Equal Time Summer 2007 08 page 1 of 25 Equal Time Newsletter of the Anti Discrimination by tyndale


									Equal Time Summer 2007-08                                                                                                       page 1 of 25

Equal Time
Newsletter of the Anti-Discrimination Board of NSW

Number 71 Summer 2007-08

From the President ............................................................................................................................. 2

Breastfeeding amendment ................................................................................................................ 4

Anti-Discrimination Amendment (Breastfeeding) Bill 2007 .......................................................... 8

Training Calendar 2008 ...................................................................................................................... 9

Celebrating our anniversary ........................................................................................................... 10

Photo competition winners ............................................................................................................. 12

Celebrating 30 years ........................................................................................................................ 13

Disability discrimination and the ADA .......................................................................................... 15

Disability adaptation: not so hard ................................................................................................. 19

Community events ........................................................................................................................... 21

Conciliations ..................................................................................................................................... 23

The Anti-Discrimination Board of NSW ........................................................................................ 25
Equal Time Summer 2007-08                                                                        page 2 of 25

From the President
The Anti-Discrimination Board’s Annual Report for 2006–07 was presented to parliament by
Attorney General John Hatzistergos, on 29 November 2007. Board President Stepan
Kerkyasharian reports that the Board celebrated 30 years of anti-discrimination legislation
in NSW and had a stable and successful year.
2007 marked the thirtieth anniversary of the Anti-Discrimination Act, which came into force on June 1 1977.
The Act pioneered anti-discrimination legislation in Australia, and remains a powerful tool for addressing
discrimination, harassment and vilification in NSW.
The Anti-Discrimination Board is the organisation established by the Act to educate the community about
their rights and responsibilities under anti-discrimination law, handle complaints of discrimination, and
where appropriate, advise the government on discrimination matters. The Board has continued to do this
effectively in 2006-07.
The Board‟s education service has maintained its excellent work, with a variety of services and events
targeted at a very wide range of sectors in the community.
Our self-funding training service for employers and service providers continues successfully due to the
excellent reputation of our training staff for providing interactive sessions tailored to the needs of specific
employers. Along with our regular seminars and in-house training services, we also provided an
information session on the relationship between discrimination law and the federal government‟s Work
Choices legislation to ensure that employers understood their continuing obligations under anti-
discrimination law in NSW.
Our community education service continued to work with groups that have been identified as being
particularly vulnerable to discrimination. As well as our usual networking, community training and displays,
this year we ran further training for members of the African community, provided education for people with
brain injury, and ran a highly successful art competition which culminated in an award ceremony at
Parliament House in April. It was very heartening to see the spirit of community harmony that the children
demonstrated in their entries, and the creative ways they expressed their vision.
Our Aboriginal and Torres Strait Islander team provide an important and accessible service for Aboriginal
and Torres Strait Islander people, in answering enquiries, providing strategies for addressing
discrimination, handling complaints and educating their community.
The team has been particularly effective in partnering with other agencies to provide clear and
comprehensive information covering a range of jurisdictions. As accommodation continues to be a major
area of discrimination for Aboriginal people, the residential tenancy seminars the team conducted for real
estate agents with the Office of Fair Trading are of particular significance.
The formal complaints we received were of a similar number and breakdown to last year, apart from a rise
in complaints of race discrimination. This may reflect an increase in race discrimination, and/or an increase
in willingness to report discrimination, which in turn may reflect our efforts to educate vulnerable
communities about their rights. The Board will continue to monitor developments in this area.
Complaint handling staff have continued to achieve excellent results in finalising complaints, with no backlog
and this year‟s files finalised within an average of 5.5 months. There was another significant increase in the
number of complaints resolved at or after a conciliation conference, which we believe may result from the
improved time taken to deal with complaints – the parties are more responsive to resolution when the issues
are still immediate, and there is a better opportunity to make changes.
The Board has achieved a great deal in since 1977, and there is far greater awareness about discrimination
and harassment than there was 30 years ago. However, the Board‟s enquiry staff still hear stories daily
which make it clear that not everyone in NSW respects the right of all people to live free of discrimination. I
therefore look forward to achieving still more in the future.
Equal Time Summer 2007-08                                                                    page 3 of 25

My thanks to all Board staff for their professionalism and commitment, including the invaluable support staff
who facilitate our work. Thanks also to the Statutory Board members for their usual wise guidance
throughout the year.
Equal Time Summer 2007-08                                                                        page 4 of 25

Breastfeeding amendment
The Anti-Discrimination Act 1977 has been amended to strengthen the prohibition
on discrimination against women who are breastfeeding

It’s official!

Discrimination on the ground of breastfeeding is now officially unlawful discrimination on
the ground of sex. Along with pregnancy, breastfeeding has long been considered ‘a
characteristic that appertains generally to persons of a particular sex’. A recent amendment
to the Anti-Discrimination Act makes it clear.

Under the new law, ‘breastfeeding’ is defined as including the act of expressing milk.

