Justice Legislation Amendment Bill 2022

1

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 BILL LA INTRODUCTION 5/4/2022

2

• 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".

3

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

4

• 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.

5

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).

6

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

7

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

8

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.

9

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.

10

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

11

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

12

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.

13

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.

14

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.

15

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

16

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.

17

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—

18

• 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

19

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.

20

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.