❓ The Attorney General addresses concerns regarding the Equal Opportunity Act reform, specifically focusing on protections for LGBTQIA+ individuals in education and expanding harassment protections in workplaces, including Parliament, by tightening religious exemptions and removing the disadvantage test.
AnsweredQoN 515Legislative Assembly
QuestionView source ↗
EQUAL OPPORTUNITY ACT — REFORM
515. Mr S.N. AUBREY to the Attorney General:
I refer to the McGowan Labor
government's response to the Law Reform Commission's Review
of the Equal Opportunity Act 1984 (WA): Project 111 final report and its
commitment to rewriting this outdated legislation.
(1) Can the
Attorney General advise the house what this government's commitment to
strengthening anti-discrimination protections will mean for LGBTQIA+ teachers
and students?
(2) Can the
Attorney General outline to the house how these historic reforms will help make
all workplaces safe from harassment, including the Parliament?
515. Mr S.N. AUBREY to the Attorney General:
I refer to the McGowan Labor
government's response to the Law Reform Commission's Review
of the Equal Opportunity Act 1984 (WA): Project 111 final report and its
commitment to rewriting this outdated legislation.
(1) Can the
Attorney General advise the house what this government's commitment to
strengthening anti-discrimination protections will mean for LGBTQIA+ teachers
and students?
(2) Can the
Attorney General outline to the house how these historic reforms will help make
all workplaces safe from harassment, including the Parliament?
AnswerView source ↗
I thank the member for Scarborough
for his question.
(1)–(2) Under
the current act, we have the religious educational institutions employment
exception that, as we know, gave rise to a well-known case in which a Baptist
college in Waikiki took a teacher off its roster after coming out as gay.
Following the recommendations of the report, the exception was tightened so that discriminatory conduct can be lawful only in
situations in which conformity with the doctrines, beliefs or principles
of the religion is an inherent requirement of the job and the person cannot
meet that inherent requirement because of
their religious conviction and it is reasonable and proportionate in the
circumstances.
There is a three-limb test that sets
a very high bar. It mirrors those in Victoria, which recently came into effect
and are working well. Under this approach, schools will not be able to
discriminate when employing a geography teacher or a contract gardener, as
these jobs can be performed without conformity to the religion. Schools,
however, will still be empowered to discriminate where it is required in step
with maintaining the religious ethos—for example, if a religious
education teacher in a Catholic school converts to Judaism and is therefore
unable to faithfully teach Catholic doctrine. However, this exception is very narrow.
The act contains a separate religious
exception pertaining to students known as the provision of education exception. This exception will also be tightened
in line with the three-limb test so that schools can d iscriminate only
on the basis of religious conviction at the time of enrolment and only when it
conforms with the doctrines, beliefs or principles of a religion and it is
reasonably necessary to avoid injury to the religious susceptibilities of
adherents of the religion and it is reasonable and proportionate in the
circumstances.
I emphasise that we need to retain
some kind of provision of education exception to continue to allow same-sex
schools to discriminate in enrolling only boys or only girls, or to allow
religious schools to prioritise enrolments to students of that religion.
However, a school will face an impossible task trying to convince the Equal
Opportunity Commission that it is lawful to ban a little girl from its school
because her dad is gay.
I now turn to the provisions
expanding the prohibition against sexual and racial harassment to members of
Parliament and parliamentary staff, judicial officers and court staff, local
government councillors and staff, and unpaid
or volunteer workers. Under the current wording of the act, there is arguably a
requirement for an employment relationship to exist in order to sustain
a claim of sexual harassment. That is because the outdated disadvantage test
requires claimants to demonstrate they were disadvantaged by rejecting an
unwanted advance. Many Parliament and court staff are not directly employed by
the people they work around and are often subordinate to and, therefore, are
unable to demonstrate this disadvantage.
The accusations against former High
Court Judge Dyson Heydon and various relationships revealed by the Four
Corners episode ''Inside the Canberra Bubble'' have thrown
into focus the often indirect nature of these employment arrangements. As
members know, we are getting rid of the disadvantage test so that the indirect
employment relationships that exist in Parliament and courts will no longer be
an impediment to a successful harassment claim. Under the new act, it will be
expressly clear that sexual harassment provisions should protect members of
Parliament and parliamentary staff, judicial officers and court staff.
