State School Teachers Union WA (Incorporated)

Submission to the
Public Sector Commission Review of the
Equal Opportunity Commission WA
March 2014
Pat Byrne, President
State School Teachers Union of W.A. (Inc.)

PO Box 6140,
East Perth WA 6004
Telephone: (08) 9210 6000
Facsimile: (08) 9210 6001
Web: www.sstuwa.org.au
E-mail:enquiries@sstuwa.org.au

Contents
Introduction .............................................................................................. 2
Executive summary ................................................................................. 3
Methodology............................................................................................. 8
Breadth of EOC services used by the SSTUWA ................................ 11
Responses to Questions devised by the SSTUWA ........................... 12
Responses to Questions devised by the PSC ................................... 24
Other relevant matters external community engagement in regard
to this review .......................................................................................... 31

Introduction
The State School Teachers Union of WA (Inc.) has over 16,000 members across
Western Australia and represents teachers and other education based public sector
professionals (including school psychologists) in primary, secondary and special
schools, and TAFE lecturers. Approximately 75% of our membership is women and
we have 137 members who identify as Aboriginal or Torres Strait Islander. A high
proportion of our membership is also over the age of 50 1.
The SSTUWA accordingly takes the opportunity to make this submission to the
Public Sector Commission WA Review of the Equal Opportunity Commission in WA.
This submission will make general observations around the issues outlined in the
Reviews Terms of Reference, provide specific comments and draw conclusions and
recommendations.
An executive summary is also provided.

Over 7000 of our members are over the age of 50.

Executive summary
Overarching themes in our review:
That the Equal Opportunity Commission (EOC) WA maintains independence,
and an enhanced focus on the elimination of systemic discrimination.
That the physical location of all services provided for by the Equal Opportunity
Commissioner, under the Equal Opportunity Act 1984 be in one central place,
as far as practicable, within Western Australia and under the auspices of the
WA EOC.
That community engagement is required by the EOC to ensure the dignity of
the objectives of the Equal Opportunity Act 1984 in regard to the elimination of
discrimination is best fulfilled. A contemporary model of effective community
engagement which is likely to result in systemic change is the Challenging
Gender and Sexuality Based Bullying in Schools Project which incorporated
the public and independent school sector. The processes involved in this
model are worth further consideration for the future, in targeting other hot
spots of discrimination.
Discrimination has not been eliminated: however, we note with concern that a
decision has been made in 2013 and outside of this current review process, to
abolish the substantive equality unit this year. We are unaware of any reasons
for this decision. Nevertheless we believe that it should not be assumed that
equality has been achieved.

Recommendations
The EOC currently delivers a broad range of services within its existing limited
budget fairly efficiently and effectively. We do not believe that the public interest or
the objects of the EO Act is served by decreasing the overall budget for the EOC.
Recommendation 1: That the overall budget for the EOC is maintained and any
increases in the budget must, at a minimum, be indexed to WA CPI.

There was an inherent and largely unquantifiable benefit identified and expressed
about having as much of the EOCs services as possible delivered and managed
within the auspices of an independent EOC.
Recommendation 2: That there should be a stand-alone EO Commission for
discrimination matters in WA.

There was a need identified for the EOC to provide greater clarity to potential
complainants about the differences between the State and Federal jurisdictions.
Benefit would be derived from collaboration between the Australian Human Rights
Commission (AHRC) and the EOC in the publication of jointly agreed materials that
spell out for potential complainants the key differences between the jurisdictions so
that they can make informed choices based on consistent and agreed information.
Recommendation 3: That the EOC provide greater clarity to potential complainants
about the differences between the State and Federal jurisdictions in collaboration, as
far as possible, with the Australian Human Rights Commission (AHRC) in the
publication of jointly agreed materials. Amongst other things, such information should
include information comparing (with regard to each ground of discrimination), the
following:
where the burden of proof lies i.e. complainant or respondent;
relevant limitation periods for the lodgement of complaints;
the potential for orders for one side to pay the other sides legal costs;
whether limits exist for compensation to be awarded or if there is no
cap;
a comparative analysis of the respective processes in each jurisdiction;
whether each jurisdiction covers state public servants and public sector
employees in claims against their employer or whether the State
jurisdiction has exclusive coverage; and
any other relevant comparative information;
Further we recommend that this information be provided in accessible formats, such
as in different languages and formats for the differently abled.
The SSTUWA is of the view that there is more scope for the EOC to continuously
engage with the community in the identification of discrimination hot spots and the
planning of proactive strategies, in consultation with key stakeholders in both the
public and private sectors, to eliminate discrimination.
Recommendation 4: The structure of the EOC needs to be more appropriately
aligned with a community development function aimed at the EOC core function of
the elimination of discrimination.
The SSTUWA decided to focus on the Challenging Sexuality and Gender Based
Bullying in WA Schools project in our submission as it is an example of a community
based project spanning the public and private sector which we have been
enthusiastically engaged in. This project has the potential to transform the
educational landscape for students, teachers, parents and administrators in a very
positive way. In our consultations we received much positive feedback about the
work the EOC has undertaken in this area. This project is, in our view, an extremely

good contemporary example of proactive community engagement aimed at

eliminating discrimination in this core area in education.
The EOC has been able to do what no government department has done or has
considered doing, by tackling these issues together, via a consensus model across
the public and private sector. This is very important and very serious work aimed at
protecting vulnerable students and young people and it needs to be supported,
continued and promoted positively.
Recommendation 5: That the EOC continue to facilitate projects that bring together
relevant community groups, in the public and private sector, in proactive strategies to
eliminate discrimination via consensus.

The EOC law review power relies on the Minister referring this task to the
Commissioner. Our Union could not think of a single contemporary example where
this had occurred (or find an example) and we thought this function should be utilised
from time to time, particularly in areas where discrimination has been prevalent.
Notwithstanding this, the EOC has embraced a clear role in advising on subsidiary
documents (such as policies, guidelines, codes etc.).
Recommendation 6: That this review assess whether the WA Parliament is using
the EOC appropriately in regard to law review matters, particularly in regard to laws
affecting segments of the community most likely to face discrimination.

We note that proving indirect discrimination is highly onerous for complainants under
the EO Act and in the public sector it is almost impossible, in many cases, as
appropriate data is not kept in order to support potential claims.
Recommendation 7: That the review focuses on mechanisms to tackle systemic
discrimination as an embedded function of the EO Act noting the decision to abolish
the Substantive Equality Unit outside the formal review process of the EOC.

The independence of the EOC was highly valued in all consultations undertaken. If
anything, independence was the key value most highly regarded by the SSTUWA in
our consultations. This is because an effective human rights agency must be totally
independent in order to be fearless in criticising anyone in the public or private sector
in the advocacy of human rights.
Recommendation 8: That the independence of the EOC operating in the public and
private sector be protected and maintained in any review, as this is integral to the
effectiveness of the EOC as a human rights agency.

The values of accountability and transparency were also highly regarded in the
SSTUWA community.
Recommendation 9: That the review of the EOC maintain the values of
accountability and transparently as imbedded values of the agency.

