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Justice Legislation Amendment
Bill 2022
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill, which are--
• to amend the Crimes at Sea Act 1999 to update
references to Commonwealth legislation; and
• to amend the Equal Opportunity Act 2010 in relation
to secrecy provisions and an exemption relating to
religious schools; and
• to amend the Charter of Human Rights and
Responsibilities Act 2006 to use gender inclusive
language; and
• to make miscellaneous amendments to the Judicial
College of Victoria Act 2001; and
• to amend the Magistrates' Court Act 1989 in relation
to rule making powers; and
• to amend the Victorian Civil and Administrative
Tribunal Act 1998 in relation to federal subject matter;
and
• to amend the Births, Deaths and Marriages
Registration Act 1996 to provide for the issue of
integrated birth certificates to adopted persons; and
• to amend the Adoption Act 1984 in relation to
accessing certain information about adoptions; and
591363 1 BILL LA INTRODUCTION 5/4/2022
• to amend the Gender Equality Act 2020 to enable the
Commissioner and specified persons to use or disclose
information obtained under Division 3 of Part 7 of that
Act in certain circumstances.
Clause 2 is the commencement provision. It provides that the Bill will
come into operation on the day after the day on which it receives
Royal Assent apart from sections 7, Part 5, Part 8 (except for
section 47) and sections 54, 57, 58, 59 and 60. The remaining
provisions come into operation on a day or days to be proclaimed
subject to following default commencement dates if not
proclaimed sooner--
• 5 October 2022 for sections 57, 58, 59 and 60 to allow
time to implement the new discretionary power to use
and disclose adoption information and the changes to
the Adoption Information Service and power to request
information.
• 5 April 2023 for--
• section 7 to align with changes made by the
Equal Opportunity (Religious Exceptions)
Amendment Act 2021; and
• Part 5 to allow the Judicial College Victoria time
to implement governance changes and the allow
for the appointment of up to 2 additional
directors; and
• section 54 to allow the County Court time to
implement changes to the grounds for dispensing
with consent to an adoption.
• 5 October 2023 for Part 8 (other than section 47).
A period of up to 18 months is required for the Registry
of Births, Deaths and Marriages to make systems and
operational changes to enable the issuing of integrated
birth certificates, which will be legal identity
documents.
Part 2--Amendment of Crimes at Sea Act 1999
Clause 3 repeals the definition of "Area A of the Zone of Cooperation".
2
Clause 4 repeals clause 10 of Schedule 1 to the Crimes at Sea Act 1999 as
Area A of the Zone of Cooperation no longer exists following
the 2018 Treaty between Australia and the Democratic Republic
of Timor-Leste Establishing their Maritime Boundaries in the
Timor Sea.
Clause 5 substitutes references to the now repealed Petroleum (Submerged
Lands) Act 1967 (Commonwealth) with references to the
Offshore Petroleum and Greenhouse Gas Storage Act 2006
(Commonwealth). The descriptions of adjacent areas for
Western Australia and Northern Territory are also amended to
remove references to "Area A of the Zone of Cooperation".
Clause 6 substitutes a new Appendix 1--Indicative Map in Schedule 1.
The new Indicative Map illustrates the boundary of areas used to
determine the adjacent area for a State or the Northern Territory.
Part 3--Amendment of the Equal Opportunity Act 2010
Clause 7 inserts new subsection (3) into section 83 of the Equal
Opportunity Act 2010 to make it clear that the exception to
discrimination available in section 83 for religious educational
institutions as amended by the Equal Opportunity (Religious
Exceptions) Amendment Act 2021 only allows discrimination
on the basis of a person's religious belief or activity, and not on
the basis of other protected attributes such as sexual orientation,
lawful sexual activity, marital status, parental status or gender
identity.
Clause 8 inserts new section 176B into the Equal Opportunity Act 2010
to expressly expand the exceptions to the secrecy provision in
section 176 of the Equal Opportunity Act 2010 to better clarify
when information or documents might be disclosed by the
Commission. New section 176B expressly permits disclosure of
certain information or documents by any person acting under the
authority of the Commissioner (including the Commissioner or
staff) where--
• it is necessary to do so to prevent a credible and
imminent threat of harm to a person; or
• it is necessary to do so to comply with a mandatory
reporting obligation; or
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• it is necessary for the determination of a freedom of
information review application by the Victorian Civil
and Administrative Tribunal.
