EQUAL OPPORTUNITY AMENDMENT BILL 2011 Explanatory Memoranda
EQUAL OPPORTUNITY AMENDMENT BILL 2011
Equal Opportunity Amendment Bill
2011
Introduction Print
EXPLANATORY MEMORANDUM
General
The Equal Opportunity Act 2010 (the Principal Act) has a default
commencement date of 1 August 2011 and will replace the Equal
Opportunity Act 1995 (the 1995 Act) upon commencement.
The key objectives of this Bill are to amend the Principal Act to--
alter the new powers of the Victorian Equal Opportunity and
Human Rights Commission (the Commission) to conduct
investigations and public inquiries;
remove the "inherent requirements test" in the exception for
employment in a religious body or school to restore the
freedom of faith-based organisations to engage staff who
uphold the values of the organisation;
alter the governance structure of the Commission in order to
appoint a chairperson of the Board of the Commission
independent of the Commissioner.
The Bill also amends the Electoral Act 2002 to permit the Victorian
Electoral Commission to discriminate on the basis of political belief or
activity in relation to employment, inserts certain exceptions based on
exceptions in the 1995 Act and makes miscellaneous amendments to improve
the operation of the Principal Act.
571042 1 BILL LA INTRODUCTION 4/5/2011
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill. The main purposes of the Bill
are to amend the Principal Act to alter the governance
arrangements for the Commission and the powers and functions
of the Commissioner, remove the Commission's power to
conduct public inquiries and amend the Commission's power to
conduct investigations. The Bill also alters a number of
exceptions in the Principal Act, inserts exceptions relating to
youth wages, accommodation and political clubs, and clarifies
the relationship between the reasonable adjustments provisions in
the Principal Act, and the disability standards under the
Commonwealth Disability Discrimination Act 1992, as well as
determinations made under section 160B of the Building Act
1993. The Bill makes miscellaneous amendments to improve the
operation of the Principal Act and amends the Electoral Act
2002 to permit the Victorian Electoral Commission to
discriminate on the basis of political belief or activity in relation
to employment.
Clause 2 provides for the commencement of the Bill. The Bill comes into
operation on the day after the day on which it receives Royal
Assent, except for Part 3 of the Bill, which comes into operation
on 1 August 2011, to coincide with the default commencement of
the Principal Act. As the Bill amends the Principal Act, the
amendments will not have practical effect until the Principal Act
commences.
Clause 3 provides that the Equal Opportunity Act 2010 is called the
Principal Act in the Bill.
PART 2--AMENDMENTS TO THE EQUAL OPPORTUNITY
ACT 2010
Clause 4 repeals section 2(2) of the Principal Act, which is redundant
because the Public Finance and Accountability Act 2010 did
not proceed.
Clause 5 amends definitions in the Principal Act. The definition of
impairment is substituted for a definition of "disability" for
consistency with more common terminology used in human
rights and discrimination law nationally and internationally.
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The definition of appointed member is repealed in accordance
with the changes to the Commission's governance arrangements
and the reference to "section 169" in the definition of
Commissioner is replaced with "section 170" to reflect the
changes to the Commissioner's role in the Bill.
Clause 6 amends section 15(4) of the Principal Act to omit "or a public
inquiry" to reflect the Bill's removal of the power of the
Commission to conduct a public inquiry.
Clause 7 amends section 20 of the Principal Act, which provides that if a
person who is offered employment or an employee has an
impairment and requires adjustments in order to perform the
genuine and reasonable requirements of the employment, the
employer must make reasonable adjustments unless the person or
employee could not adequately perform the genuine and
reasonable requirements of the employment even after the
adjustments are made.
Section 20 is one of the "reasonable adjustment provisions" in the
Principal Act for people with impairments, which apply in a
number of contexts, including employment, service provision and
access to premises. Each provision has criteria for assessing
what is reasonable in the circumstances. However, there are
parallel obligations under the Commonwealth Disability
Discrimination Act 1992, which provides for disability standards.
New section 160B of the Building Act 1993, inserted by
section 5 of the Building Amendment Act 2011, will enable
building owners, designers, surveyors and builders to apply to be
exempt from improved accessibility requirements that would
impose unjustifiable hardship.
