Equal Opportunity Regulations 1986

Representative complaint. Regulation 4 is the sole provision on this concept. It states that the Tribunal shall determine at an interim hearing whether any complaint shall be dealt with as a representative complaint. The language is mandatory: the Tribunal shall determine. This places an early procedural obligation on the Tribunal, even before the merits are considered. The concept is that a single complaint can represent multiple individuals with similar grievances, but the regulations give no criteria for when that should happen. The Act likely provides the substantive criteria, but the regulations merely operationalise the decision point. The absence of details on notice, opt-out rights, or costs means that the Tribunal has broad discretion, which creates uncertainty for both complainants and respondents. A respondent who faces a representative complaint may suddenly be exposed to a much larger class of aggrieved persons and potentially higher remedies, yet the regulations provide no mechanism for the respondent to test the suitability of representative treatment before the interim hearing.

Exemption applications and the Commissioner as party. Regulation 24 requires that every application for an exemption, a further exemption, or a variation of an exemption be served on the Commissioner. The Commissioner then becomes a party unless they file an affidavit explaining why they do not wish to be a party. This flips the default: the Commissioner is in the proceedings unless they positively opt out with reasons. From an economic perspective, this adds a compulsory participant to every exemption application, imposing a cost on both the applicant and the Commissioner. The Commissioner must review each application, decide whether to opt out, and if they do, prepare an affidavit. If they remain a party, they can make submissions, cross-examine witnesses, and potentially appeal. This creates a structural pro-regulatory bias, because the Commissioner’s institutional role is to enforce the Act. An applicant seeking an exemption therefore faces an opponent who is likely to argue for a narrow reading of the exemption power, and who can draw on public resources.

Management plans and reporting duties. Part 10 creates two distinct compliance obligations. First, under regulation 32B, the chief executive officer of a public authority (as defined in section 139(1)(d) of the Act) must report to the Director under section 146(1) by a fixed date each year: 8 August for most authorities, 8 December for local governments. This is an ongoing annual obligation. The regulation does not specify what the report must contain; that is left to the Act. It merely imposes a deadline. The differentiation between local governments and other authorities is unexplained. It may reflect differing administrative cycles, but it imposes a compliance calendar that is not intuitive. Second, regulation 33 sets a one-off deadline of 31 March 1989 for four universities to implement a management plan. As a historical provision, it no longer requires action, but it remains in the compilation, which could mislead anyone who does not realise the date has passed.

Choice of jurisdiction via complaint form. A unique concept in these regulations is the choice-of-law mechanism in Part C of Form 1. The complainant must, after speaking with a Conciliation Officer, tick which Act they wish to proceed under: state Equal Opportunity Act, federal Sex Discrimination Act, federal Racial Discrimination Act, or federal Human Rights Commission Act. This is unusual because most discrimination complaint forms are under a single statute. The form effectively outsources to the complainant the decision on which legal regime to invoke, after an oral explanation from a Commission officer. This creates several risks: the complainant may not fully understand the differences in remedies, burdens of proof, and limitation periods; the Conciliation Officer’s advice may steer the complainant toward one Act over another; and if the complainant fails to tick a box, the form is incomplete. The concept also raises questions about whether the complaint can later be transferred to a different Act if the chosen one proves unviable. The regulations do not address that.

The regulations directly affect three groups: complainants and their representatives; respondents (including employers, service providers, and educational institutions); and public authorities and universities.

Complainants are the most directly affected. Anyone who wishes to lodge a discrimination complaint under the Equal Opportunity Act 1984 must comply with regulation 3. If the Commissioner requires the prescribed form, the complainant must use Form 1. That form is not a simple information sheet; it contains a trap in Part C. The complainant must select which jurisdiction they want to proceed under, after speaking with a Conciliation Officer. This imposes a pre-litigation consultation that may delay the complaint or pressure the complainant into a choice they later regret. The complainant also faces the possibility that their complaint may be designated a representative complaint if the Tribunal so orders under regulation 4. If that happens, the original complainant may find their case transformed into a class action with multiple claimants, potentially losing control over the direction of the case. On the other hand, the representative complaint mechanism can lower individual costs by sharing legal representation and evidence.

Respondents are affected by the representative complaint provision. A respondent who faces a single complaint may later learn that the complaint has been upgraded to a representative complaint, expanding exposure. The respondent has no ability to prevent that under these regulations. The interim hearing on representative status will involve costs and delay. Respondents also face the possibility that the Commissioner will be a party to any exemption application they make, meaning they must contend with a public official who may have different resources and objectives.

