Melbourne University Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Melbourne University Law Review |
|
BETH GAZE[*]
[Recent decisions in Australian anti-discrimination law continue to reflect a judicial assumption that anti-discrimination law is merely another area where legislation must be interpreted by impartial judges according to the usual ‘neutral’ principles of statutory interpretation. This article critiques a recent decision, noting that neutrality is not in fact what seems to occur and exploring the reasons for this. While this is not new ground, theoretical knowledge and critiques appear to have had little impact on judicial understanding of anti-discrimination laws in Australia. This article explores the context for judicial interpretation, in particular the composition of the judiciary and the identity of judges, and the understood role and aims of anti-discrimination law. The focus is on the dovetailing of two areas of critique: first, the institutional structure surrounding anti-discrimination law (claims brought by people with attributes of disadvantage, frequently against governments or large and powerful organisations), and second, the effect of the identities of participants in the system on their understanding of the context and aims of anti-discrimination law. Until the influence of these factors is better understood, the potential for change through anti-discrimination law in Australia will be limited, and the law’s promise of equality rights illusory.]
CONTENTS
It is 25 years since anti-discrimination legislation was introduced in Victoria[1] and New South Wales.[2] It has been the basis for some significant changes in practices in the workforce and elsewhere.[3] Concerns continue to be expressed, however, over the failure of the laws to effect significant improvements in the position of disadvantage occupied by many of the groups which they were intended to protect from discrimination.[4] In assessing the prospects for further change, the question of whether these laws amount to ‘tokenism or prescription for change’[5] is just as relevant today as it was then.
Over the quarter century of the laws’ existence, critiques of many aspects of the legislation and its institutional structure have been developed. The social context has changed, so that despite the changes secured through the legislation, such as the removal of formal discrimination and the development of harassment as a discriminatory harm, the reduction of disadvantage and marginalisation has become more difficult in many ways. Discrimination which is covert is still difficult to challenge, as proving the illegal ground remains difficult and rests entirely on the complainant.[6] Economic rationalism and the effects of globalisation have strengthened economic resistance to change and tend to overwhelm claims based on justice or individual rights. Enforcement of the legislation tends to focus on individual rights, and often interpretation assumes that discrimination is an occasional error in a neutral context rather than also being a product of systemic disadvantage and social structure.[7] There has been a strong tendency for courts to set aside tribunal decisions finding discrimination.
This article explores the reasons for the law’s limited effectiveness. Of particular concern is the limited understanding of equality and discrimination in mainstream Australian legal and political thought, in which interpretation of anti-discrimination legislation occurs. Many decisions in Australian anti-discrimination law reflect a judicial assumption that there is nothing new or special about equality claims, and that anti-discrimination law is merely another area where legislation must be interpreted by impartial judges according to the usual ‘neutral’ principles of statutory interpretation. Reluctance to depart from same treatment as the ideal of equality accompanies reluctance to question existing social arrangements, which might disturb accepted patterns of allocation and attributed merit. The recent Victorian Supreme Court decision in Victoria v Schou[8] is analysed to explore some factors contributing to this situation.
First, the difficulty of assessing the success of legislation aiming to achieve significant change in social practices is considered. To the extent that this depends on what the aim of the legislation is, some competing understandings of the aims of anti-discrimination law are introduced. The Schou case is then analysed and its legal basis critiqued. The value-laden aspects of the Supreme Court decision, which it is argued cannot be accounted for in legal terms, are drawn out and analysed. My conclusion is that the key to the effect of anti-discrimination legislation is in the understanding of the tribunal member or judge hearing the case or appeal. Some approaches lead to tokenism while others enliven the legislation as a prescription for change.
Evaluating the effectiveness of legislation aiming to achieve social change is unavoidably problematic. Should we look at the outcomes of cases brought under the legislation, or complaint rates and the outcomes of conciliation (given that they are decided in the shadow of the law), or general statistics concerning the reduction of inequalities in society at which the legislation is aimed? The meanings of all these are subject to interpretation, and none provides an unambiguous measure.
What does it mean, for example, if a high proportion of cases brought to adjudication under anti-discrimination laws fail? Some will see it as evidence that the laws are too weak to protect the disadvantaged as intended, while others will say the legislation is too broad and empowers those who bring ‘bad’ or ‘weak’ cases by allowing self-representation and litigation without the discipline imposed by the risk of a costs award, thereby wasting the time and money of innocent respondents.[9] Does a reduction in complaint rates mean that discrimination has been reduced so there is less need to complain, or that potential complainants have lost faith in the ability of the system to remedy their grievances?[10] Social statistics provide only broad-brush information which cannot be causally linked to anti-discrimination laws as distinct from broader social pressures such as the changing balance of power between employer and employee,[11] and the impact of neo-liberal economic policies and globalisation on all facets of life. Studying individual cases from a socio-legal perspective can illuminate some features which affect them, and deepen understanding, but it cannot provide conclusive evidence in relation to the system as a whole.
Most commentators suggest that although formal and express discrimination have been affected, and the worst cases of sexual and racial harassment have been confronted, there has been little impact on the positions of inequality and social disadvantage in which the groups ‘protected’ by anti-discrimination law exist.[12] Any advances made by the adoption of anti-discrimination laws have been countered by social pressures which have tended to worsen the position of members of disadvantaged groups.[13] Ultimately, it seems that Australian anti-discrimination legislation has not disturbed existing social power relations.
Discussion about the difficulties of using law to effect social change[14] makes clear that it is no foregone conclusion that having legislation in place to prohibit discrimination will eliminate discrimination totally, substantially, or even to a significant degree. Law can at best deter a practice. Legislation aiming for social change can operate at both instrumental and symbolic levels, changing actual practices or social understandings. However, a law which is relatively ineffective at the instrumental level may not have much impact at the symbolic level at which people understand what social practices are acceptable. Attitudes towards the acceptability of sexual harassment have changed dramatically, for example, but only under the pressure of harassment law.
Examining the factors which contribute to this lack of effect may suggest some areas in which change may be possible. Some are intrinsic to the legislation: it is drafted neutrally to avoid acknowledging the asymmetrical reality of social disadvantage based on the prohibited grounds of race, sex, disability and so on;[15] it is drafted to deal with discrimination not disadvantage;[16] some courts require a level of proof that is almost impossible to satisfy.[17] Other factors relate to the social context: indirect discrimination has the potential to challenge social practices, but it has been infrequently used, due perhaps to lack of understanding among the legal profession, the heavy burden placed on litigants who run such cases, and unfavourable judicial interpretations. Judges can interpret the element of ‘not reasonable’ in indirect discrimination to maintain the status quo and limit the law’s ability to require social change. However, this has not occurred uniformly: in some cases judges have strongly applied the law to challenge existing practices and protect those disadvantaged by them. Judges have exercised their choice in interpreting anti-discrimination legislation in very different ways. This article considers when and why this occurs.
When anti-discrimination laws were passed in a more optimistic era, it was in recognition of widespread discriminatory practices in society that should be prevented.[18] It is implicit that our current social structures and practices are the result of such discriminatory practices. But what is not clear is how far it was intended that these laws should actually bring about change in those social structures and practices. The effectiveness of the legislation in achieving its aims may depend on identifying exactly what those aims are in order to guide its interpretation and application. It may also be necessary to assess how capable the legislative scheme is of delivering them.
What is the aim of anti-discrimination law? Is it, as Creighton suggested, a prescription for change, encouraging, even requiring, thoroughgoing social change in order to reduce or eliminate unfair discrimination which to many seems pervasive in our society?[19] Or is it tokenism, allowing politicians to claim that discrimination has been dealt with while providing a remedy for only those few who suffer through the actions of an isolated, clearly identifiable ‘bad individual’ in what is generally a fair and equitable society?
Legislative objects clauses frequently repeat the motherhood statements of commitment to equality and elimination of discrimination, without addressing the harder issue of to what degree this commitment is to be enforced. Most Australian anti-discrimination laws include objects clauses which mention elimination of discrimination.[20] The formula in each is very similar: the two main aims are to eliminate ‘as far as possible’ discrimination against persons on the grounds covered by the laws and to promote recognition and acceptance within the community of equality between those people and others. Section 3 of the Equal Opportunity Act 1995 (Vic) (‘EOA’) is a typical example:
The objectives of this Act are:
(a) to promote recognition and acceptance of everyone’s right to equality of opportunity;
(b) to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes [emphasis added];
(c) to eliminate, as far as possible, sexual harassment;
(d) to provide redress for people who have been discriminated against or sexually harassed.
The first object, securing equality of opportunity for everyone, is broad and general. The legislation provides no means for achieving this (for example, by encouraging or requiring special schemes to provide equal opportunities in education) other than through the prohibition on discrimination. So the operative aim is the second object, the elimination of discrimination. The words ‘as far as possible’ in s 3(b) suggest that Parliament’s intention was to extend the prohibition of discrimination as far as possible, and this intention should guide interpretation of the EOA. However, although the general objects of the legislation provide a guide to interpretation, its actual words must also be given effect. In some areas, the scope of anti-discrimination legislation is limited: for example, it deals only with public sphere activities such as employment, education, supply of goods and services, and access to premises open to the public. It contains numerous exceptions and limitations to the areas of coverage. In view of these express limitations, there appears no warrant for implying further limitations in other areas. There remain, however, terms like ‘not reasonable’ in the definition of indirect discrimination which are open-textured and need interpretation. The latter part of this article examines some interpretations of this term and considers why particular approaches are chosen.
