The Committee received a number of submissions regarding section 69 of the Equal Opportunity Act 1995 (EOA). This section allows discrimination in other Acts if the discrimination is necessary to comply with the other Act, or is authorised by another Act. This chapter discusses the link between ss 69 and 207 and outlines some of the ways in which required or intended discrimination in other Acts is accommodated in other jurisdictions. Against the background of these other models and a consideration of the efficacy of the current provisions in the EOA, the Chapter looks at the options of retaining, amending or repealing ss 69 and 207 of the EOA.

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

The sections provide –

69. Things done with statutory authority

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

(a) an Act, other than this Act;

(b) an enactment,[180] other than an enactment under this Act.

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

207. Review of Victorian legislation

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

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

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

The Committee notes that similar provisions to both ss 69 and 207 existed in the repealed Equal Opportunity Act 1984 (the ‘repealed Act’), which the current EOA replaced.[181] The reasons for the existence of those provisions were examined in the Scrutiny of Acts and Regulations Committee’s 1993 review of the repealed Act.[182]

In its final report on the review of the repealed Act, the Committee noted that the intention of the then section 39(e) was for it to operate while a thorough review of legislation was conducted (pursuant to section 16(2)) to identify discriminating provisions.[183] The influence of that review on the form and content of the current EOA is evident, and the Committee considers that the inclusion of ss 69 and 207 in the EOA effectively re-enact the same or similar provisions found in the repealed Act.

The Committee received submissions that argued that s 69 should now be amended or repealed.

The Committee has decided to consider these submissions and alternative models to the statutory compliance exemption provided by s 69.

Options for reviewing Acts that discriminate

The current section 207 of the EOA is one mechanism for reviewing Acts that discriminate. Other jurisdictions have adopted different ways of dealing with Acts that are inconsistent with anti-discrimination principles.

This section sets out the various options:

1.1 Retain ss 69 and 207.

1.2 Narrow the scope of s 69.

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

1.4 Repeal or sunset section 69 and provide a front-end review mechanism.

1.1 Retain sections 69 and 207

The Committee’s 1993 report on the Equal Opportunity Act 1984 concluded that there was no reason to retain the statutory compliance exemption, and that once a review was completed the exemption should be partially or wholly repealed.[184] The Committee recommended that the new EOA should require the Department of Justice to undertake a review of all Victorian Acts and Regulations within 18 months and identify discriminatory provisions that should either be repealed or exempted.[185]

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

The onerous nature of the s 207 review mechanism may support the conclusion that it was not intended as a permanent measure. In the methodology section in Chapter 1 of this Report, the Committee provided reasons for relying on public submissions as a way of conducting the review. The Committee acknowledged that such a methodology did not allow for an exhaustive review of all Victorian Acts. However, the Committee considered that an Act by Act review was beyond its capacity, given the limited time and resources available to conduct the current review. In its 1993 report, the Committee noted that in the 9 years since the enactment of the Equal Opportunity Act 1984, no review had taken place due to constraints on the Commissioner’s[186] time and resources.[187]

The Committee also considers that the experience of the New Zealand Human Rights Commission in attempting to conduct a similar review (although in a very different manner) supports the conclusion that a review mechanism such as s 207 is not the most effective way to ensure compliance with anti-discrimination laws.

The Human Rights Act 1993 (NZ) contained a statutory compliance exemption,[188] which expired on 31 December 2001.[189] The purpose of this exemption was to allow for a review of all Acts, regulations, policies or administrative practices of the Government of New Zealand.[190] The review, called the Consistency 2000 project, commenced in 1996, but was abandoned, incomplete, in 1997. The Consistency 2000 project involved many public sector staff who were first trained in human rights principles, and then directed to self-audit or examine their department's legislation, policies and administrative practices. Their ‘batches’ of self-audit information were then passed on to the Human Rights Commission.[191] The reason cited by the Government for abandoning the review was that it was too onerous.[192]

In December 2001, after the expiry of the statutory compliance exemption, the New Zealand Cabinet agreed to a new auditing process for improving the compliance of legislation and Government policies and practices with the HRA. The process, known as Compliance 2001, was managed by the Ministry of Justice, but was not intended to be a revival of the previous Consistency 2000 process. Significantly, there is no reporting requirement and the decision as to how to deal with issues of inconsistency are determined by each government department.[193]

Based on both legislative intent and the onerous nature of a review under s 207, the Committee will seek further information through public hearings as to whether it is appropriate to retain ss 69 and 207 in their current form.

