The Terms of Reference of the Inquiry

The Scrutiny of Acts and Regulations Committee (the ‘Committee’) received terms of reference [1] requesting it to:

• identify provisions in Victorian Acts and enactments[2] that operate to discriminate, or may lead to discrimination, against any person;

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

• make recommendations as to whether the provisions should be retained, amended or repealed.

In considering the reference the Committee was also asked to note the objectives of the Equal Opportunity Act 1995 (‘EOA’), which include:

• to promote, recognise and accept everyone’s right to equality; and

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

The Inquiry is pursuant to section 207 of the EOA, which imposes an obligation on the Attorney-General as the Minister responsible for the EOA to undertake a review of Victorian legislation. Section 207 provides that:

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

The Scrutiny of Acts and Regulations Committee

The Committee is a joint parliamentary committee of the Parliament of Victoria, established pursuant to the Parliamentary Committees Act 2003.[3]

A key function of the Committee is to consider all Bills introduced into Parliament and to report to the Parliament as to whether the Bill, directly or indirectly :

(i) trespasses unduly upon rights or freedoms; or

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

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

An additional function of the Committee is to review ‘statutory rules’ (regulations) against the terms of reference specified in the Subordinate Legislation Act 1994, including an examination of ‘rights and freedoms’ issues that may be raised by those regulations.

The Committee also has responsibility to review any Act where required to do so pursuant to the Parliamentary Committees Act 2003,[4] in accordance with the terms of reference under which the Act is referred to the Committee. The Discrimination in the Law Inquiry is being conducted under this responsibility.

Methodology of the Inquiry

Section 207 of the EOA is cast in very broad terms. It requires a ‘review of all[5] Acts and enactments for the purpose of identifying provisions which discriminate or lead to discrimination against any person’.

The Committee considered that the most effective method to conduct the Inquiry, given its limited resources, was to request submissions from agencies and the public that identified provisions that may discriminate. The advantage of this approach is that it provides the Committee with an understanding of how laws may discriminate in practice. The Committee considers this an invaluable insight that is only available through the public submission process.

However, a disadvantage of this approach is that it is not exhaustive, as it relies on submissions for the identification of discriminatory provisions. This means that there may be Acts which discriminate, but which were not the subject of a submission.

The Committee has categorised the submissions it did receive according to certain features, such as whether the provisions discriminate on their face, or are neutral on their face but may discriminate when applied. These categories are discussed in detail in Chapter 2 of this report. Issues relating to the review of Acts and possible alternative mechanisms are also discussed in Chapter 3 of this report.

Past conduct of the Inquiry

Discussion Paper

In December 2003, the Committee published a Discussion Paper,Discrimination in the Law: Inquiry under section 207 of the Equal Opportunity Act 1995.[6] The Discussion Paper explained key concepts in the Terms of Reference and raised questions relevant to the Inquiry. The purpose of the Discussion Paper was to assist persons and organisations in making submissions relevant to the Terms of Reference of the Inquiry.

Public consultation phase

The Committee advertised the Inquiry in metropolitan, local and regional newspapers, in English and a number of community languages, and invited people to make submissions identifying discriminatory Acts and enactments . A period in excess of 6 months was allowed for acceptance of written submissions, ending in June 2004. The Committee however accepted a number of submissions as late as December 2004.

The Committee received more than 400 submissions.[7] Most of the submissions identified Acts or Regulations that contain discriminatory provisions.

A number of submissions concerned the operation of the EOA itself. These submissions focused on the exceptions contained in the Act and alternatives to the defence of statutory compliance provided by section 69.

Section 69 of the EOA provides that a person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of another Act or enactment. The operation of s 69 and how it interacts with s 207, the provision in the EOA under which this review is conducted, is discussed in Chapter 3 of this report.

The Committee considered that submissions on the exceptions and attributes of the EOA fall outside the terms of reference of this Inquiry. See below Submissions outside the scope of this Inquiry.

A list of written submissions received is included in this report as Appendix 1.

Progress report – summary of submissions

A summary of the submissions and an update on recent legal developments was published in a Progress Report in December 2004.[8] The Progress Report also describes human rights protection models in New Zealand and the Australian Capital Territory . These models provide useful examples of how those jurisdictions accommodate laws that are inconsistent with anti-discrimination principles. The Committee had the opportunity to visit these jurisdictions in order to consult with experts in anti-discrimination and human rights law as part of an examination of alternative ways of ensuring other laws comply with anti-discrimination principles.

Submissions outside the scope of this Inquiry

The Terms of Reference of the Inquiry are very broadly framed. The Committee was initially expansive in its interpretation of those terms. The writing of this Interim Report has provided the Committee with the opportunity to conduct a more detailed analysis of submissions against the Terms of Reference. All the submissions that were included in the Progress Report were considered in the analysis. As a result of this process, the Committee has concluded that the Terms of Reference require a narrower focus than originally envisaged. Submissions that the Committee considers now fall outside the Terms of Reference of this Inquiry are listed below.