A major area of tension over the years has been the application of the definitions of discrimination, and how readily discrimination is to be found or inferred. This is a choice left to the judges in applying the law. Statutory interpretation legislation in each jurisdiction, such as s 15AA of the Acts Interpretation Act 1901 (Cth) and s 35(a) of the Interpretation of Legislation Act 1984 (Vic), has required for nearly two decades that an interpretation which promotes the purpose of the Act is to be preferred, but these provisions have been little discussed by judges interpreting the legislation.[21] Unlike the purpose rule of construction at common law, these provisions do not require an ambiguity before they apply, but can be considered in determining whether alternative constructions of a provision are open.[22] Pearce and Geddes comment that ‘the task of the court under s 15AA and its equivalents is to seek to discover the underlying purpose or object of the provision in question and, if possible, to adopt the interpretation of that provision that furthers the purpose or object.’[23] Even where the
interpretation of a provision [can be] difficult, not because the policy or purpose of the legislation is not clear, but because the section is directed, not
simply to effecting that policy or purpose, but to achieving a compromise between it and other considerations ...[24]
such counterbalancing policies and purposes should be explicitly discussed in the context of interpretation. On this basis, one would expect to see courts pursuing interpretations that give broad effect to the elimination of discrimination.
Australian judges have generally approached interpretation of anti-discrimination statutes as being similar in kind to other statutes: a matter of giving effect to the words. This has not been the case in other jurisdictions: for example in Canada, anti-discrimination laws have been treated as having a higher status than other legislation because of their subject matter, which ensures the most fundamental of human rights: the right of everyone to be treated equally and not to be subjected to discrimination.[25] In Australia, this subject matter has not been seen as a basis for any different approach to interpretation.
Even if no special status is accorded to the legislation, an adequate approach to interpreting anti-discrimination law requires special attention to its purpose and underlying concepts, both to pursue the purposive approach, and because the concepts are quite different from the normal sphere of the common law, which has not developed any principle of equality or recognition of social practices which disadvantage some individuals. The common law’s aim is to resolve disputes between individuals, not to provide impetus for changes in social practices, which is the object of anti-discrimination legislation. Unless those interpreting the legislation have some understanding of the social context and conceptual framework of equality, discrimination, difference and sameness, it is hard to make sense of anti-discrimination laws and give effect to the purposive approach to interpretation.
In interpreting anti-discrimination legislation, however, it is rare for judges to consider the policy or concepts underlying these laws. On the occasions on which the High Court has discussed the purpose of anti-discrimination laws, it has unambiguously stated that they are remedial and should receive a beneficial construction.[26] However, at the same time, the Court has found reasons for adopting a narrow approach to the interpretation of specific terms in the legislation,[27] which has been followed with such wholeheartedness by some lower
courts that one Federal Court judge has said:
It is not appropriate to consider the question of reasonableness [in indirect discrimination] by commencing first with a view that human rights and discrimination legislation should be liberally construed. Nor is it correct to approach the meaning of reasonableness informed by the objects and purposes of the Act.[28]
As a result, Australian judges most often give a literal or a narrow reading of specific provisions or terms they are construing, using only textual methods to reach a decision. In this process, some very narrow and technical distinctions have been introduced,[29] making success more difficult for complainants and discouraging the bringing of actions.
If the requirement to prefer a purposive interpretation was to be taken seriously, what might it mean?[30] There are different views on the extent of discrimination in society, its effects, and the scope of legal interventions needed to deal with it. They affect understandings of the purpose of anti-discrimination law and flow into interpretation. The problem at present is that this may well occur unreflectively and certainly occurs without accountability. In what follows, some strands of disagreement are identified to sharpen analysis. It is not suggested that the dichotomies discussed here are the only way to understand the law, but awareness of them helps to identify the implications of various approaches to interpretation.
McCrudden identifies doubt over the meaning of key concepts such as ‘discrimination’.[31] While the concept clearly includes actions motivated by prejudice, exactly how far it extends beyond this has been very controversial. Its extension to actions which are not on their face intentionally discriminatory, but have that effect in practice (in Australia, ‘indirect discrimination’), is more controversial still. The fact that all Australian legislation covers indirect discrimination indicates an intention to adopt a broad-ranging prohibition which does look to effects. McCrudden characterises two themes in discussions of the purpose of anti-discrimination legislation as ‘process’ and ‘results’. The process approach sees the aim of the law as securing
a reduction of discrimination by eliminating from the processes [of] decision making those illegitimate considerations based on race or gender which have harmful consequences for individuals. These approaches concentrate on cleansing the process of decision-making, and are not concerned with the result, except as an indicator of a flawed process. They are ... individualistic ... [and] are also generally expressed in universal and symmetrical terms.[32]
Under the process approach, measuring the success of the laws has little to do with outcomes. Implicit in this approach is the understanding that discrimination is the aberrant action of ‘bad’ individuals, and only they can be held responsible.
By contrast, the ‘results’ approach sees:
Race and sex discrimination are as often institutional as individual. The problem is misconceived as being one of intention rather than effect. ... [A]nti-discrimination law should be able to fix on the outcomes of the decision-making processes. The basic aim is the improvement of the relative position of blacks or women, whether to redress past subordination and discrimination, or out of a concern for distributive justice at the present time.[33]
Results perspectives consider providing a remedy for victims of discrimination to be an important aim of anti-discrimination law, while process perspectives assume its aim is only to interfere where unfair processes occur. Under a results approach, if the laws do not improve the condition of those they purport to protect, they are ineffective. The difference between the two approaches lies in whether they acknowledge that our social structure is built on discrimination and continues to be the product of it, and whether they regard improvements for people in disadvantaged groups as an important measure of legislative success. They also differ on how to deal with unconscious discrimination, as under the process approach it would not be morally blameworthy if the respondent was unaware of it, while on the results approach, the discriminatory harm to the complainant is no less.[34]
A more confrontational formulation of this dichotomy has been identified by Alan Freeman in his critique of interpretation of American anti-discrimination laws. He expressed the ‘results’ perspective succinctly by asking ‘[w]hat does it mean to [a person who belongs to the group that has been discriminated against] to be told that racial discrimination has now become illegal?’[35]
[It] must include an expectation that there will be ... some significant change in the condition of life that one associates with the past practices of discrimination ... If, after a supposed ‘elimination’ of discrimination, substantially disproportionate numbers of black people still have the least desirable jobs, my reaction is that change has not occurred, discrimination has not been eliminated.[36]
The core idea of the victim perspective is that doing something about the problem of racial discrimination necessarily demands results. Freeman pointed out that the body of American anti-discrimination law made results largely irrelevant, and failed to speak to this perspective. He labelled the perspective embodied in the American law as
the perpetrator perspective. It ... simply does not care about results. ... The emphasis is negative — on the behaviour of the perpetrator and not the life situation of the victim. It seeks to identify and catalogue perpetrators, to make sure that one has ascribed the correct evils to the correct perpetrator. ... All we need do is root out the villains. Having done so we can say with confidence that it was all their fault. A corollary of this fault notion is that those who, under current versions of the doctrine, are not labelled perpetrators have every reason to believe in their own innocence and their separation from the problem. If one is not a perpetrator, one must just be an innocent societal bystander. And why, then, should one be called to account or implicated at all in the business of eradicating the past?[37]
On this approach it is unfair to stigmatise a respondent as ‘guilty’ of discrimination unless there is an element of moral blameworthiness involved. This makes courts very reluctant to find discrimination, and the barriers to establishing it tend to be raised very high on this approach. In cases embodying this perspective, it can seem that more emphasis is placed on the harm to the respondent of being labelled a discriminator than on the harm to the complainant caused by the discriminatory actions of which they complain.
The pejorative labels for this dichotomy encapsulate the idea that those who are in a position to decide liability for discrimination by interpreting the legislation rarely have any experience of systemic discrimination themselves, and may have little understanding of its effect on a person’s life or of the expectation a ‘victim’ may have of a law purporting to eliminate discrimination. There is no warrant in the legislation itself for adopting the process or perpetrator perspectives. To do so would be to hobble the stated legislative intention of eliminating discrimination and promoting equality between people who suffer discrimination and other members of the community, which, it is argued, seeks at least some degree of change in outcomes. It is not suggested here that the legislation goes as far as implementing the result or victim perspectives, although many people concerned about systemic discrimination and disadvantage may well argue that it does or should. The question raised here is why courts often cling to conservative approaches as to the law’s effect.
Two other themes fill out this picture. First, deconstruction has contributed the valuable technique of reading the repressed theme or idea by which a particular idea is given meaning.[38] So, for example, we discuss discrimination, and even disadvantage, a great deal with very little attention to their repressed counterparts: privilege and advantage.[39] Although we prefer not to acknowledge the latter, those of us who enjoy privilege and advantage on the basis of our colour, sex, ability, and social and educational background, tend to take these as markers of merit[40] which suggests that our advantages are deserved. We do not see our own privilege because this idea is repressed: in part, because we justify our entitlement to these things as a reward for our efforts, that is, as merited. This assumes a neutral and objective allocation of social goods on the basis of merit, a social system in which some are not systemically advantaged at the expense of others by social practices and arrangements.[41] This traditional view reflects the experience of those who are unconcerned about discrimination because it has not affected them, who are in a position to assert their view as the universal and ‘objective’ understanding of the world. For many people, especially from disadvantaged groups, this neutral view of society is no longer persuasive.
Similarly, equality is taken to require sameness of treatment, and the idea of difference is repressed. But if equality requires treating only equals equally and those in different situations differently, then insisting on same treatment of those in different situations is ‘equality with a vengeance’[42] and can undermine real equality.[43]
Second, it must be acknowledged that the adoption of anti-discrimination laws and their interpretation occur in the context of a society in which struggles for power and resources are ongoing. Social structures and patterns provide some individuals and groups with more resources and power than others, and therefore with better access to means of communication to enable them to legitimise and normalise their own interests as the universal interests of society as a whole. In the anti-discrimination framework, respondents are often governments and large companies, as well as smaller employers, while complainants are usually individuals from disadvantaged groups for whom access to social power and resources to run their cases or to legitimise their interests is very problematic. A legislative scheme which requires these individuals to run their own cases with little or no support places a very heavy burden on them.[44] The issues in a case usually focus on a manifestation of the complainant’s disadvantage, and a case may be of enormous emotional and financial significance to the complainant, but of comparatively less importance to the respondent. Human rights agencies in Australia have very limited powers to deal with discrimination issues at a systemic level, so they can only be raised through individual and group complaints. Where an individual complainant raises an issue against a respondent, they bear full responsibility for bringing the case, in most cases with no assistance from the agency.[45] Despite the public interest in advancing equality and eliminating discrimination, where a respondent does not conciliate and the case goes to adjudication, there is virtually no access to legal aid.[46] The disparity of power, and the potential to take advantage of it in legal process, is stark. If fairness in legal process is of any concern, then courts ought to act to ensure that this disparity does not affect interpretation of the law.
