Scrutiny of Acts and Regulations Committee

Discrimination in the Law
Inquiry under section 207 of the Equal Opportunity Act 1995

Final Report, Chapter 3 - Sections 69 and 207

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The Committee received a number of submissions regarding section 69 of the Equal Opportunity Act 1995 (EOA). This section allows discrimination in other Acts if the discrimination is necessary to comply with the other Act, or is authorised by another Act. This chapter discusses the link between sections 69 and 207 and outlines some of the ways in which required or intended discrimination in other Acts is permitted or accommodated in other jurisdictions. The Committee makes recommendations in relation to sections 69 and 207 of the EOA against the background of these other models and a consideration of the efficacy of current provisions in the EOA.

The Committee heard evidence at public hearings from the Equal Opportunity Commission Victoria (EOCV) and Professor Margaret Thornton from La Trobe University.

The link between sections 69 and 207 of the Equal Opportunity Act 1995

The sections provide:

69. Things done with statutory authority

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of –

(a) an Act, other than this Act;
(b) an enactment, other than an enactment [189]under this Act.

(2) For the purposes of sub-section (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.

207. Review of Victorian legislation

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 purposes of identifying provisions which discriminate, or may lead to discrimination, against any person.

Section 69 effectively places the EOA at the base of the legislative hierarchy in the sense that any other Act that discriminates, or that authorises discrimination, will override the EOA.

The Committee recognises that in some cases it is necessary for provisions in other Acts to override anti-discrimination laws. The Committee considers that these cases should be limited to provisions that are based on sound policy.

The Committee notes that similar provisions to both sections 69 and 207 existed in the repealed Equal Opportunity Act 1984 (the ‘1984 Act’), which the current EOA replaced.[190] The reasons for the existence of those provisions were examined in the Scrutiny of Acts and Regulations Committee’s 1993 review of the 1984 Act.[191]

In its final report on the review of the 1984 Act, the Committee noted that the intention of the then section 39(e) was for it to operate while a thorough review of legislation was conducted (pursuant to section 16(2)) to identify discriminating provisions.[192] The influence of that review on the form and content of the current EOA is evident, and the Committee considers that the inclusion of sections 69 and 207 in the EOA effectively re-enact the same or similar provisions found in the 1984 Act.

The Committee received submissions that argued that section 69 should now be amended or repealed. The Committee has decided to consider these submissions and alternative models to the statutory compliance exemption provided by section 69.

Options for reviewing Acts that discriminate

Providing statutory exemption and a review mechanism to identify Acts that discriminate is one way of dealing with Acts that are inconsistent with anti-discrimination principles. The Committee recognises that there are alternative ways of dealing with Acts that are inconsistent with anti-discrimination principles. This section sets out the various options:

1.1 Retain sections 69 and 207.

1.2 Narrow the scope of section 69 and prescribe laws that will override the EOA.

1.3 Repeal or ‘sunset’ section 69 and rely on the ordinary rules of statutory interpretation.

1.4 Establish equal opportunity principles, introduce a ‘front-end review’ model and audit existing enactments.

1.1 Retain sections 69 and 207

The Committee’s Review of the Equal Opportunity Act 1984, Final Report of November 1993 (‘1993 report’) concluded that the statutory compliance exemption should not be retained, and that once a review of legislation was completed under section 207 the exemption should be partially or wholly repealed.[193] The Committee recommended that the new EOA should require the Department of Justice to undertake a review of all Victorian Acts and Regulations within 18 months and identify discriminatory provisions that should either be repealed or exempted.[194]

In light of the Committee’s 1993 report and recommendations, it could be argued that section 69 was only intended to operate in its current form until such time as a review was conducted under section 207.

