Changes to New South Wales anti-discrimination laws on the horizon
Religious vilification to be unlawful in New South Wales
The Anti-Discrimination Amendment (Religious Vilification) Bill 2023 passed both houses of the New South Wales Parliament on Thursday, 3 August 2023.
The Bill amends the Anti-Discrimination Act 1977 (NSW) to make inciting hatred towards, serious contempt for, or severe ridicule of a person through a ‘public act’, on the ground that the person:
- has, or does not have, a religious belief or affiliation; or
- engages, or does not engage, in religious activity,
unlawful in New South Wales.
Under these new provisions, a ‘public act’ includes:
- certain communications to the public;
- certain physical conduct that can be observed by the public; and
- distributing matter to the public, with knowledge that the matter vilifies a person or a group of people on the ground of religious belief, affiliation or activity.
Some (minor) exceptions to these new provisions will apply. A fair report of unlawful public vilification, privileged communications in defamation proceedings, or public acts done reasonably and in good faith for various purposes in the public interest, will not be unlawful religious vilification under these new provisions.
These new provisions are similar to existing provisions in the Act that make vilification unlawful on the grounds of race, homosexuality, transgender status or HIV / AIDS status.
The Bill received Assent from the Governor of New South Wales on Friday, 11 August 2023, and is now an Act of the New South Wales Parliament. These new provisions will take effect as part of the Act three months after the day that the Bill received Assent – that is, on Saturday, 11 November 2023.
New South Wales non-government schools should consider how these new provisions will impact them. We note that these new provisions:
- do not provide broader protections against discrimination on the ground of religious belief, affiliation or activity; and
- do not amend or affect the Act’s existing exceptions to anti-discrimination protections that are available to all New South Wales non-government schools.
Review of the Anti-Discrimination Act 1977 (NSW) has commenced
The Attorney-General of New South Wales has asked the New South Wales Law Reform Commission to review the Anti-Discrimination Act 1977 (NSW).
The terms of reference for this review (dated 19 June 2023) require the Commission to consider how the Act can be “modernised and simplified to better promote the equal enjoyment of rights and reflect contemporary community standards”.
We anticipate that the Commission will undertake a broad review of the Act. This is because the terms of reference for this review also require the Commission to consider (alongside other matters):
- whether the range of attributes protected against discrimination should be changed;
- whether protections against vilification are adequate;
- whether a positive obligation to prevent harassment, discrimination and vilification should be introduced; and
- exceptions to anti-discrimination protections.
New South Wales is the latest jurisdiction to review its anti-discrimination laws. In recent years, Queensland, Western Australia, Victoria, and the Australian Capital Territory have also reviewed or amended their anti-discrimination laws. The Australian Law Reform Commission’s review into exceptions to anti-discrimination protections for religious educational institutions under the Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth) is ongoing.
This review into the Act, if and when completed, could affect both the scope of obligations that New South Wales non-government schools have under the Act to protect against discrimination, and the exceptions to anti-discrimination protections that are available to New South Wales non-government schools.
How we can help
We are monitoring the above developments with interest. Please contact David Ford, Stephanie McLuckie or Samuel Chu if you require advice or assistance in relation to how your school can comply with anti-discrimination laws.