Equal Opportunity Amendment Bill 2011

Introduction Print

EXPLANATORY MEMORANDUM

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BILL LA INTRODUCTION 4/5/2011

General

The Equal Opportunity Act 2010 (the Principal Act) has a default commencement date of 1 August 2011 and will replace the Equal Opportunity Act 1995 (the 1995 Act) upon commencement.

The key objectives of this Bill are to amend the Principal Act to—

·  alter the new powers of the Victorian Equal Opportunity and Human Rights Commission (the Commission) to conduct investigations and public inquiries;

·  remove the "inherent requirements test" in the exception for employment in a religious body or school to restore the freedom of faith-based organisations to engage staff who uphold the values of the organisation;

·  alter the governance structure of the Commission in order to appoint a chairperson of the Board of the Commission independent of the Commissioner.

The Bill also amends the Electoral Act 2002 to permit the Victorian Electoral Commission to discriminate on the basis of political belief or activity in relation to employment, inserts certain exceptions based on exceptions in the 1995 Act and makes miscellaneous amendments to improve the operation of the Principal Act.

Clause Notes

PART 1—PRELIMINARY

Clause 1 sets out the purposes of the Bill. The main purposes of the Bill are to amend the Principal Act to alter the governance arrangements for the Commission and the powers and functions of the Commissioner, remove the Commission's power to conduct public inquiries and amend the Commission's power to conduct investigations. The Bill also alters a number of exceptions in the Principal Act, inserts exceptions relating to youth wages, accommodation and political clubs, and clarifies the relationship between the reasonable adjustments provisions in the Principal Act, and the disability standards under the Commonwealth Disability Discrimination Act 1992, as well as determinations made under section 160B of the Building Act 1993. The Bill makes miscellaneous amendments to improve the operation of the Principal Act and amends the Electoral Act 2002 to permit the Victorian Electoral Commission to discriminate on the basis of political belief or activity in relation to employment.

Clause 2 provides for the commencement of the Bill. The Bill comes into operation on the day after the day on which it receives Royal Assent, except for Part 3 of the Bill, which comes into operation on 1 August 2011, to coincide with the default commencement of the Principal Act. As the Bill amends the Principal Act, the amendments will not have practical effect until the Principal Act commences.

Clause 3 provides that the Equal Opportunity Act 2010 is called the Principal Act in the Bill.

PART 2—AMENDMENTS TO THE EQUAL OPPORTUNITY ACT 2010

Clause 4 repeals section 2(2) of the Principal Act, which is redundant because the Public Finance and Accountability Act 2010 did not proceed.

Clause 5 amends definitions in the Principal Act. The definition of impairment is substituted for a definition of "disability" for consistency with more common terminology used in human rights and discrimination law nationally and internationally. Thedefinition of appointed member is repealed in accordance with the changes to the Commission's governance arrangements and the reference to "section 169" in the definition of Commissioner is replaced with "section 170" to reflect the changes to the Commissioner's role in the Bill.

Clause 6 amends section 15(4) of the Principal Act to omit "or a public inquiry" to reflect the Bill's removal of the power of the Commission to conduct a public inquiry.

Clause 7 amends section 20 of the Principal Act, which provides that if a person who is offered employment or an employee has an impairment and requires adjustments in order to perform the genuine and reasonable requirements of the employment, the employer must make reasonable adjustments unless the person or employee could not adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made.

Section 20 is one of the "reasonable adjustment provisions" in the Principal Act for people with impairments, which apply in a number of contexts, including employment, service provision and access to premises. Each provision has criteria for assessing what is reasonable in the circumstances. However, there are parallel obligations under the Commonwealth Disability Discrimination Act 1992, which provides for disability standards. New section 160B of the Building Act 1993, inserted by section5 of the Building Amendment Act 2011, will enable building owners, designers, surveyors and builders to apply to be exempt from improved accessibility requirements that would impose unjustifiable hardship.

The overlapping requirements can be confusing. Theamendment made by clause 7 clarifies the relationship between the Principal Act, standards under the Commonwealth Disability Discrimination Act 1992 and determinations made under section160B of the Building Act 1993. The amendment makes it clear that employers are not required to make a reasonable adjustment to the extent that they have already complied with, or have been exempted from compliance with, a relevant disability standard made under the Commonwealth Disability Discrimination Act 1992. The amendment also makes clear that employers are not required to make an adjustment that relates to a building or land when a determination in relation to that adjustment has already been made under section 160B of the Building Act 1993.

Clause 8 provides that an employer can discriminate on the basis of age in paying an employee who is under the age of 21 years according to the employee's age. This reflects the position in the 1995Act in relation to youth wages. The Commonwealth FairWork Act 2009, which applies—subject to some exclusions—to employers and employees in Victoria, authorises the payment of junior rates of pay in certain instruments (for example in a modern award). To the extent that there may be limited circumstances in Victoria where the scheme under the Fair Work Act 2009 does not apply, the purpose of clause 8 is to clarify that the payment of an employee under the age of 21 years according to their age will not amount to unlawful discrimination under the Principal Act.

