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Review a “fundamental shift” for discrimination law

Review a “fundamental shift” for discrimination law

AN INDEPENDANT consultant hired to conduct a review of the Victorian Equal Opportunity Act says the outcome could represent “a fundamental shift” in the way the state, and…

AN INDEPENDANT consultant hired to conduct a review of the Victorian Equal Opportunity Act says the outcome could represent “a fundamental shift” in the way the state, and potentially the nation, deals with discrimination.

The review, helmed by former public advocate Julian Gardner, is now in full swing. The first round of submissions closed on 14 January this year. The process is intended to reform the EO Act to “better promote the right to equality and improve protection from discrimination”.

Momentum has been growing steadily for the review since the Victorian Attorney-General called for reform in his 2004 justice statement. The topic featured among the Victorian Government’s 2006 election promises, and is mentioned in current state government policies such as “Growing Victoria Together 2” and “A Fairer Victoria”.

Gardner told Lawyers Weekly that his involvement as an independent consultant was a matter of a good fit, and great timing. “I had finished in my last role as public advocate and I had indicated to various people that I was interested in work in the social justice human rights area and the timing just happened to be right,” Gardner said.

“Part of this review is to look at the governance of the Equal Opportunity and Human Rights Commission. Given my experience of running bodies like Victorian Legal Aid and tribunals, which are within the public sector and yet have this strange quasi-independence, gives me some insights into that area,” he said.

The discussion paper agenda items were gathered from a variety of stakeholders, including the Victorian Bar, the Law Institute of Victoria and a Victorian Civil Administration Tribunal users group, a group of lawyers which comprises “lawyers representing both applicants and respondents who frequently appear in that jurisdiction … and have the most direct interaction with the Equal Opportunity Act,” according to Gardner.

Ninety submissions have been received in the first round. Gardner now has the daunting task of going through the submissions, with the assistance of a modest team of two lawyers and administrative support provided by the Department of Justice.

Even at this early stage, Gardner predicts the review could have a major impact on the future direction of discrimination policy in Australia. “All around Australia the equal opportunity legislation relies primarily on an individual making a complaint, and that’s the way anti-discrimination laws are enforced,” Gardner said.

“One of the options here is to say that puts too much onus on the individual there is evidence that discrimination is not being eliminated so therefore let’s try a more active approach, let’s see whether the commission should have not just a dispute resolution role but a more active role,” he said.

“If that is the path that the government goes down it would be a fundamental shift in the way this jurisdiction — and it may have influence ultimately on other jurisdictions in Australia — deals with discrimination.”

The second consultation phase will commence in March 2008. “The next stage is the production of an options paper which will come out in March and there will be a further round of meetings and consultations and a further opportunity for people to comment,” Gardner said.

The final report is due to be submitted to the Victorian Attorney-General in June 2008.

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