Scrutiny of Acts and Regulations Committee

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

Final Report, Chapter 2 - Discrimination in Acts

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In this chapter the Committee reviews the submissions it received during the public consultation phase of the Inquiry. The Committee makes recommendations as to whether the identified discriminatory provisions should be retained, amended or repealed.

The submissions that were not included in the Final Report fell outside the terms of reference,[12] concerned an Act that has since been repealed, or identified issues that have been addressed by an amending Act[13] or Bill[14] that, if passed, will address the concerns raised in the relevant submissions. The Acts that have been affected by the amending Acts and Bill, and the substance of the amendment as relevant to this Inquiry, are included as Appendix 3 to this report.

Submissions on Acts

The submissions received by the Committee were broad ranging, but may be divided into two distinct categories:

1. Submissions relating to discriminatory provisions in Acts in which different groups of people are treated differently on the basis of an attribute protected under the EOA.

An example of this is the Adoption Act 1984, which specifies that only heterosexual couples that have been in a relationship for at least 2 years[15] and single people in ‘special circumstances’[16] are able to apply to adopt. This provision discriminates on the grounds of sexual orientation, as same-sex couples are not able to apply to adopt.

2. Submissions relating to provisions in Acts that may have a discriminatory impact on some groups because of the way in which they operate in practice.

An example of this is the offence of begging contained in section 6(1)(d) of the Vagrancy Act 1966. It is more likely that this provision will have a greater impact on people with a mental illness than other groups, since evidence indicates that people with a mental illness are more likely than other groups to be homeless and therefore they are more likely to beg.

These categories form the basis for the structure of the chapter. Within each of the categories, the submissions are organised according to the type of recommendation the Committee considers appropriate. For ease of reference, the Acts under consideration are set out alphabetically under each subheading.

The Committee’s approach

In considering the submissions and making recommendations, the Committee has started from the assumption that all people should be treated equally, unless there are sound policy reasons for doing otherwise. This position is supported by Australia’s obligations under international law, as well as recent State law and policy reforms.

The International Covenant on Civil and Political Rights, which was ratified by Australia on 13 November 1980, states that all persons ‘are entitled without any discrimination to the protection of the law’.[17]

At the State level, the Statute Law Amendment (Relationships) Act 2001 and the Statute Law Further Amendment (Relationships) Act 2001 (the ‘Relationship Acts’), amended a number of laws to recognise the rights and liabilities of partners in domestic relationships. Before the changes were introduced, under various laws only heterosexual couples, and in some instances only married couples, were recognised as recipients of certain entitlements and responsibilities such as property rights, compensation and superannuation entitlements. The Relationship Acts changed these laws to ensure that all couples are treated equally, regardless of sexual orientation or marital status.

In light of this context, the Committee considers that discriminatory provisions should only be retained in circumstances in which there appear to be sound policy reasons for their retention. Where there does not appear to be good reasons for their retention, the Committee has recommended that the discriminatory provisions be amended or repealed.

The Committee has refrained from making substantive recommendations in relation to a number of Acts. The reasons for this are explained at 1.3 and 2.3 below.

1. Submissions relating to discriminatory provisions in Acts by which different groups of people are treated differently on the basis of an attribute protected under the EOA

The submissions covered in this section relate to provisions in Acts that treat different groups of people differently on the basis of an attribute protected under the EOA. Such discrimination would be unlawful, were it not for section 69 of the EOA.[18]

Section 1 also includes submissions relating to definitions in Acts that are not clearly defined, or that use gender-specific language and, as a result, may be construed to be discriminatory. In making recommendations in relation to such definitions or terms, the Committee has considered the interpretative guidelines contained in section 35 of the Interpretation of Legislation Acts 1984.[19]

The issues raised by submissions in this section have been further categorised according to the type of recommendation made.

Category:

1.1 discriminatory provisions identified in submissions that the Committee considers may reasonably be amended

1.2 discriminatory provisions identified in submissions that the Committee considers do not require amendment

1.3 discriminatory provisions identified in submissions in relation to which the Committee has refrained from making substantive recommendations. This is because the issues raised are in relation to Acts that are currently being reviewed by another body. The Committee has decided that, since the terms of reference for the review of these Acts by the other bodies are broader than the scope of the current Inquiry, it will not duplicate the review process. As a result, the Committee has recommended that the discriminatory provisions be retained pending the outcome of the other review.

1.1 Discriminatory provisions identified in submissions that the Committee considers may reasonably be amended

Accident Compensation Act 1985

The Committee received submissions that claimed that sections 93E and 93F of the Accident Compensation Act 1985 (the ‘Act’) discriminate on the grounds of age.[20] One of the objects of the Act is to provide for compensation to injured workers.

In 2004 there were relevant amendments made to the Act in respect to entitlement to weekly compensation.[21] Prior to the amendments, a worker injured when approaching retirement age had a lesser entitlement to benefits than a younger worker. Rather than being entitled to the statutory maximum of 104 weeks of compensation if the worker was determined to have a current work capacity, a worker over the age 63 could receive benefits for only 52 weeks. The 2004 amendments redressed this by extending the entitlement period for older workers to 104 weeks of benefits. To this extent, the Committee considers that sections 93E and 93F of the Act are no longer discriminatory.

The Committee heard evidence from Victoria WorkCover Authority (VWA), which identified two situations in which older workers who are injured are in a different position to younger workers who are injured.

The first of these situations occurs when an older worker is injured within a period of two years prior to retirement age or after attaining retirement age and who, after 104 weeks of incapacity, continues to have no current work capacity for the indefinite future. In such circumstances, the older worker is not entitled to further weekly compensation. In contrast, workers who are injured more than two years before retirement age and who still have no current work capacity after 104 weeks of compensation may be entitled to continuing compensation until his or her work capacity is restored (even if that capacity is not restored to pre-injury levels), or else until retirement age.[22] The Act provides for work capacity to be reviewed at least every two years.[23]

As VWA pointed out, in the above scenario payments cease either at retirement age (in the case of a worker injured more than two years prior to retirement age who has no current work capacity) or after 104 weeks of compensation in the case of a worker injured within two years of retirement age or after retirement age.

VWA explained that sections 93E and 93F of the Act limiting compensation entitlements were introduced in 1989 when the WorkCare scheme faced $4 billion in unfunded liabilities. Prior to the amendment, the Act provided for compensation for an indefinite period when a worker was assessed to have no current working capacity. The aim of the limitation was to balance the provision of reasonable and fair benefits to injured workers within a financially responsible framework. The age of 65 was chosen because this is the age at which a person is able to gain access to other sources of income, such as the pension and superannuation. VWA stated that, should the criteria for access to other sources of income change, it would be appropriate to amend the age specified as ‘retirement age’, to ensure that people are adequately protected and that there is no possibility for ‘double dipping’.[24]

The second scenario identified by VWA in which discrimination may arise concerns a worker injured more than two years prior to ‘retirement age’ who continues to work beyond ‘retirement age’ and then has a period of incapacity relating to the compensable injury.

For example, a worker injured when under the age of 63 may have received compensation for medical and like expenses and possibly also may have been paid weekly compensation for some period of incapacity for work (but for less than 104 weeks in total). The worker continues to work past age 65 and, because of the original injury, has a later incapacity for work, say, during a period of recuperation from surgery to correct a condition arising from the compensable injury. In such a case the worker is not entitled to weekly compensation for this later period of incapacity as they are over the age of 65.

Had the worker’s need for surgery occurred before he or she turned 65, the worker would be entitled to compensation for the period of incapacity to a maximum of 104 weeks. Similarly, the worker would be entitled to compensation if the injury occurred after age 63, but he or she had not yet received 104 weeks of compensation.

