30 years of the Anti-Discrimination Act

Speech by Magistrate Nancy Hennessy of the Administrative Appeals Tribunal at the celebration of 30 years of the Anti-Discrimination Act held at Parliament House on 25 October 2007

The views expressed in this article are those of the writer and not necessarily those of the President, Board members or staff of the ADB

Attorney General, distinguished guests.

It is a privilege to be invited to speak to you this evening. Many of you have worked hard to promote human rights over the last 30 years. You have worked in government and in non-government organisations, many on a voluntary basis, and you can be justly proud of your achievements.

When the Wran government brought in the Anti-Discrimination Act on 1 June 1977, it was one of the first statutes of its kind in Australia. The Act provided an accessible civil remedy for victims of discriminatory conduct. Many ground breaking decisions were made: female iron workers at BHP had a victory in relation to discriminatory redundancy provisions, Melinda Leves was given access to the same choice of subjects as her twin brother who went to a boys high school and access to a shopping centre in Wollongong was improved for people using wheelchairs.

Since 1977, the Act has been amended at least 53 times. Grounds such as age discrimination, transgender status and carer’s responsibilities have been added. The Act has been expanded to cover vilification and harassment on some grounds. More recently, the procedures for complaining to the Board and having a case heard in the Tribunal have been overhauled. These changes have extended the protection our society gives to its most vulnerable and powerless citizens.

The Act has helped ensure that everyone is treated equally, regardless of irrelevant characteristics such as race, sex, disability or homosexuality. But formal equality is only the first step in eradicating discrimination. It is not enough to compare people with a disability, for example, with people without a disability and treat them the same. Those of us who work with the Anti-Discrimination Act on a regular basis know that it is much harder to achieve substantive equality so that everyone is on a level playing field regardless of who they are.

In 2003, the High Court handed down a decision involving Daniel, a high school student from New South Wales, with intellectual and other disabilities caused by brain damage. He exhibited some violent behaviours and was expelled from school. The High Court interpreted the federal Racial Discrimination Act, which is similar to the NSW Act, as guaranteeing only formal equality. All that was required of the school was to treat Daniel in the same way as it would treat any other student who exhibited violent behaviour. Despite the fact that Daniel’s behaviour arose from his disability, the High Court found that there was no positive obligation on the school to accommodate him.

We also need to think about simplifying and extending the law in other ways. Muslims, who are one of the most maligned groups in Australian society, are not squarely protected by the Act. Religion as a ground is not covered and the term ‘ethno-religious’ is difficult to understand and apply.

In 30 years, the Act has regularly been improved and expanded. Recent amendments such as adding breastfeeding as a distinct ground of discrimination, have strengthened the protection the Act gives to women of child bearing age. Our challenge is to ensure that in the next 30 years we achieve an even greater measure of substantive equality so that everyone has access to the same benefits and protections as the majority enjoys.