Version No. 013
Equal Opportunity Act 2010
No. 16 of 2010
Version incorporating amendments as at
1 July 2014
table of provisions
Section Page
viii
Section Page
Part 1—Preliminary 1
1 Purposes 1
2 Commencement 1
3 Objectives 2
4 Definitions 3
5 Act binds the Crown 17
Part 2—What is Discrimination? 18
6 Attributes 18
7 Meaning of discrimination 19
8 Direct discrimination 20
9 Indirect discrimination 21
10 Motive is irrelevant to discrimination 22
11 Discrimination by acting with others and by not acting 22
12 Special measures 22
13 When is discrimination lawful? 24
Part 3—Duty to Eliminate Discrimination, SexualHarassment and Victimisation 25
14 Purpose of Part 25
15 Duty to eliminate discrimination, sexual harassment or victimisation 25
Part 4—When is Discrimination Prohibited? 27
Division 1—Discrimination in employment 27
16 Discrimination against job applicants 27
17 Employer must accommodate responsibilities as parent or carerof person offered employment 27
18 Discrimination against employees 28
19 Employer must accommodate employee's responsibilities as parent or carer 29
20 Employer must make reasonable adjustments for person offeredemployment or employee with a disability 30
21 Discrimination against contract workers 33
22 Principal must accommodate contract worker's responsibilities asparent or carer 34
23 Exception—adjustments for person or employee with a disabilitynot reasonable 35
24 Exception—domestic or personal services 36
25 Exception—care of children 36
26 Exception—genuine occupational requirements 37
27 Exception—political employment 38
28 Exception—welfare services 38
28A Exception—youth wages 39
29 Exception—early retirement schemes 39
Division 2—Discrimination in employment-related areas 39
30 Discrimination in establishing firms 39
31 Discrimination by firms 40
32 Firm must accommodate responsibilities as parent or carer of person invited to become a partner or of a partner 41
33 Firm must make reasonable adjustments for person invited to become a partner or partner with a disability 42
34 Exception—adjustments for person or partner with a disability not reasonable 44
35 Discrimination by industrial organisations 45
36 Discrimination by qualifying bodies 46
37 Exception—reasonable terms of qualification 46
Division 3—Discrimination in education 47
38 Discrimination by educational authorities 47
39 Exception—educational institutions for particular groups 47
40 Educational authority must make reasonable adjustments for person with a disability 48
41 Exception—not reasonable for educational authority to make adjustments 50
42 Exception—standards of dress and behaviour 51
43 Exception—age-based admission schemes and age quotas 51
Division 4—Discrimination in the provision of goods and services anddisposal of land 51
44 Discrimination in the provision of goods and services 51
45 Service provider must make reasonable adjustments for person with a disability 52
46 Exception—adjustments to provision of service not reasonable 54
47 Exception—insurance 55
48 Exception—credit providers 56
49 Exception—supervision of children 56
50 Discrimination in the disposal of land 57
51 Exception—disposal by will or gift 57
Division 5—Discrimination in accommodation 58
52 Discrimination in offering to provide accommodation 58
53 Discrimination in providing accommodation 58
54 Discrimination by refusing to allow assistance dogs 59
55 Discrimination by refusing to allow alterations 59
56 Discrimination by refusing to allow alterations—owners corporations 60
57 Discrimination in access to public premises 61
58 Exception—access to or use of public premises unreasonable 62
58A Exception—accommodation unsuitable for children 64
59 Exception—shared accommodation 64
60 Exception—welfare measures 65
61 Exception—accommodation for students 65
62 Exception—accommodation for commercial sexual services 65
63 Application of this Division 66
Division 6—Discrimination by clubs and club members 66
64 Discrimination against applicants for membership 66
65 Discrimination against club members 67
66 Exception—clubs for minority cultures 67
66A Exception—clubs for political purposes 67
67 Exception—clubs and benefits for particular age groups 68
68 Exception—single sex clubs 68
69 Exception—separate access to benefits for men and women 68
Division 7—Discrimination in sport 69
70 Definitions 69
71 Discrimination in sport 70
72 Exception—competitive sporting activities 70
Division 8—Discrimination in local government 71
73 Discrimination by councillors 71
74 Exception—political belief or activity 72
Part 5—General Exceptions to and Exemptions from the Prohibition of Discrimination 73
75 Things done with statutory authority 73
76 Things done to comply with orders of courts and tribunals 73
77 Pensions 73
78 Superannuation—existing fund conditions before
1January1996 73
79 Superannuation—new fund conditions after 1January1996 74
80 Charities 75
81 Definition of religious body 76
82 Religious bodies 76
83 Religious schools 77
84 Religious beliefs or principles 77
85 Legal incapacity and age of majority 78