The State Administrative Tribunal (SAT) has a practice of mediation in that

jurisdiction. This means that the overwhelming majority of EOC matters referred to
the SAT have two alternative dispute resolution processes, i.e. conciliation under the
auspices of the EOC as well as mediation under the auspices of the SAT. It is our
view that the EOC is far more aligned with the function of alternative dispute
resolution given the overall powers of the EOC Commissioner.
Recommendation 10: The practice of the SAT, in undertaking an additional
alternative dispute resolution (ADR) process for matters referred by the EOC
Commissioner and/or individual complainants, needs to be assessed. Further
investigation needs to be undertaken to determine whether the duplication of ADR
(alternative dispute resolution) by the SAT, is an overall cost or benefit, in the
resolution of EO complaints.
There are significant and largely unquantifiable benefits that flow from promoting
equality. The most obvious are benefits to individuals in the community who are able
to live and work in a relatively harmonious environment. However, it is worth noting
that there are significant effects on the WA economy that are largely under the
radar until adverse claims are made that affect our standing in the international
community.
Recommendation 11: That in evaluating the work and effect of the EOC, the review
recognises that the EOC has contributed to the promotion of WA as a fairly safe
place, relatively safe from unlawful discrimination within the global environment. This
in turn has positive consequences for the standing of the WA economy in the
international community which should not be underestimated as it serves to promote
WA as a safe place to do business, study, work, go on holiday and much more.
All the services mentioned in the fourth question provided by the PSC are integral to
an integrated approach to promoting equality and eliminating discrimination. These
functions all logically flow from the objects of the Act and the EO Commissioners
functions and should not be devolved from that agency.
Recommendation 12: That the PSC recognise in this review, as a matter of
principle, that any devolution of functions (both government and non-government)
within the EOC would be contrary to a reasonable interpretation of the overall objects
of the Act and functions of the EO Commissioner, particularly in regard to
maintaining the integrity and independence of those functions.

The important functions contained in section 143 of the Equal Opportunity Act 1984,
which relate to the Director of Equal Opportunity in Public Employment in the public
sector, are not sufficiently protected by the PSC which has the power to override the
Equal Opportunity Act 1884 in respect of the public sector. Our recommendations
facilitate a more accountable, transparent and autonomous delivery of the functions
of Director of Equal Opportunity in Public Employment. It will enable to PSC to take
independent advice in regard to their obligations under section 8 (1) (d) of the Public
Sector Management Act 1994 and improve governance in this important area.
Recommendation 13: The functions of DEOPE should be performed by the agency
itself, with its own budget and resources. It is imperative that this Human Resource
agency servicing the public sector be stand-alone, independent and well resourced.
The present situation is incongruent with this standard.
It is worth noting that the abolition of the Substantive Equality Unit (SEU) within the
EOC, (which will take effect shortly) - directly cut public funding out of measures
intended to achieve equality, in the public sector. This is because the work of the
SEU was specifically targeted in the public sector 2. Redirecting these resources into
a stand-alone agency of Director of Equal Opportunity in Public Employment will go
some way to reinvesting money into systemic work, addressing discrimination and
promoting equality in the public sector. As a union representing public sector
employees in the education sector, we are of the view that there is still a lot of work
to do in this regard, particularly in regard to systemic discrimination.
Recommendation 14: The savings from the abolition of the Substantive Equality
Unit should be channelled into a stand-alone, independent and well-resourced
agency of the Director of Equal Opportunity in Public Employment.

It is worth also noting that the SEU dealt primarily with one ground of discrimination, race.

Methodology
The SSTUWA has discussed the terms of reference for the review and sought
feedback from key segments of our membership who are most likely to engage with
or rely upon, the work of the Equal Opportunity Commission (EOC) in a range of
meetings in order to obtain key stakeholder feedback for this submission.
SSTUWA membership segments specifically targeted for feedback include:
Aboriginal and Torres Strait Islander Education Committee
B LeGits (a committee representing bisexual, lesbian, gay, intersex and
transgender teachers and their supporters)
School Leaders Council (representing school administrators, including
Principals, Deputy Principals and Heads of Learning Areas)
Womens Committee
SSTUWA Executive
SSTUWA Senior Officers
We consulted further with our internal staff to capture the breadth of services used
by our organisation to assist our members, receive feedback about access to those
services, and the effectiveness of the organisational structure of the EOC.
We have also consulted and engaged with external organisations in the community
sector representing segments of the community more likely to access the EOC.
Concern about the possible outcome of the review was expressed in the context of
budget cuts in the public sector generally and as a consequence the SAMETO
Community Alliance was formed. SAMETO stands for Some are more equal than
others. The alliance has formed around key values that are shared and a desire to
protect those values in the EOC3.
In addition, we have undertaken a review of relevant legislation and contemporary
commentaries as well as information publically provided in a range of annual reports
for the various organisations included in this review.
What was discussed?
In our discussions, the 5 questions put by the Public Sector Commission (PSC) were
discussed, as well as another 10 additional questions relevant to the review4. We
3

It should be noted that SAMETO has arisen as a response to the Substantive Equality Unit being removed and
the EOC review being foreshadowed by the Attorney General. SAMETO has concerns that the review will
weaken the power and effectiveness of the EOC.
4
The SSTUWA made a decision that we would ask additional questions that we thought were relevant to the
review that were not asked by the Public Sector Commission.

also discussed the breadth of services used in the EOC and obtained feedback
about those services.
The additional relevant questions devised by the SSTUWA are listed below for your
benefit. These questions overlap to some extent with those raised by the PSC for
this review.
Question 1
Do you think the overall EOC budget is relatively small or large for what they
deliver5?
Question 2
Is there value in having a WA based stand-alone Commission for discrimination
matters under state laws?
Question 3
Is there value in having a WA based stand-alone Commission for discrimination
matters which includes federal and state laws?
Question 4
Do we think that the elimination of discrimination under the EO Act can be primarily
reliant on complaint driven processes?
Question 5
What scope is there for more effective and proactive community engagement in the
promotion of the elimination of discrimination?
Question 6
What do we think of the EOC Schools project 6?
Question 7
Do we think that the EOC should have a bigger role in law review matters as it is a
Commissioner function? (Section 80 (d), 81 and 82)

Note: As at 30 June 2013, the EOC comprised 28 FTE staff and it has a budgetary appropriation for 2013/14 of
$3.86 million. This will decrease because the Substantive Equality Unit has been abolished this year.
6
Note: The EOC Schools project was shorthand for the official title of a project called the Challenging
Sexuality and Gender Based Bullying in WA Schools.

Question 8
Is there more work to do tackling systemic discrimination?
Question 9
Do we value the independence of the EOC?
Question 10
Is the EOC accountable and transparent?

