Submission to the NSW Law Reform Commission review of the Anti-Discrimination Act 1977 (NSW): Unlawful conduct
15 August 2025
PWDA welcomed the opportunity to comment on the Consultation Paper (Unlawful Conduct) provided by the NSW Law Reform Commission to inform its review of the Anti-Discrimination Act 1977 (NSW) (the ADA).
In 2022, 5.5 million (21.4%) Australians had a disability. These are individual people with diverse voices. They are members of families and communities.
PWDA believes that the lived experience evidence of people with disability alongside genuine co-design/co-production (a central principle of the ‘Nothing About Us Without Us’ motto) are critical elements in effective disability policy making.
PWDA believes that a human rights model of disability must provide the conceptual framework for all disability policy and legislative reform in Australia. All disability policy and legislation must recognise people with disability as active citizens.
The pervasive medical model of disability defines people with disabilities by their “impairments” and as objects to be “cured”. This legitimises restrictions on autonomy and the denial of dignity.
While existing anti-discrimination laws in NSW have resulted in some improvements, they are failing to tackle deep systemic discrimination. A key reason is because anti-discrimination laws such as those in NSW contain limited or no “mechanisms” to both proactively prevent discrimination and confront and change processes that perpetuate in-equality.
A particular flaw with the system stems from NSW anti-discrimination legislation almost exclusively operating within an ‘individual complaints-based model’ (as also in the Federal scheme for example). It places the burden of seeking a remedy for unlawful discrimination upon the victim.
Recommendations
Recognising human rights instruments
Recommendation 1 – Primacy of international human rights intruments
Recognise the primacy of all international human rights instruments as being the basis from which rights, while inherent to all, flow. The ADA must reflect and support the purposes and principles of those instruments without qualification.
Recommendation 2 – Reflect the human rights model of disability
Reflect a human rights model of disability as articulated by the United Nations Convention on the Rights of Persons with Disabilities and interpreted by the Committee on the Rights of Persons with Disabilities. The human rights model of disability recognises human dignity as the foundation for all rights and recognises the critical importance of intersectionality
Eliminating systemic discrimination
Recommendation 3 – Identify systemic discrimination as a barrier to inclusion
Systemic discrimination is a major obstacle that prevents people with disability from fully participating in economic and social life. Simply treating everyone the same (formal equality) is not enough to fix this deep-rooted issue. To truly break down these barriers, we need to focus on creating real opportunities and fair results for everyone. Using targeted actions is an important way to help achieve true and lasting equality that includes all individuals.
Positive duties: adjustments and preventing discrimination
Recommendation 4 – Evidentiary burden fall on the duty holder
Make sure that those responsible for making the adjustments (e.g employers) have a clear obligation to provide all necessary changes (such as workplace adjustments). They should do so up until it becomes too difficult or costly to do so. The responsibility to prove that making the changes is too difficult should be on the duty holder (e.g. the employer).
Recommendation 5 – Standalone duty for people with disability
Contain a standalone positive duty to prevent and eliminate discrimination against people with disability, including those with a risk of intersectional discrimination.
Recommendation 6 – “Preventative culture” towards discrimination
State that an aim or purpose of the Act is to encourage a “preventative culture” towards discrimination amongst all members of the community in line with the Australian Human Rights Commission’s Free and Equal model.
Improving access to justice
Recommendation 7 – Fund community legal services
Legal Aid NSW, NSW Community Legal Centres, and community advocacy services must be funded so that all persons experiencing discrimination can access assistance with information, tasks, advice, and critical representation when seeking to make a complaint.
Recommendation 8 – Recognise supported decision-making
ADA must recognise a right to supported decision-making assistance and include provisions guaranteeing independent fully funded decision-making support services for complainants when requested.
Recommendation 9 – “Own motion” investigations
Anti-Discrimination NSW must have the ability to investigate issues on its own initiative across all types of unfair treatment in New South Wales, especially when there are signs of widespread problems.
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