New section 176B(2) confirms that a person who discloses
information in the circumstances set out in section 176B will not
be breaching the secrecy provision at section 176 of the Equal
Opportunity Act 2010.
Part 4--Amendment of Charter of Human Rights and
Responsibilities Act 2006
Part 4 amends the Charter of Human Rights and Responsibilities
Act 2006 to substitute gender binary language with gender inclusive
language.
Clause 9 amends section 8(2) of the Charter of Human Rights and
Responsibilities Act 2006 to substitute gender binary language
for gender inclusive language.
Clause 10 amends section 10(c) of the Charter of Human Rights and
Responsibilities Act 2006 to substitute gender binary language
for gender inclusive language.
Clause 11 amends sections 13(a) and (b) of the Charter of Human Rights
and Responsibilities Act 2006 to substitute gender binary
language for gender inclusive language.
Clause 12 amends section 14 of the Charter of Human Rights and
Responsibilities Act 2006 to substitute gender binary language,
wherever occurring, for gender inclusive language.
Clause 13 amends section 15(2)(e) of the Charter of Human Rights and
Responsibilities Act 2006 to substitute gender binary language
for gender inclusive language.
Clause 14 amends section 17(2) of the Charter of Human Rights and
Responsibilities Act 2006 to substitute gender binary language
for gender inclusive language.
Clause 15 amends section 19(1) of the Charter of Human Rights and
Responsibilities Act 2006 to substitute gender binary language,
wherever occurring, for gender inclusive language.
4
Clause 16 amends section 20 of the Charter of Human Rights and
Responsibilities Act 2006 to substitute gender binary language
for gender inclusive language.
Clause 17 amends subsections (3), (4), (6), (7) and (8) in section 21 of the
Charter of Human Rights and Responsibilities Act 2006 to
substitute gender binary language for gender inclusive language.
Clause 18 amends section 23(3) of the Charter of Human Rights and
Responsibilities Act 2006 to substitute gender binary language
for gender inclusive language.
Clause 19 amends various paragraphs in section 25(2) and amends
section 25(3) of the Charter of Human Rights and
Responsibilities Act 2006 to substitute gender binary language
for gender inclusive language.
Clause 20 amends section 26 of the Charter of Human Rights and
Responsibilities Act 2006 to substitute gender binary language
for gender inclusive language.
Clause 21 amends section 28(2) of the Charter of Human Rights and
Responsibilities Act 2006 to substitute gender binary language
for gender inclusive language.
Clause 22 amends section 31(3) of the Charter of Human Rights and
Responsibilities Act 2006 to substitute gender binary language
for gender inclusive language.
Clause 23 amends section 37(b) of the Charter of Human Rights and
Responsibilities Act 2006 to substitute gender binary language
for gender inclusive language.
Clause 24 amends section 43(3) of the Charter of Human Rights and
Responsibilities Act 2006 to substitute gender binary language
for gender inclusive language.
Part 5--Amendment of Judicial College of Victoria Act 2001
Clause 25 amends section 4(2)(d) of the Judicial College of Victoria
Act 2001 to remove a reference to section 6, which will no longer
be relevant as a result of the repeal of section 6(3) of that Act by
clause 26 of this Bill.
Clause 26 repeals section 6(3) of the Judicial College of Victoria Act 2001
and removes the reference to subsection (3) in section 6(1).
5
These changes remove the $50 000 limit on personal property
acquisition and disposal by the College without the prior written
approval of for the Attorney-General.
Clause 27 amends section 7 of the Judicial College of Victoria Act 2001 to
remove the requirement of the College to delegate by instrument
"under its official seal". This will streamline delegations of
functions and powers by the College.
Clause 28 amends section 8(1) of the Judicial College of Victoria
Act 2001 to increase the number of directors appointed to the
Judicial College Board from 2 to at least 3 but not more than 4.
This is consistent with Recommendation 7 from the Review of
Sexual Harassment in Victorian Courts and VCAT.
Paragraph (a) amends section 8(1) to provide that the total
number of board directors will be at least 9 but not more than 10.