According to one study, more than one in five pregnant workers encounter at least one „difficulty at work
during their pregnancy:
• 9% received negative or inappropriate comments
• 9% missed training and development opportunities
• 7% missed opportunities for promotion     1

A range of issues have been raised in cases before the courts and tribunals. Some employers, faced with a
pregnant employee, have actively tried to „persuade‟ her to leave. This is despite the many financial
benefits of keeping a valued employee in a job: loyalty, commitment, retention of experience and expertise,
training investment, avoidance of recruitment costs and gaining „preferred employer‟ status.
Employers must treat pregnant women the same as they would any other employee unless there is a legal
reason to treat them differently. If they normally supply employees‟ uniforms, for example, they should
supply a larger size to a pregnant employee if necessary. They should not transfer a pregnant woman to a
job „out of sight‟ against her will, or to a „safer‟ job unless there are real medical or safety issues for doing
They must not treat women whom they think are likely to become pregnant less favourably, either.
Unfortunately, many young women report less favourable treatment when, for example, they marry.
Under NSW law, an employer does not have to employ someone who is pregnant at the time of the job
interview. In most cases, however, this is unlawful under federal law
Bad attitudes
In one case2, a pregnant hairdressing apprentice claimed her manager‟s attitude changed when she
became pregnant: criticising; setting menial tasks; and so on. The real difficulty, however, was her
manager‟s decision that she could no longer work in one salon. She was required to travel to different
salons from day to day.
As her pregnancy progressed, her obstetrician gave her a medical certificate stating that she could only do
8-hour shifts. The manager ignored this and required her to work 12-hour shifts. She was forced to leave
her job. The Queensland Administrative Decisions Tribunal found that she had been treated less favourably
because of her pregnancy and she was awarded $9,257.50 for humiliation, distress and lost wages.
Another case3 concerned a teacher who lost her job-share position as registrar at a private school, when
the school decided the arrangement wasn‟t working.
Equal Time Summer 2007-08                                                                          page 5 of 25

The registrar‟s job was advertised and filled as a full-time position. The woman applied, and was willing to
work full-time, but did not get the job.
The Queensland tribunal found that the decision that the Registrar‟s position should be full-time was
genuine, based on operational requirements, and not discriminatory. The tribunal was satisfied, however,
that the real reason for refusing her the job was because of her parental responsibilities and pregnancy and
this was discriminatory.
It also found that it was unreasonable to require the woman to work full-time or lose her job. It was also
irrational to refuse to offer her a teaching job when many were available for which she was qualified.
Instead, the school had directly discriminated against her because she was offered a low status, low paid
job because she was pregnant.
The woman was awarded $42,250.

Pregnancy is not an illness
Maybe not, but the Federal Magistrate‟s Court found that Qantas discriminated against a flight attendant by
refusing to allow her to access her sick leave on the grounds that she was pregnant rather than sick 4 .
Flight attendants have to stop flying at a certain stage of their pregnancy due to the potential radiation
danger. In this case there were no ground-based jobs at an equivalent salary level, so the woman asked to
use her sick leave. Qantas said she must accept a clerical position on offer or go on unpaid maternity leave.
The employee successfully argued that Qantas‟ refusal of her sick leave claim meant that she was treated
less favourably than another hypothetical employee who was not pregnant but was also unable to perform
flying duties by reason of a medical certificate.

Accommodating the needs of pregnant employees
Employers need to have in place appropriate policies for dealing with the needs of pregnant employees. A
woman who was seven months pregnant asked for „light duties‟ because she was having trouble coping. 5
She was told that there were no temporary positions for her to fill, and if she could not do her job, she
would have to take leave.
The tribunal found that there was no direct discrimination. The woman was not treated less favourably than
other employees who needed to be on light duties because of her pregnancy.
The tribunal, however, considered whether or not she had been indirectly discriminated against. It had to
decide if requiring her to take leave if she couldn‟t do her job was reasonable and whether a substantially
higher proportion of men could comply with such a requirement than women in the late stages of
The tribunal found that, on the face of it, the requirement was reasonable. In all the circumstances,
however, it was not reasonable. It pointed to a lack of written policies to deal with requests such as Ms
Jordon‟s, the lack of any training as to how the request should be handled; and no system for exploring
The Tribunal awarded the woman $7,500 for having to take leave before, rather than after her baby was

After birth
Mothers are entitled to return to work after maternity leave. If their old job is not available, they are entitled
to expect that they will be offered something comparable in terms of such things as salary, status, or
responsibilities. One woman agreed to return to a „different but comparable‟ role. 6
She was, however, placed in an inferior job with no budget, less responsibility, and no line management
responsibilities or development opportunities. She later moved to better position, but it still carried a loss of
status. She claimed that this was sex discrimination
Equal Time Summer 2007-08                                                                        page 6 of 25

The magistrate agreed that she had been discriminated against on the ground of sex. He found that she was
treated less favourably than people who took leave for other reasons.
She was awarded $10,000 plus an apology.

Carers’ responsibilities
It is unlawful to discriminate against a person because they are the prime carer for a family member,
including a child, grandchild, parent, grand parent, partner, sibling or any of those relatives of a sibling. A
carer is also entitled to „reasonable accommodation‟ for their caring responsibilities.
A carer can be male or female, but accommodations are often sought by mothers returning from maternity
In a recent case7 an employee returned to work after maternity leave to find that her job had been divided
into two positions. She was given the more junior role. The senior role included most of her previous
The employer claimed that the senior role was given to the better candidate.
The Tribunal did not believe this because:
• It being the job she had held, it was not sensible to give it to someone else
• The manager had expressed concern about how women with children managed their time.
• He had told the woman to spend as much time as possible with the baby
• He had sent an email to other employees after her return saying „Please welcome Sally back to the office
  and if she s p e l l s e v e r y t h i n g o u t when talking to you, please be patient‟.
The Tribunal was satisfied that she did not get the senior job because of the sales manager‟s beliefs about
the effect of childcare responsibilities on performance.
She was awarded $19, 685
A woman who is returning from maternity leave does not have an absolute right to return part-time. The
carer‟s responsibilities ground, however, entitles her to expect that her employer will give proper
consideration to the question of whether or not this is possible.
A manager and long term employee, sought to return to work part-time after her maternity leave. Her request
was refused. Her employer insisting that the job was full-time and that they had no obligation to assist her to
manage her personal affairs.
She offered to work on the three busiest days of the week and to be on standby on the other two. The
employer reiterated its refusal without negotiation.
The woman succeeded in her claim of discrimination on the ground of carer‟s responsibilities, pregnancy
and gender. The tribunal found that her employer had not given due consideration to her request and that
requiring her to return full time was not reasonable in all the circumstances.
She was awarded $16,385 for loss of income, stress and humiliation.