10

Breadth of EOC services used by the SSTUWA

It is clear that a very broad range of services provided by the EOC have been used
and continue to be accessed by our members, our organisation and our staff. These
include the following:
Participation in EOC training7
Attendance at International Womens Day (IWD) breakfast forums 8
Information from the legal section from time to time, particularly with regard to
potential indirect discrimination against segments of our membership
Conciliation services as a result of member complaints
General information in regard to discrimination matters from sources such as
the EOC website
Participation in projects aimed at the elimination of discrimination, such as the
Challenging Sexuality and Gender Based Bullying in WA schools
EOC Commissioner as a key note speaker at our State Council Conference 9
Referral of union members to the EOC enquiry line
Attendance at special lectures10
Union staff accessing the EOC enquiry line
Presentation and provision of information to union affiliate organisations, such
as Unions WA.
Specific hot spot issues targeted in schools in the Bunbury and Narrogin
areas to provide support and information on the grounds of discrimination. For
example, in Narrogin support in the area of racial discrimination and racially
based bullying was provided, in order to deal with issues in the community.

SSTUWA records indicate that since 2006, 13 training courses have been attended by staff in the Union.
Courses attended include: Developing and Maintaining Workplace Culture; Equal Opportunity Law for
Practitioners; Workplace Bullying; The Contact officer Role EEO and the Grievance Course. The SSTUWA
pays to attend this training run by the EOC. Feedback about the training has been positive with participants
stating the training had added value to their day to day work. Attendance is usually at the EOC office in the city
which is easily accessible to our staff.
8
This year 10 people from the SSTUWA attended the IWD breakfast.
9
Ms Yvonne Henderson, Commissioner for Equal Opportunity (until 27 June 2013) attended a SSTUWA State
Council, and addressed delegates on the issue of the Challenging Sexuality and Gender Based Bullying in WA
Schools Project. This took place in June 2012. Ms Hendersons presentation was well received at our State
Council conference and each delegate received a pack of information and facts sheets. State Council is the
supreme decision making body of the Union. We understand that Ms Henderson also addressed the WACSSO
conference on the same issue during her time as Commissioner in around June 2012. WACSSO is the WA
Council of State School Organisation. We understand that Ms Henderson was also well received at this
conference.
10
For example, last year several staff attended a lecture on Reconciliation as well as the inaugural Isabelle Lake
Memorial Lecture.

11

Responses to Questions devised by the SSTUWA

Question 1 - Do you think the overall EOC budget is relatively small or large for
what they deliver?11
Overall feedback was surprise at the quality and quantity of services delivered with
such a small budget. There was a strong view that the EOC does a magnificent job
with the limited resources allocated by the State Government. There was not a
segment of our membership, or a view internally within the organisation, to the
contrary that was communicated during our consultation process. In saying this,
there was a clear acknowledgement that the work of the EO Commission is far from
complete and that WA had a long way to go in order to eliminate discrimination.
There was a consistent concern that any decrease in the budget would lead to a
corresponding increase in the time it took to process complaints within the EOC. This
would most likely, lead to a more inefficient and less effective process for
complainants because of the increased likelihood of lengthy delays. We note that
over the years the time it has taken to resolve complaints within the EOC has
decreased and we believe strongly that it would be a step backwards for this trend to
be reversed.
It is our view that any increase in the time it takes to resolve complaints would
ultimately act as a disincentive to engage in the EOC complaint handling process
and this in turn would lead to less complaints. Further, a decrease in complaints in
this context may wrongly signify that discrimination is no longer still a significant
issue in Western Australia and potentially hide the problem. This is not in the public
interest. On this basis, it is our view that the current budget should not be reduced
and there should be certainty for the EOC that their budget will at a bare minimum,
be indexed to WA CPI.
Recommendation 1: That the overall budget for the EOC is maintained and any
increases in the budget must at a minimum, by indexed to WA CPI.

Question 2 - Is there value in having a WA based stand-alone Commission for

discrimination matters under state laws?

11

NOTE: As at 30 June 2013, the EOC comprised 28 FTE staff and it has a budgetary appropriation for 2013/14
of $3.86 million. This will decrease because the Substantive Equality Unit has been abolished this year.

12

There was a consistent response to this question amongst all segments we

consulted. This response was yes.
There was an inherent and largely unquantifiable benefit identified and expressed
about having as much of the EOCs services as possible delivered and managed
within the auspices of an independent EOC based in Western Australia12. This
expectation expressed by the SSTUWA is consistent with a logical reading of the EO
Act and what appears to us to be the expectation of the WA Parliament at that time
the legislation was enacted.
Recommendation 2: That there should be a stand-alone EO Commission for
discrimination matters in WA.
Question 3 - Is there value in having a WA based stand-alone Commission for
discrimination matters which includes federal and state laws?
There was a significant discussion and confusion about how this would work and an
overall conclusion that each jurisdiction is created under the laws of the respective
State and Federal Government and that each jurisdiction was best managed by their
respective governments and could be more appropriately held accountable to the
level of government they were created by.
There was recognition in regard to an overlap with many grounds of discrimination in
the Federal and State jurisdiction; however this was not in and of itself a problem as
it provided complainants with choice of jurisdiction. We note that the overwhelming
majority of discrimination complaints lodged in WA are managed by the EOC and
lodged under the EO Act.
There was however, a need identified for the EOC to provide greater clarity to
potential complainants about the differences between the State and Federal
jurisdictions and that benefit would be derived from collaboration between the
Australian Human Rights Commission (AHRC) and the EOC in the publication of
jointly agreed materials that spell out for potential complaints the key differences
between the jurisdictions so that potential complainants can make better informed
choices based on consistent and agreed information. Amongst other things, such
information should include comparing (with regard to each ground of discrimination),
the following:
where the burden of proof lies, i.e. complainant or respondent;
relevant limitation periods for the lodgement of complaints;
the potential for orders for one side to pay the other sides legal costs;

12

It should be noted that there was a strong desire for the EOC to maintain all its functions in Western
Australia by all segments of our membership consulted, this was however notably the strongest in our
consultations with our Aboriginal and Torres Strait Islander Education Committee.

13

whether limits exist for compensation to be awarded, or if there is no

cap;
a comparative analysis of the respective processes in each jurisdiction;
whether each jurisdiction covers state public servants and public sector
employees in claims against their employer or whether the state
jurisdiction has exclusive coverage13; and
any other relevant comparative information.
Further we recommend that this information be provided in accessible formats, such
as in different languages and formats for the differently abled.
Recommendation 3: That the EOC provide greater clarity to potential complainants
about the differences between the State and Federal jurisdictions in collaboration, as
far as possible, with the Australian Human Rights Commission (AHRC) in the
publication of jointly agreed materials. Amongst other things, such information should
include a comparison of items listed in the dot points above and be provided in
accessible formats.

Question 4 - Do we think that the elimination of discrimination under the EO

Act can be primarily reliant on complaint driven processes?
The response to this question by all segments of the SSTUWA consulted was no.
It is clear that there is a community expectation the EOC will engage in
discrimination matters and promote equality, with a view to eliminating
discrimination. It was also felt that the proven perpetrators of discrimination should
be punished and that the complaint process was useful for this purpose; however the
capacity for financial redress in and of itself, would not eliminate discrimination,
although it surely discouraged discrimination. The complaint mechanism is clearly an
important function; however proactive strategies (such as education and policy
guidance) are also required to prevent discrimination in the first place.
The elimination of discrimination was thus seen as a key function.

