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CLAUSE NOTES
Anti-Discrimination Amendment Bill 2012
Clause 1: Short title
Clause 2: Commencement provision has been made
for staggered commencement if needed.
Clause 3: Provides that the Principal Act for Part 2 is the
Anti-Discrimination Act 1998.
Clause 4: Includes in the Interpretation section
adjustments to the definitions of `child', `club'
and `competitive sporting activity'. Also
inserts new definitions of `gender identity',
`intersex', `schools system', `sexual
orientation', `transgender' and `transsexual',
and associated variants of the latter two
definitions.
Clause 5: Amends the reference to `conciliate' to read
`resolve' instead, in line with the power in new
section 74 for the Commissioner to attempt
to resolve complaints by any viable method.
Clause 6: Amends the reference to `conciliation' to read
`complaint resolution', in line with the power
in new section 74 for the Commissioner to
attempt to resolve complaints by any viable
method.
Clause 7: Inserts a new section 12A to establish a
registrar for the Anti-Discrimination Tribunal
and such other officers as are deemed
necessary. This will not change current
arrangements for the registry functions of the
Tribunal but will formalise the position of
registrar.
Clause 8: Includes the attributes of `gender identity' and
`intersex' into the list of attributes that must
not be discriminated against.
Clause 9: Amends section 17 to provide that all
attributes in the Act are subject to the
prohibition against conduct that offends,
humiliates, intimidates, insults or ridicules
another person.
Clause 10: Amends section 22 to provide that all
attributes in the Act are subject to the
prohibition against discrimination on the basis
of activity in connection with the
administration of any law or program of the
State, or in connection with awards, enterprise
agreements or industrial agreements.
Clause 11: Inserts new sections 56A and 56B, allowing a
religious school or a schools system to apply
for an exemption for the preferential
admission of students from the provision of
the Act that disallows discrimination on the
basis of religion. The exemption is only
permitted in the circumstances that the school
is over-subscribed for students in that
particular school group for that year, and
requires the school or schools system to
provide evidence against a set of criteria.
Clause 12: Alters the heading of Division 1 of Part 6 to
read `Interpretation' instead of `Complaints', to
allow section 59A to be inserted.
Clause 13: Inserts as new section 59A a definition of
`complaint' for the purpose of the Part, which
allows complaint to also mean `part complaint'.
Clause 14: Inserts a new heading for Division 1A.
Clause 15: Inserts at the end of section 60 five new
subsections to: allow the Commissioner to
accept a complaint form a child; allow a person
to make a complaint on behalf of another;
allow the Commissioner to pursue a complaint
as if he or she were the complainant; and allow
the Commissioner to pursue a complaint
where it has been withdrawn by the
complainant.
Clause 16: Inserts a new section 60A which will allow the
Commissioner to appoint a litigation guardian
for a child or person living with a disability.
Clause 17: Inserts a new section 62A which will allow the
Commissioner to combine a series of
complaints on the same or related matters
into one complaint for ease of resolution.
Clause 18: Amends section 64 by inserting a new
subsection into the list of reasons for the
dismissal of a complaint to permit dismissal
where the complaint relates to activity that is
the subject of an exemption from the Act.
Clause 19: Inserts a new section 65A to allow a person to
remove matters from their complaint, and the
Commissioner to both add or remove
matters, and also to alter the details of the
respondent.
Clause 20: Amends section 67 by inserting a subsection
which requires the Commissioner to provide a
respondent with both a summary and a copy
of an accepted complaint.
Clause 21: Amends section 68 by inserting a new
subsection to allow a Commissioner to accept
a reinstated complaint if the original complaint
was withdrawn involuntarily.
Clause 22: Amends section 71 to include `dismissal on the
basis of the subject of the complaint being an
exempted activity' on the list of possible
determinations by the Commissioner.
Clause 23: Amends section 73 to confirm that a part of
lapsed complaint cannot be repeated by the
same complainant.
Clause 24: Amends the title of Division 3 of Part 6 from
`Conciliation'' to `Resolution of complaints', in
line with the power in new section 74 for the
Commissioner to attempt to resolve
complaints by any method viable.
Clause 25: Replaces s.74 with a new section which will
allow the Commissioner or an authorised
person to attempt to resolve a complaint by
any means that consider viable, before, during
or after an investigation.
Clause 26: Amends section 75 to allow the Commissioner
or an authorised person to direct a person to
conciliation before, during or after an
investigation.
Clause 27: Inserts a new section 75A to allow the
Commissioner or an authorised person to
further investigate if no agreement is reached
by conciliation.
