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Legislative Assembly for the ACT: 2009 Week 15 Hansard (Thursday, 10 December 2009) . . Page.. 5643 ..

Professionals Act are intended to interact. The Human Rights Commission is intended to operate with great flexibility when dealing with a health profession board. This bill ensures that, where a complaint is lodged with the commission which raises concerns regarding professional standards, the relevant health profession board can have input at an early stage.

Heading to the second group of matters—that is, those dealing with updates to the Discrimination Act—this bill makes minor amendments to the Discrimination Act under which the commission, through the Human Rights and Discrimination Commissioner, handles complaints. Under the Discrimination Act, it is unlawful to treat individuals with certain protected attributes or grounds unfavourably in public life. These amendments modernise and update the existing protected grounds of transsexuality and membership or non-membership of an association or organisation of employers or employees. These grounds are renamed gender identity and industrial activity.

The term “gender identity” is a better, more modern term to describe the type of discrimination that the act is intended to prevent. With this amendment, it will be clear that those who identify as another sex, including people who are of an indeterminate sex, are protected from discrimination. This definition better recognises the protection that was intended to be given in the Discrimination Act.

The term “industrial activity” brings the ACT Discrimination Act into line with the commonwealth’s Fair Work Act 2009 and the term used to describe this same issue in equality legislation in other jurisdictions. The amendments ensure that this new terminology is also used in relation to vilification and serious vilification on the basis of gender identity. To clarify, this bill does not add additional grounds to those currently listed but merely modernises the words used to describe two existing grounds. The changes bring the territory into line with contemporary practice adopted in other jurisdictions, including Victoria and the commonwealth.

Other amendments include restoring the protection previously provided in section 68 of the Discrimination Act in relation to victimisation prior to the establishment of the Human Rights Commission. Section 98 of the Human Rights Commission Act currently provides a criminal offence of victimisation. Victimisation occurs when someone is treated unfavourably for asserting their rights or assisting the commission in considering a complaint.

The bill would give options for responding to discrimination apart from the criminal offence of section 98. The new protection does not create a criminal offence. By making victimisation unlawful under the Discrimination Act in this way, civil orders will be available to the Human Rights Commission to protect against victimisation. This means that the commission will be able to respond to a case of retaliation under a civil standard of proof rather than the more strict burden of proof required to prove a criminal offence.

Finally, turning to those changes relating to the Mental Health (Treatment and Care) Act, the bill removes the discrimination commission from the list of recipients of notices of mental health hearings under the ACT Civil and Administrative Tribunal under the Mental Health (Treatment and Care) Act. The discrimination commissioner

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