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2002-2003
THE
PARLIAMENT OF THE COMMONWEALTH
OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
AGE DISCRIMINATION (CONSEQUENTIAL
PROVISIONS) BILL 2003
EXPLANATORY
MEMORANDUM
(Circulated by authority of the
Attorney-General,
the Honourable Daryl Williams AM QC MP)
This Bill makes provision for consequential amendments required following
commencement of the Age Discrimination Act 2003. The Bill is divided
into two Schedules.
Schedule 1 of the Bill makes amendments to other
Commonwealth legislation, including amendments to the Human Rights and Equal
Opportunity Commission Act 1986.
Schedule 2 of the Bill makes
amendments to the Age Discrimination Act and to other legislation following
commencement of both the Age Discrimination Act and the Australian Human
Rights Commission Legislation Act 2003.
The measures proposed by this Bill are budget neutral.
The following abbreviations are used throughout these notes:
|
Age Discrimination Act
|
Age Discrimination Act 2003 |
|
AHRC
|
Australian Human Rights Commission |
|
AHRC Act
|
Australian Human Rights Commission Act 2003 |
|
AHRC Legislation Act
|
Australian Human Rights Commission Legislation Act 2003 |
|
DDA
|
Disability Discrimination Act 1992 |
|
HREOC Act
|
Human Rights and Equal Opportunity Commission Act 1986
|
|
HREOC
|
Human Rights and Equal Opportunity Commission |
|
RDA
|
Racial Discrimination Act 1975 |
|
SDA
|
Sex Discrimination Act 1984 |
1. Clause 1 is a formal provision specifying that the legislation will be referred to as the Age Discrimination (Consequential Provisions) Act 2003.
2. This clause provides details about the commencement of the provisions in this Bill. Sections 1 – 4 of the Bill (and any provisions not otherwise covered by the table) will commence on the day on which Royal Assent is given to this Bill.
3. Schedule 1 of the Bill, except for Item 7, will commence at the same time as the commencement of the Age Discrimination Act. The items in Schedule 1 provide for amendments to other Acts, including the HREOC Act, which are necessary upon commencement of the Age Discrimination Act. Item 7 will only commence if the Age Discrimination Act commences prior to the commencement of Schedule 1 of the AHRC Legislation Act.
4. Schedule 2 of the Bill, except for Item 22, will commence once both the Age Discrimination Act and Schedule 1 to the AHRC Legislation Act have commenced. Schedule 2 provides for amendments to the Age Discrimination Act, the AHRC Act, the RDA, the SDA and the DDA. Item 22 will only commence if the Age Discrimination Act commences prior to the commencement of Schedule 1 of the AHRC Legislation Act.
5. This clause provides that if Item 1 of Schedule 1 of the AHRC Legislation Act commences prior to commencement of the Age Discrimination Act then the amendments made to the HREOC Act in Schedule 1 of this Act will be taken to be amendments to the AHRC Act.
6. This is the operative clause that gives effect to the amendments set out in the Schedules to the Act.
SCHEDULE 1 – CONSEQUENTIAL AMENDMENTS
7. This item provides that the definition of unlawful discrimination in the HREOC Act is extended to include any acts, omissions or practices that are unlawful under Part 4 of the Age Discrimination Act.
8. This item provides that the definition of unlawful discrimination in the HREOC Act is extended to include any conduct that is an offence under Division 2 of Part 5 of the Age Discrimination Act except for section ^52 of that Act. Section ^52 of the Age Discrimination Act provides that it is an offence for a person to fail to disclose the source of actuarial or statistical data where HREOC or its President has requested the disclosure of that data, being data which relates to the alleged act of unlawful discrimination.
9. This item amends section 11 of the HREOC Act so that the functions of HREOC include those conferred on it by the Age Discrimination Act.
10. Subsection 11(3) of the HREOC Act provides that HREOC’s functions do not include inquiring into the acts or practices of an intelligence agency (as defined in subsection 11(4) of the HREOC Act). If a complaint is made alleging that an act or practice of an agency is unlawful under the RDA, the SDA or the DDA, then HREOC must refer the complaint to the Inspector-General of Intelligence and Security. This item provides that HREOC must also refer complaints that allege that an act or practice of an intelligence agency is unlawful under the Age Discrimination Act to the Inspector-General.
11. Subsection 14(1) of the HREOC Act provides that HREOC, in the performance of its functions, has the discretion to conduct a hearing or inquiry as it sees fit. Subsection 14(8) provides that the definition in subsection 14(1) does not include functions conferred on HREOC by the SDA or the DDA. This item provides that the exclusion in subsection 14(8) extends to functions conferred on HREOC by the Age Discrimination Act.
12. Section 16 of the HREOC Act concerns inter-governmental arrangements between the Commonwealth and States. Subsection 16(2A) deems that an act which is done by a State or an instrumentality of a State for the purposes of the HREOC Act, the RDA, SDA or the DDA, is deemed to have been done by the President. Item 6 provides that an act that is done by a State or its instrumentality for the purposes of the Age Discrimination Act will also be deemed to have been done by the President.