The VWA advised the Committee that it is examining policy options and will advise the Minister for WorkCover as to whether and, if so how, this matter might be dealt with in the legislation without risking scheme viability.

The Committee considers that reference to age ‘65’ in sections 93E and 93F in most instances does not have a discriminatory effect against older workers and provides a sound and fair way of ensuring injured workers are appropriately compensated. In relation to the first scenario identified above, where older workers may receive less weekly compensation than younger workers, the Committee considers that the limitation of 104 weeks of compensation for older workers represents a fair balance between the rights of the injured worker and the need to ensure the long-term viability of the compensation scheme. This conclusion is based on the acknowledgment that all workers would be worse off if the compensation scheme became unviable. It is also based on the safety net provisions that allow any injured worker to claim at common law for serious injuries.

In relation to the second scenario, the Committee considers that the inability of a worker injured under the age of 63 who is incapacitated after the age of 65 because of the original injury, to claim his or her full entitlements to 104 weeks of compensation may have a discriminatory effect. The Committee is aware that VWA is considering options to address this. The Committee considers that one possible way of addressing the problems is to allow a worker in the above situation to claim up to 104 weeks compensation, regardless of the age that the incapacity occurs. This may require an amendment to section 93F to allow for workers to claim up to 104 weeks’ entitlements in circumstances in which a worker is injured prior to age 63 and, while still employed beyond the age of 65 years, a period of incapacity for work arises from that injury (the pre-63 injury).

In its consideration of the question of any discriminatory effect that an application of a statutory based retirement age may have in relation to the compensation scheme established under the Act, the Committee was mindful of the following extract from the submission made to the Committee by the VWA.

Can retaining a ‘retirement age’ of 65 be justified?

Given that the WorkCover scheme must be run in a financially responsible manner if it is not to jeopardise the employment opportunities of the broader population, the policy challenge is to look to the overall circumstances of injured workers.

Age 65 remains relevant as a cut-off point for compensation. This is not because it is the age at which workers normally retire but because it is the age at which they can access social security benefits through the age pension without being subject to an activity test. (At present women can receive age pension earlier than 65 but this is being phased out and will cease in 2014.) Increasingly, older workers will also have entitlements to superannuation benefits.

The Australian Government has broadly indicated its intention to liberalise pension income and superannuation tests to allow workers 65 years of age and over to fund their retirement through multiple income sources, which may include elements of wages/salaries, superannuation and age pension. It has not stated a policy intention to raise the age pension age further.

As a result, defining retirement age as 65 provides an appropriate compromise between safeguarding the financial viability of the WorkCover scheme and ensuring that an injured worker has a source of ongoing income.

When the detail of the Australian Government’s new retirement incomes policy becomes clearer, the VWA will examine the Act to see whether further policy issues are emerging that need to be addressed.

ANZAC Day Act 1958

The Committee received a submission asserting that the ANZAC Day Act 1958[25] (the ‘Act’) may discriminate on the grounds of sexual orientation or marital status because the term ‘dependant’ in section 4A(3) is not defined in the Act.[26] Section 4A(3) of the Act provides for the distribution of the ANZAC Day proceeds funds to organisations assisting ex-service men and women or their dependants.

The Committee notes that the term ‘dependant’ may be construed to refer only to the heterosexual partner of an ex-service man or woman, or could be limited to a child under a particular age. If the term ‘dependant’ is interpreted in this way, it could discriminate against same-sex couples and older children.

It does not appear warranted to the Committee to retain unclear wording in an Act that may be construed in such a way that discriminates against particular groups.

The State Superannuation Act 1988 contains an up-to-date definition of the term ‘dependant’ that does not exclude dependants because of their sexual orientation, marital status or age. A ‘dependant’ in the State Superannuation Act is defined as:

‘dependant’, in relation to a deceased person, means—

(a) his or her partner; or

(b) a child of the person; or

(c) any other person who in the opinion of the Board was at the date of the death of the person wholly or partially dependent on the person or who at that date had a legal right to look to him or her for financial support.

The term ‘partner’ in the State Superannuation Act is defined so as to include de facto and same-sex domestic partners.

The Committee considers that uniformity in the definition of provisions is highly desirable unless there are sound policy reasons to depart from that uniformity.

The Committee also notes that the Scrutiny of Acts and Regulations Committee in the previous Parliament tabled a report concerning a review of the ANZAC Day Act 1958[27] and recommended that, where practicable, all laws regulating or affecting ANZAC Day be consolidated into a single new Act. However, the Committee notes that the recommendation was solely in relation to the commemoration of ANZAC Day and did not refer to the distribution of ANZAC Day proceeds funds. The Committee therefore considers it has no bearing on this Inquiry.

Crimes Act 1958

The Crimes Act 1958 (the ‘Act’) prescribes offences and sets out the procedure for the conduct of criminal proceedings. The Committee notes that review of the Act by 2007 is a key initiative under the Attorney-General’s Justice Statement.[28] The Department of Justice advises that this review has commenced. However, the terms of reference of the review were not available to the Committee at the time of writing this report. Therefore, the Committee considers it appropriate to make recommendations in relation to references to the Act in this report.

The Committee notes that the Act contains other provisions that may discriminate[29] but were not raised in submissions to the Committee. The Committee limits its comments to the provisions raised in the submissions.

The exclusion of same-sex partners for the purposes of the scope of particular crimes

The Committee received a submission arguing that the failure to include same-sex partners for the purposes of the scope of particular crimes under the Act was discriminatory.[30] The sections identified use the terms ‘spouse’ and ‘de facto spouse’ to define subjects of the crime, or to exclude spouses from the scope of the crime.[31]

The identified sections encompass the crimes of incest,[32] sexual offences against people with impaired mental functioning[33] and sexual offences against residents of residential facilities.[34]

The definition of the crime of incest uses the term ‘de facto spouse’[35] to identify children against whom the crime of incest can be committed.[36]

The Committee considers that the amendment made to the Act to include the children and step-children of a person’s de facto spouse for the purposes of defining the crime of incest was to protect children who have child–parent-like relationships from abuse, regardless of whether the parents were married or not. There does not appear to the Committee to be good reason for not extending similar protection to the children and step-children of same-sex couples.

Respectively, sections 51 and 52 of the Crimes Act 1958 provide for sexual offences against people with impaired mental functioning and against residents of residential facilities.[37] In both sections a ‘spouse’ or ‘de facto spouse’ is excluded from the offence. The Committee considers that the policy objective of defining these crimes was to protect vulnerable people from abuse committed by service providers. The exception recognises that certain services may also be provided by spouses.

The Committee heard evidence from the Office of the Public Prosecutor (OPP) and Victoria Legal Aid (VLA) in relation to the potential effects of extending the definition of ‘spouse’ so as to include same-sex partners for the purposes of the definitions of the above-mentioned crimes against vulnerable persons. Both the OPP and VLA supported the extension of the definition in relation to all three offences, stating that in their view there would be no adverse effects if the extension were to be made by amending legislation.

In relation to the crime of incest, the OPP noted that a same-sex partner who sexually abused their partner’s child or step-child would currently be covered by the general provisions of the criminal law. However, they noted that these general provisions carry a lighter penalty (maximum of 10 years) as opposed to the penalty for incest, which carries a penalty of a maximum of 25 years. The OPP stated that is was not aware of any cases involving abuse of a child by the same-sex partner of the child’s parent, but that it supported the extension of the definition in the interests of the equal application of the law to all parties with a parent–child like relationship.

VLA submitted that the definition of ‘domestic partner’ used in any amendment to the Act should be broadly defined. They submitted that the period of relationship was not relevant to the definition of ‘domestic partner’ that should be adopted in the Act. VLA emphasised that it is the genuine nature of the relationship that should be the defining characteristic and not the duration of the relationship. VLA submitted that the definition adopted in the Children and Young Persons Act 1989[38] be adopted for the purposes of the Act.