Only women have babies
Finally, since only women have babies, discrimination against a woman because she is pregnant (or could
become pregnant), or because she is breastfeeding, is sex discrimination. The breastfeeding amendment
specifically states that it is not discrimination against men to make particular arrangements for
breastfeeding women!


Equal Time Summer 2007-08       page 7 of 25





Equal Time Summer 2007-08                                                                         page 8 of 25

Anti-Discrimination Amendment
(Breastfeeding) Bill 2007
The                                                   was passed by the NSW Parliament
on 24 October 2007. The Hon. Tony Kelly moved that the Bill be read a second time and
sought leave to have the second reading speech incorporated in Hansard.
“This bill provides for amendments to the Anti-Discrimination Act to remove any doubt that discrimination on
the ground of breastfeeding is unlawful.
2007 marks the 30th anniversary of the Anti-Discrimination Act. Thirty years ago, the New South Wales
Parliament moved to outlaw discrimination on the grounds of race, sex and marital status in the areas of
employment, the provision of goods and services and accommodation, and race discrimination in
Since then the New South Wales Parliament has responded to deal with other forms of discrimination. The
Anti-Discrimination Act now applies to discrimination on many grounds, including age, religion, disability,
carers‟ responsibilities, pregnancy, homosexuality and transgender status.
Discrimination on these grounds is rendered unlawful in the areas of employment, State education, goods
and services, accommodation and registered clubs. Both direct and indirect discrimination are against the
Honourable Members, the bill before the House seeks to further enhance the coverage of the Anti-
Discrimination Act by removing any doubt that discrimination on the ground of breastfeeding is unlawful.
Discrimination on the grounds of a person‟s sex or a characteristic that pertains to a person of that sex, or
is generally imputed to a person of that sex, is already unlawful under the Anti-Discrimination Act 1977.
Pregnancy is specifically cited as a characteristic that appertains generally to women.
This bill will insert a new provision into the Act to make it clear that breastfeeding is also a characteristic
that appertains generally to women. The bill also provides that breast-feeding includes the act of
expressing milk. The bill also makes it clear that a person is not to be treated as having unlawfully
discriminated against a man on the ground of sex merely because that person grants a woman rights or
privileges in connection to breastfeeding.
It is timely for New South Wales to clarify the law in this area. There is now considerable evidence to
suggest that increasing levels of breastfeeding will bring important benefits for the health of the Australian
community. Clearly prohibiting discrimination on the grounds of breastfeeding will ensure that women who
choose to breastfeed are protected from any discriminatory conduct which may impact on that choice.
In 2003 the World Health Organisation and UNICEF jointly endorsed their Global Strategy for Infant and
Young Child Feeding, which drew attention to the need to provide facilities for breastfeeding women to be
able to engage in employment outside the home, while continuing to breastfeed.
Enacting legislation to remove any doubt that discrimination on the grounds of breastfeeding is unlawful will
make an important contribution to achieving this global goal.
Honourable Members, these amendments will provide breastfeeding mothers with the protection of the law,
helping to ensure that children in this State are given the best start in life. I commend the bill to the House.”
Equal Time Summer 2007-08                                                                      page 9 of 25

                         Anti-Discrimination Board of NSW

                              Training Calendar 2008
Case law update
EEO for CEOs
Grievance handling skills
Grievance management
and resolution skills (2 days)
Implementing EEO
Harassment and bullying
Issues for small business
Managing psychiatric
Recruitment and termination
Skills for Contact Officers
For more information on our training program visit:
To register for courses contact Milly Stylli on (02) 9268 5530 or 1800 670 812 or download the
brochure from our website

In-house training programs
The Board also provides an extensive series of training programs designed to be delivered in-house. We
come to you! We can design and deliver a program specifically for your organisation and industry.
Our training sessions are highly interactive and use a range of scenarios, exercises and activities to
stimulate interest and discussion.
Our in-house training sessions range from a two-hour awareness program for non-supervisory staff to one
or two-day sessions for senior managers and supervisors.
All sessions are competitively priced with non-supervisor two-hour sessions starting at $44 (+GST) per
participant and full-day sessions for managers starting at $140 (+GST) per participant.
The fee for our on-site training programs also includes reviewing your policies and procedures, all
preparation and delivery time, and publications for each participant.
For more information please call the Manager Education Services, Sharmalee Elkerbout, on
(02) 9268 5520 or 1800 670 812.
Equal Time Summer 2007-08                                                                     page 10 of 25