Public authorities and their CEOs have an annual reporting obligation under regulation 32B. The CEO must ensure a report is prepared and submitted by 8 August (for most authorities) or 8 December (for local governments). Failure to do so could lead to penalties under the Act, though the regulations themselves do not specify a penalty. The reporting obligation is ongoing and imposes a recurring administrative cost. The differentiation between local government and other authorities creates a risk of confusion: a CEO of a state authority may mistakenly use the December deadline, or a local government CEO may use the August deadline.

The four named universities (Curtin, Murdoch, University of Western Australia, and Western Australian College of Advanced Education, now perhaps part of Edith Cowan) were required to implement a management plan by 31 March 1989. That obligation is now spent, but if a future amendment were to update the date, these institutions would again be directly burdened. For now, the regulation is a relic.

The Commissioner and the Equal Opportunity Commission are affected by the duty to receive and review exemption applications and decide whether to become a party. This consumes staff time and resources. The Commission also must handle the complaint form process and provide the mandated oral advice to complainants about jurisdiction.

The Tribunal is affected by the duty to conduct interim hearings on representative complaints. This adds a procedural layer that must be scheduled and heard.

Legal practitioners need to advise clients about the form requirements, the representative complaint risk, and the exemption application procedure. The choice-of-law feature in the complaint form requires careful guidance to ensure the client does not inadvertently waive rights under another Act.

Duty to use prescribed form (regulation 3). A complainant must lodge a complaint in writing. If the Commissioner requires it, the complaint must be on the form in Schedule 1. This gives the Commissioner a discretion that can be used to reject informal complaints. The duty is not absolute; the Commissioner may not require the form in every case. But a complainant who submits a letter may be told to resubmit on the form, causing delay.

Right to have representative complaint determined (regulation 4). The Tribunal has a duty to determine at an interim hearing whether a complaint shall be dealt with as a representative complaint. The complainant and the respondent have the right to be heard at that hearing. The regulation does not give either party a right to insist on representative status; the Tribunal decides. The right is therefore procedural, not substantive.

Duty on exemption applicant to serve the Commissioner (regulation 24). Any person applying for an exemption, a further exemption, or a variation of an exemption must ensure that a copy of the application is served on the Commissioner. The executive officer of the Tribunal is directed to cause service, but the duty ultimately falls on the applicant, because if the officer fails, the application may be procedurally defective. The Commissioner then has the right to become a party or to opt out by lodging an affidavit explaining why. The applicant has the right to know whether the Commissioner will participate, but the regulation does not set a deadline for the Commissioner’s decision.

Commissioner’s right to decline party status. The Commissioner can avoid becoming a party by lodging an affidavit setting out reasons. This is a right, not a duty. The Commissioner might use it when resources are scarce or when the exemption is uncontroversial. The regulation does not require the affidavit to be served on the applicant, creating a potential information asymmetry.

Duty on public authority CEOs to report on time (regulation 32B). The chief executive officer of a public authority must report to the Director under section 146(1) by the specified date. This is a positive duty with a fixed calendar. The regulation distinguishes between two classes of authorities, so the duty varies by entity type.

Duty on named universities to implement management plan (regulation 33). Historically, these four universities were required to implement a management plan by 31 March 1989. That duty is now expired. The regulation remains in the compilation, but no enforcement is possible.

Rights regarding the complaint form. The complaint form is not mandatory unless the Commissioner demands it. The complainant has the right to lodge a simple written complaint, but the Commissioner can override that. The Part C election of jurisdiction is required if the form is used; if the complainant resists the form, the Commissioner may not be able to force the election. The regulation is ambiguous.

Right to a Conciliation Officer consultation. Part C of Form 1 requires the complainant to speak with a Conciliation Officer before completing that part. This is presented as advice, but it is a de facto requirement if the form is used. The complainant has the right to receive information about the different federal Acts and their remedies. That consultation may also be seen as a duty if it is necessary to complete the form correctly.

The regulations themselves do not create penalties. They are procedural in nature, and non-compliance with them will not attract a separate fine. Instead, consequences flow through the Act. For example, failure to use the prescribed form when required may lead the Commissioner to decline to accept a complaint, effectively barring access to the complaint mechanism. This is a serious de facto penalty: the complaint never gets investigated or heard. Similarly, if a complaint is lodged without the required Part C election, it may be returned or delayed. The regulation does not say the complaint is void, but the Commissioner’s discretion to require the form gives considerable leverage.

For representative complaints, if a party fails to attend the interim hearing or fails to comply with a Tribunal direction, the Tribunal likely has powers under the Act to dismiss or strike out. The regulations do not provide those powers, but they frame the procedural context.