The OPP indicated that it did not envisage that proof of relationship would be problematic in terms of an appropriately amended Act.

The criminal liability of married persons

The submission also identified sections in the Act relating to the delineation of criminal liability of married persons as discriminating against de facto and same-sex couples.[39] In some of these sections, liability is limited or exempted due to the person’s marital status.[40] Two sections contain rebuttals to a presumption against the limitation of liability on the basis of marital status.[41] The OPP noted that the crime of misprision for a felony no longer exists and so the defence contained in section 337 has no relevance.

The Committee considers that the reason behind the definition of such liability in relation to married persons is to protect the marriage relationship, and in relation to section 336, to acknowledge in some cases the influence a husband may have over his wife.

The OPP gave evidence that the law of marital coercion was historically based on a presumed power imbalance between a husband and wife and that it is very rarely used as a defence.

VLA also noted the historical background upon which the law of marital coercion was based, but submitted that it is appropriate to extend the defence to anyone in a marriage-type relationship, on the basis that there may be similar power imbalances in same-sex relationships and de facto relationships. VLA noted the similarity of the defence of marital coercion to the defence of duress, and stated that it could be argued that extending the defence of coercion to people in other marriage-like relationships may do no more than codify the existing defence of duress. However, VLA pointed out that one of the factors to be considered in establishing coercion is the degree of dependence, economic or otherwise, of the wife on her husband[42] and that this element renders the defence different to that of duress and so, it is preferable to retain the defence.

The OPP noted that, in practice, the police often exercises discretion as to whether or not to charge a woman who appears to be involved in a crime connected to her male partner. OPP explained that this discretion is often based on extra-legal considerations such as whether there are children involved who may require care. Thus, to the extent that women are often not charged with crimes connected to their male partners the defence of coercion appears not to have much relevance.

However, the OPP noted that the police now more frequently charges women with offences because of the relevance and application of confiscation and forfeiture laws. The OPP noted that, in these cases, in theory the ‘weaker’ partner could have recourse to the defence of coercion and that, therefore, it could be appropriate to consider extending the provisions to other marriage-type relationships.

The Committee is of the view that the ‘weaker’ partner in marriage-type relationships, including de facto and same-sex relationships, may be subject to coercion in the same way as a wife may be to her husband, even if this may occur only rarely. The Committee therefore recommends removing the gender specificity of the marital coercion provisions and extending them to de facto and same-sex relationships.

Discretion to grant exemption to spouses as witnesses

The Committee received two submissions that contended that the discretionary provisions enabling husbands and wives to be exempt from acting as witnesses against their spouses[43] were discriminatory, in that the discretion did not extend to enable de facto or same-sex partners to be similarly exempted.[44]

The Committee considers the purpose of the discretion to exempt certain witnesses from giving evidence is the protection of spousal and familial relationships.[45] The Committee notes that there is a discretion to exempt such witnesses and that courts need to consider a number of criteria to determine whether a particular exemption is to be permitted.[46]

Both OPP and VLA supported the extension of the discretion in section 400 to de facto and same-sex relationships, indicating that they could not envisage any adverse effects arising from such an extension. VLA pointed out that the Evidence Act 1995 (Cth) already provides such a discretion to exempt de facto spouses,[47] although not to same-sex partners. Both OPP and VLA further noted that the provisions identifying the factors to be considered in deciding whether to grant the exemption[48] provide a sufficient safeguard for ensuring the exemption is only granted in appropriate cases.

VLA submitted that the logical consequence of extending the discretion to exempt de facto and same-sex partners from giving evidence must be similarly to allow a step-child and the child of a person’s de facto or same-sex partner to apply for the exemption. In their view, if the discretion to exempt is based on the potential damage to the relationship, then there is no reason other children who are in a parent–child-like relationship should not be eligible to apply. Again, VLA emphasised the role of the judge in making the decision.

The Committee recommends that the ability to apply for exemption under section 400 should be extended to couples in de facto and same-sex relationships and the step-children and children of de facto and same-sex partners. The Committee considers the judicial discretion in section 400 to be an adequate safeguard to ensure the exemption is used in appropriate cases only.

Guardianship and Administration Act 1986 and Children and Young Persons Act 1989

The Children and Young Persons Act 1989 (the ‘CYPA’), among other things, allows protection orders to be made for children who are under the age of 17 years.[49] A young person subject to a protection order obtained before they turn 17 years of age is covered by the CYPA until they turn 18 years.[50] However, due to the way in which ‘child’ is defined under the CYPA, an application for a protection order cannot be made for a young person after they turn 17 years.

The Guardianship and Administration Act 1986 (the ‘GAA’) provides for the care and protection of people with a disability that affects their decision-making capacity. The Act enables a guardian or administrator to be appointed for a person who is 18 years or older.[51]

The Committee received a submission contending that the interaction of these two Acts leaves a gap in coverage in relation to a young person who has turned 17 years, but who is not yet 18 years of age. It was contended that this gap may discriminate against 17-year-olds who have a disability in relation to whom no protection order had been made prior to them attaining 17 years of age, but who are in need of a guardian or administrator.[52]

In view of the objectives of these two Acts, the Committee considers that there may be an unintended lacuna, or gap, in the statutory protections for a person who has turned 17 but is under 18 years of age.

The Committee notes that the CYPA is currently under review by the Department of Human Services, and understands that the protection needs of a 17-year-old person with a disability may be under consideration in that review.[53]

The Committee considers that the legislative gap may be remedied by either amending the definition of ‘child’ in the CYPA for the purposes of the application for protection orders, or by lowering the minimum age in relation to which an application for guardianship or administration under the GAA may be made from 18 to 17 years of age.

The Committee heard evidence from the Office of the Public Advocate (OPA) on this issue. OPA outlined some circumstances in which the legislative gap may affect 17-year-olds. It submitted that the definition of ‘child’ under CYPA for the purpose of applying for a protection order should be raised from 17 to 18 years, and that the GAA should not be amended. The submission was based on the proposition that the law should be uniform; that is, many other laws use 18 years as the threshold age for either the granting of certain rights or the removal of special age-based protections. In the view of OPA, retaining 18 years as the minimum age at which guardianship or administrative applications may be made is in line with most other laws in this regard.

The Committee sought the view of the Department of Human Services in relation to this issue, as one of the two departments responsible for the administration of CYPA.[54] However, the Department declined the invitation to give evidence.

The Committee is of the view that the legislative gap may disadvantage 17-year-olds who are in need of protection. The Committee agrees with OPA that the gap should be remedied by amending the definition of ‘child’ in CYPA in relation to the power to apply for protection orders so that orders may be made for young persons who have turned 17 but who are under 18 years of age.

Liquor Control Reform Act 1998

The Committee received submissions relating to provisions of the Liquor Control Reform Act 1998 (the ‘Act’) that restrict the circumstances in which alcohol may be supplied to a person under the age of 18,[55] limit access to licensed premises and create offences for the purchase and consumption of alcohol to persons under the age of 18 years.[56] The Act provides exemptions for persons under the age of 18 years who are in the company of prescribed adult persons deemed to be responsible for supervising the minor. One category of prescribed adult person is the minor’s married spouse.