Paragraph (b) amends section 8(1)(e) to increase the number of
appointed directors, to provide that at least one of the appointed
directors must have experience as a member of the academic staff
of a tertiary or other educational institution and to provide that at
least 2 of the appointed directors must be persons who, in the
opinion of the Attorney-General, have broad experience in
community issues affecting courts.
Clause 29 amends section 11(1)(e) of the Judicial College of Victoria
Act 2001 to substitute the requirement for the Attorney-General
to approve absences from meetings of the Board with a
requirement for approval by the chairperson of the Board.
Clause 30 amends section 12(1) of the Judicial College of Victoria
Act 2001 to remove the requirement for a director to seek the
Board's permission to appoint an alternate director from the same
court or tribunal. This will allow a director to appoint an
alternate director more easily, particularly when a meeting of the
Board needs to be held at short notice.
Clause 31 amends section 14 of the Judicial College of Victoria Act 2001
to streamline Board meeting requirements.
Subclause (1) amends section 14(1) of the Judicial College of
Victoria Act 2001 to change the minimum period between Board
meetings from 3 months to 4 months. This amendment provides
flexibility for the Board if a meeting is delayed for a few days or
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for a week. It also helps to ensure that appointed directors are
able to attend meetings in order to meet the requirements under
section 11(1)(e) of the Judicial College of Victoria Act 2001.
Subclause (2) substitutes section 14(3) of the Judicial College of
Victoria Act 2001 and inserts new a section 14(3A) to provide
for --
• the chairperson to appoint another director, at their
discretion, to preside at a meeting of the Board; and
• the election of a temporary chairperson should the
chairperson of the Board be absent from a meeting.
These amendments provide flexibility for the Board and facilitate
selection of a temporary chairperson in certain circumstances.
Subclause (3) amends section 14(7) of the Judicial College of
Victoria Act 2001 to clarify that the Board may regulate its
procedures with regards to resolutions at meetings and at other
times. This will ensure that the Board may determine its own
procedures for making resolutions without a meeting.
Clause 32 inserts a new section 21 into the Judicial College of Victoria
Act 2001, which provides for transitional arrangements due to
the amendments made by clause 28 of this Bill.
Part 6--Amendment of Magistrates' Court Act 1989
Division 1--Magistrates' Court Act 1989
Clause 33 amends the definition of the rules in section 3(1) of the
Magistrates' Court Act 1989 to reflect that the power to make
rules of court is vested in the Chief Magistrate and one or more
Deputy Chief Magistrates, a reduction from the current
requirement for 2 or more Deputy Chief Magistrates.
Clause 34 amends sections 16(1), (1A), (1B) and (2) of the Magistrates'
Court Act 1989, which provide for the power to make rules of
court. The power is currently vested in the Chief Magistrate
and 2 or more Deputy Chief Magistrates. This clause amends
those provisions to reduce that requirement to the Chief
Magistrate and one or more Deputy Chief Magistrates. These
amendments reflect changes to the governance of the Magistrates'
Court. In 2020, the number of Deputy Chief Magistrates has
been reduced from 4 to 2 and heads of division have been added
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to help manage court matters. The change ensures that not all
Deputy Chief Magistrates are required to decide rules of the
court.
Subclause (2) amends section 16(1C) of the Magistrates' Court
Act 1989 as a consequence of the changes made by
subclause (1).
Clause 35 consequentially amends section 16I to reflect the changes to rule
making requirements.
Division 2--Consequential amendment of other Acts
Clause 36 amends the rule making power in section 209(1) of the Family
Violence Protection Act 2008 by substituting the requirement
for 2 or more Deputy Chief Magistrates to make rules of court
with the Chief Magistrate for one or more Deputy Chief
Magistrates with the Chief Magistrate, consistent with changes
made to the Magistrates' Court Act 1989.
Clause 37 amends the rule making power in section 183(1) of the Personal
Safety Intervention Orders Act 2010 by substituting the
requirement for 2 or more Deputy Chief Magistrates to make
rules of the court with the Chief Magistrate for one or more
Deputy Chief Magistrates with the Chief Magistrate, consistent
with changes made to the Magistrates' Court Act 1989.
