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Where am I now? Lawlink > Law Reform Commission > Publications > Report 92 (1999) - Review of the Anti-Discrimination Act 1977 (NSW)
Report 92 (1999) - Review of the Anti-Discrimination Act 1977 (NSW) Table of Contents Terms of reference VOLUME ONE 1. INTRODUCTION 2. INTERACTION WITH COMMONWEALTH LAWS
Administrative issues Other Commonwealth laws
Duplication Industrial relations laws Commonwealth industrial relations law Awards and other anti-discrimination provisions CONCLUSIONS 3. CONCEPT OF DISCRIMINATION
Discrimination identified by grounds, areas and exceptions Universal approach: protection not limited to disadvantaged groups Generalised approach to all grounds of discrimination Formal or substantive equality DIRECT DISCRIMINATION Problems associated with the definition of direct discrimination
The unexpressed declaration Benign discrimination Future discrimination not covered Characteristics
The “detriment” approach Future discrimination to be covered Characteristics redefined Other miscellaneous amendments Relevance to other grounds INDIRECT DISCRIMINATION The definition of indirect discrimination in the ADA Problems associated with the current definition of indirect discrimination
Discriminatory effects – reasonableness PART TWO: SUBSTANTIVE ISSUES 4. AREAS OF OPERATION
Coverage of members of Parliament including Ministers
Conditions of employment Termination of employment Current exceptions to employment
Small business exception Partnerships of fewer than six persons Employment by a private educational authority Nature of institution Nature of employment Formulation of exception Coverage under the ADA Coverage in other jurisdictions
Australia
Definition of “goods” Provision of “benefits” Coverage under the ADA Coverage in other jurisdictions Exception – education in a private educational authority ACCESS TO PLACES, VEHICLES AND FACILITIES Legislative development Coverage in other jurisdictions Judicial consideration Conclusion ACCOMMODATION Coverage under the ADA Coverage in other jurisdictions Grounds and occurrence of accommodation complaints The Commission’s view Exception – accommodation in a private household REGISTERED CLUBS Coverage under the ADA
Access to places where liquor is sold Membership of industrial organisations Membership of sporting and recreational clubs Voluntary bodies The case for redefining the area Defining the new area
Should a different test apply for disability and race discrimination? What exceptions should apply to incorporated bodies? DISPOSAL OF INTERESTS IN LAND Coverage in other jurisdictions What is an “interest in land”?
Tenancy in common Company title Community title Time-shares Retirement villages DISCRIMINATION IN GOVERNMENT ACTIVITIES Coverage under the ADA Coverage in other jurisdictions Need for a separate area 5. GROUNDS OF DISCRIMINATION
Ethno-religious origin Language
Pregnancy Breastfeeding
Reasonable accommodation Employment Provision of goods and services Education
Appearance Age Transgender
Major issues facing transgender persons Interpretation of the new provisions Religion
Other considerations Submissions Definition of ground A definition for anti-discrimination law
The Commission’s approach Inter-relationship with marital status Nature of prohibition Conclusions Other areas of operation Industrial activity Appearance Criminal record
Lapsed criminal convictions Accent discrimination Geographical location, social status and occupation 6. EXCEPTIONS AND EXEMPTIONS
Legislative history Scope of the exception Other jurisdictions Submissions Operation of the s 54 exception Conclusion
Other jurisdictions Submissions Discussion
Other jurisdictions Submissions Conclusion
Legislative history Other jurisdictions Submissions Conclusion
Legislative history Other jurisdictions Conclusion EXEMPTIONS Exemptions granted by the Minister
Issues for consideration Conclusion SPECIFIC EXCEPTIONS Race
Membership of clubs Sport Other exceptions
Single-sex schools Membership of clubs Sport Conclusion Superannuation Insurance
Superannuation
Educational institutions conducted solely for students with a disability Superannuation and insurance Sport Membership of clubs Age
Work Education Access to places and vehicles Provision of goods and services Other exceptions Accommodation Registered clubs Legal capacity and welfare of children Special needs programs Superannuation Insurance Safety procedures Sport
EXCEPTIONS TO THE NEW GROUNDS Political opinion
Clubs established for persons of a particular political belief or affiliation Discussion General exceptions
School admission Clubs established for persons of a particular religion or belief Accommodation Access to places General exceptions
General exceptions INTRODUCTION HARASSMENT Concept of harassment Harassment and discrimination Harassment on other grounds
The case for extending the prohibition
The victim’s perspective The Commission’s view
Introduction Current statutory provisions
Vilification legislation in other jurisdictions
Freedom of speech concerns Other concerns The case for legal regulation Free speech is not an absolute right Other arguments in favour of legal regulation Which groups should anti-vilification legislation protect?
