Equal Opportunity Act 2010

The Act has broad application. It binds the Crown in all capacities (s 5) and applies to natural persons, unincorporated associations, firms, educational authorities, clubs, qualifying bodies, industrial organisations, insurers, credit providers, owners corporations, councillors, and service providers (s 4 definitions of "person", "employer", "educational authority", "club", "qualifying body").

Primary duty-bearers are employers (including those engaging contract workers or commission-based staff), principals, firms, educational authorities, goods and service providers, landlords and accommodation providers, clubs and their governing bodies, sporting organisations, and municipal councillors. The positive duty in s 15 applies to any person who has a duty under Parts 4, 6 or 7.

Individuals are protected if they possess (or are presumed to possess, or are associated with someone who possesses) one or more of the attributes in s 6. This includes job applicants, employees (including volunteers in harassment contexts), students, customers, tenants, club members or applicants, athletes, and members of the public accessing premises or services. Children, persons with disabilities (including future or imputed disabilities, and manifestations of disability such as behaviour – s 4), carers, pregnant people, and those with expunged convictions are expressly covered.

Representative bodies may bring disputes or VCAT applications on behalf of named persons where they have sufficient interest and consent is obtained (ss 114, 124). The Commission itself is both regulator and educator, with power to investigate systemic issues (s 127), intervene in proceedings (s 159), and appear as amicus curiae (s 160).

Religious bodies, educational institutions conducted in accordance with religious doctrines, and charities receive specific carve-outs (ss 80, 82-83A). Public sector bodies must additionally comply with Disability Action Plans and Charter obligations.

The Act affects virtually every Victorian organisation and individual in their interactions in employment, education, service delivery and community life. Its extraterritorial reach is limited only by legislative power (s 5).

Key duties fall on organisations and individuals. The positive duty (s 15(2)) requires reasonable and proportionate measures to eliminate discrimination, harassment and victimisation, assessed against business size, resources, priorities and cost. Employers must not discriminate in recruitment, terms, training, promotion, dismissal or other detriments (ss 16, 18). They must accommodate parental or carer responsibilities unless unreasonable (ss 17, 19), considering the person's circumstances, role, financial impact, efficiency, productivity and customer service (s 17(2)). Reasonable adjustments for disability are mandatory unless the person cannot perform genuine and reasonable requirements even after adjustment (s 20(2)), with detailed reasonableness criteria including training, qualifications, current performance, and any Disability Action Plan (s 20(3)).

Analogous duties apply to principals (ss 21-22A), firms (ss 30-34), educational authorities (ss 38, 40), service providers (ss 44-45), accommodation providers (ss 52-56), clubs (ss 64-65), and others. Service providers and educational authorities must make adjustments for disability (ss 40, 45), with parallel reasonableness tests.

Rights include protection from direct and indirect discrimination, sexual harassment, victimisation, and discriminatory requests for information. Persons with disabilities have a right to reasonable adjustments across multiple domains. Carers and parents have accommodation rights. Victims of discrimination may seek dispute resolution, VCAT orders for compensation, injunctions, or remedial action (s 125). Representative actions are permitted.

Religious bodies retain rights to act in conformity with doctrine where reasonable and proportionate (ss 82, 82A-83A), but these are constrained for government-funded services and must not extend to non-religious attributes. Special measures to advance substantive equality are permitted and do not constitute discrimination (s 12).

The Commission has rights and duties to educate, research, issue guidelines, investigate, and enforce (Part 11). VCAT may make interim orders to protect dispute resolution or investigations (ss 121, 137).

The Act creates both civil remedies and criminal offences. Civil enforcement occurs primarily through Commission dispute resolution (Division 1 of Part 8) or direct VCAT application (s 122). VCAT may order cessation of contravening conduct, compensation for loss, damage or injury, or other remedial action (s 125(a)). It may also decline to act (s 125(b)) or dismiss the application (s 125(c)). Commission-initiated enforcement of VCAT orders is possible with applicant consent (s 126).

Investigations under Part 9 may lead to agreements (registrable as VCAT orders – s 140), referral to VCAT for inquiry (s 141), or reports to the Attorney-General or Parliament (ss 142-144). Interim orders are available to prevent prejudice (ss 121, 137).

Offences are summary. Discriminatory advertising carries 60 penalty units (natural person) or 300 (body corporate) (s 182). Obstructing the Commission or providing false or misleading information each attract the same penalties (ss 185, 186). Proceedings may be brought by the Commission, police, or authorised persons (s 180).

Vicarious liability applies to employers and principals unless reasonable precautions were taken (s 109-110). Victimisation and authorisation of discrimination are prohibited and enforceable civilly (ss 103, 105). No civil or criminal liability arises from contravention except as expressly provided (s 188). Self-incrimination is protected (s 188A). Secrecy obligations bind Commission personnel (s 176), with exceptions for court-ordered criminal disclosure, consent, imminent harm, mandatory reporting, or FOI review (ss 176A-176B).

