Question 1

What is the jurisdiction of the legislation?

The Equity, Diversity and Inclusion Act 2021 (Cth) is a piece of commonwealth legislation
meaning it functions at the national level.

When did the act commence?

Section (2) outlines that the legislation commences on the date of Royal Assent which is the
29th of January 2021.

What approach would the courts take in interpreting the legislation?

The courts would bring a purposive and contextual approach to the legislation.

What are the key provisions of the act and how would they be interpreted in light of
the purposive and contextual approach?
Paragon’s Policy;
Section 5(3) of the Equity, Diversity and Inclusion Act 2021 (Cth) (‘EDI Act’) provides that
casual employees who have worked for at least 6 months may be entitled to part time
employment but not service based entitlements, which, does not apply to individuals who
have maintained a long-term relationship with the company and have changed working
conditions due to balancing of family and work commitments. Further, the new policy
implemented by Paragon removes the employee benefits from casual employees regardless
of their previous history with the company. This is a clear violation of the legislation;
however, it must be understood if such changes are warranted by the explicit
accommodation made for company’s financial viability.

Section (3)(3) of the EDI Act further outlines that the one of the objects in the act is to
‘Accommodate competing interests of businesses, employees and stakeholders’ which
allows Paragon to change or implement current and future policies in accordance with
maintaining financial stability. However, this is not an operative provision but merely a
statement of the principles behind the legislation. Thus, section (4) provides for the
obligations which ‘Every company is legally required to’ abide by with subsection (3) stating
that companies must ‘Adopt and implement policies consistent with this Act’. Which, the
new policy fails to do as it is a clear violation of section (5)(3).

The scenario states that, ‘His [Aumit’s] working conditions were changed by Paragon due to
the catastrophic impact of COVID-19 on its revenue.’ Which is only in combination with his
desires to balance his family, community and work commitments. The legislation does not
provide for the circumstances of the COVID-19 pandemic or other similar events in relation
to the changing of company policy in accordance with the EDI Act. In light of this, Section
15AB of the Acts Interpretation Act (Cth) provides for consideration to be given to extrinsic
materials to, as subsection (a) provides,
confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking
into account its context in the Act and the purpose or object underlying the Act.

The Explanatory Memorandum details,

 Accordingly, corporations shall provide flexible working arrangements to assist its employees to balance their
work and family responsibilities. However, this balancing task sometimes may take into account the financial
conditions and associated rights of the corporation.
Which notably does not have as much interpretive weight as the operative provisions. Yet,
outlines that the balancing may take into account the ‘associated rights of the corporation.’
If parliament had intended for this balancing act to afford corporations to operate outside of
its section (4) legislation it would have been stated expressly in the legislation. The rights of
the corporation are limited by language of section (4) as they are ‘legally required to’ abide
by its provisions. Thus, the policy change made to Paragon’s employee benefits is
inconsistent with the EDI Act and must be deemed unlawful, which, enables the EDI
Commission to issue a fine of up to $100,000 under section (7)(1)(a) and section (2) with
regards to the factors listed in section (8).

In regards to Aumit’s personal claim to the employee benefits the issue revolves around the
interpretation of what would be considered ‘compelling reasons’ and whether his change to
casual employee status by the effect of the revenue impact of COVID-19 would constitute
such. The legislation uses the language, ‘such as’ to express that the ‘requirements of
balancing family and work commitments’ operates as an example with a serious focus on
the individual’s personal decision to step back from their previous working conditions. The
scenario explicitly states that, ‘His previous working conditions were changed by Paragon
due to the catastrophic impact of COVID-19 on its revenue.’ With a much smaller
consideration for the family versus work balance. The circumstances of the COVID-19
pandemic changing his work conditions does not fit within the parameters of ‘compelling
reasons such as requirements of balancing family and work commitments.’ However, the
scenario explicitly states that, ‘Aumit also accepted his changed arrangement, as he needed
to balance his family, community and work commitments.’ And the legislation provides that
such circumstances may be an example but it does not provide that it must be the sole
reason. With regards to this as well as section (3)(1) of the EDI Act’s consideration to ‘Ensure
a fair, flexibly and balanced workplace’ Aumit would be able to claim the employee benefits.

Paragon’s failure to take action against Aron;

Section (6) states the creation of the ‘EDI Commission’ which is empowered to monitor and
investigate the implementation of company policies and complaints in regards to the EDI
Act. Thus, it is imperative to outline whether Aron’s conduct falls within the offences listed
under section (7). As subsection (b) states, ‘Harassment or toleration of harassment which
involves the undermining of ethnic values/identities in the workplace.’ Which appropriately
describes the conduct of which Aron was inflicting upon Aumit. Thus as section (7)(2) states
Aron is eligible for a fine of up to $1000. Further, the EDI officer of Paragon seemingly has
ignored Aumit’s claim, thus, placing the company in violation of section (7)(2) for ‘toleration
of harassment’ making them eligible for a maximum of a $100,000 fine. Such fines will be
subject to assessment by the EDI Commission with regards to the considerations outlined in
Section (8).

