Ever since the enactment of the Charter, Victoria has had two anti-discrimination laws. There’s this one:
8(2) Every person has the right to enjoy his or her human rights without discrimination.
(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
And there’s also the Equal Opportunity Act 1995. They share a common definition of ‘discrimination’, but what else do they have in common? This question is the subject of two reviews of the EOA, one of its basic structure, the other of its exemptions. Of the exemptions, there are a slew of particular ones (like the sex and age exceptions to the rule against discrimination in sport) but also one general one:
83(1) The Tribunal, by notice published in the Government Gazette, may grant an exemption- (a) from any of the provisions of this Act in relation to- (i) a person or class of people; or (ii) an activity or class of activities…..
Late last year, businesses involved in defence contracting gained renewals of their exemptions from the ban on nationality discrimination, on the basis of the need to comply with US regulations barring contractors who receive some information from giving it to people of other nationalities (including, as it turns out, people with dual nationalities.) The timing for these three-year exemptions – weeks before the full operation of the Charter – was interesting. Judge Harbison certainly noticed it:
I have advised the Applicants that on the next occasion that an application for exemption is made, the provisions of the Victorian Charter of Human Rights and Responsibilities Act 2006 will be operative. By reason of this Act, the Tribunal in considering any further exemption application, will be required to interpret the relevant provisions of the Equal Opportunity Act in a way that is compatible with human rights, as those rights are defined in the Charter. International law and the judgments of domestic, foreign and international Courts and Tribunals relevant to a human right may all be considered when interpreting a statutory provision.
But what difference will the interpretation mandate make? Well, according to a decision that just came down from the ACT’s equivalent to VCAT, nothing. Continue reading