1.1 In a letter dated 17 December 1991, the Commission received a reference from the then Attorney General, the Hon P E J Collins QC to inquire into and report on the current scope and operation of the Anti-Discrimination Act 1977 (NSW) (“ADA”) and any related issues. In conducting the review, the Commission was asked to have regard to:

• existing Commonwealth laws relating to anti-discrimination;
• Australia’s international human rights obligations as they relate to anti-discrimination; and
• any related issues.

Rationale for enactment

1.2 The ADA commenced on 1 June 1977.¹ Introducing the legislation in Parliament, the then Premier the Hon Neville Wran QC, stated 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”² and that “the [Anti-Discrimination] Bill is an attempt, as far as legislation can, to end intolerance, prejudice and discrimination in our community”.³ The ADA’s preamble describes it as “an Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons”.

Legislative development

1.3 When the Bill was first introduced, it proposed that discrimination should be unlawful on the grounds of race, sex or marital status, age, religious or political conviction, physical handicap or condition, mental disability, and homosexuality. In its final form, the ADA prohibited only race and sex discrimination in the areas of employment, the provision of goods and services and accommodation, and race discrimination in education. This was the result of amendments imposed by the Legislative Council following unfavourable responses from sections of the community. The ADA also established the Counsellor for Equal Opportunity and the Anti-Discrimination Board (“ADB”).

1.4 Since 1977 the ADA has been amended many times in response to recommendations of the ADB and to accommodate decisions of the Supreme Court and the Equal Opportunity Tribunal (“EOT”). These amendments have introduced new grounds of discrimination, altered the administrative and regulatory regime and widened the overall scope and operation of the ADA. Many of the amendments effected through the years, and even some of those currently contemplated, were proposed in the original 1976 Bill.

THE CONTINUING NEED FOR ANTI-DISCRIMINATION LEGISLATION

1.5 An examination of the position of disadvantaged groups over the past twenty years since anti-discrimination legislation was first introduced in Australia reveals some positive changes in reducing discriminatory attitudes and practices. However, major disadvantages still exist. There is still a significant discrepancy between discrimination in theory and practice, as indicated by available figures. This phenomenon has rekindled debate and raised doubts about the effectiveness of anti-discrimination legislation in achieving its stated aims and the continuing need for such legislation.

1.6 One school of thought maintains that the legislation is no more than a symbolic focus for emerging ideological and political conflicts about the place of minorities and disadvantaged groups in our society. Others have countered that the aim of anti-discrimination legislation is not simply to produce a symbolic document which would placate the victims of discrimination, but rather to educate against discrimination and give support to those wishing to resist discriminatory conduct. It is also suggested that it is unrealistic to expect community attitudes to be changed by legislation and that what is required is vigorous community education. However, the publicity and media coverage that surrounds legal proceedings in discrimination law itself provides a valuable educative function.

1.7 An important area of operation of the ADA is that of employment practices. There is a body of law and economics scholarship which argues for the repeal of all employment discrimination legislation on the basis that it is unnecessary and inefficient within a free market. This argument works from the proposition that some people simply do not like to associate with members of particular groups and are prepared to suffer pecuniary loss in order to “indulge their taste” and so avoid what are, for them, the “non-pecuniary” costs of associating with people from those groups.⁴ It is argued that those traders in the market place who are least prejudiced will be able to increase their market share and so, ultimately, dominate the market.⁵ In this way unfettered market competition is said to drive out discrimination.⁶

