An anti-discrimination regulation is, in impact, a code of conduct. An employer, an HR supervisor, a faculty principal, a shopkeeper, or hotelier wants to have the ability to choose up the act and get a good suggestion of what their obligations and duties are.
Equally, a employee or pupil or buyer wants to have the ability to choose up the act and perceive how they’re protected.
NSW’s outdated Anti-Discrimination Act fails as a code of conduct. Handed in 1977, it’s cumbersome, wordy, opaque, repetitive and complicated.
Nevertheless it needn’t be. The identical legal guidelines in Queensland, the ACT, Victoria and Tasmania have wider scope, with fewer phrases in a extra accessible type.
There’s rising impatience with the inaction in NSW. Neighborhood teams are calling on the NSW attorney-general to evaluation the outdated act. A current report by the Public Curiosity Advocacy Centre additionally makes a case for the way poorly the individuals of NSW are served by this antiquated regulation.
Shrinking finances and unfilled positions
Previously decade, Anti-Discrimination NSW, the statutory company with oversight of the act, has had its finances lowered by 10% in greenback phrases (in impact a 24% minimize in actual phrases). A recurring assertion in its annual stories has been
workers prices have been managed by conserving a number of positions vacant through the 12 months.
The company has solely a part-time head, however for 2 of the previous ten years that place was vacant. There have additionally been unfilled board positions in 5 of the previous 10 years.
A number of mini acts all strung collectively
The NSW act is in the identical state of neglect. Thought-about state-of-the-art 40 years in the past, the regulation right this moment reads like a number of mini anti-discrimination acts strung collectively.
First, it defines race discrimination, units out every space of life the place race discrimination is illegal, and units out the exceptions.
Then it defines intercourse discrimination, units out every space of life the place intercourse discrimination is illegal, and units out the exceptions.
It goes on like this, with regard to transgender individuals, marital standing, incapacity, carer’s obligations, homosexuality, and age. Every time a further attribute is added, a brand new a part of the act is wedged in among the many others.
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Alongside the way in which, different protections have been slotted in, similar to for vilification, harassment and obligatory retirement.
Evaluate this to the Victorian Equal Alternative Act, which isn’t a collection of mini-acts however a single coherent assertion of what discrimination is, who’s protected, the areas coated, and the exceptions.
A regulation similar to this should even be inclusive. However phrases similar to “homosexuality” and “transgender” within the NSW Act are restricted of their scope. The absence of safety for gender id, sexual orientation, political and non secular perception, parental standing, and industrial exercise illustrates how far the NSW act is behind modern values.
Missing a optimistic responsibility to make sure equality
Maybe most importantly, the NSW act stays merely a regulation that prohibits discrimination — it doesn’t actively promote measures to safe equality, as legal guidelines in different jurisdictions do.
The anti-discrimination acts in Victoria and the UK, for example, require that measures actively be taken to get rid of discrimination and harassment. The proposed sexual harassment amendments to the federal Intercourse Discrimination Act do the identical.
Nor does the NSW regulation transcend prohibiting incapacity discrimination and require
steps be taken to make cheap changes to accommodate an individual’s incapacity. That is how different states’ legal guidelines work.
With out a optimistic responsibility to each get rid of discrimination and harassment and make cheap changes to deal with inequality, the NSW act fails its important goal — to assist our society in direction of equality.
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How can or not it’s mounted?
The NSW act is just not amenable to a fast repair. It’s already a barnacle-encrusted, gap-plugged vessel.
By my rely, the regulation has been topic to greater than 800 amendments, insertions and deletions through the years, in 88 totally different amending acts.
The numbering of inserted sections has change into ridiculous, similar to s49ZYW(2)(a), which specifies when part s49ZYW(1) doesn’t apply. Which may be enjoyable for legal professionals, however it’s no enjoyable for anybody who needs to know their duties and rights.
It might be unconscionable to tack yet one more piece onto the present act. The individuals of NSW, as a substitute, want an new and modern equality regulation.
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So how would possibly we get there? There are well-established and profitable reform processes round Australia and internationally to attract from.
Reform within the UK started with an unbiased report, two public inquiries, after which intensive consultations with the general public, specialists, stakeholders and curiosity teams. This iterative and collaborative course of resulted within the Equality Act 2010 (UK), described within the Discrimination Legislation Assessment as “harmonising and simplifying the regulation” and “modernising the regulation”.
Victoria set a couple of equally rigorous course of to modernise its regulation, which had been in a lot the identical type for over 30 years. The federal government commissioned an unbiased public session and launched a parliamentary committee inquiry, leading to its 2010 Equal Alternative Act. An analogous course of led to 2014 reforms within the ACT.
Updating discrimination regulation is a perennial activity, responding to social change. It’s occurring now in Western Australia, the place the Legislation Reform Fee is reviewing the 1984 Equal Alternative Act, and in Queensland, the place the Human Rights Fee is reviewing the 1991 Anti-Discrimination Act.
The Northern Territory’s evaluation, in the meantime, is finished and awaiting report.
Clearly, there are modern fashions in Australia that present the way in which for NSW to comply with. It’s not a courageous step for NSW to decide to modern measures to safe non-discrimination and equality. We simply want a authorities that cares.
Simon Rice is a member of the Australian Discrimination Legislation Consultants Group