30 years of the Anti-Discrimination Act

Celebrating our anniversary
The Anti-Discrimination Board of New South Wales celebrated and examined 30 years of
Anti-Discrimination law in NSW in 2007 with a variety of events.
The formal celebration was an evening ceremony at NSW State Parliament on 25 October 2007 attended
by ministers, judges and representatives of the social justice community in NSW.
The evening celebrated the historic achievement with speeches from Attorney General, John Hatzistergos,
Magistrate Nancy Hennessy of the Administrative Decisions Tribunal and President of the ADB, Stepan
Kerkyasharian. Speakers analysed the history and progress of discrimination law in NSW and commended
the Act and the work of the staff of the Board in helping protect people in NSW from discrimination.
There was a moving performance by young singers from Bankstown Council‟s Talent Advancement
Program and an exhibition featuring case studies, excerpts from the Act and entries in the 30th Anniversary
of the Anti-Discrimination Act photo competition.
The second event held on 30 October was a forum on the history and future of the NSW Anti-Discrimination
Act. The forum was co-hosted by the NSW Anti-Discrimination Board and the Koori Centre of Sydney
The Forum featured experts in discrimination law and Aboriginal issues who examined the impact of 30
years of the NSW Anti-Discrimination Act.
The first part of the forum featured experts in law and human rights, and the second part of the program
featured accounts of historical and contemporary racial discrimination against Aboriginal and Torres
Straight Islander people.
The Panelists included the first lawyer at the ADB in 1977, Chris Ronalds SC, as well as current and past
Board members and Aboriginal leaders.
Speakers analysed the current Act, which was such a pivotal piece of watershed legislation in 1977. Some
speakers expressed dismay that the Act has been overtaken by more progressive legislation in other states
and countries and bemoaned the lack of progress in NSW in the past decade.
Chris Ronalds SC, barrister and the first lawyer at the ADB in 1977, gave the background of the original
launch of the Act. Her anecdotes about the early days of the Board were a colourful reminder of how
revolutionary the Act was in 1977. She said it was the first piece of legislation in the world to contain the
term sexual harassment, and they had underestimated how much media attention the Act would receive.
The Act made front page headlines in the tabloid press and drew the ire of conservative commentators.
President of the Pride History Group Ken Davis gave an entertaining account of NSW in the 70s and early
80s, when discrimination against homosexuals was an even larger problem than it is today. His
involvement in the first Mardi Gras in Sydney, which was effectively a protest march, was a reminder of just
how far NSW has come in homosexual rights, and a reminder to keep going.
Principal Solicitor of the NSW Disability Discrimination Legal Centre, Joanna Shulman, gave insights into
working at the coalface of disability discrimination and discussed how far NSW still has to go, and issues
for the future, especially an ageing population.
Former board member and Minister for Fair Trading, Youth and Volunteering, the Hon. Linda Burney,
bemoaned the fact that Aboriginal women experience poorer health outcomes and shorter life expectancies
than all other Australians.
Chief Executive Officer of the NSW Native Title Services Warren Mundine spoke of the discrimination his
family had experienced. He explained how his father kept his dog tags (government issued identification
tags) as a reminder of discrimination. Mr Mundine also spoke of his experience of being refused rental
Equal Time Summer 2007-08                                                                     page 11 of 25

accommodation by a real estate agent when his wife took a university post in New England, NSW. Tony
McAvoy, an Aboriginal barrister in NSW, gave a comparative analysis of South African apartheid and
Australia‟s treatment of Aboriginal people.
The Aboriginal segment of the forum illustrated how recently severe discrimination against Aboriginal
people was a part of society. The Freedom Rides bus tour of northern NSW towns in 1965 helped raise
awareness of discrimination against Aboriginal people but racial discrimination against Aboriginal people
remains a problem today.
In our third event, a human rights theatre performance bought the community together in the centre of
Sydney to commemorate 30 years of NSW Anti-Discrimination Act. The event in Martin Place on 23
October 2007 featured the Social Justice Theatre Troupe showcasing the story of human rights and
The theatre troupe advocated a message of anti-discrimination through their performances, including
Punch and Judy. Passers by enjoyed 300 servings of Anniversary chocolate mud cake served on anti-
discrimination postcards while they chatted with Board staff and collected postcards and fact sheets.
President of the Anti-Discrimination Board, Stepan Kerkyasharian, delivered a speech on the importance of
the Anti-Discrimination Act. He said the Anti-Discrimination Act was a groundbreaking piece of legislation
when it was introduced in 1977 that had undergone major changes to enhance it since its enactment.
„The Act today makes it illegal to discriminate against someone on the basis of their sex, disability, race,
pregnancy, age, homosexuality, transgender status, marital status or carer‟s responsibilities,‟ he said. „It
remains crucial to addressing inequalities in society.‟
Equal Time Summer 2007-08                                                                  page 12 of 25

30 years of the Anti-Discrimination Act

Photo competition winners
The Anti-Discrimination Board of New South Wales is pleased to announce the joint winners of the Anti-
Discrimination Act 30th Anniversary Photo Competition!
Equal first place went to Arthur Roy of Toukley for his series on multiculturalism and harmony and to
Cassandra Stericker of Ermington for her series showing her son enjoying the Liberty swing in his
The photo competition was open to all NSW residents to send in photos depicting equal rights in our
„The photo competition allowed people of all ages across the state to show what anti-discrimination meant
to them after 30 years of legislation,‟ President of the NSW Anti-Discrimination Board Stepan
Kerkyasharian said.
„Photography is a wonderful way to visually communicate the ADB‟s message of equality and non-
discrimination,‟ he added.

Playing Together In Harmony.)