13. Section 19 of the HREOC Act concerns the delegation of HREOC’s powers. Subsection 19(6) provides that the powers, which HREOC may delegate under subsection 19(1), do not include powers conferred on it by the RDA, SDA or the DDA. Item 7 provides that HREOC similarly cannot delegate the powers conferred on it by the Age Discrimination Act.
14. Section 46PF of the HREOC Act concerns inquiries held by the President into complaints alleging unlawful discrimination. Subsection 46PF(3) provides that a complainant, with the leave of the President, may amend his or her complaint to add, as a respondent, a person who is alleged to have done the act of unlawful discrimination.
15. The note following subsection 46PF(3) provides that a person may be regarded as responsible for acts of unlawful discrimination by another person. The note refers to the relevant provisions of the DDA, RDA and SDA which impose liability for unlawful discrimination onto other persons. This item provides that the note will also include a reference to sections ^55 and ^56 of the Age Discrimination Act. These provisions concern liability for inducing and aiding acts of age discrimination (section ^55) and liability for the unlawful acts and conduct of another persons (section ^56).
16. Section 8 of the Inspector-General of Intelligence and Security Act sets out the functions of the Inspector-General of Intelligence and Security. Amongst these functions is the function to inquire into complaints about the acts or practices of particular intelligence agencies and security organisations that may be unlawful under Commonwealth anti-discrimination legislation. Items 9, 10 and 11 amend section 8 of the Act so that the Inspector-General’s functions are extended to include inquiries into complaints that the acts or practices of one of the mentioned agencies or organisations is unlawful under the Age Discrimination Act.
17. Section 45 of the Sea Installations Act provides that certain Commonwealth Acts, as provided for in the Schedule, are to apply in adjacent areas. This item amends the Schedule to provide that the Age Discrimination Act will apply to sea installations in adjacent areas.
18. Section 93 of the Workplace Relations Act provides that the Australian Industrial Relations Commission, in the performance of its functions, is to take into account the principles embodied in the RDA, SDA and DDA. This item provides that the Commission is also required to take into account the principles embodied in the Age Discrimination Act.
19. The items in Schedule 2 concern amendments that will take effect once both the Age Discrimination Act and the AHRC Legislation Act have commenced.
20. The AHRC Legislation Act provides for the restructure of HREOC and its renaming as the Australian Human Rights Commission (the AHRC). This includes the renaming of the HREOC Act to the Australian Human Rights Commission Act 1986 (the AHRC Act).
21. Schedule 2 provides amendments to the Age Discrimination Act, the AHRC Act, the DDA, the RDA and the SDA to reflect the restructure and renaming of HREOC to ensure consistency between the Age Discrimination Act and the existing suite of Commonwealth anti-discrimination legislation.
22. These items amend the relevant provisions to reflect the name change of HREOC to AHRC following commencement of the AHRC Legislation Act.
23. This item and the following item amend subsection ^53(1) of the
Age Discrimination Act to make education and dissemination of information on the
various forms of discrimination made unlawful by the Age Discrimination Act a
key focus of AHRC’s functions, primarily by re-ordering and enhancing the
existing functions set out in subsection ^53(1). These amendments mirror
those made to subsection 11(1) of the AHRC Act.
24. This item inserts new
paragraphs (aa), (ab), (ac) and (ad) into subsection ^53(1) of the Age
Discrimination Act. These paragraphs broadly reflect existing
paragraphs ^53(1)(b), (c) and (f), with the addition of references to the
responsibility of persons and organisations to avoid the various forms of
discrimination made unlawful by the Age Discrimination Act, while
paragraph ^53(1)(ab) confers on AHRC a function which was not conferred on
HREOC.
25. These amendments are intended to focus AHRC’s
attention on the following functions:
• promoting an
understanding and acceptance of, and compliance with, the Age Discrimination Act
(new paragraph ^53(1)(aa));
• disseminating information on
discrimination on the ground of age and on the responsibility of persons and
organisations to avoid such discrimination (new paragraph ^53(1)(ab));
• undertaking research and educational programs, and other programs,
on behalf of the Commonwealth, for the purpose of promoting the objects of the
Age Discrimination Act (new paragraph ^53(1)(ac)); and
• preparing, and publishing in a manner AHRC considers appropriate,
guidelines for avoiding the various forms of discrimination made unlawful by the
Age Discrimination Act (new paragraph ^53(1)(ad)).
1. This item repeals paragraphs ^53(1)(b), (c) and (f),
consequential to the amendments made by the item above.
2. This item amends paragraph ^53(1)(g) of the Age Discrimination
Act to be subject to new subsections ^53(1A) and ^53(1B) of the Age
Discrimination Act. These new subsections are created by a later item.
3. This item amends the provision to reflect the name change of HREOC to the AHRC following commencement of the AHRC Legislation Act.
4. This item qualifies paragraph ^53(1)(g) of the Age Discrimination Act
to make the exercise by AHRC of its function of seeking leave to intervene in
court proceedings which involve human rights issues conditional
on:
• the Attorney-General first having given approval in
accordance with new subsection ^53(1A) unless new subsection ^53(1B)
applies; or
• if the President of AHRC is, or was immediately before
appointment as President, a federal Judge (subsection ^53(1B)) - to require
AHRC to notify the Attorney-General of its intention to seek leave to intervene
in court proceedings and its reasons for doing so. The notice must be given
when there is still a reasonable period before AHRC seeks leave to intervene in
the court proceedings.
