Proposed changes to the complaints systems in NSW anti-discrimination laws should be rejected since they are likely to limit access to justice and exclude legitimate complaints, says a Victoria University law academic.
The Anti-Discrimination Amendment (Complaint Handling) Bill 2020 would require the President of the NSW Anti-Discrimination Board to ‘decline’ complaints in many circumstances, such as if they were considered to be ‘frivolous, vexatious, misconceived, or lacking in substance'. Complaints that were declined would not proceed to either conciliation, or hearing by a tribunal.
The proposed changes are likely to disadvantage people who have experienced discrimination, but who cannot afford legal assistance in drafting a complaint, and for whom English is not a first language. These are the members of society that anti-discrimination laws are meant to protect, said Mr Swannie.
The private members’ bill was introduced by NSW One Nation leader Mark Latham in February. The committee currently examining the bill will deliver its recommendations to NSW Parliament in early September.
Mr Swannie said the bill – if passed – would have significant implications for anti-discrimination laws in other jurisdictions in Australia, including Victoria, which is considering similar changes:
“There is a trend in other states and federally to restrict access to anti-discrimination boards, for people seeking to make a complaint of discrimination.”
He said the Anti-Discrimination Act 1977 (NSW) currently provides several mechanisms for identifying weak complaints, and that the proposed changes could further disadvantage members of particular groups, such as racial and ethnic minorities.
Amendments could contravene human rights
“This Bill would fundamentally shift the balance between preventing misuse of the Act, and allowing appropriate access to hearing, determination and remedies for members of groups who experience unlawful discrimination," he said.
“Indeed, the Bill may be contrary to Australia’s human rights obligations by effectively denying access to a remedy for discrimination.”
He said there was no evidence of either an unusually large number of anti-discrimination complaints in recent years, or an unusually large number of unmeritorious complaints.
“We recommend that the bill be rejected in its entirety,” he said.
Bill Swannie teaches Privacy and Media Law in Victoria University’s College of Law and Justice. He is currently completing a PhD on issues of free speech and media regulation. He is a member of the Human Rights Committee of the Law Institute of Victoria. He is available for comment.