ALERT DIGEST 6 of 1995
Part 2
4.1
This Bill was introduced into the Legislative Assembly on 3 May 1995 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.
4.1
The Committee was given the task of inquiring into the effectiveness and efficiency of the Equal Opportunity Act 1984 in 1993. As a result, the Committee tabled two Reports on that Act in 1993. The Interim Report was tabled in October 1993. The Final Report was tabled in November 1993. The Committee made 60 Recommendations. In particular, it recommended that there be extended grounds prohibiting discrimination. The Committee notes that the majority of those recommendations in respect of the extended grounds have been adopted.
4.3
The purposes of the Bill are:-
- to re-enact and extend the law relating to equal opportunity and discrimination;
- to remove compulsory retirement provisions from Acts;
- to repeal the Equal Opportunity Act 1984 and make consequential amendments to other Acts.
4.4 ¯ What is prohibited discrimination?
Clause 3 sets out the objectives. Clause 4 sets out various definitions. Clause 6 sets the attributes on the basis of which discrimination is prohibited. Clauses 7, 8 and 9 sets out the meaning of discrimination, direct discrimination and indirect discrimination. Clause 12 provides for exceptions and exemptions to the prohibition of discrimination. These are discussed later at 4.5.
4.5 ¯ Part 3 - When is discrimination prohibited? - Exceptions
Clauses 13 to 15 set out various circumstances when discrimination is prohibited. Clause 16 sets out the exception which gives an employer the ability to discriminate in relation to the provision of domestic or personal services in relation to his or her home. Clause 17 also provides that an employer limit the offering of employment to people of one sex in relation to employment in the particular circumstances set out. Clause 18 sets out political employment as being an exception.
Clause 19 provides that an employer may 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. Clause 20 provides that family employment is also an exception.
Small business (where no more than 5 people are employed on a full-time basis) is an exception as set out in clause 21. In respect of this provision it may be argued that this involves a loss of rights for those people who may otherwise have been employed but for the discrimination of the employer. In the circumstances, the Committee refers the question of whether the reduction in rights is due or undue to the Parliament to debate.
4.6
Clause 23 provides that an employer may set reasonable terms or requirements of employment to take into account the reasonable and genuine requirements of the employment and various matters set out. An employer may set standards of dress and behaviour.
Clause 25 provides that in employment involving the care and instruction of children, discrimination is not prohibited by an employer against an employee or prospective employee where the employer has a rational basis for that belief. In respect of this provision it may be argued that this involves a loss of rights for those people who may lose their jobs because of a particular subjective belief on the part of the employer. The Government policy behind the provision is to continue the protection of children. The Committee accepts that as a matter of policy, there may well be different views as to what is appropriate. In the circumstances, the Committee is of the view that there is a reduction in rights but refers the question of whether the reduction is undue to the Parliament to debate.
Clause 29 provides that the prohibition on compulsory retirement does not come into effect until one year following the proclamation of the Act. Discrimination is not allowed in respect of "firms" as defined in the Partnership Act 1958 pursuant to clauses 30 and 31. The exception to this is set out in clause 32. Discrimination is not allowed in respect of educational authorities. The exception, special services or facilities is set out in clause 39. Educational institutions for particular groups are also exceptions as per clause 38.
4.7
Clause 43 provides that in relation to insurance, there may discrimination in the circumstances set out. Discrimination is permissible if it based on actuarial or statistical data. Credit providers may also discriminate pursuant to clause 44, on the basis of age, if it is based on actuarial or statistical data. Clause 47 prohibits discrimination in the disposal of land. Clause 53 provides that a person may refuse to provide accommodation to a child or a person with a child if the accommodation is unsuitable. Clause 54 provides that a person may discriminate in deciding who is to occupy residential accommodation in the circumstances set out. Clause 59 ensures that there is no discrimination in respect of membership of clubs. The exception to this, clubs for disadvantaged people or minority cultures is set out in clause 61. Another exception are clubs and benefits for particular age groups. Clause 65 prohibits discrimination in sport. The exception, sporting activities is set out in clause 66.
4.8 ¯ Part 4 - General exceptions to and exemptions from the prohibition of discrimination
Clause 73 allows discrimination in respect of superannuation funds on the basis of age and if it falls within the circumstances set out. Charities, religious schools and religious bodies are exempt pursuant to clauses 74,75 and 76. Private clubs are exempt under clause 78. Clause 83 enables the Tribunal, by notice published in the Government Gazette to grant an exemption in respect of any provisions of the Act. Clause 84 provides that the Minister in writing may grant an exemption to allow the compulsory retirement on the basis of age or any class of people employed under specified Acts.
4.9 ¯ Part 5 - Prohibition of sexual harassment
Clause 85 defines sexual harassment for the purposes of the Act. Clauses 86 to 95 set out the various prohibitions in relation to sexual harassment.
4.10 ¯ Part 6 - Prohibition of other conduct and vicarious liability for discrimination
Clause 97 prohibits victimisation as defined in clause 96. Clause 102 makes employers and principals vicariously liable.
4.11 ¯ Part 7 - Complaints and their resolution
Part 7 sets out the procedures for making complaints. Clause 108 provides that the Commission may decline to entertain some complaints. The complainant, may require the Commission to refer the complaint to the Tribunal for hearing within 60 days of receiving the Commission's notice. Clause 111 enables a Minister to refer a complaint directly to the Tribunal to be heard, if he or she considers that the subject matter of a complaint raises an issue of important public policy. Pursuant to clause 112, the Commission may refer complaints for conciliation. Clause 115 provides for conciliation agreements which may be enforced as an order of the Tribunal when lodged with the Registrar. Clause 119 provides that a complainant or a respondent may apply to the Commission to have a complaint expedited. Clause 124 enables a party to apply for referral to the Tribunal to have a complaint expedited without going to conciliation.