The Committee considers that the onerous nature of conducting a review under section 207 supports the conclusion that it was not intended as a permanent measure for identifying Acts that discriminate. In the methodology section in Chapter 1 of this Report, the Committee stated its reasons for relying on public submissions as a way of conducting its review. The Committee acknowledged that such a methodology did not allow for an exhaustive review of all Victorian Acts. However, the Committee considered that an Act-by-Act review was beyond its capacity, given the limited time and resources available. In its 1993 report, the Committee noted that in the nine years since the enactment of the Equal Opportunity Act 1984, no review had taken place due to constraints on the Commissioner’s[195] time and resources.[196] The Equal Opportunity Commission of Victoria (EOCV) also emphasised the onerous nature of section 207 as a review mechanism at the public hearings. Further, Professor Thornton pointed to the fact that no review was carried out after the 1993 Committee report, as evidence that section 207 is not an efficient mechanism for dealing with Acts that discriminate.

The Committee considers that while such a mechanism may be appropriate for conducting a one-off, properly resourced audit of existing Acts to ensure they comply with anti-discrimination principles, it is not an appropriate or efficient method for dealing with new Acts or amendments that discriminate unless there is a sound policy reason for the discrimination. The auditing of existing Acts is discussed below at 1.4.3.

For these reasons, the Committee does not consider that the retention of sections 69 and 207 is its preferred option.

1.2 Narrow the scope of section 69 and prescribe (in a schedule) laws that will override the EOA

The Committee notes that other state and Federal anti-discrimination laws also provide statutory compliance exemptions. The Committee notes that the scope of the statutory compliance exemption in other state and Federal anti-discrimination laws and in the repealed Act is narrower than in section 69.

Northern Territory[197] and Queensland[198] laws allow for discrimination ‘that is necessary to comply with, or is specifically authorised by’ another Act. The New South Wales[199] and Australian Capital Territory[200] laws allow for discrimination that is ‘necessary to comply with’ any other Act and Tasmanian law allows discrimination that is ‘reasonably necessary’ to comply with another law.[201] The Disability Discrimination Act 1992 (Cth)[202] and Age Discrimination Act 2004 (Cth)[203] allow for discrimination in ‘direct compliance’ with another Act. [204]

Section 39(e) of the 1984 Act allows for discrimination ‘necessary to comply with’ any other Act.

The Committee notes that the scope of the exemption in these jurisdictions[205] is more in line with the narrow definition given by the High Court decision in Public Transport Commission v. Waters[206] in considering section 39(e) of the repealed Act. In that case, the court held that the provision should be narrowly construed so as to only allow something done in order to comply with a specific obligation directly imposed by the actual provision of another Act.

The Committee considers that section 69 is out of step with other Australian jurisdictions in that the section applies to conduct necessitated and authorised by another law, even if the discrimination is not specifically referred to in the law that appears to authorise it.

A number of submissions received by the Committee[207] as well as the evidence given by the EOCV and Professor Thornton argued that the breadth of section 69 significantly undermines the educational and symbolic function of the EOA by subordinating it to all other legislation. The EOCV argued that it is inappropriate for such a broad exemption to be given to the government (through the enactment of legislation), where non-government entities are subject to more stringent anti-discrimination standards.

The Committee considers the educative function of the EOA to be of prime importance, as recognised by section 3(a) which provides:

The objectives of this Act are —

(a) to promote recognition and acceptance of everyone's right to equality of opportunity;

The Committee considers that the breadth of section 69, by placing the EOA at the bottom of the legislative hierarchy, is likely to undermine the educative function of the EOA and that there are alternative ways to allow for laws to discriminate where the discrimination is based on sound public policy that do not undermine the educative function of the EOA.

The Committee considers that there are two ways to narrow the scope of section 69. The first is to amend the wording to limit the operation of the exemption to discrimination that is necessary to comply with other laws, as is the case in the Northern Territory, Queensland and New South Wales. While narrowing the scope of section 69 was not the EOCV’s preferred option, it argued that if the Committee were to recommend this option then section 69 should be narrowed to only allow discrimination that is ‘strictly necessary’ to comply with another Act. However, they noted that the problem of narrowing the scope of section 69 to discrimination ‘necessary’ to comply with another Act is that it does not require the legislature to consider whether discriminating is the most appropriate or effective way to deal with a particular situation. It stated that the shortcoming of the ‘necessity’ test is that it does not ask the vital question of whether there are non discriminatory alternatives. The EOCV recommended that as a minimum measure section 69 be limited to permitting only legislation that specifically intends to be excluded from the operation of the EOA. The EOCV submitted that an alternative way to narrow the scope of section 69 could be to require consideration of whether the discriminatory conduct intended by the government should be upheld. It submitted that the test could be whether the discrimination is reasonably and demonstrably justified in a free society. This formulation would shift the focus from mere intention to discriminate to the soundness of the justification for discriminating. The Committee notes that the New Zealand Bill of Rights Act 1990 uses a similar formulation as a test to identify laws that can override the rights contained in that Act.[208]

