Law Reform

Equal Opportunity Bill 2010

In March 2010, PILCH made a submission to the Scrutiny of Acts and Regulations Committee on its Review of the Equal Opportunity Bill 2010 (Vic).

PILCH made a recommendation that ‘homelessness’ and ‘irrelevant criminal record’ should be included in the list of protected attributes in section 6 of the EO Bill. Other recommendations included: all permanent exceptions should be repealed; the maximum period of operation of exemptions should not be extended from three to five years; and, adequate funding for the equal opportunity regime should be guaranteed.

Draft General Comment No. 20: Non-Discrimination

In December 2008, PILCH, together with the Human Rights Law Resource Centre, made a joint submission to the Committee on Economic, Social and Cultural Rights in relation to Draft General Comment No. 20: Non-Discrimination.

The Draft General Comment elaborates the nature and content of the right to non-discrimination contained in the International Covenant on Economic, Social and Cultural Rights. It expands upon the scope of States Parties' obligations with regard to that principle, addresses the prohibited grounds for discrimination, and explains the appropriate measures that States Parties are required to take to implement the right to non-discrimination at the national level.

The joint submission examines State Party obligations to:

• eliminate systemic discrimination
• adopt temporary special measures
• prohibit distinct grounds of discrimination, including multiple forms of discrimination.

The submission also examines permissible limitations on the right to non-discrimination.

The final draft of General Comment 20 is available at: http://www2.ohchr.org/english/bodies/cescr/docs/E.C.12.GC.20.doc.

·         Annexure to Joint Submission to the UN Committee on Economic, Social and Cultural Rights on General Comment No. 20: Non-Discrimination (92.5 KB)

Senate Inquiry into the Sex Discrimination Act 1984

In 2008 the Senate initiated an inquiry into the effectiveness of the Sex Discrimination Act 1984 (SDA) in eliminating all forms of sex discrimination against women. The PILCH submission draws on case examples in which PILCH has advised or assisted individuals with referrals to lawyers for pro bono assistance, and feedback obtained through consultations with complainants, lawyers and health professionals. Whilst the submission focuses on sexual harassment, an extremely prevalent form of sex discrimination, many of PILCH’s observations and recommendations are also applicable to other forms of discrimination against women. The analysis of sexual harassment and the remedies provided for it under the SDA and the Human Rights and Equal Opportunity Commission Act clearly illustrate the following:

• The inadequacies and inherent power imbalances of the current complaint system
• The need to expand the role of HREOC or create a like agency to investigate and remedy sex discrimination and increase HREOC’s capacity to undertake research for law reform purposes and conduct education and training
• The often inconsistent, insensitive, and unjust outcomes for victims when internal grievance procedures are used by organizations and employers.
• The problems associated with the use of confidentiality agreements
• The inadequacy of the remedies that are currently available.

The submission was informed by principles of international human rights law, in particular the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), that places obligations on all signatories to ensure that they have legislation and policies in place to protect women from sex discrimination and provide meaningful and appropriate remedies when such discrimination occurs in order to fulfil their human rights obligations.

Review of Exceptions and Exemptions in the Equal Opportunity Act 1995 (Vic)

In April 2008, PILCH and the Human Rights Law Resource Centre made a joint submission to the Department of Justice’s Exceptions Review on the permanent exceptions and exemptions in the Equal Opportunity Act 1995 (Vic) and their compatibility with the Victorian Charter.  The submission recommended that:

• any reforms be consistent with Australia’s obligations under international human rights law and the Victorian Charter
• all of the permanent exceptions in the Act be repealed and replaced with a provision equivalent to section 7(2) of the Victorian Charter to ensure that the rights to non-discrimination and equality are limited only where it is necessary, reasonable and proportionate to do so
• any proposal to retain the exceptions in the EO Act should ensure that they are subject to a limitations analysis under section 7(2) of the Victorian Charter; and,
• any application for an exemption under the EO Act should be subject to a limitations analysis under section 7(2) of the Victorian Charter, and any decision granting an exemption should require an applicant to regularly consider the exemption’s necessity, in a manner that is consistent with section 7(2). 

