What’s Wrong With the NSW Anti-Discrimination Act 1977?

This post is part of a series looking at anti-discrimination laws around Australia and examining how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people against discrimination and vilification.[i]

 

This includes analysing three key issues: protected attributes, religious exceptions and anti-vilification coverage. Unfortunately, as we shall see below, the Anti-Discrimination Act 1977 has serious shortcomings in all three of these areas, and NSW has gone from having the first gay anti-discrimination laws in Australia, to having (arguably) the worst LGBTI anti-discrimination laws in the country.

 

It is clear this legislation is in urgent need of major reform. What is less clear is whether the current NSW Government, and Parliament, is up to the task.

 

Protected Attributes

 

As indicated above, NSW was the first jurisdiction in Australia to introduce anti-discrimination protections for ‘homosexuals’. In fact, it passed these laws in 1982, two years before homosexuality was decriminalised, meaning that a gay man could not be discriminated against for who he was (in some areas of public life at least), but could still be convicted for having sexual intercourse in private.

 

The problem is that the protected attributes included in the Anti-Discrimination Act 1977 have not kept pace in the decades since. There was one positive clarification in 1994 that “homosexual means male or female homosexual”[ii] (to overcome any erroneous assumption that homosexuality only referred to gay men).

 

However, the only major expansion in the past 34 years has been the introduction of transgender as a protected attribute in 1996:

 

Section 38A Interpretation

A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person[iii]:

(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or

(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.”

 

While this reform was essential, it nevertheless fails to cover all discrimination on the basis of gender identity. The scope of this protected attribute would appear to focus only on binary genders – covering those people whose sex was designated as male at birth, but now identify as female (and vice versa). It does not cover other people along a more inclusive spectrum, including people who do not identify as either male or female.

 

Section 38A of the NSW Anti-Discrimination Act 1977 is therefore no longer best practice, and a new, more inclusive definition[iv] should be adopted to ensure all transgender people benefit from anti-discrimination protection.

 

Intersex people are even worse off under the Act. Paragraph (c) of the definition above offers their only protection under NSW law, but it is problematic because:

  • It inappropriately conflates intersex status, which relates to physical sex characteristics, with gender identity, and
  • It only appears to protect people with intersex variations where they identify as either male or female.

 

To remedy this situation, a stand-alone protected attribute of ‘intersex status’ should be introduced, potentially based on the world-first protections included in the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013[v].

 

There is, however, one section within the LGBTI community that is not included in the NSW Anti-Discrimination Act, not even in an out-dated, fundamentally flawed or only partial way. In fact, one of the five letters of the acronym has no anti-discrimination coverage at all: bisexual people.

 

NSW is the only jurisdiction in Australia where its anti-discrimination laws do not cover discrimination on the basis of bisexuality. That is as bizarre as it is offensive.

 

And it must be remedied at the earliest possible opportunity by the NSW Parliament, with either the introduction of a new stand-alone protected attribute of ‘bisexual’, or (preferably) by the modernisation of the current protected attribute of ‘homosexual’ to instead refer to ‘sexual orientation’, in line with the Commonwealth Sex Discrimination Act 1984[vi].

 

Summary: The protected attributes contained in the NSW Anti-Discrimination Act 1977 are the narrowest in the country, only offering protection to gay men, lesbians, and some transgender people. It needs to be updated to align with the Commonwealth Sex Discrimination Act 1984, with a modern definition of gender identity and a new protected attribute of intersex status. And it must be extended to offer anti-discrimination coverage to bisexual people, whose exclusion is a gross oversight that has been allowed to stand for far too long.

 

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Religious Exceptions

 

In contrast to its narrowly-defined protected attributes, the religious exceptions included in the NSW Anti-Discrimination Act are in fact the broadest in Australia.

 

These loopholes allow religious organisations to discriminate against lesbian, gay and transgender people in a wide variety of circumstances, and are so generous that they substantially, and substantively, undermine the overall purpose of the legislation (which is supposedly “[a]n Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons”).