„This photo was published in the local Bankstown Council Newsletter to the delight of the parents. The idea
is that the children can learn at an early age to accept other cultures and their members as equals and
hopefully when they become adults prejudices and discriminatory feelings will have vanished.‟

The Liberty Swing

„These are a couple of photos of my son enjoying the Liberty swing. He can now enjoy the park like other
Equal Time Summer 2007-08                                                                       page 13 of 25

30 years of the Anti-Discrimination Act

Celebrating 30 years
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 behavi our.
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.
This case highlights the inadequacy of the current definition of discrimination. The problem applies not only
to people with disabilities but to people with carer‟s responsibilities and those who have been subjected to
historical disadvantage such as Aboriginal people. It is not enough to treat these people in the same way as
we treat healthy, white people without family responsibilities. We should think about re-defining
discrimination and imposing an obligation to reasonably accommodate people who are disadvantaged in
these ways.
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.
Equal Time Summer 2007-08                                                                page 14 of 25

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.
Equal Time Summer 2007-08                                                                       page 15 of 25

30 years of the Anti-Discrimination Act

Disability discrimination and the ADA
Principal Solicitor of the NSW Disability Discrimination Legal Centre (DDLC) Joanna
Shulman spoke at the 30th anniversary forum on the history and future of the NSW Anti-
Discrimination Act held on 30 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
DDLC is a small community legal centre which specialises in providing services in discrimination law,
advice and referral to people with disabilities in NSW.
When discussing the development of disability discrimination law, it is tempting to search for a startling
case, which had a widespread effect on a large number of people with disabilities and thus illustrates the
invaluable nature of the                          (ADA).
Alas, such a search will almost invariably be in vain. After fruitless searching one realises why; the ADA is a
piece of legislation which often results in what the outsider would classify as „small differences‟ to the lives
of the marginalised, but which in fact result in a significantly improved quality of life for these people.
Recently DDLC assisted a woman who because of arthritis and her age could not open the heavy toilet
doors at her local Westfield, and had stopped doing the grocery shopping because of it. We provided
advice to a man who had been sent for psychological testing by his employer because his employer had
heard „on the grapevine‟ that he suffered from depression. We filed a complaint for the parent of a child with
autism seeking to negotiate with his local school around a plan for his future education that would aim to
maximise his participation in the class room.
None of these cases will ever become „that case‟ but they will end up making significant differences to
these peoples lives, and provide illustration of the reason why the ADA is to be applauded as a piece of
Growth of disability discrimination law
It was not until the Act‟s fourth birthday in 1981 that the ADA was amended to include physical disability as
a ground of complaint. Intellectual impairment followed shortly after in 1982. For 12 years disability
discrimination was dealt with under these two separate heads of physical impairment and intellectual
impairment. However, there were definitional problems in this version of the Act. These problems arose
because physical and intellectual impairment were defined as „defects or disturbances in the structure and
functioning‟ of the body or the brain. To come within the definition, people had to prove they had a „defect‟
which limited them substantially in an area of their life.
In 1994, ground-breaking amendments were made to the ADA, (enacted by the Anti-Discrimination
(Amendment) Act 1994 (NSW)) which included the addition of age discrimination and the extension of race
definition and marital status protection. It also represented a true „coming of age‟ for disability discrimination
law as the definition of disability was expanded to mirror the definition contained in the
These amendments also paved the way for a „representative body‟ to lodge complaints on behalf of a
person or group of people.
Ten years after these amendments the accessibility of the ADA for people with disabilities was increased
further. In October 2004, a number of changes which were largely based on the comprehensive 1999 NSW
Law Reform Commission‟s Review of the Act were introduced. These changes were:
• An extension of the limitation period for lodging a complaint from 6 to 12 months;
• A flexible means to make and lodge a complaint, and;
Equal Time Summer 2007-08                                                                       page 16 of 25

• Most importantly, the definition of discrimination on the ground of disability was expanded to include
  discrimination on the basis of characteristics of disability – such as being palliative, using therapeutic
  devices which aim to alleviate the effect of a disability and using interpreters.
The scope of achievements of what is now the ADA is borne out by empirical data.
The Anti Discrimination Board in the past decade has handled over 2,500 formal complaints of disability
discrimination, as well as many more enquiries that do not lead to formal complaints. Disability
discrimination complaints now represent one in five of all complaints lodged with the Board. In 2001–02 the
Board received 332 disability complaints, making up 20.4% of all complaints lodged. The opportunity to
pursue complaints with the Board has allowed people with disabilities to assert their fundamental right to
non-discrimination and achieve positive results for themselves and others. The ADB should be
congratulated on this achievement.
Despite the scope of these accomplishments, it should be noted that there are some other reasons why the
search for “that case” will almost always prove fruitless.
This is because there are gaps and some structural issues within the Act which need to be addressed.
Gaps in Anti-Discrimination Law
Volunteers with Disability
Many people with disability who are unable to work but want to make a valuable contribution to society,
choose to do volunteer work. However, if they do so and are harassed and discriminated against because
of their disability, they are left unprotected under the ADA.
For example, DDLC was recently contacted by a mother who was concerned that her son who has a
mental illness and was a volunteer at a local coffee shop, was told, after word circulated that he had in the
past been a drug user, that he could not return to work until he had a negative Hepatitis C test. This man
was left without any protection under discrimination law, and has now given up volunteer work.
Disability Vilification
With the passage of the                                                             (NSW), New South Wales
became the first Australian jurisdiction to pass legislation which makes vilification on the ground of race
illegal. The ADA has since been amended to prohibit homosexual vilification, HIV/AIDS vilification and
transgender vilification, all of which have been modelled on the original racial vilification provisions. 1, 2
However, there remains no legislative protection against vilification of people with disability.
Exemption in relation to drug addiction
Another area in which work remains to be done is in relation to the interpretative problems and erosion of
protection for people with disabilities created by certain exemptions in the Act. One such exemption arose
in 2002 when the Act was amended to state that discrimination in employment on the grounds of disability
is not unlawful if the disability relates to the person‟s addiction to a prohibited drug (within the m eaning of
the Drug Misuse and Trafficking Act 1985) and the person is actually addicted to a prohibited drug at the
time of the discrimination.3 Methadone and buprenophine are excluded from the definition of prohibited
Equal Time Summer 2007-08                                                                       page 17 of 25

