New anti-discrimination laws commence in Victoria on 1 August, 2011 which introduce several changes to existing laws. This Chapter refers to the new laws unless otherwise specified. Further information about the changes can be found on the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) website (see below).
The Equal Opportunity Act 2010 (Vic) replaces the Equal Opportunity Act 1995 on 1 August 2011. A brief summary of key changes is provided below.
The coverage of the new EOA 2010 extends to include the following points.
- That the taking of special measures for the purpose of promoting or realising substantive equality for members of a group with a particular attribute is not discrimination.
- Duty holders (for example employers and schools) have a duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation as far as possible.
- Conduct relevant to the use of assistance animals and assistance aids is expressly included in the definition of discrimination.
- Owners corporations must allow a person with a disability to make alterations in some circumstances.
- Employers, education providers and goods and service providers are required to make reasonable adjustments to assist a person with a disability (with some exceptions).
- A person with a disability must not be discriminated against in relation to access to public premises.
Definitions
New definitions and changes to existing definitions under the new EOA 2010 include the following.
- The term “impairment” has been changed to “disability”.
- The definition of “disability” has been changed to include a future disability (including because of a genetic predisposition to the disability) and to include behaviour that is a symptom or manifestation of a disability.
- The definition of a "club" has been changed and a new definition for "assistance dogs" replaces the current definition of "guide dog".
- The definitions of indirect and direct discrimination have been simplified and the definition of disability has been broadened to include future disability and behaviour that is a manifestation of a disability.
- "Religious bodies" have been defined.
- Volunteers will enjoy the same protections as employees for the purposes of the sexual harassment provisions.
- A new definition relevant to when a "club" may fall within the jurisdiction of the new EOA 2010 replaces the existing reference to "private clubs".
- Amending the Electoral Act 2002 to allow the Victorian Electoral Commission to discriminate on the basis of political belief or activity in relation to employment at the Commission.
Exceptions and exemptions
The process enabling a person or organisation to apply to VCAT for an exemption under the current EO Act continues. Greater clarity has been included in relation to the factors that VCAT may take into account. The maximum period for which an exemption can be granted has been extended from three to five years.
The new EOA 2010 contains some changes to exceptions, including:
- further detail about when exceptions to discriminatory conduct relevant to religious bodies may apply;
- specific exceptions to duties to make reasonable adjustments for a person with a disability;
- Amending the exception regarding reasonable standards of dress and behaviour: a standard of dress or appearance of behaviour will be reasonable if the education authority has taken into account the views of the school community.
- A new exception allowing the exclusion from one sex from competitive sporting activities where it is necessary to progress to an elite competition. The exception also permits exclusion of one sex in order to facilitate participation in a sporting activity, where to do so is reasonable.
- A new exception relating to clubs established principally for a political purpose: where those clubs are able to exclude people from membership on the basis of political belief or activity.
New VEOHRC functions
VEOHRC's existing education and research functions continue under the new EOA 2010 and the current complaint-handling function has been amended. The new dispute resolution function is designed to provide greater flexibility and less formality. The focus of the process will be on facilitating early resolution. Parties may apply directly to VCAT if desired, without engaging in the VEOHRC process.
The new EOA 2010 creates additional functions for VEOHRC which include issuing practice guidelines, undertaking reviews and reviewing action plans. VEOHRC also has new powers to investigate serious and systemic discrimination.
Further information can be found on the VEOHRC website or by contacting VEOHRC directly. See: "Introduction" below for contact details.
Anti-discrimination laws in force in Victoria are contained in seven separate pieces of legislation:
- Equal Opportunity Act 1995 (Vic) ("1995 EO Act") (until 31 July 2011);
- Equal Opportunity Act 2010 (Vic) ("EO ACT") (from 1 August 2011);
- Racial and Religious Tolerance Act 2001 (Vic) ("RRTA");
- Racial Discrimination Act 1975 (Cth) ("RDA");
- Sex Discrimination Act 1984 (Cth) ("SDA");
- Disability Discrimination Act 1992 (Cth) ("DDA");
- Age Discrimination Act 2004 (Cth) ("ADA"); and
- Australian Human Rights Commission Act 1986 (Cth) ("AHRCA").
Discrimination and victimisation that occurs in the workplace may also be covered by the Fair Work Act 2009 (Cth) ("FW Act"). For further information regarding the FW Act, see: Chapter 15 Employment Conditions.
The overlap between Commonwealth and Victorian laws can be complex. Generally, a complaint of discrimination cannot be made generally under both Commonwealth and state legislation at the same time. People wishing to make a complaint of discrimination may contact the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) for information:
Complaints of discrimination under the Commonwealth Racial Discrimination, Disability Discrimination, Age Discrimination, and Sex Discrimination Acts (listed above) should be made in writing (a complaint form can be downloaded from the website) and forwarded directly to the Australian Human Rights Commission (AHRC) at the following address :
The new Fair Work Ombudsman can provide information about options to pursue an employment discrimination action under the FW Act. The contact details for the Fair Work Ombudsman are:
Discrimination legislation generally enables people who have experienced certain forms of discrimination to access confidential dispute resolution and conciliation services and, in some instances, a public hearing, to resolve their discrimination dispute.
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INTRODUCTION :: Last updated: Thu Jul 1st 2010