Why is NSW a laggard on anti-discrimination law?

3 September 2021
Critics say the state act is confusing as well as outdated
Without a positive duty to both eliminate discrimination and harassment and make reasonable adjustments to address inequality, the NSW Anti-Discrimination Act fails its essential purpose, argues Professor Simon Rice.

An anti-discrimination law is, in effect, a code of conduct. An employer, an HR manager, a school principal, a shopkeeper, or hotelier needs to be able to pick up the act and get a good idea of what their obligations and duties are.

Similarly, a worker or student or customer needs to be able to pick up the act and understand how they are protected.

NSW’s outdated Anti-Discrimination Act fails as a code of conduct. Passed in 1977, it is cumbersome, wordy, opaque, repetitive and confusing.

But it need not be. The same laws in Queensland, the ACTVictoria and Tasmania have wider scope, with fewer words in a more accessible form.

There is growing impatience with the inaction in NSW. Community groups are calling on the NSW attorney-general to review the outdated act. A recent report by the Public Interest Advocacy Centre also makes a case for how poorly the people of NSW are served by this antiquated law.

Shrinking budget and unfilled positions

In the past decade, Anti-Discrimination NSW, the statutory agency with oversight of the act, has had its budget reduced by 10% in dollar terms (in effect a 24% cut in real terms). A recurring statement in its annual reports has been

staff costs were controlled by keeping several positions vacant during the year.

The agency has only a part-time head, but for two of the past ten years that position was vacant. There have also been unfilled board positions in five of the past 10 years.

Lots of mini acts all strung together

The NSW act is in the same state of neglect. Considered state-of-the-art 40 years ago, the law today reads like a lot of mini anti-discrimination acts strung together.

First, it defines race discrimination, sets out each area of life where race discrimination is unlawful, and sets out the exceptions.

Then it defines sex discrimination, sets out each area of life where sex discrimination is unlawful, and sets out the exceptions.

It goes on like this, with regard to transgender people, marital status, disability, carer’s responsibilities, homosexuality, and age. Each time an additional attribute is added, a new part of the act is wedged in among the others.

Along the way, other protections have been slotted in, such as for vilificationharassment and compulsory retirement.

Compare this to the Victorian Equal Opportunity Act, which is not a series of mini-acts but a single coherent statement of what discrimination is, who is protected, the areas covered, and the exceptions.

A law such as this must also be inclusive. But terms such as “homosexuality” and “transgender” in the NSW Act are limited in their scope. The absence of protection for gender identity, sexual orientation, political and religious belief, parental status, and industrial activity illustrates how far the NSW act is behind contemporary values.

Lacking a positive duty to ensure equality

Perhaps most significantly, the NSW act remains simply a law that prohibits discrimination — it does not actively promote measures to secure equality, as laws in other jurisdictions do.

The anti-discrimination acts in Victoria and the UK, for instance, require that measures actively be taken to eliminate discrimination and harassment. The proposed sexual harassment amendments to the federal Sex Discrimination Act do the same.

Nor does the NSW law go beyond prohibiting disability discrimination and require steps be taken to make reasonable adjustments to accommodate a person’s disability. This is how other states’ laws work.

Without a positive duty to both eliminate discrimination and harassment and make reasonable adjustments to address inequality, the NSW act fails its essential purpose — to help our society towards equality.

How can it be fixed?

The NSW act is not amenable to a quick fix. It is already a barnacle-encrusted, gap-plugged vessel.

By my count, the law has been subject to more than 800 amendments, insertions and deletions over the years, in 88 different amending acts.

The numbering of inserted sections has become ridiculous, such as s49ZYW(2)(a), which specifies when section s49ZYW(1) doesn’t apply. That may be fun for lawyers, but it’s no fun for anyone who wants to know their duties and rights.

It would be unconscionable to tack yet another piece onto the existing act. The people of NSW, instead, need an new and contemporary equality law.

So how might we get there? There are well-established and successful reform processes around Australia and internationally to draw from.

Reform in the UK began with an independent report, two public inquiries, and then extensive consultations with the public, specialists, stakeholders and interest groups. This iterative and collaborative process resulted in the Equality Act 2010 (UK), described in the Discrimination Law Review as “harmonising and simplifying the law” and “modernising the law”.

Victoria set about a similarly rigorous process to modernise its law, which had been in much the same form for over 30 years. The government commissioned an independent public consultation and launched a parliamentary committee inquiry, resulting in its 2010 Equal Opportunity Act. A similar process led to 2014 reforms in the ACT.

Updating discrimination law is a perennial task, responding to social change. It is happening now in Western Australia, where the Law Reform Commission is reviewing the 1984 Equal Opportunity Act, and in Queensland, where the Human Rights Commission is reviewing the 1991 Anti-Discrimination Act.

The Northern Territory’s review, meanwhile, is done and awaiting report.

Clearly, there are contemporary models in Australia that show the way for NSW to follow. It is not a brave step for NSW to commit to contemporary measures to secure non-discrimination and equality. We just need a government that cares.

Professor Simon Rice is Kim Santow Chair of Law and Social Justice at the University of Sydney Law School. He is a member of the Australian Discrimination Law Experts Group.

This article was originally published in The Conversation

Loren Smith

Assistant Media Adviser (Humanities & Science)

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