For exemption applications, failure to serve the Commissioner may render the application defective. The Tribunal could refuse to hear it until service is proven. The Commissioner’s participation as a party means that non-service is not a mere technicality; it could prejudice the applicant’s case.

For public authorities, failure to report by the required date under regulation 32B may lead to penalties under section 147 of the Act (not provided, but presumably a civil penalty or offence). The regulation sets the trigger, but the penalty is elsewhere. The differentiation between local government and other authorities may lead to confusion and inadvertent non-compliance, but a court would likely enforce the literal date.

Historical regulation 33 imposing a 1989 deadline is now incapable of enforcement. No authority can compel a university to implement a plan that was due 35 years ago. However, the regulation remains, which could theoretically support an argument that the duty is ongoing, but a court would likely interpret it as spent.

Enforcement actions under the regulations would be rare. The regulations are procedural; the substantive enforcement is under the Act. The major enforcement risk for complainants is procedural rejection. For respondents, the risk is that a representative complaint designation multiplies the scope of proceedings. For exemption applicants, the risk is that the Commissioner becomes a party and opposes the exemption, increasing costs and the chance of refusal.

The regulations interact most significantly with the Equal Opportunity Act 1984 itself. They are made under the Act and give effect to specific sections: section 83 (complaints), section 145 (management plans), section 146 (reports), and the exemption provisions. Without the Act, the regulations are meaningless. The regulations fill in details the Act left open, such as the form of complaint, the timing of reports, and the process for exemption applications.

The complaint form creates an explicit interface with federal antidiscrimination law. Part C of Form 1 requires the complainant to select between the state Equal Opportunity Act and three federal statutes: the Sex Discrimination Act 1984 (Cth), the Racial Discrimination Act 1975 (Cth), and the Human Rights Commission Act 1986 (Cth). This choice is binary: the complainant must pick one. This means that the regulations are the gateway for choosing jurisdiction. If the complainant picks a federal Act, the complaint is not processed under the state Act at all. The state investigation and conciliation mechanisms are bypassed. This interaction creates complexity for complainants: they must be advised on the differences in remedies (federal Acts generally do not have the same unlimited damages as the state Act), limitation periods, and harassment provisions. The regulations do not provide a fallback if the federal Act fails. There is no mechanism to rechoose.

The regulations also interact with the Tribunal’s rules of procedure. Regulation 4 requires an interim hearing for representative complaints. That hearing will be conducted under the Tribunal’s procedural rules, which are not in these regulations. The regulation simply directs that the determination be made at that hearing, without specifying the burden of proof, the admissibility of evidence, or the right to appeal.

The management plan regulations interact with the Public Sector Management Act or local government legislation that defines the authorities. The reporting date for local governments is different, which suggests that the makers of the regulations considered the different reporting cycles under local government law. However, no cross-reference is given.

The exemption application regulation interacts with the Act’s exemption provisions. The Act presumably allows exemptions for certain discriminatory acts. Regulation 24 adds a procedural layer: the Commissioner must be notified and becomes a party. This means that exemption proceedings under the Act are always inter partes unless the Commissioner opts out. The state’s exemption process thus differs from some other Australian jurisdictions where the Commission may simply make a decision without adversarial input.

There is no interaction with federal human rights bodies in the regulations beyond the form. The Australian Human Rights Commission is not mentioned. The regulation relies on the complainant to tick the correct box, with no mechanism to transfer a complaint if the wrong tick is made.

The regulations were originally made on 31 January 1986 and published in the Government Gazette on that date. They have been amended five times, with one attempted amendment disallowed.

1988 amendment. The Equal Opportunity Amendment Regulations 1988 (Gazette 20 May 1988, p. 1669) inserted Part 10 including regulation 33 (implementation of management plans) and set the 31 March 1989 deadline for four universities. This was the first significant addition to the regulations, five years after the complaint form was introduced.

1989 amendment. The Equal Opportunity Amendment Regulations 1989 (Gazette 6 October 1989, p. 3727) made unspecified changes. The compilation table does not detail what was amended, but it came into effect the same day.

1990 amendment and disallowance. The Equal Opportunity Amendment Regulations 1990 (Gazette 9 November 1990, p. 5529) were disallowed by the Gazette on 25 January 1991 (p. 326). This is unusual. Under Western Australian law, regulations can be disallowed by either House of Parliament within a certain period. The disallowance meant the amendment never took effect. The content of the failed amendment is not given in the text, but it apparently related to regulation 2 (forms) and regulation 34 (a new regulation inserted and then disallowed). The disallowance shows the regulations are subject to parliamentary oversight and that some amendments may be politically controversial.

