Vote defeats public agency scrutiny

Media statement

December 9, 2021

Tania Maxwell MP was last week prevented by two votes from giving Parliament and government the power to request a Victorian Equal Opportunity and Human Rights Commission review of public agency compliance with equal opportunity law and authorise it to publish findings.

The Derryn Hinch’s Justice Party Member for Northern Victoria moved in the Legislative Council on December 3 to amend the Equal Opportunity Act 2010 during debate on the government’s proposed changes to equal opportunity exceptions[1] for religious organisations.

“Victorians have been shocked this week to read about VEOHRC findings into the extent of bullying, harassment and gender and sexual identity discrimination in Ambulance Victoria,” Ms Maxwell said.

“But in 2018 we were prevented from knowing if there was similar behaviour in the Metropolitan Fire Brigade and Country Fire Authority when Victoria’s Court of Appeal upheld action brought by the United Firefighters’ Union against the VEOHRC’s power to conduct exactly this type of review.

“The Court found that the VEOHRC had exceeded the powers of review given it by Parliament.

“So the only way to ensure that the VEOHRC is properly equipped to do its work is to change the Equal Opportunity Act, and I look to the support of my parliamentary colleagues to do that.”

Ms Maxwell’s amendment would have authorised Parliament or a Minister to request a VEOHRC review of programs and practices of any government department, public authority, state-owned enterprise or municipal council.

It would also authorise the VEOHRC to release a report and related documents under this process subject to a public interest test.

Government response

But Attorney-General and Legislative Council leader Jaclyn Symes MP told the House the government was unable to support Ms Maxwell’s amendment “because I do not have an appreciation of what the outcome will be”.

“I know what you are trying to achieve, but because of the time I have not had the opportunity to get advice on whether there would be unintended consequences and the like and how it would change the VEOHRC’s practices,” Ms Symes said.

“Have you got any advice from the commission or otherwise about how that would be implemented? You do not do things unless you know exactly what they are going to do, and I am not in a position to know if there would be other consequences for your amendment.”

Ms Maxwell said she had requested a meeting with the Equal Opportunity Commissioner.

“In my speech in the second-reading debate I said it is clear that the Equal Opportunity Act 2010 needs to change in order for VEOHRC to review matters that may be referred to it by a government minister or the Parliament,” she said.

“As Ms Symes noted in response to my question yesterday, the government cannot table a review that it does not have and VEOHRC cannot provide the minister with a copy of a particular review because of a court order made by the Court of Appeal in 2018.

“The court order was enforced in direct relation to section 151 of the Equal Opportunity Act. It clearly demonstrated that if the government requests a review of a public entity by VEOHRC, that entity may simply say, ‘No, thanks’, and block the review.

“If there are systemic human rights issues within a public authority, a government department, a state-owned entity or council and they do not self-refer, the government or the Parliament should, we believe, be able to refer this to VEOHRC.

“The commission’s role is executed through researching systemic issues; reviewing organisations, programs and practices for compliance; and conducting investigations under the Equal Opportunity Act.

“So these amendments provide for VEOHRC to exercise some discretion. VEOHRC can consider a referral and determine not to review an organisation; however, there is a public interest test for the release of reports and documents. I believe these are reasonable amendments—ones that advance the protections for workers and public transparency—and they would provide the opportunity for those reports to be accessible by changing section 151 of the Act.”

Opposition supports amendment

Shadow attorney-general Matthew Bach told the House the Opposition was “very understanding” of Ms Maxwell’s amendments.

“From our perspective, given the seriousness of the issues which she has hit upon both in her contribution here but also in the very helpful explanatory note that she circulated some time ago, we will be supporting her amendments,” Dr Bach said.

Liberal Democrats’ David Limbrick MP and Independent Catherine Cumming MP also indicated support for the amendments.

“I would like to thank Ms Maxwell’s team for briefing my team on what she is intending to do here,” Mr Limbrick said.

“I appreciate some of the concerns raised by the Attorney, but I do appreciate the intent of what Ms Maxwell is trying to do and the Liberal Democrats will be supporting this.”

On division, the move to amend the bill was defeated 19-18, with the Reason, Animal Justice and Greens parties voting with Labor. Two more votes would have passed the amendment.

Ms Maxwell used Question Time yesterday to ask the Emergency Services’ Minister Jaclyn Symes MP if the government itself would initiate changes to the Equal Opportunity Act, or conduct a fresh review of workplace culture in Victoria’s fire services.

Currently S.151(1) of the Equal Opportunity Act 2010 says:

Commission may conduct review of compliance

S. 151(1) amended by No. 26/2011 s. 22(1)

(1)  On request of a person, the Commission may enter into an agreement with the person to review that person’s programs and practices to determine their compliance with this Act.

Ms Maxwell’s proposed amendment to Bill:

(2) On request of the Parliament or government, the Commission may review the programs and practices of any public agency or authority.

(3) The Commission may disclose a report or documents that relate to the review of programs and practices of an agency or authority under (2) if the Commission considers it in the public interest to do so.

[1] Equal Opportunity (Religious Exceptions) Bill 2021