The overlapping requirements can be confusing. The amendment
made by clause 7 clarifies the relationship between the Principal
Act, standards under the Commonwealth Disability
Discrimination Act 1992 and determinations made under
section 160B of the Building Act 1993. The amendment makes
it clear that employers are not required to make a reasonable
adjustment to the extent that they have already complied with, or
have been exempted from compliance with, a relevant disability
standard made under the Commonwealth Disability
Discrimination Act 1992. The amendment also makes clear that
employers are not required to make an adjustment that relates to a
building or land when a determination in relation to that
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adjustment has already been made under section 160B of the
Building Act 1993.
Clause 8 provides that an employer can discriminate on the basis of age in
paying an employee who is under the age of 21 years according
to the employee's age. This reflects the position in the 1995 Act
in relation to youth wages. The Commonwealth Fair Work Act
2009, which applies--subject to some exclusions--to employers
and employees in Victoria, authorises the payment of junior rates
of pay in certain instruments (for example in a modern award).
To the extent that there may be limited circumstances in Victoria
where the scheme under the Fair Work Act 2009 does not apply,
the purpose of clause 8 is to clarify that the payment of an
employee under the age of 21 years according to their age will
not amount to unlawful discrimination under the Principal Act.
Clause 9 amends section 33 of the Principal Act, which provides that if a
person invited to become a partner or a partner of a firm has an
impairment and requires adjustments in order to perform the
genuine and reasonable requirements of partnership in the firm,
the firm must make reasonable adjustments unless the partner or
person seeking admission to the firm as a partner could not
adequately perform the genuine and reasonable requirements of
partnership in the firm even after the adjustments are made.
As with clause 7, the purpose of clause 9 is to clarify the
relationship between the Principal Act, standards under the
Commonwealth Disability Discrimination Act 1992 and
determinations made under section 160B of the Building Act
1993. The amendment makes it clear that firms are not required
to make a reasonable adjustment to the extent that they have
already complied with, or have been exempted from compliance
with, a relevant disability standard made under the
Commonwealth Disability Discrimination Act 1992.
The amendment also clarifies that firms are not required to make
an adjustment that relates to a building or land when a
determination in relation to that adjustment has already been
made under section 160B of the Building Act 1993.
Clause 10 amends section 40 of the Principal Act, which provides that if a
person with an impairment requires adjustments in order to
participate or continue to participate or to derive substantial
benefit from an educational program of an educational authority,
the educational authority must make reasonable adjustments
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unless the person could not participate or continue to participate
or to derive or continue to derive any substantial benefit from the
educational program even after the adjustments are made.
As with clauses 7 and 9, the purpose of clause 10 is to clarify the
relationship between the Principal Act, standards under the
Commonwealth Disability Discrimination Act 1992 and
determinations made under section 160B of the Building Act
1993. The amendment makes it clear that an educational
authority is not required to make a reasonable adjustment to the
extent that they have already complied with, or have been
exempted from compliance with, a relevant disability standard
made under the Commonwealth Disability Discrimination Act
1992. The amendment also makes clear that an educational
authority is not required to make an adjustment that relates to a
building or land when a determination in relation to that
adjustment has already been made under section 160B of the
Building Act 1993.
Clause 11 substitutes section 42(2) of the Principal Act to provide that if a
school has taken into account the views of the school community
in setting standards of dress, appearance and behaviour, those
standards are reasonable for the purposes of section 42(1).
This reflects section 42(2) of the 1995 Act. The school
community would include students, staff, parents, members of
school committees and councils. For other educational
institutions, whether or not standards are reasonable will depend
on all the circumstances of the case.
Clause 12 amends section 45 of the Principal Act, which provides that if a
person with an impairment requires adjustments to be made to
the provision of service by another person (referred to as the
service provider), the service provider must make reasonable
adjustments unless the person could not participate in or access
the service, or derive substantial benefit from the service even
after the adjustments are made. As with clauses 7, 9 and 10, the
purpose of clause 12 is to clarify the relationship between the
Principal Act, standards under the Commonwealth Disability
Discrimination Act 1992 and determinations made under
section 160B of the Building Act 1993. The amendment makes
it clear that a service provider is not required to make a
reasonable adjustment to the extent that they have already
complied with, or have been exempted from compliance with, a
relevant disability standard made under the Commonwealth
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Disability Discrimination Act 1992. The amendment also makes
clear that a service provider is not required to make an
adjustment that relates to a building or land when a determination
in relation to that adjustment has already been made under
section 160B of the Building Act 1993.