Clause 28: Inserts a new subsection in section 78 which
will allow the Commissioner to decline to
refer a complaint on to the Tribunal where the
complainant has failed to pursue the complaint.
Clause 29: Amends section 79 to incorporate matters
relating to the amendment of complaints,
resolution of complaints and material evidence
into the list of information that the
Commissioner must give to the Tribunal upon
referring a complaint.
Clause 30: Inserts a new section 79A to allow
representation at the hearing of an inquiry
with permission of the Tribunal.
Clause 31: Amends section 80 to qualify the power of the
Tribunal to dismiss a complaint and order the
complainant to pay costs if the complainant
fails to comply with a requirement to attend a
directions conference in the case where the
complaint has a reasonable excuse for failing to
do so.
Clause 32: Inserts a new section 80A to allow the
Tribunal to refer a matter for conciliation
either before or during an inquiry.
Clause 33: Replaces section 82 with a new section which
will require complaints being dealt with as
representative complaints to be likely to be
consented to, or actually consented to being
dealt with in that manner, by the majority of
people included in the relevant class of person.
Clause 34: Amends section 85 to clarify that it is the
hearing of an inquiry that should be public, not
that whole inquiry process. Also removes the
subclauses in section 85 dealing with
representation at an inquiry of the Tribunal, as
this is now dealt with in new section 79A.
Clause 35: Inserts a subsection in section 88 allowing the
Tribunal to make an order that the name of a
child, or any information that may allow a child
to be identified is not to be published.
Clause 36: Inserts a subsection in section 89 allowing the
Tribunal to make an order that a trust fund be
established under the control of the Public
Trustee to benefit persons as yet unidentified
(for instance, member of a class of person in a
representative complaint).
Clause 37: Amends section 94 to allow the Tribunal to
refer a complaint to conciliation under section
75, as if the Tribunal were the Commissioner.
Clause 38: Inserts a new section 96A requiring the
approval by the Commissioner or Tribunal to
the terms of settlement between the parties
where the complaint involves children or
persons who do not have capacity to approve
a settlement by reason of a disability.
Clause 39: Amends section 98 to clarify that the Tribunal
may make an interim order at any stage of an
inquiry or on application from the
Commissioner, may make an interim order
during an investigation or conciliation.
Clause 40: Inserts a new section 98A allowing a
complainant to apply to withdraw a complaint
for inquiry or review, but if the withdrawal is
approved by the Tribunal, preventing the
complainant from making a similar complaint
without permission from the Tribunal. It also
allows the Tribunal to continue to conduct an
inquiry into the withdrawn complaint, or the
Commissioner to investigate a withdrawn
complaint where the withdrawal was not
voluntary, or where it is in the public interest
to do so.
Clause 41: Substitutes a new section 99A to insert
subsections providing that a party's
representative may be ordered to pay all or
part of the costs of an inquiry or review, and
that the costs may be taxed by a district
registrar of the Magistrates Court (Civil
Division).
Clause 42: Amends section 100 to allow a decision of the
Commissioner to decline to refer a complaint
to the Tribunal to be appealed to the Supreme
Court.
Clause 43: Amends section 101 to remove the references
to `exemption' in the section as the proof on
the balance of probabilities should only apply
to "exceptions".
Clause 44: Amends section 102 to clarify that a person is
not liable for any loss suffered to another
person because of the making of a complaint
or the providing of evidence only where the
complaint or evidence in given in good faith.
Clause 45: Amends section 103 to extend the immunity
from liability to all persons exercising their
powers under the Act.
Clause 46: Inserts a new section 107A allowing the
Tribunal to publish decisions, including those
decisions made at a direction conference.
Clause 47: Amends section 109 to include some specific
regulation making powers relating to process
and procedure of referrals, reviews, hearing
and determination under the Act.
Clause 48: Provides that the Principal Act for Part 3 is the
Judicial Review Act 2000.
Clause 49: Amends the schedules to the Judicial Review
Act by adding the Anti-Discrimination Act 1998
to the list of Acts to which the Judicial Review
Act 2000 does not apply (as it has its own
scheme for review and appeal).
Clause 50: Provides that the Principal Act for Part 4 is the
Personal Information Protection Act 2004.
Clause 51: Amends section 3 of the PIP Act to include the
Anti-Discrimination Commissioner into the
definition of `law enforcement agency' for the
purposes of the Personal Information Protection
Act 2004, thereby exempting information
collected by the Commissioner under the Act
from some of the Personal Information
Principles.
Clause 52: Standard repeal provision for amending acts.