Please note that this submission should be read in conjunction with the joint, supplementary submission to the Scrutiny of Acts and Regulations Committee’s 2009 inquiry into exceptions and exemptions.  This submission is available here. For information about reform of the Act more generally, please see here. 

The Department of Justice’s final report is available at: http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/resources/file/eb92a540d52abf8/Final%20Version%20-%20Final%20Report.pdf.

Joint PILCH/HRLRC Submission to the Department of Justice Exceptions Review of the Equal Opportunity Act 1995 (Vic.) (319.9 KB)

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Department of Justice Equal Opportunity Review

In November 2007, the Victorian Attorney General initiated an independent review of various aspects of the Equal Opportunity Act 1995 (Vic) (the EO Act). The review seeks to reform the EO Act to ‘better promote the right to equality and improve protection from discrimination’.
 
The PILCH submission draws on case examples in which PILCH has assisted by providing individuals with referrals to lawyers for pro bono representation and the feedback obtained through consultation with complainants, lawyers and heath professionals. Through this work PILCH has had first hand experience of dealing with a range of complaints by individuals who have endured some form of discriminatory behaviour and resultant harm.
 
The submission focussed on:

• the inadequacies and inherent power imbalances of the current complaint system
• the need to widen the scope of the EO Act to provide broader powers to address systemic discrimination
• the need to expand the role of the VEOHRC to investigate and remedy discrimination and increase its capacity to  undertake research for law reform purposes and conduct education and training.

In addition, the submission discusses problems associated with the use of internal grievance procedures by employers. PILCH’s experience is that these procedures are often inconsistent, insensitive and lead to unsatisfactory outcomes for the victim. The submission also addresses the use of confidentiality agreements, noting that the ‘overuse’ of confidentiality agreements leads to a lack of data regarding the incidence of discrimination in the community and a lack of jurisprudence in this area of the law.
 
PILCH’s submission was informed by principles of international human rights law and obligations on all States to ensure that they have legislation and policies in place that protect all people from discrimination and provide remedies where discrimination occurs.

The Department of Justice’s final report is available at: http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/resources/file/eb92a540d52abf8/Final%20Version%20-%20Final%20Report.pdf.

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Review of the Equal Opportunity for Women in the Workplace Act 1999 (Cth)

In October 2009, PILCH made a submission to the Office for Women in relation to its review of the effectiveness and efficiency of the Equal Opportunity for Women in the Workplace Act 1999 (Cth).  

In its submission, PILCH asserted that whilst some of the obstacles that impede equality in the workplace have been removed (or partially removed), many barriers, including wrongful gender stereotyping and gender-based violence against women, remain socially entrenched.  PILCH submitted that the Australian Government and the Equal Opportunity for Women in the Workplace Agency need to take positive steps to remove the obstacles that continue to impede equal employment opportunities for women.  

PILCH’s submission emphasised the need to transform the traditional division of breadwinning and caregiving responsibilities between men and women, arguing that such a transformation is necessary to ensure that caregiving is viewed as an important and valued responsibility of men and women, as well as the community as a whole.  PILCH submitted that it is also necessary to ensure that women’s full participation in society is viewed as beneficial not only for women, but also the entire Australian community.

A response from the Office for Women is expected in 2010.

Submission: Review of the Office for Women on the Review of the Equal Opportunity for Women in the Workplace Act 1999 (150.6 KB)

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Inquiry into the Marriage Equality Amendment Bill

 August 2009, PILCH made a submission to the Senate Standing Committee on Legal and Constitutional Affairs on its inquiry into the Marriage Equality Amendment Bill 2009 (Cth) (Bill). The Bill’s objectives are to: 

• remove discrimination on the grounds of sex, sexuality or gender identity;
• recognise that freedom of sexuality and gender identity are fundamental human rights; and,
• promote acceptance and the celebration of diversity.

In its submission, PILCH highlighted the need to adopt a human rights-based approach to the Marriage Act 1961 (Cth) (Act) and, in so doing, endorsed the legal recognition of same-sex marriages.  PILCH drew upon jurisprudence and legislation in international and comparative jurisdictions, such as South Africa and Canada, that have already afforded legal recognition to same-sex marriages.  PILCH also highlighted public support for this form of marriage within Australia.