Question 5 - What scope is there for more effective and proactive community
engagement in the promotion of the elimination of discrimination?
In general there is a view that there is more scope for the EOC to continuously
engage with the community in the identification of discrimination hot spots and the
planning of proactive strategies, in consultation with key stakeholders in both the

13

Unlike some other state governments, such as Victoria in the 1990s, the Western Australian State
Government has not referred its jurisdiction as an employer of public sector employees to the federal arena.

14

public and private sectors, to eliminate discrimination 14. We note that Section 80 of
the EO Act provides the EOC Commissioner with a range of useful and broad
independent powers that can be utilised in this ongoing community development
process.
This is particularly relevant and important where the segments of the population
affected by discrimination may be vulnerable and unlikely to use the complaint
process, this would include discrimination affecting young people as well as other
more disenfranchised segments of the population.
Although the WA Parliament has clearly foreseen the need for the EO Commissioner
to have wide ranging powers, the effectiveness of these powers needs to be backed
up by structures and funding resources in a forward planning process, to ensure that
proactive community engagement, advocacy, and the identification of discrimination
hot spots is an ongoing process embedded into day to day the functions of the EOC
and not perceived as an ad hoc adjunct to those functions that is undertaken from
time to time. Further, that this process results in positive outcomes aligned to the
EOC core function of eliminating discrimination. Without appropriate resourcing the
EOC has been curtailed in its effectiveness.
We note that the EOC does not have a clearly defined segment of employees in its
current organisational structure who have primary responsibility for this function
under the delegated authority of the EOC Commissioner. There is, however likely to
be some overlap in the Community Education Section of the EOC, particularly in the
area of rights based education, however education (whilst extremely important) is
only one of many elements of community development. In this area, it is our view
that the structure of the EOC needs to be more appropriately aligned with a
community development function aimed at the EOC core function of the elimination
of discrimination.
Special investigations have tended to be ad hoc. This is in our view, likely a product
of this function not being structurally incorporated and embedded into the
mainstream functions of the EOC. Rather, special investigations have been an
adjunct to the functions of existing staff from time to time. This is most likely a
product of the small budget allocation provided to the EOC. Notwithstanding this, the
lack of a structural incorporation of a community development function does not
provide certainty for the community about which section of the EOC they should
approach to discuss discrimination hot spots within the EOC, aside from the EOC
Commissioner directly.
Recommendation 4: The structure of the EOC needs to be more appropriately
aligned with a community development function aimed at the EOC core function of
the elimination of discrimination.

14

In order to improve the effectiveness of the EOC there could be a greater focus on community education,
the provision of information around equity rights more visibility and accessibility, including regional outreach.

15

Question 6 - What do we think of the EOC Schools project?

Note: The EOC Schools project is shorthand for the official title of a project
called the Challenging Sexuality and Gender Based Bullying in WA Schools.
The SSTUWA decided to focus on this project in our submission as it is an example
of a community based project spanning the public and private sector in which we
have been enthusiastically engaged. This project has the potential to transform the
educational landscape for students, teachers, parents and administrators in a very
positive way. In our consultations we received much positive feedback about the
work the EOC has undertaken in this area. This project is an extremely good
contemporary example of proactive community engagement aimed at eliminating
discrimination in this core area of education.
Interested parties from a cross section of the community were brought together
around a common desire to support the fundamental right of all children to feel safe
at school and to support schools in providing supportive environments for all
students. The EOC has facilitated the bringing together of relevant groups
concerning this very serious matter which is linked to the professional duty of care
teachers, school psychologists and school administrators have for all students. The
SSTUWA is aware that students have suicided as a result of gender based bullying
and harassment. There are also other effects, such as self-harm and the overall
health and wellbeing of students and the school community being adversely affected.
Anecdotally, our members who know teachers in private schools have advised us
that suicides have also occurred in the independent private sector 15.
The EOC has been able to do what no government department has done or has
considered doing, by tackling these issues together, via a consensus model across
the public and private sector. This is very important and very serious work aimed at
protecting vulnerable students and young people and it needs to be supported,
continued and promoted positively in our view.
The project began in 2010 when the EOC Training and Education Unit undertook a
consultation process with a range of key stake holders on the issue of gender and
sexually based harassment and discrimination in schools. Whilst bullying has for a
long time been on the mainstream agenda, it has only been in the last decade that
homophobic bullying in schools and its implications has received serious attention.
The EOC consultation process identified this form of bullying as a serious problem in
schools in Western Australia with the majority of those consulted identifying the need
for a project in order to develop a policy to systematically address gender and
sexuality based bully and discrimination as an urgent priority. 16
15

Please note, we have been advised via a committee consultation that self-harm by students has occurred in
this category (GLBTI&Q).
16
Report by Tiffany Jones Discrimination and Bullying on the grounds of Sexual Orientation and Gender
Orientation and Gender Identity in Western Australian Education.

16

The EOC then facilitated the establishment of a Steering Committee and a Working
Group:
Founding Members of the Steering Committee:
Anne Gisborne, State School Teachers Union of WA
Christine Porter, Department of Education
Craig Comrie, Youth Affairs Council of WA
Elizabeth Brennan, PFLAG
Graeme Quelch, WA Curriculum Council
Kathryn Barnes, Independent Education Union of WA
Kitty Hawkins, Gay and Lesbian Equality (GALE WA)
Malcolm Fialho, University of Western Australia
Mary Retel, Catholic Education Office
Nadine Toussaint, Gay and Lesbian Community Services Chairperson
Rob Nairn, WA Secondary School Executives Association
Rosemary Hudson-Miller, Uniting Church in WA
Sharon McBride, Department of Health - Child & Adolescent Community Health Policy
Stephen Breen, WA Primary Principals Association
Trish Langdon, WA AIDS Council
Valerie Gould, Association of Independent Schools of WA Inc.
Zoe Hyde, WA Gender Project Inc.

Founding Members of the Working Group:

Anjie Brook, Department of Education
Astrid Chapman, Relationships Australia WA
Bronwyn Croghan, State School Teachers Union of WA
Dani Wright, Freedom Centre
Diana Alteri, Catholic Education Office
Isabelle Lake, WA Gender Project Inc.
John Wilson, PFLAG
Kris Stafford, WA Curriculum Council
Kristofer Doherty, WACCSO
Melissa Gillett, WA Secondary School Executives Association
Michelle Bishop Association of Independent Schools of WA Inc
Olivia Knowles, Youth Affairs Council of WA
Sandra Norman Gay and Lesbian Community Services
Vicki Barry, Uniting Church in WA (True Colours)

As demonstrated above in the list of founding members, the SSTUWA became a

member of a Steering Committee and a Working Group formed by the EOC.
The purpose of the Steering group is to develop a coordinated and coherent strategy
across public and independent schools to systematically address gender and
sexuality based bullying and discrimination experienced by students using best
practice models.

17

The purpose of the Working Group is to carry out a range of tasks at the direction of
the Steering Committee to support the development of a coordinated and coherent
strategy across public and independent schools.17 This will enable schools to
systematically address gender and sexuality based bullying and discrimination
experienced by students. This Committee meets monthly.18

17

The Steering Committee identified the following Working Group tasks:

1.

A summary and analysis of policies, strategies and programs which are available interstate and in WA to address
gender and sexuality based bullying and discrimination in school communities including students, parent/s and
staff;

2.