1991 amendment. The Equal Opportunity Amendment Regulations 1991 (Gazette 8 November 1991, p. 5722) inserted regulation 32B, creating the reporting dates for public authorities. This came into effect the same day and remains in force.

2004 amendment. The largest overhaul: Equal Opportunity Amendment Regulations 2004 (Gazette 30 December 2004, p. 7007-8) deleted Parts 3 through 6 and Parts 8 and 9 in their entirety. It also renumbered and amended regulation 4 (representative complaint), regulation 24 (Commissioner as party), and regulation 32B (reporting date). The Schedule was simplified: the previous Forms 2 to 7 were deleted, though Form 7 reappears in the compilation as a relic (the notes show it was deleted). The amendment came into effect on 1 January 2005. The deletion of entire parts suggests that the procedural rules in those parts were either moved to the Act or were considered unnecessary.

The consequence of the 2004 amendment is that the regulations are now very thin. Only the core procedural elements survive: complaint form, representative complaint, exemption notification, and management plan reporting. The compilation table shows that the regulations have not been amended since 2004, meaning they have been stable for two decades.

The regulations themselves are rarely the subject of direct litigation. Because they are procedural, disputes about them usually arise as subsidiary issues in substantive discrimination cases. For example, a complainant might argue that the Commissioner wrongfully refused to accept a complaint because it was not in the prescribed form, or a respondent might challenge the representative complaint designation. However, the source text does not name any cases. No litigation history can be derived from the regulations alone.

The representative complaint provision (regulation 4) is likely to be the most litigated. A respondent may argue that the Tribunal applied the wrong test or failed to hold a proper interim hearing. The absence of criteria in the regulation gives the Tribunal a wide discretion, which could be challenged on administrative law grounds for unreasonableness or failure to consider relevant matters.

The exemption application regulation (24) could give rise to litigation if the Commissioner opts out in an affidavit that contains insufficient reasons, or if the Commissioner remains a party and the applicant argues that the Commissioner’s participation is oppressive. But again, no cases are cited.

The management plan reporting dates (regulation 32B) might be enforced via penalty proceedings under the Act. If a CEO fails to report by 8 August, they could face proceedings. The regulation would be central to establishing the date, but the proceedings would be under the Act, not the regulations.

The historical regulation 33 might be cited in a case if someone argues that a university still has an obligation under it. A court would likely hold that the duty was one-off and spent, but the point is arguable.

Overall, these regulations have not generated significant litigation because they are straightforward. The most fertile ground for future litigation is the choice-of-law mechanism in the complaint form. A complainant who ticks the wrong box and then discovers that the federal Act provides less protection may argue that the Commissioner failed to give proper advice, or that the form is misleading. Alternatively, a respondent might argue that a complaint proceeding under the state Act should have been under a federal Act, affecting jurisdictional facts. No reported cases on this point are known, but the potential is there.

The absence of litigation history in the source is notable. It suggests the regulations are either well understood or rarely challenged. Given that they are procedural, parties typically focus on the substantive provisions of the Act rather than the regulations.

The Part C election trap. The complaint form requires the complainant to select which Act to proceed under after speaking with a Conciliation Officer. If the complainant fails to tick any box, the form is incomplete and the complaint may be rejected. If they tick more than one, the form is ambiguous. The Conciliation Officer’s advice may be informal and not recorded, leaving the complainant with no evidence of what they were told. A complainant who later discovers they chose the wrong Act has no recourse under these regulations. The form also warns that the person may be required to select the law, but does not allow changing later.

Commissioner’s discretion to require the form. Regulation 3 says the complaint “shall be in writing and, if the Commissioner requires, shall be in the form set out”. This means the Commissioner can randomly require the form for some complaints and not others. There is no published criteria. A complainant whose complaint is rejected for not using the form may have no way to enforce acceptance, as the discretion is likely unreviewable unless exercised capriciously.

Representative complaint at interim hearing. The Tribunal must decide at an interim hearing whether to deal with a complaint as a representative complaint. The term “interim hearing” suggests a preliminary stage, but the regulation does not say when that hearing must occur. A respondent may be ambushed by a late application to convert a complaint into a representative complaint, after discovery or evidence gathering has begun. The regulation also does not require notice to potential class members, raising the risk that they are bound without knowing.

Commissioner automatically a party to exemption applications. Anyone applying for an exemption must serve the Commissioner, who becomes a party unless they file an affidavit explaining why not. This means the applicant faces an opponent in the form of a state agency. The Commissioner’s affidavit does not have to be served on the applicant. The applicant may not know why the Commissioner opted out, or they may assume the Commissioner is not participating and then find the Commissioner appears at the hearing. There is no timeline for the Commissioner’s decision.

