Western Australia’s anti-discrimination laws are set to undergo the most substantial changes in almost 43 years following the introduction of the Equal Opportunity Bill 2026 (the Bill) to the Western Australian Parliament on 21 October 2026. The Bill will repeal and replace the existing Equal Opportunity Act 1984 (the Act), with the aim of strengthening the framework and introducing stronger protections for West Australians from discrimination, harassment and vilification.
The proposed reforms would have a significant impact on how employers are required to mitigate unlawful workplace conduct.
Arguably one of the most significant changes for employers would be the introduction of a positive duty to take reasonable and proportionate measures to eliminate all unlawful discrimination, harassment, victimisation and vilification in the workplace.
Under the current Act, employers are largely only required to respond to unlawful conduct after it occurs. However, under the proposed regime, employers would be required to actively identify and manage risks of all discrimination, harassment, vilification and victimisation before they occur. This would effectively mean an employer’s positive duty would be akin to the existing requirements in the federal Sex Discrimination Act 1984.
Whether an organisation is judged to have taken reasonable and proportionate measures to mitigate these risks will depend on factors including the size and nature of the business, available resources, operational priorities and the practicality and cost of the measure.
The Bill significantly broadens the range of protected attributes, extending anti-discrimination protections in employment to more individuals, while modernising concepts that have remained unchanged for decades. The Bill in its current form will expand on the Act’s 13 protected attributes up to 23 different protected attributes.
The Bill will adopt a more streamlined framework that consolidates and expressly identifies each characteristic protected from discrimination. This framework will expand a number of already protected attributes such as religious conviction, disability and family and caring responsibilities along with broadening the circumstances in which those attributes are taken to apply.
The Bill significantly updates the existing protected attribute of “gender history”. Under the current Act, protections only extend to a person who has legally changed their sex or gender. The Bill will introduce a broader and more inclusive concept of “gender identity”. This change would extend the circumstances in which this protected attribute applies to a person’s gender identity and expression, meaning that protections apply regardless of whether a person has legally changed their sex, gender, or undergone medical treatment to transition.
Notably, the proposed reforms also include a newly protected attribute of physical features, which would make it unlawful to discriminate against a person based on factors such as a person’s:
However, this will exclude any voluntarily acquired modifications such as piercings and tattoos.
The Bill proposes that under the new regime, employers will have a new responsibility to make reasonable adjustments for persons possessing the following protected attributes:
An employer would be required to make reasonable adjustments if, because of a person’s protected attribute, the adjustments are required for the person to carry out the work however, the employer will not contravene this responsibility if the person would be unable to carry out the inherent requirements of their role, even if the adjustments were made.
Section 351 of the Fair Work Act 2009 (Cth) (FW Act) prohibits employers from taking adverse action against employees or prospective employees because of any of 17 specified protected attributes, subject to statutory exceptions. The Bill would protect additional attributes that are not expressly listed in section 351 of the FW Act, including:
However, section 351 of the FW Act does not extend to every attribute protected by state anti-discrimination legislation. This means the further protected attributes in the Bill will not automatically give rise to a broader bases upon which to bring an adverse action claim under s351 FW Act.
The Bill significantly expands the definition of employment. Under the Act, employment included permanent or temporary employment, work under a contract for services or a State employee. The Bill broadens the meaning of employment to ensure that more people performing work are protected in an employment setting, including:
The Bill also broadens the definition of employer as a person for whom employment is performed. This broad definition is aimed to capture working relationships such as:
An express prohibition on sex-based harassment is also introduced, aligning the Bill closely with federal protections introduced through amendments to the Sex Discrimination Act 1984 (Cth) in 2021 and the FW Act in 2023.
Currently, under section 24 of the Act, sexual harassment it taken to only occur if the conduct passes the "disadvantage test", meaning the victim must have reasonable grounds to believe that rejecting the unwelcome sexual advance or objecting to the unwelcome conduct of a sexual nature will or has disadvantaged them in connection to their work. The Bill proposes to remove this test.
While the Act currently prohibits racial and sexual harassment, it does not expressly prohibit sex-based harassment such as unwelcomed conduct that is demeaning, likely to offend, humiliate or intimidate a person because of their sex, but is not sexual in nature. The new provisions will capture conduct such as misogynistic or misandrist behaviour that may fall outside of the scope of the existing prohibition on sexual harassment.
Alongside the introduction on the prohibition on sex-based harassment, the Bill will significantly expand on the existing protections against sexual and racial harassment. It will adopt a broader approach that will focus on the harassment itself and introduce a positive duty on organisations to take reasonable and proportionate measures to mitigate the risk in the first place.
This change emphasises the shift to ensuring organisations are proactively mitigating the unlawful conduct instead of reacting to the conduct when it’s already occurred.
Under the Act, a complaint to the Equal Opportunity Commissioner alleging unlawful conduct can only be made by the person who experienced the alleged discrimination, harassment or victimisation, subject to limited exceptions for children and persons with a disability. The Bill will expand this standing by permitting industrial organisations or other representative bodies to make complaints on behalf of a specific person or a class of persons .
In addition, the Bill will extend the time limit for complaints from 12 months to 24 months. These changes would likely see an increase in accessibility to the complaints process and may result in a greater number of complaints being brought before the Equal Opportunity Commission (EOC).
A further significant reform, that would bring Western Australia to be more aligned with other jurisdictions, is the removal of the current $40,000 cap on compensation awards.
Such a change would substantially increase employers’ exposure of liability in discrimination and harassment matters.
The Bill also introduces a new investigative function that enables the EOC to undertake reviews and investigations of its own initiative. This represents the common theme of a shift from a complaints-based system to a proactive system that empowers the EOC to investigate systematic issues and potential non-compliance on its own accord.
For employers, this could mean that the risk of investigation is no longer limited to where an employee or worker has made a formal complaint - Employers may face scrutiny even in the absence of a formal allegation.
If the Bill passes, employers will need to consider:
However see requirements in the Fair Work Act 2009 pertaining to sexual harassment.
Equal Opportunity Bill 2026 (WA) Explanatory Memorandum, cl 97.
Equal Opportunity Bill 2026 (WA) cl 19(1)(a) - (w).
Ibid cl 3
Ibid cl 69
Equal Opportunity Act 1984 (WA) s 83
Equal Opportunity Bill 2026 (WA) cl 100
Equal Opportunity Act 1984 (WA) s 83, Equal Opportunity Bill 2026 (WA) cl 123
Equal Opportunity Bill 2026 (WA) cl 141