Clause 9 amends section 33 of the Principal Act, which provides that if a person invited to become a partner or a partner of a firm has an impairment and requires adjustments in order to perform the genuine and reasonable requirements of partnership in the firm, the firm must make reasonable adjustments unless the partner or person seeking admission to the firm as a partner could not adequately perform the genuine and reasonable requirements of partnership in the firm even after the adjustments are made. Aswith clause 7, the purpose of clause 9 is to clarify the relationship between the Principal Act, standards under the Commonwealth Disability Discrimination Act 1992 and determinations made under section 160B of the Building Act 1993. The amendment makes it clear that firms are not required to make a reasonable adjustment to the extent that they have already complied with, or have been exempted from compliance with, a relevant disability standard made under the Commonwealth Disability Discrimination Act 1992. Theamendment also clarifies that firms are not required to make an adjustment that relates to a building or land when a determination in relation to that adjustment has already been made under section 160B of the Building Act 1993.

Clause 10 amends section 40 of the Principal Act, which provides that if a person with an impairment requires adjustments in order to participate or continue to participate or to derive substantial benefit from an educational program of an educational authority, the educational authority must make reasonable adjustments unless the person could not participate or continue to participate or to derive or continue to derive any substantial benefit from the educational program even after the adjustments are made. Aswith clauses 7 and 9, the purpose of clause 10 is to clarify the relationship between the Principal Act, standards under the Commonwealth Disability Discrimination Act 1992 and determinations made under section 160B of the Building Act 1993. The amendment makes it clear that an educational authority is not required to make a reasonable adjustment to the extent that they have already complied with, or have been exempted from compliance with, a relevant disability standard made under the Commonwealth Disability Discrimination Act 1992. The amendment also makes clear that an educational authority is not required to make an adjustment that relates to a building or land when a determination in relation to that adjustment has already been made under section 160B of the Building Act 1993.

Clause 11 substitutes section 42(2) of the Principal Act to provide that if a school has taken into account the views of the school community in setting standards of dress, appearance and behaviour, those standards are reasonable for the purposes of section 42(1). Thisreflects section 42(2) of the 1995 Act. The school community would include students, staff, parents, members of school committees and councils. For other educational institutions, whether or not standards are reasonable will depend on all the circumstances of the case.

Clause 12 amends section 45 of the Principal Act, which provides that if a person with an impairment requires adjustments to be made to the provision of service by another person (referred to as the service provider), the service provider must make reasonable adjustments unless the person could not participate in or access the service, or derive substantial benefit from the service even after the adjustments are made. As with clauses 7, 9 and 10, the purpose of clause 12 is to clarify the relationship between the Principal Act, standards under the Commonwealth Disability Discrimination Act 1992 and determinations made under section160B of the Building Act 1993. The amendment makes it clear that a service provider is not required to make a reasonable adjustment to the extent that they have already complied with, or have been exempted from compliance with, a relevant disability standard made under the Commonwealth Disability Discrimination Act 1992. The amendment also makes clear that a service provider is not required to make an adjustment that relates to a building or land when a determination in relation to that adjustment has already been made under section 160B of the Building Act 1993.

Clause 13 amends section 58 of the Principal Act, which provides an exception to the prohibition on discrimination set out in section57 in relation to the access or use of premises where the person cannot reasonably be expected to avoid the discrimination. As with clauses 7, 9, 10 and 12, the purpose of clause 13 is to clarify the relationship between the Principal Act, standards under the Commonwealth Disability Discrimination Act 1992 and determinations made under section 160B of the Building Act 1993. The amendment makes it clear that a person may discriminate against anotherperson on the basis of the other person's disability under section 58 of the Principal Act, to the extent that they have already complied with, or have been exempted from compliancewith, a relevant disability standard made under the Commonwealth Disability Discrimination Act 1992, or to the extent that a relevant determination has already been made under section 160B of the Building Act 1993.

Clause 14 inserts new section 58A into the Principal Act, which reflects section 53 of the 1995 Act. New section 58A allows a person to refuse to provide accommodation to a child or a person with a child if the premises are unsuitable or inappropriate for occupation by a child because of their design or location. Theexception does not allow a person to refuse to provide accommodation where the premises are considered unsuitable for other reasons such as the amenity of other guests. The exception exists in the same terms in relation to residential tenancies in the Residential Tenancies Act 1997.

Clause 15 inserts new section 66A into the Principal Act to allow clubs principally established for a political purpose to restrict membership on the basis of political belief or activity. Clause 15 is required due to the new definition of club in the Principal Act, which defines a club as an association of 30 or more persons associated for social, literary, cultural, political, sporting, athletic or other purpose, that has a licence to supply liquor, which captures political clubs with a liquor licence. Clause 15 acknowledges the importance of a person's political belief in determining their eligibility to join a club established principally for a political purpose.

Clause 16 inserts a new subsection (2) in section 69 of the Principal Act to clarify the matters to be considered in applying the exception to allow clubs to limit a member's access to benefits on the basis of their sex where it is not practicable for men and women to enjoy the same benefit together and access to the same or an equivalent benefit is provided separately for men and women or men and women are entitled to a reasonably equivalent opportunity to enjoy the benefit. New section 69(2) is consistent with section25(5) of the Commonwealth Sex Discrimination Act 1984.

Clause 17 amends section 72 of the Principal Act to create two new exceptions to apply to competitive sporting competitions. Thefirst exception permits single sex competitions in competitive sporting activities if such competitions are necessary to allow participants to progress to elite level national or international competitions.