For every person, features of their own experience are likely to predispose them to one or other of these perspectives. Those who have little experience of unfair barriers, exclusion, and the imposition of limitations by social practices are least likely to understand the impact of the unfairness of these experiences, and therefore may be more likely to accord them relatively less weight compared to concerns about restricting the respondent’s freedom of choice, and attaching the moral stigma of discrimination to a person. They may be less able to see the importance of harm suffered by an individual on a prohibited ground over which the person has no control and the systematic effect of living hedged about by discrimination, both subtle and not so subtle. They have difficulty perceiving unfairness to others in a system which has treated them fairly, and regard complaints as unjustified. They may be unable to see anti-discrimination law as similar to the law of negligence, which emphasises compensating those who are harmed, rather than the moral fault of those who breach their standard of care.
The themes discussed above are often present, although rarely acknowledged, in Australian judicial interpretations of anti-discrimination legislation. The presence of the process or perpetrator perspective can be seen in the use of language which emphasises the moral blameworthiness of discrimination and the seriousness for a respondent of such a finding being made against them: for example, talking about finding the respondent ‘guilty’ of discrimination.[47] This wording is not present in the legislation, which does not place primary emphasis on fault. Especially with indirect discrimination, the definition rests on the disproportionate effect on the disadvantaged person or group. The language of the legislation does not incorporate the perpetrator or process perspectives.
A study of judicial interpretation of the legislation leads to questions about the structural positions of those with power to say what the legislation means, and the values implicit in their decisions. That is, who are the judges, what is their experience, and how can and do they approach this law? The composition of the judiciary in terms of sex, race, disability and class background is not only unrepresentative of society as a whole, but it is also completely different from the composition of the groups who bring discrimination claims.[48] To what extent can this explain judicial interpretations of anti-discrimination law, and in particular those interpretations that prefer a process to a results perspective, or a perpetrator to a victim perspective?
Conventionally, judging is assumed to proceed from a position of neutrality and objectivity, but critiques from feminist, critical and postmodern theories have undermined this claim.[49] The assumption of judicial neutrality also overlooks structural aspects of litigation in this field: the disparity of resources between complainants and respondents in anti-discrimination law is often extreme, where a person with attributes of disadvantage complains against a government or corporate respondent. The judiciary in Australia is still mainly appointed from the elite levels of the bar, which itself largely reflects categories of social advantage, where women, people of non-English speaking backgrounds, and people with disabilities are highly under-represented. If the process of getting to that position itself involves systemic discrimination at each step,[50] there are unlikely to be many judges who have experienced disadvantage which has frustrated their progress. In recent years, some judges have been appointed from groups which have traditionally been disadvantaged, and they often have a very different understanding of discrimination.[51] For judges who do not share attributes which are often the basis of disadvantage, however, it can be very easy not to recognise the impact or seriousness of discrimination. Without imputing bad faith, those who are successful in this system, in which minority groups are noticeably under-represented, are simply very unlikely to understand (or perhaps, recognise) the experience of discrimination. By contrast, the profile of tribunal members is much less ‘elite,’ including more women, people of diverse ethnic origins, and people with disabilities.[52] The differences between court and tribunal views of discrimination cases would reflect different understandings of discrimination and the aim of the legislative prohibition as a result of these different life experiences, as well as differences in formality and resourcing of the decision-making procedures.
Anti-discrimination law is the only area in which the law acknowledges that a person’s opportunities may be affected by irrelevant attributes over which the individual has no control. In general, the law does not see or acknowledge attributes such as sex, race, disability and sexuality (except in family or sexual assault law and some parts of equity), and very rarely acknowledges the fact that they may attract disadvantage. But judges, barristers and tribunal members, like all of us, have their own experiences, knowledge and prejudices, both conscious and subconscious: they are not neutral, but have their own locations within this system of advantage and disadvantage. Practices of discrimination and disadvantage, including the tendency to devalue the experience of minority and disadvantaged people, may occur in enforcing anti-discrimination cases just as they occur in other areas of society. The possible effect of such practices on the interpretation and enforcement of anti-discrimination laws needs to be made visible. Assertions of neutrality and objectivity may be necessary for the legitimation of judging but should not prevent an examination of what is actually going on. Since empirical data about what unacknowledged factors affect judicial decision-making is rather hard to obtain, this article approaches this question by examining the statements made in judging to try to trace some influences.
In this Part, some features of the development of anti-discrimination law are reviewed, then a detailed analysis of the Schou decision is undertaken to explore the issues introduced above. The history of this legislation is that, where tribunals have found discrimination established, the response of courts has been diverse. Where courts have upheld tribunal decisions, the cases have often been seen as landmarks that have refashioned areas of law and practice.[53] It is notable that many of the landmark cases (and dissents) in anti-discrimination law have been decided by judges who themselves have attributes of disadvantage which give them an understanding of the impact and experience of systemic discrimination, or who have developed an understanding of it.[54] Other landmarks include tribunal decisions that have not been challenged or appealed.[55]
Even where complainants are successful in a tribunal, however, there is a high risk that the decision will be overturned on appeal to a court.[56] Contributing factors probably include the resource disparity in anti-discrimination claims, and the fact that courts may not entirely trust tribunal processes and members in fact-finding and application of the law, which may be due to differences in court and tribunal procedures and resourcing.[57] They may also include factors related to a court’s opinion or understanding of the aims of anti-discrimination law and the harm of discrimination that have been discussed above. Tribunal members, being less ‘elite’, may well reflect different understandings of the aims and interpretations of anti-discrimination law than those of higher court judges, which would be reflected in their decisions.[58]
When a tribunal decision is overturned, the most common reason is that it made an error of law in construing the legislation. Large, well-resourced respondents can challenge tribunal decisions with relative freedom, and the attitude and understanding of courts to the area of law involved can be critical. Some judges take a very conservative approach to interpreting anti-discrimination law, similar to the process or perpetrator perspectives. Cases have been decided on the basis of quite narrow distinctions.[59] As in insurance law, big players can spend on legal fees as they choose, and have many opportunities to control litigation by offering settlements and appealing unfavourable decisions.[60]
One of the major areas of tension between conservative and progressive perspectives in anti-discrimination law has been in relation to establishing discrimination. In direct discrimination, the difficulty lies in proving that the less favourable treatment was on the prohibited ground; in indirect discrimination, it is in showing that the requirement or condition which disproportionately affected people with the ‘prohibited’ attribute was ‘not reasonable’. In the recent case of Schou, the Victorian Supreme Court considered the latter of these areas. It handed down a conservative decision which attempted to reduce the ability of indirect discrimination law to assist parents and others with caring responsibilities in the workforce. In the discussion below, the case is analysed to show the extent to which precedents did or did not compel the decision made. Since the Court had choices about how to decide the case, this Part asks what was the basis of those choices, and how were they explained and justified? In particular, to what extent was the Court influenced by views and understandings which come from the judge’s own location in the system of discrimination and advantage?
In Schou,[61] the Victorian Supreme Court set aside a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’),[62] which had found that the State had indirectly discriminated on the ground of parental status when it failed to implement an agreement for home-based work it had made with Ms Schou, an experienced Hansard sub-editor, and had awarded her A$161 307.40 in damages. Her managers had agreed to allow her to work from home two days out of five each week to help her reconcile her work with the needs of her younger son, who suffered asthma and consequent separation anxiety, in a context where earlier attempts to obtain part-time work had not been successful. When the employer’s agreement to install a modem so she could work from home had not been implemented within three months, Ms Schou had to resign from her job, ending her 16 year career as a Hansard reporter and sub-editor.
The part of Ms Schou’s claim which succeeded was a claim of indirect discrimination on the ground of parental status. Indirect discrimination is defined in the EOA in s 9 as follows:
(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice —
(a) that someone with an attribute does not or cannot comply with; and
(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and
(c) that is not reasonable [emphasis added].
(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including —
(a) the consequences of failing to comply with the requirement, condition or practice;
(b) the cost of alternative requirements, conditions or practices;
(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.
(3) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.
Discrimination in employment is defined in s 14 as follows:
An employer must not discriminate against an employee —
(a) by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment;
(b) by dismissing the employee ... ;
(c) by denying the employee access to ... occupational training ... ;
(d) by subjecting the employee to any other detriment.
The Tribunal found that the requirement or condition imposed was that Ms Schou attend at the office on every work day, and that Ms Schou could not comply with it, and a higher proportion of those who were parents or carers could not comply.[63] This left only the question of whether or not the requirement or condition was ‘not reasonable’ in determining whether or not discrimination had occurred. As stated in s 9(2), this is assessed by considering all the relevant circumstances of the case, including the factors specifically listed. For Ms Schou, the Tribunal found that the cost of alternative arrangements (working from home via a modem) was reasonable. It would have had little impact on the employer’s financial circumstances. The Tribunal continued:
I find that the Respondent’s insistence that Ms Schou attend work full-time on site at Parliament House on House sitting days was the imposition of a requirement or condition of employment for the purposes of sub-s 9(1) of the Act. I am satisfied on all of the evidence before me, that a modem could have been installed to allow Ms Schou to satisfy full-time work requirements ... [and] the Respondent could, without difficulty, afford to remove the requirement or condition, and that the consequence of Ms Schou failing to comply with the requirement or condition was that she would risk losing her job.