Clause 13 amends section 58 of the Principal Act, which provides an
exception to the prohibition on discrimination set out in
section 57 in relation to the access or use of premises where the
person cannot reasonably be expected to avoid the
discrimination. As with clauses 7, 9, 10 and 12, the purpose of
clause 13 is to clarify the relationship between the Principal Act,
standards under the Commonwealth Disability Discrimination
Act 1992 and determinations made under section 160B of the
Building Act 1993. The amendment makes it clear that a person
may discriminate against another person on the basis of the other
person's disability under section 58 of the Principal Act, to the
extent that they have already complied with, or have been
exempted from compliance with, a relevant disability standard
made under the Commonwealth Disability Discrimination Act
1992, or to the extent that a relevant determination has already
been made under section 160B of the Building Act 1993.
Clause 14 inserts new section 58A into the Principal Act, which reflects
section 53 of the 1995 Act. New section 58A allows a person to
refuse to provide accommodation to a child or a person with a
child if the premises are unsuitable or inappropriate for
occupation by a child because of their design or location.
The exception does not allow a person to refuse to provide
accommodation where the premises are considered unsuitable for
other reasons such as the amenity of other guests. The exception
exists in the same terms in relation to residential tenancies in the
Residential Tenancies Act 1997.
Clause 15 inserts new section 66A into the Principal Act to allow clubs
principally established for a political purpose to restrict
membership on the basis of political belief or activity. Clause 15
is required due to the new definition of club in the Principal Act,
which defines a club as an association of 30 or more persons
associated for social, literary, cultural, political, sporting, athletic
or other purpose, that has a licence to supply liquor, which
captures political clubs with a liquor licence. Clause 15
acknowledges the importance of a person's political belief in
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determining their eligibility to join a club established principally
for a political purpose.
Clause 16 inserts a new subsection (2) in section 69 of the Principal Act to
clarify the matters to be considered in applying the exception to
allow clubs to limit a member's access to benefits on the basis of
their sex where it is not practicable for men and women to enjoy
the same benefit together and access to the same or an equivalent
benefit is provided separately for men and women or men and
women are entitled to a reasonably equivalent opportunity to
enjoy the benefit. New section 69(2) is consistent with
section 25(5) of the Commonwealth Sex Discrimination Act
1984.
Clause 17 amends section 72 of the Principal Act to create two new
exceptions to apply to competitive sporting competitions.
The first exception permits single sex competitions in
competitive sporting activities if such competitions are necessary
to allow participants to progress to elite level national or
international competitions.
The second exception permits single sex competitions or
restrictions on the participation of one sex, where an exclusion or
restriction is intended to facilitate participation in the sport and is
otherwise reasonable. The nature of the activity, the
consequences of the exclusion on the excluded or restricted sex
and whether there are other opportunities for persons of the
excluded or restricted sex to participate in the activity are factors
to be considered in addressing the requirement for
reasonableness. The new exception is in addition to the existing
exception for sports where strength, stamina or physique is
relevant. The new exception is intended to be only available
where it is designed to work in favour of participation by the
non-excluded or non-restricted sex. Hence, the exception would
not be available to allow, for example, male-only competitions in
sports where continuing male participation has not been an issue.
The new exceptions will not apply to sporting activities for
children under 12 years of age in accordance with section 72(3)
of the Principal Act.
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Clause 18 amends section 82(2) of the Principal Act and repeals
section 82(3) and (4) to remove the "inherent requirements test"
in the exception permitting a religious body to discriminate in
employment on the grounds of religious belief or activity, sex,
sexual orientation, lawful sexual activity, marital status, parental
status and gender identity if the action conforms with the
religion's doctrines, beliefs or principles or is reasonably
necessary to avoid injuring the religious sensitivities of the
religion's adherents. The "inherent requirements test" requires a
religious body to show that conforming with the doctrines,
beliefs or principles of the religion is an inherent requirement of
the job and that the person discriminated against does not meet
the inherent requirement because of a relevant attribute.
By removing the inherent requirements test, employment will
become one of the types of action covered by the general
religious exception to apply to a religious body in section 82 of
the Principal Act.
Clause 19 amends section 83(2) of the Principal Act and repeals
section 83(3) and (4) to remove the "inherent requirements test"
in the exception for employment in a religious school.
By removing the inherent requirements test, employment will
become one of the types of action covered by the general
religious exception to apply to a religious school in section 83 of
the Principal Act.
Clause 20 amends section 104(1)(d)(ii) of the Principal Act to omit
"or a public inquiry" to reflect the Bill's removal of the power of
the Commission to conduct a public inquiry.
