ADA

The NSW Law Reform Commission discussion paper on its review of the Anti-Discrimination Act 1977 (NSW) (ADA) reflects Terms of Reference regarding 

1. whether the Act could be modernised and simplified to better promote the equal enjoyment of rights and reflect contemporary community standards 

2. whether the range of attributes protected against discrimination requires reform 

3. whether the areas of public life in which discrimination is unlawful should be reformed 

4. whether the existing tests for discrimination are clear, inclusive and reflect modern understandings of discrimination 

5. the adequacy of protections against vilification, including (but not limited to) whether these protections should be harmonised with the criminal law 

6. the adequacy of the protections against sexual harassment and whether the Act should cover harassment based on other protected attributes 

7. whether the Act should include positive obligations to prevent harassment, discrimination and vilification, and to make reasonable adjustments to promote full and equal participation in public life 

8. exceptions, special measures and exemption processes 

9. the adequacy and accessibility of complaints procedures and remedies 

10. the powers and functions of the Anti-Discrimination Board of NSW and its President, including potential mechanisms to address systemic discrimination 

11. the protections, processes and enforcement mechanisms that exist in other Australian and international anti-discrimination and human rights laws, and other NSW laws 

12. the interaction between the Act and Commonwealth anti-discrimination laws 

13. any other matters the Commission considers relevant to these Terms of Reference. 

 The Commission states 

 This is the first of two consultation papers in which we will invite you to share your views on the Anti-Discrimination Act 1977 (NSW) (ADA). In this paper, we consider issues relating to the tests for discrimination, who is protected, the areas in which discrimination is prohibited and exceptions. We also consider harassment, civil vilification and other unlawful acts, as well as liability and measures to promote substantive equality. We ask if any of these aspects of the ADA should change and, if so, how. 

Next steps 

The NSW Attorney General has asked us to review the Anti-Discrimination Act 1977 (NSW) (ADA). Among other things, we have been asked to consider whether the ADA “could be modernised and simplified to better promote the equal enjoyment of rights and reflect contemporary community standards”. 

... In this consultation paper, we focus on the conduct that is (or should be) unlawful under the ADA. In summary, we seek your views on: • the types of acts and conduct that should be prohibited, and the circumstances in which the prohibitions should apply • the people and groups who should be entitled to the ADA’s protections • the people and organisations who should be held responsible for unlawful conduct, and when (if ever) their actions should be exempt from the ADA, and • whether the ADA should do more to promote substantive equality. 

Our second consultation paper will consider the procedural aspects of the ADA, including complaint pathways, enforcement options, remedies and options for preventing unlawful conduct. 

Background to this review 

The ADA was groundbreaking when it was enacted almost 50 years ago. As the first broad discrimination Act in Australia, it prohibited discrimination based on race, sex and marital status. When the legislation was introduced into the NSW Parliament, the Premier said “I am confident that this legislation is the most enlightened, and will be the most effective, legislation in this field in Australia”. 

Much has changed in NSW since 1977. By the 1990s, there were concerns that the ADA had not stood the test of time. This led to the NSW Government asking the NSW Law Reform Commission (NSWLRC) to review the ADA in 1991. As the NSWLRC explained in it its final report:

The legislation as it currently exists tends to reflect the political and social climate at the time of its enactment. Although the ADA has been amended several times to reflect changing community values, these amendments have been piecemeal. ... Taking into account the length of time that has elapsed since the introduction of the ADA, and the law’s inability to deal once and for all with constantly evolving social, political and legal conditions, it is appropriate that there be a comprehensive review of the legislation. 

Our predecessors’ 8-year review of the ADA was indeed comprehensive. The NSWLRC’s 1999 report made 161 recommendations and contained a Draft Anti- Discrimination Bill. While some recommendations were implemented, most were not. 

In the years since 1999, there have been many changes to discrimination laws across Australia. Other states and territories have reviewed their discrimination laws. Some of these reviews have led to significant legislative reform. There have been developments in employment law and reviews of discrimination laws at the federal level too. 

In 2021, there were renewed calls by community and legal groups for a comprehensive review of the ADA. In announcing this review in 2023, the NSW Attorney General recognised that: There have been monumental shifts in society, demographics and attitudes since the Act came into force nearly half a century ago. … It is essential to conduct reviews of this nature to ensure our laws represent who we are today as a community. 