The amendments are described in the 2nd reading Speech of the Anti-Discrimination Amendment (Drug
Addiction) Bill to Legislative Council as supplementing the existing provisions in the Act which provide
protection for the legitimate needs of employers, and ensuring that our disability discrimination laws are not
used in an unintended manner.
The inclusion of this provision in the ADA creates more problems than it solves.
Firstly, on top of the already existing protection for employers such as the exemptions relating to the
inherent requirements of a job 4 and unjustifiable hardship, 5 as well as occupational health and safety
legislation, the exemption relating to drug dependency cannot be justified as necessary.
Furthermore, this exemption promotes unhelpful stereotypes regarding addiction to prohibited drugs,
setting up a polarization between „self inflicted‟ injury versus people who are „genuinely disabled‟. 6 Such a
dichotomy is baffling when considered in light of the fact that the exemption relates only to prohibited drugs,
and not legal drugs of addiction such as alcohol and tobacco. An analysis conducted in 1998–9 finding that
tobacco accounts for the largest share of lost productivity costs (64.3%), followed by alcohol (22.5%),
followed by all illicit drugs combined (13.1%).7 Yet only illicit drugs are covered by the exemption, promoting
the stereotype that addiction to illicit drugs is somehow a „self-inflicted‟ illness.8
The inclusion of this exemption permits discrimination on the basis of drug dependency in anti-
discrimination law. Additionally, this has the potential to make illicit drug users reluctant to seek treatment,
because of concerns that their employer could find out about the fact that they are drug user which may
lead to discrimination.
Looking to the Future
In our complaint based system, the onus is on already disadvantaged individual to bring a complaint.
Complainants inevitably have to weather the emotional, physical and monetary costs of attending
conciliation and the Administrative Decision Tribunal (ADT) in battling the complexities of direct or indirect
discrimination. If they end up in the ADT, and are successful, usually they will only receive a very small
amount of compensation. Often DDLC advises its clients that the personal cost of proceeding to the ADT is
not worth the result. We need to re-think the way we have organized this system.
Another obvious need to be addressed is that of the depleted resources of the ADB. It is no secret that
since the cuts to funding, the ADB has engaged in very little inquiry work and so many systemic
discrimination issues are left untouched.

We are hopeful that at the 60th birthday of the ADB, DDLC can stand up and congratulate the ADB on
changes to the above areas. Hopefully, DDLC will able to continue to point to how anti-discrimination law
Equal Time Summer 2007-08                                                                         page 18 of 25

has led to little victories for people with disability. It would be great if we were able to point to some larger
victories also.
Equal Time Summer 2007-08                                                                        page 19 of 25

Disability adaptation:
not so hard
Adapting to working with a person with a disability has proved to be a manageable
challenge for the owner, staff and customers of Wilbartec, a mechanical engineering
consultancy in Wollongong.
Matt Lightfoot began working at Wilbartec after completing a Diploma of Engineering at TAFE. He did well
in this course and has subsequently began studying mechanical engineering at Wollongong University.
When Matt started at Wilbartec he had some hearing, but he had a tumour which would eventually have to
be removed. This was delayed as long as possible while he was studying, as he would most likely be
completely deaf after the surgery. The company had not known about his hearing problems when he began
work, so Matt thought that he would not be able to stay on once the operation became unavoidable. He
approached the owner, Lothar Wilkens, to resign.
„Two years ago Matt came to me very upset and said goodbye,‟ Lothar said. „But I said we shouldn‟t pre-
empt what will happen. He is very bright and intelligent and switched on, and I didn‟t want to lose him if
possible. I couldn‟t promise anything, as we are only a small company, but I encouraged him not to give up
without a fight.‟
Matt was very happy, as this was not what he had been expecting at all. „I told him to come back to work
after the surgery and see what happened,‟ Lothar said. „And in fact it was amazing how easy it was.‟
Matt has learned to lip-read, and can understand a large percentage of what is being said as long he can
see people‟s mouths as they speak. Lothar says it was a bit of a culture shock at first to rem ember to face
towards Matt as they were speaking, but they soon got used to it. It also helps if people speak relatively
slowly and enunciate their words more than usual.
Lip-reading can be tiring, particularly in a group situation, so the company generally has a few short
discussions on a project rather than one longer one. They bought a whiteboard which they can use to write
up any words that Matt doesn‟t catch, and in non-group situations he can also communicate using SMS,
email or written notes.
Matt does his share of liaising with clients, and they have all accepted the situation. „I just behaved as
normal, and didn‟t tell them in advance‟, Lothar said. „When he goes on site and discusses a job he‟s been
working on, they can see he‟s already done a good job, so it‟s not an issue.‟
„I don‟t generally tell them straight out that I am deaf, I look at the way they talk, and if it‟s likely to be a
problem then I may ask them to speak more slowly,‟ Matt said. „In fact, people go out of their way to make
sure I understand, and the positive response has given me faith in humanity.‟
One client is Tim Starr, the Safety, Quality and Environment Superintendent with MultiServ, which provides
services to BlueScope Steel. He says that working with Matt has taught him to be more precise about
defining and expressing his requirements, using drawings as an additional aid.
There are some safety issues which need to be thought through – for example there are areas where Matt
can‟t go on his own, such as where there are overhead cranes or mobile equipment with audible warning
signals. However Tim always ensures that someone is organised to accompany him.
„We also have to be careful approaching him if he‟s using power tools,‟ Lothar said. „ He can‟t hear you
coming, so you need to wait for a good moment and not surprise him.‟
But the most important thing is that Matt is accepted and feels as much a part of the company as everyone
else. „We didn‟t take care of him, or treat him differently,‟ Lothar said. „I have always joked around, and I
continued to do that, and made the same jokes that we always would. But we do give him the angle
grinding to do, because it‟s noisy work and he can‟t hear it!‟
Equal Time Summer 2007-08                                                                     page 20 of 25

