NSW’s anti-discrimination law is confusing and outdated
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 pretty 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 1977 Anti-Discrimination Act fails as a code of conduct. It is cumbersome, wordy, opaque, repetitive and confusing. But it demonstrably need not be; the same legislation in, for example, Queensland, the ACT, Victoria and Tasmania, has wider scope, in fewer words, and an accessible form.
An anti-discrimination law is a significant part of a peaceful, inclusive, respectful, multicultural society. To have an anti-discrimination law that fails to convey its message sends the wrong message; to maintain an anti-discrimination Act in such a shambolic and neglected state suggests that law makers and leaders lack interest in, if not respect for, a fair society.
In the past 10 years Anti-Discrimination NSW, the statutory agency with oversight of the Act, has had its budget reduced by 10% in dollar terms, 24% in real terms. A recurring statement in the 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 been unfilled board positions in five of the past 10 years, even to the extent that the board positions were entirely vacant for a year. The NSW Anti-Discrimination Act is in the same state of neglect.
Like cars and computers, what was state-of-the-art 40 years ago has long been superseded. The drafting of the NSW Act is like a lot of little 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. Then it describes … and so on, through transgender status, 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 the other protections have been added on, such as for vilification and harassment and compulsory retirement.
A legacy of this laborious sequential drafting is that if a member of a local council, for example, wants to know what non-discrimination duties they have, they need to read each of Parts 2, 3, 3A, 4, 4A, 4B, 4C, 4E (there is no 4D), 4F and 4G of the Act, to learn that they have obligations to not discriminate on all grounds except, inexplicably, age. Compare this to the Victorian Act, for example, 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. The obligation on local government that is spread over nine provisions in NSW, is in a single provision in Victoria and similar jurisdictions.
Another the way in which the NSW Act fails as an effective a code of conduct is its language and scope. Of all laws, a law such as this must be inclusive, but terms such as homosexuality and transgender are limited in their scope, and the absence of protection for attributes such as gender identity, sexual orientation, political and religious belief, parental status, and industrial activity, illustrate how far the NSW Act is behind contemporary values.
Perhaps most significantly, the NSW Act remains simply a law that prohibits discrimination; it is not a law that actively promotes measures to secure equality, as laws in other jurisdictions do. It does not do as the acts in Victoria or the UK do, and as proposed sexual harassment amendments to the federal Sex Discrimination Act would do, and require that measures actively be taken to eliminate discrimination and harassment.
Nor does it go beyond prohibiting disability discrimination and do as most other such laws do, and require that steps be taken to make reasonable adjustments that accommodate a person’s disability. As an equality measure, reasonable adjustments could be made too for others such as those with carers responsibilities. Without a positive duty, to both eliminate discrimination and harassment, and make reasonable adjustments, the NSW fails its essential purpose, to help our society towards equality.
But the NSW Act is not amenable to a quick fix. It is already a barnacle encrusted, gap-plugged vessel. By my count, over the years the Act has been subject to 824 amendments, insertions and deletions, in 88 different amending Acts. 282 provisions have been squeezed into 128 numbers, with the numbering of inserted sections getting to ridiculous extremes, such as s49ZYW(2)(a) which specifies when 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 their rights. It would be unconscionable to tack yet another piece on to the NSW Act, unless explicitly as a necessary step pending an imminent new Act.
So how might we get there? Here’s a quote:
[The anti-discrimination] legislation is now outdated, and there is a really pressing need for reform to make the law comprehensive, consistent, effective, and user-friendly. [During the quarter century] since its enactment, the limits and defects of the legislation have become more and more apparent, and the passing of each new measure has added to the incoherence and opaqueness…[Equality] Commissions and other[s] have repeatedly called for the reform of this tangled web of legislation…[b]ut successive Governments have failed to heed their recommendations, preferring instead to make limited and piecemeal changes. The defective state of the law helps no-one except lawyers.
That was said not of the NSW Act but of the UK anti-discrimination legislation, in 2000, after only 25 years. The same, and more, can be said of the NSW Act now, after 45 years.
In the UK, an independent report, funded by philanthropists and conducted by academics and NGOs, created momentum that led to two concurrent public inquiries, the Equalities Review, and the Discrimination Law Review. The Discrimination Law Review consulted with general audiences in regional public events, with specialist audiences, and with stakeholders and interest groups. Its Review report anticipated the three principal parts of what became the Equality Act 2010 (UK): ‘harmonising and simplifying the law’; ‘making the law more effective’; and ‘modernising the law’. From the independent report to the Equality Act was an iterative, collaborative process of research, expert advice and consultation, which continued into 26 parliamentary Committee sittings.
The UK’s process was a considered and committed response to an urgent need to modernise the anti-discrimination law. Victoria undertook a less ambitious but similarly rigorous process to modernise its law which had been in much the same form for over thirty years. The Government both commissioned an independent public consultation and report, and undertook a parliamentary committee inquiry, to arrive at its all new 2010 Equal Opportunity Act.
Similarly in the ACT, as chair the ACT Law Reform Advisory Council, I led an inquiry into the scope and operation of the then 20 year old Discrimination Act 1991. We advertised the inquiry throughout the ACT, conducted public consultations, received submissions, met with stakeholders, conducted scholarly research, and recommended significant reforms. The government acted on many recommendations, but deferred some to an as-yet unrealised second stage.
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.
Which brings us back to the urgent need for reform NSW. Reforms from those three reviews I just mentioned were implemented 10 years ago. The laws are bedded down and operational. There have been some developments since, and some instructive cases, which would inform reforms now. The fact is that the established model is there for NSW to follow. The report Leaders to Laggards from the Public Interest Advocacy Centre is an important part of momentum towards reform.
It is not a brave step to now do as others have done and commit to contemporary measures to secure non-discrimination and equality for the people of NSW. We just need a government that cares.
This is a longer version of an article that was published in The Conversation on 3 September 2021, ‘NSW’s anti-discrimination law is confusing and outdated. Why is it lagging behind the country on reform?’