Lawlink NSW: 1. Introduction

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Discussion Paper 30 (1993) - Review of the Anti-Discrimination Act 1977 (NSW)

1. Introduction

History of this Reference (Digest)

THE COMMISSION’S REFERENCE

The terms of reference

1.1 In a letter dated 17 December 1991, the Commission received the following reference from the former Attorney General, the Hon P E J Collins QC .

To inquire into and report on the current scope and operation of the

Anti-Discrimination Act

1977 (NSW) and any related issues.

In conducting the review the Commission was asked to have regard to:

existing Commonwealth laws relating to anti-discrimination;
Australia’s international human rights obligations as they relate to anti-discrimination; and
any related issues.

Background

1.2 The Anti-Discrimination Act 1977 (NSW) (“the Act”) commenced on 1 June 1977 making New South Wales the second Australian State to pass legislation prohibiting discrimination. The Act has now been in operation for fifteen years and many States have since followed suit by enacting similar legislation. In the federal jurisdiction, discrimination on the grounds of race and sex is covered by the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth) respectively. Discrimination on the ground of disability is now covered by the Disability Discrimination Act 1992 (Cth) which was passed on 15 October 1992 and commenced in part on 26 November 1992. (The operative provisions are scheduled to commence on 1 March 1993.)

1.3 The rationale behind the enactment of the Anti-Discrimination Act was recognition of the need for, and importance of, the protection of fundamental rights and freedoms and the provision of equal opportunity for all people. Introducing the Bill in Parliament, the then Premier, the Hon Neville Wran QC, said in his second reading speech that “all human beings are born equal, have a right to be treated with equal dignity, and a right to expect equal treatment in society” and that “the [Anti-Discrimination] Bill is an attempt, as far as legislation can, to end intolerance, prejudice and discrimination in our community”.

1.4 The Anti-Discrimination Act 1977 (NSW) is described in its Preamble (the introductory part of the Act) as “an Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons”. Since coming into force, the New South Wales Parliament has responded to the need for widening the scope of the Act, prompted by decisions of the Supreme Court and the Equal Opportunity Tribunal and recommendations of the Anti-Discrimination Board. Accordingly, the Act has been amended on numerous occasions. The amending legislation has:

introduced new grounds of discrimination (eg physical impairment was added in 1981, intellectual impairment and homosexuality in 1982);
established new administrative and regulatory bodies (eg the Office of the Director of Equal Opportunity in Public Employment was created in 1980, the Equal Opportunity Tribunal in 1981); and
widened the overall scope and operation of the Act (eg indirect discrimination was made unlawful in 1981, pregnancy was included as discrimination on the ground of sex in 1981, appointment of part-time judicial members to the Equal Opportunity Tribunal was allowed in 1982, the Tribunal was allowed to conduct hearings in private in 1984, racial vilification was made unlawful in 1989, compulsory retirement of most NSW public service employees was made unlawful in 1991, with the introduction of similar provisions for local government in 1992 and the private sector in 1993).

1.5 Although the Act has been amended many times to deal with specific matters, it has never been the subject of a comprehensive review in its fifteen years of operation and suffers from the effects of piecemeal amendment. It is therefore timely that the Law Reform Commission conduct a comprehensive, overall review of the Act. The Commission’s review is not limited to the Act’s current operation. It will also consider the purpose and effect of anti-discrimination law. Such a review is necessary, given the length of time that has lapsed as well as the changing and constantly evolving social, political and legal conditions since the Act was first introduced in 1977.

1.6 There have been a number of inquiries in recent years at both the federal and state level on various aspects of discrimination law. The Commission will consider the reports of these inquiries in the course of its review.