4.12 ¯ Special complaints
Division 5 sets out the provisions in relation to special complaints. Pursuant to clause 126 if a party to a complaint considers the complaint to be a special complaint, it may require the Tribunal to refer the complaint to the Supreme Court for determination. It is then a matter for the Supreme Court to determine whether in fact a complaint is a special complaint. Any appeal to the Court of Appeal may be made on a question of law. Clause 129 provides that if the special complaint was required to be referred to the Court by a party that is the State, the Court unless there are special circumstances must order that party to pay an amount fixed by the Court that reasonably reflects the additional costs incurred by the other party as a result of the complaint having been heard and determined by the Supreme Court instead of the Tribunal. Division 7 governs the jurisdiction of the Tribunal. Division 8 sets out the procedure of the Tribunal. The Tribunal is not bound by the rules of evidence. Any party to proceedings before a Tribunal may appeal to the Supreme Court on a question of law under clause 150.
4.13
Part 8 - Investigations by the Commission and Tribunal
Part 9 - Administration - The Commission
Clause 156 sets out how an investigation may be initiated. Clause 157 sets out what matters may be investigated. Clause 158 sets out how an investigation is conducted. Part 9 relates to administration. Clause 160 provides for the continuation of the Equal Opportunity Commission. In respect of the membership, the Commission consists of 5 members, being the Chief Conciliator and 4 others appointed by the Governor in Council. Note that section 215 enables current Commission members to continue in office for the balance of the term their appointments.
Clause 172 provides that the Commission may in writing, delegate to a member of the Commission, any of its powers or functions under the Act. Clause 179 enables the Chief Conciliator to delegate to an officer of the Commission any of his or her powers or functions under the Act.
4.14 ¯ Anti-Discrimination Tribunal
Part 12 - Repeals, amendments and transitional provisions
Clause 180 establishes the Anti-Discrimination Tribunal. The President and Deputy Presidents are appointed by the Governor in Council. Payment of the members is fixed from time to time by the Governor in Council. Clause 192 is the secrecy provision. Discriminatory advertising is an offence under clause 195 in Part 10. Clause 196 provides that reasonable precaution and due diligence is a defence. Clause 204 provides protection against self-incrimination. Clause 217 provides that any complaint lodged under the old Act must continue to be dealt with as if the Act had not been repealed. Clause 218 deals with new complaints. Clause 219 deals with current investigations. Clause 226 amends the Appeal Costs Act 1964 such that where a respondent is successful in proceedings before the Supreme Court, the Supreme Court, may in respect of special complaints, grant to the complainant an indemnity certificate which entitles the complainant to be paid from the Appeal Costs Fund.
4.15 ¯ Variation of Section 85 of the Constitution Act 1975 (Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968)
Clause 211 declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court the following actions:-
(a) any action in respect of a person's liability in relation to a matter, if section 47(4), 58(2), 193(2) or 210 provides that the person is not liable in relation to that matter. The Committee notes the comments in the Second Reading Speech: -
"Section 47(4) and 58(2) provide protection from liability to persons in relation to acts done or omitted to be done in compliance with the requirements of the new Equal Opportunity Act. The prohibition on discriminatory acts in relation to the disposal of land and in the provision of accommodation contained in sections 47 and 58 respectively, override the requirements of any covenants or obligations contained in any documents affecting land, which requirements can often be extremely discriminatory. It would be manifestly unjust to expose a person to liability for breaching such a covenant or other obligation. This protection already exists in the Equal Opportunity Act 1984.
Section 193(2) provides protection from liability to members of the Equal Opportunity Commission and the Anti-Discrimination Tribunal in relation to acts done or omitted to be done in good faith in performance of their duties under the new Act. For sound reasons of public policy, it is essential that the members of the Commission and the Tribunal be able to undertake their duties without fear that, for instance, a disgruntled party, unhappy with the result of a matter, might attempt to take legal action against them. This protection already exists in the Equal Opportunity Act 1984.
Section 210 provides protection from liability to a person who has lodged a complaint under the Act or produced a document, or any information or evidence to the Commission, the Chief Conciliator or the Tribunal under the Act. To ensure the proper resolution of complaints and the proper administration of justice it is essential that persons using the Act are unhindered by threats of legal action. This protection already exists in the Equal Opportunity Act 1984."
(b) any action in relation to a complaint dismissed by the Commission under Section 108, 110, 113, 117 or 123. The Committee notes the comments in the Second Reading Speech:-
"Sections 108, 110, 113, 117 and 123 limit a complainant's right to pursue further legal action once the Commission has dismissed a complaint where the complainant has failed to request referral to the Tribunal within 60 days of being advised by the Commission of his or her rights of referral. A time limit of 60 days should provide a complainant with sufficient time to consider his or her options and seek legal advice if necessary. It creates uncertainty and places an unfair burden on respondents if a matter that has been dismissed by the Commission can be re-litigated."
(c) any action relating to a complaint where a person has chosen another avenue of review under section 103 of the Public Sector Management Act 1992 in relation to the same subject matter. The Committee notes the comments in the Second Reading Speech:-
"Section 207(c) (The Committee assumes this is meant to be section 211(c)) is necessary because of the repeal and replacement of the Equal Opportunity Act 1984. It maintains the current position in the Public Sector Management Act 1992 which requires an officer or temporary employee to choose the avenue for resolution of a complaint."
The Committee is of the view that the proposed provisions are appropriate and desirable in all the circumstances.
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