1.8 Despite the education versus legislation, and law and economics arguments referred to above, the Commission believes that the continuing need for anti-discrimination legislation is beyond question. First, a monetary value cannot be placed on the social benefits that emanate from laws that prohibit discrimination, nor can a value be placed on the social costs that flow from an absence of anti-discrimination laws. On the contrary, anti-discrimination laws can increase productivity and the net welfare of society as the self esteem of discriminated groups is elevated and people reach their full potential.⁷ Secondly, while education does play a very important part in combating discriminatory practices, there is sufficient evidence that it cannot deal with the problem of discrimination on its own. Law is one of the instruments of change in our society. It is a useful educational tool even if it has only a limited direct role in social change and reform. At the very least, it can guide legal inquiry in the right direction and can help to reveal and alter assumptions and practices that need correction. There is, therefore, no doubt that there is a continuing need for anti-discrimination legislation. This view was supported in submissions to the Commission.⁸

THE NEED FOR A REVIEW

1.9 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. The ADA has never been the subject of a comprehensive review and much of what was laid down as basic principle in the 1970s has never been questioned in terms of its applicability to the present. 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.

THE CONDUCT OF THE REFERENCE

Discussion Paper 30

1.10 In acknowledgment of the breadth of the reference and the need to consult with so many organisations and individuals, the Commission initially sought responses to the terms of reference from approximately 700 interested and relevant organisations and individuals in Australia and overseas. The issues raised, and comments made, in response to the Commission’s invitation were incorporated in Discussion Paper 30 (“DP 30”) which was published in 1993.⁹ DP 30 did not make any proposals for change. It aimed to promote discussion of, and invite submissions on, a wide range of issues. The issues were presented in the form of specific and general questions prefaced by a general comment to place them in context. The Discussion Paper was sent to more than 1,000 individuals and organisations and copies were made available on audio tape for those with sight or reading difficulties. The Commission received over 100 submissions.¹⁰

Other community consultation

1.11 In May 1993, the Commission conducted a public phone-in to encourage further community involvement in the review and received over 200 phone calls. Most of the callers had been personally affected by discrimination of some kind, and the majority of complaints dealt with race and sex discrimination in the workplace. While most callers were aware of the existence of the ADA, a significant number of people were not aware that there was any form of redress available to them.

1.12 Commission staff have also spoken at several seminars and conferences relevant to the review, in order to acquaint the public with the review and invite feedback. Over the course of the reference, the Commission has been in contact with many individuals and organisations which have an interest in the area and has received formal and informal submissions on various issues relevant to the review from them.

Specialist consultants

1.13 The Commission has, from time to time, been assisted with suggestions and ideas by a group of honorary consultants who have interest and expertise in the area of anti-discrimination law and practice.¹¹

The Survey Report

1.14 In recognition of the need to undertake empirical research in order to monitor and evaluate the ADA’s current effectiveness in dealing with discrimination and to provide the basis for further legislative development, the Commission contracted with Keys Young to design and carry out a survey of the perceptions of people with direct experience of the processes of the ADB and the EOT. The Survey Report entitled Discrimination Complaints-Handling: A Study was released in June 1997 and is the first comprehensive qualitative study into how discrimination complaints are handled by the ADB and the EOT.¹² The report describes the conduct and findings of research into the complainants and respondents who contacted the ADB by phone over a specified period and the results of a postal questionnaire sent out to all respondents and complainants over a 12 month period whose files had been “closed”. The questions sought the views of participants on the entire complaints-handling procedure from initial contact, through investigation and conciliation, to the final hearing at the EOT. Not all participants had been through the entire process. However, the survey elicited information about why a participant withdrew at a particular stage and how satisfied or otherwise the person was with the process. This information has provided the Commission with data which has informed the final recommendations.

OVERVIEW OF THIS REPORT

1.15 This Report represents the culmination of the Commission’s review of the ADA. It contains final recommendations for reform of the ADA based on:

• an analysis of current research;
• an analysis of obligations imposed by international human rights conventions;
• a consideration of legislation, policy and anti-discrimination law reviews from other jurisdictions (international, Federal and State);
• a consideration of developments in Australian and overseas case law in the area of anti-discrimination;
• responses to DP 30 from individuals, interest groups and other organisations in Australia and overseas;
• responses and information elicited from other community consultation; and
• statistics provided by individuals and organisations.

