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Sex and Age Discrimination Legislation Amendment Bill 2011

Schedule 2 Amendments relating to age discrimination

Part 1 Amendment of the Age Discrimination Act 2004

Age Discrimination Act 2004

1  Section 4

After:

•      Functions are given to the Commission (see Part 6).

insert:

•      The Age Discrimination Commissioner is established (see Part 6A).

2  Section 5

Insert:

Commissioner means the Age Discrimination Commissioner appointed under section 53A.

3  After Part 6

Insert:

Part 6A Age Discrimination Commissioner

   

53A   Age Discrimination Commissioner

             (1)  There is to be an Age Discrimination Commissioner, who is to be appointed by the Governor-General by written instrument.

Note:          The Age Discrimination Commissioner is eligible for reappointment: see the Acts Interpretation Act 1901 .

             (2)  A person may only be appointed as the Age Discrimination Commissioner if the Minister is satisfied that the person has appropriate qualifications, knowledge or experience.

53B   Terms and conditions of appointment

             (1)  The Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 7 years.

             (2)  The Commissioner holds office on a full-time basis.

             (3)  The Commissioner holds office on the terms and conditions (if any), in relation to matters not covered by this Act, that are determined by the Governor-General.

53C   Remuneration of Commissioner

             (1)  The Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Commissioner is to be paid the remuneration that is prescribed by the regulations.

             (2)  The Commissioner is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 .

53D   Leave of absence

             (1)  The Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

53E   Outside employment

                   The Commissioner must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

53F   Resignation

             (1)  The Commissioner may resign his or her appointment by giving the Governor-General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

53G   Termination of appointment

             (1)  The Governor-General may terminate the appointment of the Commissioner for misbehaviour or physical or mental incapacity.

             (2)  The Governor-General must terminate the appointment of the Commissioner if:

                     (a)  the Commissioner:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  the Commissioner engages, except with the Minister’s approval, in paid employment outside the duties of his or her office (see section 53E).

53H   Acting Commissioner

             (1)  The Minister may, by written instrument, appoint a person to act as Commissioner:

                     (a)  during a vacancy in the office of Commissioner (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Commissioner:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the functions of the office.

             (2)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

Note:          See sections 20 and 33A of the Acts Interpretation Act 1901 .

4  Paragraph 55(a)

Repeal the paragraph, substitute:

                     (a)  the Commissioner or another member of the Commission; or

5  Subsection 58(1)

Omit “a member of the Commission” (wherever occurring), substitute “the Commissioner or another member of the Commission,”.

6  Subsection 60(6) (paragraph (a) of the definition of person bound by this section because of office, employment or authorisation )

Repeal the paragraph, substitute:

                     (a)  the Commissioner or another member of the Commission; or



 

Part 2 Consequential amendments

Division 1—Amendments

Australian Human Rights Commission Act 1986

7  Subsection 3(1)

Insert:

Age Discrimination Commissioner means the Age Discrimination Commissioner appointed under the Age Discrimination Act 2004 .

8  Paragraph 8(1)(d)

Repeal the paragraph, substitute:

                     (d)  the Sex Discrimination Commissioner; and

                     (e)  the Age Discrimination Commissioner; and

9  Subsection 8(7)

After “Sex Discrimination Commissioner”, insert “, Age Discrimination Commissioner”.

10  At the end of subsection 46PV(3)

Add:

             ; and (f)  the Age Discrimination Commissioner.

Fair Work Act 2009

11  Section 12

Insert:

Age Discrimination Commissioner means the Age Discrimination Commissioner appointed under the Age Discrimination Act 2004 .

12  Paragraph 161(2)(a)

Omit “the Australian Human Rights Commission”, substitute “the Age Discrimination Commissioner”.

13  Paragraph 218(2)(a)

Omit “the Australian Human Rights Commission”, substitute “the Age Discrimination Commissioner”.

Division 2—Application of amendments

14  Amendment made by item 10

The amendment made by item 10 applies in relation to proceedings:

                     (a)  that commence on or after the commencement of that item; or

                     (b)  that commenced before the commencement of that item, and that had not been completed by that commencement.