Review models of implementation, identify best practice and make recommendations to the Committee for their
consideration. This may include investigating what Professional Development is available for Principals and
Teachers in other States

3.

Develop submissions in response to calls for consultation from ACARA

4.

Review the Australian National Professional Standards for Principals, teachers (Australian Institute for Teaching and
School Leadership) in order to identify opportunity for elaboration of these standards

5.

Consider how young people in schools could be engaged or motivated to assist in the process of awareness raising
in schools

6.

Identify experts ( e.g. Donna Cross Edith Cowan University) who could be contacted to provide information about
the situation in WA

7.

Identify opportunities to raise awareness through various forums ( e.g. Principals or P&C conferences)

8.

Make contact with the Australian Institute of School Leaders to request information that may be relevant to WA

9.

Identify opportunities for joint education and training of staff and constituents of member organisations and other
relevant stakeholders;

10. Other
18

Terms of reference

Title
The name shall be Working Group on Addressing Gender and Sexuality Based Bullying and Discrimination in Schools.
Background
During 2010, the Equal Opportunity Commissions Training and Education Unit consulted with a range of key stakeholders on the issue of
gender and sexuality based harassment and discrimination in schools.
Anecdotal evidence from the consultation identified that gender and sexuality based harassment and discrimination in schools remains a
serious problem for students in Western Australia. This is consistent with the most current national research findings.
The most common place of abuse remained school with 80% of those who were abused naming school. This continues the trend of
increased levels of reported homophobic violence in schools (69% in 1998; 74% in 2004) and may, in part, be the result of more SSAGQ
young people being out and visible18
The majority of those consulted during the Equal Opportunity Commissions consultation identified the need to systematically address
gender and sexuality based bullying and discrimination in schools as an urgent priority.
At a meeting of representatives of those consulted, participants recommended that a Working Group be formed to conduct a range of
tasks at the direction of the Steering Committee.

18

This was one key area where there was seen to be great value in utilising a
community based framework to work with key stakeholders in the public and private
sector to build consensus around important issues of discrimination. Whist work in
this area has not been completed; we acknowledge that it is very close to
completion.
It has been extremely disappointing that an article appeared on the front page of the
Sunday Times newspaper on 9th February 2014 which sensationalised this matter
and has had a negative effect on the profile and the work the EOC has co-ordinated.
The article was ill informed, has caused confusion in the community, and has had
the effect of delaying the conclusion of the guidelines - from our perspective.

Testimonials about this project

Anne Gisborne, immediate past President of the State School Teachers Union
of WA
The SSTUWA has had a long history in supporting and promoting anti-discriminatory
policy and practice within its own organisation and in the workplaces of its members.
The invitation to participate in a project targeted at addressing discriminatory
behaviours within school communities, and with a specific emphasis on school
students, was accepted with anticipation. The evidence that there was a particular
need to address issues of discrimination against students who were struggling to find
their sexual identity, or were being bullied because their sexual identity was other
than hetro-sexual, was compelling. A key message to be understood was that this
bullying is a form of discrimination.
Depression, suicide ideation, suicide, absenteeism, self-harm and use of illegal
substances and alcohol were some of the consequences identified with gender and
sexual orientation bullying evident in W.A. schools.
For many students the issues they confronted had to be undertaken alone as
disclosure at home was from their perspective impossible and the school community
had no recognisable point of contact. The silence surrounding these students was
deafening, we discovered.
The particularly appealing aspect of the EOC invitation was the proposal to work
across the education sectors (public, catholic and independent) and alongside
Purpose
The purpose of the Working Group is to carry out a range of tasks at the direction of the Steering Committee to support the development
a coordinated and coherent strategy across public and private schools to systematically address gender and sexuality based bullying and
discrimination experienced by students in schools.

19

various non-government agencies and groups who provided support for children and
young adults.
The EOC led, facilitated and supported the Steering Committee to evolve its
understanding of the issues and to explore ways we could address the needs of
these vulnerable students. The Steering Committee was supported by a working
group.
Significant work was achieved in the development of a set of support materials for
schools (teachers), students and parents to assist with the building of constructive
and supportive environments to address understandings of students dealing with
gender and sexuality matters and to attend to any evidence of associated bullying.
Professional development and awareness raising events have been held in a
number of schools. Resources have been identified and developed. The education
sectors have been encouraged to be more explicit in direction to and support for
schools in understanding the issues and developing a culture of action, intervention
and acceptance.
On a positive note, awareness and understanding is growing, but much more could
and should be done to support school communities recognise this brand of
discrimination, to be proactive in calling it for what it is and constructive in building a
non-discriminatory culture.
Further work is still required to develop resources and to upskill teachers. There is a
void in support for parents and families of young people who are forming their own
understanding of their sexuality. Many are confused, angry and worried. Young
people find themselves caught between home and school without a safe haven.
The work of the EOC through the Steering Committee appeared to be a bit of a light
on the hill, a beacon of hope for teachers struggling to get these issues on the table
and young students waiting for a door to open.
Yes, this matter is of sensitivity in many quarters, but if we fail to build on the
momentum of the Steering Committees work, on the conscience of our Government,
our community and our schools will be whatever detriment falls on the vulnerable
youth we may abandon.
Advocacy of the nature played out by the EOC through the Steering Committee is
one strategy we should see played out again and again by a strengthened EOC, as it
plays a proactive and educative role against discriminatory behaviour. The EOC,
with continued Government support, can and should build upon its authority.

Robyn Parker, Student Services Manager at Bunbury SHS from 2009 until April
2012.
20

As Student Services Manager at Bunbury SHS from 2009 I was responsible for the
management of behaviour of 750 students. Under my management were five year
coordinators, the school Chaplain, Nurse, School Psychologist and three school
officers.
In the performance of my role I found that one of the most prevalent and pervasive
behaviours to manage was bullying. I had researched a number of strategies to
address this behaviour and was actively using them as was appropriate.
Towards the middle of 2010 I was invited to attend a meeting that was organised by
the True Colours Project Coordinator, Helen Robinson. At that meeting were
representatives from a number of agencies, including schools. Helen gave a
presentation on:
1) The role of True Colours
2) Raised our awareness of current research into the number of lesbian, gay, bisexual, transvestite, intersex and questioning (LGBTI & Q) students in schools
3) Homophobic language used in schools
4) The impact and occurrence of homophobic bullying
She then sought expressions of interest from those present to form a reference
group to address the issues raised.
As the occurrence and impact of bullying was an area I wished to address in the
school, at a later meeting with my Principal I provided a prcis of Helen's
presentation and asked if we could use the resources offered by Helen. The
Principal was quite nervous about having a specific focus that addressed the issue of
LGBTI & Q students in school but was quite happy to have the matter addressed in
the context of bullying. From this position I organised a meeting with Helen to
discuss how we could move forward. Helen suggested a meeting with her and
representatives from the EOC. The purpose of involving the EOC was to use their
experience and resources to assist us in guiding the development of a process that
would address school based bullying and homophobic bullying.
We met with representatives from the EOC and had a lengthy discussion which
included:
1) A process for addressing school based bullying which included an education
program for teachers which the EOC representatives stated that they could assist in
delivering
2) The provision of a sample policy that addressed homophobic bullying
3) The provision of past and current research documents that could be used to raise
awareness and inform teachers
4) Ongoing support to achieve the development and full implementation of a whole
school bullying policy - this included a schedule of meetings, delivery of professional
development to staff and assistance in the acquisition of suitable resources
21

5) Contacts with schools in the Eastern States that had successful LGBTI & Q
programs
6) An invitation to attend relevant presentations at the EOC
This level of support enabled me to commence the progression of the development
of a whole school approach to address all aspects of school based bullying.
Recommendation 5: That the EOC continue to facilitate projects that bring together
relevant community groups, in the public and private sector, in proactive strategies to
eliminate discrimination via consensus.

