The Law Reform Commission has published the Terms of Reference for the review of the Equal Opportunity Act 1984.
Included in those terms is the burden of proof, inclusion of vilification on multiple grounds and functions of the Commissioner for Equal Opportunity.
Acting Commissioner for Equal Opportunity Dr John Byrne said he welcomed the review, stating that it was long overdue.
“The Equal Opportunity Act 1984 was drafted over 35 years ago and has not changed substantially since that time,” he said.
Dr Byrne said Western Australia was a different place in 1984 and it was time to bring the Act up to date and in line with more modern antidiscrimination legislation in Queensland, Tasmania and Victoria as well as federal legislation.
“One of the provisions the Act falls behind in is vilification.
“Western Australia has racial vilification embedded in criminal law, however the test for criminal law is beyond reasonable doubt, which makes it a much harder test,” he said.
“Civil laws like the Act, apply the less onerous balance of probabilities test, and someone who feels they have been vilified can make a complaint and have it conciliated at the Commission before it becomes litigation,” Dr Byrne said.
The function of the Commissioner for Equal Opportunity was also something the Commission originally explored in its Review of the Equal Opportunity Act 1984 report published over 10 years ago in 2007.
“In the Remedies and Powers chapter of the 2007 report, the Commission explored amending the Act to be more like the NSW Anti-discrimination Act 1977 to facilitate the complaints handling process,” he said.
He said it would also be beneficial to frame the Act to be more like the Northern Territory Anti-Discrimination Act 1992, which addresses discrimination by making it unlawful to not accommodate the special need of a person with an attribute covered by the Act, in all areas.
Dr Byrne said the Commission would like inclusivity and equal opportunity to be forefront in the decision-making process of organisations in Western Australia.
“Currently organisations only need demonstrate they have considered accommodating persons on specific grounds when responding to a complaint of discrimination under the Act.
“Modern anti-discrimination legislation places an obligation on employers and service-providers to make reasonable adjustments at the outset, unless it would cause unjustifiable hardship,” Dr Byrne said.
Updates will be provided on the Equal Opportunity Commission website as to when the Law Reform Commission will accept public submissions for the review.