Clause 38 amends the rule making power in sections 57(1) and (2) of the
Victims of Crime Assistance Act 1996 by substituting the
requirement for 2 or more Deputy Chief Magistrates to make
rules of the court with the Chief Magistrate for one or more
Deputy Chief Magistrates with the Chief Magistrate, consistent
with changes made in the Magistrates' Court Act 1989. It also
updates the definition of the rules in section 3(1) as a
consequence of the changes.
Part 7--Victorian Civil and Administrative Tribunal Act 1998--
Federal subject matter
Part 7 of the Bill amends the Victorian Civil and Administrative Tribunal
Act 1998 in relation to federal subject matter.
Clause 39 inserts sections 57A(2) and (3) into the Victorian Civil and
Administrative Tribunal Act 1998.
8
New section 57A(2) clarifies that a reference to an application to
the Tribunal in Part 3A includes a reference to a referral of a
matter to, or a matter that is the subject of a referral to, the
Tribunal, except for the purposes of section 57B(1)(a). Such
matters may already be covered if the words "application to the
Tribunal" in Part 3A are broadly interpreted, but these reforms
will place beyond doubt that the Magistrates' Court can
determine matters that are referred to its federal jurisdiction
under Part 3A.
New section 57A(3) clarifies that new subsection (2) does not
prevent a referring entity under an enabling enactment from
referring a matter, or a matter that is the subject of a referral, to
the Magistrates' Court under Part 3A.
Clause 40 amends Schedule 2 to the Victorian Civil and Administrative
Tribunal Act 1998 to clarify that the Tribunal's Rules
Committee may make rules in respect of the procedure for, or in
relation to, referrals and matters that are the subject of referrals,
in addition to applications, that may raise controversies that
involve federal subject matter within the meaning of Part 3A.
Part 8--Amendments relating to integrated birth certificates
Division 1--Amendment of the Births, Deaths and Marriages
Registration Act 1996
Clause 41 amends section 3 of the Births, Deaths and Marriages
Registration Act 1996 to insert a new object of the Act--the
issue of integrated birth certificates to adopted persons.
Clause 42 amends section 4 of the Births, Deaths and Marriages
Registration Act 1996 to insert a new definition of integrated
birth certificate into that Act.
Clause 43 amends section 45(1) and (2)(b) of the Births, Deaths and
Marriages Registration Act 1996 to clarify that the Registrar of
Births, Deaths and Marriages ("the Registrar") may, on
application, search the Register for more than one entry about a
particular registrable event, and that there may not be a fee
prescribed for certain searches. These amendments are intended
to support the introduction of integrated birth certificates.
9
Clause 44 inserts new section 45A into the Births, Deaths and Marriages
Registration Act 1996, which sets out the circumstances under
which an adopted person may apply for an integrated birth
certificate under section 45 of that Act. To be eligible, the
adopted person must be 18 years of age or over, with both their
birth and adoption registered in Victoria. New section 45A(2)
provides that no fee is payable for the first application made by
an adopted person for an integrated birth certificate.
Clause 45 amends section 46(1) of the Births, Deaths and Marriages
Registration Act 1996 to provide that there may not be a fee
prescribed for the issuing of certain certificates by the Registrar.
Clause 46 inserts new section 46A into the Births, Deaths and Marriages
Registration Act 1996, which sets out the circumstances under
which the Registrar may issue an integrated birth certificate.
This will be a legal birth certificate issued under section 46 of
that Act, which contains details of both the birth parents and the
adoptive parents of the adopted person, and the date of adoption.
New section 46A(2) provides that no fee is payable for the first
issue of an integrated birth certificate to an adopted person.
Clause 47 amends section 56 of the Births, Deaths and Marriages
Registration Act 1996 to update a reference to the Department
of Justice so that it refers to the Department of Justice and
Community Safety, to reflect machinery of government changes.
Division 2--Amendment of the Adoption Act 1984
Clause 48 amends section 74(3) of the Adoption Act 1984, which restricts
the Registrar from opening for inspection or issuing information
from the Register of Births or the Adopted Children Register
except in accordance with that Act or an order of the Court. This
amendment enables the Registrar to open those Registers for
inspection and issue an extract from or copy of an entry in those
Registers, for the purposes of the issue of an integrated birth
certificate under the Births, Deaths and Marriages
Registration Act 1996. The amendment is needed to ensure that
the restrictions under section 74(3) of the Adoption Act 1984 do
not apply to the issue of an integrated birth certificate.