1.2 Narrow the scope of section 69

The Committee notes that other State and Federal anti-discrimination laws also provide statutory compliance exemptions.

Northern Territory[194] and Queensland[195] laws allow for discrimination ‘that is necessary to comply with, or is specifically authorised by’ another Act. The New South Wales[196] and Australian Capital Territory[197] laws allow for discrimination that is ‘necessary to comply with’ any other Act. The Tasmanian law allows discrimination that is ‘reasonably necessary’ to comply with another law.[198] The Disability Discrimination Act 1992 (Cth)[199] and Age Discrimination Act 2004 (Cth)[200] allow for discrimination in ‘direct compliance’ with another Act.[201]

The Committee also notes that s 39(e) of the Equal Opportunity Act 1984 (Vic) (the repealed Act) allowed for discrimination ‘necessary to comply with’ any other Act.

The Committee notes that the scope of the statutory compliance exemption in other State and Federal anti-discrimination laws and in the repealed Act is narrower than in s 69. A number of submissions received by the Committee[202] argued that the breadth of s 69 undermines the educational function of the EOA by subordinating it to all other legislation.

The Committee notes that scope of the exemption in these jurisdictions[203] is more in line with the narrow definition of the exemption given to s 39(e) of the repealed Act by the High Court decision in Public Transport Commission v. Waters.[204] In that case, the court held that the provision should be narrowly construed so as to only allow something done in order to comply with a specific obligation directly imposed by the actual provision of another Act.

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

The Committee considers that there are two ways to narrow the scope of s 69. The first is to amend the wording to limit the operation of the exemption to discrimination that is necessary to comply with other laws, as is the case in the Northern Territory , Queensland and New South Wales .

The second option is to allow for prescribed Acts to be temporarily or permanently excluded from the operation of the EOA, as is the case under the Sex Discrimination Act 1984 (Cth),[205]Disability Discrimination Act 1992 (Cth)[206] and Age Discrimination Act 2004 (Cth).[207] This option would require the identification of provisions in Acts which are excluded from the EOA.

An advantage of the second option is that it provides clear guidance as to which laws are excluded. Because of this, no complaint or finding would be required in order to identify whether the provision comes within the scope of the exemption or not.

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

The Committee notes that the South Australian[208] and Western Australian[209] anti-discrimination laws and the Racial Discrimination Act 1975 (Cth) do not contain a statutory compliance exemption. Where no exemption exists, the normal rules of statutory interpretation apply. In relation to anti-discrimination laws, the application of statutory rules of interpretation would operate so as to enable a provision in an Act that clearly intends to allow discrimination to override the anti-discrimination law.

The Commissioner for Equal Opportunity of South Australia advised the Committee that there had not been any issues raised in relation to the lack of a statutory compliance exemption in the South Australian Act.[210]

The Committee notes that some human rights laws contain a provision ensuring that other Acts must be construed in accordance with the standards in the human rights law (or other human rights standards) unless the contrary is specifically provided for.[211] The Committee considers such provisions to be an additional safeguard to the normal rules of statutory interpretation.

The Committee considers that such an approach would require the legislature to consider whether there are sound policy reasons for allowing discrimination in new Acts or amendments to Acts and to ensure that such provisions are clearly worded. However, the Committee also notes that, under such an approach, if there were to be a disagreement as to whether a provision overrode the anti-discrimination law, a complaint would have to be made under the anti-discrimination law, and if no solution could be negotiated, it would ultimately have to be tested in court.

