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Equal Opportunity and Tolerance Legislation
(Amendment) Bill
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purpose of the Bill.
Clause 2 is the commencement provision. Sections 1, 2, 3, 4, 7 and 10(3)
will come into operation on the day after the Bill receives the
Royal Assent. The remaining clauses will come into operation
on a day or days to be proclaimed or on 1 January 2007,
whichever is the earlier.
Clause 3 amends section 108(1A) of the Equal Opportunity Act 1995 to
empower the Equal Opportunity Commission to issue a notice to
require any person to attend before the Commission, or a member
or member of staff of the Commission or to produce specified
documents.
The notice may only be issued if it is reasonably necessary during
the investigation phase of the complaint-handling process, for the
purpose of determining whether to decline to entertain a
complaint lodged pursuant to section 105 of the Equal
Opportunity Act 1995. The notice must also set out a
reasonable time for attendance and the production of documents.
Failure to comply with a notice issued pursuant to section
108(1A) is an offence under section 201 of the Equal
Opportunity Act 1995.
The Commission retains the ability to invite any person to attend
before the Commission, or a member or member of staff of the
Commission, for the purpose of discussing the complaint or to
produce any documents.
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551403 BILL LA INTRODUCTION 4/4/2006
Clause 4 amends section 114(2) of the Equal Opportunity Act 1995 to
clarify that the Chief Conciliator may only issue a notice to
require any person to attend before him or her for the purpose of
discussing the subject matter of a complaint or to produce
specified documents, if it is reasonably necessary for the purpose
of conciliating a complaint.
The notice must also set out a reasonable time for attendance and
the production of documents.
Failure to comply with a notice issued pursuant to section 114(2)
remains an offence under section 201 of the Equal Opportunity
Act 1995.
The Chief Conciliator retains the ability to invite any person to
attend before him or her, for the purpose of discussing a
complaint or to produce any documents.
Clause 5 amends section 131(2) of the Equal Opportunity Act 1995 to
allow VCAT to make interim orders before an application is
made under new section 23A of the Racial and Religious
Tolerance Act 2001.
Clause 6 inserts a new paragraph into section 134(1) of the Equal
Opportunity Act 1995 to enable VCAT to hear a complaint on
an application under new section 23A of the Racial and
Religious Tolerance Act 2001 if VCAT has given leave for that
application. This is as a result of the amendments made by this
Bill to the Equal Opportunity Act 1995 that provide that the
referral mechanisms to VCAT under section 108 in relation to
complaints under the Racial and Religious Tolerance Act 2001
do not apply to complaints that the Equal Opportunity
Commission declines to entertain.
Clause 7 substitutes a new section 201 of the Equal Opportunity
Act 1995 which provides that a person must not, without
reasonable excuse, fail to comply with a notice of the
Commission under section 108(1A) or of the Chief Conciliator
under section 114(2) of the Equal Opportunity Act 1995.
The maximum penalty is 20 penalty units.
Clause 8 inserts a new section 225 into the Equal Opportunity Act 1995
as a transitional provision, which provides that the amendments
made by clause 6 apply to complaints lodged on or after the
commencement of that clause. The relevant complaints are those
made to the Equal Opportunity Commission under section 105 of
the Equal Opportunity Act 1995.
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Clause 9 clarifies the meaning of "religious purpose" in section 11 of the
Racial and Religious Tolerance Act 2001, by providing that
"religious purpose" includes, but is not limited to, conveying or
teaching a religion or proselytising. In the VCAT decision of
Fletcher v Salvation Army Australia (Anti-Discrimination)
[2005] VCAT 1523, Justice Morris held that a religious purpose
may include proselytising. Section 11 continues to require that
the conduct was engaged in reasonably and in good faith.
Clause 10 Sub-clauses (1) and (2) provide that section 108(2), (3), (4)
and (5) of the Equal Opportunity Act 1995 does not apply to a
complaint made under the Racial and Religious Tolerance
Act 2001 if the Equal Opportunity Commission declines to
entertain the complaint. This means that a complainant who has
had his or her complaint declined to be entertained by the
Commission under section 108(1) will be unable to require the
Commission to refer the complaint to VCAT. Instead, new
section 23A of the Racial and Religious Tolerance Act 2001
(inserted by clause 11 of this Bill) sets out the applicable
provisions.