Clause 49 inserts new subsection (1A) in section 76 of the Adoption
Act 1984. New subsection (1A) provides that section 76(1) of
the Adoption Act 1984 does not apply to an application for or
10
issuing of an integrated birth certificate under the Births, Deaths
and Marriages Registration Act 1996. Section 76(1) of the
Adoption Act 1984 restricts the Registrar from opening for
inspection or issuing information from the Register of Adoptions.
This amendment is needed to ensure that the restrictions under
section 76(1) of the Adoption Act 1984 do not apply to the issue
of an integrated birth certificate.
Subclause (2) amends section 76(2) of the Adoption Act 1984 to
remove the requirement that an application to the Registrar by the
Secretary to the Department of Justice and Community Safety in
relation to the Register of Adoptions is subject to the same terms,
conditions and regulations as to payment of fees that would
otherwise be applicable under the Births, Deaths and Marriages
Registration Act 1996. This amendment is intended to permit
certificates from the Register of Adoptions to be issued without
charge.
Subclause (3) updates a reference to the Secretary to the
Department of Justice and Community Safety in section 76(3) of
the Adoption Act 1984 to use gender neutral language.
Clause 50 amends section 92 of the Adoption Act 1984, which relates to
access to birth certificates of adopted persons. Subclause (1)
amends section 92(4) of the Adoption Act 1984 to remove a
requirement for a prescribed fee to accompany an application by
an adopted person under section 92(2)(a) of that Act.
Section 92(2)(a) provides for the adopted person to apply to the
Secretary to the Department of Justice and Community Safety for
the issue of information from the Register of Births.
Subclause (2) amends section 92(5) of the Adoption Act 1984 to
remove a requirement for the issue of information by the
Registrar to be subject to the same fees as are applicable under
the Births, Deaths and Marriages Registration Act 1996, if an
application is made to the Registrar for information to be issued
from the Register of Births under section 92(1) or (4) of the
Adoption Act 1984.
These amendments are intended to clarify that applications under
the Adoption Act 1984 for information from the Register in
relation to an adopted person need not be accompanied by fees.
It is not intended for this Bill otherwise to change current
entitlements to birth certificates for adopted persons. An
application for and issue of an integrated birth certificate under
11
the Births, Deaths and Marriages Registration Act 1996 is
intended to be an additional option for an eligible adopted person.
Part 9--Amendment of Adoption Act 1984
Clause 51 amends section 4(1) and 4(1A) of the Adoption Act 1984 to
reflect machinery of government changes. The effect of the
amendments is that in the Adoption Act 1984, Department will
mean the Department of Justice and Community Safety and
Secretary will mean the Secretary of that Department. These
changes are needed to reflect that the Adoption Act 1984 is now
solely administered by the Attorney-General, effective from
29 November 2018 under Administrative Arrangements Order
(No. 229) 2018. On that date, adoption services transferred from
the former Department of Health and Human Services to the
Department of Justice and Community Safety.
Clause 52 amends section 5(2) of the Adoption Act 1984 to remove the
reference to the Department of Health and Human Services,
reflecting machinery of government changes. The effect of the
amendment is that officers or employees of the Department of
Justice and Community Safety, rather that the former Department
of Health and Human Services, are eligible to be approved as a
counsellor for the purposes of the Adoption Act 1984.
Clause 53 amends section 19(4) of the Adoption Act 1984 to omit the
reference to the Department of Justice and Regulation. The
effect of this amendment is that an investigation in relation to an
application for a discharge of an adoption order must be made by
the Secretary to the Department of Justice and Community of
Safety or a person nominated by that Secretary. This reflects
machinery of government changes made in 2018.
Clause 54 amends section 43(1) of the Adoption Act 1984, which sets out
the grounds on which the Court may dispense with the consent of
a person to the adoption of a child. This clause removes the
following grounds for dispensation--
• that the person has deserted, persistently neglected or
ill-treated the child;
• that the person has seriously ill-treated the child to the
extent that it is unlikely that the child would accept, or
be accepted by the person within, the family of that
person.
12
This removes grounds for dispensation which suggest a child
may be in need of protection, consistent with recommendation 56
of the Legislative Assembly Legal and Social Issues Committee's
Inquiry into responses to historical forced adoption in Victoria
tabled on 8 September 2021. Where these grounds exist, they
will be dealt with under the child protection system.