The Act provides that it is not an offence for a minor to be on a licensed premises[57] or for a licensee to permit a minor to be on a licensed premises for the purposes of consuming a meal.[58] The Act also provides that it is not an offence for a minor to be on a licensed premises[59] or for a licensee to permit a minor to be on a licensed premises where they are in the company of a ‘responsible adult’.[60] A responsible adult is defined as a person who is of or over the age of 18 years and who is the younger person’s parent, step-parent, guardian or grandparent, the younger person’s married spouse, or a person who is acting in place of a parent and who could reasonably be expected to exercise responsible supervision of the younger person.[61] The Committee considers that the inclusion of ‘a person who is acting in place of a parent and who could reasonably be expected to exercise responsible supervision of the younger person’ in the definition of ‘responsible adult’ is broad enough to include a person’s adult de facto heterosexual or same-sex spouse. Therefore, the Committee considers that the provisions allowing minors to be on licensed premises with a responsible adult and the definition of responsible adult do not require amendment.

The Act also provides that it is not an offence for a minor to consume alcohol[62] or for a licensee to serve alcohol to a minor[63] as part of a meal if the minor is accompanied by a parent, guardian or spouse[64] who is over the age of 18 years. Therefore, the circumstances in which minors may lawfully consume alcohol on licensed premises are more restricted than the circumstances in which minors may lawfully be on a licensed premise, as the exception does not extend to minors in the company of a ‘responsible adult’.

The Committee received submissions[65] asserting that the limitation of the under-age alcohol consumption exemption to minors who have married spouses discriminates against de facto and same-sex couples. The Committee received advice from the Minister of Consumer Affairs[66] that the definition of ‘spouse’ was purposefully narrowly defined as a measure to limit under-age drinking.

The Committee considers that the purpose of the exception in the Act is to allow people under the age of 18 to consume liquor with a meal in the context of a family gathering.

The Committee heard evidence from the Director of Liquor Licensing explaining that the amendment introducing the limited definition of ‘spouse’ must be read in the context of the objects of the Act, which include the minimisation of harm arising from the misuse and abuse of alcohol by provision of adequate controls over the supply and consumption of liquor and ensuring as far as practicable that the supply of liquor contributes to, and does not detract from, the amenity of community life.[67] The Committee notes that the Liquor Control Reform (Underage Drinking and Enhanced Enforcement) Act 2004 also introduced amendments aimed at minimising harm caused by alcohol, such as increased penalties for the supply of alcohol to minors.

The Director of Liquor Licensing expressed the concern that if the category of persons with whom a minor may lawfully consume alcohol on a licensed premise while partaking in a meal is expanded to include de facto heterosexual and same-sex spouses, establishing the bona fides of the relationship may become very onerous on a licensee.

The Committee identifies two options for ensuring non-discrimination on the grounds of marital status in relation to the under-age drinking exception. The first option would be to remove the reference to ‘spouse’ in the exception, thereby removing the discrimination by excluding all spouses as a category of persons in the company of whom a minor may lawfully drink in certain circumstances. The second option would be to replace the term ‘spouse’ with the term ‘domestic partner’ as defined in the Relationship Acts. This second option would remove the discrimination by enabling minors to consume alcohol in the prescribed circumstances with their domestic partner, regardless of marital status. This option would effectively expand the categories of persons in the company of whom a minor may lawfully drink in certain circumstances.

The Committee is mindful of the objects of the Act and in particular the 2004 amendments to the Act. However, the Committee considers that there are insufficient grounds for distinguishing between people based on their marital status. In addition, the Committee considers that the practical difficulties involved in proving a person is married for the purposes of the current exception to under-age drinking effectively renders the distinction obsolete.

The Committee is of the view that the objects of the Act and in particular, the 2004 amendments to the Act, would be furthered by removing the reference to ‘married spouse’ in sections 119(5)(a) and123(2)(a), so that a minor may only lawfully consume or be served with alcohol when they are accompanied by their parent or guardian.

Property Law Act 1958

The Committee received a submission that concerned Part V of the Property Law Act 1958 (the ‘Act’),[68] which provides a process for identifying lineage in property law proceedings that concern inheritance.[69] It was contended that inheritance of property as regulated under Part V of the Act is discriminatory in that it is based on the ‘male line’ and therefore discriminates against women.

Part V of the Act concerns the identification of the common law ‘heir-at-law’. These provisions identified inheritors before the introduction of the statutory ‘next-of-kin’. The Committee heard expert evidence from Professor Marcia Neave in relation to the history of laws relating to the inheritance of land. Professor Neave advised the Committee that the Act is probably derived from old English law, which placed primacy on the distribution of land through the ‘male line’. The provisions relating to the distribution of land were necessary as it was not possible to distribute land by will.

The current Act regulating the distribution of property, the Administration and Probate Act (Victoria) 1958, covers all forms of property including land and defines inheritors. In Professor Neave’s view it is not necessary to retain Part V of the Act as any rights of inheritance to land that would have been regulated by Part V are now regulated by the Administration and Probate Act 1958.

Section 4 of the Administration and Probate Act 1958 provides for the application of that Act to the estates of persons dying before, on or after the commencement of this Act except as where otherwise expressly provided.

Professor Neave also drew the Committee’s attention to Part VI of the Act concerning estates tail as another Part of the Act that is now redundant and that could be repealed. Since Part VI does not contain discriminatory provisions within the Committee’s current terms of reference, the Committee makes no further comment in respect to Part VI of the Act.

1.2 Discriminatory provisions identified in submissions which the Committee considers do not require amendment

Births, Deaths and Marriages Registration Act 1996

Change of record of birth sex and issue of new birth certificate

The Act provides for the registration of births, deaths, marriages and changes of name in Victoria.[70] The Act was amended in 2004[71] to allow transsexual people who have undergone sex affirmation surgery to apply to change the sex originally recorded on their birth certificate, apply for a new birth certificate and apply for other documents acknowledging their gender.[72] The Committee notes that, while the Victorian Law Reform Commission (VLRC) has been asked to review the Act as part of its Inquiry into the Assisted Reproductive Technology and Adoption,[73] it is unlikely that, as part of that Inquiry, the VLRC will consider Part 4A of the Act, as that Part does not have any bearing on the issues of infertility treatment or adoption.

Discrimination on the grounds of gender identity is unlawful under the EOA. The definition of ‘gender identity’[74] includes persons who have undergone sex affirmation surgery and people who have not undergone sex affirmation surgery but who identify on a bona fide basis as a member of the opposite sex to their biological sex and live, or seek to live, as a member of that sex. It also includes people who were born of indeterminate sex but identify on a bona fide basis with a particular sex and live, or seek to live, as a member of that sex.

The Committee received a submission[75] arguing that not allowing transgender people who have not had sex affirmation surgery to change their record of gender is discriminatory, as it distinguishes between transgender people based on whether or not they have undergone sex affirmation surgery.

The Committee also received a submission arguing that the distinction is justified on the grounds that ‘people with transsexualism’ are not the same as transgender people.[76] The submission defines ‘people with transsexualism’ as people who affirm their gender in physical terms by undergoing sex affirmation surgery. According to the submission, ‘transgender people’ do not have an overwhelming urge to have sex affirmation surgery and therefore are not certain about their gender identity. The submission argues that this distinction is justified in the Act.

The Committee considers that there is a gap between protections afforded to transgender people under the Act and under the EOA. The Committee further notes that in other State jurisdictions with similar provisions to Part 4A of the Act, the entitlement to amend the register is also limited to people who have undergone sex affirmation surgery.[77]

The Committee considers that, given the legislative amendments to the Act are very recent and given that the Attorney-General had the opportunity to consult with stakeholders through the Advisory Committee on Gay, Lesbian, Intersex and Transgender Issues, there was a considered policy determination made at that time to limit the operation of the amendment. The Committee therefore does not recommend further amendment.

Credit Act 1984

The Committee received submissions asserting that the definition of ‘guarantor’[78] in the Credit Act 1984 is discriminatory, as de facto and same-sex partners of debtors are treated differently from married partners.[79] The Committee notes that, while the Credit Act 1984 is still operative in respect of contracts entered into prior to the commencement of the Consumer Credit (Victoria) Act 1995, it does not apply to contracts made after the commencement of the new Act. The Consumer Credit (Victoria) Act 1995 does not provide any limitation on spouses acting as guarantors.