Clause 21 substitutes Part 9 of the Principal Act. New Part 9 deals with the
ability of the Commission to conduct investigations of serious
systemic discrimination. New Part 9 removes the ability of the
Commission to conduct public inquiries, narrows the
circumstances where the Commission may conduct an
investigation and provides for procedural matters to apply to an
investigation. New Part 9 removes the ability of the Commission
to enter into enforceable undertakings and to issue compliance
notices.
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Division 1--Commission may conduct investigation
New section 127
New section 127 narrows the circumstances in which the
Commission may conduct an investigation into serious systemic
discrimination by including additional matters that the
Commission must have regard to when deciding whether to
investigate.
New section 127 provides that the Commission may conduct an
investigation into any matter relating to the operation of the
Principal Act if the matter raises an issue that is serious in nature,
relates to a class or group of persons and cannot reasonably be
expected to be resolved by dispute resolution or by making an
application to the Tribunal under section 122, if there are
reasonable grounds to suspect that one or more contraventions of
the Act have occurred and if the investigation would advance the
objectives of the Principal Act.
The primary intention of new section 127 is to prevent the
Commission from undertaking an investigation in circumstances
where an aggrieved individual or individuals could reasonably be
expected to bring a dispute to the Commission for resolution or
make an application to the Tribunal under section 122 of their
own volition, which would be likely to resolve discrimination
which may be occurring. However, section 127 provides scope
for the Commission to investigate a matter in a situation where
legitimate barriers exist to a person taking action of their own
volition, such as in cases where they are in a vulnerable position
or there is a fear of further victimisation, or when an individual
remedy would not be adequate to address the systemic
discrimination.
New section 128
The section provides that the Tribunal may refer a matter, other
than a matter that is the subject of proceedings before the
Tribunal, to the Commission for the Commission to consider
whether the Commission should conduct an investigation.
This mirrors the power of the Tribunal in current section 129 of
the Principal Act, while clarifying that the Commission is to have
discretion as to whether to conduct an investigation.
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Division 2--Conduct of investigations
New section 129
New section 129 reflects current section 130 of the Principal Act
to provide that the Commission may conduct an investigation in a
manner it thinks fit, subject to new Part 9. The Commission is
bound by the principles of natural justice in conducting an
investigation, unless otherwise expressly provided in new Part 9.
New section 130
The section clarifies that the Commission may ask for
information from any party on a voluntary basis if it is reasonably
necessary for the purposes of conducting an investigation.
New sections 131 and 134
New sections 131 and 134 provide that the Commission may
apply for an order from the Tribunal to compel a person to
produce information or a document or to compel a person to
attend to give evidence. New sections 131(3) and 134(3) provide
that the Tribunal must have regard to any evidence of the impact
that making the order would be likely to have on the person's
business or other activities and the extent of disruption or
inconvenience that is likely to be caused to the person if the order
were made. New sections 131(4) and 134(4) make it clear that in
making an order, the Tribunal should not be required to consider
whether the Commission may conduct the investigation under
new section 127.
New section 132
New section 132 creates a general prohibition on the Tribunal
granting an order requiring the creation of a document in relation
to an investigation conducted by the Commission, subject to two
exceptions. The first is where the document can be produced by
the use of a computer or other equipment that is ordinarily
available to the person for retrieving or collating stored
information. The second exception is where it would contain
factual information that is ordinarily available to the person and
the Tribunal considers that the document would significantly
assist the investigation and the document would not be
unreasonably disruptive or inconvenient to produce. This is
intended to prevent the use of the power to require a respondent
to produce detailed analysis and commentary on its activities.
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New section 133
New section 133 mirrors current section 132(4) and (5) of the
Principal Act to provide that if an order is granted under new
section 131 for the production of a document, the Commission
may take possession of the document, make copies or take
extracts from the document, and retain possession of the
document for as long as is necessary for the purposes of the
investigation to which the document relates. The Commission
must allow a document retained under new section 133 to be
inspected at all reasonable times by a person who would be
entitled to inspect the document if it were not in the possession of
the Commission.
New section 135
New section 135 reflects current section 136 of the Principal Act
to enable the Commission to prohibit disclosure of the identity of
a person who has given or will give information or documents to
the Commission in the context of an investigation. The purpose
of the section is to allow the Commission to preserve the
anonymity of any person who provides evidence to the
Commission where it is necessary to protect the security of
employment or the privacy or any human rights of the person.