Taking these factors into account and in all of the circumstances, I am satisfied that the requirement or condition imposed on the employment by the Respondent was not reasonable.[64]
The Tribunal decided that imposing the requirement or condition imposed on Ms Schou was both a denial of a benefit of employment within s 14(a) and the imposition of a detriment within s 14(d).[65] As a result, discrimination in employment had been made out. While the Tribunal’s assessment of the factors relevant to reasonableness was not discursive, it is clear that a finding of fact was made on the correct question, that is, whether the requirement or condition of full-time attendance was not reasonable.
The Supreme Court granted the State of Victoria leave to appeal against this decision pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). On appeal, Harper J set aside the decision on the ground that the Tribunal had failed to correctly assess the reasonableness of the attendance requirement. The case was remitted to VCAT for rehearing.[66] In relation to the
passages from the Tribunal decision quoted above, the Court said:
The tribunal, by this approach, concentrated upon the reasonableness of the modem proposal. The tribunal was in my opinion wrong to do so. The modem proposal is only relevant at all if the ‘attendance’ requirement is in its general operation (that is, as it operates generally on Hansard sub-editors) unreasonable. A much broader focus than one which concentrates upon the modem proposal is necessary. This case involves the rights and interests not only of employees but also of employers; of parents and carers as well as those who are neither. It necessitates the interpretation of important legislation in a field, that of employment law, already occupied by the law of contract and by industrial awards and agreements. The Equal Opportunity Act has its place in that field; but courts and tribunals should not, in defiance of its proper construction and without regard for other, long established, claimants, arrogate to it territory which the legislature never intended that it should occupy.[67]
It appears that the Tribunal did ask the correct question, but it did not come to the answer the Court would have reached. As the question of reasonableness is one of fact, it was not for the Court to make this decision. Instead, the Court provided guidance to the Tribunal on what factors it must take into account, and even how they were to be weighed up. However, it did not discuss in detail any of the many cases in this area, and thus its value as an authority, as well as the extent to which it is binding where contrary precedents exist, must be open to question. For example, the Court did not explain how it discovered that applying indirect discrimination on the ground of parental status was arrogating territory to the EOA which the Parliament never intended it to occupy. This objection has not been raised in the many earlier cases, including High Court decisions, which have had a major impact on workforce practices. For example, among the earliest cases under the Victorian anti-discrimination legislation was Wardley,[68] in which the practice of overt exclusion of women from certain occupations was held to be contrary to the Equal Opportunity Act 1977 (Vic). Since then, many cases have affected work practices in significant ways.[69]
In Schou, the Court stated that the attendance requirement
is only discriminatory of Ms Schou if it not only subjects her to a detriment but is also not reasonable. Since, however, it impacts not only upon Ms Schou but also upon all sub-editors, and indeed the department itself, its reasonableness must be assessed with each of those interests in mind. It is not sufficient to concentrate only on Ms Schou to the exclusion of the others. This, nevertheless, is what (as it seems to me) the tribunal did.[70]
The Court disagreed with the Tribunal’s decision about reasonableness of the attendance requirement, and in particular with the relative weights accorded to the detrimental impact on the complainant, compared to the restriction imposed on the employer acting according to its preferences and needs. The Court’s view of what the Tribunal had done was that it considered only Ms Schou and not the employer’s position or any other relevant factors. But the Tribunal did explicitly consider at least the factors in s 9(2).
A recurrent theme of courts setting aside tribunal decisions finding indirect discrimination has been that the tribunal gave too much weight to the detrimental effect of the requirement or condition on the complainant.[71] Courts often say that the tribunal has not considered any other factors, or has failed to give sufficient weight to the situation and needs of the employer,[72] or has attempted to reverse the onus of proof of reasonableness.[73] However, in their enthusiasm to ensure the respondent’s needs are considered, the courts seem to have difficulty attaching any weight to the complainant’s detriment, especially where an individual complainant, not a group, is involved.
In Schou, the Court saw the employer’s position clearly, and introduced a new exemption from the EOA for the contract of employment:
A term of a contract of employment, compliance with which is reasonably adapted to ensure that the employee provide to the employer that standard of service which the employer reasonably requires and the employee is paid to provide, will not be caught by s 9 of the Act. It is not the aim of the legislation to deny employers the rights given to them by a lawful and reasonable contract of employment. If workers ... who are parents ... cannot do the job, the Equal Opportunity Act does not require their employment ...[74]
Again, the Court did not say how it found this was the aim of the legislation. Since this test does not emerge from the wording of the legislation, it can only be based on some implied limitation, but the Court did not explain its basis. Such a rule would be contrary to the strong line of cases mentioned above which have impacted in many ways on employers’ freedom of choice and contracts of employment,[75] as well as contrary to the more specific recent cases concerning parental status and sex discrimination against mothers seeking part-time work on return from maternity leave.[76] None of these cases was discussed or distinguished. The Victorian anti-discrimination legislation has had a major impact on employment practices and contracts in many cases, and this impact is to be expected. In a society in which many practices are discriminatory in effect (if not in intent), anti-discrimination legislation can be expected to challenge many things that are taken for granted, the discriminatory effects of which are rarely noticed by those whom it does not impede.
It is hard to escape the suspicion that the Court was uneasy with the potential for indirect discrimination to disturb existing practices which it has never before seen questioned. In particular, this case challenges workforce practices which exclude from ‘good’ jobs and advancement women with children who do not follow the male ‘ideal worker’ paradigm of full-time work without interference from domestic responsibilities.[77] Challenges to indirect discrimination against women on parental status grounds raise a fundamental challenge to traditional practices which have reserved the best jobs for the ‘ideal workers’ in a way which, to many at the peak of their careers, seems natural and inevitable.[78]
Applying the test of whether a term of an employment contract is ‘appropriate and adapted’[79] to ensuring the contracted-for standard of service is provided, the Court held that, if it was not, then the requirement would impact adversely on all employees — again overlooking the fact that only Ms Schou, and not the other employees, was actually dealing with a problem of conflicting obligations on the basis of her attribute of ‘parental status or status as a carer’.[80] But if the contractual term requiring full-time attendance was ‘appropriate and adapted’ then
by applying to be relieved of it Ms Schou sought a favour; one which ... had not been granted by her employer to any other employee. Her application for that favour was granted, but not realised ... That is not discrimination. No detriment was, on this hypothesis, involved. ... [T]he Act forbids discrimination. It does not compel the bestowing of special advantage. The unreasonable refusal to extend a benefit to an individual or individuals where that benefit is, with good reason, not available to others, is not discrimination.[81]
Again, this proposition does not refer to the words of the legislation nor to any precedent. By expressing the ‘appropriate and adapted’ test in relation only to the term of the employment contract, the Court constructed a test that prevents attention from being paid to the individual circumstances of the person who complains of discrimination. They can only be entitled to the ‘special favour’ if all their co-workers are as well. But if their co-workers are not facing the same constraints of parental responsibility (as non-parents, parents of school-aged children, and men are unlikely to be) then this test operates directly contrary to the objects and language of the statute. It is difficult to see why an adjustment sought by one employee should only be assessed as reasonable if it would be reasonable for all employees to seek it, even though most and perhaps all of them will never in fact want it and are not in the circumstances which provide the basis for seeking the adjustment. To assess reasonableness by impact on other employees is to add a hypothetical problem to the balance to outweigh the complainant’s detriment. The question of indirect discrimination would never arise if the ‘favour’ sought was available to all.[82] A similar problem arose when the Court raised questions about what would happen if a cavalcade of Ms Schou’s co-workers also had sick children who needed extra care at home and whether job applicants would be able to demand similar favours.[83] It also commented that employees can expect their employer to provide ‘a degree of flexibility’ for parents, but that this will not extend to parents of recurrently sick children, without saying why and where the line is to be drawn.[84]
The argument that the beneficiary is seeking special advantage is a common criticism of positive action programs which are designed to ameliorate disadvantage arising from indirect or systemic discrimination. It rests on an assertion that what is sought is an advantage over others rather than treatment which aims to improve equality by taking account of the person’s different situation and consequent need for different treatment. The underlying difference between these views is whether the current situation is seen as neutral and fair to all, or as systematically advantaging some and disadvantaging others. If differences in situation which make equal treatment unfair are not acknowledged, then the only possibility for equality is same treatment. This contains no possibility of moving towards a substantive version of equality where differences can be accommodated without penalty.[85]
The Court found it extremely difficult to see or attach any significance to the detriment to which Ms Schou was exposed: that is, unless the relatively inexpensive adjustment was made, at least temporarily, by her employer, she would not be able to retain her job, and her 16 year career would be finished. Instead, the Court saw someone who could not carry out the terms of her contract of employment.[86] Implicitly, the attendance requirement was an intrinsic and natural element of workforce participation, and not something which mothers of sick children could expect to have adjusted to suit them when they could not perform.[87] But if the aim of the legislation is to prohibit practices which have a discriminatory effect unless they are ‘reasonable’, then the detrimental impact of the requirement is clearly of central importance. Unless it is given some weight, the law’s object of eliminating discrimination so far as is possible will mean nothing in the area of indirect discrimination. This was well expressed by HREOC Inquiry Commissioner Elizabeth Evatt in Hickie v Hunt and Hunt (‘Hickie’):
The question of the reasonableness of the requirement has to be considered in the light of the nature and extent of the disadvantage, which in this case is clear and obvious. The imposition of a condition, requirement or practice that a partner work full time would inevitably disadvantage women practitioners, especially those who are, or who are aspiring to be partners. To regard this as a reasonable requirement would perpetuate and institutionalise indirect discrimination against women lawyers.[88]
In Schou, the Court acknowledged that ‘the reasonableness of the “attendance” requirement was and is central to this case. ... “Reasonableness”, in the context of s 9 of the Act, can only be determined by weighing all relevant factors.’[89] The Court discussed factors specific to the particular job and workplace concerning how well the job could be done and the range of workplace functions fulfilled if the attendance requirement was not observed. The attendance requirement was ‘by no means inherently unreasonable’[90] on the basis of ‘one’s experience of the way people, including work colleagues, interact’.[91] What the Tribunal must do is
act with an appropriate degree of diffidence ... [and] resist the temptation unnecessarily to dictate to persons who manage, and work on, the shop floor. At the same time, anti-discrimination legislation should be liberally construed. Getting the balance right will often be difficult.[92]
With that guidance, the Court set aside the Tribunal’s decision for having failed to assess correctly reasonableness, and remitted the case for rehearing. Again it did not discuss earlier case law on reasonableness to extract the major principles for application, and this must reduce the value of this decision as a precedent.
