Women Speak Australia has made a submission to the NSW Law Reform Commission’s review of the Anti-Discrimination Act 1977 (NSW), focusing on the Act’s objects, structure, exceptions, special measures and exemption processes.
The NSW Law Reform Commission is reviewing the Anti-Discrimination Act 1977, the legislation that establishes protections against discrimination across a range of areas of public life in New South Wales.
The review is significant because it is not simply about administrative procedure. How an anti-discrimination law is structured, interpreted and applied affects the practical operation of the protections contained within it.
The Commission’s second consultation paper, Consultation Paper 25: Procedures and compliance, was published in July 2026. It considers matters including the structure and objects of the Act, enforcement, remedies, exceptions, special measures and exemptions.
Why is the Act being reviewed?
The NSW Government has asked the Law Reform Commission to review the Anti-Discrimination Act 1977.
The Commission’s terms of reference include whether the Act should be modernised and simplified, whether its protected attributes require reform, whether the areas of public life covered by the Act should change, whether the discrimination tests are clear, and whether the provisions dealing with exceptions, special measures and exemptions are adequate.
The consultation process provides an opportunity for organisations and individuals to put evidence, concerns and proposed changes before the body conducting the review.
Why does this matter for women?
For Women Speak Australia, the starting point is straightforward:
Sex matters.
Women’s sex-based rights and protections depend on the law recognising that biological sex can be materially relevant to privacy, bodily integrity, safety, health, sport, employment, services and participation in public life.
An anti-discrimination law must protect people from unlawful discrimination. But that does not mean every difference in treatment based on a protected characteristic is automatically unlawful.
There are circumstances in which sex-specific treatment may be lawful because sex is materially relevant. This is particularly important in areas such as intimate services, privacy, safety, sport, pregnancy and motherhood.
The structure of the legislation therefore matters. If lawful sex-specific provisions become difficult to identify, or a broad interpretive principle conflicts with substantive provisions elsewhere in the Act, the practical effect can change.
What is WSA concerned about?
WSA’s submission focuses on eight questions in the consultation paper: Questions 1–4 and Questions 35–38.
These concern:
- the objects of the Act;
- recognition of international human rights instruments;
- restructuring the legislation; and
- the operation of special measures and exemptions.
These may sound technical, but they influence how the Act is interpreted and applied.
The objects of the Act matter
The Commission asks whether the Act should contain an objects or purposes clause to guide interpretation.
WSA supports an objects clause, provided it accurately reflects the legislation and does not become a mechanism for changing its substantive meaning.
WSA considers that the objects should recognise sex as an independent protected characteristic and acknowledge that relevant differences between the sexes can matter.
They should also recognise privacy, bodily integrity, safety, pregnancy and motherhood, and the particular status of children as rights-holders.
An objects clause should work with the Act as a whole. It should not inadvertently undermine provisions Parliament has enacted to recognise circumstances in which sex-specific treatment is lawful.
Sex and other protected characteristics
The current Act contains different provisions dealing with different protected characteristics. WSA’s submission emphasises the importance of retaining those distinctions.
Sex, transgender status and homosexuality raise different factual and legal questions. They should not simply be treated as interchangeable concepts through a general objects clause or restructuring exercise.
Simplifying a law should make it easier to understand, not remove important legal distinctions.
For women, it should remain clear where the Act recognises circumstances in which sex is materially relevant.
What about human rights law?
The Commission also asks whether an objects clause should expressly recognise international human rights instruments and principles.
WSA supports a carefully defined reference rather than an open-ended direction.
The submission identifies the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC) as the relevant instruments.
WSA considers that recognition should assist interpretation of the Act, but should not create new protected attributes, override clear statutory language or establish an automatic hierarchy between protected characteristics.
International instruments should inform interpretation rather than become a substitute for legislation.
Exceptions, special measures and exemptions
Another important part of the consultation concerns the difference between exceptions, special measures and exemptions.
These concepts are not interchangeable.
An exception is a substantive provision making particular conduct lawful even though it would otherwise constitute discrimination.
A special measure is a form of differential treatment designed to address disadvantage or achieve substantive equality.
An exemption permits conduct that would otherwise contravene the Act, generally for a specified period and subject to conditions.
This distinction matters. Where Parliament has already determined that a particular sex-specific distinction is lawful, people should not have to rely on a temporary exemption to maintain that protection.
WSA therefore argues that the Act should contain clear substantive provisions where sex-specific distinctions are considered necessary and lawful.
An exemption process should not become a substitute for clear legislation.
Exemptions should be exceptional
WSA does not argue that exemptions should disappear.
Instead, exemptions should be exceptional, evidence-based, proportionate, transparent and reviewable.
Decision-makers should consider matters including:
- whether the conduct would otherwise contravene the Act;
- the purpose and evidence supporting the exemption;
- whether it is necessary;
- whether less discriminatory alternatives exist;
- the impact on affected people;
- safeguards and mitigation;
- consistency with the objects and purposes of the Act;
- appropriate duration; and
- whether an existing statutory exception already makes the conduct lawful.
WSA also supports greater transparency and meaningful opportunities for affected people and representative organisations to participate where an exemption could materially affect a defined group.
An exemption should not simply be renewed because it already exists. Its continued necessity should be demonstrated.
Why the structure matters
The Commission has identified concerns about the way the current Act has developed through amendments over many years.
WSA supports making the legislation easier to navigate, but there is an important distinction between simplifying a law and simplifying away its distinctions.
A restructured Act should make it easy to identify:
the protected attribute → the discrimination test → the area of public life → the relevant exception or special measure → any applicable exemption.
For women, it should also remain clear where the Act recognises circumstances in which sex is materially relevant, including privacy, safety, sport, employment and services.
Getting the foundations right
The questions WSA has chosen to address may appear technical, but they concern the foundations of how the Act operates.
The objects of a statute influence how it is interpreted. Its structure affects how easily people can identify their rights and obligations. Its exceptions determine what Parliament has already decided is lawful. Its exemption system determines when otherwise unlawful conduct can be authorised.
These parts therefore need to work together.
An objects clause should not undermine a substantive exception. A special-measures provision should not become a catch-all mechanism for sex-specific treatment. An exemption should not be required where Parliament has already made conduct lawful.
And a law intended to prevent discrimination should continue to recognise that sex can be a material characteristic in its own right.
WSA has made its submission
Women Speak Australia has submitted its response to Consultation Paper 25, addressing Questions 1–4 and 35–38.
We have focused on the areas most directly connected with WSA’s purpose: protecting women’s sex-based rights and protections and ensuring that the legal framework continues to recognise relevant differences between the sexes.