New section 136
The section re-enacts section 137 of the Principal Act to enable
the Commission to give a direction prohibiting the publication of
certain evidence, information or documents given in the course of
an investigation, where it is necessary to avoid prejudice to
Government relations or law enforcement or the endangering of
the life or safety of a person, and various other circumstances
based on overriding public interest considerations.
New section 137
New section 137 reflects current section 138 of the Principal Act
to provide that the Commission may apply to the Tribunal for an
interim order to prevent any person acting in a manner prejudicial
to an investigation while the investigation is being undertaken.
This is similar to section 131 of the 1995 Act and also
section 121 of the Principal Act which allows the Tribunal to
make interim orders in the context of dispute resolution under
Part 8. New section 137 does not alter the Tribunal's power
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under the Victorian Civil and Administrative Tribunal Act
1998 to make interim orders.
New section 138
New section 138 provides that the Commission may
commence or continue an investigation notwithstanding that
proceedings have commenced in a court or tribunal that relate to
or are connected to the subject matter of the investigation.
However, under section 138(2) if the Commission is or becomes
aware that such proceedings have commenced, the Commission
must take all reasonable steps to ensure that the investigation
does not prejudice those proceedings.
Division 3--Outcomes of investigations
New section 139
New section 139 sets out the action that the Commission may
take after conducting an investigation, including entering into an
agreement with a person about action required to comply with the
Principal Act, referring a matter to the Tribunal or making a
report with respect to the matter to the Attorney-General or
directly to the Parliament.
New section 140
New section 140 provides that if the Commission enters into an
agreement with a person or persons about action required to
comply with the Principal Act following an investigation, and if
the agreement so provides, the Commission or a person who is a
party to the agreement may register the agreement with the
Tribunal so that it becomes enforceable as if it were an order of
the Tribunal.
New section 141
The section sets out procedural matters to apply to an inquiry
conducted by the Tribunal if a matter has been referred to the
Tribunal under new section 139(2)(c). New section 141 is based
on section 159 of the 1995 Act.
New section 141(1) provides that if after an investigation,
the Commission refers a matter to the Tribunal under new
section 139(2)(c), the Tribunal must conduct an inquiry into the
matter. The Tribunal may conduct an inquiry as it thinks fit,
subject to the Principal Act. The Tribunal may make both or
either of the following orders, if satisfied that a person has
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contravened the Principal Act--an order that the person refrain
from acting in contravention of the Act, or an order that the
person do anything specified in the order with a view to
eliminating future contravention of the Act or redressing
circumstances that have arisen from the contravention.
New section 141(3) makes it clear that the Commission may be a
party to any proceeding referred to the Tribunal under new
section 139(2)(c).
New section 142
The section provides for the procedure to apply if the
Commission provides a report of an investigation to the
Attorney-General under new section 139(2)(d) or to the
Parliament under new section 139(2)(e) of the Principal Act.
New section 142(4) makes it clear that the Commission may
publish a report on an investigation, whether or not a report has
been made to the Attorney-General or to the Parliament.
New section 143
New section 143 mirrors section 141 of the Principal Act to
provide that where the Commission believes there are grounds
for making adverse findings in an investigation, the Commission
must give the person who is the subject of the adverse findings a
reasonable opportunity to respond to the findings before the
report is given to the Attorney-General or to the Parliament or
published by the Commission.
New section 143(2) enables the Commission to exclude from the
report any matter it sees fit, having regard to the public interest
factors listed in new section 135(2), which deals with
suppression of information likely to identify an individual, and
section 136(3), which deals with suppression of information and
documents in the context of an investigation. If the Commission
provides a report to the Attorney-General, the Commission must
advise the Attorney-General about any matter excluded and the
reason for its exclusion.
New section 144
The section clarifies that the secrecy provisions under section 176
of the Principal Act do not apply to a report published or
provided to the Attorney-General or to the Parliament under new
Division 3 of Part 9.
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Clause 22 amends section 151 of the Principal Act to provide that the
Commission can undertake a review of a person's programs and
practices to determine their compliance with the Act on a fee for
service basis, on such terms as may be agreed between the
Commission and the requesting party.
Clause 23 substitutes section 153(2) of the Principal Act to allow the
Commission discretion as to whether an action plan lodged with
the Commission is to be included in a published Register of
Action Plans.
Clause 24 amends section 157(2) of the Principal Act to make it clear that
the Commission may collect and analyse "information" as well as
data relevant to the operation and the objectives of the Act
pursuant to the Commission's power under section 157(1).