The Committee considers that there is no need to amend an Act that is still operative, but only in relation to contracts made prior to a certain date.

Juries Act 2000

One of the principle objectives of the Juries Act 2000 (‘Act’) is to ensure that jury members are representative of the community at large, and therefore to ensure an accused person’s right to be tried by a jury of their peers.[80] The Committee received a submission[81] arguing that eligibility for jury duty is a right that should be extended to all people who can perform the task, unless they are otherwise disqualified.[82]

The Act prescribes that certain persons are ineligible to serve as jurors.[83] One such group is involuntary patients as defined under the Mental Health Act 1986. The submission argued that excluding all involuntary patients from eligibility for jury selection discriminates against people in this category.[84] It was argued that the exclusion is based on an assumption that all members of this group do not have capacity to perform jury service. The submission recommended that the blanket ineligibility be replaced with an alternative provision that a person is only ineligible to serve as a juror if the person has a disability or condition that renders her or him incapable of performing jury duty.

The Committee notes that the Victorian Parliament Law Reform Committee made a similar recommendation in its report on Jury Service in Victoria in December 1996. Recommendation 33 of the Final Report of the Law Reform Committee states:

The current specific categories of ineligibility from jury service relating to persons with mental, intellectual and physical disabilities should be repealed in favour of a general category which renders ineligible a person who has a physical, intellectual or mental disability that makes the person incapable of effectively performing the functions of a juror.[85]

However, the Committee notes that the Law Reform Committee did not discuss the jury selection process in the context of the discussion on ineligibility.[86] In the Committee’s view, the exclusion of categories of people may be related to the process by which jurors are selected. Potential jurors may be challenged by the parties involved in a trial. Courts and Tribunals Victoria state that ‘questioning of prospective jurors is almost never allowed’ and that ‘challenges may simply be made on the basis of the person’s age, gender or type of occupation’.[87]

It appears to the Committee from these statements that there is no rigorous assessment as to a person’s actual capacity to act as a juror as part of the jury selection process, nor is there capacity within the existing selection process for such assessment to be made.

The Committee considers that, while in theory excluding people on the basis of the impact of the disability on the individual may be desirable, rather than simply by the fact that the person has the disability, the existing jury selection process in Victoria may not have the capacity to assess a person’s actual ability to act as a juror.

Occupational Health and Safety (Lead) Regulations 2000

The objective of the Occupational Health and Safety (Lead) Regulations 2000 (‘Regulations’) is to protect people against risks to their health associated with the use of lead at workplaces.[88] The Regulations adopt the Exposure Standards for Atmospheric Contaminants in the Occupational Environment, published by the National Occupational Health and Safety Commission in 1995.[89]

The Regulations provide for the removal of an employee from a lead-risk job if the results of monitoring reveal that the level of lead in an employee’s blood is at or above a certain level.[90] The threshold level is lower for women of reproductive capacity and lower again for women who are pregnant or breastfeeding.

The Committee received a submission contending that the Regulations discriminate against women on the basis of pregnancy.[91] It was submitted that this discrimination may not be reasonable as it regulates the target of the risk, rather than the source of the risk.

It is clear that the Regulations do treat women of reproductive capacity and those who are pregnant or breastfeeding differently from women who are not of reproductive capacity and men. However, the Committee considers that this is for the protection of any child who is or may be born to women who are exposed to the prescribed levels of lead. The Committee does not dispute the contention that the source of the risk should also be addressed. However, it considers that such action and protection from the risks associated with lead exposure are not mutually exclusive.

Wrongs Act 1958

The Committee received a submission[92] that asserted that recent amendments made to the Wrongs Act 1958 (‘Act’),[93] may discriminate against people with psychiatric disabilities. The Act, as amended, defines, among other things, the threshold of impairment before a person is entitled to compensation for personal injuries for non-economic loss (pain and suffering) arising from negligence. The threshold level for psychiatric impairment is 10 per cent, while the threshold for other types of impairment is 5 per cent. This means that a person who has received a psychiatric injury must be 10 per cent impaired before he or she can claim compensation under the Act, whereas a person who has received any other type of injury need only demonstrate a threshold of 5 per cent impairment.

The threshold levels were introduced by amendment to the Wrongs Act 1958 in May 2003[94] and were part of the tort law reform package introduced in all Australian jurisdictions. The Committee accepts that a principle objective of the introduction of these respective impairment thresholds was an attempt to balance, on the one hand, the needs of injured persons and, on the other, the need to keep insurance viable for business by eliminating ‘trivial claims’. The Committee notes that there is no reference to the reason for the differential treatment of different types of injury in the Second Reading Speech.[95]

The Committee notes that there are also different threshold requirements for non-economic loss between psychiatric and physical injuries in the Accident Compensation Act 1985,[96] but that there is no distinction in the Transport Accident Act 1986.[97] There are also different thresholds for non-economic loss resulting in permanent psychiatric and non-psychiatric impairment in the tort laws of other states, for example, New South Wales.[98] The Committee further notes that the New South Wales tort laws are currently under review.[99]

The Committee considers that, given the legislative amendments to the Act are recent and that the legislature would have had the benefit of considering the operation of similar provisions in other states, there was a considered policy determination made at that time to differentiate between the thresholds for psychiatric and physical injuries in relation to non-economic loss. The Committee therefore does not intend to make a recommendation for further amendment.

1.3 Discriminatory provisions identified in submissions in relation to which the Committee has refrained from making substantive recommendations because the Acts are currently being reviewed by another body

Adoption Act 1984

The Adoption Act 1984 (‘Act’) regulates adoption of both Australian-born children and children who were not born in Australia. Section 11 of the Act provides that an adoption order may be made in favour of a man and a woman who have been married or have lived in a de facto relationship for not less than two years,[100] a traditional marriage recognised by an Aboriginal community,[101] or a single person in ‘special circumstances’.[102] The Act does not allow for adoption by same sex-couples.

The Committee received a number of submissions arguing that not allowing same-sex couples to apply to adopt discriminates on the grounds of sexual orientation.[103] The Committee also received a number of submissions supporting the exclusion of same-sex couples from eligibility as adoptive parents. The underlying rationale expressed in the submissions that opposed same-sex adoption was the belief that homosexuality is wrong and that placing children with same-sex couples is not in the best interests of the child or in the interests of society as a whole.

The Committee acknowledges that the Adoption Act[104] discriminates against same-sex couples.

The Committee notes that the VLRC has been asked to enquire into the laws relating to Assisted Reproductive Technology and Adoption.[105] The Committee notes that the question of allowing same-sex couples to apply to adopt was specifically raised in the VLRC’s Consultation Paper.[106] As noted above, the Committee considers that, as the terms of reference for the VLRC’s review are broader than the scope of the current Inquiry, it will not duplicate the review process.

Therefore, the Committee will refrain from making a substantive recommendation in this report.

Births, Deaths and Marriages Registration Act 1996

Recording of parents’ details on birth certificate

The main purpose of the Births, Deaths and Marriages Registration Act 1996 (‘Act’) is to provide for the registration of births, deaths and marriages and changes of names in Victoria. The birth of a child is registered by application by both parents or, in some cases, one parent only.[107] ‘Parent’ is not defined in the Act.