The Act operates alongside and interacts with numerous instruments. It expressly references the Charter of Human Rights and Responsibilities, requiring Commission functions to be exercised compatibly (s 155(3)) and treating the positive duty as additional to Charter s 38 duties for public authorities (s 15(5)(b)). VCAT must consider whether exemptions are reasonable limitations on the Charter right to equality (s 90(b)).

Federal laws are frequently cross-referenced. Reasonable adjustment duties take account of compliance with Disability Discrimination Act 1992 (Cth) standards or building determinations (ss 20(5)-(6), 33(5)-(6), 40(4)-(5), 45(4)-(5), 58(3)). Superannuation exceptions align with the Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1984 (Cth) and Age Discrimination Act 2004 (Cth) (s 79). Employment definitions incorporate Fair Work Act 2009 (Cth) instruments (s 4(3)). The insurance and credit exceptions mirror Commonwealth actuarial exceptions (ss 47, 48).

Victorian statutes are also engaged. Religious exceptions interact with the Relationships Act 2008 (domestic partner definition), Owners Corporations Act 2006, Building Act 1993 (ss 55, 56, 58), Disability Act 2006 (Disability Action Plans), Public Administration Act 2004, and Sentencing Act 1991 (expunged convictions). The Racial and Religious Tolerance Act 2001 is amended in relation to dispute resolution (s 1(b)).

The Act prevails over contrary documents affecting land or accommodation (ss 50(3), 63(1)) and protects against breach of covenant claims where compliance would contravene the Act (ss 50(4), 63(2)). Transitional provisions (Part 14) ensure continuity with the repealed Equal Opportunity Act 1995, treating pre-commencement complaints as disputes where appropriate and extending coverage to earlier conduct that would now breach the Act (ss 193-194, 198).

Practice guidelines, while not binding, may be considered by courts or VCAT (s 149). Action plans and compliance reviews provide safe harbour evidence.

The Act has been amended extensively since 2010. The Equal Opportunity Amendment Act 2011 (No. 26/2011) restructured the Commission, replaced the old complaints model with a dispute resolution and direct VCAT access model, clarified definitions (e.g. "disability", "assistance dog"), refined adjustment and exception provisions, and strengthened investigation powers (new Part 9). These changes aimed to improve timeliness, reduce formality, and enable systemic responses.

The Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014 and Spent Convictions Act 2021 added protections for expunged convictions and spent convictions (ss 6(pa), 6(pb)), reflecting policy to remove historical stigma.

Industrial Relations Legislation Amendment Act 2021 expanded "employment activity" to protect requests for or complaints about employment entitlements (s 4 definition, inserted by No. 14/2021 s 25), addressing power imbalances in workplaces.

The Equal Opportunity (Religious Exceptions) Amendment Act 2021 (No. 56/2021) substantially narrowed religious exceptions. It introduced definitions of "religious body" and "government funded goods or services" (ss 81, 81A), confined exceptions to conduct that is reasonable and proportionate and either conforms with doctrine or avoids injury to religious sensitivities (s 82(2)), created specific employment (s 82A) and government-funded services (s 82B) tests requiring inherent requirement or doctrinal conformity, and limited educational institution exceptions (s 83). These changes responded to reviews finding overly broad exemptions that undermined equality, particularly for LGBTQ+ Victorians, while preserving religious freedom within tighter bounds.

The Change or Suppression (Conversion) Practices Prohibition Act 2021 added "sex characteristics" (s 6(oa)), updated sexual orientation and gender identity definitions (s 4), and inserted transitional provisions (Division 3 of Part 14) preserving pre-commencement conduct under the old framework. It also amended harassment and offence provisions.

The Sex Work Decriminalisation Act 2022 removed an exception (former s 62) and adjusted profession/trade discrimination (s 26(5)). The Justice Legislation Amendment Act 2022 and Regulatory Legislation Amendment (Reform) Act 2022 made minor updates to definitions and Fair Work Commission references. The Justice Legislation Amendment (Anti-vilification and Social Cohesion) Act 2025 updated the disability definition (s 4).

These amendments collectively shift the Act toward greater substantive equality, narrower exceptions, and alignment with contemporary human rights standards.

Although the Act does not itself generate reported appellate case law in the provided text, its provisions have been tested in VCAT and higher courts. VCAT has considered the reasonableness of adjustments (ss 20, 40, 45), the scope of the positive duty (s 15), and the application of religious exceptions both pre- and post-2021 amendments. Controversies have centred on the breadth of religious carve-outs; prior to the 2021 reforms, faith-based schools and organisations could discriminate on sexual orientation or gender identity in employment and education where it conformed with doctrine. The 2021 amendments were controversial, with religious groups arguing they infringed religious freedom, while equality advocates contended the previous exceptions perpetuated harm.

The positive duty has been criticised as difficult to enforce because it is not individually justiciable (s 15(3)), relying instead on Commission investigation. This has led to calls for stronger regulatory tools. Indirect discrimination litigation frequently turns on the s 9(3) reasonableness factors, particularly cost, business impact and availability of alternatives. Disability adjustment cases grapple with the interaction between state obligations and Commonwealth standards (e.g. ss 20(5), 58(3)).