Clause 25 substitutes Divisions 2 and 3 of Part 11 of the Principal Act. Part
11 deals with the constitution, functions and governance
arrangements of the Commission. Division 2 provides for the
Board of the Commission. Division 3 provides for the
Commissioner of the Commission.
The new Divisions alter the governance structure of the
Commission in order to provide for an independent chairperson
of the Board and to provide for a Commissioner, appointed by
the Board with the approval of the Attorney-General, who will
carry out the day-to-day operations of the Commission in
accordance with the policies, priorities and strategies determined
by the Board.
It is noted that the transitional provisions in clause 29 of the Bill,
in particular new section 195A, provide that the Board of the
Commission continues as a legal entity notwithstanding the
changes to its membership.
Division 2--The Board
New section 161
New section 161 provides that the Board of the Commission
consists of up to 7 members, who are appointed by the Governor
in Council on the recommendation of the Attorney-General.
The Commissioner will no longer be a member of the Board.
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New section 162
Section 162 provides that the Board has overall responsibility for
the Commission's general functions and duties and has all the
powers necessary to enable it to perform them. The Board has
particular responsibility for determining the Commission's
strategic direction and for setting policies, priorities and
strategies for the Commission in performing its functions.
The Board is also responsible for deciding whether the
Commission should conduct an investigation into serious
systemic discrimination.
It is noted that the Governance Principles in Division 2 of Part 5
of the Public Administration Act 2004 apply to the Commission
as a result of an Order that was made by the Governor in Council
and published in the Government Gazette on 10 September 2009.
New section 163
New section 163 sets out the terms of appointment of Board
members. A Board member is appointed on a part-time basis and
holds office for a period not exceeding five years. A Board
member will be eligible for reappointment to the Board.
The Public Administration Act 2004 (other than Part 3 of that
Act, which relates to public service employment), applies to a
Board member in respect of the appointment.
New section 164
New section 164 provides for the resignation and removal of a
member of the Board. A Board member ceases to hold office if
he or she has been convicted of an indictable offence, has
become insolvent or resigns. The Governor in Council has the
discretion to remove a Board member from office on the grounds
of unexplained absenteeism from three consecutive meetings of
which reasonable notice has been given, incapacity, misconduct
or a personal and significant breach of Australian equal
opportunity or anti-discrimination law that would otherwise
amount to misconduct.
New section 165
The 1995 Act provides that the Commissioner is a member of the
Board and presides at a meeting of the Board. However, under
the Principal Act as amended by the Bill, the Commissioner will
no longer be a member of the Board. Instead, new section 165
provides that, on the recommendation of the Attorney-General,
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the Governor in Council must appoint one of the Board members
as the chairperson of the Board. If the person ceases to be a
member of the Board, he or she will also cease to hold the office
of chairperson. The chairperson otherwise holds the office of
chairperson for a period not exceeding five years and may be
reappointed. The chairperson is able to resign as chairperson by
writing delivered to the Governor in Council.
New section 166
New section 166 enables the Governor in Council, on the
recommendation of the Attorney-General, to appoint a person to
act as the chairperson of the Board or a member of the Board,
if the chairperson or other Board member ceases to hold office
before his or her appointment expires or is unable to perform the
duties or functions of his or her office. An acting chairperson
holds office for the rest of the term of appointment of the
chairperson or for the period that the chairperson is unable to
perform the duties or functions of the office. An acting Board
member holds office for the rest of the term of appointment of
the member whose place he or she fills or for the period that the
member is unable to perform the duties or functions of the office.
The Governor in Council may otherwise terminate an acting
appointment at any time.
New section 167
New section 167 provides that eligible members of the Board are
entitled to fees and allowances fixed by the Governor in Council.
New section 168
New section 168 provides for the procedure of the Board at
meetings. The chairperson must preside at a meeting of the
Board. If the chairperson is not present, the members present
may elect a member to preside. The person presiding has a
deliberative vote and a second or casting vote. A majority of the
Board members holding office constitutes a quorum. Subject to
the Principal Act, the Board may otherwise regulate its own
proceedings.
New section 169
New section 169 protects the validity of an act or decision by the
Board in the event of a vacancy in the Board's membership or a
defect in the appointment of a member.