Clause 55 amends section 69(3) of the Adoption Act 1984, which provides
for the Court to direct that notice of an application for a foreign
adoption declaration be given to the Secretary. This amendment
omits the reference to the Secretary to the Department of Justice
and Regulation, who is specified as an additional person to whom
notice may be given. This reference is no longer necessary, as
the amendments to the definitions of Secretary and Department
by clause 51 of this Bill ensure that section 69(3) applies to the
Secretary to the Department of Justice and Community and
Safety, reflecting machinery of government changes.
Clause 56 substitutes section 87 of the Adoption Act 1984, which requires
a person who applies for information under the Adoption
Act 1984 to undergo mandatory counselling. Substituted
section 87 replaces that requirement for mandatory counselling
with a requirement for the Secretary to ensure that an applicant is
offered counselling and that the applicant is advised that records
may contain information which may be distressing to the
applicant, if the information is reasonably expected to be
distressing to them.
This implements in full recommendation 28 of the Legislative
Assembly Legal and Social Issues Committee's Inquiry into
responses to historical forced adoption in Victoria tabled on
8 September 2021. The recommendation has been implemented
operationally, so the amendment will ensure the Act reflects
current practice.
Clause 57 inserts a reference to new section 100A (as inserted by clause 58
of the Bill) into section 100 of the Adoption Act 1984. The
effect of this amendment is that a person who is not entitled to
make a request for information under new section 100A may
make an application to the County Court for information about an
adopted person.
13
Clause 58 inserts new section 100A into the Adoption Act 1984. New
section 100A confers a discretionary power on the Secretary to
the Department of Justice and Community Safety to use and
disclose adoption information in accordance with this new
section. Under this new power, the Secretary may use and
disclose adoption information on the Secretary's own initiative or
at the request of a person, other than an individual. This is
intended to permit bodies to request adoption information, but
not individual persons. In determining whether to disclose
adoption information, the Secretary must have regard to the
factors specified in new section 100A(3), if relevant to the
circumstances. This is intended to ensure that the Secretary
considers matters such as the sensitivity of the information, risks
to any person who may be identified and the public interest when
exercising this new power to disclose adoption information. The
Secretary must also consider whether, in all the circumstances, it
is desirable to use or disclose the adoption information.
New section 100A(4) provides that a person to whom adoption
information is disclosed under new section 100A must not use or
disclose that information other than for the purposes for which it
was disclosed.
New section 100A(5) sets out records and information that are
included within the meaning of adoption information under new
section 100A.
Clause 59 amends section 102 of the Adoption Act 1984 to clarify that the
Adoption Information Service established under that Act is the
responsibility of the Secretary to the Department of Justice and
Community Safety. This clause also inserts 2 new functions for
the Adoption Information Service--
• to provide services to support persons entitled to be
entered in the Adoption Information Register to meet or
to provide information to another person entitled to be
entered in the Register; and
• to provide any other prescribed services
This amendment is intended to allow the Secretary to provide
additional adoption support services such as search and outreach
services.
14
Clause 60 amends section 123 of the Adoption Act 1984, which provides
for the Secretary to the Department of Justice and Community
Safety to request an approved agency or other body or person to
give information under Part VI of the Adoption Act 1984.
Subclause (1) amends section 123(1) to clarify that the Secretary
can request those persons to give information on the Secretary's
own initiative, in addition to under Part VI of the Act.
Subclause (2) inserts new section 123(1A), which provides that a
request from the Secretary must be in writing, may request
information or records or a class of information or records, and
must specify whether the documents containing the information
or records are to be provided in the original format, as copies or
both.
This is intended to enable the Secretary to request and obtain
historical adoption records.
Subclause (3) amends the offence under section 123(2) of the
Adoption Act 1984, which requires an approved agency, body or
person to comply with a request made under section 123(1)
within the prescribed period. The amendment permits a longer
period of time to be specified in the request, which means that the
requested agency, body or person could be liable for a penalty of
10 penalty units if they do not comply with the request within the
prescribed period, or if a longer period is specified in the request,
within that specified period.
Part 10--Amendment of Gender Equality Act 2020
Clause 61 makes changes to definitions in section 3 of the Gender
Equality Act 2020.