The scope of the reference

1.7 The scope of this reference is extremely broad. It involves an analysis of the Anti-Discrimination Act 1977 (NSW), which covers six grounds of discrimination, namely race, sex, marital status, physical impairment, intellectual impairment and homosexuality. The Act also makes racial vilification unlawful and prohibits compulsory retirement from public sector employment on the ground of age. Each ground has various areas of operation, such as work, education, the provision of goods and services, and is subject to special and general exceptions. The Act also sets in place procedural mechanisms for its operation and enforcement by the establishment of the Anti-Discrimination Board, the Equal Opportunity Tribunal and the Office of the Director of Equal Opportunity in Public Employment. The Commission will carry out a detailed analysis of the Act which is intended to establish whether there are significant gaps and anomalies in the legislation and whether the enforcement mechanisms are effective.

1.8 The Commission is committed to conducting a comprehensive review of the Act and its purpose and effect, including a consideration of the philosophical issues underlying discrimination and other approaches to anti-discrimination law and practice. Existing federal discrimination and other associated legislation gives rise to constitutional issues that will be addressed in the review. The relationship between the principles of anti-discrimination as embodied in the Act and the international human rights conventions to which Australia is a signatory will also be examined. The Commission will also consider the relationship between anti-discrimination law and other related areas, especially employment and industrial relations, and the continuing effectiveness of anti-discrimination law in the context of developments and changes in those related areas.

THE COMMISSION’S APPROACH

Essential aspects of the process of law reform

1.9 The Commission’s approach to all its references involves extensive research and consultation. The purpose of research is to ascertain what the existing law is, what its defects are, what has been done to correct those defects in other jurisdictions, how effective those solutions have been and what solutions would work best in New South Wales. The purpose of consultation is to involve the community in the law reform process in order to facilitate a workable and practical solution to the matter under review. As Justice Hartt, the first Chairman of the Law Reform Commission of Canada once said “[l]aw touches the lives of everyone; it is therefore the business of everyone”.

The conduct of the reference to date

1.10 Given the breadth of the reference and the number of interest groups and people it would wish to consult, the Commission decided that it should seek a preliminary response to the terms of reference. Accordingly, the terms of reference were distributed to people and organisations in New South Wales and elsewhere in Australia, including a number of overseas law reform agencies. Approximately 700 individuals and organisations have been contacted. Comments made and issues raised in preliminary meetings, interviews, written submissions and telephone calls have been incorporated in Chapters 2 to 7 of this Discussion Paper and will be dealt with in more detail in the next Discussion Papers.

The purpose of this Discussion Paper

1.11 The purpose of this Discussion Paper is to outline the approach the Commission proposes to adopt in conducting this review and to identify issues of concern. It is meant to promote discussion of, and to invite submissions on, those issues and the conceptual framework within which the Commission proposes to deal with the issues raised by the reference. This Paper does not provide discussion on the scope and operation of the Act in great detail nor does it make specific recommendations for reform.

The next step

1.12 The volume and complexity of the issues to be addressed in the course of the review will require the Commission to publish a further Discussion Paper (possibly two) which will focus on the major issues of concern and make draft recommendations for change. The contents of these further Paper(s) will be influenced by the response to the issues raised in this preliminary Discussion Paper. The draft recommendations made in those Papers will be subject to extensive community consultation, after which the Commission will prepare its final Report to the Attorney General.

The structure of this Discussion Paper

1.13 This Paper consists of seven chapters.

Chapter 1 outlines the approach that the Commission proposes to adopt in conducting the review.

Chapters 2 to 7 identify specific issues that have arisen for consideration out of the Commission’s preliminary research and comments made at meetings and interviews, as well as in written submissions and telephone calls. The Commission emphasises that the issues identified are not meant to be an exhaustive list of all the relevant issues. They are a tool to stimulate further discussion. To facilitate consideration of the issues in context, the issues for consideration are preceded by a general comment. Although each chapter deals with different subject areas, some issues for consideration overlap between chapters. Such issues have been cross referenced within the Paper and should not be considered in isolation. Each chapter is followed by a list of suggested background reading material. Those lists include articles, books and cases used in the preparation of the respective chapters, as well as some additional references that may be useful to gain a better understanding of the issues raised.

1.14 The contents of chapters 2 - 7 are as follows:

Chapter 2 - The wider issues: impact of the Constitution, international human rights obligations and industrial relations on discrimination law