Proposed overhaul of nsw anti-discrimination act 1977


Proposed overhaul of nsw anti-discrimination act 1977

In a long-awaited, 944 page Report prepared after eight years of consultation and research, the New South Wales Law Reform Commission has recommended sweeping changes to the Anti-Discrimination Act 1977(NSW) ('the ADA').


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In a long-awaited, 944 page Report prepared after eight years of consultation and research, the New South Wales Law Reform Commission has recommended sweeping changes to the Anti-Discrimination Act 1977(NSW) ('the ADA').

The Report contains 161 recommendations and includes a draft Bill demonstrating how the recommendations should be given legislative effect. The Bill adopts a simpler structure than the current ADA and is more in keeping with recent equal opportunity legislation in other Australian jurisdictions.

Damages Increased

One of the most significant changes proposed in the report is that the ceiling on damages awards, which currently stands at $40,000, be lifted to $750,000 in cases where a District Court Judge presides and to $150,000 in other cases. This change has the potential to give rise to very large damages awards, particularly where there are multiple grounds of discrimination involved in a claim.

Irrelevant Characteristics

What are currently referred to as the 'grounds' of discrimination are referred to as 'irrelevant characteristics' in the proposed Bill. Employment decisions based on one or more of the irrelevant characteristics listed in the Bill will be unlawful unless an exception applies or an exemption has been obtained.

Included amongst the irrelevant characteristics are the grounds of discrimination currently in place, but with religion, political opinion, and carer responsibilities (which includes family responsibilities), added as new 'irrelevant characteristics'.

In relation to discrimination against women, the proposed Bill specifically states that the irrelevant characteristics of a woman include: pregnancy, ability to become pregnant and involvement in breastfeeding. 

'Sexuality' Replaces Homosexuality

The ground of 'sexuality' will replace the current ground of homosexuality. 'Sexuality' is defined to include heterosexuality, homosexuality and lesbianism, and bisexuality.

Carer and Family Responsibilities

'Carer responsibilities' are defined as 'responsibilities to care for or support another person in a significant relationship involving dependency, commitment, care, or support'. Dependency includes financial, physical or emotional reliance.

'Family responsibilities' means the responsibilities of a person on whom a relative of the person is substantially dependent for ongoing care, attention and support (including financial, physical or emotional support).

'Domestic Status' Replaces Marital Status

The ground of marital status is to be re-named 'domestic status' and includes being 'in cohabitation with another person in a domestic relationship other than marriage'. This provision clearly includes same sex relationships.

Direct and Indirect Discrimination

The test for direct discrimination has been simplified by the removal of the requirement for a comparator. The new test states that direct discrimination will take place where a person, in doing an act that adversely affects a second person, relies on or takes into account an irrelevant characteristic of the second person. The definition of indirect discrimination refers to acts which have an adverse impact on a class of persons having an irrelevant characteristic. It will be up to the employer to prove that such an act was reasonable in the circumstances.

Reasonable Accommodation

Discrimination will also take place in the context of employment where the employer fails to take reasonable steps to accommodate the needs an employee with a disability, an employee with carer responsibilities, an employee who is pregnant or potentially pregnant, or an employee who is breastfeeding.

Reasonable steps to be considered include:

  • changes to the physical conditions of the workplace
  • changes to work practices
  • variations in the terms and conditions under which the work would otherwise be undertaken
  • the provision of special services or facilities

Steps will not be reasonable where they impose unjustifiable hardship on the employer. The employer will bear the burden of proving that steps required would be unreasonable.

Other Changes

Other proposed changes include the following:

Volunteer workers. The proposed Bill's coverage extends to include volunteer, trainee and unpaid workers.

Small businesses. The small business exception has been removed (under the current Act, employers with less than five employees are excluded in respect of discrimination based on some grounds).

Statutory authority. The exception for acts done under statutory authority will be repealed 12 months after the commencement of the new Act. However, there will be a general exception on the ground of age where discrimination is necessary to comply with another Act, regulation, or other statutory instrument.

Special measures. A new exception that allows special measures to be taken to secure the advancement or protect the interests of disadvantaged persons will be included.

Genuine occupational qualification. The exception relating to genuine occupational qualification will be narrowed in a number of respects. There will also be a requirement that in order for the exception to apply the employer must act in good faith. There will be an exception to discrimination on the ground of religion on the basis of a genuine occupational qualification.

Superannuation. The current exception that allows discrimination in superannuation on the ground of marital status will be removed. However, there will be a saving provision allowing existing funds to retain provisions which discriminate on the ground of domestic status provided the scheme is closed and existing members have been offered an option to transfer to a non-discriminatory scheme. The exception for superannuation on the ground of transgender status will be repealed. The exception for superannuation on the ground of sex will be replaced with an exception in relation to existing funds in the same terms as the federal Sex Discrimination Act 1984.

Public health. A public health exception applies where the disability of a person involves a transmissible condition, and on the basis of reasonable medical or other expert opinion, measures that are not disproportionate to the risks involved are pursued.

Junior rates. The exception allowing the payment of junior rates will cease to operate in December 2000. This will result in an inconsistency arising between the federal and State provisions on junior rates.

Sexual harassment. The current definition of sexual harassment will be amended to make specific reference to the need to take account of the pertinent characteristics of the victim when determining whether sexual harassment took place.

Time period for lodgement. The period of time for lodgement of a complain will be extended from the current 6 months to 12 months

ADB. The investigation and conciliation powers of the Anti-Discrimination Board will be separated.

Costs. Each party will pay their own costs (as at present), however the circumstances in which this rule may be varied are set out. These include: whether the proceedings clarify an important question of law; whether important public policy considerations were raised; whether the matter was dismissed on the basis that it was frivolous or vexatious, amongst other things.

The Attorney General is seeking public comment on the report with submissions due on 17 March 2000.

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