The Committee received a submission that argued that, in its present form, the Act would appear to entitle only biological or adoptive parents to be registered on a birth certificate as the parents of a child.[108] The submission argued that this discriminates against a person who has a parent-like role in relation to the child, but who is not the biological parent of the child, such as the same-sex partner of the biological parent of the child.[109]

The Committee recognises that the inability of a non-biological parent of a child who has not adopted the child to be registered as a parent on that child’s birth certificate may prevent that parent establishing an enforceable legal relationship with that child.[110]

The Committee notes that the VLRC has been asked to enquire into the laws relating to Assisted Reproduction and Adoption.[111] The Committee notes that the issue of registration on the birth certificate of the same-sex partner of the birth mother has been identified in the VLRC’s discussion paper.[112] As noted above, the Committee considers that, as the terms of reference for the VLRC’s review are broader than the scope of the current Inquiry, it will not duplicate the review process.

Therefore, the Committee will refrain from making a substantive recommendation in this report.

Evidence Act 1958

Marital privilege in civil cases

The Evidence Act 1958 (‘Act’)[113] states that husbands and wives do not have to disclose to a court any communication between them while they were married, other than in criminal proceedings or bail proceedings.[114] The Committee received a submission contending that this discriminates against de facto and same-sex couples.[115]

The Committee considers that the aim of the provision is to protect the privacy of the relationship between husband and wife. There does not appear to the Committee to be any cogent reasons for not extending the same privilege to marriage-like relationships such as de facto and same-sex couples.

The Committee notes that the VLRC is currently conducting a review of the Act.[116] The Committee has been advised that this issue will be covered by the VLRC’s review.[117] As noted above, the Committee considers that, as the terms of reference for the VLRC’s review are broader than the scope of this Inquiry, it will not duplicate the review process.

Therefore, the Committee will refrain from making a substantive recommendation in this report.

Religious confessions privilege – the use of gender-specific language

The Act also provides that a ‘clergyman’ cannot be compelled to disclose a confession made to him in his professional capacity according to the usage of the church or religious denomination to which he belongs without the consent of the person concerned.[118] It was submitted that the term ‘clergyman’ is gender-specific and should be amended to be gender-neutral.[119] The Committee notes that the provision also refers to ‘medical men’, which is a similarly gender-specific term.[120]

The Committee further notes that the Scrutiny of Acts and Regulations Committee recommended in its 1996 Inquiry into the Act that the medical practitioner privilege be abolished.[121]

The Committee notes that the Act is currently under review by the VLRC.[122] The aim of that review is to bring Victoria in line with uniform Evidence law (based on the Evidence Act 1995 (Cth)). The Committee notes that the language used in the Commonwealth Evidence Act in relation to the religious confession privilege is gender-neutral.[123] The Committee also notes that the Commonwealth Evidence Act does not contain a medical privilege.

Given this, the Committee considers it likely that the issues raised in the submission will be remedied by the recommendations arising from the VLRC’s review.

Therefore, the Committee will refrain from making a substantive recommendation in this report.

Infertility Treatment Act 1995

The main purpose of this Act is to regulate the use of in-vitro and other fertilisation procedures and donor insemination procedures, and to make provisions with respect to surrogacy agreements.[124]

Most submissions received by the Committee on this Act[125] argued that it discriminates on the basis of sexual orientation and marital status, as it restricts access to infertility treatment to married women and women in heterosexual de facto relationships.[126] The Act requires a woman’s husband to consent to the treatment, and refers to the determination of ‘infertility’ by a doctor as a prerequisite for eligibility to receive assisted reproductive treatment.[127]

The Committee also received a number of submissions arguing that access to assisted reproduction services should be limited to heterosexual, married couples. The arguments are based on the belief that only traditional nuclear families should have the benefit of government funding to assist them to have children.[128]

The Committee acknowledges that the Act discriminates against women on the basis of sexual orientation and marital status. The Committee also notes the Federal Court decision in Mc Bain v State of Victoria,[129] in which it was held that the Act breached section 22 of the Sex Discrimination Act 1984 (Cth), which prohibits discrimination on the grounds of marital status. The court held that the Act is inoperative to the extent that it restricts access to assisted reproductive technology to married and de facto couples.

The Committee notes that the Act is included in the VLRC’s Inquiry into Assisted Reproduction and Adoption.[130] The Committee further notes that the VLRC has made an interim recommendation that the marital status requirement be removed.[131]

In light of the specificity of the VLRC’s review on this issue, the Committee will refrain from making a substantive recommendation in this report.

Residential Tenancies Act 1997

The Residential Tenancies Act 1997 (the ‘Act’) regulates the legal relationship between tenants and landlords by setting out their rights and duties and providing a mechanism for resolving disputes between these parties through the Victorian Civil and Administrative Tribunal (‘VCAT’).[132] The Act, however, does not cover ‘health and residential services’.[133] This means that special accommodation services for people with physical, mental or intellectual disabilities, as well as some other groups, are not regulated under the Act. The Committee notes, however, that people with a disability who live in private rental accommodation or public housing are covered by the Act.

The Committee received submissions[134] arguing that excluding certain types of accommodation from the Act discriminates against people with a disability, since people living in such accommodation have no clear mechanism by which they can pursue their tenancy rights.

The Committee heard evidence at the public hearings from ACROD, the National Industry Association for Disability Services and Melbourne Citymission, held to obtain the perspective of providers of services to people with disabilities in supported accommodation.

The Committee also received a further written submission from Action for More Independence and Dignity in Accommodation (AMIDA) to assist the Committee to understand the issues facing service users.

The Committee notes that the tenancy rights of people with a disability living in supported accommodation was recently reviewed by the Department of Human Services (DHS) in its review of disability legislation.[135] The DHS report recommended that the Act should be amended to enable community residential units to be included within the ambit of the Act.[136] However, DHS has since advised the Committee that there has been a shift towards retaining the exclusion of health and residential services in the Act and, instead, including new provisions on tenancy rights for health and residential services within the proposed new disability legislation. DHS has advised the Committee that it intends to publish an exposure draft of the new disability legislation in the near future.

The written submissions received by the Committee identified a number of problems with the current regime regulating housing services for people with disabilities in supported accommodation. These include privacy issues, inadequate safety and security for personal possessions and uncertainties about procedures to be followed in cases of non-payment of rent and eviction.

The submissions argued that, while some of the rights of people residing in supported accommodation are articulated in disability legislation,[137] no adequate mechanisms exist to enforce these rights and, importantly, that there is no mechanism for independent review under the current regime.

The submissions contended that section 23 of the Act should be removed, so as to enable people living in supported accommodation to be covered by the Act. AMIDA submitted an alternative, being that rights comparable to those under the Act be included in the Health Services Act 2001, with the right of review of decisions by the Health Services Commissioner or VCAT, or both.[138]

The service providers who gave evidence at the public hearings stated that their preference is for the tenancy rights of people with disabilities in supported accommodation to be contained in disability legislation. This preference is a result of the limited availability of supported accommodation services and the consequent need to be able to negotiate optimal outcomes for all people residing in such services. The Committee was provided with examples of scenarios in which tenancy rights as articulated under the Act, such as the right to quiet enjoyment, may be incompatible with the reality of living in shared supported accommodation. In such cases, service providers emphasised the need to be able to negotiate agreements as to how to best manage the situation, rather than to allow individuals to pursue tenancy rights at the expense of other people requiring support.

The preference for providing tenancy rights in disability legislation is also a function of the need for service providers to be able to negotiate agreements in relation to how services are to be provided to individual clients so that they can fulfill their duty of care towards the client and support workers.
The Committee considers that the issue of how the tenancy rights of people in supported accommodation should be protected is extremely complex. It recognises that, in some cases, support provision and the realities of the limited availabilities of services means that people living in supported accommodation services do not have all of the tenancy rights available to people living in rental accommodation regulated by the Act.

