Between then and now much has happened both generally in the area of social welfare legislation and in discrimination law.

Today, there is federal legislation covering aspects of discrimination law and all Australian states and territories have enacted discrimination legislation. The ADA itself has been amended many times to improve its coverage and application so as to reflect social changes. There have been many individual success stories and some landmark cases. However, the ADA has not had the benefit of a comprehensive review to ascertain its effectiveness. Given the changes in community attitudes since its enactment over the last twenty years, it became apparent that the ADA needed to be reviewed in the context of modern Australian society. Accordingly, the Commission was required to undertake a comprehensive review as spelt out in the terms of reference.

This two volume Report is the result of many years of consultation and detailed research into the adequacy of the ADA in its current form to combat discrimination. In the course of this review, the Commission released a Discussion Paper which raised issues for public deliberation and a Research Report on complaint handling. This report contains 161 recommendations based on responses to the Discussion Paper and information elicited from other community consultations, an analysis of current research and a consideration of judicial and legislative developments in Australia and overseas. In order to show how the recommendations should be given legislative effect, the Commission instructed Parliamentary Counsel to draft a new Anti-Discrimination Bill (see Appendix A). The Bill adopts a new structure in keeping with more recent Australian equal opportunity legislation and sets out a clearer conceptual framework. The recommendations listed in the following pages have been cross referenced to the Bill provisions for easy access.

The report is in three parts with each part considering major issues:

• Part 1 entitled “Preliminary and Definitional Issues” deals with Commonwealth human rights and industrial relations laws and their impact on and interaction with the ADA, the definition of discrimination, the problems associated with the current comparability model and options for reform;
• Part 2 entitled “Substantive Issues” deals with the areas of operation in the context of the public/private dichotomy, the current coverage and the need for an extension of that coverage, the current exceptions and how they could be streamlined to deliver a more practically effective set of prohibitions as well as other unlawful conduct and related concepts such as vilification and harassment; and
• Part 3 entitled “Enforcement Issues” deals with procedures available to prevent or remedy unlawful discrimination such as the complaints process at the Anti-Discrimination Board, the role of the Equal Opportunity Division of the Administrative Decisions Tribunal (formerly the Equal Opportunity Tribunal) and the remedies available.

• religious belief, political opinion and carer responsibilities (in the area of employment only) should be included as new grounds of discrimination;
• the concept of direct discrimination should be based on and focussed at covering conduct causing detriment or disadvantage on the ground of an irrelevant characteristic;
• an obligation to provide reasonable accommodation should be imposed in relation to the grounds of disability, pregnancy, breast feeding and carer responsibilities (in employment) subject to a defence of unjustifiable hardship;
• in relation to the concept of indirect discrimination, the burden of establishing reasonableness should specifically rest with the respondent;
• some exceptions that apply to specific grounds in specific areas of operation, such as those that excluded small business and partnerships of fewer than five persons from the ambit of the ADA, be repealed and others, such as those that applied to exclude private educational authorities in the area of employment from the ambit of the ADA, be limited;
• the general exceptions should be streamlined by repealing the statutory authorities exception and modifying or repealing others and including a new special measures exception;
• the current areas of operation should be widened to include the new areas of discrimination in the disposition of land and local government and the ambit of the existing area of registered clubs be widened under the new heading of “clubs”;
• the offence of “serious vilification” should be relocated in the Crimes Act 1900 (NSW);
• current representative complaint provisions should be amended;
• the President of the ADB should be given powers of self initiation;
• all procedural provisions in the ADA should be transferred to the Administrative Decisions Tribunal Act 1997 (NSW).