How Victoria’s Equal Opportunity Act has changed over time
Since the first Equal Opportunity Act in 1977, Victoria’s anti-discrimination laws have continued to evolve. The scope of the Act and the attributes it protects have continued to expand, in parallel with some significant changes in the structure and name of our organisation.
Equal Opportunity Act 1977 (Vic) created the Equal Opportunity Board and the Office of Equal Opportunity Commissioner. The Act outlawed discrimination because of marital status and sex in employment, education, accommodation and provision of goods and services.
The Act received royal assent on 24 May 1977, however it did not come into operation on that day and instead dates were fixed by further proclamation: Sections 5, 7, 8 and 13 of the Act came into operation on 1 December 1977; Parts 1, 2 and 5 and section 58 of the Act came into operation on 1 February 1978, and the balance of the provisions of the Act came into operation on 3 April 1978.
Equal Opportunity (Discrimination against Disabled Persons) Act 1982 (Vic) extended protection against discrimination to people with a disability.
Equal Opportunity Act 1984 (Vic) added race, religion, ethnic origin, political belief and de-facto spouse status to the list of protected characteristics. Sexual harassment also became unlawful.
Amendments to the Equal Opportunity Act 1984(Vic) introduced provision for the appointment of part-time members of the Board, for the introduction of preliminary conferences into the complaints resolution procedure, for the transfer of certain functions from the Board to the Commissioner and for the removal of sex-specific language – including the re-naming of the ‘Chairman’ of the Equal Opportunity Board to be the ‘President’.
Amendments to the Equal Opportunity Act 1984 (Vic) changed the method of appointment of the Commissioner, and empowered the Commissioner to initiate an investigation into discrimination against a class of persons in circumstances where an individual lodging a complaint would not be appropriate. The amendment Act also further removed discriminatory language in other enactments.
Structural and operational changes replaced the Equal Opportunity Commissioner with a five-member Equal Opportunity Commission. One of the five members was the Chief Conciliator, and a Chairperson, in a further amendment to the Equal Opportunity Act 1984 (Vic).
Equal Opportunity Act 1995 (Vic) made it against the law to sexually harass or treat someone unfairly because of their age, carer status, disability, industrial activity, lawful sexual activity, marital status, parental status, physical features, pregnancy, race, religious belief/activity, sex and personal association with someone else perceived to have one or more of the listed attributes.
Unfair treatment on the basis of these personal characteristics was against the law in the areas of employment, accommodation, education, provision of goods and services, disposal of land, sport, local government and clubs.
The attribute of ‘parental status’ was redefined in the Law and Justice Legislation (Further Amendment) Act 1997 to mean the status of being a parent or not being a parent.
Equal Opportunity (Breastfeeding) Act 2000 and Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000 (Vic) added breastfeeding, sexual orientation and gender identity as protected attributes, the latter aimed at protecting people who are transgender and intersex from discrimination.
Statute Law Amendment (Relationships) Act 2001 (Vic) and Statute Law Further Amendment (Relationships) Act 2001 (Vic) (the Relationships Acts) changed more than 50 Victorian Acts of Parliament to ensure that all couples are treated equally in relation to property rights, compensation and superannuation. These changes ensured that same sex couples are treated the same as other couples under these areas of the law. The Equal Opportunity Act 1995 (Vic) was amended as a result, to remove the term ‘de facto spouse’ (defined to only include de facto spouse of the opposite sex) and replaced with the term ‘domestic partner’ which is inclusive of same sex relationships and forms part of the protected attribute of ‘marital status’.
Racial and Religious Tolerance Act 2001 (Vic) took effect on 1 January, making it against the law to incite hatred against or serious contempt for a person because of their racial or religious background and practices.
Amendments made by the Equal Opportunity and Tolerance Legislation (Amendment) Act 2006(Vic) strengthened the Equal Opportunity Commission’s investigation powers, tightened procedures relating to racial and religious vilification complaints, and clarified the operation of the Racial and Religious Tolerance Act 2001 (Vic).
Amendments made by the Justice Legislation (Further Amendment) Act 2006 (Vic) provided a mechanism for complaints to be lodged with the Commission by representative bodies, and broadened the definition of discrimination on the grounds of ‘industrial activity’.
The Victorian Charter of Human Rights and Responsibilities Act 2006 was passed, spelling out civil and political rights and responsibilities. The Charter compels state and local government (public authorities) to take human rights into consideration when making laws, setting policies and in the provision of services. As a consequential amendment to the Equal Opportunity Act 1995 (Vic), the Commission’s name was changed from the Equal Opportunity Commission to the Equal Opportunity and Human Rights Commission.The Charter also conferred on the Commission new powers and functions, such as:
- the power to intervene in any proceeding before any court or tribunal in Victoria where a question of law arises in relation to the application of the Charter or the interpretation of a statutory provision in accordance with the Charter;
- the ability to provide education to the public about the Charter and Human Rights
- the requirement to prepare and present to the Attorney General an annual report on the operation and application of the Charter.