 

The main exceptions permitting anti-LG&T discrimination by religious organisations are found in section 56 of the Act:

 

Section 56 Religious bodies

Nothing in this Act affects:

(a) the ordination or appointment of priests, ministers of religion or members of any religious order,

(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order,

(c) the appointment of any other person in any capacity by a body established to propagate religion, or

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

 

While sub-sections (a) and (b) might appear reasonable, as they are at least related to the internal training and appointment of ministers of religion, sub-sections (c) and especially (d) are outrageous in their breadth, essentially sanctioning discrimination against lesbian, gay and transgender employees and people accessing services in any organisation that is considered ‘religious’, including schools, hospitals and social services.

 

The operation of these provisions, and sub-section 56(d) in particular, in giving effective carte blanche to religious organisations to discriminate on the basis of sexual orientation and gender identity in NSW was confirmed in a 2010 decision of the Court of Appeal[vii], allowing Wesley Mission to discriminate against a male same-sex couple who had applied to be foster carers to children in need.

 

Wesley successfully defended its prejudiced approach on the basis that; “[t]he biblical teaching on human sexuality makes it clear that monogamous heterosexual partnership within marriage is both the norm and ideal.”[viii] This was in spite of the fact Wesley allowed single men and women to be carers (apparently they believed that two dads or two mums had less to offer than one).

 

The ‘right to discriminate’ provided to religious organisations by section 56 of the NSW Anti-Discrimination Act 1977 is essentially without restriction. And this general ability to exclude lesbian, gay and transgender people in NSW is supplemented by additional loopholes covering specific areas of public life.

 

One of these covers discrimination in adoption services. While the equal right of same-sex couples to adopt was recognised in NSW law in 2010, those very same reforms inserted the following into the Anti-Discrimination Act 1977:

 

Section 59A Adoption services

(1) Nothing in Part 3A [transgender protections] or 4C [homosexual protections] affects any policy or practice of a faith-based organisation concerning the provision of adoption services under the Adoption Act 2000 or anything done to give effect to any such policy or practice.”

 

Which means that a religious organisation that operates an adoption service is legally permitted to deny a child the best possible adoptive parents solely because they might be lesbian, gay or transgender.

 

Perhaps the most (in)famous exceptions in the Act are those that apply to ‘private educational authorities’[ix]. Even though subsection 56(d) already allows religious schools to do whatever they want in relation to lesbian, gay and transgender teachers and students, NSW Parliament added specific clauses to ensure that private educational authorities can:

 

  • Discriminate against transgender employees[x]
  • Discriminate against transgender students, including by refusing their admission, attaching conditions to their admission, denying them benefits as a student, or by expelling them[xi]
  • Discriminate against lesbian and gay employees[xii] and
  • Discriminate against lesbian and gay students, including by refusing their admission, attaching conditions to their admission, denying them benefits as a student, or by expelling them[xiii].

 

Imagine considering it justified to seek special rights to discriminate against these groups, let alone for State Parliament to condone such discrimination via legislation?

 

Perhaps the most extraordinary part of the ‘private educational authorities’ exceptions is that they aren’t even restricted to religious schools – in fact, the Anti-Discrimination Act 1977 allows all non-government schools and colleges, even where they have absolutely nothing to do with religion, to refuse to employ lesbian, gay and transgender people, and exclude or expel LG&T students.

 

Summary: The religious exceptions contained in the NSW Anti-Discrimination Act 1977 are the broadest in Australia, and fundamentally undermine the integrity of a framework which is supposed to address discrimination on the basis of sexual orientation and gender identity. Subsections 56(c) and (d) should be repealed, as well as the more specific exceptions offered to religious organisations in relation to adoption services, and those allowing private educational authorities to discriminate against lesbian, gay and transgender employees and students.

 

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Anti-Vilification Coverage

 

There is one area where NSW is at least somewhat ahead of other jurisdictions, and that is in its inclusion of anti-vilification protections for the LGBTI community – or some parts of it anyway, given, just as for anti-discrimination protections, its anti-vilification laws only covers lesbian, gay and some transgender people.