To assess reasonableness, all the circumstances of the case, including those affecting both the complainant and the respondent, must be considered. This test was stated by Full Federal Court in Styles as follows:
the test of reasonableness ... is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case mast be taken into account.[93]
The majority of the High Court in Waters v Public Transport Corporation[94] affirmed this test, as a more restricted version favoured by Mason CJ and Gaudron J failed to gain majority approval. In that case, all judges made it clear that the factors relevant to assessing reasonableness included the financial effect on the respondent. Dawson and Toohey JJ commented:
Reasonableness ... is a question of fact for the Board to determine but it can only do so by weighing all the relevant factors. What is relevant will differ from case to case ... Another relevant factor would be the availability of alternative methods which would achieve the objectives of the Cabinet resolution but in a less discriminatory way.[95]
Deane J recognised that:
To give ‘reasonable’ the wide meaning of ‘reasonable in all the circumstances of the case’ effectively introduces an element of wide discretionary judgment into the identification of the ‘adverse effect discrimination’ with which [indirect discrimination] is concerned.[96]
Subsequently, the ‘wide discretionary judgment’ has been restated with a lower threshold. In Dopking [No 2], Sheppard J said that ‘the point of distinction which has been adopted has a logical and understandable basis. ... [I]n my opinion, there was nothing unreasonable in adopting the point of distinction applied by those responsible for the Determination.’[97] With respect, this formulation appears to ask only whether the respondent has articulated a ‘logical and understandable basis’ for the requirement or condition; it does not appear to weigh the disadvantage of the complainant in the balance. In Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission,
Sackville J corrected this view, stating that
it is still necessary to take account of both the nature and extent of the discriminatory effect ... and the reasons advanced in its favour. A decision may be logical and understandable by reference to the assumptions on which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision.[98]
In the same case, Davies J rejected the idea that the general objects of the Sex Discrimination Act 1984 (Cth) could have any relevance to the interpretation of this discretion.[99]
The Federal Court has failed to articulate any criteria to guide the exercise of this wide discretion, such as any purposes to be served or the relevance of the legislative object of eliminating discrimination. In effect, it is left to the appeals court to decide retrospectively whether the tribunal or court which heard the case made the right decision. Such unpredictability can only discourage the bringing of cases. Whatever Parliament’s intention, it has come to be a tool used by judges to blunt the potential impact of indirect discrimination.
Some relevant principles are not too difficult to imagine. It might be expected, for example, that some element of proportion should be involved in weighing the detriment to the complainant and the importance of the requirement, condition or practice to the respondent. For example, if the requirement or condition would make someone forfeit their job, then the requirement must need a stronger justification than a practice which has a lesser effect, for example denying equal access to a benefit of employment such as access to a company car. This approach has been adopted in recent cases concerning part-time work after return from maternity leave, but Schou suggests that these decisions may not have survived a court challenge. Hickie[100] may be in a stronger position, as it was decided under the Sex Discrimination Act 1984 (Cth), where reasonableness is now a defence to be raised by the respondent rather than an element of discrimination to be made out by the complainant. This is more consistent with formulations overseas,[101] but is still unusual in Australia.
The Supreme Court judgment in Schou is extraordinary in many ways. It displays little understanding of the issues of discrimination and difference that anti-discrimination legislation must deal with. It shows little familiarity with previous case law in the area, both in general and specific to the work/family context. The judgment avoids acknowledging the detriment suffered by Ms Schou as a result of her employer’s refusal to adjust her working conditions and purports to exempt some terms of employment contracts from the EOA altogether. It also adopts a test which insists that refusal of a favour to a worker can only be discrimination if it also affects her co-workers, a situation in which it would be almost impossible to find any discrimination, and which is contrary to the legislative definition of indirect discrimination. Because the Court could not accept that the EOA was directed to changing social practices, it had only the alternative of reading it down to be ineffective.
The Court did not look at the words of the legislation and explain how the propositions discussed are derived from them, or consider the precedents in the area. It is arguable that much of the decision is legally wrong,[102] but given the litigation structure in this area, no avenue is available for challenging it in Ms Schou’s case.[103] It will stand as a precedent, albeit of dubious authority, until it is either outflanked by better reasoned decisions of the Supreme Court (or Federal Court interpreting other anti-discrimination laws), or is overruled either by the Victorian Court of Appeal, or the High Court. Given the absence of legal aid and the lack of resources of most discrimination complainants, the issues are only likely to come before the highest courts if brought there by a respondent’s appeal, but the very existence of the decision may deter bringing complaints or cases which might be a basis for such an appeal. Thus the structures of inequality affect what stands as precedent. It is of great concern that the decision is already being treated as a significant precedent on indirect discrimination: its propositions are included without criticism or evaluation in the commentary on reasonableness in indirect discrimination in the only specialist practitioners’ reference service on this area in Australia, while other more significant judgments have not been mentioned.[104]
Since the propositions in the decision cannot be traced to the statute or previous law, one must ask from what set of values and what understanding of the role of the EOA does it come? The reasonableness test for indirect discrimination is already low, but the Court’s efforts were directed to lowering it further, and making it more difficult to establish discrimination. The Court quoted with approval Brennan J’s comments from Waters v Public Transport Corporation that the litigation was ‘largely misdirected’ in complaining of unlawful discrimination where government policy was to remove tram conductors and implement instead a scratch ticket system. Brennan J continued:
Anti-discrimination legislation cannot carry a traffic it was not designed to bear. ... [It] should be liberally construed but not as though it were the only, or even the principal, means by which the disadvantages of the disabled or of other minority groups are to be alleviated.[105]
There was no acknowledgment that this view of the proper role of anti-discrimination legislation was not shared by the majority of the High Court. Even when the new EOA was enacted in 1995, no particular limitation was placed on indirect discrimination, but the ability to limit the remedy in cases involving important government policies was provided. In Schou, Harper J commented that changes to improve the position of the disadvantaged ‘should nevertheless not be made by forcing the Equal Opportunity Act to do that which the democratically-elected Parliament did not intend that it do. That intention must be found in the words of the Act itself.’[106] Of interest to many members of disadvantaged groups who expected the EOA to provide a remedy for discriminatory harms they suffer is exactly what role anti-discrimination legislation was intended to have, if it is not ‘the only, or even the principal’ means of alleviating their disadvantage.
Perhaps those who have not encountered discrimination really have great difficulty understanding its seriousness and impact. Research confirms that men generally have much more difficulty seeing the extent of sex discrimination than women: men just don’t see it.[107] Perhaps it is necessary to have experienced discrimination in order to be able to understand why its elimination is a high priority for an egalitarian society and for human rights, and why Parliament might have intended anti-discrimination laws to have effect on social practices, even those which are taken for granted. As noted above, some judges do understand these issues, and expect that anti-discrimination law should make a difference. The fact that they tend to be judges who themselves have an attribute recognised as a ground of discrimination suggests that experience does provide an essential basis for understanding in this area.[108] This raises concerns about the ‘objectivity’ of those who, never subject to discrimination, treat it as relatively unimportant and thereby legitimate practices which systematically disadvantage members of ‘victim’ groups. Their position is not one of neutrality, but rather a partial position in which they never recognise the limits of their own experience and understanding, or respect the very different experiences of others.
In our society, everyone has a location in the social systems of discrimination and advantage. There is no neutral position. The best that can be done towards impartiality by those who must adjudicate such cases is to acknowledge their own location in the structure and attempt to take as broad a view as possible. Even then, unconscious identifications would still exist — true impartiality can never be achieved.[109] Since we live in a world where judging is necessary, we may have to accept less than perfect impartiality, but this article reveals significant room for improvement. The doctrines of bias in administrative law have begun to come to grips with the idea of subconscious bias, and anti-discrimination law should be able to as well.[110]
Should people in disadvantaged groups in Australia expect to see some change from anti-discrimination law, or is it, as Thornton has claimed, that anti-discrimination legislation is unable ‘to fulfil the unrealistic expectations that it transform our society so that the scales of justice are not perpetually tipped in favour of the powerful’?[111]
If anti-discrimination law as a primary element of human rights has been given effect by Parliament in Australia in the form of legislation, then the courts should seek to give effect to that intention. Anti-discrimination law is not just about distributive justice, or compensation for past discrimination. It is also about protecting the human dignity of each individual, which is disregarded when that person is disadvantaged on the basis of an attribute which is not relevant to the decision.[112] This idea of human dignity is expanding as social understanding grows, and is reflected in increasing challenges to social practices under the legislation.
This article aims to make visible within legal discourse both the choices available in interpreting anti-discrimination laws, and how those choices are currently exercised by the Australian judiciary. Analysis of the Schou decision shows that judicial neutrality is often not what occurs when courts construe anti-discrimination legislation. Among the factors relevant to this are the institutional structure surrounding anti-discrimination law; where due to the vulnerability of complainants, power disparities between the parties are both extreme and common, especially where claims are brought against governments or large and powerful organisations. The effect of the identities of participants in the system, especially judges, on their understanding of the context and aims of anti-discrimination law is an important underlying factor. One response would be to broaden the range of experiences judges bring to the task, by appointing from a much more diverse group, and to expand the experience and understanding of those already in the job. Until the influence of these factors is better understood
and more widely known, potential for change through anti-discrimination law in Australia will be limited, and the law’s promise of equality rights illusory. While achieving legislation is one important step along the road, achieving proper understanding of discrimination and equality cannot be avoided. The struggle is as much over minds as it is over rules.
