What it does
The Anti-Discrimination Act 1977 (NSW) is the principal statute in New South Wales prohibiting unlawful discrimination and promoting substantive equality. Its core operative provisions are contained in Parts 2–4G, which define specific protected attributes and render certain conduct unlawful when done on the ground of those attributes in prescribed areas of public life.
At its foundation, the Act adopts a comparator test for direct discrimination. For example, s 7(1)(a) provides that a person (the perpetrator) discriminates against another (the aggrieved person) on the ground of race if the perpetrator treats the aggrieved person less favourably than, in the same circumstances or circumstances that are not materially different, the perpetrator treats or would treat a person of a different race. Subsection (2) clarifies that something is done on the ground of race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race, or a characteristic generally imputed to persons of that race. Parallel definitions appear for sex (s 24), transgender grounds (s 38B), marital or domestic status (s 39), disability (s 49B), carers’ responsibilities (s 49T), homosexuality (s 49ZG), and age (s 49ZYA). Each definition includes both direct and indirect discrimination, the latter typically requiring a respondent to impose a condition or requirement with which a substantially higher proportion of persons without the attribute can comply, that is not reasonable in the circumstances, and with which the aggrieved person cannot or does not comply.
The Act then applies these definitions to specific contexts. Division 2 of each Part addresses discrimination in work. Section 8 makes it unlawful for an employer to discriminate on the ground of race in arrangements for determining who should be offered employment, in determining who is offered employment, in the terms of offer, in the terms or conditions of employment afforded, by denying or limiting access to promotion, transfer or training, or by dismissing the employee or subjecting them to detriment. Parallel provisions exist for sex (s 25), disability (s 49D), and other attributes. Exceptions are provided, such as the genuine occupational qualification defence in s 14 for race (allowing authenticity requirements in dramatic performances or welfare services) and the more detailed genuine occupational qualification test in s 31 for sex. Similar work-related prohibitions and exceptions appear for commission agents (ss 9, 26, 49E), contract workers (ss 10, 27, 49F), partnerships of six or more (ss 10A, 27A, 49G), local government councillors (ss 10B, 27B, 49H), industrial organisations (ss 11, 28, 49I), qualifying bodies (ss 12, 29, 49J), and employment agencies (ss 13, 30, 49K).