Discrimination law

F u n c t i o n s o f t h e C o m m i t t e e

The statutory functions of the Scrutiny of Acts and Regulations Committee as set out in section 17 of the Parliamentary Committees Act 2003 are -

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Parliamentary Committees Act 1968, s.4D

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.

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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 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 7 Oyekanmi v National Forge Operations Pty Ltd & Anor (1996) • 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' case 12 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 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 conclusion 13 ) 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 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 Court 17 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 judges 20 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 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 Schou 22 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 [2004] VSCA 71 23Phillips and Buchanan JJ.

Inquiry under section 207 of the Equal Opportunity Act 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.

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. 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

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 Territory 24 and to the Victorian Government's Justice Statement.

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Human Rights Act 2004 (ACT)

C h a p t e r T w o

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 Watch 26 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. Submission 410

Bail Act 1977

Rumiko Commons 29 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

Rumiko Commons 98 identifies s.4(3) of the Bail Act as leading to discrimination on the basis of sex. 99

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 Advocate 33 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

Occupational Health and Safety Act 1985

The submission from Dru Marsh 35 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.

Dru Marsh 55 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.

Dru Marsh 67 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.

Dru Marsh 88 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.

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) Act 38 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 Submission 401 36 Submission 405 37 Submission 394 38 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 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. 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 DDLS 40 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 Hacker 41 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.

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 Pryles 43 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. The submission from Tom Byrnes 44 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 Association 45 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. Submission 3

Juries Act 2000

The MHLC 48 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 Alliance 49 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 [1998]

Mental Health Act 1986

The MHLC 53 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.

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Submission 370 52Submission 370 53Submission 370

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: 2001Plan: -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. 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 Association 57 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 DDLS 58 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. Submission 370

The submission from Paul Mullett on behalf of The 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.

The submission from Paul Mullett on behalf of The Police Association 71 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.

Residential Tenancies Act 1997

Sentencing Act 1991

The MHLC 62 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).

VALS 90 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

The MHLC 63 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.

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.

Wrongs Act 1958

The MHLC 66 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

Lawful sexual activity

The Committee received no submissions that concerned lawful sexual activity.

Marital status

Evidence Act 1958

The submission from Greg Taylor 68 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

Rumiko Commons 92 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'.

VLA 93 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

The LIV 121 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 VLA 125 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.

Parental status or status as a carer

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.

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 hearing 95 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. The Committee notes that the Attorney-General announced in the Justice Statement that this Act is to be reviewed

The question for the Judge to determine is whether or not the conduct incited hatred against Muslim people.

Pregnancy

Long Service Leave Act 1992

Louisa Dickinson, on behalf of Job Watch 73 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 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 LIV 74 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. 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."

Louisa Dickinson, on behalf of Job Watch 102 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. 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 LIV 103 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.

Occupational Health and Safety (Lead) Regulations 2000

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

VALS 81 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 Hacker 82 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 Commons 83 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 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.

VLA 118 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 LIV 119 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

Energy Legislation (Consumer Protection and Other Amendments) Act 2003

VALS 85 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

VALS 87 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.

Registration of Births Deaths & Marriages Act 1996

The submission from Submission 292

Transport Act 1983

The LIV 91 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. 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

Vagrancy Act 1966

VLA 96 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

Control of Weapons Act 1990

Rumiko Commons 100 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 Queen 101 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.

Property Law Act 1958

VLA 104 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 Wood 105 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.

VLA 106 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. 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 LIV 108 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 LIV 109 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

VLA 110 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 LIV 111 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 LIV 112 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

VLA 113 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

"…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" 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 VLA 116 and the LIV 117 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.

Infertility Treatment Act 1995

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 Shakers 127 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. 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 LIV 129 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 LIV 131 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 Gurney 132 of the Australian WOMAN Network 133 are concerned with recognition of post-operative legal status of transsexuals and submit that the current Bill 134 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 LIV 135 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

VLA 136 and the LIV 137 submit 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.

C h a p t e r T h r e e

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 Richardson 138 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.

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

VALS 140 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 lesbian 141 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 University 142 submits that restricting complaints of discrimination to workplaces of more than five people significantly erodes the force of the EOA.

139 .

Sections 16-28 Employment Exceptions

Ms Louisa Dickinson, on behalf of Job Watch 143 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 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 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 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 LIV 144 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 University 145 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 DDLS 146 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. 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.

Section 51 Discrimination by Refusing to Allow Alterations

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, 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: (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: 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 Burke 153 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

Submission 1

Inquiry under section 207 of the Equal Opportunity Act Progress Report

Dr Burke refers to two decisions of the Anti-Discrimination Tribunal:

• In Robertson v Australian Ice hockey Federation 154 , 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 Association 155 , 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

Section 70 Exception for things done to comply with an Order of Court or Tribunal

Job Watch 158 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 Watch 160 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.

VLA 161 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 Office 162 on this point.

The EOC of Victoria 163 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 LIV 164 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. The Workplace Relations Section of the LIV 165 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 Lawyers 166 ('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 Australia 167 ; 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. 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 Victoria 168 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 Advocate 169 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 Victoria 171 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. 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 Association 172 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.

Section 85 Sexual Harassment

A confidential submission 175 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 Watch 176 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 DDLS 177 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 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 Fitzgerald 178 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 Network 179 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.

C h a p t e r F o u r

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 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 Turner 185 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 (1991) The Productivity Commission in its report of the review of the DDA 189 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. 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 Committee 197 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 Ronalds and Pepper op cit at p.163. 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: In the High Court decision in Public Transport Commission v Waters 202 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:

• retain the complete exemption; • 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 Victoria 205 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: 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.

• 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.

While the EOC 212 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 EOAnotwithstanding 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 Watch 213 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. • 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.

VLA 214 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 University 216 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 MHLC 217 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 Association 218 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.

Comparison of Victorian Approach with Other Jurisdictions

In considering the operation of equal opportunity laws throughout Australia, the EOC 219 provides the following comprehensive summary and comparison 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 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:

• 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;

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

207 of the Equal Opportunity Act 1995 Progress Report