Submissions on the Racial and Religious Tolerance Act 2001

The Committee received more than 250 submissions on this Act. The majority of the submissions argued that the Act restricts the rights of religious groups to express their opinions. The Committee notes that the Racial and Religious Tolerance Act 2001 applies equally to all races and religions. The Committee considers that these submissions raise issues that can be characterised as concerns about ‘freedom of speech’. The Committee considers that such concerns do not raise issues of discrimination relevant to this Inquiry.

Submissions on special-needs laws

The Committee received a number of submissions concerning Acts that are aimed solely at people with certain types of disabilities; for example, the Mental Health Act 1986 and the Disabilities Services Act 1991. These Acts are referred to as ‘special-needs laws’ for the purposes of discussion in this report. The submissions in relation to special-needs laws generally alleged discrimination on the basis of differential treatment of the group subject to the law, as compared with treatment of other people.

The Committee considers that the purpose of special-needs laws is to regulate the provision of services (broadly defined) for the special needs of particular groups.The Committee recognises that it could be argued that the very existence of such laws is discriminatory in the sense that people who do not have the attribute are not subject to the regulatory regime. However, the Terms of Reference of the Inquiry restrict the Committee to the identification of provisions in Victorian Acts that operate to discriminate, or may lead to discrimination. As special-needs laws do not regulate groups without the particular special need, the Committee considers that there is no comparator in these Acts for the purposes of identifying discrimination under the Terms of Reference of this Inquiry.

Submissions relating to Acts that may have a discriminatory impact because of the absence of provisions requiring non-discrimination

The Committee received a number of submissions arguing that the absence of provisions requiring non-discrimination in the making of a policy decision under a discretionary power may lead to discrimination. The Committee acknowledges that, in some circumstances, the absence of such provisions may lead to discrimination.

However, the Committee considers that the consideration of the absence of provisions leading to discrimination falls outside the Terms of Reference of the Inquiry. The Inquiry is limited to dealing with provisions in Acts which discriminate, or which may lead to discrimination.

Submissions on exceptions and attributes in the EOA

The Committee received a number of submissions on the EOA itself. Many of these submissions concerned the exceptions provided in the EOA. Other submissions related to new attributes that could be added to the existing attributes prescribed by s 6 of the EOA.[9] Some persons and organisations made submissions concerning the operation of the statutory compliance exemption in s 69 of the EOA.

Other than the submissions concerning the operation of s 69 of the EOA, the Committee considers that these submissions fall outside the Terms of Reference of this Inquiry. The Committee considers that the reference to ‘all Victorian Acts’ in s 207 of the EOA (the section under which this Inquiry is being conducted) was not intended to include the EOA itself. The Committee is of the opinion that, had a review of the EOA been intended, the ambit of the Inquiry would have included such a review within the Terms of Reference given to the Committee.[10]

The Committee considers that submissions on s 69 of the EOA are properly the subject of this Inquiry, as s 69 is integrally connected to s 207. These submissions and discussion on the statutory compliance exemption are set out in Chapter 3 of this report.

The content of this Interim Report

Chapter 1 provides background to the Inquiry, describes the functions of the Committee undertaking the Inquiry and provides an overview of the methodology used in the conduct of the Inquiry. The chapter also outlines the future conduct of the Inquiry.

Chapter 2 reviews the submissions received by the Committee and makes interim recommendations as to whether certain provisions identified by relevant submissions should be retained, amended or repealed. In some instances, the Committee has refrained from making interim recommendations. The Committee has done this either because it does not consider it has adequate information to make a recommendation, or because the relevant Act or issue in question is the subject of a review currently being conducted by another public body.

There are two reasons the Committee has refrained from making interim recommendations in relation to Acts or issues being reviewed by another public body.

Firstly the Committee considers 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, those bodies may be better placed to make recommendations in conformity with broader considerations contained within their own terms of reference.

Secondly, the Committee considers that other bodies may have more time and resources to explore some of the complex social and policy debates on contentious laws.

However, the Committee notes in passing that any legislation or legislative amendment that may be proposed from these specific-purpose inquiries will, in the normal course, come before the Committee for review and comment in respect to any issue of rights and freedoms. The Committee is of the opinion that its broader function in relation to the scrutiny of Acts and Regulations will present a further opportunity for Parliament to reflect on any proposed legislative amendments concerning equal rights.

The Committee will seek further information in relation to a number of Acts or issues identified by inviting organisations and individuals to give evidence at public hearings. This information will then be considered by the Committee in the formulation of its final recommendations.

Chapter 3 examines the statutory compliance exemption contained in s 69 of the EOA. The defence operates to allow discrimination when it is necessary to comply with, or is authorised by, another Act.

The chapter discusses the link between ss 69 and 207 and looks at options for addressing discrimination in other Acts, using models in other jurisdictions as examples.

The future phases of the Inquiry

Public hearings

The Committee will hold public hearings on 11–12 July 2005, in Melbourne . At these public hearings the Committee will invite relevant Departments, agencies and persons to give evidence concerning the Acts identified in the interim recommendations that may discriminate, or may lead to discrimination.

Final Report

The evidence obtained at the public hearings in July 2005 and any further written submissions received by the Committee in respect to the interim recommendations will assist the Committee in preparing its final report, and may influence the final recommendations the Committee makes concerning the retention, amendment or repeal of the identified legislative provisions.

The Committee will table its Final Report in September 2005.