NSW Anti-Discrimination Review

In September 2023, the NSW Government set the NSW Law Reform Commission the task of reviewing the 1977 Anti-Discrimination Act. They were asked to consider the following:

• whether the range of attributes protected against discrimination requires reform
• whether the areas of public life in which discrimination is unlawful require reform
• whether the existing tests for discrimination are clear, inclusive and reflect a modern understanding of discrimination
• the adequacy of protections against vilification
• the adequacy of protections against sexual harassment and whether the Act should cover harassment based on other protected attributes
• whether the Act should include positive obligations to prevent harassment, discrimination and vilification, and to make reasonable adjustments to promote full and equal participation in public life

The terms of review are very broad, and hold some areas of concern. For example, considering the range of attributes protected and the areas of public life, opens the door for more things to be considered discrimination in more places. The phrase “inclusive and reflect a modern understanding of discrimination” rings immediate alarm bells, because the phrase “modern understanding” is usually used in contrast with “old-fashioned religious views”.

Also on the table is vilification, including religious vilification and disagreement over gender and sexuality and whether sexual harassment should cover other attributes. Positive obligations to prevent harassment is a difficult space, because, depending on how you define harassment, a positive obligation can have a chilling effect on freedom of speech and religion.

Our Response

We are still very early in the process of responding to this review. Freedom for Faith was invited to make a preliminary submission as the Commission considered what to examine.

When the next round of consulatation is announced, we expect to be part of the first round of consultation. This will be a major issue in 2025.