilkie B & D Wallace John Hunter G Chandler Patricia White Darren Worland K Lovett & M De Saxe Alan Harrison Gwen Whittingham Roger Coombe Heather Chapple Dorothy Anne Bell Jeannette Couch Felicity Reid Neville Curtis Ian Nicholson Joan Smart David Jackson Frances Ann Scotten Henryk Kay Paul Dettmann Sandra Sumner T Sumner Steve Ross Organisation Lesbian and Gay Solidarity (Melbourne) Door & Window Repair Technicians 75 Scrutiny of Acts and Regulations Committee No. Name 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 Geoff Pittaway Phil Spencer Desmond John Graeme Jackel Peter Whiffin Christine Grey S & L Bell Nigel Hoare SM Rowe Keith Rowe I & G Hunter B J van der Merwe Denis Moriarty Annette Whiffin C & H Hipwell Glyceria Jansz Anne Green Susannah Green Phillip Wilson Paul Manser John Pelchen Jenny Smith David Butler Neil Benfell Michael Poke Tamara Wood Anna Diment Barbara Thompson M Monson D & A Clapp Thelma Andrew C Bramley Chris Whiting J Owen Rev Trevor Cox D & R Madill R Jackson Cathie Curtis E & T Delaney B Fitzgerald J Bertram 76 Organisation Property Owners' Association of Victoria King's College Open Door Christian Church Chalmers Presbyterian Church Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report No. Name 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 Gerard Arthur H Harrison Monica Joske Charles Pham K & M Smith Evelyn Jago Bryan Broome W & L Towers Clint Chambers Mesha Sojourn Leanne Miller Olaf Rutgrink Valerie Stewart Steven Birch Richard Parker Bernard Stocks Laurie Tooher Amanda Fairweather Sarah Champness Andrew Taylor Paul Macknamara John Modra Anne Whitehead Roslyn Clark Faith Damm Jenny Stokes Beryl Hardham Linda Jon Jane Hunter Ron Mostard Yada Mani Wally Connolly Dr Graeme Batley Peter Broadbent Andrew Zuiddam Gae Phillips Dori Wisniewski David Lee Connie Burn Dr Daphne Hennelly Stewart Sherriff Organisation Pham Corp Department of Infrastructure Baptist Union of Victoria Salt Shakers Taxi Drivers' Association of Victoria National Party of Australia 77 Scrutiny of Acts and Regulations Committee No. Name Organisation 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 Prof. Margaret Thornton Martin Botros Rumiko Commons Joanna Nikopoulos Gillian McKenzie ZedQun Niu D Mouriot and B Maillet David Burnell Vivienne Topp Gwenda Hay Aroha Marino Robert Arnold Rhiannon Wheeler Don Balmer Linda Matthews Diane Sisely Joyce Stowers Don Aitken Mr V Fisher D M Herde Pastor Rodney A Samuels Jacky Shannon Rebekah Shannon Ethre Stainer Rosemary Young Confidential Catherine Johns Wendy Bhouine Mandy McKenzie Greta Jubb Ray Jones Nola Richter Tony Parsons Rachel Morgan Alison Paul Mr Vio Pomochaci Louisa Dickinson Dr Susie Allanson/Rebecca Dean Greg Taylor Mr Dru Marsh Roland de Sielvie La Trobe University 78 Mental Health Legal Centre Inc. Origin Energy Electricity Camberwell Baptist Church Office of the Commissioner for Equal Opportunity Equal Opportunity Commission of Victoria PLP Vic C/-o Victorian Aids Council Victorian Aboriginal Legal Service Co-operative Lt Victoria Legal Aid Jobwatch Inc Fertility Control Clinic Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report No. Name 403 404 405 406 407 408 409 410 411 412 413 Kevin Parker Barnd Bartl Jonathon Goodfellow Jennifer Batrouney S.C Anna Hacker Mrs Margaret Bee Lisa Pryles Mr John Waters John D Nelson Christopher Dale David O’Callaghan, President Organisation Disability Support and Housing Alliance Disability Discrimination Legal Service Australian Women Lawyers Law Institute of Victoria Autism Behavioural Intervention Association (Inc.) 79 Scrutiny of Acts and Regulations Committee 80 Appendix 2 – Table of Acts identified in Submissions Attorney General Accident Compensation Act 1985 Adoption Act 1984 Alcoholics and Drug Dependent Persons Act 1988 Attorney General and Solicitor General Act 1972 Bail Act 1977 Children and Young Persons Act 1989 Constitution Act 1975 Constitution Amendment Act 1958 Coroners Act 1985 County Court Act 1958 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Crimes Act 1958 Evidence Act 1958 Guardianship and Administration Act 1986 Juries Act 2000 Land Titles Validation Act 1994 Local Government Act 1989 Magistrates’ Court Act 1989 and PERIN Fines Public Prosecutions Act 1994 Property Law Act 1958 Residential Tenancies Act 1997 Sentencing Act 1991 Statute Law Amendment (Relationships) Act 2001 Summary Offences Act 1966 and Vagrancy Act 1966 Supreme Court Act 1986 Vagrancy Act 1966 Wrongs Act 1958 81 Scrutiny of Acts and Regulations Committee Minister for Aboriginal Affairs Aboriginal Lands Act 1970 Minister for Aged Care Health Services Act 1988 Minister for Agriculture Drugs, Poisons and Controlled Substances Act 1981 Minister for Community Services Adoption Act 1984 Children and Young Persons Act 1989 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Disabilities Services Act 1991 Sentencing Act 1991 Minister for Consumer Affairs Credit Act 1984 Liquor Control Reform Act 1998 Residential Tenancies Act 1997 Minister for Corrections Corrections (Police Gaols) Regulations 1995 Corrections Act 1986 Sentencing Act 1991 Transport Act 1983 Minister for Education and Training