Civil Justice Reform
Civil justice reform in the areas of human rights, equal opportunity, elder law and relationship evidence will ensure that everybody is treated equally before the law, and that the law does not place undue administrative burdens on people who don’t follow historical societal norms such as marriage and heteronormative relationships.
Four Priorities:
We are advocating for change in four key areas of law reform:
- A Well-Functioning Legal System
- Youth Justice Reform
- Criminal Justice Reform
- Civil Justice Reform
A Western Australian Human Rights Act
A WA Human Rights Act is necessary to ensure the protection of people’s human rights and to create an avenue for raising complaints if human rights are breached. A Human Rights Act would promote a culture of respecting people with fairness, dignity and respect.
Overview
Australia is the only liberal democracy not to have a national act or charter of human rights protection. Instead Australia has a patchwork system of constitutional and common law rights, international treaties and legislation. In 2024 the Parliamentary Joint Committee on Human Rights (Joint Committee) completed an inquiry into the effectiveness of Australia’s current Human Rights Framework and considered whether the Framework should be restructured or improved.24
The Joint Committee concluded that the current framework does not adequately ensure that human rights and freedoms are adequately respected, protected or promoted, and recommended that an Australian Human Rights Act should be enacted to ensure the comprehensive and effective protection of human rights.
Although the Joint Committee’s May 2024 report is generating meaningful discussions about the need for an Australian Human Rights Act, it is unclear if and/or when the Australian Government will implement this recommendation, and what protections would extend to state legislation under an amended national framework.
Therefore, it is appropriate to consider whether the incoming government should also introduce a Human Rights Act for WA.
In 2007, the WA Government initiated a community consultation on the introduction of a Human Rights Act in WA. Following the consultation, the consultation committee recommended that the WA Government introduce a Human Rights Act.25 However, this recommendation has never been implemented. As a result, there is no formal oversight of State legislation for compatibility with the WA Government’s human rights obligations and no protections for many basic human rights.
In recent years, the Australian Capital Territory (ACT), Victoria and Queensland have developed state/ territory human rights legislation. The key functions of the ACT Human Rights Act, the Victorian Charter, and the Queensland Human Rights Act are to ensure:
- public authorities properly consider human rights when making laws, developing policies, delivering services and making decisions; and
- act compatibly with human rights.
These state and territory based models can provide guidance to the incoming government on developing human rights legislation for WA.
Endnotes
Recommendation
Introduce a WA Human Rights Act to improve respect, promotion and protection of human rights in WA.
Benefits
- Improving the accessibility of human rights protections and remedies in the event that a person’s human rights are breached;
- Promoting a rights respecting culture within the incoming government by creating an expectation that human rights will be considered throughout the political process; and
- Creating a framework to proactively consider the effect of government action on individuals ahead of any dispute.
Equal Opportunity Act Reform
The Law Society supports the Implementation of the Law Reform Commission’s 2022 recommendations that legislative protections within the Equal Opportunity Act 1984 are extended to ensure more people are protected from harassment and discrimination.
The LRC completed a review of the Act in May 2022 and made 163 recommendations to improve protections against discrimination, harassment and vilification.26 The incoming government now has the opportunity to modernise the Act and condemn harassment and discrimination in the community and workplaces.
The LRC’s recommendations cover a range of topics including improving protections for people who identify as LGBTIQA+, and people who have experienced sexual harassment.
The Law Society acknowledges the introduction of the Births, Deaths, Marriages Registration Amendment (Sex or Gender Changes) Bill 2024 to abolish the Gender Reassignment Board (GRB) and the requirement for a person to have undergone medical or surgical reassignment before formally registering a change of sex or gender. However, further reforms are required to support transgender, non-binary and intersex people and the broader LGBTIQA+ community in WA. In particular, the LRC recommended limiting the exemption for religious educational institutions which allows these institutions to discriminate against students and staff on the basis of their religious beliefs. The current exemption allows institutions to fire staff and expel students if that person or their family member identifies as LGBTIQA+.