Since I tabled the report yesterday,
at least one media outlet has identified that the woman whose chair was sniffed
by former member Troy Buswell had no recourse to a sexual harassment claim
because she, as a staffer, was not directly employed by him. The commonwealth
Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 extended
the Fair Work Act and Sex Discrimination Act to members of Parliament, judges
and public servants, meaning there is currently an avenue for complaint to
commonwealth discrimination bodies. The Law Reform Commission found it would be
appropriate for this to be adopted at the Western Australian level, and we will
do so.
This report is the culmination of
extensive consultation with WA's education sector, including Christian
colleges, Christian Schools Australia, the Anglican Schools Commission and the
Independent Education Union of Australia. The report was itself informed by 995
submissions from a wide range of stakeholders, including anti-discrimination
bodies, religious entities, humanitarian groups, the academic community and
individual citizens. I note that it has the early support of the Law Society,
the public and others, and I very much look forward to bringing a bill to this
chamber. I thank the member for his question.
for his question.
(1)–(2) Under
the current act, we have the religious educational institutions employment
exception that, as we know, gave rise to a well-known case in which a Baptist
college in Waikiki took a teacher off its roster after coming out as gay.
Following the recommendations of the report, the exception was tightened so that discriminatory conduct can be lawful only in
situations in which conformity with the doctrines, beliefs or principles
of the religion is an inherent requirement of the job and the person cannot
meet that inherent requirement because of
their religious conviction and it is reasonable and proportionate in the
circumstances.
There is a three-limb test that sets
a very high bar. It mirrors those in Victoria, which recently came into effect
and are working well. Under this approach, schools will not be able to
discriminate when employing a geography teacher or a contract gardener, as
these jobs can be performed without conformity to the religion. Schools,
however, will still be empowered to discriminate where it is required in step
with maintaining the religious ethos—for example, if a religious
education teacher in a Catholic school converts to Judaism and is therefore
unable to faithfully teach Catholic doctrine. However, this exception is very narrow.
The act contains a separate religious
exception pertaining to students known as the provision of education exception. This exception will also be tightened
in line with the three-limb test so that schools can d iscriminate only
on the basis of religious conviction at the time of enrolment and only when it
conforms with the doctrines, beliefs or principles of a religion and it is
reasonably necessary to avoid injury to the religious susceptibilities of
adherents of the religion and it is reasonable and proportionate in the
circumstances.
I emphasise that we need to retain
some kind of provision of education exception to continue to allow same-sex
schools to discriminate in enrolling only boys or only girls, or to allow
religious schools to prioritise enrolments to students of that religion.
However, a school will face an impossible task trying to convince the Equal
Opportunity Commission that it is lawful to ban a little girl from its school
because her dad is gay.
I now turn to the provisions
expanding the prohibition against sexual and racial harassment to members of
Parliament and parliamentary staff, judicial officers and court staff, local
government councillors and staff, and unpaid
or volunteer workers. Under the current wording of the act, there is arguably a
requirement for an employment relationship to exist in order to sustain
a claim of sexual harassment. That is because the outdated disadvantage test
requires claimants to demonstrate they were disadvantaged by rejecting an
unwanted advance. Many Parliament and court staff are not directly employed by
the people they work around and are often subordinate to and, therefore, are
unable to demonstrate this disadvantage.
The accusations against former High
Court Judge Dyson Heydon and various relationships revealed by the Four
Corners episode ''Inside the Canberra Bubble'' have thrown
into focus the often indirect nature of these employment arrangements. As
members know, we are getting rid of the disadvantage test so that the indirect
employment relationships that exist in Parliament and courts will no longer be
an impediment to a successful harassment claim. Under the new act, it will be
expressly clear that sexual harassment provisions should protect members of
Parliament and parliamentary staff, judicial officers and court staff.
Since I tabled the report yesterday,
at least one media outlet has identified that the woman whose chair was sniffed
by former member Troy Buswell had no recourse to a sexual harassment claim
because she, as a staffer, was not directly employed by him. The commonwealth
Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 extended
the Fair Work Act and Sex Discrimination Act to members of Parliament, judges
and public servants, meaning there is currently an avenue for complaint to
commonwealth discrimination bodies. The Law Reform Commission found it would be
appropriate for this to be adopted at the Western Australian level, and we will
do so.
This report is the culmination of
extensive consultation with WA's education sector, including Christian
colleges, Christian Schools Australia, the Anglican Schools Commission and the
Independent Education Union of Australia. The report was itself informed by 995
submissions from a wide range of stakeholders, including anti-discrimination
bodies, religious entities, humanitarian groups, the academic community and
individual citizens. I note that it has the early support of the Law Society,
the public and others, and I very much look forward to bringing a bill to this
chamber. I thank the member for his question.
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