Paragraph (a) makes a statute law revision to the definition of
Council, which currently contains an incorrect reference to the
title of the Local Government Act 2020. Paragraph (a) corrects
this by substituting "2019" with "2020".
Paragraph (b) updates the definition of Secretary to refer to the
Secretary to the Department of Families, Fairness and Housing
rather than the Secretary to the Department of Premier and
Cabinet. This amendment is a statute law revision which reflects
recent machinery of government changes effected through the
Administrative Arrangements Order (No. 241) 2021, published
in the Victoria Government Gazette (No. S 41, 27 January
2021). Administrative Arrangements Order (No. 241) 2021
15
provided that references to the Department of Premier and
Cabinet and to the Secretary, Department of Premier and Cabinet,
were to be taken as references to the Department of Families,
Fairness and Housing and the Secretary, Department of Families
and Fairness and Housing respectively for the purposes of the
Gender Equality Act 2020.
Paragraph (c) inserts new definitions of Councillor and personal
information. The term "Councillor" is intended to replace the
term "member of a Council" in the Gender Equality Act 2020.
The purpose of this change is to improve consistency in the use
of local government terminology across the statute book by using
the terminology of the Local Government Act 2020.
The term "personal information" was previously defined in
section 51(4) of the Gender Equality Act 2020, and has the
same meaning as it has in the Privacy and Data Protection
Act 2014. The term will now apply across the Gender Equality
Act 2020 more broadly given its use in new section 46A (see
clause 65).
Clause 62 replaces the words "member of a Council" in section 29(2)(b) of
the Gender Equality Act 2020 with the word "Councillor". This
change reflects the terminology used in the Local Government
Act 2020.
Clause 63 replaces the words "member of a Council" in section 34(2)(b) of
the Gender Equality Act 2020 with the word "Councillor". This
change reflects the terminology used in the Local Government
Act 2020.
Clause 64 substitutes section 46 of the Gender Equality Act 2020 to
change the scope of the secrecy obligation in relation to dispute
resolution information obtained or provided under Division 3 of
Part 7 of the Gender Equality Act 2020.
Division 3 of Part 7 of the Gender Equality Act 2020 sets out
the functions of the Public Sector Gender Equality Commissioner
(the Commissioner) in relation to enterprise agreements,
including a function which enables the Commissioner to deal
with disputes relating to systemic gender equality issues.
New subsection (1) provides that the secrecy obligation applies to
specified persons in addition to the Commissioner. This is
subject to the exceptions in new section 46A, which is inserted
by clause 65.
16
New subsection (2) inserts a list of persons--in addition to the
Commissioner--to whom the secrecy obligation in new
section 46(1) applies. These persons are--
• delegates of the Commissioner (new section 46(2)(a));
• persons employed under Part 3 of the Public
Administration Act 2004, provided by the Secretary to
assist the Commissioner (new section 46(2)(b)); and
• other persons engaged to assist the Commissioner in the
performance of the Commissioner's duties and functions
or the exercise of the Commissioner's powers (new
section 46(2)(c)). This could include, for example, an
independent contractor engaged to assist the
Commissioner to conciliate a gender equality dispute.
The intention of specifying these persons is to ensure that the
secrecy obligation applies not only to the Commissioner but also
to people assisting the Commissioner.
Clause 65 inserts new section 46A into the Gender Equality Act 2020 to
provide exceptions to the secrecy obligation in section 46 of that
Act, as substituted by clause 64 of this Bill. The intention of
these exceptions to the secrecy obligation is to enable the
Commissioner to more effectively and expeditiously perform and
exercise the Commissioner's duties, functions and powers. The
exceptions are also intended to align the Commissioner's
obligations under the Gender Equality Act 2020 with
obligations arising under other laws.
New subsection (1) provides that the section applies despite any
Act or other law to the contrary other than the Charter of Human
Rights and Responsibilities (the Charter). This provision is
intended to ensure that the use or disclosure of information, as
permitted in subsections (2) and (3), will be lawful unless the
Charter provides otherwise.