[*] BSc (Melb), LLB (Hons) (Monash), LLM (UC Berkeley); Senior Lecturer, Faculty of Law, Monash University. I would like to thank the anonymous reviewers for their comments.
[1] Equal Opportunity Act 1977 (Vic). The Victorian Act has been re-enacted twice since it was adopted, and extra grounds have been added over time: ‘private life’ grounds were first introduced in the Equal Opportunity Act 1984 (Vic) (eg political and religious beliefs) and sexuality in the Equal Opportunity Act 1995 (Vic) (‘EOA’). The 1995 changes were seen as reducing the Act’s effectiveness by expanding the exclusions (eg religion), replacing the Commissioner for Equal Opportunity with an Equal Opportunity Commission, and making procedures more formal. Adjudication is now done by the Victorian Civil and Administrative Tribunal (‘VCAT’) where, because of resource limitations, cases are now usually heard by a single member and applicants have lost the benefit of a multi-member, multidisciplinary tribunal.
[2] Anti-Discrimination Act 1977 (NSW).
[3] Important advances have occurred in the following areas: the elimination of overt discrimination, eg Wardley v Ansett Transport Industries (Operations) Pty Ltd [1984] EOC 92-002 (Equal Opportunity Board of Victoria); Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237 (‘Wardley’); the recognition of sexual (and other types of) harassment as discrimination and its subsequent legislative recognition; recognition of the impact of ‘facially neutral’ practices: eg Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165; and government policies which impact harshly on a particular group: eg Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (‘Waters’); Sinnappan v Victoria [1995] VicRp 27; [1995] 1 VR 421 (Court of Appeal) (‘Northland Secondary College Case’).
[4] See, eg, Equal Opportunity Commission Victoria, The Way Forward: Annual Report 2000/2001 (2001) 9–10; Regina Graycar and Jenny Morgan, The Hidden Gender of Law (2nd ed, 2002) 147; Rosemary Hunter, ‘The Mirage of Justice: Women and the Shrinking State’ (2002) 16 Australian Feminist Law Journal 53; Human Rights and Equal Opportunity Commission (‘HREOC’), Pregnant and Productive: It’s a Right Not a Privilege to Work while Pregnant (1999).
[5] W B Creighton, ‘The Equal Opportunity Act — Tokenism or Prescription for Change?’ [1978] MelbULawRw 13; (1978) 11 Melbourne University Law Review 503, 535 concluded:
Tokenism as it undoubtedly is, it is better to have the EOA than to have nothing so long as it is not allowed to obscure the need for a much more radical approach to the problems with which it purports to deal. Even a rather half-hearted gesture like the EOA can serve a useful purpose as a consciousness-raising exercise both for the victims of discrimination and for the perpetrators of it.
Despite many changes over the years, many of the features identified by Creighton as tokenism in the Equal Opportunity Act 1977 (Vic) are still present in the EOA 1995 (Vic).
[6] The only exceptions are indirect discrimination under the Sex Discrimination Act 1984 (Cth) ss 7B, 7C, and the Discrimination Act 1991 (ACT) s 8, where unreasonableness is not an element of indirect discrimination to be proved by the complainant, but reasonableness is a defence for the respondent to establish.
[7] See, eg, Laurence Lustgarten, ‘Racial Inequality and the Limits of Law’ (1986) 49 Modern Law Review 68, 73.
[8] [2001] VSC 321; [2001] 3 VR 655 (‘Schou’).
[9] With the 1999 changes to the federal system brought in by the Human Rights Legislation Amendment Act 1999 (Cth) (‘HRLAA’), which moved adjudication from HREOC to the Federal Court and Federal Magistrates Court, the costs regime has changed.
[10] Sisely, above n 4, 10, 31–2 comments on the reduction of substantive complaints overall but an 11 per cent increase in complaints of victimisation (less favourable treatment on the ground of having lodged a complaint under the Act), which appears to reflect the changing balance of power between employer and employee; Peter Handley, ‘“Caught between a Rock and a Hard Place”: Anti-Discrimination Legislation in the Liberal State and the Fate of the Australian Disability Discrimination Act’ (2001) 36 Australian Journal of Political Science 515 comments on the drop in complaints under the Disability Discrimination Act 1992 (Cth) over the six years from 1995–2000 (at 517–18) and on the impact of the HRLAA (at 525–6).
[11] Ron Callus, ‘The Future of Australians at Work’ (1999) 24 Alternative Law Journal 150 discussing the findings of the report by the Australian Centre for Industrial Relations Research, Australia at Work (1999).
[12] See, eg, sources cited in above n 4; Josephine Tiddy, It’s Just Not Fair (2001). On the status of indigenous people, see Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2001 (2001). For statistics on the status of women, see the Equal Opportunity for Women in the Workplace Agency’s regularly updated web page at <
http://www.eeo.gov.au/ResourceCentre/Statistics.asp> at 17 July 2002.
[13] These include the political shift to neo-liberalism and the effects of globalisation with their pressures towards deregulation of the labour market and reduction of the functions of government, both of which are vital to redressing inequality for those who are relatively powerless. For example, in the first years of the current federal Coalition government in Australia, resources to HREOC were cut by over 40 per cent: Human Rights and Equal Opportunity Commission, Annual Report 1997–98 (1998), 12.
[14] See Carol Smart, Feminism and the Power of Law (1989); Margaret Thornton, ‘Feminism and the Contradictions of Law Reform’ (1991) 19 International Journal of the Sociology of Law 453; Roger Cotterrell, The Sociology of Law: An Introduction (2nd ed, 1992); Sharyn Roach Anleu, Law and Social Change (2000); Lustgarten, above n 7.
[15] Australian Law Reform Commission, Equality before the Law: Women’s Equality, Part II, Report No 69 (1994) ch 3. Symmetrical laws mean that men can complain about sex discrimination against them, and white people about racial discrimination against them. Because men’s cases are often better understood by courts, a strategy used in selecting early sex discrimination cases for litigation under the US Civil Rights Act involved choosing cases with male plaintiffs because it was thought that courts were more likely to understand and respect their claims: Ruth Cowan, ‘Women’s Rights through Litigation: An Examination of the American Civil Liberties Union Women’s Rights Project, 1971–1976’ (1976) 8 Columbia Human Rights Law Review 373, 379, 394.
[16] Lustgarten, above n 7, 72.
[17] In race discrimination cases, for example, it has often been very difficult to convince courts that differential treatment was based on race, and not some other ground: see, eg, Sharma v Legal Aid Queensland [2001] FCA 1699; [2002] EOC 93-191; KLK Investments Pty Ltd v Riley (1993) 10 WAR 523; Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319; cf Lightning Bolt Co Pty Ltd v Skinner [2002] QSC 062 (Unreported, Fryberg J, 22 March 2002).
[18] Despite the current emphasis on international human rights as a source of rights, the adoption of anti-discrimination laws in Australia followed the UK’s adoption of race discrimination legislation based on the model of the US Civil Rights Act of 1964, Pub L No 88-352, 78 Stat 241, a product of the post-World War II civil rights movement.
[19] See Creighton, above n 5. Privilege, the reflection of discrimination, is equally pervasive: Joan Eveline, ‘The Politics of Advantage’ (1994) 19 Australian Feminist Studies 129; Stephanie Wildman and Adrienne Davis, ‘Language and Silence: Making Systems of Privilege Visible’ in Richard Delgado (ed), Critical Race Theory (1995) 573; Beth Gaze, ‘Some Aspects of Equality Rights: Theory and Practice’ in Brian Galligan and Charles Sampford (eds), Rethinking Human Rights (1997) 189. See also Trina Grillo and Stephanie Wildman, ‘Obscuring the Importance of Race: The Implications of Making Comparisons between Racism and Sexism (or Other -isms)’ [1991] Duke Law Journal 397.
[20] The exceptions are the Racial Discrimination Act 1975 (Cth) and the Anti-Discrimination Act 1977 (NSW), both enacted before the fashion for legislative statements of objectives began.
[21] For example, s 35 of the Interpretation of Legislation Act 1984 (Vic) provides:
In the interpretation of a provision of an Act or subordinate instrument —
(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object ...
Section 15AA of the Acts Interpretation Act 1901 (Cth) provides:
(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
[22] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 234–5 (Dawson J).
[23] D C Pearce and R S Geddes, Statutory Interpretation in Australia (5th ed, 2001) 27.
[24] Metal Manufacturers Pty Ltd v Lewis [1988] 13 NSWLR 315, 326 (Mahoney JA).
[25] Ontario Human Rights Commission v Simpsons-Sears Ltd 1985 CanLII 18 (SCC); [1985] 2 SCR 536; Thomson Professional Publishing, Racial Discrimination: Law and Practice, vol 3, 3-32.
[26] Waters [1991] HCA 49; (1991) 173 CLR 349, 362–5 (Mason CJ and Gaudron J), 378–9 (Brennan J), 383–4 (Deane J), 408–10 (McHugh J), concerning the Equal Opportunity Act 1984 (Vic). Mason CJ and Gaudron J would have adopted a ‘strict view’ of the meaning of ‘not reasonable’ in the definition of indirect discrimination (s 17(5)(c), the equivalent of s 9(1)(c) in the EOA 1995 (Vic)), but as this did not gain majority support in the Court, they agreed to form a majority for the proposition that reasonableness required consideration of all the circumstances of the case, affecting both the complainant and the respondent. In I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1, five High Court judges supported purposive interpretation in an impairment discrimination case under the Equal Opportunity Act 1984 (WA), confirming that ‘beneficial and remedial legislation, like the Act, is to be given a liberal construction’ but not one which is ‘unreasonable or unnatural’: at 12 (Brennan CJ and McHugh J); see also at 27 (Toohey J), 35–6 (Gummow J), 52 (Kirby J). This was further confirmed in Qantas Airways Ltd v Christie (1998) 193 CLR 280, which concerned the discrimination provisions of the Industrial Relations Act 1988 (Cth).