Question 7 - Do we think that the EOC should have a bigger role in law review
matters, as it is a Commissioner function? (Section 80 (d), 81 and 82)
The response to this question was yes by the SSTUWA community.
It is clear that when the EOC Commissioner role was created, the WA Parliament
envisaged that from time to time it would seek expert advice from the EOC in
reviewing the laws of the State. This seems like a sensible and relevant thing to do,
although we acknowledge the EOC may need to be funded to do this more,
especially if the law review function was utilised on a regular basis.
This law review power relies on the Minister referring this task to the Commissioner.
Our Union could not think of a single contemporary example where this had occurred
(or find an example) and we thought this function should be utilised from time to
time, particularly in areas where discrimination has been prevalent. Notwithstanding
this, the EOC has embraced a clear role in advising on subsidiary documents (such
as policies, guidelines, codes etc.).
In our view there is value in re-examining this function in light of the review in order
to assess whether the WA Parliament is using the expertise available in the EOC to
their best ability in regard to law review matters, such as prior to enacting legislation,
or when amendments are proposed to existing legislation.
Recommendation 6: This review assess whether the WA Parliament is using the
EOC appropriately in regard to law review matters, particularly in regard to laws
affecting segments of the community most likely to face discrimination.
Question 8 - Is there more work to do tackling systemic discrimination?
Our members resoundingly responded with a yes to this question.
We note that proving indirect discrimination is highly onerous for complainants under
the EO Act and in the public sector it is almost impossible, in many cases, as
22

appropriate data is not kept in order to support potential claims. This potentially can
hide serious problems in our view.
In regard to the decision to abolish the Substantive Equality Unit (SEU) on 27 June
2013, we note that this Unit dealt primarily with the public sector and one major
ground of discrimination (race). Notwithstanding this decision (which was not
explained to the public), the Union is of the view that there is a long way to go in
tackling systemic discrimination in the public sector, particularly from our perspective
as a public sector union.
It would have been valuable if at the time the SEU was abolished, a clear and
transparent rationale for this decision was provided to the community. If this had
taken place, we would be in a better position to engage in this matter, rather than
reiterating that systemic discrimination is still a problem that is mostly hidden in the
public sector.
Recommendation 7: That the review focuses on mechanisms to tackle systemic
discrimination as an embedded function of the EOC noting the decision to abolish
the Substantive Equality Unit outside the formal review process of the EOC.
More will be discussed in this area when we discuss the role of the Director of Equal
Opportunity in Public Employment (DEOPE).
Question 9 - Do we value the independence of the EOC?
Our members resoundingly responded with a yes to this question.
The independence of the EOC was highly valued in all consultations undertaken. If
anything, independence was held to as the key value most highly regarded by the
SSTUWA Community in our consultations. This is because an effective human
rights agency must be totally independent in order to be fearless in criticising anyone
in the public or private sector in the advocacy of human rights.
Recommendation 8: That the independence of the EOC operating in the public and
private sector be protected and maintained in any review, as this is integral to the
effectiveness of the EOC as a human rights agency.
Question 10 - Is the EOC accountable and transparent?
Our members resoundingly responded with a yes to this question.
Further to the value of independence discussed above, the values of accountability
and transparency were also highly regarded in the SSTUWA community. 19

19

Note: the EOC is subject to Freedom of Information Act WA (1992) and further provides annual reports in
their own right to Parliament which are readily accessible on the EOC website.

23

Recommendation 9: That the review of the EOC maintains the values of

accountability and transparently as imbedded values of the agency.

Responses to Questions devised by the PSC

PSC Question 1 - What do you think are the strengths in how the EOC
currently goes about its function of achieving the objectives of the EO Act?
What do you think are the weaknesses? Are there any aspects of the EO
Commissioners functions under the EO Act which you think should be given
greater or lesser priority?
Please refer to our submissions above which comment on the strengths and
weaknesses of the EOC. Further to those submissions we make some further
comments and a recommendation.
The length of time it takes to resolve complaints has been raised in this submission
already (refer SSTUWA question 1). We wish to add that the State Administrative
Tribunal (SAT) has a practice of mediation in that jurisdiction. This means that the
overwhelming majority of EOC matters referred to the SAT have two alternative
dispute resolution processes, i.e. conciliation under the auspices of the EOC as well
as mediation under the auspices of the SAT. It is our view that the EOC is far more
aligned with the function of alternative dispute resolution given the overall powers of
the EOC Commissioner.
The practice of the SAT, in undertaking an additional alternative dispute resolution
(ADR) process for matters already conciliated and referred by the EOC
Commissioner and/or individual complainants to the SAT, needs to be assessed.
This practise is independent from the EOC. Our concern is that the SAT ADR
process may be an unnecessary duplication of functions and lead to an overall
increase in the time it takes to resolve some matters for complainants and further be
a disincentive for some complainants to engage in the process. Whist drawing this
matter to the attention of the review, we acknowledge a number of matters are also
resolved in the SAT by ADR and therefore not referred to hearing. This number of
complaints are however, significantly smaller than those resolved under the
conciliation function of the EOC. In our view some further investigation needs to be
undertaken to assess whether the duplication of ADR (alternative dispute resolution)
by the SAT, is an overall cost or benefit, in the resolution of EO complaints.
Recommendation 10: The practice of the SAT, in undertaking an additional
alternative dispute resolution (ADR) process for matters already conciliated and
referred by the EOC Commissioner and/or individual complainants to the SAT,
needs to be assessed. Further investigation needs to be undertaken to determine
whether the duplication of ADR (alternative dispute resolution) by the SAT, is an
overall cost or benefit, in the resolution of EO complaints.

