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Background

Scope of the Anti Discrimination Act –Response to the Recommendations

Extension of Employment/Work Environment

Marital Status

Exceptions and Exemptions

Superannuation

Other Recommendations

DRAFT ANTI-DISCRIMINATION BILL 1999

Conclusion

MAJOR REPORT - April 2000

The NSW Anti-Discrimination Act

PART B - The Scope of the Anti-Discrimination Act –
Response to the Recommendations

7. Other Recommendations

7.1. Victimisation

We support the proposed changes to the victimisation provisions [Recommendations 98 and 99] which are simply by way of clarification to ensure their effectiveness in offering protection to complainants so they are not deterred from pursuing their rights under the ADA for fear of reprisals or further disadvantage.

7.2. Vilification

We endorse the comments in the Report that the exception of religious instruction should not be something which religious groups are allowed to hide behind in cases where harassment or vilification of a particular group occurs, and it should be narrowed to reflect this principle [pars.6.71, par.6.72]. However, we note the Report comments that the elements of the current provisions in the Act which prohibit racial, homosexual, HIV/AIDS and transgender vilification are substantially similar.

There is an exception in relation to a public act intended to provide “religious instruction” that applies to homosexual vilification and the broader category of “religious discussion or instruction” for HIV/AIDS and transgender vilification [par.7.130].

This anomaly is not addressed by the Report and in our submission the exception cannot be justified on the principles underlying the ADA and given the special nature of vilification.

7.3. The Complaint Process and Hearings

We support the proposals in Chapter 8, such as Recommendation 106, to enhance and make the complaint process easier for applicants. In our experience there are substantial burdens placed on gay and lesbian complainants and it is never an easy process.

However, the proposals needs to be considered carefully. We anticipate that if the proposed change to the ground of homosexuality proceeds (which we consider unwarranted), this will encourage frivolous complaints and increase the burden on the limited resources of the ADB.

The complaint process needs to accommodate the various types of complainant under the homosexuality provisions for example, lesbian complainants as opposed to gay men may need to be considered separately.

There is evidence which suggests that men are more likely to lodge complaints than women (Anna Chapman & Gail Mason, Complaints Alleging Homosexuality Discrimination and Vilification: A Profile of Conciliation under the Anti Discrimination Act and Woman Complainants (1999)).

We also support the increased jurisdictional limit that is proposed [Recommendation 148] as damages awarded under the ADA are currently notorious for their inadequacy, particularly where a successful complainant has lost substantial wages as the result of discrimination.

We support the simplification of hearing procedures and specifically agree with the proposal [Recommendation 128] to shift provisions as to hearing procedures to the Administrative Decisions Tribunal Act