 

The NSW Anti-Discrimination Act 1977 creates offences of serious transgender vilification[xiv], and serious homosexual vilification[xv]. These offences are based on, and drafted using the same wording as, the offence of serious racial vilification[xvi]:

 

“A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person [or group of persons on the ground of the race of the person or members of the group/on the ground that the person is a transgender person, or a group of persons on the ground that the members of the group are transgender persons/or group of persons on the ground of the homosexuality of the person or members of the group] by means which include:

(a) threatening physical harm towards, or towards any property of, the person or group of persons, or

(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

 

And yet, despite having the same wording, and involving exactly the same legal tests, the offences have different penalties:

 

  • The maximum penalty for the offence of serious racial vilification by an individual is “50 penalty units or imprisonment for 6 months, or both”, whereas
  • The maximum penalty for the offences of serious transgender vilification and serious homosexual vilification is “10 penalty units or imprisonment for 6 months, or both.”

 

There can be no justification for treating these offences differently – indeed, the unavoidable implication of imposing a higher fine for one type of vilification than another is that some types of vilification are more serious than others and therefore require greater punishment. Given homophobia, biphobia, transphobia and intersexphobia are just as dangerous, and just as harmful, as racial vilification, that is simply not true.

 

There isn’t even a plausible defence that this discrepancy arose inadvertently – while the penalty for racial vilification was increased in 1994, which was after the offence of serious homosexual vilification had been created, transgender vilification provisions were introduced later still (in 1996), which means Parliament actively chose to introduce a lower penalty for it compared to racial vilification.

 

As well as introducing new vilification protections covering bisexual and intersex people, the NSW Government must harmonise these provisions. Indeed, as part of its response to the State Parliamentary Inquiry into Racial Vilification, then-NSW Attorney-General Gabrielle Upton MP publicly committed, via twitter, that:

 

“#NSWGovt intends to ensure ADA offences for serious vilification are consistent across the board #nswpol”[xvii]

Gabrielle Upton MP

Previous NSW Attorney General, Gabrielle Upton

 

The then-Baird Liberal-National Government in fact committed to release an exposure draft Bill to reform vilification law in NSW ‘in early 2016’ – although, in mid 2017 one has yet to appear. It is now up to Premier Gladys Berejiklian, and Attorney General Mark Speakman, to do what their predecessors could not: fix the vilification provisions of the Anti-Discrimination Act 1977.

 

Summary: NSW is one of only four Australian states and territories that have anti-vilification protections covering any part of the LGBTI community. However, not only do they not protect bisexual or intersex people from vilification, the penalties imposed for homosexual and transgender vilification offences are different to, and less than, those imposed for racial vilification. Both of these injustices must be addressed.

 

 

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Other Issues

 

While the ‘What’s Wrong With’ series concentrates on the three main areas of protected attributes, religious exceptions and anti-vilification coverage, I will also raise other issues relating to LGBTI anti-discrimination laws where they are significant.

 

In the case of the NSW Anti-Discrimination Act 1977, these include:

 

  • An incredibly broad exception allowing “the exclusion of a transgender person from participation in any sporting activity for members of the sex with which the transgender person identifies”[xviii]
  • A seemingly inappropriate exception allowing superannuation funds to “treat… the transgender person as being of the opposite sex to the sex with which the transgender person identifies”[xix] and
  • Perhaps most alarmingly, exceptions which allow employers to discriminate against lesbian, gay and transgender applicants and employees “if the number of persons employed by the employer… does not exceed 5”[xx].

 

In fact, a similar exception also permits discrimination in relation to the ground of sex[xxi] – but no such limitation applies to race[xxii].  Which means that the NSW Parliament has effectively determined that racial discrimination should not be tolerated in employment in any circumstances – but discrimination against lesbians, gay men, transgender people and even women is acceptable in some circumstances. That message is unconscionable, and these provisions must be made uniform (by abolishing the exceptions applying to homosexual, transgender and sex discrimination in employment).