24

PSC Question 2 - To what extent do the functions of the EO Commissioner

overlap with those of other government agencies, such as the Australian
Human Rights Commission, or community organisations?
The EOC and the AHRC are set up in different jurisdictions, have different
accountability and transparency reporting mechanisms and feedback from the
SSTUWA community was that it would cause confusion to refer the functions of the
State jurisdiction to the Federal jurisdiction (or vice versa). Notwithstanding, there
would be value in more clear and transparent information to potential complainants
on the differences between the State and Federal Jurisdictions. Please refer to our
recommendation under SSTUWA Question 3.
PSC Question 3 - Do you think the EOC is effective and efficient in promoting
the objectives of the EO Act in the contemporary legal and social
environment?
The answer this this question is yes. Please refer to SSTUWA Question 1 and other
commentary provided for in this submission.
Further to these submissions we raise the following: when we reviewed the functions
of the EOC and the EOC Commissioner against the terms of reference for the review
we noted that the objectives of the EO Act and the functions of the EOC
Commissioner emphasised the elimination of discrimination as a core function. We
have taken the word elimination very seriously as we are of the view that
elimination of discrimination clearly was important to the WA Parliament at the time
this legislation was enacted and remains so while this legislation is in force.
There are significant and largely unquantifiable benefits that flow from promoting
equality. The most obvious are benefits to individuals in the community who are able
to live and work in a relatively harmonious environment. However, it is worth noting
that there are significant effects on the WA economy that are largely under the
radar until adverse claims are made that affect our standing in the international
community.
There is little doubt that Western Australia is seen internationally as a relatively safe
place within our international community. The result of this is that for many, WA is a
relatively safe place for most to do business with, study, work, go on holiday and
much more.
The cost of reports of discrimination in a global environment should not be
underestimated. For example, in 2009 issues of racial discrimination endured by
Indian students in Victoria hit the global media and it only took a short period of time
for concerns to be raised that as a consequence, the demand by overseas students
for educational services would decline. This concern was soon backed by alarming
statistics and a significant global decline in demand for Australian educational
services20.
20

See for example http://en.wikipedia.org/wiki/Violence_against_Indians_in_Australia_controversy

25

It is imperative that we truly value the work of the EOC - not only to individuals, but to
the WA economy in promoting WA as a safe place relatively free from unlawful
discrimination within a global context.21
Recommendation 11: That in evaluating the work and effect of the EOC, the review
recognises that the EOC has contributed to the promotion of WA as a fairly safe
place, relatively safe from unlawful discrimination within the global environment. This
in turn has positive consequences for the standing of the WA economy in the
international community which should not be underestimated as it serves to promote
WA as a safe place to do business, study, work, go on holiday and much more.

PSC Question 4 - Would it be desirable for the Equal Opportunity

Commissioner to be supported by another government or non-government
agency in performing his or her functions, rather than the EOC? Those
functions include, for example:
a) Community awareness raising and education about the principles of
equal opportunity and freedom from harassment, including in regional
areas, such as through training, publications, community events and
other programs
b) Provision of advice and information to members of the public and
complainants about the grounds of discrimination and harassment
under the EO Act and the process for obtaining redress
c) Investigation and/or conciliation of complaints of discrimination or
harassment under the EO Act
d) The provision of legal assistance to complainants where their
complaints are referred to the State Administrative Tribunal.
The answer to this this question is no. All the services mentioned above are integral
to an integrated approach to promoting equality and eliminating discrimination.
These functions all logically flow from the objects of the Act and the EO
Commissioners functions. The only potential missing link in the integrated approach
is a part of the organisational structure more obviously aligned with a community
development function.
Any segmentation of EOC functions and transferral to any other agency (government
or non-government), in our view would be contrary to the objects of the Act and
functions of the EO Commissioner, realised to their best potential.

There was overall a sharp decline in the number of foreign students coming to Australia. Higher education for
visa students fell from 34, 200 in 2007 08 to 9, 750 in 2011 12.
21
We note that in the latest and previous annual reports of the EOC there is no measurement of WAs
standing in the global community in the area of discrimination, as a clear performance indicator. As a
consequence this outcome is not measured.

26

Recommendation 2: That the PSC recognise in this review, as a matter of principle,

that any devolution of functions (both government and non-government) within the
EOC would be contrary to a reasonable interpretation of the overall objects of the Act
and functions of the EO Commissioner, particularly in regard to maintaining the
integrity and independence of those functions.
PSC Question 5 - Given that the functions of the Public Sector Commissioner
include assisting public sector agencies to meet their obligation under section
8(1)(d) of the Public Sector Management Act 1994 to avoid unlawful
discrimination in employment, do you think that the functions of the DEOPE in
promoting equal opportunity in public sector employment could be subsumed
into the Public Sector Commissioners role?
The answer to this question is no. It is the view of the SSTUWA that the functions of
DEOPE should rightly be performed by the agency itself with its own budget and
resources.
The Director of Equal Opportunity in Public Employment is an agency created under
Part IX of the EO Act. We consider this agency should be a guardian of equality in
public sector employment and an independent champion of positive change in the
public sector. We note that initially the position was seen as independent with the
Director having their own staff and resources.
The present situation is very different, as the role has been absorbed into the Public
Service Commission (PSC) and the DEOPE Director, largely indistinguishable from
other public servants. The position is severely restricted and lacks sufficient
autonomy and resources.
It is significant that the position of Director of Equal Opportunity in Public
Employment was purposefully created under the Equal Opportunity Act, 1984 and
not the Public Sector Management Act 1994 (PSMA). It is our view that the Public
Sector Commissioner, should be subject to independent advice in regard to
compliance with section 8 (1) (d) of the PSMA and the present situation is
unsuitable.
Given the appearance of a clear rationale in this question in favour of the PSC
subsuming this function, it is worth noting that many organisations have a function
to avoid unlawful discrimination, for example, the WA Industrial Relations
Commission (WAIRC) under the Industrial Relations Act 197922. A shared function in
and of itself, does not necessarily provide a reasonable basis to subsume the
functions of another agency, especially in circumstances when the organisation
subsuming the other, should be required to consider independent advice from the
former.
22

Section 40B of the Industrial Relations Act 1979 concerns Power to vary awards to reflect statutory etc.
requirements, to promote efficiency and to facilitate implementation Under section 40B (1) (c), the WAIRC, of
its own motion, may by order at any time vary an award for the purpose of ensuring it does not contain
provisions that discriminate against an employee on any ground on which discrimination is unlawful under the
Equal Opportunity Act 1984.

27

The work of the Director of Equal Opportunity in Public Employment around equality
and discrimination in the public sector needs to be undertaken by an independent
agency, staffed by employees dedicated to this task. Fundamentally, a human
resource agency servicing the public sector needs to be stand-alone, independent
and well resourced. The present situation is incongruent with this standard.
Notwithstanding our view above, that the PSC is not an appropriate body in and of
itself, to undertake the functions of the Director of Equal Opportunity in Public
Employment, we note that, this review is being conducted by the PSC and the PSC
have asked respondents to the review to consider turning our minds to the very
same organisation conducting the review, being considered an appropriate
organisation to subsume the functions of another. This process in and of itself
illustrates a serious problem regarding the independence of this review which is
tainted by this very process.
Many of the problems with the PSC have been most notably articulated by the
Honourable Wayne Martin AC, Chief Justice of Western Australia in August 2013 in
a paper entitled Forewarned and Four-Armed Administrative Law and Values and
the Fourth Arm of Government23. The Honourable Wayne Martin AC raises serious
public interest concerns with the proliferation of agencies who report direct to
parliament undertaking what is commonly referred to as integrity functions. The
PSC is one of those agencies and attracted considerable attention by the
Honourable Chief Justice in the abovementioned paper. The Honourable Chief
Justice asks and answers this very important question, what mechanisms are in
place to prevent those watchdogs 24 from savagely attacking innocent visitors who
happen to be within the perimeters of their guarded territory?25 The answer, there
appear to be few mechanisms which operate effectively to keep these metaphorical
watchdogs on a leash.26
The Honourable Chief Justice warns, the actions and findings of an investigating
agency acting within its jurisdiction can have just an adverse and impact as actions
taken and findings made outside jurisdiction27 This is relevant in regard to the PSC
because there is effectively no mechanism for review (including judicial review) of
lawful actions within jurisdiction28. In this context there is a clear warning, It is vital
that this significant limitation on the efficacy of judicial review be borne steadfastly in
mind whenever an agency is given powers which can be exercised independently of
any other agency or branch of government.
Further, with respect to the PSC, the Honourable Chief Justice warns that the
Parliament of WA has gone further and has effectively provided the Public Sector