It could still be said, as the NSWLRC did in 1999, that many aspects of the ADA continue to “reflect the political and social climate at the time of its enactment”. In addition to concerns about its substantive content, many believe the ADA uses outdated and offensive language, and its style and structure is difficult for the community to navigate. 

Our role in this review is to examine the ADA thoroughly and, where necessary, make recommendations to ensure that this law serves our community effectively

The Commission's questions are 

3. Tests for discrimination 

Question 3.1: Direct discrimination Could the test for direct discrimination be improved or simplified? If so, how? 

Question 3.2: The comparative disproportionate impact test Should the comparative disproportionate impact test for indirect discrimination be replaced? If so, what should replace it? 

Question 3.3 Indirect discrimination and inability to comply What are your views on the “not able to comply” part of the indirect discrimination test? Should this part of the test be removed? Why or why not? 

Question 3.4: Indirect discrimination and the reasonableness standard (1) Should the reasonableness standard be part of the test for indirect discrimination? If not, what should replace it? (2) Should the ADA set out the factors to be considered in determining reasonableness? Why or why not? If so, what should they be? 

Question 3.5: Indirect discrimination based on a characteristic Should the prohibition on indirect discrimination extend to characteristics that people with protected attributes either generally have or are assumed to have? 

Question 3.6: Proving indirect discrimination (1) Should the ADA require respondents to prove any aspects of the direct discrimination test? If so, which aspects? (2) Should the ADA require respondents to prove any aspects of the indirect discrimination test? If so, which aspects? 

Question 3.7: Direct and indirect discrimination (1) How should the relationship between different types of discrimination be recognised? (2) Should the ADA retain the distinction between direct and indirect discrimination? Why or why not? 

Question 3.8: Intersectional discrimination (1) Should the ADA protect against intersectional discrimination? Why or why not? (2) If so, how should this be achieved? 

Question 3.9: Intended future discrimination Should the tests for discrimination capture intended future discrimination? Why or why not? If so, how could this be achieved? 

4. Discrimination: protected attributes 

Question 4.1: Age discrimination (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “age”? (2) What changes, if any, should be made to the age-related exceptions? 

Question 4.2: Discrimination based on carer’s responsibilities (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “responsibilities as a carer”? (2) Should the ADA separately protect against discrimination based on someone’s status of being, or not being, a parent? 

Question 4.3 Disability discrimination (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “disability”? (2) Should a new attribute be created to protect against genetic information discrimination? Or should this be added to the existing definition of disability? (3) What changes, if any, should be made to the public health exception? 

Question 4.4: Discrimination based on homosexuality What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “homosexuality”? 

Question 4.5: Discrimination based on marital or domestic status What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “marital or domestic status”? 

Question 4.6: Racial discrimination (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “race”? (2) Are any new attributes required to address potential gaps in the ADA’s protections against racial discrimination? 

Question 4.7: Sex discrimination (1) What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “sex”? (2) Should the ADA prohibit discrimination based on pregnancy and breastfeeding separately from sex discrimination? 

Question 4.8: Discrimination on transgender grounds What changes, if any, should be made to the way the ADA expresses and defines the protected attribute of “transgender grounds”? 

Question 4.9: Extending existing protections (1) Should the ADA protect people against discrimination based on any protected attribute they have had in the past or may have in the future? (2) Should the ADA include an attribute which protects against discrimination based on being a relative or associate of someone with any other protected attribute? 

5. Discrimination: potential new protected attributes 

Question 5.1: Guiding principles What principles should guide decisions about what, if any, new attributes should be added to the ADA? 

Question 5.2: Potential new attributes (1) Should any protected attributes be added to the prohibition on discrimination in the ADA? If so, which what should be added and why? (2) How should each of the new attributes that you have identified above be defined and expressed? (3) If any of new attributes were to be added to the ADA, would any new attribute- specific exceptions be required? 

Question 5.3: An open-ended list Should the list of attributes in the ADA be open-ended to allow other attributes to be protected? Why or why not? 

6. Discrimination: Areas of public life 

Question 6.1: Discrimination at work — coverage (1) Should the definition of employment include voluntary workers? Why or why not? (2) Should the ADA adopt a broader approach to discrimination in work, like the way the Sex Discrimination Act 1984 (Cth) approaches harassment? Why or why not? (3) Should local government members be protected from age discrimination while performing work in their official capacity? Why or why not? 

