NSW Anti-Discrimination Review

The NSW Government must protect religious freedom by protecting people from discrimination based on faith, and enshrining the positive right for faith-based organisations to operate according to their faith.

In August 2023, the NSW Attorney General asked the NSW Law Reform Commission (NSW LRC) to undertake a review of the Anti-Discrimination Act 1977 . In May 2025, the NSW LRC released their first consultation paper and asked for submissions.

You can read our Preliminary submission

Read Freedom for Faith’s full submission here.

The main argument of our submission is that individual and corporate religious freedom is a right set out in international and human rights law and needs to be protected in the Anti-Discrimination Act (ADA). This includes:

• Making it illegal to discriminate against a person because of the faith that they believe and live out.
• Declaring the positive right for faith-based organisations to operate according to their faith, including in membership and employment.

A Positive Right for Faith Communities

One of the big problems with the approach of the ADA is that it does not protect corporate religious freedom as a positive right. Instead, religious freedom is expressed as exemptions (more details below)

Instead of exemptions, our submission calls for a positive declaration of the right of faith-based organisations to operate according to their faith and the fact that operating in this way is not discrimination.

How exemptions work

The structure of the ADA follows a two-step pattern. First, the law sets out broad rules that prohibit discrimination. These rules are intended to protect people from being treated unfairly based on attributes like sex, race, disability, age, sexual orientation, or religion.

The legislation then includes a set of exemptions which carve out specific situations where certain types of “discrimination” are legally permitted. Religious freedom is protected within this second step. That is, religious organisations—such as churches, schools, or charities—may be allowed to make decisions based on religion (like hiring staff who share their beliefs) even though that would normally count as discrimination under the first part of the Act.

This structure means religious freedom is not recognised as a right equal to the others at the outset—it is something that must be claimed through exceptions to the general rule.

The problem with exemptions

Relying on exemptions to protect religious freedom is a fragile and unfair way to manage the clash between different rights. Exemptions work by making special allowances for religious groups or individuals, but they send the message that religious beliefs are an exception to the rule, not a right in their own standing. Instead of being treated equally alongside other rights—like freedom from discrimination—religious freedom ends up being something that must ask permission to exist. This can create tension and resentment, as if people of faith are being granted favours rather than recognised as having valid and important rights.

Another problem is that exemptions can be easily changed, reduced, or removed altogether. They depend on the political climate, and what one government gives, another might take away. That makes it hard for religious communities to plan or function with confidence, especially when it comes to hiring staff, teaching their values, or running faith-based services.

A fairer and more stable approach would treat all rights — including religious freedom — with equal respect and find balanced ways to resolve conflicts when they arise. This would help people of all beliefs and backgrounds live together with understanding and respect.

In summary

We believe that the Commonwealth and NSW anti-discrimination laws are presently defective because they fail to include religious belief as a protected characteristic and because such protections, as are afforded, are by way of exemptions or exceptions rather than positive rights.

The Commission’s consultation paper in places, considers rights warranting primary protections as if they are somehow aberrations and unfair impositions on other rights.

The Act should be redrafted to provide positive rights for the free exercise of religious beliefs and activity, rather than protecting religious freedoms through mere exceptions.

The passage of amendments to the Act in NSW to better protect religious belief and activity – and not to reduce the current protections – should not be delayed pending any progress by the Commonwealth in this area.

The Commission is preparing a second consultation paper, which will focus on enforcement and other procedural aspects of the ADA.

Freedom for Faith will respond to the second paper when it is released.