New subsection (2) permits the Commissioner and persons
specified in new section 46(2) of the Gender Equality Act 2020
to use or disclose information obtained by or provided under
Division 3 of Part 7 of the Gender Equality Act 2020 for
purposes other than those for which they were provided, in
certain circumstances. These circumstances are--
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• the use or disclosure is reasonably necessary for the
Commissioner to perform a duty or function or exercise
a power under the Gender Equality Act 2020 or any
other Act and, if the information contains personal
information--
• the person to whom the personal information
relates consents to the use or disclosure of that
personal information; or
• the personal information is removed from the
information before the information is used or
disclosed (new section 46A(2)(a)).
For the avoidance of doubt, where the information to be
used or disclosed does not contain personal information,
then the use or disclosure is permissible where
reasonably necessary for the Commissioner to perform a
duty or function or exercise a power.
This exception is intended to assist the Commissioner to
more effectively discharge the Commissioner's
functions, duties and powers--which includes the
educational, research and reporting functions in
section 36 of the Gender Equality Act 2020.
• The disclosure is to a court or tribunal in the course of a
legal proceeding (new section 46A(2)(b)).
• The use or disclosure is pursuant to an order of a court
or tribunal (new section 46A(2)(c)).
• The disclosure is to the Commissioner or another person
subject to the secrecy obligation (new
section 46A(2)(d)).
• The use or disclosure is for the purposes of obtaining or
seeking legal advice (new section 46A(2)(e)).
• The use or disclosure is authorised, required or
permitted under any other Act or law (new
section 46A(2)(f)).
New subsection (3) enables the Commissioner to disclose
information obtained by or provided to the Commissioner, or
persons specified in new section 46(2) of the Gender Equality
Act 2020, under Division 3 of Part 7 of the Gender Equality
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Act 2020, to certain entities listed in new section 46A(3)(a).
These entities are the Victorian Equal Opportunity and Human
Rights Commission, the Fair Work Commission, or a body or
person prescribed in regulations.
Subject to new section 46A(4), disclosure under new
section 46A(3) is only permissible where the Commissioner
considers that the information is relevant to the performance of a
duty or function, or the exercise of a power, of the Commissioner
or of the person or body to whom the information is being
disclosed.
The exception in new section 46A(3) is intended to facilitate
information sharing arrangements to improve the ability of the
Commissioner to operate in the broader public sector context. It
is intended that the Commissioner would be able to rely on
section 45 of the Gender Equality Act 2020 to delegate, as
appropriate, the ability to disclose information under new
section 46A(3).
New subsection (4) imposes conditions on the disclosure of
information under new section 46A(3) if the information to be
disclosed contains personal information.
Paragraph (a) of new subsection (4) enables disclosure of
information that contains personal information if the person to
whom the personal information relates consents to that
disclosure. This circumstance for disclosure only applies where
it is reasonably practicable to obtain that person's consent.
Paragraph (b) of new subsection (4) enables disclosure of
information that contains personal information without consent,
if the Commissioner is satisfied that the public interest in
disclosing the personal information without consent outweighs
the public interest in not disclosing personal information without
consent. For avoidance of doubt, consent may not be present
because the person to whom the personal information relates
refused to give consent, or it was not reasonably practicable to
obtain the person's consent.
Paragraph (c) of new subsection (4) enables disclosure of
information that contains personal information if personal
information is removed from the information before it is
disclosed.
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Clause 66 repeals section 51(4) of the Gender Equality Act 2020, which
defined personal information for the purposes of that section.
Clause 61 inserts that definition in section 3 of the Gender
Equality Act 2020.
Clause 67 inserts new Part 8A into the Gender Equality Act 2020 to
provide for transitional arrangements in relation to amendments
to that Act made by this Bill. New Part 8A contains new
section 54A.
New section 54A sets out the transitional arrangements for the
amendments to sections 29(2)(b) and 34(2)(b) of the Gender
Equality Act 2020, made by clauses 62 and 63 of the Bill, which
substitute references to a "member of a Council" with the term
"Councillor". New section 54A provides that past and current
appointments to the position of Public Sector Gender Equality
Commissioner and acting Commissioner, made pursuant to
sections 59 and 60 of the Gender Equality Act 2020, are not
affected despite the changes made to those provisions by this
Bill.
Part 11--Repeal of this Act
Clause 68 provides for the automatic repeal of this Act on 5 October 2024.
This clause also contains a note that the repeal of this Act does
not affect the continuing operation of the amendments made by
it.
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