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Division 3--The Commissioner
New section 170
New section 170 provides that there is still to be a position of
Commissioner of the Victorian Equal Opportunity and Human
Rights Commission. The Commissioner is appointed by the
Board with the approval of the Attorney-General.
The Commissioner is responsible to the Board for control of the
day-to-day administration of the affairs of the Commission in
accordance with the policies, priorities and strategies determined
by the Board. The Commissioner also has any other functions,
powers and duties delegated by the Commission or Board.
It is noted that under an Order made by the Governor in Council
under section 16 of the Public Administration Act 2004 and
published in the Government Gazette on 10 September 2009, the
Commissioner has all the functions of a public service body Head
in relation to employees of the Commission. The Commissioner
will continue to be the employer of Commission staff, who, as set
out in section 174 of the Principal Act, are public sector
employees under Part 3 of the Public Administration Act 2004.
New section 171
New section 171 provides that the Commissioner is entitled to
receive the remuneration and allowances fixed by the Board.
New section 172
New section 172 enables the Board, with the approval of the
Attorney-General, to appoint a person to act as Commissioner if
the Commissioner ceases to hold office before his or her term of
appointment expires, or is unable to perform the duties or
functions of the office. An acting Commissioner holds office for
the rest of the term of appointment of the Commissioner or for
the period that the Commissioner is unable to perform the duties
or functions of the office. The Board may otherwise terminate an
acting appointment at any time.
Clause 26 amends section 175 of the Principal Act, which sets out the
ability of the Commission, the Board and the Commissioner to
delegate their powers, functions or duties. The amendments
provide that the Board is not able to delegate the function of
deciding whether the Commission should conduct an
investigation under section 127 of the Principal Act to the
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Commissioner. The Board is, however, able to delegate this
function to a member of the Board or the members of a
subcommittee of the Board. Other than in relation to this
function, the Board may delegate any of its powers, functions or
duties to a member of the Board, a member of a sub-committee
of the Board or to the Commissioner. The Board may not
directly delegate to staff of the Commission, but may delegate to
the Commissioner who may then delegate to staff.
The amendment to section 175(4) of the Principal Act makes it
clear that the Commissioner may delegate to a member of staff of
the Commission any of the powers, functions or duties delegated
to the Commissioner under subsections (1) or (2), other than the
Commissioner's power of delegation.
Clause 27 inserts new section 176A into the Principal Act.
New section 176A is an exception to the secrecy provisions
contained in section 176 of the Principal Act. Section 176 makes
it an offence for persons connected with the Commission to
disclose personal information under the Act unless it is necessary
to do so under the Act. New section 176A provides an exception
that permits the Commission and persons connected with it to
disclose certain information in limited circumstances where
disclosure is required by an order of a court for the purposes of a
criminal proceeding or upon the consent of the relevant parties.
Clause 28 inserts a new section 188A into the Principal Act, which makes
clear that a natural person can refuse to give information, answer
a question or produce a document under the Act if the giving of
the information, the answering of the question or the production
of the document would tend to incriminate the person. A similar
provision exists in current section 135 of the Principal Act.
New section 188A replaces that section.
Clause 29 inserts new sections 195A to 195C into the Principal Act. These
new sections are transitional provisions.
New section 195A makes clear that the Board of the Commission
continues to be the same body despite the change in its
membership (made by clause 25 of the Bill).
New section 195B provides that despite section 168 of the
Principal Act (which requires the chairperson of the Board to
preside at a meeting of the Board at which the chairperson is
present), if on the commencement of the Act on 1 August 2011,
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a chairperson or acting chairperson has not been appointed, then
members of the Board can elect a member to preside at meetings.
New section 195C provides for the continuation of the term of
the existing Commissioner for the remainder of the
Commissioner's term of appointment, subject to the existing
terms and conditions of appointment. The provisions of
section 172 of the 1995 Act relating to the resignation and
removal of the Commissioner will also continue to apply.
The section also makes clear that on the commencement of the
Principal Act (intended to be on 1 August 2011), the
Commissioner ceases to be a member of the Board.
This recognises the changes to the governance structure of the
Commission made by the Bill.
Clause 30 amends section 205 of the Principal Act, which makes
consequential amendments to the Victorian Civil and
Administrative Tribunal Act 1998. Clause 30 makes
consequential amendments required as a result of changes to the
investigation powers of the Commission under clause 21 of the
Bill, including the ability for the Commission to refer a matter to
the Tribunal for an inquiry.
