Commissioner for Equal Opportunity (SA) 

Act: Equal Opportunity Act 1984 (SA).¹

Established: Section 8 provides that there will be a Commissioner for Equal Opportunity, appointed for a term of five years and eligible for reappointment. Two features are worth noting immediately: the Commissioner is not a Public Service employee, and the terms and conditions of appointment are fixed by the Governor on the recommendation of the Commissioner for Public Employment.

Purpose: The Commissioner fosters informed and unprejudiced public attitudes with a view to eliminating discrimination on the grounds the Act covers, and administers the Act's complaint machinery.

Ministerial direction, and the line the Act draws

Section 10 is the most instructive provision in this factsheet, because it does not take an all-or-nothing position.

Under s 10(1) the Commissioner is responsible to the Minister for the general administration of the Act and, in carrying out that function, is subject to the general control and direction of the Minister. But s 10(2) then carves two things out. The Minister:

• must not give a direction about the manner in which action should be taken on a particular complaint; and
• must not seek information tending to identify a party to proceedings under the Act.

So the independence here is calibrated rather than absolute. Policy and administration are directable; the handling of an individual matter is not, and the Minister may not even learn who is involved.

That is a third model among Australian statutory bodies, and the comparison is the teaching point:

• Western Australia's Equal Opportunity Act 1984 creates a Commissioner with no equivalent general direction power, and its Environmental Protection Authority is expressly not subject to ministerial direction at all.
• The Northern Territory's EPA is likewise insulated by statute.
• The Clean Energy Finance Corporation, at the other end, is directed at the level of policy through a ministerial Investment Mandate.

None of that can be inferred from the fact that each body is a statutory authority. Only the enabling Act says.

Powers conferred under the Act

Section 11 frames the Commissioner's functions in educative and research terms: the Commissioner must foster and encourage informed and unprejudiced attitudes with a view to eliminating discrimination on the grounds to which the Act applies, may institute, promote or assist research and the collection and dissemination of data, and may make recommendations to the Minister as to reforms, legislative or otherwise, that would further the Act's objects.

Section 14 requires the Commissioner to report to the Minister by 30 September each year on the operation and administration of the Act, and s 15 provides a delegation power.

Is it a prosecuting authority?

No. The office is educative, investigative and complaint-handling; determination of complaints sits with the South Australian Civil and Administrative Tribunal. The reform-recommendation function in s 11(3) is directed at the Minister, not at a court.

Self-check

• Have I checked whether the direction in issue concerns general administration or a particular complaint, given s 10(2) distinguishes them?
• Have I noted that the Commissioner is not a Public Service employee, and what that signals about the office?
• Have I confirmed the ground relied on is one the SA Act lists, rather than assuming it matches another jurisdiction's?