86 Protection of health, safety and property 78
87 Age benefits and concessions 78
88 Special needs 79
89 Exemptions by the Tribunal 79
90 Factors to be considered by Tribunal 80
91 Applicant to give notice to Commission 81
Part 6—Prohibition of Sexual Harassment 82
92 What is sexual harassment? 82
93 Harassment by employers and employees 82
94 Harassment in common workplaces 83
95 Harassment by partners 83
96 Harassment in industrial organisations 84
97 Harassment by members of qualifying bodies 84
98 Harassment in educational institutions 85
99 Harassment in the provision of goods and services 85
100 Harassment in the provision of accommodation 85
101 Harassment in clubs 86
102 Harassment in local government 86
Part 7—Prohibition of Other Conduct and Vicarious Liability for Discrimination 87
Division 1—Victimisation 87
103 Prohibition of victimisation 87
104 What is victimisation? 87
Division 2—Authorising or assisting discrimination 89
105 Prohibition of authorising or assisting discrimination 89
106 Liability of person who authorises or assists 89
Division 3—Discriminatory requests for information 89
107 Prohibition on requesting discriminatory information 89
108 Exception—information required for purposes not involving prohibited discrimination 90
Division 4—Vicarious liability 91
109 Vicarious liability of employers and principals 91
110 Exception to vicarious liability 91
Part 8—Disputes 92
Division 1—Dispute resolution by the Commission 92
111 Functions of the Commission 92
112 Principles of dispute resolution offered by the Commission 92
113 Who may bring a dispute to the Commission? 93
114 Representative body may bring a dispute to the Commission 94
115 Beginning and end of dispute resolution 95
116 Discretion to decline to provide or continue dispute resolution 95
117 Admissibility of information gathered during dispute
resolution 96
118 Withdrawal from dispute resolution 96
119 Settlement agreements 96
120 Registration of settlement agreements 98
121 Tribunal may make interim orders to prevent prejudice to disputeresolution 98
Division 2—Applications to the Tribunal 100
122 Application may be made to Tribunal in respect of dispute 100
123 Who can apply? 100
124 Representative body may apply to Tribunal 101
125 What may the Tribunal decide? 102
126 Commission may apply to enforce order of Tribunal 103
Part 9—Investigations 104
Division 1—Commission may conduct investigation 104
127 When investigation may be conducted 104
128 Matters referred by Tribunal for investigation 105
Division 2—Conduct of investigations 105
129 Commission to conduct investigation as it thinks fit 105
130 Commission may ask for information 105
131 Tribunal order compelling production of information or documents 105
132 Creation of documents 107
133 Documents produced to the Commission 107
134 Power to compel attendance 108
135 Disclosure of identity of persons who give information or documents 109
136 Publication of evidence, information or documents 110
137 Tribunal may make interim orders to prevent prejudice to investigation 111
138 Investigation when other proceedings commenced 112
Division 3—Outcomes of investigations 112
139 Outcome of an investigation 112
140 Registration of agreements 113
141 Inquiries by the Tribunal 113
142 Report of an investigation 114
143 Content of reports 115
144 Report on investigation not prohibited disclosure 115
145–147 Repealed 104
Part 10—Practice Guidelines, Reviews and ActionPlans 116
Division 1—Practice guidelines 116
148 Commission may issue practice guidelines 116
149 Effect of practice guidelines 116
150 Publication of practice guidelines or withdrawal of practice guidelines 116
Division 2—Reviews 117
151 Commission may conduct review of compliance 117
Division 3—Action plans 118
152 Action plans 118
153 Register of action plans 118
Part 11—Victorian Equal Opportunity and HumanRights Commission 119
Division 1—The Commission 119
154 Continuation of Commission 119
155 Functions and powers of Commission 119
156 Commission's educative functions 120
157 Commission's research functions 120
158 Commission may report on educative or research functions 121
159 Commission may intervene in proceedings 121
160 Commission may assist in proceedings as amicus curiae 121
Division 2—The Board 122
161 Constitution of the Board 122
162 Functions of the Board 122
163 Terms of appointment of members 123
164 Resignation and removal 123
165 Chairperson 124
166 Acting appointments 124
167 Payment of members 126
168 Procedure of Board 126
169 Effect of vacancy or defect 126
Division 3—The Commissioner 127
170 Appointment and role of Commissioner 127
171 Payment of Commissioner 127
172 Acting Commissioner 127
173 Repealed 127
Division 4—General provisions 128
174 Staff of Commission 128
175 Delegation 129
176 Secrecy 130
176A Exceptions—court-ordered disclosure in criminal proceedingsor disclosure with consent 132
177 Disclosure of information relating to disputes, complaints andinvestigations 132
178 Protection from liability 133
179 Annual reports 134
Part 12—Offences 135
Division 1—Proceedings for offences 135
