…to amend the Anti-Discrimination Act 1977 to remove the exemption of private educational authorities from provisions that make it unlawful to discriminate against a student or prospective student.

The Bill focuses on the exceptions that apply in the area of education and does not propose to remove the exceptions for private educational authorities in the area of employment. In addition, the Bill would not modify the general exception for religious bodies in section 56(d), which states that nothing in the Act affects:

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.

· NSW Law Reform Commission report (1999): The 2013 Bill adopts the Law Reform Commission’s recommendations to repeal the exceptions for private educational authorities in the area of education. However, it does not adopt the Commission’s recommendations to insert a specific exception for religious educational authorities that would only apply to the grounds of sex, domestic status, sexuality, and transgender; and to repeal section 56(d). The 2013 Bill might, in practical terms, achieve the same result. This is because it may be difficult for religious educational institutions to rely on section 56(d) in relation to grounds such as race, age and disability. The Bill does not adopt the Commission’s similar recommendations in relation to the exceptions for private educational authorities in the area of employment.

· Private Members Bill – Lee Rhiannon (2005): Like the 2013 Bill, Lee Rhiannon’s 2005 Private Member’s Bill proposed repealing the exceptions for private educational authorities in the area of education. However, the 2005 Bill also proposed amending the general exception in section 56(d) so that it would not apply in the area of education. In addition, the 2005 Bill proposed removing the exceptions for private educational authorities in the area of employment.

· Commonwealth laws: The 2013 Bill would make the NSW Act more consistent with the Commonwealth Sex Discrimination Act and Age Discrimination Act (which do not provide an exception for private educational authorities but which have an exception for religious bodies in similar terms to the NSW Act). The NSW Act would, at least in form, remain inconsistent with the Racial Discrimination Act and the Disability Discrimination Act, which do not contain a general exception for religious bodies. However, as noted above, it may be difficult for a religious educational institution to rely on the exception for religious bodies in the NSW Act in relation to these grounds (i.e. race and disability).

· Laws in other States/Territories: The Bill would bring the law in NSW more into line with other Australian jurisdictions. However, the NSW Act would continue to have broader exceptions for religious educational institutions than in four other States. In Queensland the exception for religious bodies does not apply to education and in three other States the exception is expressly limited to certain grounds: in Tasmania, it only applies to the ground of gender; in South Australia, it only applies to the grounds of sex, chosen gender, and sexuality; and in Victoria it does not apply to the grounds of pregnancy, race and disability. As noted above, however, it may be difficult in NSW for religious educational institutions to rely on the general exception for religious bodies in section 56(d) in relation to certain grounds such as race, age and disability.