Question 6.2: Discrimination in work — exceptions What changes, if any, should be made to the exceptions to discrimination in work? 

Question 6.3: Discrimination in education (1) What changes, if any, should be made to the definition and coverage of the protected area of “education”? (2) What changes, if any, should be made to the exceptions relating to: (a) single-sex educational institutions, and (b) disability and age discrimination in educational institutions? 

Question 6.4: The provision of goods and services — coverage What changes, if any, should be made to the definition and coverage of the protected area of “the provision of goods and services”? 

Question 6.5: Superannuation services and insurance exceptions What changes, if any, should be made to the exceptions applying to insurance and superannuation? 

Question 6.6: The provision of goods and services — exceptions What changes, if any, should be made to the exceptions to sex, age and disability discrimination in relation to the provision of goods and services? 

Question 6.7: Discrimination in accommodation — coverage What changes, if any, should be made to the definition and coverage of the protected area of “accommodation”? 

Question 6.8: Discrimination in accommodation — exceptions What changes, if any, should be made to the exceptions for private households, age-based accommodation and charitable bodies in relation to discrimination in accommodation? 

Question 6.9: Discrimination by registered clubs — coverage What changes, if any, should be made to the definition and coverage of the protected area of “registered clubs”? 

Question 6.10: Discrimination by registered clubs — exceptions What changes, if any, should be made to the exceptions for registered clubs in relation to sex, race, age and disability discrimination? 

Question 6.11: Discrimination based on carer’s responsibilities (1) Should discrimination based on carer’s responsibilities be prohibited in all protected areas of public life? If not, what areas should apply and why? (2) In general, should discrimination be prohibited in all protected areas for all protected attributes? Why or why not? 

Question 6.12: Additional areas of public life (1) Should the ADA apply generally “in any area of public life”? Why or why not? (2) Should the ADA specifically cover any additional protected areas? Why or why not? If yes, what area(s) should be added and why? 

7. Wider exceptions 

Question 7.1: Religious personnel exceptions (1) Should the ADA provide exceptions for: (a) the training and appointment of members of religious orders? (b) “the appointment of any other person in any capacity by a body established to propagate religion”? (2) If so, what should these exceptions cover and when should they apply? 

Question 7.2: Other acts and practices of religious bodies Should the ADA provide an exception for other acts or practices of religious bodies? If so, what should it cover and when should it apply? 

Question 7.3: Exceptions for other forms of unlawful conduct Should the general exceptions for religious bodies continue to apply across the ADA, including to all forms of unlawful conduct under the Act? 

Question 7.4: Exceptions for providers of adoption services Should the ADA have a specific exception for providers of adoption services? If so, what should it cover and when should it apply? 

Question 7.5: Private educational authorities employment exceptions (1) Should the ADA contain exceptions for private educational authorities in employment? Should these be limited to religious educational authorities? (2) If you think the Act should provide exceptions in this area: (a) what attributes should the exceptions apply to? (b) what requirements, if any, should duty holders meet before an exception applies? (a) what attributes should the exceptions apply to? (b) should they apply to prospective students, existing students, or both? (c) what requirements, if any, should duty holders meet before an exception 

Question 7.6: Discrimination against students and prospective students (1) Should the ADA contain exceptions for private educational authorities in education? Should these be limited to religious educational authorities? (2) If you think it is necessary for the ADA to provide exceptions in this area: applies? 

Question 7.7: Exceptions relating to sport Should the ADA provide exceptions to discrimination or vilification in sport? If so, what should they cover and when should they apply? 

Question 7.8: The charities exception Should the ADA provide exceptions relating to charitable benefits? If so, what should they cover and when should they apply? 

Question 7.9: Voluntary bodies exception Should the ADA provide an exception for voluntary bodies? If so, what should it cover and when should it apply? 

Question 7.10: Aged care accommodation providers exception Should the ADA provide an exception for aged care accommodation providers? If so, what should it cover and when should it apply? 

Question 7.11: The statutory authorities exception Should the ADA provide an exception for acts done under statutory authority? If so, what should it cover and when should it apply? 

8. Civil protections against vilification 

Question 8.1: Protected attributes (1) What changes, if any, should be made to the way the ADA expresses and defines the attributes currently protected against vilification? (2) Should the ADA protect against vilification based on a wider range of attributes? If so, which attributes should be covered and how should these be defined? 

