Exceptions and Exemptions to the Equal Opportunity Act 1995 Options Paper

Making a Submission

The Committee invites submissions that are relevant to the terms of reference as outlined and discussed in the paper.

Anyone may make a submission. It is not necessary to have legal or other special qualifications. The Inquiry raises issues of importance to all Victorians and it would be helpful to the Committee in its review of the relevant provisions of the Act to receive the submissions of individuals and organisations.

There is no set format for submissions. Your contribution can take the form of a letter, a short briefing paper or a longer research document that provides details of the relevant issues under review. A person with a disability or impairment may make a submission by audio tape recording or other approved method or through a friend or advocate.

All submissions are treated as public documents unless confidentiality is requested at the time the submission is given to the Committee.

The deadline for submissions is 5.00 pm on Friday 10 July 2009.

The Inquiry Timetable

After written submissions close the Committee will hold public hearings in August to take further evidence. It is anticipated that the Committee will table a Final Report in October or early November 2009.

Address for Comments and Submissions

General enquiries: Andrew Homer, Senior Legal Adviser, [phone]

Email: [e-mail]

Submissions may be mailed to: Carlo Carli MP,
Chairperson,
Scrutiny of Acts and Regulations Committee
Parliament of Victoria, Melbourne 3000
Table of Contents

Exceptions and Exemptions to the Equal Opportunity Act 1995 2

6

Scrutiny of Acts and Regulations Committee 6

Functions of the Committee 8

Terms of Reference 10

Abbreviations 11

How to make a submission 12

Making a Submission 12

The Inquiry Timetable 13

Address for Comments and Submissions 13

Table of Contents 14

Chair’s Foreword 15

Introduction 16

Structure of this paper 17

Background: General Questions 20

The role of exceptions and exemptions and the need for reform 20

The rationales and criteria for reviewing the exceptions and exemptions 23

Reviewing the Exceptions:
Approaches and Principles 30

How could the format of exceptions be changed to assist the achievement of equality in Victoria? 31

The Exceptions 38

1 – Exceptions to Discrimination in Employment 43

Section 16 – Domestic or personal services in the home 43

Section 17 – Genuine occupational requirements 45

Section 18 – Political employment 51

Section 19 – Welfare services 52

Section 20 – Family employment 56

Section 22 – Special services or facilities 63

Section 23 – Reasonable terms of employment 69

Section 24 – Standards of dress and behaviour 72

Section 25 – Care of Children 75

Section 26 – Compulsory retirement of judicial officers 80

Section 27 – Youth wages 81

Section 27A – Early retirement schemes 83

Section 27B – Gender identity 84

Section 28 – Single sex accommodation 87

Sections 30 and 31 – Establishing firms and partnerships 88

Section 32 – Special services and facilities 90

Section 33 – Reasonable terms of partnership 91

Section 36 – Reasonable terms of qualification 92

2 – Exceptions to discrimination in education 93

Section 38 – Educational institutions for particular groups 93

Section 39 – Special services or facilities 96

Section 40 – Standards of dress and behaviour 97

Section 41 – Age based admission schemes and age quotas 100

3 – Exceptions to discrimination in the provision of goods and services and the disposal of land 101

Section 43 – Insurance 101

Section 44 – Credit providers 103

Section 45 – Supervision of children 106

Section 48 – Disposal by will or by gift 109

4 – Exceptions to discrimination in accommodation 110

Section 53 – Accommodation unsuitable for children 110

Section 54 – Shared accommodation 112

Section 55 – Welfare measures in accommodation 113

Section 56 – Accommodation for students 116

Section 57 – Accommodation for commercial sexual services 117

5 – Exceptions to discrimination by clubs and club members 119

Section 61 – Clubs for disadvantaged people or minority cultures 119

Section 63 – Separate access to benefits for men and women 120

6 – Exceptions to discrimination in Sport and Local Government 122

Section 66 – Competitive sporting activities 122

Section 68 – Political belief or activity 125

7 – General Exceptions 126

Section 70 – Things done to comply with orders of the courts and tribunals 126

Section 71 – Pensions 127

Sections 72 and 73 – Superannuation 128

130

Section 74 – Charities 131

Section 75 – Religious bodies 131

Subsection 75(3) and section 76 – Religious Schools 146

Section 77 – Religious beliefs or principles 156

Section 78 – Private clubs 158

Section 79 – Incapacity and age of majority – where a person is subject to a legal incapacity that is relevant to the transaction or activity in which they are involved 165

Section 80 – Protection of health, safety and property 166

Section 81 – Age benefits and concessions – the provision of benefits, including concessions, to another person based on age 169

Section 82 – Welfare measures and special needs 170

Section 83 – Exemptions by the Victorian Civil and Administrative Tribunal 175

Section 84 – Exemptions to allow compulsory retirement in the public sector 186

8 – Relationship with other Acts 187

Section 69 – Statutory authority exception 187

Appendix A
List of exceptions and exemptions in the Equal Opportunity Act 1995 197

Division 1 – Discrimination in employment 197

Division 2 – Discrimination in employment-related areas 198

Division 3 – Discrimination in education 198

Division 4 – Discrimination in the provision of goods and services 198

Division 5 – Discrimination in accommodation 198

Division 6 – Discrimination by clubs and club members 199

Division 7 – Discrimination in sport 199

Division 8 – Discrimination in Local Government 199

General Exceptions to and Exemptions from the prohibition of Discrimination in the Equal Opportunity Act 1995 199

Appendix B
Sample Special Measures Provisions 201

EO Act 1994 South Australia 201

SDA (Cth) 7D Special measures intended to achieve equality 201

DDA (Cth) 45 Special measures 202

Appendix C
Comparison of Statutory Authority
provisions in other States and Territories 203

Chair’s Foreword

The Scrutiny of Acts and Regulations Committee is conducting an inquiry into the exceptions and exemptions provisions in the Equal Opportunity Act 1995 (the ‘Act’). The Committee is asked to report to the Parliament as to whether any amendments should be made to this legislation.