And for Matt there is huge relief that he can continue with the career he enjoys and has such an aptitude
for. „I had an idea that I would have to do what deaf people do, and I was very pleased to discover that I
could continue here. I‟ve learned so much, and it would be hard to match it anywhere else,‟ he said.
According to the Manager of the Board‟s Wollongong Office, Gerardo de Liseo, disability is a big issue in a
heavy industry area such as the Illawarra. Many of the workers are older men who may develop a medical
condition or be injured at work.
If the person is unable to continue working, this can have a very serious impact, and if they are the main
breadwinner in the family it may result in them losing their house. „The ramifications are enormous at a
social and personal level,‟ Gerardo said.

He says the key is for employers to follow Lothar Wilkens‟ example and adopt a flexible and positive
approach to people with a disability in the workplace. „As the experience at Wilbartec has shown, there are
often simple adaptations or changes that may enable a person to keep doing the essential requirements of
their job,‟ he said.

„It works at Wilbartec because of Lothar‟s positive attitude,‟ Gerardo said. „Too often, employers make
unjustified assumptions about what a person with a disability can or can‟t do, or how difficult it may be to
overcome perceived problems. This means they may lose a valuable and perhaps very experienced
employee, with all the costs that this can involve.‟
Equal Time Summer 2007-08                                                                      page 21 of 25

Community events
International day for People with Disabilities
Business Centres from the Attorney General‟s Department participated in stalls in the Church Street Mall,
Parramatta to highlight International Day for People with Disabilities. Claire Williams, Community Education
Officer, represented the Anti-Discrimination Board of NSW and other stalls were hosted by the Public
Trustee, Registry of Births Deaths & Marriages, LawAccess, Diversity Services and community disability
service providers.

This is an annual event organised by the Parramatta City Council which this year featured guest speaker,
Graeme Innes, Commissioner for the Human Rights and Equal Opportunities Commission (HREOC). A
highlight of the day was a demonstration of Blind Cricket.
A number of deaf clients approached the ADB stall and mentioned they had no access to TTY telephone
services and preferred to text enquiries to organisations via their own mobile phones. However most
organisations do not provide a mobile phone number for text enquiries and this is a problem. It may require
organisations to rethink the way they provide their services for deaf and speech impaired clients.
A TTY is a special device that lets people who are deaf, hearing impaired, or speech-impaired use the
telephone to communicate, by allowing them to type messages back and forth to one another instead of
talking and listening. A TTY is required at both ends of the conversation in order to communicate. The ADB
provides the TTY service to its clients
The ADB TTY number 02 9268 5522

Bankstown Court open day for Arabic community
The NSW Attorney General‟s Department is committed to working with culturally and linguistically diverse
communities to create a just and safe society. Bankstown Courthouse opened its doors to the Arabic
community on Wednesday 1 August 2007. The Open Day included court tours and a range of seminars, all
of which were delivered in Arabic and English. Claire attended on behalf of the Board and delivered two
sessions regarding Anti-discrimination law and how to make a complaint; one to senior school students and
teachers from Our Lady of Lebanon College, and the other for general community members. Over 70
people attended the Arabic community open day to learn about available legal services, at Bankstown
Courthouse on Wednesday 1 August.

St George Migrant Info Day
Claire attended the St George Migrant Information Day in October 2007. This day was focused on
welcoming new migrant and refugee communities in the area, giving them access to settlement information
and the services, such as the Anti-discrimination Board, which may be able to assist them. Information
stalls, multicultural food and entertainment were provided to celebrate the cultural diversity that exists in the
St George community.
St George Migrant Resource Centre has an Outreach Service in Hurstville to help with the settlement
needs of refugees and migrants. This service is available in two locations (apart from the main centre in
Rockdale). The caseworkers provide settlement assistance with housing, Centrelink, health and other
issues as well as free information, referral and advice on immigration, education, employment, childcare,
and English classes. This service is available to newly arrived migrants and refugees who reside in the St
George region.

Community sector workers of the future
Claire has been involved in training Community Welfare students about the Anti-discrimination Act at both
Ultimo and Meadowbank TAFE and social work students at the University of NSW. Establishing this
Equal Time Summer 2007-08                                                                      page 22 of 25

community network has been a step forward in community capacity building as community sector workers
are key to empowering and guiding their clients in making a complaint to the Board.

What an amazing event! With over 170 people with disabilities in attendance, this is by far the largest
disability conference in NSW. In its 17th year of operation, participants are well versed with the running of
the program, and the significance of valuable service provision and client focused promotion of advocacy,
presented by staff who willingly give up their time to empower and inform people with disabilities.
The participation of services such as the Anti-Discrimination Board, Centrelink, the Office of the Protective
Commissioner, Life Activities, and Fishability (just to name a few!) all helped to provide those with
disabilities as well as their carers and support workers with invaluable expertise and up to date knowledge
about how their services can support them.
The encouragement of services such as the Anti-Discrimination Board presenting supportive and
interactive information to those with disabilities, has enabled clients to have an awareness of their rights in
the community.
We would like to extend our thanks to Claire Williams for her time in presenting a well received session,
and hope that she can return next year for another successful advocacy conference.
Equal Time Summer 2007-08                                                                   page 23 of 25

Anti Discrimination Board

Homosexual Discrimination
A branch manager of a community organisation involved in the delivery of health education programs and
activities alleged that he was unlawfully discriminated against when its CEO directed him to remove himself
from direct involvement in the delivery of one of its services programs. He alleged that this direction had
been given to him because he was male and openly homosexual. The CEO denied that this was the reason
and asserted that the education program was peer based and as such, should not have been directly
facilitated by the branch manager. The organisation asserted that the direction was given to ensure that its
programs were delivered in an appropriate manner. They argued that this was particularly important given a
number of recent complaints about the program which had given rise to considerations of duty of care to its
clients and management of potential associated risks. The matter was resolved when the respondent agreed
to provide the complainant with a written reference.

