Anti-discrimination law reform in Western Australia
The Review of the Equal Opportunity Act 1984 (WA) (Act) by the Law Reform Commission of Western Australia (Commission) was tabled in Parliament on 16 August 2022. The Commission made 163 recommendations that would provide stronger protections for women and LGBTQIAA+ communities in employment and school settings, bringing WA’s anti-discrimination laws in line with the rest of the country.
Attorney-General, John Quigley has indicated that most of the Commissions’ recommendations will be incorporated into the amended laws.
The key reforms expected to be included in the new law include:
- removing the ’disadvantage test‘ for sexual harassment complaints;
- strengthening equal opportunity provisions for LGBTQIAA+ staff and students in religious schools;
- providing anti-discrimination provisions to those who are transgender, or gender diverse;
- extending the prohibition against sexual and racial harassment to members of parliament and staff;
- introducing new protected attributes; and
- introducing anti-vilification laws.
Comparison between current laws and proposed reforms
Definition of discrimination
The stated aim of the Act is to eliminate discrimination on grounds including sex, sexual orientation, gender history, race, religious or political conviction. The Act does not define discrimination but describes forms of discrimination known as ‘direct’ and ‘indirect’.
The reforms propose the definition of direct and indirect discrimination to not be mutually exclusive. New protected attributes would include sex characteristics such as genitalia, or physical features such as weight.
Employment status and irrelevant criminal and medical history may also become protected, making it unlawful for employers to discriminate based on a candidate’s unemployment or irrelevant criminal record, unless that record indicates that the candidate cannot fulfil the job’s selection criteria.
Currently, private religious schools in WA, including those receiving taxpayer funding, can legally refuse to employ or terminate the employment of LGBTQIAA+ workers, expel LGBTIAQ+ students, and refuse to enrol children of same-sex parents on religious grounds when done in good faith, and in adherence to the relevant religion.
The Commission has proposed to limit the ability of religious schools to discriminate in their employment of staff where:
- conformity with the beliefs of the religion is an inherent requirement of the job;
- the person cannot meet that inherent requirement; and
- the discrimination is reasonable and proportionate in the circumstances.
The reforms also propose that educational institutions may only discriminate in the provision of education to a student based on religious conviction, where the discrimination:
- conforms with the beliefs of the religion;
- is reasonably necessary to avoid injury to the adherents of the religion; and
- is reasonable and proportionate in the circumstances.
The Act defines sexual harassment as an unwelcome sexual advance, a request for sexual favours, or other unwelcome sexual conduct.
The current test for unlawful sexual harassment is one of disadvantage. It means that in the workplace, sexual harassment complainants must prove they were harassed, and that challenging the behaviour would or did disadvantage them in their employment.
The reforms propose to remove the disadvantage test on the basis that ‘it ought not be incumbent on the harassed person to navigate complex legal arguments to satisfy the disadvantage requirement’.
The Commission identified several pitfalls of the disadvantage test. For example, in circumstances where an employee resigns and is subsequently sexually harassed by a co-worker, it is unclear whether the employee would meet the disadvantage test as their employment would not be affected.
The removal of the disadvantage test reflects current public expectations on how sexual harassment in the workplace is treated. The recommendations come in proximity to the 2022 ‘Enough is Enough’ report from the Community Development and Justice Standing Committee of the WA Parliament (Enough is Enough Report), which uncovered a shocking prevalence of sexual harassment in WA’s mining industry. The recommendations will simplify the test for complainants and place greater responsibility on employers to keep workplaces harassment-free.
The reforms will also prohibit sexual harassment by members of parliament and parliament staff, judicial officers and court staff and unpaid and volunteer workers.
Currently, to legally change your gender in WA, you must apply to the Gender Reassignment Board (Board) for a gender recognition certificate (GRC) under the Gender Reassignment Act 2000 (WA) (GRA). Before you can apply to the Board, you must undergo a ‘reassignment procedure’ and meet other eligibility criteria which differ depending on whether you are under 18 or not. It is only unlawful to discriminate against a person who holds a GRC if that person now identifies as a member of the ‘opposite sex’.