The second option is to allow the statutory exemption to apply only to prescribed Acts to be temporarily or permanently excluded from the operation of the EOA, as is the case under the Sex Discrimination Act 1984 (Cth),[209] Disability Discrimination Act 1992 (Cth)[210] and Age Discrimination Act 2004 (Cth).[211] This option would require the identification of provisions in Acts to be excluded from the EOA. Provisions in existing Acts to be excluded would be identified through an audit of existing Acts.[212] Provisions in amendments or new Acts to be excluded would be identified prior to being enacted, by way of a front-end review mechanism. See 1.4 below for discussion on front-end review mechanism.

An advantage of the second option is that it provides clear guidance as to which laws are excluded and no complaint or finding would be required in order to identify whether the provision comes within the scope of the exemption or not. The EOCV supported the prescription of Acts that are intended to discriminate, not only because it would require a thorough review of the policy reasons behind any discrimination in Acts, but also because it would alleviate the burden on the complaints-based system and provide certainty.

The Committee is of the view that there is merit in the argument for the prescription of discriminatory laws, perhaps by means of a schedule, in cases in which the government wishes to specifically override the EOA. It is the Committee’s opinion that such a mechanism will require a review of the reasons for the discrimination. The Committee considers that such a review would provide a beneficial educative function. The Committee also considers that a prescription regime would provide certainty and remove the need to challenge Acts through litigation.

1.3 Repeal or ‘sunset’ section 69 and rely on the normal rules of statutory interpretation

The Committee notes that the South Australian[213] and Western Australian[214] anti-discrimination laws and the Racial Discrimination Act 1975 (Cth) do not contain a statutory compliance exemption. Where no exemption exists, the normal rules of statutory interpretation apply. In relation to anti-discrimination laws, the application of statutory rules of interpretation would operate so as to enable a provision in an Act that clearly intends to allow discrimination to override the anti-discrimination law.

The Commissioner for Equal Opportunity of South Australia advised the Committee that there had not been any issues raised in relation to the lack of a statutory compliance exemption in the South Australian Act.[215]

The EOCV stated that it did not support a reliance on statutory interpretation to identify Acts that should override the EOA, since reliance on a case-by-case basis would not test whether the intended discrimination was sound from a public policy perspective. The Committee further notes that a major problem with relying on statutory interpretation as a mechanism to resolve conflicts between the EOA and other Acts is that, if there were to be a disagreement as to whether a provision overrode the anti-discrimination law, a complaint would have to be made under the anti-discrimination law, and if no solution could be negotiated, it would ultimately have to be tested in court. As a consequence, the Committee considers that reliance on statutory interpretation would not guarantee a systematic or consistent approach and may allow an unnecessary level of litigation.

The Committee notes that some human rights laws contain a provision ensuring that other Acts must be construed in accordance with the standards in the human rights law (or other human rights standards) unless the contrary is specifically provided (a primacy clause).[216] The Committee considers that such provisions can provide an important educative function in promoting the centrality of equal opportunity, as well as an interpretative guide for courts and agencies responsible for administering the laws.

The Committee does not, however, support a model that would allow laws that do not comply with equal opportunity principles to be challenged in court in a manner similar to a constitutional challenge, on the basis of the incompatibility alone. The Committee considers that the decision to allow a provision in an Act to discriminate should rest with the legislature. See 1.4.2 for discussion of the procedure for, and effect of, declaring provisions in enactments incompatible with equal opportunity principles.

