Submission: Review of the NSW Anti-Discrimination Act 1977

The NSW Council for Civil Liberties (NSWCCL) welcomes the long-overdue review of the NSW Anti-Discrimination Act 1977. In its nearly 50-year history, this legislation has had only one review, the recommendations of which were not fully implemented.

In our submission, the NSWCCL provides tangible recommendations that would ensure the Act is modernised to make it simpler and more efficient but also to ensure it reflects changing community attitudes.

Particularly concerning is the recently passed Religious Vilification Bill as an amendment to the Act.  We believe that the Anti-Discrimination Act should protect individuals from vilification but not institutions and not beliefs, which are just ideas, and should be freely contestable. The Religious Vilification Bill unacceptably impedes on freedom of expression, debate, and legitimate criticism and should be immediately repealed.

Comments from Josh Pallas, President, NSWCCL

“When former NSWCCL member, Premier Neville Wran, introduced the legislation to Parliament in 1977, he said 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.'  This was a vision of equality founded on the idea that in a decent society, all persons can and should expect to be protected against unfair discriminatory treatment.”

“The Act does not protect people with non-binary gender identities or indeterminate sex characteristics. The Council strongly believes that intersex and non-binary status should be expressly included as protected attributes in the Act.”

“The discrimination with which the Act is concerned has at its heart a concept of unfairness. The unfairness manifests in the unequal treatment of people based on characteristics that are inalienable or are associated with entrenched disadvantage.”

“It is a damning indictment that the 1999 Review made 161 recommendations, the vast majority of which have never been adopted. Many of the concerns and observations expressed in the 1999 Review remain valid. The Act, in short, remains in dire need of holistic reform.”

“While freedom of religion is an important individual right protected under international law and under the Australian Constitution – and a person’s religious beliefs may be deeply meaningful to them and an important constituent of cultural and familial ties – those beliefs are not innate characteristics. We see considerable risk in the Religious Vilification Amendment because it fails to recognise this distinction and instead simply mimics the legislative protections that the Act provides to individuals based on their innate characteristics.”

“To further enhance equality and human rights protections, anti-discrimination law must be coupled with a robust human rights framework which gives effect to the international conventions and obligations to which Australia is party.”

Our submission will be available here when published by the NSW Law Reform Commission.