Discrimination in the Law

The Inquiry

Under the Parliamentary Committees Act 1968, the Scrutiny of Acts and Regulations Committee (“the Committee”) has been asked to inquire into, consider and report to Parliament[1] on:

Provisions which discriminate, or may lead to discrimination, against any person as provided in section 207 of the Equal Opportunity Act 1995. In particular, the Committee is requested to:

1) identify provisions in Victorian Acts and enactments that operate to discriminate, or may lead to discrimination, against any person;

2) consider policy considerations for the retention, amendment or repeal of the provisions; and

3) make recommendations as to whether the provisions should be retained, amended or repealed.

In considering this reference the Committee should note the objectives of the Equal Opportunity Act 1995 which include:

1) to promote recognition and acceptance of everyone’s right to equality; and

2) to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes.

The review arises under section 207 of the Equal Opportunity Act 1995 (“EOA”), which imposes an obligation on the Attorney-General as the Minister responsible for its administration. Section 207 provides—

The Minister must cause a review of all Acts and enactments (other than municipal council by-laws or local laws) to be undertaken for the purpose of identifying provisions which discriminate, or may lead to discrimination, against any person.

Background

The Committee is a joint parliamentary committee established in Victoria under the Parliamentary Committees Act.[2]

A key function of the Committee is to consider Bills introduced into Parliament and to report to the Parliament as to whether the Bill, by express words or otherwise–

(i) trespasses unduly upon rights or freedoms; or

(ii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers; or

(iii) makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions.[3]

An additional function of the Committee is to review ‘statutory rules’ (regulations) against the terms of reference specified in the Subordinate Legislation Act 1994, including an examination of ‘rights and freedoms’ issues that may be raised by those regulations.
The Committee also has the responsibility to review any Act where required to do so by or under the Parliamentary Committees Act, in accordance with the terms of reference under which the Act is referred to the Committee.

Accordingly, a focus of the Committee’s role is to examine how legislation provides or hinders access to human rights and freedoms and the operation of human rights principles for the Victorian community.

Human rights are the basic entitlements that belong to all people just because we are human beings. Everyone has the same human rights entitlements: men, women and children, rich and poor; black and white; all nationalities and faiths.

The primary objective of the EOA, is to promote recognition and acceptance of everyone's right to equality of opportunity. This is founded in universal principles of human rights. This is an unqualified goal where generality and breadth is emphasised by the assertion that it is the 'right' of everyone, and that acceptance and not merely recognition of these rights is important.

The election platform of the second Bracks Government included a commitment to the development of a Justice Statement. It may be argued that it would be appropriate that the protection of human rights in Victoria and the implications for particular people in Victoria, for example women, Indigenous people, people with disabilities, be included in a Justice Statement.

Approach of the Inquiry

The Committee views the inquiry as being one where the rights and freedoms focus of its own role and the objectives of the EOA to promote recognition and acceptance of everyone’s right to equal opportunity and the elimination of discrimination, are strongly connected.

The principles and methodology of the review will ensure that the review is thorough and consistent with the objectives of the EOA.

The inquiry process is—

• Discussion Paper;

• Public submissions and consultation, including public hearings;

• Interim Report; and

• Final Report to the Parliament.

Overview of the Discussion Paper

All discrimination laws recognise the general principle that there is some legislation which may conflict with the content of anti-discrimination laws and principles.[4] In many instances, the conflicts are based on sound policy and are in accordance with community values and expectations. Examples include where laws allow (i) specialist religious or other educational institutions, (ii) youth wages to be paid, (iii) an entitlement to an age pension, or (iv) insurance policies that discriminate on the basis of age or health status.

However, in other circumstances laws may be discriminatory or may lead to discrimination, and the basis of the law is either out-of-date or is unintended.

The task of the review is to examine Acts and Regulations which discriminate, or may lead to discrimination. Consequently, this Discussion Paper has identified some provisions in legislation by way of example which do discriminate against some people.

However, even preceding the examination of the provisions, an understanding of the concepts of discrimination is required. Therefore, Chapter Two examines the nature of discrimination law under the EOA and the various requirements for understanding when treatment that may appear to be unjust amounts to unlawful discrimination. Chapter Three explains the attributes or personal characteristics that form the basis of anti-discrimination law. Chapter Four discusses the way that exemptions and exclusions work and uses some examples of legislation that are discriminatory. Chapter Five examines the approach taken by some other jurisdictions in managing the balance between the principles of human rights in anti-discrimination law and the circumstances where discrimination should be permitted.

The Discussion Paper therefore covers the following questions:

• What is discrimination law?

• What is direct and indirect discrimination?

• What are attributes?

• What are exemptions and exceptions?

• What is meant by compliance with another Act?

Aim of the Discussion Paper

The aim of the Discussion Paper is to provide information to the Victorian community to assist them put their views to the Committee, whether individuals, interested bodies and organisations, or government. This can occur by way of consultation, written comments or submissions and/or evidence in public hearings.

It is anticipated that the Committee will table an interim report in late 2004, then consider all comments or submissions in respect to these interim recommendations, and then present a final report to the Parliament in early 2005.

Inquiry Questions

The questions set out below are intended to highlight the primary issues that will be considered in this Inquiry. The questions have been posed in order to assist the focus of the Inquiry. This should not be understood as excluding the consideration of other issues and questions that may arise in the Inquiry.

Discriminatory Acts and Enactments

Are there Victorian Acts and enactments that contain provisions which discriminate, or may lead to discrimination on the basis of an attribute? Are these discriminatory provisions acceptable on the basis of sound policy and because they accord with community values and expectations? Should these provisions be retained, amended or repealed? What are the policy considerations supporting the conclusion that the provisions should be retained, amended or repealed?

Effectiveness of section 69 of the EOA

Does section 69 of the EOA effectively deal with the existence of Acts and enactments that contain provisions which, if complied with, could give rise to discrimination? What are the arguments supporting any recommendation to retain or repeal section 69 of the EOA?

Alternatives to section 69 of the EOA

If section 69 were repealed, what are alternative ways Victoria could deal with provisions of Acts and enactments which, if complied with, would be discriminatory and inconsistent with the EOA? How do such alternatives compare with the provision of an exception such as section 69 in the EOA?

Footnotes