Coverage of all groups covered by the ADA Coverage of selected grounds Other grounds of vilification suggested for inclusion General conclusions
Definition of “public act” Should vilification be confined to the public sphere? Clarification of the definition of “public” Distribution of vilifying materials The “incitement” requirement Hatred, serious contempt or severe ridicule
Absolute privilege for defamation Purposes in the public interest
Relocation of serious vilification provisions Scope of prohibition
“On the ground of” Complainant must appear to have done one of the things described in s 50(1)
UNLAWFUL ADVERTISEMENTS Scope of the prohibition
Defences and exceptions LIABILITY ISSUES Legislative history of sections 52 and 53 Other jurisdictions
Other States
Joint and several liability VOLUME TWO 8. THE COMPLAINT PROCESS
Persons requiring assistance Content of complaint Time for lodgement of complaint
INVESTIGATION Nature of the process Powers of the President at investigation
Compulsion and non-parties Sanctions Effectiveness of the current process of investigation CONCILIATION Nature of the process Differentiating the investigation and conciliation functions Confidentiality of conciliation proceedings
Confidentiality: secrecy provisions Remedies Enforcement of conciliation agreements TERMINATION OF A COMPLAINT Settlement by agreement Withdrawing a complaint Revival of terminated complaint Timelines Death of a complainant or respondent REFERRAL Preconditions for referral Direct referral to hearing for repeat respondents Review of decisions of the President Amendment of complaints before the President Report accompanying referral ALTERNATIVE PROCEDURES Reasons for current regime Need to reconsider Alternative forums A NEW ENFORCEMENT ROLE FOR THE ADB Public enforcement
Overseas equal opportunity agencies Powers of other Australian agencies Submissions Should the President of the ADB have a power of inquiry? The Commission’s view How the proposed power would work Further issues 9. TRIBUNAL PROCEEDINGS
PRE-HEARING PROCEDURES Procedural rules Conciliation Confidentiality orders Representation Access to legal representation Summary dismissal of complaints POWERS TO OBTAIN EVIDENCE POWERS IN RELATION TO RELIEF Interim orders Final orders Reasons for decision CLASS ACTIONS Representative action provisions under the ADA Criticisms of the current model for class actions Representative actions in Federal equal opportunity laws Criticisms of the Federal Court model Adopting an expanded representative procedure TRIBUNAL RULES What should the rules contain? COSTS The general rule The Commission’s view Costs in other courts APPEALS FROM DECISIONS OF THE TRIBUNAL MISCELLANEOUS Officer of the ADB assisting the Tribunal Burden of proof 10. REMEDIES
The Commission’s view Conclusions
Aggravated damages Exemplary damages
Declarations Other orders Victimisation REPRESENTATIVE PROCEEDINGS ROLE OF THE PRESIDENT OF THE ADB POWERS OF COURTS INTEREST ON AWARDS ENFORCEMENT OF ORDERS Adequacy of penalties Other offences Enforcement against the Crown and Crown agencies APPENDICES TABLE OF LEGISLATION |
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