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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 |
 
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The NSW Anti-Discrimination Act
PART D - Conclusion
The ADA attempts to combat discrimination on a number of levels:
- protection of minority groups from discrimination;
- promotion of principles of equality;
- exemption of discriminatory conduct where it does not conflict with the principles of the ADA.
Each of these elements combine to give practical effect to the ADA. In our submission each of the elements must be considered in proposing any change to the ADA.
In summary our submission highlights the following issues with respect to each of those elements.
Protection
In our submission a number of the proposed changes we have identified are contrary to the legislative intent to promote substantive equality by protecting gay men and lesbians. Recommendation 36, calling for a change to the ground of homosexuality is one example where the change is not a response to actual discrimination and waters down the intent of the legislation which was to protect gay men and lesbians.
Our real life experience is that discrimination against lesbians and gay men continues to occur and requires specific protection.
Promotion of Equality for Lesbians and Gay Men
We specifically support a number of the proposals which seek to promote the principles of equality, namely:
- changes to marital status to ensure cohabiting same sex couples receive protection;
- narrowing the exemptions relating to superannuation funds.
Exemptions
We draw your attention to the need to consider in more detail the exemptions and exceptions to the Act, namely the ground of religious belief. We consider that this exemption is too broad. The current proposals appear to excuse unlawful conduct where a person merely has an honest prejudice. This analysis fails to understand the dynamics of prejudice. While prejudice can be honestly held, the acceptability of the belief, when being tested under the Act, must be assessed against an objective test of reasonableness. The current proposals do not contain a requirement of reasonableness, a test which is at the heart of our common law.
A secular society presupposes the coexistence of beliefs which may conflict and relies on an independent legal system to ensure that individual civil rights are protected. The breadth of the current religious belief exemption, must be carefully limited, as it otherwise promotes unlawful discrimination against lesbians and gay men and renders religious institutions unanswerable for conduct in breach of the principles underpinning the Act, namely tolerance, acceptance of difference and recognition of the fundamental human right to be free from discrimination.
In the absence of the ADA we have no doubt that lesbians and gay men would not be protected and will continue to experience high levels of discrimination.
Kathy Sant; Co-convenor, GLRL
Alan Kirkland; Co-convenor, GLRL
Michael Bracken; Convenor Campaign Working Group, GLRL
For and on behalf of Gay and Lesbian Rights Lobby Inc