Education Act 1958 Minister for Education Services Education Act 1958 Minister for Health Alcoholics and Drug Dependent Persons Act 1988 Building Act 1993 and Building Regulations 1994 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Disabilities Services Act 1991 Drugs, Poisons and Controlled Substances Act 1981 Health Services (Conciliation and Review) Act 1987 Health Services Act 1988 Infertility Treatment Act 1995 Medical Treatment Act 1988 Mental Health Act 1986 Minister for Housing Residential Tenancies Act 1997 Minister for Industrial Relations Long Service Leave Act 1992 Minister for Local Government Local Government Act 1989 82 Inquiry under section 207 of the Equal Opportunity Act 1995 Progress Report Minister for Multicultural Affairs Racial and Religious Tolerance Act 2001 Minister for Planning Building Act 1993 and Building Regulations 1994 Planning and Environment Act 1987 Property Law Act 1958 Residential Tenancies Act 1997 Minister for Police and Emergency Services Control of Weapons Act 1990 Corrections Regulations 1998 Police Regulation Act 1958 and Police Regulations 2003 Minister for Small Business Anzac Day Act 1958 Minister for Sport and Recreation Anzac Day Act 1958 Minister for Transport Local Government Act 1989 Melbourne City Link Act 1995 and Transport Legislation (Miscellaneous Amendments) Bill Transport Act 1983 Minister for Victorian Communities Births Deaths & Marriages Registration Act 1996 Minister for Workcover Accident Compensation Act 1985 Births Deaths and Marriages Registration (Amendment) Act 2004 Accident Compensation (Occupational Health and Safety) Act 1996 Occupational Health and Safety Act 1985 Police Regulation Act 1958 and Police Regulations 2003 Premier Constitution Act 1975 Essential Services Act 1958 Treasurer Accident Compensation Act 1985 Land Tax Act 1958 83 Scrutiny of Acts and Regulations Committee 84 Appendix 3 – New Zealand Experts visited July 2004 Human Rights Commission Richard Handley General Manager, Human Rights Commission Ms Pamela Jefferies Former Chief Commissioner Dr Judy McGregor Equal Employment Opportunity Commissioner David Peirse Lawyer and Policy Analyst Victoria Gregory Educator Mervyn Singh Chief Mediator The Office of Human Rights Proceedings Catherine Rodgers-Smith Assistant Director of Human Rights Proceedings Human Rights Review Tribunal Royden Hindle Chairperson Human Rights Review Tribunal Ministry of Justice Margaret Dugdale Policy Manager, Bill of Rights/Human Rights Stuart Beresford Senior Legal Adviser Boris van Beusekom Senior Legal Adviser Crown Law Office Malcolm Luey Assistant Crown Counsel Cheryl Gwyn Deputy Solicitor-General 85 Scrutiny of Acts and Regulations Committee 86 List of Abbreviations ACT ATSS AWL Committee Cth DDA DDLS EOA EOC HIV HREOC ICCPR LIV NESB NSW NT NZ OHSA QLD RVBA s. SA SARC ss. TAFE UK US VALS VCAT VCE VIC VLA WA Australian Capital Territory Adult Training and Support Services Australian Women Lawyers Scrutiny of Acts and Regulations Committee Commonwealth Disability Discrimination Act 1992 (Cth) Disability Discrimination Legal Service Equal Opportunity Act 1995 (VIC) Equal Opportunity Commission Victoria Human Immunodeficiency Virus Human Rights and Equal Opportunity Commission International Covenant on Civil and Political Rights Law Institute of Victoria Non-English Speaking Background New South Wales Northern Territory New Zealand Occupational Health and Safety Act 1985 (VIC) Queensland Royal Victorian Bowls Association Section South Australia Scrutiny of Acts and Regulations Committee Sections Technical and Further Education United Kingdom United States Victorian Aboriginal Legal Service Cooperative Victorian Civil and Administrative Tribunal Victorian Certificate of Education Victoria Victoria Legal Aid Western Australia 87 Scrutiny of Acts and Regulations Committee 88 MINORITY REPORT We do not support the tabling of a preliminary Report which merely represents a summary of submissions received to date. The resources would be better directed towards the development of an interim report which properly reflects the evidence considered and deliberations of the Committee. Andrew McIntosh Murray Thompson 8 December, 2004 89 Scrutiny of Acts and Regulations Committee 90 Extract from the Proceedings The Minutes of the Committee show the following Division that took place during consideration of the Discrimination in the Law, Inquiry under section 207 of the Equal Opportunity Act 1995, Progress Report: Summary of Submissions, Statutory Compliance Defences and Human Rights Protections on Monday 6 December 2004. Motion—That Discrimination in the Law, Inquiry under section 207 of the Equal Opportunity Act 1995, Progress Report: Summary of Submissions, Statutory Compliance Defences and Human Rights Protections, as amended, be accepted as the report of the Committee and be printed. Moved Seconded The Hon. Andrew Brideson MLC Mr Jude Perera MLA The Committee divided. Ayes, 6 Ms Lily D’Ambrosio MLA The Hon. Lidia Argondizzo MLC The Hon. Andrew Brideson MLC Mr Michael Leighton MLA Mr Peter Lockwood MLA Mr Jude Perera MLA Noes, 1 Mr Murray Thompson, MP And so it was resolved in the affirmative. 91