On 10 July 2009, the Centre and the Public Interest Law Clearing House made a joint submission to the Victorian Scrutiny of Acts and Regulations Committee Inquiry into Exceptions and Exemptions under the Equal Opportunity Act 1995 (Vic), entitled Eliminating Discrimination and Ensuring Substantive Equality.
Permanent Exceptions
PILCH and the HRLRC submit that the permanent exceptions to the EO Act have had a notable role to play in facilitating and condoning discrimination in Victoria. In essence, permanent exceptions permit certain forms of differential treatment that would otherwise be characterised in law as discriminatory.
In many cases, permanent exceptions have institutionalised, or are at risk of reinforcing, systemic discrimination against the most marginalised and disadvantaged members of the Victorian community. Many exceptions to the EO Act appear to protect traditional social structures and hierarchies that discriminate against marginalised and disadvantaged groups. Rather than allowing a nuanced balancing of rights in cases where particular rights conflict, many permanent exceptions appear to be arbitrary, inflexible, broad, and unreasonable. In contrast to the objectives of the EO Act, many of the permanent exceptions also perpetuate discriminatory practices. Moreover, as the current exceptions cannot adapt to natural shifts in community values without legislative reform, they enable the stagnation of such practices.
For these reasons, PILCH and the HRLRC submit that the permanent exceptions in Parts 3 and 4 of the EO Act should be repealed. This does not mean that a person or organisation will never be able to lawfully discriminate. Repealing the permanent exceptions in the EO Act would simply mean that before discrimination is deemed permissible, that person or organisation must justify the reasons why they should be allowed to discriminate in the manner proposed.
Exemptions
Exemptions, like permanent exceptions, have also had a notable role to play in facilitating and condoning discrimination in Victoria, although to a lesser extent. Because exemptions in the EO Act permit conduct and activities that would otherwise be characterised in law as discriminatory, they should be granted only on a case-by-case basis and only after an individual application for exemption has been subject to a limitations analysis.
PILCH and the HRLRC submit that the exemptions regime in section 83 of the EO Act should be amended in line with section 7(2) of the Victorian Charter to explicitly 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. This model ascribes value to all human rights and does not automatically privilege one human right or fundamental freedom over another. It also helps to ensure that the rights to non-discrimination and equality are only limited in circumstances where it is necessary, reasonable and proportionate to do so.
PILCH and the HRLRC further submit that the EO Act should 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 section 7(2)-based limitations provisions.
Guidelines
Whilst PILCH and the HRLRC submit that the permanent exceptions in the EO Act should be repealed and replaced with an amended section 83, we submit that, in the interests of certainty and security, there may well be circumstances where it is useful to have Guidelines on permissible limitations to the rights to non-discrimination and equality. Such Guidelines would foster understanding about when it is or is not appropriate to discriminate and when it is necessary to apply for an individual exemption under a reformed section 83 of the EO Act. They would also help to prevent unnecessary litigation before Victorian courts and tribunals.
PILCH and the HRLRC submit that the EO Act is not an appropriate instrument in which to provide guidance on permissible limitations. The primary focus of the EO Act should be the elimination of all forms of discrimination and the realisation of substantive equality, and not the circumstances in which it is permissible to discriminate. Legislative guidelines could only be reformed by an Act of Parliament, a requirement that is cumbersome and inflexible. Moreover, inclusion in the EO Act of guidelines on permissible limitations would result in de jure discrimination.
Instead, PILCH and the HRLRC submit that Guidelines should be developed apart from the EO Act and be subject to ongoing, regular review and judicial oversight. PILCH and the HRLRC submit that only those current exceptions that pass a section 7(2) limitations analysis should be included in the Guidelines. For instance, as the permanent exceptions for religious bodies and institutions (s 77), private clubs (s 78) and gender identity (s 27B) do not satisfy section 7(2) of the Victorian Charter, they should not be included in the Guidelines, and persons or organisations wishing to discriminate in these areas should be required to apply to VCAT under an amended section 83 to demonstrate why it is justifiable for them to discriminate. Conversely, as the permanent exception in section 17 of the EO Act for bona fide occupational requirements does pass a section 7(2) analysis, that exception should be included in the Guidelines and individual employers would not be required to apply to VCAT, under an amended section 83, for individual exemptions to the EO Act.
Temporary Special Measures
The Equal Opportunity Review, conducted by Julian Gardner for the Department of Justice (DOJ) in 2007-2008, recommended that ‘[t]he existing provision in the Charter that provides that special measures, taken for the purpose of assisting or advancing people disadvantaged because of discrimination do not constitute discrimination, should be incorporated in the Act’ .
PILCH and the HRLRC support this recommendation and consider that the EO Act should be amended to reflect the legal distinction between permissible discrimination and special measures. Special measures do not constitute discrimination; rather they are part of a necessary strategy to achieve substantive equality for some groups in the community.
In accordance with this recommendation, those permanent exceptions that are designed to address existing disadvantage (and are therefore properly characterised as ’special measures’) should not be included in any legislative or quasi-legislative exceptions scheme. Rather, they should be contained in a separate part of the EO Act that deals specifically with special measures.