Clause 31 amends section 207 of the Principal Act, which makes further
consequential amendments to the Victorian Civil and
Administrative Tribunal Act 1998. Clause 31 sets out the
requirements for notification by the Tribunal of parties where the
Tribunal commences an inquiry. The Tribunal can commence an
inquiry where a matter is referred to it by the Commission at the
conclusion of an investigation undertaken by the Commission.
If so referred, the Tribunal may direct the principal registrar to
notify any person who the Tribunal considers may have an
interest in the matter.
Clause 32 repeals Part 16 of the Principal Act, which contains consequential
amendments to the 1995 Act and statute law that have already
taken effect and are spent.
Clause 33 repeals Part 17 of the Principal Act, which contains
consequential amendments to the Principal Act to recognise the
Public Finance and Accountability Act 2010 which did not
proceed. The Financial Management Act 1994 remains the
relevant Act.
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Clause 34 provides that the Principal Act is amended as set out in the
Schedule.
PART 3--AMENDMENTS TO THE ELECTORAL ACT 2002
Clause 35 inserts new section 17A in the Electoral Act 2002 to permit the
Victorian Electoral Commission to discriminate against a person
in relation to offering employment or appointment as a member
of the audit committee of the Commission on the basis of that
person's political belief or activity. The Victorian Electoral
Commission is required by notice published in the Government
Gazette to issue guidelines setting out the criteria to be applied in
relation to refusing employment or appointment on the basis of a
person's political belief or activity.
The new section accords with section 75 of the Principal Act,
which permits discrimination if it is authorised by an Act or an
enactment.
PART 4--REPEAL OF AMENDING ACT
Clause 36 provides for the automatic repeal of the Bill on 1 August 2012.
The repeal of the Act does not affect in any way the continuing
operation of the amendments made by it, (see section 15(1) of the
Interpretation of Legislation Act 1984).
SCHEDULE--FURTHER CONSEQUENTIAL AMENDMENTS
TO THE PRINCIPAL ACT
This Schedule sets out consequential amendments to the Principal Act to
recognise the replacement of the term "impairment" with "disability" in the
Principal Act and to recognise that the Board will have the powers, functions
and duties of the Commission rather than the Commissioner. The Schedule
also includes consequential amendments to the consequential amendments
already provided for in the Principal Act.
Item 1 makes consequential amendments to Part 1 of the Principal Act
to reflect the changed role of the Commissioner and Commission
and replacement of the term "impairment" with "disability" in the
Act.
Item 2 makes consequential amendments to Part 2 of the Principal Act
to reflect the replacement of the term "impairment" with
"disability" in the Act.
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Item 3 makes consequential amendments to Part 4 of the Principal Act
to reflect the replacement of the term "impairment" with
"disability" in the Act.
Item 4 makes consequential amendments to Part 5 of the Principal Act
to reflect the replacement of the term "impairment" with
"disability" in the Act.
Item 5 makes consequential amendments to Part 7 of the Principal Act
to reflect the changed role of the Commissioner and Commission
in the Act.
Item 6 makes consequential amendments to Part 8 of the Principal Act
to reflect the changed role of the Commissioner and Commission
and replacement of the term "impairment" with "disability" in the
Act.
Item 7 makes consequential amendments to Part 13 of the Principal Act
to reflect the changed role of the Commissioner and Commission
in the Act.
Item 8 makes consequential amendments to Part 14 of the Principal Act
to reflect the changed role of the Commissioner and Commission
in the Act.
Item 9 makes consequential amendments to Part 15 of the Principal Act,
which provides for consequential amendments to the Racial and
Religious Tolerance Act 2001 and the Victorian Civil and
Administrative Tribunal Act 1998. The consequential
amendments in Item 9 reflect the changed role of the
Commissioner and Commission and replacement of the term
"impairment" with "disability" in the Act.
Item 10 makes consequential amendments to the Schedule to the
Principal Act, which provides for consequential amendments to
other Acts. Item 10.1 makes a consequential amendment to
section 3(1) of the Charter of Human Rights and
Responsibilities 2006 to replace the term "impairment" with
"disability". Item 10.2 makes consequential amendments to
sections 27 and 29 of the Information Privacy Act 2000 to
replace the term "impairment" with "disability". Item 10.3 makes
a consequential amendment to section 3 of the Sex Offenders
Registration Act 2004 to replace the term "impairment" with
"disability". Item 10.4 makes a consequential amendment to
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section 102 of the Working with Children Act 2005 to replace
the term "impairment" with "disability.
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