More broadly, there are certain job positions and workplaces which are not covered by protections against, or prohibitions of, sexual and racial harassment. The LRC has recommended that protections are extended to include members of parliament, parliamentary staff, judicial officers and court staff, and unpaid and volunteer workers. These groups should not be excluded from protection from and accountability for racial and sexual harassment in their workplaces.
The LRC has also recommended amending the test applied to sexual harassment complainants. Currently complainants must prove that they experienced disadvantage because of the harassment, which will vary greatly depending on the complainant’s circumstances. The LRC recommends that this test be amended to place a greater emphasis on the harmful conduct, rather than the disadvantage it caused.
Under the Act, if the State Administrative Tribunal conducts an inquiry and finds that a complaint has been substantiated, the maximum amount of compensation that can be ordered is $40,000. An order for maximum compensation is usually reserved for the most egregious cases of discrimination. The limit of $40,000 was set at the commencement of the Act in 1985 and has not been updated since. In 2024, $40,000 is woefully inadequate compensation for a person who has experienced egregious discrimination, or as a deterrent of discriminatory behaviour.
Endnotes
Recommendation
Implement amendments to the Equal Opportunity Act 1984 (Act) recommended by the Law Reform Commission (LRC) in 2022.
Benefits
- Greater protections for the LGBTIQA+ community;
- Removing barriers to raising complaints about sexual harassment;
- Extending protections against sexual and racial harassment to more people; and
- Strengthening deterrents against discriminatory conduct.
Amendments to Elder Law Legislation
The Law Society has long supported legislative reforms to elder and succession law in WA. Some of the most pressing reforms which the Law Society is advocating for are to the Wills Act 1970. These proposed reforms will enable wills to be made by minors in certain circumstances, clarify the circumstances in which wills may be released and revise the requirement to establish parentage during the parent’s lifetime
The Law Society has long advocated for elder law legislative reforms to address issues that arise in relation to wills for minors, release of wills and paternity requirements. These reforms will provide clarity to practitioners when dealing with difficult case circumstances, ensure that the interests of potential beneficiaries and donees are protected, and bring the law into line with common societal practices in relation to romantic and familial relationships.
Wills for minors
The Wills Act 1970 (WA) provides that a will made by a person under 18 years is not valid and the court does not have authority to make a statutory will for a minor. However, there are circumstances where it is not appropriate for a minor’s estate to benefit one or other members of their immediate family. The Law Society recommends that the Wills Act be amended to allow a minor to make a will or apply to the court to authorise the making of a statutory will.
Example situations where it may be appropriate for a minor to have a will include the following:
- Where a minor is married and has responsibilities towards a spouse or, potentially, a child;
- Where a minor who has testamentary capacity has valid reasons for not wishing to consider one or other of their parents or siblings as beneficiaries of their estate, for example if they have received compensation for familial abuse, such a will requiring court authorisation; and
- Where a minor is incapacitated and it is appropriate to consider which family members have a moral claim (or lack of a moral claim) to the child’s estate, such a will being made with court authorisation.
Release of wills
Currently, it is not clear when a will may be released to a third party in circumstances where it may be in the testator’s best interests for the will to be released.
For example, it can be difficult for custodians of a will to navigate situations where a testator does not have capacity and the contents of the will are relevant to informing the proper discharge of an administrator’s or attorney’s obligations towards the testator.
There are also situations where the appointed executor is unable to fulfill their duties because they lack capacity or have predeceased the testator. In this scenario it is unclear who should be provided with a copy of the will.
New provisions to address each of these issues could easily be modelled on those already adopted in other jurisdictions.
Paternity requirements
The requirement that parentage be admitted by or established against the parent during the lifetime of the parent is unduly restrictive, particularly considering the availability of reliable and accurate DNA testing. This could be as simple as altering the relevant wording in section 12(2)(b)(i) of the Administration Act to read as follows:
(i) if parentage is admitted by the parent during the parent’s lifetime, or established against the parent, whether before or after the death of the parent.