1.4 Repeal or ‘sunset’ section 69 and provide a front-end review mechanism

The Committee considers that another alternative to a statutory compliance exemption is a mechanism through which all new Acts and amendments to Acts can be scrutinised against anti-discrimination principles prior to enactment. Such a mechanism is referred to as a ‘front-end review’ for the purposes of this discussion.

Front-end review mechanisms consist of a set of standards against which new and existing laws are scrutinised. They may also provide for primacy of the standards in statutory interpretation, unless otherwise indicated.

The Australian Capital Territory , New Zealand and the United Kingdom have all adopted versions of a front-end review in respect of their broader human rights responsibilities under international law.[212] While the Committee considers the standards in the Acts discussed below are broader than those which it is able to consider under the scope of this Inquiry, the model of a set of standards provides a useful example.

1.4.1 The standards against which Acts are to be reviewed

In the Australian Capital Territory and New Zealand , the standards against which other laws are to be scrutinised are contained in other Acts.[213] In the United Kingdom , the standard is contained in the European Convention on Human Rights.

The Committee considers that the anti-discrimination principles contained in the EOA itself may be an appropriate set of standards against which to scrutinise Acts for compliance. The Committee considers that if this option were to be adopted it would be prudent to first comprehensively review the EOA to ensure that it contains appropriate standards against which other Acts are to be scrutinised.

1.4.2 Review of all new Acts and amendments

A front-end review mechanism would require the Minister responsible for any new Bill to ensure that it does not breach the identified anti-discrimination standards.

The Committee considers that there are a number of ways in which front-end reviews could take place. It notes, for example, that under the Human Rights Act 2004 (ACT) (‘the HRA’), the Attorney-General must make a ‘compatibility statement’ in relation to any new law introduced to Parliament.[214] If the law is not consistent with the rights set out in the Act, the compatibility statement must inform the Legislative Assembly of the policy reasons for the inconsistency in the Bill.

The HRA also establishes a Standing Committee of the Legislative Assembly to scrutinise all Bills introduced into the Assembly against the human rights standards. The Standing Committee is required to table a report in the Legislative Assembly, and the Assembly must then deliberate and determine the issue of any human rights incompatibility in the Bill. [215]

The Committee also notes that a similar model exists under s 85 of the Constitution Act 1975 (Vic) in respect to an abridgment of the jurisdiction of the Supreme Court.[216]

The Committee notes that the advantage of such a reporting and scrutinising requirement is that it provides for the proper identification of incompatible provisions in new Acts and allows for full debate on such legislation at an early stage. The Committee considers that such a process provides useful guidance to those responsible for both applying and interpreting the new law.

1.4.3 Audit of existing Acts

Given the non-exhaustive nature of this review, the reasons for which are set out in the methodology section of Chapter 1, the Committee considers that any new review mechanism would also have to contain provision for audit of existing Acts and enactments against the identified standards.

In the Committee’s view, a comprehensive audit of this nature is best conducted by the government departments responsible for administering the laws, although it recognises that such an approach has significant resource implications. This approach was taken by the New Zealand Government’s Compliance 2001 project described above.

Conclusion

The Committee considers that the sunset of s 69 and the provision of a front-end review mechanism in conjunction with a mechanism for auditing existing Acts is the option most likely to achieve comprehensive conformity of legislation to anti-discrimination principles. The Committee considers that the main advantage of such a review mechanism is that it is proactive rather than reactive. The Committee further considers that a proactive model is more likely to perform an educative function in relation to the identified standards than a reactive model. The Committee notes that the educative function of both the Australian Capital Territory ’s Human Rights Act, and New Zealand ’s Bill of Rights Act was emphasised as noteworthy and important by the expert witnesses interviewed by the Committee in both those jurisdictions.

The Committee is aware that the implementation of a front-end review mechanism to replace the current s 69 may have significant planning and resource implications for the appropriate body or bodies responsible for such reviews. Considering the implications of the various options outlined in this Chapter, the Committee will seek further information at public hearings.