The significance of Explanatory Memorandum and the Australian Law Reform Commission’s
Report
Both resources were not extremely useful in providing valuable insights into the
functionality of the EDI Act. However, there was a key understanding within about the
enduring relevance and importance of cultural identity, ethnicity and inclusion which
formed the basis of the legislation. The focus of both resources is to push primarily for
inclusion in the workplace whereas Aumit’s position within the company as a long-standing
employee place him beyond such considerations. However, small linguistic choices and
statements made through the Explanatory Memorandum allowed for a greater
understanding of the relationship between the balancing of corporation’s rights and
financial concerns and an employee’s position were helpful. Further, due to their positions
as external materials to the act they were unable to be afforded much interpretive weight
aside from clarification of the extent to which corporations harbour the right to challenge
the policies set out in the legislation. Also, the statement in the Explanatory Memorandum
concerning balancing work and family responsibilities did not assist in interpretation
because it effectively restated what was already evident within the legislation itself.

Question 2
The principle of legality is a fundamental common law principle which presumes that the
legislature would not ‘overthrow fundamental principles, infringe rights, or depart from the
general system of law, without expressing its intention with irresistible clearness.’ (Potter v
Minahan, per O’Connor J) The high court has used this principle in a range of cases to
protect the fundamental common law rights of Australians. The high court protects
fundamental rights through the principle of legality by requiring the parliament to express
its intention to interfere with those rights clearly and unambiguously within the legislation.
Thus, preventing the courts from misinterpreting parliament’s intentions and going against
the wishes of parliament.

The case of Coco v The Queen (1994) demonstrates the role that the principle of legality
plays in protecting the fundamental common law rights. In the case the right against
trespass was under contention as a judge of the Supreme Court allowed Commonwealth
Officers to ‘bug’ a man named Santo’s office with listening devices in an attempt to gather
evidence for a conviction. However, upon reaching the high court it was determined that
there was no express direction from parliament to authorize a violation against the right
against privacy. Thus, the high court was able to preserve the fundamental common law
right against trespass.

A case which highlights an instance where the principle of legality seemingly inadvertently
interfered with a fundamental common law right was in the case of Al-Kateb v Godwin
(2004). The facts of the case outline a Palestinian man born in Kuwait who was unable to
acquire a temporary visa under the condition that the current state of his home country was
in conflict and thus, he was rendered stateless. The legislation clearly stated that he must be
held in detention until removal, deportation or the grant of visa, all of which options were
unavailable to him. Such a case demonstrates the edge cases where an individual is stripped
of a fundamental common law right, in this case freedom of movement, due to a factor
outside of their control. Thus, whilst the high court is able to effectively protect the
fundamental common law rights through the principle of legality it can also force them to
seemingly unintentionally strip them.

The principle of legality can work effectively, yet, if only often works when the case is clear
and either parliament clearly stats their intention or the words of the legislation clearly
provide that a certain right is to be stripped or not. However, cases such as Al-Kateb v
Godwin demonstrate that its functionality is flawed and when given no choice the courts
will be required to strip individuals of fundamental common law rights with no response.

Question 3
The courts do not rely heavily on international law to interpret domestic legislation. This is,
in part, due to the dualist system and relationship of Australian and international law. There
must be a domestic instrument to allow for provisions of an international instrument to
become domestic law. Yet, the option is there to allow courts to rely on it for statutory
interpretation. Section 15AB(2)(d) of the Acts Interpretation Act states,
Without limiting the generality of subsection (1), the material that may be considered in accordance with that
subsection in the interpretation of a provision of an Act includes (d) any treaty of other international agreement
that is referred to in the Act;
Further, case law expresses the extent to which courts are open to using international
instruments to interpret domestic legislation.

The case of Teoh (1995) demonstrates the orthodox view of interpreting domestic
legislation with the use of international instruments. In Teoh, simply, an immigrant who had
his residency application knocked back was likely to be deported despite having a wife and
four children to care for. The interpretation of the Convention on the Rights of the Child
(1989) took into light article 3.1 which states that ‘in all actions concerning children… the
best interests of the child shall be a primary consideration.’ Which, in turn, allowed for Teoh
to stay in Australia. It also fostered what was called a ‘legitimate expectation’ that decision
makers will ‘act in accordance with the convention’ in Australian law. Not ratifying the
treaty completely, yet, fostering article 3.1 within the Australian common law.

Another case which highlights examples of the high court affording weight to international
instruments is Coleman v Power (2004). The case revolves around the right to political
communication after Coleman was arrested for ‘insulting words’ against police corruption.
In the case Justice Kirby detailed that the International Convention on Civil and Political
Rights could be used as a statement of human rights despite it not being domestically
incorporated and would be useful in such a case to uphold the freedom of political
communication.

The court’s use of international law to interpret domestic legislation is limited, however, it is
evident that certain judges, such as Justice Kirby, are open and willing to use such
instruments to support the interpretations of domestic legislation, especially in relation to
human rights and individual freedoms. However, Justice McHugh expresses his concerns in
Al-Kateb v Godwin about the incorporation of international law into domestic law, stating,

It is impossible to believe that, when the Parliament now legislates, it has in mind or is even aware of all the rules
of international law…  Most of them [Legislators] would be surprised to find that an enactment had a meaning
inconsistent with the meaning they thought it had because of a rule of international law which they did not know
and could not find…
Thus, the challenge comes to the courts to strike a balance between effective and trivial uses
of international instruments when interpreting domestic law.