Disability Discrimination
A registered nurse alleged that his employer unlawfully discriminated against him on the ground of disability
in the area of employment when, following his full recovery from a workplace injury, it refused to return him
to nursing duties. The matter was resolved after the Board provided notice of the complaint to the
respondent and set a date for a conciliation conference. Following notice of the complaint, the parties
entered into a deed of release as part of a settlement of the complainant‟s workers compensation matter, a
term of which included settlement of his complaint with the Anti-Discrimination Board.

Homosexual Discrimination
A clerk alleged that his employer unlawfully discriminated against him on the ground of imputed
homosexuality in the area of employment and also that it victimised him when it allowed him to be subjected
to continued harassment by his supervisor and co-workers. He alleged this harassment included unwelcome
comments such as referring to him as „gay boy‟ and „chock topper‟. The clerk alleged that following a
complaint to management his supervisor increased scrutiny of his work. The clerk stated that he simply
wanted his employer to take action to stop the conduct of these employees. The matter was resolved when
the respondent provided the complainant with a written commitment of its support for anti-discrimination,
harassment and victimisation and an undertaking to provide training in this area to its employees.

Disability discrimination
The complainant suffers from polio, which causes her to walk with a limp. She attended training as required
by her employer. The training was conducted by an external provider. The complainant alleged that the
trainer of the workshop severely humiliated and embarrassed her in front of other workshop participants
when he questioned her about what was wrong with her leg in a demeaning manner, and further, that he
mimicked the way she walked in front of other participants. The complainant alleged that she was affronted
by the trainer‟s conduct, which left her feeling numb and speechless. The complainant was resolved when
the complainant accepted a payment of $6,000 in settlement of the matter.

Disability discrimination
A heavy vehicle driver alleged that his employer had him medically assessed after his involvement in an
accident, after which he was permanently removed from his position as driver and demoted to a lesser
position. The driver alleged that his removal from driving was not warranted, as the medical assessment
failed to reveal any underlying medical condition that was causally connected to the accident. The driver
alleged that the accident occurred after he had sustained a micro sleep due to working long hours without
Equal Time Summer 2007-08                                                                  page 24 of 25

relief. The driver, who speaks English as a second language, says that he incorrectly used the words
„blacked out‟ when describing what had occurred in the accident to his employer. He also asserted that
there was only minor damage to property caused by the accident. The employer asserted that this was the
second occasion on which the complainant appeared to briefly loose consciousness without explanation. It
asserted that it had a duty of care to the driver, to its other employees and to the public. The employer
asserted that the driver‟s demotion did not result in a loss of wages for the complainant who had suffered
no material detriment. The driver alleged that the detriment was a loss of opportunity to work overtime
which was more frequently available to drivers. The respondents operations were due to be taken over by a
new employer consequently the complainant and all other employees had been made redundant and at the
time of the complaint being lodged, were in the process of applying for employment with the new employer.
The matter was resolved when the respondent agreed to pay the complainant‟s outstanding medical bills
and to calculate all the complainant‟s redundancy payments at the rate of driver.

Disability discrimination
The complainant has been profoundly deaf from birth, and as a consequence, is also mute. The complaint‟s
preferred method of communication is Auslan and he has a limited ability to lip-read. However he is able to
read and write in English. The complainant worked for the respondent as a general labourer. The
complainant alleged that he had not been given consideration for promotion to the position of leading hand,
because he was deaf. He stated that he had worked for his employer for many years but had been
provided with few opportunities for advancement. The complainant alleged that the respondent relied too
much on informal methods of communication in order to communicate important workplace issues to him.
The complainant alleged that the respondent had effectively ignored him when it called him to a meeting at
which a co-worker, with many lesser years of experience and skills than he, was appointed to the position
of acting leading hand. The complainant alleged that the respondent had treated him less favourably than
his co-workers who had been directly involved in the discussion at the meeting, while he was left to wonder
what the meeting‟s agenda and discussion was until being told by a fellow worker at the conclusion of the
meeting. The respondent asserted that the complainant‟s disability did not have a bearing on its decision to
promote the other worker. The respondent asserted that the position of leading hand was a temporary one
and that the complainant had been provided with a similar promotion previously. The matter was resolved
when the respondent agreed to a number of undertakings including: provision of deafness awareness
training to its employees; the provision of Auslan interpreters at important meetings and training; approval
of professional development for the complainant to attend a course for supervisors; an undertaking to
provide the complainant and his co-workers with the use of various visual aids, including a laptop PC to
assist with communication; and, provision of one-on-one training for the complainant, with the assistance of
an Auslan interpreter, to explain the employer‟s system of grading and classification of its employees and
the available career paths.
Equal Time Summer 2007-08                       page 25 of 25

The Anti-Discrimination
Board of NSW
What types of discrimination do we deal with?




Where we are

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