The WA Attorney-General has made a reference to the Law Reform Commission of Western Australia is to provide advice and make recommendations for consideration by the Government on possible amendments to enhance and update the Equal Opportunity Act 1984 (WA) (“the Act”) taking into account Australian and international best practices regarding equality and non-discrimination. This was flagged in our briefing last year.
The Terms of Reference indicate that, in carrying out its review, the Law Reform Commission should consider whether there is a need for any reform, and if so, the scope of reform regarding:
- the objects of the Act and other preliminary provisions;
- the grounds of discrimination including (but not limited to) introducing grounds of gender identity and intersex status;
- the areas of public life to which the Act applies;
- definitions in the Act including (but not limited to) discrimination, harassment (including a requirement for disadvantage in a definition of sexual harassment), impairment (including a requirement to make reasonable adjustments for persons with an impairment), victimisation, services and employment;
- the inclusion of vilification, including racial, religious, sexual orientation and impairment vilification;
- the inclusion of a positive duty not to discriminate on grounds covered by the Act;
- exceptions to grounds of discrimination including (but not limited to) those for religious institutions;
- the burden of proof;
- the functions and investigative powers of the Commissioner for Equal Opportunity including (but not limited to) the functions of the Commissioner (either personally or by counsel) assisting complainants in the presentation of their case to the State Administrative Tribunal (“SAT”);
- requirements around the referral of complaints to SAT;
- the role and jurisdiction of SAT under the Act, including the requirement for leave if the complaint is dismissed by the Commissioner;
- interaction with the Commonwealth Marriage Amendment (Definition and Religious Freedoms) Act 2017 and with other relevant Commonwealth laws or proposed laws;
- any other element of the Act or other laws relevant to equal opportunity and non-discrimination; and
- any related matter.
We expect a discussion paper to be released in the next month or two and will be making a detailed submission on behalf of member schools.