The Wills Act 1970 (WA) and the Family Provision Act 1972 (WA) both include provisions with similar wording and effect to s12A.27 Should the Administration Act be amended, similar provisions in these acts, and other acts related to succession, should also be amended to maintain consistency.
Endnotes
27. Wills Act 1970 (WA), s 32(2)(b); Family Provision Act 1972 (WA), s 7(1)(e).
Recommendation
Implement legislative amendments relating to elder law as follows:
- Amendment to the Wills Act 1970 (WA) to enable wills made by a person under the age of 18 to be valid (in certain circumstances);
- Amendment to the Wills Act 1970 (WA) and other relevant legislation to allow the release of wills to persons with a legitimate interest (in certain circumstances); and
- Amendment to the Wills Act 1970 (WA), the Administration Act 1903 (WA) and other relevant legislation to allow paternity to be recognised after a parent’s death for the purpose of determining who is entitled to participate in the distribution of the intestate estate.
Benefits
- Safeguarding the interests of children and adults who lack testamentary capacity;
- Bringing WA legislation in line with community expectations and practices in other jurisdictions; and
- Providing clarity to practitioners navigating difficult circumstances not contemplated by existing legislation.
Relationships Register
A Relationships Register provides for the legal recognition of relationships other than marriage and allows for acknowledgement of diverse family groups. A Relationships Register would facilitate access to rights and entitlements for civil partners in legal matters.
Relationships Registers have been enacted by legislation in the majority of other states and territories for many years: Tasmania (2003); Victoria (2008) New South Wales (2020); Queensland (2011); Australian Capital Territory (2012); and South Australia (2016).28 Establishment of a Relationships Register would align WA with the rest of Australia (apart from the Northern Territory).
A Relationships Register can be used to provide evidence of partner relationships as part of the requirements of the Migration Act 1958 (Cth). In a family law context, depending on the content of the legislation, registration would be a useful evidentiary tool to prove the existence of a de facto relationship as at a point in time.
There are many occasions where a de facto couple is required to establish the relationship – for example, to meet the requirements of the Migration Act 1958 (Cth), to facilitate access to rights and entitlements in legal matters and in applying for social benefits. For a de facto partner of an Australian citizen to apply for a Partner visa to live in Australia, the applicant must be in a de facto relationship that meets a number of criteria, including that the de facto relationship must have existed for at least 12 months immediately before applying for the visa (subject to certain exceptions). This 12-month period requires the provision of evidentiary support that can be difficult to obtain. The 12-month requirement does not apply if the de facto relationship is a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901, which provides that a person is in a registered relationship if it is ‘registered under a prescribed law of a State or Territory as a prescribed kind of relationship’. However, this option is not available in WA as there is no Relationships Register.
Under Part 5A – de facto relationships – of the Family Courts Act 1997 (WA), for the court to make an order there are further criteria that must be satisfied in respect to the de facto relationship over and above the eligibility criteria for registration under the relevant statutes. However, registration would at least be a useful evidentiary tool to prove the existence of a de facto relationship as at a point in time. Section 13A of the Interpretation Act 1984 (WA) which sets out criteria for establishment of a de facto relationship may need to be amended to include registration as a specific factor for the court to consider.
Endnotes
28. Relationship Act 2008 (VIC); Relationships Register Act 2010 (NSW); Civil Partnerships Act 2011 (QLD); Civil Unions Act 2012 (ACT); Relationships Register Act 2016 (SA).
Recommendation
Establish a WA Relationships Register.
Benefits
- Alignment with the law in the majority of Australian States and Territories;
- Provide evidence to support legal recognition of de facto relationships;
- Acknowledgement of diverse family groups; and
- Facilitation of rights and entitlements for civil partners in legal matters.