1.4 Establish equal opportunity principles, introduce a ‘front-end review’ model and audit existing enactments

An alternative to allowing discrimination in other Acts through a broad statutory compliance exemption (such as section 69) and providing an ex-post facto review mechanism to ensure that only discrimination that is justified and intended is allowed (such as section 207), is to scrutinise proposed Acts and amendments against anti-discrimination principles prior to enactment. Such a model allows for consideration of the policy reasons for the discrimination at the front-end of the enactment process, thereby eliminating the need for post-enactment review. This model is referred to as a ‘front-end review’ mechanism for the purposes of discussion in this paper.

There are a number of ways in which a front-end review model could operate. Typically, a front-end review mechanism consists of a set of prescribed legislated standards or principles against which new and existing laws are assessed or audited and special procedural provisions requiring the Executive to declare or advise Parliament in cases in which it is necessary or desirable for proposed legislation to be incompatible with the prescribed principles.

The Australian Capital Territory, New Zealand and the United Kingdom have all adopted versions of front-end review mechanisms in respect of their broader human rights responsibilities under international law.[217] While the Committee considers the standards in the Acts discussed below are broader than those it is able to consider under the scope of this Inquiry, the model of a set of standards provides a useful example.

1.4.1 The standards against which Acts are to be reviewed

In the Australian Capital Territory and New Zealand, the standards against which other laws are to be scrutinised for their compliance with non-discrimination principles, as well as broader human rights standards, are contained in other Acts.[218] In the United Kingdom, the standard is contained in the European Convention on Human Rights.

In these jurisdictions, non-discrimination principles are incorporated into a human rights instrument that provides the review standard and are not contained in a separate instrument.[219] For example, section 19(1) of the Bill of Rights Act 1990 (NZ)[220] provides:

Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.[221]

Section 8(3) of the Human Rights Act 2004 (ACT) provides:

Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.

There is currently no charter or bill of rights in Victoria, although a Human Rights Consultation Committee has been established with a view to considering, among other things, whether Victoria should have a Charter of Rights.[222] The EOCV strongly advocated the position that if a Charter of Rights is established, then it should contain non-discrimination principles and that these principles should be used as the standard against which other laws should be assessed, scrutinised and reviewed for the purposes of ensuring all laws comply with non-discrimination (as well as broader human rights) principles.

The EOCV argued that the primary benefit of including non-discrimination principles in a charter to be used as a review standard is its educative function and its ability to elevate the status of non-discrimination principles. Professor Thornton echoed this sentiment by providing the illustration of the general level of awareness of human rights among American children, because of the centrality of the Bill of Rights in the Constitution of the United States.

The Committee considers that non-discrimination principles could be contained in a Victorian Charter of Rights and that such a Charter could have the function of a scrutiny and review instrument, among other functions. However, given the uncertainty of whether a Charter will be enacted and the exact form and purpose of any such Charter the Committee makes no further comment on such a proposal.

The Committee considers that the anti-discrimination principles contained in the EOA itself may be an appropriate set of standards against which to scrutinise Acts for compliance. The Committee considers that if this option were to be adopted it would be prudent first to comprehensively review the EOA to ensure that it contains appropriate standards against which other Acts are to be scrutinised and reviewed. The Committee notes that, as part of initiatives arising from the Attorney General’s Justice Statement, EOCV has been requested to provide a position paper to the Attorney-General on options for modernising and reviewing the EOA by November 2005.[223]

1.4.2 Procedure for reviewing new Acts and amendments

The Committee considers that there are a number of ways in which front-end reviews could take place.

Under the Human Rights Act 2004 (ACT), any legislative proposals must contain a human rights statement outlining any human rights implications of the proposed law. When drafting legislation, departments are required to consult with the Bill of Rights Unit. All Bills are to be accompanied by an explanatory statement explaining any restriction of human rights by a legislative provision and whether it falls within permissible limits. The Attorney-General must make a ‘compatibility statement’ in relation to any new law introduced to Parliament.[224] If the law is not consistent with the rights set out in the Act, the compatibility statement must inform the Legislative Assembly of the policy reasons for the inconsistency in the Bill. The Committee also observes that a similar declaratory model exists pursuant to section 85 of the Constitution Act 1975 (Victoria) in respect to an abridgment of the jurisdiction of the Supreme Court.[225]