1. As First Law Officer of the Commonwealth the Attorney-General has a general public interest role in litigation, including human rights litigation. When AHRC is given leave to intervene in court proceedings, it will effectively become a party to those proceedings, advocating and/or defending a particular legal position, or a particular interpretation of any legislation in issue in the proceedings. Requiring AHRC to seek the Attorney-General’s approval for such an intervention before AHRC exercises its function to seek leave to intervene will ensure that the intervention function is only exercised after the broader interests of the community have been taken into account.
2. In deciding whether to approve the exercise by AHRC of its power to seek leave to intervene in court proceedings the Attorney-General may have regard to a range of matters set out in subsection ^53(1A). The inclusion of these matters in subsection ^53(1A) is not in any way intended to limit the range of matters to which the Attorney-General may have regard in making his or her decision, nor is it intended that the Attorney-General be required to consider any of these matters.
3. In this new section, the matters to which the Attorney-General may have
regard are as follows:
• whether there has been an intervention in
the proceedings by or on behalf of the Commonwealth;
• whether, in the
Attorney-General’s opinion, the proceedings may affect to a significant
extent the human rights of, or involve to a significant extent issues of
discrimination against, persons who are not parties to the proceedings;
• whether, in the Attorney-General’s opinion, the proceedings
have significant implications for the administration of the AHRC Act, the DDA,
the RDA or the SDA; or
• whether, in the Attorney-General’s
opinion, there are special circumstances such that it would be in the public
interest for AHRC to intervene.
1. The requirement for AHRC to notify the Attorney-General of its intention to seek leave to intervene in court proceedings and its reasons for doing so, but not requiring the Attorney-General’s formal approval of this function when the President is, or was immediately before appointment as President, a federal Judge ensures that there are no constitutional issues arising from the appointment of a federal Judge as President.
2. These items reflect HREOC’s name change to AHRC following commencement of the AHRC Legislation Act.
3. This item repeals sections ^55 and ^58 of the Age Discrimination Act. Section ^55 of the Age Discrimination Act provides that HREOC may delegate all or any of its powers conferred under the Age Discrimination Act. This provision is repealed as the delegation powers of HREOC will no longer be provided for in the Age Discrimination Act. The AHRC Legislation Act repeals the delegation provisions in the DDA, the RDA and the SDA and consolidates them in AHRC Act.
4. Section ^58 of the Age Discrimination Act provides protection to HREOC, its members and persons acting on its behalf, from civil actions arising out of acts done in good faith in the performance of HREOC’s powers or functions. The AHRC Legislation Act repeals the provisions relating to protection from civil actions in the DDA, the RDA and the SDA and consolidates them in the AHRC Act.
5. This item provides that delegations which occurred prior to the repeal of section ^55 continue, except for delegations made to the Commissioners, set out in subclause ^55(2). These Commissioner positions will no longer exist following the commencement of the AHRC Legislation Act.
6. This item provides that the protection from civil actions under section ^58 of the HREOC Act continues to apply for acts done prior to the commencement of the AHRC Legislation Act.
Item 20 – Section ^60
7. This item repeals section ^60 of the Age Discrimination Act. Section ^60 concerns the non-disclosure of private information obtained for the purposes of the Age Discrimination Act. Section ^60 makes disclosure of private information an offence under the Age Discrimination Act except for disclosure in certain circumstances (such as disclosures to HREOC). This provision is repealed because, upon commencement of the AHRC Legislation Act, these matters will be provided for in the AHRC Act. The AHRC Legislation Act repeals similar provisions in the DDA, the RDA and the SDA and consolidates them in AHRC Act.
Item 21 – Repealed non-disclosure provisions continue to apply in relation to certain pre-commencement matters
8. This item provides that information or documents acquired prior to the commencement of the AHRC Legislation Act remains subject to the relevant non-disclosure provisions that had previously applied under section ^60 of the Age Discrimination Act.
9. Section 11 concerns the functions of the AHRC. This item reorders the Commonwealth anti-discrimination legislation into alphabetical order.
10. These items repeal the existing paragraphs and replace them with new paragraphs that include a reference to the Age Discrimination Act and list the Commonwealth anti-discrimination legislation in alphabetical order.
11. This item inserts the Age Discrimination Act into the provision. Section 46PV concerns the amicus curiae function of AHRC.
Item 26 – Paragraph 67(3)(c)
12. This item repeals the existing paragraph and replaces it with a paragraph that includes a reference to the Age Discrimination Act and lists the Commonwealth anti-discrimination legislation in alphabetical order.
13. This item repeals the existing paragraph and replaces it with a paragraph that includes a reference to the Age Discrimination Act and lists the Commonwealth anti-discrimination legislation in alphabetical order.
14. This item repeals the existing paragraph and replaces it with a paragraph that includes a reference to the Age Discrimination Act and lists the Commonwealth anti-discrimination legislation in alphabetical order.