The Committee recognises that the current exemption in section 23 concerns important issues of tenancy rights for persons with a disability living in supported accommodation. However, the Committee considers that it does not have the resources required to identify the best policy options for providing protection for tenancy rights for people living in supported accommodation, and that such a task is beyond the scope of this Inquiry. The Committee welcomes and supports the current review of disability legislation by DHS, which involves stakeholders and considers a broader range of issues than discrimination.

2. Submissions relating to provisions in Acts that may have a discriminatory impact on some groups because of the way in which they operate in practice

The Committee received a number of submissions concerning Acts that did not contain discriminatory provisions, but which may have a discriminatory impact on some groups because of the way in which they operate in practice. For example, people with particular types of disabilities and Indigenous peoples suffer systemic disadvantage in a range of areas including economic, social and health. Therefore, laws criminalising drinking in public places or the use of drugs are likely to have a greater impact on these groups than other groups.

Where this is the case, the Committee has attempted to examine how these laws impact particular groups, in order to determine whether amending the law could address the problem and, if so, whether it is reasonable to amend the law in light of the purpose of the law. In some instances, the Committee recognises the discriminatory impact but considers that this impact cannot be adequately addressed through law reform. Rather, the Committee considers broader social and other reforms may be appropriate to ameliorate the discriminatory impact.

The submissions in this section have been further categorised according to the type of recommendation made.

Category:

2.1 provisions identified in submissions that have a discriminatory impact and which the Committee considers may reasonably be amended

2.2 provisions identified in submissions that have a discriminatory impact but which the Committee considers do not require amendment

2.3 submissions in relation to provisions that appear to have a discriminatory impact but in relation to which the Committee has refrained from making substantive recommendations because the Acts are currently being reviewed by another body. The Committee has decided that, as the terms of reference for the review of these Acts by the other bodies are broader than the scope of the current Inquiry, it will not duplicate the review process. As a result, the Committee has recommended that the discriminatory provisions be retained pending the outcome of the other review.

2.1 Provisions identified in submissions that have a discriminatory impact and which the Committee considers may reasonably be amended

Summary Offences Act 1966

The Committee received a submission asserting that the public drunkenness offences in the Summary Offences Act 1966[139] indirectly discriminate against people on the grounds of mental illness, as public drunkenness is often closely bound to mental illness and homelessness. The submission argued that such offences should be abolished.[140] The Committee received a separate submission contending that the public drunkenness provisions of the Summary Offences Act 1966 may indirectly discriminate against Indigenous Australians.[141] The submission argued that public order laws, and the manner in which they are enforced, lead to indirect discrimination against Indigenous Australians. It was submitted that Aboriginal people are more likely to be poor, more likely to congregate in public places due to lack of alternatives and therefore are more likely to be over-policed.

The Committee notes that the Committee reported on the Summary Offences Act 1966 in 2001.[142] The Drugs and Crime Prevention Committee also conducted a report into public drunkenness and issued its final report in June 2001.[143] Both Committees recommended decriminalisation of public drunkenness offences, by repealing sections 13, 14 and 16 of the Summary Offences Act 1966 and the enactment of new laws that would enable intoxicated persons to be detained on a civil rather than criminal basis. Both committees also proposed that such legislation should form only one part of a wider program to manage intoxicated people and that programs such as ‘sobering up centres’ to detain and treat people found intoxicated in public places should be established before any move to decriminalise public drunkenness took effect.

The Committee supports such reforms.

2.2 Provisions identified in submissions that have a discriminatory impact, but which the Committee considers do not require amendment

Magistrates’ Court Act 1989

The Committee received submissions arguing that the ways in which infringement penalties are enforced through the Procedure for Enforcement of Infringement Penalties (PERIN) system under Schedule 7 of the Magistrates’ Court Act 1989 (‘Act’) indirectly discriminates against people who have a mental impairment[144] and Indigenous Australians.[145] The submissions noted the over-representation of people with mental illness and Indigenous Australians, respectively among those incurring large numbers of fines for petty infringements. The submissions identify low socio-economic backgrounds and homelessness as the reasons for the over-representation.

The submission in relation Indigenous Australians contends that the infringements system contributes to the over-representation of Indigenous people in prison as a result of an inability to pay fines.

The Committee notes that once a person fails to pay an infringement fine after the issuing of a courtesy letter, the infringement is registered at the PERIN court. If the person still fails to pay, a warrant is issued which allows a Sheriff to seize property to sell to pay for the outstanding fine. If the person does not have enough property to cover the amount of the fine, the person will have to perform community service as ordered by the court. If they are unwilling to perform community service, they are taken before a magistrate who decides on a sentence, unless the person has a mental disorder, intellectual impairment, brain injury, dementia, or is experiencing other exceptional circumstances.

The PERIN system is automated, so that once the infringement is registered a warrant is automatically issued once a person fails to pay. However, section 10A of Schedule 7 of the Act, which was added in 2000, provides that a registrar may revoke an enforcement order on his or her own initiative, or refer the matter for hearing by a magistrate of the PERIN court.

In addition to revocation by a registrar or by a magistrate, since 2002, the Magistrate’s Court has run a diversion program called the Enforcement Review Program (ERP), which aims to assist the court by identifying people issued with PERIN orders who have a severe physical or intellectual disability, or a diagnosed mental illness. The ERP refers the PERIN orders of eligible persons to the Registrar to be revoked and refers the matters to a Magistrate’s Court Special Circumstances List for more appropriate disposition.[146]

The Committee notes that the ERP currently covers people who have been a diagnosed as having mental illness, but does not cover Indigenous Australians. However, the Department of Justice’s Annual Report for 2003–04 refers to an initiative looking at broadening the ERP to cover people experiencing homelessness and drug addiction. The Report states that ‘the project is also taking a whole-of-government, whole-of-community approach to determine how the infringement notices system could operate more effectively, consistently and fairly across the community’.[147] The Department of Justice’s submission to the Victorian Parliament Law Reform Committee’s Inquiry into Warrants has further information on the review program.[148] It explains that the purpose of the review of the ERP is to ‘establish common principles to guide infringement policy, ensure the protection of the disadvantaged (primarily by ensuring alternatives to their entering the infringements system in the first place), improve infringement processes, expand the system where appropriate and establish overarching legislation (such as an Infringements Act).’[149]

The Committee considers that there are important policy reasons supporting the retention of an infringements regime.

The Committee considers that the consideration being given to the broadening and improvement of the ERP is likely to address the issues raised in the submissions.

Police Regulations 2003

The Police Regulations 2003 (‘Regulations’) are made pursuant to the Police Regulation Act 1958.[150] The objective of these Regulations is to provide for the employment of members of the police force, protective services officers and police reservists, and to provide for the operation of the Police Appeals Board.[151]

Transfer of Police Members

The Committee received a submission arguing that the regulation providing that a member of the police force is liable to immediate transfer to any part of the State[152] may discriminate against people with an impairment, or because of marital status, parental status or status as a carer.[153] The submission explains that this provision is often relied upon by the police force to compulsorily transfer newly confirmed recruits to ‘difficult-to-fill’ positions, usually in remote rural areas.

The Committee recognises that it may be more difficult for a person with a particular type of disability or people with caring responsibilities to move to remote areas than people who are not in such positions. However, the Committee considers that the policy reason behind this regulation is to ensure that the police force is adequately staffed, and thus considers it reasonable in the circumstances.