The Act provides that direct and indirect discrimination is unlawful if the discrimination is on the basis of one of the attributes provided in section 6 of the Act, including amongst others, discrimination on the basis of age, religious belief or activity, sex, race, sexual orientation, political belief, impairment and marital status.

In Parts 3 and 4 of the Act provision is made for exceptions and exemptions to permit discrimination on the basis of one or more of those attributes.

Exceptions and exemptions in the Act include such matters as –

• 
  Single sex clubs (eg. men’s clubs, women-only gymnasiums)
  
• 
  Religious institutions
  
• 
  Religious organisations (eg. schools, counselling services)
  
• 
  Schools for particular groups
  
• 
  Sporting competition (eg. age range or single sex)
  
• 
  Employment exceptions (genuine occupational qualification, requirement to make reasonable adjustments for impaired employees, small businesses)
  

The Options / Discussion paper explains the current provisions and provides examples or options how the law may be reformed by amendments to the Act.

The Committee welcomes submissions in respect to these provisions and hopes the Discission / Options paper will be of assistance to persons and organisations in formulating these to benefit the inquiry and the recommendations that the Committee will make later in the year.

The Committee wishes to express its gratitude to the inquiry consultant Associate Professor Beth Gaze for her remarkable contribution in preparing comprehensive legal and background advice for the Committee’s consideration and to Simon Dinsbergs for his considerable and timely support in the production of this paper.

Carlo Carli MP

Chairperson

May 2009

Introduction

The Scrutiny of Acts and Regulations Committee of Parliament (SARC) has been requested to inquire into, consider and report to Parliament on whether any amendments should be made to the exceptions and exemptions in the Equal Opportunity Act 1995 (the EO Act). This will require it to consider whether there should be any amendments made to:

• 
  the exception provisions in the Act (see list of provisions in Appendix A);
  
• 
  the Victorian Civil and Administrative Tribunal (VCAT) exemption process (section 83); or
  
• 
  the statutory authority exception (section 69).
  

SARC has been requested to provide its interim report to Parliament by the 30 April 2009. SARC has been requested by the Attorney-General (by letter of March 10 2009) to outline some key principles which could underpin the exceptions and exemptions in the Act, including

• 
  the types of exceptions and exemptions that should be available as of right in the Act,
  
• 
  those exceptions which should not be included at all, and
  
• 
  those which should be the subject of an exemption application at the Victorian Civil and Administrative Tribunal.
  

The background to this inquiry begins with the Equal Opportunity Review conducted by Mr Julian Gardner for the Department of Justice (DOJ) in 2007-2008. In August 2007 the Attorney-General announced a Review of the Equal Opportunity Act 1995 (Vic) (the Gardner Review), with a focus on how best to eliminate discrimination and promote equal opportunity through reforms to modernise the EO Act. Review of exemptions and exceptions was excluded from its terms of reference. That review proceeded with the release of a Discussion Paper in November 2007, the submission of responses, the release of an Options Paper in March 2008, and receipt of comments, culminating in the Final Report, An Equality Act for a Fairer Victoria, provided to the Government in June 2008 (the Gardner Report).¹ The Report recommended that the EO Act focus more on systemic discrimination, and on enhancing prevention, compliance and enforcement.

At the same time, the Department of Justice began an Exceptions Review and released a Consultation Paper in February 2008, seeking comments on the need for amendments of any of the exceptions and exemptions in the Act. Over 500 submissions were made to the Department in response to this paper.² Subsequently, the Scrutiny of Acts and Regulations Committee was given this reference, and has been given access to the non-confidential submissions made in response to the Consultation Paper, together with a Background Paper prepared by the Department of Justice. In addition, several submissions have been received by SARC in 2009, although there has been no further public call for submissions. There is an opportunity to make submissions to the Committee in response to this paper.

Documentation available to this inquiry includes:

1. Papers and Submissions from the Gardner Review of the EO Act (December 2007 to June 2008)

2. Consultation Paper for the Exceptions Review (DOJ 2008).

3. Non-confidential Submissions to the Exceptions Review (2008).

4. Background Paper for SARC prepared by DOJ (2008).

It is not yet clear to what extent amendments will be made to the EO Act based on the Report of the Gardner Review. As a result, this paper focuses on the exceptions and exemptions as they are in the EO Act at present. The exceptions necessary if the new attributes (homelessness (recommendation 46) and irrelevant criminal record, recommendation 48) are added as recommended by the Gardner Review will be considered in a future report, and submissions are sought on these aspects.

The Gardner Review also recommended that:

• 
  The existing provision in s. 8(4) of the Charter that provides that ‘measures taken for the purpose of assisting or advancing people disadvantaged because of discrimination do not constitute discrimination,’ should be incorporated in the Act. (Recommendation 4), and
  
• 
  The Act should be amended to include an express requirement to make reasonable adjustments for people with impairment in relation to all areas protected by the Act and in public spaces. Reasonableness should be clarified in the legislation. (Recommendation 43).
  

These recommendations have broad implications for a number of exceptions and exemptions in the EO Act, and are discussed where they are relevant in the context of each exception provision, and in particular in the context of s. 82 (special measures) and ss. 22, 23, 32, 33, 36, 39 and 46 (reasonable adjustments for people with impairment). The other recommendations of the Gardner Review do not at this stage appear to have any implications for the exceptions and exemptions.