Reporting date confusion for local governments. Regulation 32B sets 8 December for local governments and 8 August for other public authorities. A CEO of a state government department might mistakenly use the local government date, or vice versa. The regulation does not define “public authority” for this purpose; it refers to section 139(1)(d) of the Act, which must be looked up. The differing dates add no obvious policy benefit and create an administrative risk.

Historical regulation 33 still in force on paper. The requirement for universities to implement management plans by 31 March 1989 is clearly spent, but the regulation has not been repealed. A compliance officer at one of the named universities may read the regulations and think there is an ongoing obligation. This is a trap for the unwary who do not check the date. Similarly, an external auditor might flag non-compliance.

No provision for electronic lodgment. The form refers to a physical address (5 Mill Street, later 32 St George's Terrace). The regulations do not contemplate email or online filing. In the modern era, complainants may be unsure whether a scan of the form is acceptable. The Commissioner may accept it, but the regulation is silent.

Form 7 for exemption applications still listed but deleted. The Schedule was amended in 2004 to delete Forms 2-7, yet Form 7 reappears in the compilation after the deleted forms. The notes say it was deleted. This inconsistency in the compilation is a gotcha: a reader might rely on the printed form, only to find the Tribunal refuses it because the form no longer exists.

Complainants. The safest approach is to lodge a written complaint that sets out the factual basis and the ground of discrimination, without relying on the prescribed form. If the Commissioner does not require the form, the complaint will be accepted. If the Commissioner does require the form, obtain a copy from the Commission or the Gazette and complete it carefully. Part C is the critical section: before completing it, contact a Conciliation Officer by telephone (reverse charges if necessary) and discuss the differences between state and federal remedies. Document the advice received (name of officer, date, summary). Tick only one box. Sign and date the form. Return it to the Commission’s address as listed. Keep a copy with proof of lodgment (registered post or acknowledgement). Do not tick multiple boxes; do not leave Part C blank.

Respondents. If served with a complaint, immediately check whether the Tribunal has scheduled an interim hearing on representative complaint status. Attend that hearing and be prepared to argue against representative designation if the grounds are weak. Seek specifics on the proposed class and commonality. Also ensure that the Commissioner has been properly served with any exemption application you intend to make. As a practical matter, preserve all documents and communications relevant to the complaint, as the complaint may be expanded via representative treatment.

Public authority CEOs. Identify whether your authority falls under section 139(1)(d) of the Act. If it is a local government, mark your calendar for 8 December each year. For all other authorities, the date is 8 August. Prepare the report under section 146(1) well in advance, ensuring it contains the content required by the Act. Submit the report to the Director (the Equal Opportunity Commission) by the deadline. Maintain a record of submission. If in doubt about the classification, seek legal advice; the difference in dates can cause non-compliance.

Universities. For the four named universities, regulation 33 imposed a one-off obligation that has been satisfied. No further action is required. However, the regulation remains, so if ever an amendment updates the date, be prepared to comply. For now, ignore regulation 33 unless notified otherwise.

Exemption applicants. Before applying for an exemption or variation, serve a copy of the application on the Commissioner. The executive officer of the Tribunal should also do this, but do not rely on them. Confirm service by email or mail with tracking. The Commissioner will either file an affidavit opting out (explaining why they do not wish to be a party) or will become a party. If the Commissioner opts out, you will not see the affidavit, but you can assume they are not participating. If they do not opt out, prepare to treat the Commissioner as an opposing party in the hearing. That means anticipating arguments against the exemption and possibly dealing with discovery or interrogatories. Consider consulting a lawyer with experience in anti-discrimination exemptions.

Legal practitioners. Advise clients about the representative complaint potential early in the matter. If acting for a complainant, consider whether representative treatment would benefit or complicate the case. If acting for a respondent, push for early clarity on representative status, as the matter may multiply costs. For form-related issues, ensure the complainant understands the jurisdiction election. Suggest that the client ask the Conciliation Officer to confirm the election in writing. In exemption applications, advise the client that the Commissioner will likely be a party and that they should budget for that. Monitor the disallowance history: note that the 1990 regulations were voided, so any reliance on that unused amendment is misplaced. Check the current compilation annually, as the regulations could be amended again without fanfare.

All parties. Keep a copy of the current compilation of the regulations from the Western Australian Legislation website. The compilation table shows dates and amendments. Verify that you have the version that includes the 2004 amendments. The regulations are short, so review them in full before taking any step under the Act.