[27] In I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1, in construing the scope of ‘services’ in the Equal Opportunity Act 1984 (WA) to exclude the granting of planning permits by local government, Brennan CJ and McHugh J said that because the legislation contained specific definitions of discrimination (which they labelled ‘artificial’) and of the areas of activity covered, it was not intended as a broad anti-discrimination scheme and should be construed according to its ‘restricted terms’: at 14–15. Other members of the Court also adopted narrow interpretations of several aspects of the legislation in that case; cf at 52, 57–60 (Kirby J). This has subsequently been relied on as a basis for taking a narrow approach to interpreting specific terms of the legislation, including elements such as ‘not reasonable’ in the definitions of discrimination. It is strongly arguable that this view wrongly undermines the purposive approach and narrows the scope of anti-discrimination legislation well beyond what Parliament intended.
[28] Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78, 88 (Davies J) (Full Federal Court), relying on the statement of Brennan CJ and McHugh J in I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 15. A full discussion of the law concerning the element of ‘not reasonable’ in the test for indirect discrimination is beyond the scope of this article.
[29] Eg University of Ballarat v Bridges [1995] VICSC 90; [1995] 2 VR 418, where the complainant was asked a discriminatory interview question which confused her and led to a bad interview performance. The Court overturned a tribunal finding of discrimination, holding that it was her interview performance, not the discriminatory question, that led to her not being selected for the job, and that this was not discriminatory, as the causation was too distant. In Purvis v New South Wales (Department of Education & Training) [2002] FCA 503 (Unreported, Spender, Gyles and Conti JJ, 24 April 2002), where the complainant had a disability which involved disruptive and violent behaviour, the Full Federal Court upheld a single judge’s decision to overturn HREOC’s decision upholding the claim of discrimination. It said that while the complainant’s less favourable treatment was based on his behaviour, that did not mean it was discriminatory, as the Act required comparison between a person with the disability and a person without the disability but with the same behaviour. As noted in earlier cases, this deprives the legislation of meaning: I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 33–4 (Toohey J).
[30] Kirby J, for example, has clearly maintained that the legislation’s aim is to ‘achieve social change by removing stereotypes’, even if this is occasionally uncomfortable for those who exercise powers of choice, such as governments and employers: X v Commonwealth (1999) 200 CLR 177, 223–4 (dissenting).
[31] Christopher McCrudden, ‘Introduction’ in Christopher McCrudden (ed), Anti-Discrimination Law (1991) xi, xiv.
[32] Ibid xvii.
[33] Ibid.
[34] The law has not been prepared to require discrimination respondents to think through the effects of their prejudices on others: Charles Lawrence, ‘The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism’ (1987) 39 Stanford Law Review 317; Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319.
[35] Alan Freeman, ‘Antidiscrimination Law: A Critical Review’ in David Kairys (ed), The Politics of Law: A Progressive Critique (1982) 96, 97.
[36] Ibid 97–8.
[37] Ibid 98–9 (emphasis in original).
[38] Joan Scott, ‘Deconstructing Equality-versus-Difference: Or, the Uses of Poststructuralist Theory for Feminism’ (1988) 14 Feminist Studies 33.
[39] See sources cited above n 19.
[40] See, eg, Deborah Rhode, ‘The “No-Problem” Problem: Feminist Challenges and Cultural Change’ (1991) 100 Yale Law Journal 1731, 1748, 1754.
[41] In the case of sex, such systems are often justified on the basis of ‘natural differences’, and in the area of disability, by assumptions about people’s capacities without looking at the effect of social arrangements in creating them.
[42] Kathleen Lahey, ‘Feminist Theories of (In)Equality’ (1987) 3 Wisconsin Women’s Law Journal 5, 15.
[43] It is true that allowing different treatment can expose a group to the risk of discriminatory (detrimental) treatment. This risk can be minimised by safeguards such as seeking the group’s agreement. Failing to allow for difference, however, inevitably disadvantages those for whom the system is not yet designed. For example, provision of adequate maternity leave cannot occur unless women’s difference from men is acknowledged and different treatment given.
[44] Beth Gaze, ‘The Costs of Equal Opportunity: Will Changes to HREOC Solve the Problem of Anti-Discrimination Law Enforcement?’ (2000) 25 Alternative Law Journal 125.
[45] In Australia, only WA provides for the Commission to assist complainants in presenting a case for adjudication: Equal Opportunity Act 1984 (WA) s 93(2). This is much more common in Canada, where decisions as to whether to proceed to adjudication are usually made by the administrative agency: Thomson Professional Publishing, Racial Discrimination: Law and Practice, vol 2, 2-4.
[46] Among the States, NSW and Queensland provide some legal aid for State discrimination law matters, while in WA assistance is provided in selected cases by the Equal Opportunity Commissioner: see above n 45. Although there is provision in the Commonwealth discrimination laws for the Attorney-General to provide legal assistance, this is very rarely done.
[47] The courts talked about finding the respondent ‘guilty’ of discrimination in Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319, 325 (Fullagar J) and Schou [2001] VSC 321; [2001] 3 VR 655, 661 (Harper J).
[48] The gender composition of the federal judiciary is summarised and regularly updated at the Australian Institute of Judicial Administration website: <http://www.aija.org.au/
WMNjdgs.htm>. At 30 May 2002 the gender breakdown of the federal judiciary was: High Court: 1 female, 6 male (14 per cent female); Federal Court: 4 female, 43 male (8.5 per cent female); Family Court: 16 female, 36 male (31 per cent female); Federal Magistrates Court: 6 female, 13 male (31.5 per cent female).
[49] See Sandra Berns, Concise Jurisprudence (1993); Margaret Davies, Asking the Law Question: The Dissolution of Legal Theory (2nd ed, 2002); Regina Graycar, ‘The Gender of Judgments: Some Reflections on “Bias”’ (1998) 32 University of British Columbia Law Review 1.
[50] See Rosemary Hunter and Helen McKelvie, Equality of Opportunity for Women at the Victorian Bar: A Report to the Victorian Bar Council (1998).
[51] See, eg, Gaudron J (joint judgment with Mason CJ) in Waters [1991] HCA 49; (1991) 173 CLR 349; Kirby J in X v Commonwealth (1999) 200 CLR 177.
[52] For example, the VCAT 2000–2001 Annual Report (2001) 55–8 lists the following as appointed to the anti-discrimination list (although not all members appointed to it may actively sit): Deputy Presidents: 3 female, 1 male; Senior Members: 2 female (1 full-time, 1 sessional), 2 male (full-time); Full-Time Members: 2 female, 1 male; Sessional Members: 22 female, 6 male. Current members of the NSW Administrative Decisions Tribunal’s Equal Opportunity Division as listed in the Annual Report 2000–2001, Appendix B are: 1 female Division Head; Judicial (legally qualified) Members: 4 female, 9 male; Non-judicial Members: 13 female, 5 male. These figures are enough to indicate the increasing presence of women as the status of the position decreases. It is less easy to identify purely by name members who have a disability or are of indigenous or non-English speaking background, but it appears that they are few, although possibly more numerous than on the courts.
[53] Eg O’Callaghan v Loder [1983] 3 NSWLR 89 (cf O’Callaghan v Loder [1984] EOC 92-024, complaint failed on the facts) and other sexual harassment decisions; Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 (retrenchments based on seniority were discriminatory in a workforce where women had lower seniority due to sex discrimination at the entry stage); Northland Secondary College Case [1995] VicRp 27; [1995] 1 VR 421 (Court of Appeal) (discriminatory for government to close a secondary college which uniquely catered to indigenous students); McKenna v Victoria [1998] EOC 92-927, aff’d [2000] EOC 92-080 (Smith J) (discrimination in treatment of a policewoman). In Waters v Public Transport Corporation [1990] EOC 92-293 (Equal Opportunity Board of Victoria), it was held to be discriminatory for the government to change the public transport ticketing system in a way which disadvantaged people with disabilities. The High Court held, on appeal, that reasonableness is a question of fact for the tribunal to be assessed in light of all the circumstances of the case, affecting both complainant and respondent, including financial position; the case was remitted to the Board (but was settled before decision): [1991] HCA 49; (1991) 173 CLR 349.
[54] See, eg, the judgments of Kirby and Gaudron JJ referred to above n 51. See also the decisions of Commissioner Innes (who himself has a disability) as an Inquiry Commissioner in Purvis v New South Wales (Department of Education) [2001] EOC 93-117, overturned in the Federal Court: Purvis v New South Wales (Department of Education & Training) [2002] FCA 503 (Unreported, Spender, Gyles and Conti JJ, 24 April 2002); Finney v Hills Grammar School [1999] HREOCA 14; [1999] EOC 93-020, aff’d by the Federal Court in Hills Grammar School v Human Rights and Equal Opportunity Commission [2000] FCA 658; (2000) 100 FCR 306.
[55] Hickie v Hunt and Hunt [1998] HREOCA 8 (Unreported, Inquiry Commissioner Evatt, 7 March 1998) (‘Hickie’); Bogle v Metropolitan Health Service Board [2000] EOC 93-069.
[56] Peter Bailey and Rachel Callinan, ‘How the Courts Treat the Tribunals’ in CCH, Equal Opportunity Update, No 117 (25 January 2001) 1, found that in cases where HREOC had made a finding involving a substantive interpretation of the law (as opposed to procedure) only three of 20 decisions appealed to the courts were supported. The cases overruled by the Federal Court were largely during the years 1997–99. Although State tribunals fared slightly better than HREOC in terms of support from their Supreme Courts, they were overruled in 55 per cent of cases involving matters of substance: at 2, 7. See also William Adams, ‘The Judiciary and Anti-Discrimination Law’ (1986) 11 Legal Service Bulletin 247.