2.3 Submissions in relation to provisions that appear to have a discriminatory impact, but in relation to which the Committee has refrained from making recommendations because the Acts are currently being reviewed by another body

Bail Act 1977

The Committee received a submission that argued that the operation of the Bail Act 1977 (‘Act’)[154] may lead to discrimination against Indigenous peoples.[155] The provisions of the Act outline factors to be assessed in considering whether there is an ‘unacceptable risk’ that the accused may not show up at court, may commit an offence while on bail, may endanger the safety or welfare of members of the public, interfere with witnesses, or may otherwise obstruct the course of justice. Where a judge or magistrate considers there is an ‘unacceptable risk’, she or he may refuse bail.[156]

It was submitted that the Act[157] allows for very broad discretion and that this fact is likely to disadvantage people who do not have legal representation. It was submitted that a lack of legal representation combined with the over-representation of Indigenous people charged with lower-order offences in the criminal justice system may lead to discrimination against Indigenous peoples.

The Committee acknowledges the over-representation of Indigenous peoples in the criminal justice system.

The Committee notes that the VLRC has received terms of reference from the Attorney-General to review the Bail Act 1977.[158] The terms of reference include a review of the way in which the current bail system operates in practice to ensure that it is consistent with the overall objectives of the criminal justice system, including the presumption that a person accused of an offence should normally be granted bail, except in circumstances specified in the Act.[159] In conducting the review, the Commission is asked to have regard to the fact of over-representation of Indigenous peoples on remand and the needs of marginalised and disadvantaged groups, including Indigenous Australians and the impact of the bail system on people in those groups.

In light of the specificity of the VLRC’s review on this issue, the Committee will refrain from making a substantive recommendation in this report.

Coroners Act 1985

The purpose of the Coroners Act 1985 (‘Act’) is, among other things, to establish the office of the State Coroner and require the reporting of certain deaths.[160]

The Committee received a submission that argued that the Act discriminates against members of the Indigenous community in that it excludes people, other than ‘senior next of kin’, from objecting to an autopsy. ‘Senior next of kin’ is defined in the Act to mean the domestic partner, son or daughter, parent, brother or sister, or a personal representative of the deceased.[161] It was argued that the Act should be amended to allow Aboriginal elders and respected persons to object to the performance of an autopsy, in recognition of the relevance of cultural objections to autopsy.[162]

The Committee notes that the relevant Acts in Tasmania, Australian Capital Territory, Northern Territory and Queensland recognise Indigenous familial relationships within their definitions of ‘senior next of kin’ for the purposes of objecting to autopsy.[163] The New South Wales Act allows people other than the senior next of kin to object to an autopsy.[164]

The Committee notes that allowing objection to autopsy does not necessarily mean that an autopsy will not be carried out. If the coroner decides that an autopsy should be carried out, the ‘senior next of kin’ can make an application to the Supreme Court for an order preventing the autopsy. The Supreme Court may make an order preventing the autopsy if it is satisfied that it is desirable in the circumstances.[165] However, the Supreme Court may not make such an order, in which case, the autopsy will be conducted.

The Committee notes that the VLRC is currently conducting an inquiry into the Coroners Act 1985 and that similar questions have been identified in the discussion paper.[166] In light of the specificity of the VLRC’s review in relation to this issue, the Committee will refrain from making a substantive recommendation in this report.

Evidence Act 1958

The swearing of oaths

The Committee received a submission that argued that the provisions relating to the swearing of oaths in sections 100 and 101 of the Evidence Act 1958 (the ‘Act’) discriminate against people other than Christians.[167]

The submission suggested that the Act be amended to provide for a standard affirmation or solemn promise to be administered to all persons, regardless of their religious beliefs.

The Committee notes that the Act also allows the oath to be administered in a manner appropriate to the religious beliefs of the person swearing it. The source of law for such alternative forms of oath appears as: ‘Any oath may be administered in any manner which is now lawful’.[168] However, the Committee notes that not all religions approve of oath taking, and attempts to translate the oath for some cultures is inappropriate.[169]

The Committee notes that the issue of oaths and affirmations was reviewed by the Victorian Parliament Law Reform Committee in 2002.[170] The Law Reform Committee noted that ‘the risk of the witness’s choice of oath or affirmation being viewed with unjustified suspicion by the court has long been one of the central objections to retaining a religious oath’.[171] The Committee notes that, after reviewing the options for reform, the Law Reform Committee’s preferred option was to keep both the religious oath and the affirmation, but to remove the precedence of the religious oath to ensure the religious oath and the affirmation are equal.[172] This is the model used in the Commonwealth Evidence Act 1995,[173] the New South Wales Evidence Act 1995, the Tasmanian Evidence Act 2001 and the South Australian Evidence Act 1929.[174]

The Law Reform Committee also recommended that the Act be amended to remove the requirement to swear on a religious text, as is provided in the Evidence Act 1995 (Cth).[175] The Committee notes that this reform was also recommended by the Australian Law Reform Commission in a review of the Evidence Act 1929 (Cth) conducted in 1985.[176]

The Committee notes that the VLRC is currently conducting an inquiry into the Act, and similar questions have been identified in the discussion paper.[177] The Committee also notes that the VLRC inquiry follows on from a review of the Act by the Scrutiny of Acts and Regulations Committee in 1996, with a view to considering whether the Evidence Act 1995 (Cth), as a model for uniform legislation, was appropriate for enactment in Victoria.[178] The Committee notes that the Scrutiny of Acts and Regulations Committee recommended that Part IV of the Act, which includes sections 100 and 101, be retained and moved to another Act where appropriate.[179] However, the Committee notes that the Scrutiny of Acts and Regulations Committee’s enquiry focused on ‘a consideration of the suitability for adoption in Victoria of the Evidence Act 1995 (Cth), rather than independent consideration of the Evidence Act 1958 (Vic)’.[180] The Committee therefore considers that any consequent recommendation for amendment is not at cross-purposes with the 1996 inquiry recommendation in relation to Part IV of the Act.

In light of the specificity of the VLRC’s review in relation to this issue, the Committee will refrain from making a substantive recommendation in this report.

Vagrancy Act 1966[181]

The Committee received a submission asserting that the offence of begging[182] indirectly discriminates against people on the grounds of mental illness, as begging is often closely bound with mental illness and homelessness. The submission argued that such offences should be abolished.[183] The Committee notes its report on the Vagrancy Act 1966 (the ‘Act’) recommending the Act be repealed in its entirety, as many of the offences had been subsumed by other Acts and that a handful of relevant provisions could be more appropriately relocated to other Acts.[184]

The Committee noted that at the time there had been relatively little research conducted into the issue of begging in Victoria, and recommended that further research be conducted before a just and comprehensive solution to the problem of begging can be formulated that deals with the complex relationship between begging and homelessness, drug and alcohol dependence, long-term unemployment, gambling, crime and psychiatric and physical disability.[185]

The Committee notes that Homeless Person’s Legal Clinic has recently completed detailed research into the policy options for effectively reducing begging in Melbourne.[186] The research provides clear evidence of the link between begging and mental illness.[187]

The Committee also notes that Crime Prevention Victoria has canvassed the option of ‘dispersal legislation’ to enable police to direct people engaged in anti-social behaviour (including begging) to ‘move on’.[188]

The Committee notes the recent introduction of the Vagrancy (Repeal) and Summary Offences Bill 1966 which is intended to repeal the Vagrancy Act 1966. The Bill however intends to re-enact a number of provisions, among them, section 6(1)(d) – begging – as new section 49A of the Summary Offences Act 1966.

The Committee notes the following comments from the Attorney-General’s Second Reading Speech:
The government has decided to retain the offence of begging and the related offence of encouraging or procuring a child to beg. The government is committed to poverty law reform and, in a fairer Victoria, has undertaken to monitor the impact of the offence of begging on people who suffer genuine hardship.
The government, in partnership with police, welfare, local government and advocacy groups, will continue to explore means to support people who resort to begging when faced with extreme poverty.

In light of the recent government decision to retain and clarify the provisions relevant to begging the Committee does not intend to make a recommendation.

Scrutiny of Acts and Regulations Committee
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