Question 8.2: The test for vilification (1) Should NSW adopt a “harm-based” test for civil vilification? If so, should this replace or supplement the existing “incitement-based” test? (2) What, if any, other changes should be made to the incitement-based test for civil vilification? 

Question 8.3: The definition of “public act” What changes, if any, should be made to the definition of “public act” in the test for vilification in the ADA? 

Question 8.4: Exceptions What changes, if any, should be made to the exceptions to the vilification protections in the ADA? 

Question 8.5: Religious vilification What changes, if any, should be made to the protection against religious vilification in the ADA? 

9. Harassment 

Question 9.1: The definition of sexual harassment (1) Should the reasonable person test be expanded to include the “possibility” of offence, intimidation or humiliation? Why or why not? (2) Should the ADA expressly require consideration of an individual’s attributes, or the relationship between the parties, in determining whether a person would be offended, humiliated or intimidated by the conduct? Why or why not? (3) Does the ADA need to define “conduct of a sexual nature”? Why or why not? 

Question 9.2: Other sex-based conduct (1) Should harassment on the ground of sex be expressly prohibited by the ADA? Why or why not? (2) Should the ADA prohibit workplace environments that are hostile on the ground of sex? Why or why not? (3) Are there any other options or models to prohibit conduct which may fall in the gap between sex discrimination and sexual harassment? What could be the benefits of these options? 

Question 9.3: Sexual harassment in the workplace Should the ADA adopt the Sex Discrimination Act’s approach of prohibiting sexual harassment in connection with someone’s status as a worker or person conducting a business or undertaking? Why or why not?  (a) areas of life that are protected from discrimination (b) all areas of public life, or (c) any area of life, public or private? 

Question 9.4: Workplace-related laws regulating sexual harassment (1) Are workplace-related sexual harassment laws and the ADA currently working well together, in terms of the definitions of sexual harassment? (2) Should the ADA and workplace-related sexual harassment laws be more aligned? 

Question 9.5: Expanding the areas of life where sexual harassment is prohibited (1) Should the ADA continue to limit the areas of life where sexual harassment is unlawful? Why or why not? (2) Should sexual harassment be unlawful in other areas of life? For example: 

Question 9.6: The private accommodation exception Should sexual harassment be prohibited in private accommodation? Why or why not? If an exception for private accommodation is required, how wide should it be? 

Question 9.7: Attribute-based harassment If the ADA was to prohibit attribute-based harassment, which attributes and areas should it cover? 

10. Other unlawful acts and liability 

Question 10.1: Victimisation (1) Should the prohibition of victimisation in the ADA expressly extend to situations where a person threatens to victimise someone? Why or why not? (2) Should the ADA provide that victimisation is unlawful even if it was done for two or more reasons? If so, how best could this be achieved? 

Question 10.2: Advertisements Should it be a defence to publishing an unlawful advertisement that the person reasonably believed publication was not unlawful? Why or why not? 

Question 10.3: The forms of liability What, if any, concerns or issues are raised by the ADA’s approach to the various forms of liability? 

Question 10.4: The exceptions for liability Should the ADA continue to provide two exceptions to vicarious liability (that is, the “reasonable steps” and “unauthorised acts” exceptions)? Or is a single “reasonable steps” exception sufficient? 

Question 10.5: Liability and artificial intelligence Does the use of AI challenge the ADA’s approach to liability? If so, how could the ADA be amended to address this? 

11. Promoting substantive equality 

Question 11.1: Adjustments (1) Should the ADA impose a duty to provide adjustments? If so, what attributes should this apply to? (2) Should this be a separate duty, form part of the tests for discrimination, or is there another preferred approach? (3) Should a person with a protected attribute first have to request an adjustment, before the obligation to provide one arises? 

Question 11.2: Special measures (1) Should the ADA generally allow for special measures? Why or why not? (2) If so, what criteria for a special measure should the ADA apply? (3) If a general special measures section is added to the ADA, should it replace the existing exemption and certification processes? Why or why not? 

Question 11.3: A positive duty to prevent or eliminate unlawful conduct (1) Should the ADA include a duty to take reasonable and proportionate measures to prevent or eliminate unlawful conduct? Why or why not? (2) If so: (a) What should duty holders be required to do to comply with the duty? (b) What types of unlawful conduct should the duty cover? (c) Who should the duty holders be? (d) What attributes and areas should the duty apply to?.