Discrimination in the Law
Inquiry under section 207 of the Equal Opportunity Act 1995
Chapter Five
General Exemptions and Exceptions in Other Jurisdictions
In 1993 the Committee reported
on its review of the 1984 Equal Opportunity Act.[93]
Examining general exemptions and exceptions from overseas and some
Australian jurisdictions, the committee reported that in some jurisdictions
anti-discrimination legislation overrides provisions in other legislation
unless those legislative provisions are specifically exempted.
There are provisions in all other Australian
States and Territories (other than South Australia) that contain
a provision that makes lawful an act that discriminates against
a person when it is authorised by another law. Similarly to Victoria,
in Western Australia there is also an obligation to review legislation,
government policies and practices.
In the Australian Capital Territory, the Minister
may declare that the protection for anything done that is necessary
to comply with another law expires on a day stated in a declaration.[94]
At a Federal level, the Racial Discrimination
Act 1975 allows no exception for acts done under legislative
authority. However, the Sex Discrimination Act 1984[95]
and the Disability Discrimination Act 1992 (“DDA”)[96]
both provide an exemption in these circumstances.
From the commencement of the DDA until 1 March
1996, a protection existed for an act that was done in compliance
with another Federal, State or Territory law.[97]
This protection operated for three years after which time the provision
had no force. There is however a protection for laws that are prescribed
by the DDA, but there are no laws that have yet been prescribed.
New Zealand
Until 31 December 2001 when the statutory
immunity (like that in Victoria) expired, the New Zealand Government
had a partial exemption from the Human Rights Act 1993.
Under the Act, the Government is now liable for discrimination in
the public sector. The Government will only be able to discriminate
if the enactment or practice in question can be "demonstrably
justified in a free and democratic society".
The Act empowers the Human Rights Review
Tribunal to declare that another law is inconsistent with the Human
Rights Act. The Tribunal cannot overturn other laws but a Declaration
of Inconsistency must be reported to Parliament by the responsible
Minister along with suggestions on what the Government's response
will be.
United Kingdom
A process similar to that in New Zealand
is available where laws in breach of the European Convention on
Human Rights are declared inconsistent under the UK Human Rights
Act 1998 by the European Court of Human Rights. The UK model
empowers the Court to declare legislation inconsistent with human
rights, and requires the Parliament to act, whether to remedy the
breach or to declare that the breach of human rights is to persist
deliberately, subject to a sunset clause.
Canada
In Canada, for example, the Ontario Human
Rights Code 1981 provides that where a provision in an Act
or regulation, enacted more than two years after the Code came into
force, purports to require or authorise conduct that is in contravention
of the Code’s non-discrimination principles, the Code applies
and prevails unless the Act or regulation specifically provides
that it is to apply notwithstanding the Code.
The above examples describe the approach
taken by other jurisdictions in managing the balance between the
principles of human rights in anti-discrimination law and the circumstances
where discrimination should be permitted in a free and democratic
society.
Footnotes
Review of the Victorian Equal Opportunity
Act 1984, Final Report, November 1993.
Discrimination Act 1991 (ACT), s30.
Sex Discrimination Act 1984 (Cth), s40.
Disability Discrimination Act 1992 (Cth), s47.
Disability Discrimination Act 1992 (Cth), s47(3).
Scrutiny
of Acts and Regulations Committee
©
Parliament of Victoria
General Exemptions and Exceptions in Other Jurisdictions
In 1993 the Committee reported on its review of the 1984 Equal Opportunity Act.[93] Examining general exemptions and exceptions from overseas and some Australian jurisdictions, the committee reported that in some jurisdictions anti-discrimination legislation overrides provisions in other legislation unless those legislative provisions are specifically exempted.
There are provisions in all other Australian States and Territories (other than South Australia) that contain a provision that makes lawful an act that discriminates against a person when it is authorised by another law. Similarly to Victoria, in Western Australia there is also an obligation to review legislation, government policies and practices.
In the Australian Capital Territory, the Minister may declare that the protection for anything done that is necessary to comply with another law expires on a day stated in a declaration.[94]
At a Federal level, the Racial Discrimination Act 1975 allows no exception for acts done under legislative authority. However, the Sex Discrimination Act 1984[95] and the Disability Discrimination Act 1992 (“DDA”)[96] both provide an exemption in these circumstances.
From the commencement of the DDA until 1 March 1996, a protection existed for an act that was done in compliance with another Federal, State or Territory law.[97] This protection operated for three years after which time the provision had no force. There is however a protection for laws that are prescribed by the DDA, but there are no laws that have yet been prescribed.
New Zealand
Until 31 December 2001 when the statutory immunity (like that in Victoria) expired, the New Zealand Government had a partial exemption from the Human Rights Act 1993. Under the Act, the Government is now liable for discrimination in the public sector. The Government will only be able to discriminate if the enactment or practice in question can be "demonstrably justified in a free and democratic society".
The Act empowers the Human Rights Review Tribunal to declare that another law is inconsistent with the Human Rights Act. The Tribunal cannot overturn other laws but a Declaration of Inconsistency must be reported to Parliament by the responsible Minister along with suggestions on what the Government's response will be.
United Kingdom
A process similar to that in New Zealand is available where laws in breach of the European Convention on Human Rights are declared inconsistent under the UK Human Rights Act 1998 by the European Court of Human Rights. The UK model empowers the Court to declare legislation inconsistent with human rights, and requires the Parliament to act, whether to remedy the breach or to declare that the breach of human rights is to persist deliberately, subject to a sunset clause.
Canada
In Canada, for example, the Ontario Human Rights Code 1981 provides that where a provision in an Act or regulation, enacted more than two years after the Code came into force, purports to require or authorise conduct that is in contravention of the Code’s non-discrimination principles, the Code applies and prevails unless the Act or regulation specifically provides that it is to apply notwithstanding the Code.
The above examples describe the approach taken by other jurisdictions in managing the balance between the principles of human rights in anti-discrimination law and the circumstances where discrimination should be permitted in a free and democratic society.
Footnotes
|
Review of the Victorian Equal Opportunity Act 1984, Final Report, November 1993. | |
|
Discrimination Act 1991 (ACT), s30. |
|
|
Sex Discrimination Act 1984 (Cth), s40. |
|
|
Disability Discrimination Act 1992 (Cth), s47. |
|
|
Disability Discrimination Act 1992 (Cth), s47(3). |
|
|