Discrimination can affect every part of a person’s life. From finding a job or a place to live, to getting healthcare.
But speaking up can be difficult. People are often left to make a complaint themselves, while the problems that caused the harm stay the same.
That’s why the NSW Law Reform Commission’s review of the Anti-Discrimination Act is so important. We’re calling for a law that makes it easier for everyone to get justice and helps prevent discrimination before it happens.
What does discrimination look like?
Discrimination is unfair treatment because of a person’s characteristics. This can include their race, sex, disability, age, sexuality or other attribute protected under the law.
It can happen at work, in housing, at school or in healthcare settings.
For example, the National Justice Project represented a First Nations family in a racial discrimination claim. They experienced a series of traumatic events at a polling booth during and following the 2023 Voice Referendum.
Discrimination can be direct, such as refusing someone a job because of their race. Other times it’s indirect, like a workplace requiring everyone to work in the office every day may disadvantage some people with disability.
Discrimination can also be systemic, when laws, policies, practices or systems disadvantage groups of people. Racism in the healthcare system has led to some of our clients being ignored and dismissed by doctors. This has tragically led to misdiagnosis, the wrong treatment and even death.
What is NSW’s Anti-Discrimination Act?
The Anti-Discrimination Act 1977 (NSW) protects people from discrimination in NSW. It makes discrimination unlawful in areas such as work, education and housing. It also allows people to make complaints.
The Act covers harassment and vilification, which are different from discrimination. Harassment means behaviour that makes someone feel intimidated, humiliated or offended. For example, repeatedly making racist comments to a colleague.
Vilification means public behaviour that encourages hatred, serious contempt or severe ridicule towards a person or group because of who they are. This could be making a public speech that encourages others to hate people because of their religion.
Why is NSW’s Anti-Discrimination Act not working?
When NSW’s Anti-Discrimination Act was introduced in 1977, it was groundbreaking. Almost 50 years later, it needs to catch up with how discrimination happens today.
In 2023–24, Anti-Discrimination NSW received 1,670 complaints. Only 15% were resolved through an agreement between the parties. Similar numbers were referred to the NSW Civil and Administrative Tribunal (NCAT), a specialist body that rules on discrimination and other cases. The rest were declined, withdrawn or abandoned.
At the National Justice Project, we rarely use this Act to help people who experience discrimination. Proving discrimination can be challenging as the threshold is so high and the scope is so narrow. People may also struggle to find legal help or feel safe making a complaint.
We need a law that makes it easier for people to get justice and helps stop discrimination from happening in the first place.
The NSW Law Reform Commission is now reviewing the Act to work out what needs to change.
How NSW’s Anti-Discrimination Act needs to change
We’re calling for an anti-discrimination law that is easier to access, able to address discrimination within our systems, and focused on stopping harm before it happens.
1. Shift the focus from complaints-only to prevention
The problem: Organisations can continue harmful practices while people are left to make complaints themselves.
What needs to change: The law should do more to identify patterns of discrimination and address their causes.
What would this look like? When someone experiences discrimination by police or another public authority, the law would help identify and address the causes to prevent other people from being harmed in future.
2. Introduce a duty to stop discrimination
The problem: People are often expected to speak up before an organisation takes action.
What needs to change: Organisations, government agencies and public authorities should have a legal duty to take reasonable steps to prevent discrimination.
What would this mean? Instead of relying on patients to speak up after experiencing discrimination, hospitals would be responsible for preventing it in the first place.
3. Make justice easier to access
The problem: People may not know their rights, struggle to afford a lawyer or find it difficult to prove discrimination.
What needs to change: The complaints process should be simpler, with clearer information and fewer barriers to proving discrimination.
What would this mean? Someone who believes they were refused a job because of their disability could find clear information about their rights and get help making a complaint.
4. Embed cultural safety and trauma-informed practice
The problem: Speaking up about discrimination can be difficult, particularly for people who have experienced trauma or have reason to distrust authorities.
What needs to change: Complaint processes should be culturally safe, trauma-informed and shaped by the people who use them.
What would this mean? A First Nations person making a complaint would be treated with respect and supported to share their experience in a safe space.
Read more: Why Aboriginal-led prison healthcare is urgently needed in Victoria