The structure of this Report

1.17 The Report consists of 10 chapters. For ease of reference as well as in recognition of the fact that readers may be more interested in some aspects of the review than in others, the Report has been divided into three parts.

Part 1 “Preliminary and Definitional Issues” consists of three chapters:

• Chapter 1 contains the background to the reference and an overview of the scope of the Report.
• Chapter 2 considers the interaction between the ADA and Commonwealth anti-discrimination and industrial relations laws within the context of international human rights laws.
• Chapter 3 examines the current definition of discrimination in New South Wales and recommends the need for a change in focus from a comparability model to a detriment-focussed model.

• Chapter 4 identifies the areas in which discrimination law should operate.
• Chapter 5 addresses both the scope of the current grounds of discrimination and justifications advanced for including new grounds.
• Chapter 6 evaluates the current general and special exceptions to the prohibition of discrimination.
• Chapter 7 considers the ambit of other related conduct which is unlawful under the ADA. This includes harassment, vilification, victimisation and unlawful advertising. This chapter also considers issues relating to vicarious liability and liability imposed upon those who aid or abet discriminatory conduct.

• Chapter 8 examines the various stages of the complaint resolution process at the ADB and considers the need for additional mechanisms to be set in place to deal with systemic discrimination.
• Chapter 9 considers the proceedings in the EOT as it was, prior to the merger of the EOT into the new Administrative Decisions Tribunal (“ADT”), and the impact of the merger, and suggests reforms to increase the accessibility and general efficiency of Tribunal proceedings.
• Chapter 10 focuses on the remedies available under the ADA and considers their adequacy and effectiveness in combating discrimination.

1.18 The Commission’s recommendations are listed at the commencement of this Report and have been cross-referenced to the relevant Bill provisions.¹³ In addition, they are included at the end of relevant parts of particular chapters for ease of reference in identifying the reasoning which leads to the specific recommendation. Although recommendations are not generally identified by reference to specific sections of the current ADA, it is, nevertheless, clear from the text which sections are being considered in relation to each recommendation. The detailed consequences of the recommendations must, however, be identified by reference to the draft Bill.

The draft Bill

1.19 It may be noted that the draft Bill adopts a new structure for the ADA which is in keeping with more recent equal opportunity legislation in other Australian States and Territories and hopefully will provide a more readable Act with a clearer conceptual framework.

1.20 If the new Bill is accepted, it will be necessary to ensure that appropriate transitional and savings provisions have effect. In general, s 30 of the Interpretation Act 1987 (NSW) is likely to be sufficient to cater for any changes in the substantive and procedural law. It should be noted that other transitional matters, relating to the procedures of the Equal Opportunity Division of the ADT, are presently dealt with in the Administrative Decisions Tribunal Act 1997 (NSW).

Matters not addressed in the Report: institutional arrangements

1.21 The ADA currently provides for four separate statutory bodies or positions. First, there is the ADB established by Part 8 of the Act. The ADB is said to consist of one full-time member and four part-time members appointed by the Governor. The full-time member is the President who has specific statutory functions and will be considered separately. The functions of the ADB are dealt with in Part 9, Division 4. It has a general function of carrying out investigations, research and inquiries in relation to discrimination, including particular discrimination against one or more persons, together with broad functions relating to the promotion of equality and opportunity for all people.¹⁴ However, resolutions of the ADB requiring particular action are implemented by the President.¹⁵ The ADB is required to prepare and present an annual report to the Minister, which shall include an account by the President of his or her administration of the Act, and the report is to be laid before both Houses of Parliament.¹⁶

1.22 As already noted, the President is the full-time member of the ADB and presides at meetings of the ADB.¹⁷ However, the complaint handling powers provided for under the ADA are all found within Part 9, Division 2, which defines the functions of the President. For example, all complaints are lodged with the President¹⁸ and it is the President who is required to investigate complaints¹⁹ and determine what shall happen to a complaint.²⁰ Clearly these functions require extensive powers of delegation and the existence of a significant number of officers and employees. The ADA provides for the appointment of such officers and employees pursuant to the Public Sector Management Act 1988 (NSW) and designates them as officers of the ADB.²¹ The President is given a power of delegation, which allows particular functions to be delegated to such officers.²² Neither the ADB nor the President is a statutory corporation.

