Australia: Western Australia Reviews Its Anti-Discrimination Laws

Terms of reference

Terms of reference of the review included the following:

• whether the grounds of the Act need widening to cover areas not currently addressed in the Act

• whether all grounds of discrimination should be outlawed in all areas; and

• are the remedies available under the Act sufficient to redress acts of unlawful discrimination?

Recommendations

The Commission received submissions from 680 individuals and groups. Notable recommendations included the following:

• Recognising breastfeeding as a ground of discrimination in its own right. This would follow the lead of Victoria, Northern Territory, Tasmania, Queensland and the ACT which have already introduced breastfeeding as a ground of discrimination.

• Recognising bullying as a ground of discrimination. The Commission noted that bullying is an OH&S issue, and that it is a widespread problem in the workplace. In recommending that bullying per se be a ground of discrimination under the Act, this would allow those who face bullying, but are not discriminated in another way, to access relief under the Act.

• Amending the Act to include new grounds of religious vilification and discrimination on the grounds of physical features and gender identity.

• Removing the requirement that pregnancy discrimination be "unreasonable". No other State or Territory imposes this additional requirement of unreasonableness. Further, this "unreasonableness" requirement is somewhat meaningless in practice, as neither the Equal Opportunity Tribunal nor the State Administrative Tribunal have yet found less favourable treatment on the basis of pregnancy to be "reasonable".

• Imposing a "gender duty" on public employers. A similar duty presently operates in the UK, where all public employers are subject to a positive duty to promote the equality of opportunity between men and women in the workplace. The Commission recommends that the Director of Equal Opportunity in Public Employment enforce compliance with this duty in Western Australia. In satisfying this, the Commission recommends that agencies report annually to the Director on their progress, and to report progress on achieving equity goals in their annual reports.

• Removing the $40,000 limit on compensation, which has not been altered since the Act was introduced. New South Wales is the only other Australian state with a $40,000 limit, while all other states and territories either have no limit or the limit is pegged at the same rate as the District Court. The Commission recommends that the State Administrative Tribunal develop a new limit that is more appropriate.
• That the definition of employment be amended to include volunteers, unpaid workers, and people on vocational placements. This would permit these workers to access relief under the Act, as they are currently not permitted to do.

The Commission’s report on its review of the Act was submitted to the Attorney-General on 14 May 2007. If the recommendations made by the Commission are accepted, employers operating in Western Australia will face some significant changes to the State’s anti-discrimination regime.