23

Honourable Wayne Martin AC, Chief Justice of Western Australia, Forewarned and Four-Armed
Administrative Law and Values and the Fourth Arm of Government, address at the Whitmore Lecture 2013, 1st
August 2013, Sydney.
24
The Honourable Chief Justice is referring to integrity agencies as watchdogs.
25
ibid page 9
26
ibid
27
Ibid page 23
28
ibid

28

Commissioner with the power to override laws of Parliament29. With respect to

section 32 of the Public Sector Management Act 1994 which is described as
extraordinary he says,
the section goes on to effectively provide that to the extent that there is any
conflict between any public sector standard or code of ethics published by the
Commissioner, and any other written law relating to the agency, the public sector
standard or code of ethics prevails over the written law. So, under the laws of
Western Australia, the power of a Minister to direct the CEO of an agency for
which he or she is responsible is, understandably, subject to any written law and
independence in human resourcing matters, but both the written law and any
directions of the Minister are trumped by any public sector standard or code of
ethics published by the Commissioner, who is not subject to direction by anyone.
Put another way, in at least one Australian State, the principle of legality of
administrative action has been modified to the extent that a public official not
subject to ministerial direction can promulgate standards and codes which have
the effect of overriding laws passed by the Parliament. On the face of it, it is
difficult to see how this framework promotes the cause of "integrity" given the
breadth of this extraordinary delegation of legislative power to an unaccountable
official. It is to be remembered that this is the same official who is responsible for
the conduct of reviews, inquiries and investigations on a wide variety of matters
broadly related to the Public Sector. The same official is now also the employing
authority of each agency CEO, who therefore depends upon the favour of the
Commissioner for their continuation in office or reappointment. 30
The important functions of contained in section 143 of the Equal Opportunity Act
1984, which relate to the Director of Equal Opportunity in Public Employment in the
public sector, are not sufficiently protected by the PSC which has the power to
override the Equal Opportunity Act 1884 in respect of the public sector. Our
recommendations facilitate a more accountable, transparent and autonomous
29

Ibid page 25. In addition, Pursuant to s 21 of the PSM Act the Commissioner is given the functions of
establishing public sector standards, and issuing codes of ethics setting out minimum standards of
conduct and integrity to be complied with by public sector bodies and employees. By s 22A of the Act,
the Commissioner is empowered to issue written instructions on a wide variety of matters including
the management and administration of public sector bodies, official conduct, suspected breaches of
discipline, and the taking of disciplinary action and "any other matter in respect of which
Commissioner's instructions are required or permitted under" the Act. Section 22 of the Act excludes
the Commissioner from the general power of Ministerial direction under s 32. It provides that the
Commissioner is to act independently in the performance of his or her functions and is not subject to
direction by the Minister or any other person except in the limited ways provided under the PSM Act.
Within this framework, s 32 of the Act provides that in the performance of his or her functions, a Chief
Executive Officer of an agency is to comply with any lawful directions or instructions given to him or
her by the responsible authority of his or her agency (generally speaking, the responsible Minister),
but only subject to compliance with:
acting independently in human resource matters (PSM Act, s 8(2));
any instruction, public sector standard or code of ethics issued by the Commissioner; and
any other written law relating to his or her agency. (Page 25 26).
30
Ibid page 26 -27.

29

delivery of the functions of Director of Equal Opportunity in Public Employment. It will

enable to PSC to take independent advice in regard to their obligations under section
8 (1) (d) of the Public Sector Management Act 1994 and improve governance in this
important area.
It is worth noting that the abolition of the Substantive Equality Unit (SEU) within the
EOC, (which will take effect shorty) - directly cut public funding out of measures
intended to achieve equality in the public sector. This is because the work of the
SEU was specifically targeted in the public sector 31. Redirecting these resources into
a stand-alone agency of Director of Equal Opportunity in Public Employment will go
some way to reinvesting money into systemic work, addressing discrimination and
promoting equality in the public sector. As a union representing public sector
employees in the education sector, we are of the view that there is still a lot of work
to do in this regard, particularly in regard to systemic discrimination.
The savings from the abolition of the Substantive Equality Unit should be channelled
into a stand-alone, independent and well-resourced agency of the Director of Equal
Opportunity in Public Employment.
Recommendation 13: The functions of DEOPE should be performed by the agency
itself, with its own budget and resources. It is imperative that this Human Resource
agency servicing the public sector be stand-alone, independent and well resourced.
The present situation is incongruent with this standard.
Recommendation 14: The savings from the abolition of the Substantive Equality
Unit should be channelled into a stand-alone, independent and well-resourced
agency of the Director of Equal Opportunity in Public Employment.

31

It is worth also noting that the SEU dealt primarily with one ground of discrimination, race.

30

Other relevant matters external community engagement in regard

to this review
Concern about the possible outcome of this review was expressed in the context of
budget cuts in the public sector generally and as a consequence the SAMETO
Community Alliance was formed. SAMETO stands for Some are more equal than
others. The alliance has formed around key values that are shared and a desire to
protect those values in the EOC.
The State School Teachers Union of W.A. has engaged in collaboration with our
members, internal staff and other organisations in the production of our submissions
in this review.
These other organisations include the following:
- CPSU/CSA;
- Ethnic Communities Council of WA;
- Deaths in Custody Watch Committee;
- Ethnic Disability Advocacy Centre; and
- Epilepsy WA
Together with these abovementioned organisations we support the following
overarching themes in our review:
That the Equal Opportunity Commission (EOC) WA maintains independence,
and an enhanced focus on the elimination of systemic discrimination.
That the physical location of all services provided for by the EO Commissioner
under the Equal Opportunity Act 1984 be in one central place, as far as
practicable, within Western Australia and under the auspices of the WA EOC.
That community engagement is required by the EOC to ensure the dignity of
the objectives of the Equal Opportunity Act 1984 in regard to the elimination of
discrimination is best fulfilled. A contemporary model of effective community
engagement which is likely to result in systemic change is the Challenging
Gender and Sexuality Based Bullying in Schools Project which incorporated
the public and private school sector. The processes involved in this model are
worth further consideration for the future in targeting other hot spots of
discrimination.
Discrimination has not been eliminated, however we note with concern that a
decision has been made in 2013 and outside of this current review process, to
abolish the substantive equality unit this year. No reasons, that we are aware
of, have been provided for this decision, nevertheless we believe that it should
not be assumed that equality has been achieved.

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