 

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In conclusion, it is clear that, while NSW once had the first gay anti-discrimination laws in Australia, it now has (arguably) the nation’s worst LGBTI laws – with significant problems in terms of protected attributes and religious exceptions, and serious shortcomings where it does have anti-vilification coverage. These, and other, issues must be addressed by the Government, and Parliament more broadly, as a matter of priority.

 

Footnotes:

[i] The other posts in the series can be found here: LGBTI Anti-Discrimination / #NoHomophobiaNoExceptions

[ii] Section 4 Definitions.

[iii] From section 4: “recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction.”

[iv] Potentially modelled on the definition adopted by the Commonwealth Sex Discrimination Act 1984: “gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.” [Although obviously exact wording should be agreed with NSW’s transgender community.]

[v] Section 4 of the Sex Discrimination Act 1984 now includes: “intersex status means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.”

[Again, the final wording of the new definition would need to be agreed in consultation with NSW’s intersex community.]

[vi] Section 4 of the Sex Discrimination Act 1984 states ““sexual orientation” means a person’s sexual orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

(c) persons of the same sex and persons of a different sex.”

[vii] OV & OW v Members of the Board of the Wesley Council [2010] NSWCA 155 (6 July 2010).

[viii] OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).

[ix] Defined in section 4 as “private educational authority means a person or body administering a school, college, university or other institution at which education or training is provided, not being:

(a) a school, college, university or other institution established under the Education Reform Act 1990 (by the Minister administering that Act), the Technical and Further Education Commission Act 1990 or an Act of incorporation of a university, or

(b) an agricultural college administered by the Minister for Agriculture.”

[x] Section 38C prohibits discrimination against transgender applicants and employees, but subsection (3)(c) clarifies that this prohibition does not apply to discrimination by private educational authorities.

[xi]Section 38K Education

(1) It is unlawful for an educational authority to discriminate against a person on transgender grounds:

(a) by refusing or failing to accept the person’s application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on transgender grounds:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of a private educational authority.”

[xii] Section 49ZH prohibits discrimination against lesbian and gay applicants and employees, but, just like for transgender people, subsection (3)(c) clarifies that this prohibition does not apply to discrimination by private educational authorities.

[xiii]Section 49ZO Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of homosexuality:

(a) by refusing or failing to accept the person’s application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of a private educational authority.”

[xiv] Section 38T.

[xv] Section 49ZTA.

[xvi] Section 20C.

[xvii] See Ms Upton’s tweet reproduced here: Will NSW Reforms Prioritise Racial Vilification at the Expense of LGBTI Vilification?

[xviii] Section 38P. It is hoped that, given the work in recent years by transgender groups, the Australian Human Rights Commission and Australian sporting organisations, these provisions could be amended if not repealed entirely in future years.

[xix] Section 38Q. I am genuinely interested to know what the policy rationale is for such a provision – if people have information about this, please write a comment below.

[xx] Included in both sub-sections 38C(3)(b) and 49ZO(3)(b).

[xxi] Section 25(3)(b).

[xxii] Section 8, which covers Discrimination against applicants and employees on the ground of race, does not include any exception based on the number of employees that an employer has.

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2 thoughts on “What’s Wrong With the NSW Anti-Discrimination Act 1977?

  1. re: footnote xix, that superannuation provision would essentially only have symbolic implications now, wouldn’t it, but may have been intended to limit ‘same sex’ couples attempting to get around discriminations in the past?

    I can understand the Wesley Mission being considered to be a body established to propagate religion but would St Vincent’s Public Hospital really be able to claim that?

    Like

    • Thanks for your comment Martin. In terms of the superannuation comment, yes, one would hope that superannuation funds no longer behaved in this way. However, in an area of law that serves the dual purposes of a) resolving specific disputes and b) setting community standards (eg that, as a principle, LGBTI people should not be discriminated against), leaving such a provision on the statute book still tacitly condones the view that transgender people are somehow ‘lesser’.

      In response to your second question, yes, St Vincent’s Hospital really would be able to claim that if they so wished – I can see nothing in this legislation that would stop them.

      Like

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