The Human Rights Act 2004 (ACT) also establishes a Standing Committee of the Legislative Assembly to scrutinise all Bills introduced into the Assembly against the human rights standards. The Standing Committee is required to table a report in the Legislative Assembly, and the Assembly must then deliberate and determine the issue of any human rights incompatibility.[226]

The Committee noted that the expert witnesses the Committee had interviewed in the ACT had all observed that the human rights model had had the effect of shifting the political culture to a more formal and deliberative consideration of human rights principles by those responsible for advising government on proposed legislation. The promotion or encouragement of an ongoing human rights dialogue within the ACT community was frequently referred to as one of the most beneficial effects of the introduction of the Human Rights Act 2004 (ACT).

The Committee notes that the advantage of such a reporting and scrutinising requirement is that it provides for the proper identification of incompatible provisions in new Acts and allows for full debate on such legislation at an early stage. The Committee considers that such a process provides useful guidance to those responsible for both applying and interpreting the new law. The dialogue generated through such a process also has an educative benefit by raising the profile of non-discrimination principles and thereby encouraging a culture of non-discrimination.

1.4.3 Audit of existing Acts

If a ‘front-end review’ model were to be adopted, the Committee considers that such a model should also provide for the progressive auditing of existing enactments against the prescribed equal opportunity standards or principles. The purpose of such a review would be to systematically identify discriminatory provisions in existing Acts for which there are sound policy reasons and therefore should be excluded from the EOA, and to identify discriminatory provisions not supported by sound policy reasons that require amendment. The excluded Acts would be contained in a schedule to the EOA. See 1.2 above for discussion on the prescription of laws to be excluded from the EOA.

As a consequence, the current section 207 should be repealed and section 69 should be repealed with a reasonable transitional or sunset period applying, say three years.

In the Committee’s view, a comprehensive audit of this nature is best conducted by the government departments and agencies responsible for administering the laws. The Committee is mindful that a review of enactments by government agencies may have significant and ongoing resource implications.[227] However, the Committee considers that the current review undertaken by the Committee, while not exhaustive, will significantly contribute towards minimising the extent of such a review.

The Committee is of the view that a compliance audit of existing enactments is best undertaken by agencies administering the legislation. The Committee is of the opinion that these agencies are best placed to identify, and where appropriate propose remedies in respect to enactments that are non-compliant with equal opportunity principles or standards.

Both the EOCV and Professor Thornton supported a legislative model that included the review of existing Acts by government departments and agencies.

Conclusion

The Committee notes that the prime objectives of the EOA are to promote recognition and acceptance of everyone’s right to equality of opportunity and to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes.[228]

The Committee has concluded that these objectives will be best advanced and promoted if sections 69 and 207 of the Equal Opportunity Act 1995 are ultimately repealed and that there be provision made for a ‘front-end review’ mechanism for proposed legislation in conjunction with an auditing of existing enactments.

The Committee considers that the main advantage of a ‘front-end review’ model is that it is proactive rather than reactive. The Committee considers that a proactive model is more likely to perform an educative function in relation to the identified principles than a reactive model that retrospectively reviews enactments already in force. The Committee notes that the educative function of both the Australian Capital Territory’s Human Rights Act and New Zealand’s Bill of Rights Act were emphasised as noteworthy and important by the expert witnesses interviewed by the Committee in both those jurisdictions.

The Committee is of the opinion that a ‘front-end review’ model is more likely to foster a useful dialogue in the Victorian community concerning equal opportunity principles and values and that this process of an ongoing dialogue will in the longer term better promote recognition and acceptance of everyone’s right to equality of opportunity.

The Committee is aware that the implementation of a ‘front-end review’ model and the auditing of existing legislation may have significant planning and resource implications for the appropriate government departments or agencies that will be responsible for pre-enactment assessments, reviews and auditing existing enactments. Given these implications, the Committee accepts that a reasonable period should be provided to introduce a ‘front-end review’ regime and ‘sunset’ the current provisions and provide for the ongoing audit of existing enactments.

Scrutiny of Acts and Regulations Committee
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