A persons’ intersex status is only protected under the Act where they hold a GRC. However, this certificate is only issued to those who have undergone a medical procedure to reassign their sex characteristics from male to female or vice versa.
The current laws do not afford protections to trans and gender diverse people who have not undergone a reassignment procedure and who have not applied to the Board to have their affirmed gender legally recognised. This is despite the fact these groups report higher rates of violence, harassment and exclusion due to their identity.
The reforms include replacing the term ‘gender history’ in the Act with ‘gender identity’ and that any requirement that a person hold a certificate under the GRA, be removed. The Commission has further recommended that the terms ‘another gender’ or ‘another sex’ replace ‘opposite gender’ or ‘opposite sex’.
The reforms will afford protection to trans and gender diverse people who have not surgically or medically transitioned (not just those who hold a GRC). The removal of the GRC requirement will remove a roadblock to protection that has been described as ‘difficult’, humiliating’, and ‘expensive’ to obtain.
The Act does not currently prohibit vilification (only harassment based on race). Vilification is where a person lowers or lessens in worth or value by means of abusive language and includes ‘hate speech’.
The reforms propose to introduce anti-vilification provisions prohibiting conduct likely to:
- create, promote or increase animosity towards;
- seriously abuse; or
- severely ridicule
- a group, or member of a group on the grounds of disability, gender identity, sex, sex characteristics, race, religious conviction or sexual orientation.
The provisions would not apply to certain artistic works, academic, or public interest publications made in good faith.
Positive duty & reasonable adjustments
The Act does not currently impose a positive duty not to discriminate, that is, a duty-holder is not currently required to take measures to eliminate discrimination.
The reforms may introduce a responsibility to make reasonable adjustments to accommodate a person’s special need because of, say, an impairment or pregnancy. The responsibility would apply except where it would impose unjustifiable hardship on the holder.
Additionally, the Commission recommends introducing a positive duty to eliminate discrimination, harassment, victimisation and vilification, where it is reasonable and proportionate. The Equal Opportunity Commission would be empowered to investigate and escalate breaches of the positive duty.
This recommendation may assist in addressing findings of the Enough is Enough Report about a lack of serious repercussions for perpetrators of sexual harassment. It would also enable complainants to claim compensation for an employer’s lack of non-compliance with a positive duty.
Burden and standard of proof
A complainant currently has the burden of proving their allegations on the balance of probabilities, with a respondent relying on an exception to the Act then bearing the onus under s 123.
The Commission has recommended an evidentiary burden on a complainant to establish a prima facie case of discrimination. Once established, a persuasive burden would then be imposed on the respondent to prove their conduct did not amount to unlawful discrimination.
Implications for schools and employers
Current anti-discrimination law in WA is almost four decades old and outdated compared to other jurisdictions.
According to the Attorney-General, the aim of the new bill is to balance the rights of a diverse range of Western Australians, without unreasonably burdening employers. Although the Attorney-General has indicated that most of the Commission’s recommendations will be adopted, it is unclear which reforms will make it into the new legislation.
Reforms to religious exemptions will particularly protect the LGBTQIAA+ community. Limiting these exemptions will mean that discrimination based on a person’s sexuality, gender, gender identity and sex characteristics, will be more difficult. When the new laws come into force, religious schools will need to closely examine existing policies and procedures to ensure that they treat their staff and students fairly and without discrimination to comply with these higher standards.
A range of new protected attributes may be introduced, and this will likely require policies to be updated and employees to be trained in relation to expected workplace behaviour and the hiring and firing procedure.
Removal of the disadvantage test may also pose an increased risk to employers of sexual harassment claims (in addition to the recent changes proposed at the Federal level in the 2022 Respect at Work Bill).
The recommendations reflect a pivotal shift in public sentiment towards the accountability of employers. Employers may no longer be able to rely on reactionary measures following incidences of discrimination or harassment. A new positive duty will impose greater obligations on employers to ensure their workplace is discrimination-free, however these obligations will depend on the size and nature of the business, the resources available, operational priorities and costs of taking those measures. The purpose is to not overly burden small businesses under the new laws.