Amendments made by the Equal Opportunity Amendment Act 2007 (Vic) were passed, which introduced ’employment activity’ as a new ground of discrimination (coming into force on 31 March 2008). This made it unlawful to discriminate against an employee on the basis that they have made a reasonable request to their employer for information about their employment entitlements, or that they have communicated to their employer a concern about those entitlements.
Amendments made by the Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic) introduced stand-alone provisions that made it unlawful for employers to unreasonably refuse to accommodate parental or carer responsibilities of their employees.
The Equal Opportunity (Amendment) Governance Act 2009 (Vic) was passed. This was the first stage of the implementation of the recommendations arising from the Equal Opportunity Act review by Mr Julian Gardner. The governance reforms amended the governance structure of the Commission to create clearer lines of responsibility and accountability. The amendments created a new full-time position of Commissioner and abolished the position of chief conciliator/chief executive officer.
The amendments also established a board to govern the Commission (as a separate entity to the Commission and appointed by the Governor in Council), and provided that the Commissioner chaired the board. The board has a strategic oversight function and the power to make strategic decisions and to set the strategic direction for the Commission. The amendments removed the board members’ complaint handling functions and powers completely, and allocated complaint handling powers and functions to the Commissioner who can delegate them to appropriately skilled staff.
The Equal Opportunity Act 2010 (Vic) was passed. This was the second stage of the implementation of the recommendations arising from the Equal Opportunity Act review by Mr Julian Gardner. The Act came into force on 1 August 2011. The Act’s statutory framework was designed to address systemic discrimination, and was based on clear objectives that target both the causes and manifestations of discrimination.
The Equal Opportunity Act 2010 (Vic) aimed to address the systemic causes of discrimination and achieve the progressive realisation of equality. It introduced a positive duty, held by all organisations covered by the Act, to take reasonable, proportionate and proactive steps towards eliminating discrimination. The Act extended protection from sexual harassment to volunteers and unpaid workers.
The Act clarified and extended key concepts in equal opportunity law, and simplified the definitions of direct and indirect discrimination. In addition, it included a duty to make reasonable adjustments for employees, clients and students with disabilities and impairments. The definition of impairment was extended to include genetic predisposition and behaviour that is a manifestation of a disability. The Act also clarified, amended and repealed a number of exceptions to unlawful discrimination contained in the 1995 Act.
The Act set out a range of new and enhanced functions for the Commission, including conducting public inquiries and investigations into systemic discrimination. The amendments aimed to provide the right balance between educational and compliance functions of the Commission, to ensure that Victoria has a pro-active and effective response to discrimination.
One of these key functions was a new dispute resolution framework, which was voluntary, flexible and informal, and aimed to assist parties with disputes about discrimination, sexual harassment, victimisation and racial or religious vilification to resolve their disputes. This was a substantial change of the Commission’s focus from the previous, more formal, paper-based complaint handling process.
The Equal Opportunity Act 2010 (Vic) was amended further by the Equal Opportunity Amendment Act 2011 (Vic) to
- remove the new power of the Commission to conduct public inquiries and amend the power of the Commission to conduct investigations
- make the compulsion of evidence or witnesses during an investigation available through an order of the Victorian Civil and Administrative Tribunal, rather than being own-motion powers
- remove the ‘inherent requirements test’ in the exception for employment in a religious body or school to allow faith-based organisations to engage staff who have the same values as the organisation
- introduce exceptions relating to youth wages and same sex clubs.
The protected attribute ‘impairment’ was replaced in the Equal Opportunity Act 2010 (Vic) with the term ‘disability’, but retained the same definition.
The Amendment Act also altered the governance structure of the Commission created in 2009. The Board now consists of up to seven members, appointed by the Governor in Council on the recommendation of the Attorney-General for a term not exceeding five years. The Board now has overall responsibility for the Commission’s general functions and duties, including determining its strategic direction. However, the Commissioner is no longer a member of the Board and no longer presides over the Board. Instead, a chairperson is to be appointed from the Board members, independent of the Commissioner. The Commissioner reports to the Board.
The Board is also now responsible for determining whether the Commission conducts an investigation.
Amendments made by the Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014 introduced the new attribute of “expunged homosexual conviction”. The new attribute came into effect on 1 September 2015, making it unlawful to discriminate against a person on the basis of an expunged homosexual conviction.
Up until 1981 it was possible to be convicted of certain sexual and public morality offences. Although these laws no longer exist, the criminal records arising from those offences have remained for some people for more than 30 years.
The purpose of the new attribute is to remove the stigma of a criminal record along with the practical impediments created by having a criminal conviction in Victoria, such as a person’s right to travel or to find a job.
The expunged conviction will not be released as a part of a criminal history check and people will be protected from having to reveal an expunged conviction, including under oath.
Applications to expunge an historic homosexual conviction are processed by the Expungement Scheme of the Secretary of the Department of Justice and Regulation.
(NB: Hyperlinks are to the law as passed at that date, not the most recent version.)