In its submission, PILCH endorsed the Bill and urged the Federal Parliament to enact it into law, as a matter of priority.  PILCH further recommended that the Australian Government should:

• ensure that the Act is informed by and reflects the rights to non-discrimination on the grounds of sex, sexual orientation and gender identity;
• amend the definition of marriage in the Act to allow for legal recognition of same-sex relationships as marriage; and,
• recognise same-sex marriages that have been lawfully contracted in other countries.

The Senate Committee’s final report is available at: http://www.aph.gov.au/Senate/committee/legcon_ctte/marriage_equality/report/report.pdf.

Scrutiny of Acts and Regulations Committee's Inquiry into the Exceptions and Exemptions in the Equal Opportunity Act

In July 2009, PILCH and the Human Rights Law Resource Centre made a joint submission to the Scrutiny of Acts and Regulations Committee’s inquiry into whether or not any amendments should be made to the exceptions and exemptions in the Equal Opportunity Act 1995 (Vic). 

The submission noted how the permanent exceptions have facilitated and condoned discrimination.  The submission called for the repeal of the permanent exceptions on the grounds that they:

• are extremely broad and permit discrimination that is neither fair nor reasonable;
• have institutionalised, or risk reinforcing, systemic discrimination;
• are incapable of adapting to natural shifts in community values without legislative reform; and,
• appear to be arbitrary, inflexible and unreasonable in that they do not allow for a nuanced balancing of rights in cases where particular rights conflict.   

The submission recommended that section 83 of the Act be amended to require VCAT to take into account the relevant factors set out in section 7(2), when deciding whether or not to exercise its discretion to grant an individual exemption.  The submission also recommended that the Act should be amended to incorporate a requirement that successful exemption applicants consider, on an ongoing basis, the need for their respective exemptions, taking into account the considerations outlined in a section 7(2)-based limitations provisions. 

Whilst the submission called for the repeal of the permanent exceptions in the Act, it recognised that there may be circumstances where it is useful to have Guidelines on permissible limitations to the rights to non-discrimination and equality.  The submission therefore recommended that Guidelines on permissible limitations should be developed, apart from the Act, and be subject to ongoing, regular review and judicial oversight.  It submitted that only those current exceptions that pass a section 7(2) limitations analysis should be included in the Guidelines.  

Last, the submission supported the recommendation of the Gardner Review that the Act be amended to reflect the legal distinction between permissible discrimination and temporary special measures, which do not constitute a form of discrimination in law.  It also suggested that temporary special measures should not be included in any legislative or quasi-legislative exceptions and exemptions regime, but rather included in the core part of the Act.  

The Committee’s final report is available at: http://www.parliament.vic.gov.au/sarc/EOA_exempt_except/Final_Report/Final_Report/20November.pdf.

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Australian Health Workforce Ministerial Council on the Draft Health Practitioner Regulation National Law

In July 2009, PILCH made a submission to the Australian Health Workforce Ministerial Council on the Exposure Draft of the Health Practitioner Regulation National Law.  The submission addressed those provisions of the Draft Law that require health practitioners to disclose their criminal histories to the relevant regulatory body.   

In its submission, PILCH acknowledged that, in some circumstances, it will be appropriate to discriminate against a health practitioner on the basis of his or her particular criminal history, such as in cases where it is necessary to preserve community safety.  However, PILCH submitted that the requirement in the Draft Law that a health practitioner should disclose all aspects of his or her criminal history, including unproven charges and spent convictions, violates international human rights law, including the right to non-discrimination. Adopting a human rights approach, PILCH recommended that:

• provision on criminal histories should be consistent with human rights law;  
• only criminal histories relevant to the provision of health services should be taken into account by the relevant regulatory body;
• the Draft Law should incorporate an independent review procedure; and,
• the definition of ‘criminal history’ should be amended to refer only to recorded convictions and to exclude spent convictions.    

PILCH acknowledges the substantial pro bono contribution made by Mallesons Stephen Jaques in researching and preparing this submission.