180 Who may bring proceedings for an offence? 135
181 Offences are to be dealt with summarily 135
Division 2—Discriminatory advertising 135
182 Offence of discriminatory advertising 135
183 Defence 136
184 Proceedings for the offence of discriminatory advertising 136
Division 3—Other offences 136
185 Obstructing Commission 136
186 False or misleading information 137
Part 13—General 138
187 Proceedings against unincorporated associations 138
188 Contravention does not create civil or criminal liability 138
188A Protection against self-incrimination 138
189 Protection of people giving evidence and information 138
190 Regulations 139
Part 14—Repeal of Equal Opportunity Act 1995 andTransitional Provisions 140
Division 1—Repeal of Equal Opportunity Act 1995 140
191 Repeal of Equal Opportunity Act 1995 140
Division 2—Transitional Provisions 140
192 Definitions 140
193 Complaints lodged before commencement day 141
194 Alleged contraventions that occurred prior to commencement
day 142
195 Exemptions under the old Act by the Tribunal 143
195A Continuation of the Board of the Commission 144
195B Interim chairperson 144
195C Commissioner 144
196 Tribunal may make orders of a transitional nature 144
PartS 15−17—Repealed 145
197−216 Repealed 145
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SCHEDULE—Repealed 146
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ENDNOTES 147
1. General Information 147
2. Table of Amendments 148
3. Explanatory Details 149
viii
Version No. 013
Equal Opportunity Act 2010
No. 16 of 2010
Version incorporating amendments as at
1 July 2014
62
Part 4—When is Discrimination Prohibited?
Equal Opportunity Act 2010
No. 16 of 2010
The Parliament of Victoria enacts:
Part 1—Preliminary
1 Purposes
The main purposes of this Act are—
(a) to re-enact and extend the law relating to equal opportunity and protection against discrimination, sexual harassment and victimisation; and
(b) to amend the Racial and Religious Tolerance Act 2001 in relation to dispute resolution; and
(c) to make consequential amendments to the Racial and Religious Tolerance Act 2001, the Victorian Civil and Administrative Tribunal Act 1998 and other Acts.
2 Commencement
(1) Section 1, this section and Part 16 come into operation on the day after the day on which this Act receives the Royal Assent.
S.2(2) repealedby No.26/2011 s.4.
* * * * *
(3) Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(4) If a provision of this Act referred to in subsection (3) does not come into operation before 1August 2011, it comes into operation on that day.
3 Objectives
s. 3
The objectives of this Act are—
(a) to eliminate discrimination, sexual harassment and victimisation, to the greatest possible extent;
(b) to further promote and protect the right to equality set out in the Charter of Human Rights and Responsibilities;
(c) to encourage the identification and elimination of systemic causes of discrimination, sexual harassment and victimisation;
(d) to promote and facilitate the progressive realisation of equality, as far as reasonably practicable, by recognising that—
(i) discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society;
(ii) equal application of a rule to different groups can have unequal results or outcomes;
(iii) the achievement of substantive equality may require the making of reasonable adjustments and reasonable accommodation and the taking of special measures;
(e) to enable the Victorian Equal Opportunity and Human Rights Commission to encourage best practice and facilitate compliance with this Act by undertaking research, educative and enforcement functions;
S.3(f) amendedby No.26/2011 s.34(Sch. item1.1).
(f) to enable the Victorian Equal Opportunity and Human Rights Commission to resolve disputes about discrimination, sexual harassment and victimisation in a timely and effective manner, and to also provide direct access to the Victorian Civil and Administrative Tribunal for resolution of such disputes.
4 Definitions
s. 4
(1) In this Act—
accommodation includes—
(a) business premises;
(b) a house or flat;
(c) a hotel or motel;
(d) a boarding house or hostel;
(e) a caravan or caravan site;
(f) a mobile home or mobile home site;
(g) a camping site;
S.4(1) def. of appointed member repealedby No.26/2011 s.5(c).
* * * * *
S.4(1) def.of assistance dog amendedby No.26/2011 s.34(Sch. item1.2(a)).
assistance dog means a dog that is trained to perform tasks or functions that assist a person with a disability to alleviate the effects of his or her disability;
attribute means an attribute in section 6;
Board means the Board of the Commission established under section 161;
breastfeeding includes the act of expressing milk;
carer means a person on whom another person is wholly or substantially dependent for ongoing care and attention, other than a person who provides that care and attention wholly or substantially on a commercial basis;
s. 4
child means a person under the age of 18 years;
club means an association of more than 30persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that—