Sub-clause (3) inserts sub-section (4) into section 23 of the
Racial and Religious Tolerance Act 2001 to avoid any doubt
that section 210 and the offences in Division 2 of Part 10 of the
Equal Opportunity Act 1995 apply to any proceeding before the
Equal Opportunity Commission involving a complaint made
under the Racial and Religious Tolerance Act 2001.
Clause 11 inserts new section 23A into the Racial and Religious
Tolerance Act 2001 permitting a complainant, whose complaint
was declined under section 108(1) of the Equal Opportunity
Act 1995, to apply to VCAT to hear the complaint, with VCAT
required to give leave for the application to proceed. In the
VCAT decision of Fletcher v Salvation Army Australia (Anti-
Discrimination) [2005] VCAT 1523, Justice Morris
recommended the introduction of a leave mechanism in cases
concerning complaints made under the Racial and Religious
Tolerance Act 2001 which the Commission had already declined
to entertain.
New sub-section (2) provides that the application for leave must
be made within 60 days after the complainant receives the
Commission's notice declining to entertain the complaint.
New sub-section (3) gives VCAT the discretion to determine
a leave application under this section entirely on the basis of
documents without any physical appearance by the parties
or legal representatives, whether or not the parties agree.
Further, VCAT may give leave subject to any conditions it thinks
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fit. In Fletcher v Salvation Army Australia (Anti-Discrimination)
[2005] VCAT 1523 Justice Morris noted that the question
whether leave should be granted could be decided on the papers.
As this power is discretionary VCAT will be able to determine
when and how it is appropriate to use the power available to it.
New sub-section (4) provides that in relation to a leave
application VCAT may consider a number of grounds in deciding
whether or not to grant leave, which are the same grounds that
are set out in section 108(1) of the Equal Opportunity
Act 1995.
New sub-section (5) confirms that VCAT's discretion on granting
or refusing to grant leave is not limited by sub-section (4).
New sub-section (6) provides that the complainant must notify
the Commission in writing of any application for leave within
30 days after an application is made to VCAT. This notification
facilitates the dismissal of the complaint by the Commission if
the complainant fails to apply for leave.
New sub-section (7) provides that the Commission may dismiss a
complaint if the complainant fails to apply for leave within
60 days or VCAT refuses to grant leave and no application for
leave to appeal to the Supreme Court is made, or an application is
made but is unsuccessful or an appeal is unsuccessful.
New sub-section (8) provides that if the Commission dismisses a
complaint under sub-section (7) no further action in relation to
that complaint may be taken. This is based on section 108(4) of
the Equal Opportunity Act 1995.
New sub-section (9) (based on section 108(5) of the Equal
Opportunity Act 1995) provides that the Commission must
provide written notice to the complainant and respondent of any
dismissal under sub-section (7).
New sub-section (10) provides that VCAT's determination of
the leave application is question of law for the purposes of
section 148 of the Victorian Civil and Administrative
Tribunal Act 1998. This enables an applicant under sub-
section (1) to seek leave to appeal to the Supreme Court for
review of VCAT's decision on the leave application.
New sub-section (11) provides that if a complainant makes an
application for leave to appeal to the Supreme Court he or she
must notify the Commission within 30 days of making the
application. This notification facilitates the dismissal of the
complaint by the Commission if the application for leave to
appeal or any appeal is unsuccessful.
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Clause 12 inserts a new section 32 into the Racial and Religious
Tolerance Act 2001 as a transitional provision, which provides
that the amendments made by clause 10(1) and (2) apply to
complaints lodged with the Commission on or after the
commencement of those sub-clauses, and provides that new
section 23A of the Racial and Religious Tolerance Act 2001
applies to complaints lodged with the Commission on or after the
commencement of clause 11.
The relevant complaints are those made to the Equal Opportunity
Commission under section 105 of the Equal Opportunity Act
1995.
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