Reportable conduct scheme in WA

Published on:
Friday, 14 October, 2022
Employee Relations

Reportable conduct scheme in WA

Further to our update on the Reportable Conduct Scheme in ER Alert 8 / 2022, the Parliamentary Commissioner Amendment (Reportable Conduct) Bill 2021 (PCA Bill) which established a Reportable Conduct Scheme in WA was given Royal Assent on 19 August 2022. The Reportable Conduct Scheme will not commence operation until proclaimed.

The PCA Bill will establish a Reportable Conduct Scheme in Western Australia that will compel heads of organisations to notify allegations of, or convictions for, child abuse by their employees to the Ombudsman and then investigate these allegations. The investigations will be supervised and reviewed by the Ombudsman Western Australia. The Ombudsman Western Australia has published an Information Sheet about the PCA Bill.

The Ombudsman Western Australia has advised that the scheme is now in the implementation stage. We understand that the Ombudsman Western Australia will undertake a consultation process regarding the implementation of the scheme and develop resources and offer training about the scheme.
We will update the sector as the process develops.

Proposed changes to working with children legislation 

The Working with Children (Criminal Record Checking) Amendment Bill 2022 (WWC Bill) passed through the Legislative Assembly on 20 September 2022 and was introduced into the Legislative Council on 21 September 2022.
The Bill, if passed, will address certain key recommendations of the Working with Children Checks Report of the Royal Commission into Institutional Responses to Child Sexual Abuse, and other high priority matters. The reforms are aimed to strengthen protections for children in WA, from harm from people who work with them.

Further information is available:

  • On the Working with Children Check website, where you can also access an Overview of the Working with Children (Criminal Record Checking) Amendment Bill 2022 and a Frequently Asked Questions (FAQs) document. Questions 5.3, 5.6 in the FAQs will be relevant for Local Government employers.
     
  • On the WA Parliament website, where you can find the WWC Bill, its Second Reading Speech and Explanatory Memorandum, and a marked-up version of the Working with Children (Criminal Record Checking) Act 2004 which shows the Bill’s proposed changes.
     
  • From the Minister for Child Protection, the Hon Simone McGurk MLA, in her Media Statement in relation to the WWC Bill.

If you have any questions in relation to the WWC Bill, you can direct them to WWCReforms@communities.wa.gov.au.

Update on the modernisation of the Equal Opportunity Act 1984 (WA)

The Equal Opportunity Act 1984 (WA) (EO Act) prohibits, discrimination based on several protected attributes in the workplace, including:

  • sex, marital status, pregnancy or breastfeeding, and prohibits sexual harassment
  • gender history
  • family responsibility or status
  • sexual orientation
  • race, and prohibits racial harassment
  • religious or political conviction
  • impairment
  • age. 

In 2019 the Law Reform Commission of Western Australia (LR Commission) commenced a review to consider whether there is a need to enhance and update the EO Act. The resulting report – Project 111 Final Report – Review of the Equal Opportunity Act 1985 (WA) (Report) was tabled in Parliament by the WA Attorney General in August 2022.
 
The Report contains 163 recommendations. It was observed that the EO Act is 38 years old and that, although it was at the forefront of anti-discrimination law in Australia, almost every other Australian jurisdiction has undergone a review process to ensure their equal opportunity legislation better reflects modern society.
 
The WA Government has said it broadly accepts most of the recommendations in the Report and that the next step is to draft a Bill to amend the EO Act to bring WA into line with the rest of the country.
 
Some recommendations specifically relate to Local Governments. The WA Government has confirmed that the upcoming amendments will apply to Local Governments (as a protected area of public life) and will include stronger protections for Local Government councillors and employees. An exemption for acts done by one councillor towards another councillor on the grounds of political conviction has also been recommended. See recommendation 61 to 63 and 91 in the Report for further information.
 
Other relevant recommendations in the Report include:

  • Defining of direct and indirect discrimination
  • Expanding the list of protected attributes to apply to:
    • accommodation status
    • employment status
    • gender identity (which includes trans, gender-diverse and non-binary gender identities)
    • industrial, trade union or employment activity
    • irrelevant criminal and medical record
    • lawful sexual activity
    • physical features – excluding participation in dramatic performance or other entertainment and artist’s or photography models
    • sex characteristics – meaning physical features relating to sex
    • subjection to domestic or family violence
    • personal association (whether as a relative or otherwise) with a person is identified by reference to another protected attribute
  • Reversing the burden of proof so that the respondent is required to establish their conduct did not constitute unlawful discrimination if a complainant can meet an accepted case of discrimination
  • In respect of sexual harassment and racial harassment:
    • Removing the “disadvantage test” which includes a requirement that the conduct results, or the harassed person reasonably believes that it will result, in disadvantage
    • Extending the prohibition to all areas of public life, including to Local Governments and to unpaid or volunteer workers
  • Introducing a legislative positive responsibility to make reasonable adjustments (except in cases of unjustifiable hardship)
  • Imposing a positive duty which requires a duty holder to take reasonable and proportionate measures to minimise discrimination, harassment, victimisation and vilification
  • Increasing the powers of the Equal Opportunity Commission (EOC), including to:
    • Investigate breaches of the positive duty and enforcing compliance
    • Investigate matters within the scope of the EO Act on its own motion
    • Tailor the dispute resolution process to the nature of the dispute
  • Increasing the time limit for making claims to 24 months with the EOC having the discretion to accept out of time applications
  • Removing the $40,000 compensation cap or, if it is retained, increasing the cap.

As this modernisation process develops, WALGA Employee Relations will provide further updates via our ER Alerts.
 
Further information can be obtained via:

If you have any questions about this alert, please email WALGA Employee Relations or call 1300 366 956

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