1.23 The third body established by the ADA was the EOT. The quasi judicial functions vested in the EOT were not initially separated from the position of Councillor for Equal Opportunity. The EOT was, however, established as a separate body by the insertion of Part 7A in 1992.²³ For reasons which will appear more fully in Chapter Nine below, there is no need to give detailed consideration to the structure and functions of the EOT as its powers have been transferred to the Equal Opportunity Division of the ADT.

1.24 The fourth body established by the ADA is the Director of Equal Opportunity in Public Employment.²⁴ Part 9A, which provided a new set of provisions with respect to equal opportunity in public employment, was inserted in 1980.²⁵ The main objects of the Part are to ensure the absence of discrimination in relation to government departments and authorities and to promote equal employment opportunity with respect to those departments and authorities.²⁶ For reasons which are not entirely clear, the grounds of discrimination set out in the objects of the Part have not kept pace with the amendments to the grounds included in the ADA.

1.25 The review of the scope and operation of the ADA, as set out in the various chapters of this Report, led to specific recommendations which affect the powers of the President and the operation of the Equal Opportunity Division of the ADT. However, the Commission has formed no views, nor made recommendations, about the administrative arrangements with respect to the ADB and the Director of Equal Opportunity in Public Employment. In relation to the ADB, the Commission is not able to assess whether it plays a useful role and has made no specific inquiries in that regard. The Commission does recommend that the ADA be amended so that its objects are clearly stated at the outset. However, those objects will inevitably be pursued through specific procedural mechanisms, all of which centre on the functions and powers of the President.

1.26 Further, the Commission is aware, informally, of various proposals for the establishment of a Board or Commission which will incorporate in one body the important public functions relating to anti-discrimination and equal opportunity and privacy. Accordingly, the Commission has not sought to make any specific recommendations concerning the continued operation or structure of the ADB. In the draft Bill which accompanies this Report, there is no specific reference to that body, although such a reference could readily be included without requiring consequential amendments to other parts of the proposals.

1.27 In relation to the Director of Equal Opportunity and Public Employment, the Commission has also made no recommendations. The Director and her staff operate as a separate entity and, while their objects are in part referable to the general grounds of discrimination, the Director does not receive or investigate complaints nor take any other action similar to that of the President in the administration of the ADA.

1.28 The Commission is of the view that the whole of Part 9A should be removed from the ADA and, if the office of Director is to be maintained, the legislative provisions should be transferred to some other legislation governing public employment, which may either be a separate Act or a part within the Public Sector Management Act.

1.29 Again, the inclusion or omission of Part 9A in the ADA (and it is excluded from the draft Bill attached to this Report) has no consequential effects in relation to other proposals.

1.30 As with the ADB, the Commission has undertaken no detailed inquiries to establish the effectiveness of the Office of the Director and therefore makes no recommendation as to whether the office should be preserved.

Other matters

1.31 Before concluding these general remarks in relation to the reference and the structure of the Report and its recommendations, the Commission acknowledges that the gestation period of the Report has been lengthy. One result has been that some matters to which the Commission gave careful consideration were overtaken by statutory amendments made before the Report was completed. Whilst the Commission has taken note of all these matters, it is conscious that the extensive consultation process, which in part delayed the completion of this Report, did not cover a number of the changes which have since been made to the ADA. However, the Commission is satisfied that the very extensive submissions received from many individuals and community groups covered all relevant matters of principle. Accordingly, it is satisfied that there is no need to delay completion of this exercise to allow for further consultations.