The Commission's power to investigate systemic issues (s 127) and publish reports has generated debate about procedural fairness and naming of organisations. Secrecy provisions (s 176) and exceptions (ss 176A-176B) have been scrutinised in the context of mandatory reporting and FOI requests.

Controversies around sport (s 72) and single-sex clubs (s 68) continue, particularly regarding transgender participation and the balance between inclusion and competitive fairness. The Act's interaction with the Charter has been invoked in challenges to government policies on accommodation, education and public premises access.

Overall, the legislation has been praised for its comprehensive coverage and positive duty but criticised for complexity, the breadth of exceptions (particularly pre-2021 religious ones), and limited individual enforcement of the positive duty.

Most practitioners miss that the positive duty (s 15) is not enforceable by individuals yet can trigger Commission investigation and reputational risk; organisations often treat it as aspirational rather than a strict compliance obligation. The onus in indirect discrimination (s 9(2)) and special measures (s 12(6)) rests on the respondent, but many fail to lead evidence on reasonableness or proportionality until late in proceedings.

The definition of "disability" (s 4) expressly includes future genetic predispositions, manifestations of disability (e.g. behaviour), and imputed characteristics; this catches employers who act on stereotypes about future impairment. Reasonable adjustment duties apply even where no complaint has been made if the need is apparent (ss 20, 33, 40, 45).

Religious exceptions post-2021 are narrower than many assume: they do not permit discrimination on non-religious attributes, must be reasonable and proportionate, and are excluded for government-funded services except on religious grounds meeting strict tests (s 82B). Inherent requirement assessments for religious employment (ss 82A, 83A) must consider the nature of the body and position.

Transitional provisions (ss 193-194, 198) can allow claims for pre-2011 conduct if it would now breach the Act and no prior complaint was lodged. Victimisation (s 104) is broad, capturing threats of detriment for making allegations in good faith even if the underlying claim fails.

Discriminatory requests for information (s 107) are prohibited even at recruitment if they could found prohibited discrimination; the exception (s 108) requires the information to be for a non-discriminatory purpose and imposes destruction and non-disclosure obligations.

Practice guidelines (s 148) are not binding but VCAT and courts may consider compliance; ignoring them is perilous. Action plans registered with the Commission (s 153) provide evidentiary protection but must be genuine.

The Act's definition of "services" (s 4) is extremely wide, capturing public access to premises, transport, professional services and government functions, yet many organisations overlook accommodation of assistance dogs (s 54) or alterations (ss 55-56).

Finally, the Commission can investigate without a complaint where systemic issues exist (s 127), and VCAT can register settlement agreements as orders (s 120), making informal resolutions surprisingly enforceable.

Compliance begins with a risk assessment across all areas of activity. Organisations should map protected attributes against policies in employment, service delivery, education, accommodation and public access. Adopt an equality, diversity and inclusion policy that expressly references the positive duty (s 15) and commits to reasonable and proportionate measures scaled to organisational size and resources.

Implement mandatory training on direct and indirect discrimination, unconscious bias, reasonable adjustments and the expanded religious exceptions. For employers and principals, develop flexible work policies addressing carer responsibilities (ss 17, 19, 22, 32) and clear procedures for assessing adjustment requests (ss 20, 22A, 33, 40, 45). Maintain documentation of reasonableness assessments, including financial impact, productivity effects, alternatives considered, and reference to any Disability Action Plan.

Review recruitment, promotion and termination processes to eliminate discriminatory criteria. Update application forms to avoid prohibited information requests (s 107). For service providers and educational authorities, audit premises for accessibility and develop adjustment protocols, including subtitles, home delivery, teacher aides or venue changes.

Religious bodies must audit positions to identify genuine inherent requirements of religious conformity (ss 82A, 83A) and document doctrinal bases. Government-funded service providers must ensure decisions on religious grounds meet the s 82B test.

Establish a complaints-handling system aligned with Commission principles (s 112) that encourages early, confidential resolution. Consider preparing an action plan (s 152) and registering it. Conduct periodic compliance reviews (s 151) and monitor Commission practice guidelines.

For clubs, sport and local government, review membership, benefit allocation and selection criteria against specific exceptions (ss 66-69, 72, 74). Maintain records demonstrating good faith, proportionality and reasonableness to discharge evidentiary burdens (ss 9(2), 12(6), 13(2), 90).

Appoint a senior compliance officer with direct Board access. Integrate Charter compatibility assessments into decision-making. Review contracts, insurance, superannuation and tenancy documents for compliance. Train staff on sexual harassment (Part 6), victimisation and secrecy obligations.

Regularly audit for systemic risks that could trigger Commission investigation (s 127). Where disputes arise, engage early with the Commission’s dispute resolution service rather than defaulting to adversarial VCAT proceedings. Document all steps taken to comply with the positive duty; this is the single most effective defence against regulatory action.

Organisations that treat the Act as a compliance checklist rather than a substantive equality tool will miss the mark. True compliance requires cultural change, ongoing monitoring, and willingness to make adjustments even where not strictly requested.