[57] This may change under the new federal system (see above n 9) where the courts will hear evidence at first-hand, but the disparity of resources between the parties and lack of legal aid are likely to hamper the presentation of cases in courts by unrepresented complainants.
[59] Eg Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319; Schou [2001] VSC 321; [2001] 3 VR 655. See also the technicalities referred to above n 26.
[60] Marc Galanter, ‘Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law and Society Review 95. Although the Commonwealth has adopted model litigant rules which emphasise that the government should operate with the public interest in mind when litigating and not act just like a private litigant, these rules are not enforced in any way, nor do they apply to large private litigants like the Commonwealth Bank. On the potential disincentives of the new federal system for complainants, see Gaze, ‘The Costs of Equal Opportunity’, above n 44, 126–9.
[61] [2001] VSC 321; [2001] 3 VR 655.
[62] Schou v Victoria (Department of Victorian Parliamentary Debates) [2000] EOC 93-100 (liability); [2000] EOC 93-101 (damages).
[63] Schou v Victoria (Department of Victorian Parliamentary Debates) [2000] EOC 93-100, 74 427–8.
[64] Ibid 74 427.
[65] Ibid 74 428.
[66] Following a rehearing in March 2002, VCAT again upheld Ms Schou’s claim in Schou v Victoria [2002] VCAT 375 (Unreported, Judge Duggan V-P, 24 May 2002). The Tribunal examined the work required of Ms Schou in detail and concluded that the attendance requirement was not reasonable. Ms Schou was thereby exposed to a ‘detriment’ in her work, and was also denied access to the ‘benefit’ of flexible and progressive work practices as provided for in her employment agreement: these constituted breaches of s 14(a) and (d) of the EOA 1995 (Vic). In reaching his conclusion, Judge Duggan had regard to the following considerations (at [94]):
In July 2002, the Victorian government lodged an appeal against this VCAT decision, which will be heard in the Court of Appeal as the decision was by a Presidential member of VCAT.
[67] Schou [2001] VSC 321; [2001] 3 VR 655, 660.
[68] [1980] HCA 8; (1980) 142 CLR 237.
[69] Eg O’Callaghan v Loder [1983] 3 NSWLR 89; O’Callaghan v Loder [1984] EOC 92-024; Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165; Hickie [1998] HREOCA 8 (Unreported, Inquiry Commissioner Evatt, 7 March 1998); Bogle v Metropolitan Health Service Board [2000] EOC 93-069. Development of flexible work practices is now seen as part of good human resource management practice.
[70] Schou [2001] VSC 321; [2001] 3 VR 655, 660.
[71] See, eg, Commonwealth v Human Rights and Equal Opportunity Commission [1995] FCA 1067; (1995) 63 FCR 74 (‘Dopking [No 2]’).
[72] Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251 (‘Styles’) (reversing [1988] EOC 92-239); Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78, where the Full Federal Court held that HREOC had not taken into account the right of women on maternity leave to a guarantee of return to work.
[73] Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78, 116–18 (Sackville J).
[74] Schou [2001] VSC 321; [2001] 3 VR 655, 661 (emphasis added).
[75] See the examples given in Fabove n 53. The employment contract (like contracts for supply of goods and service) and awards and agreements have had to coexist with, and even to give way to, anti-discrimination law: Wardley [1980] HCA 8; (1980) 142 CLR 237. In addition, legislation has extended the reach of the anti-discrimination principle into the area of workplace relations through the removal of exemptions for awards in anti-discrimination laws, and the requirement for the Australian Industrial Relations Commission to deal with discriminatory provisions of awards: Industrial Relations Act 1988 (Cth) ss 93, 93A and 113.
[76] Hickie [1998] HREOCA 8 (Unreported, Inquiry Commissioner Evatt, 7 March 1998); Bogle v Metropolitan Health Service Board [2000] EOC 93-069.
[77] Beth Gaze, ‘Working Part Time: Reflections on “Practicing” the Work-Family Juggling Act’ (2001) 1 Queensland University of Technology Law and Justice Journal 199, 211–12.
[78] For this reason, the SA Parliament has not prohibited indirect discrimination on the ground of parental status: Rosemary Owens and Therese McDermott, ‘Equality and Flexibility for Workers with Family Responsibilities: A Troubled Union?’ (2000) 13 Australian Journal of Labour Law 278, 287–8. By contrast, NSW has legislated to require employers to accommodate carers’ responsibilities unless it would impose unjustifiable hardship: Anti-Discrimination Act 1977 (NSW) ss 49S–ZC.
[79] This term was first used by Brennan CJ in a wider sense in Waters [1991] HCA 49; (1991) 173 CLR 349, 378 to refer to one of the two factors he saw as important to assessing reasonableness in that case. The other factor was the ability to perform the activity without the challenged requirement in a way which was not discriminatory or was less discriminatory.
[80] Schou [2001] VSC 321; [2001] 3 VR 655, 657. These attributes, which are defined in the EOA 1995 (Vic) s 4(1), are attributes on the basis of which discrimination is prohibited: s 6(ea).
[81] Schou [2001] VSC 321; [2001] 3 VR 655, 661.
[82] See Rhode, above n 40, 1767, on envy of accommodation for women’s responsibilities and resentment against ‘special treatment’ for women, as determined from a male reference point. More generally, claims for ‘special measures’ are often seen by those who enjoy the benefits of the existing system as claims for special advantages, rather than for substantive equality of treatment. Attitudes here depend on whether or not the existing system of social practices is seen as neutral and fair.
[83] Schou [2001] VSC 321; [2001] 3 VR 655, 665.
[84] Ibid 665–6.
[85] See, eg, Glenn Patmore, ‘Moving towards a Substantive Conception of the Anti-Discrimination Principle: Waters v Public Transport Corporation of Victoria Reconsidered’ [1999] MelbULawRw 4; (1999) 23 Melbourne University Law Review 121; Gaze, ‘Some Aspects of Equality Rights’, above n 19.
[86] The Court was unsympathetic to her inability to measure up to the standard of commitment of the ‘ideal worker’, the full-time committed worker with no domestic or competing responsibilities.
[87] In NSW there is a duty to accommodate the responsibilities of carers, within the defence of unjustifiable hardship. In other States, even without a duty to accommodate, the law still makes it discriminatory to impose such requirements if they are not reasonable. While a lower test, this still requires assessment of relevant factors on both sides of the issue.
[88] Hickie [1998] HREOCA 8 (Unreported, Inquiry Commissioner Evatt, 7 March 1998) [6.17.12].
[89] [2001] VSC 321; [2001] 3 VR 655, 661–2. In the quotes given, the Court consistently referred to the fact that the attendance requirement was not ‘unreasonable’. However, the legislative test is that it be ‘not reasonable’, which is not necessarily the same.
[90] Ibid 663.
[91] Ibid 662.
[92] Ibid 663.
[93] Styles [1989] FCA 342; (1989) 23 FCR 251, 263 (Bowen CJ and Gummow J).
[94] Waters [1991] HCA 49; (1991) 173 CLR 349.
[95] Ibid 395.
[96] Ibid 383.
[97] [1995] FCA 1067; (1995) 63 FCR 74, 87.
[98] [1997] FCA 1311; (1997) 80 FCR 78, 112.
[99] Ibid 88. See also above n 28 and accompanying text.
[100] In Hickie [1998] HREOCA 8 (Unreported, Inquiry Commissioner Evatt, 7 March 1998), the requirement that a woman partner returning from maternity leave work full-time was held to be not reasonable as the firm had not established that she could perform all her functions only on a full-time basis. See Kate Eastman, ‘Maternity Leave, Sex Discrimination and Lawyers’ (1998) 36(5) Law Society of New South Wales Journal 38.
[101] Rosemary Hunter, Indirect Discrimination in the Workplace (1992) 240.
[102] For example, in suggesting a test which runs directly counter to the legislative formula, giving very little or no weight to the detriment imposed on Ms Schou and assuming that the contract of employment should prevail over anti-discrimination law.
[103] The appeal from the second VCAT decision will examine issues raised by the respondent in its appeal, which do not necessarily cover this ground.
[104] CCH, Australian and New Zealand Equal Opportunity Law and Practice, vol 1 (at 124-12-01) 4-700.
[105] Waters [1991] HCA 49; (1991) 173 CLR 349, 372.
[106] Schou [2001] VSC 321; [2001] 3 VR 655, 659.
[107] See, eg, Juliet Bourke, ‘Getting to the Heart of Career Progression’ (2001) 39(7) Law Society of New South Wales Journal 6.
[108] This includes Kirby J, Gaudron J, and Inquiry Commissioner Evatt acting as a hearing commissioner of HREOC, as well as Mason CJ who, although not having an attribute subject to disadvantage, delivered progressive judgments in anti-discrimination cases. Kirby J, one of the few judges to reach such eminence who is prepared to identify as having an attribute subject to discrimination, has consistently dissented in discrimination cases: eg I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1; Qantas Airways Ltd v Christie (1998) 193 CLR 280; X v Commonwealth (1999) 200 CLR 177; see also above nn 26, 27.
[109] Katherine O’Donovan, ‘Fabled Explanations of Bias’ in Clare McGlynn (ed), Legal Feminisms: Theory and Practice (1998) 49.
[110] NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40 (Unreported, Allsop J, 31 January 2002).
[111] Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990) 261.
[112] Denise Reaume, ‘Harm and Fault in Discrimination Law: The Transition from Intentional to Adverse Effect Discrimination’ (2001) 2 Theoretical Inquiries in Law 349; Alice Tay, ‘Human Rights and Human Wrongs’ [1999] AdelLawRw 1; (1999) 21 Adelaide Law Review 1, 4.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/MelbULawRw/2002/18.html