CONCLUSION

1.32 The recommendations contained in this Report are largely a “package”. Each recommendation, while not necessarily dependent on the implementation of other recommendations, complements and facilitates others. They are designed to ensure that the ADA as a whole recognises the changes of the past and is relevant for the future as an effective tool in combating discrimination. Piecemeal adoption or legislative implementation without the provision of necessary training, information and resources will do little to mitigate the difficulties the recommendations are designed to overcome. Accordingly, the success of the recommendations in this Report will depend on the Government’s commitment to provide the necessary resources for their implementation.

1.33 The Commission is appreciative of the continuing support from different Governments during the process of review and is encouraged in making its recommendations in the belief that all Governments of this State, since the time of the original reference, have been anxious to ensure that the ADA remains an up-to-date and effective legislative mechanism for the protection of human rights in New South Wales.

Footnotes

1. At the time, New South Wales was the second Australian State to enact anti-discrimination legislation. The first was South Australia with the Prohibition of Discrimination Act 1966 (SA). Today, 21 years later, all States and Territories around Australia have some form of discrimination legislation: EOA (Vic); ADA (Qld); EOA (SA); EOA (WA); DA (ACT); ADA (NT); and ADA (Tas). Federal anti-discrimination legislation also operates concurrently with the State Acts: the RDA; SDA; DDA; HREOC Act; Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth); Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth).

2. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 23 November 1976 at 3337.

3. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 23 November 1976 at 3337.

4. R A Posner, Economic Analysis of Law (3rd edition, Little, Brown & Co, Boston, 1986) at 615.

5. Monopoly situations, it is suggested, have the capacity to weaken this tendency.

6. Posner at 616. See also G Becker, The Economics of Discrimination (2nd edition, University of Chicago Press, 1971). See also R P Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws (Harvard University Press, Cambridge, 1992). The crux of Epstein’s argument is that employment discrimination laws, in particular, do more harm than good. The basis for this argument is that the market provides adequate incentives to drive out inefficient discrimination and any remaining discrimination which he calls “voluntary segregation” is economically efficient and should not be prohibited. According to Epstein, every employer has the right to discriminate among job applicants. He argues that victims of discrimination have not been defrauded in any way as they are free to search for the best available job offer unlike victims of force or fraud. Thus, the crucial aim, according to Epstein, is not to eliminate all discrimination, but only “inefficient” discrimination and the optimal means to achieve this end is the market. See also DP 30 at para 7.1-7.6.

7. M Chen, “Law and Economics and the Case for Discrimination Law” (unpublished manuscript, 5 November 1993). See also O M Fiss, “A Theory of Fair Employment laws” (1971) 38 University of Chicago Law Review 235; J J Donohue, “Prohibiting Sex Discrimination in the Workplace: An Economic Perspective” (1989) 56 University of Chicago Law Review 1337; C Sunstein, After the Rights Revolution (Harvard University Press, Cambridge, 1990).

8. Anti-Discrimination Board, Submission 1 at 223-224; Gay and Lesbian Rights Lobby, Submission; NSW Ministry for the Status and Advancement of Women, Submission; NSW Women’s Advisory Council, Submission at 1.

9. New South Wales Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW) (Discussion Paper 30, February 1993).

10. For the list of written submissions see Appendix C.

11. For the list of honorary consultants see Appendix D.

12. RR 8.

13. At p xxvi.

14. ADA s 119.

15. ADA s 121A.

16. ADA s 122.

17. ADA s 80 and 85.

18. ADA s 88(1).

19. ADA s 89.

20. See for example, ADA s 90, 90A, 91 and 94.

21. ADA s 86.

22. ADA s 94A.

23. See Anti-Discrimination (Amendment) Act 1982 (NSW).

24. ADA s 122E.

25. See Anti-Discrimination (Amendment) Act 1980 (NSW).