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Published online by Cambridge University Press: 24 January 2025
Anti-discrimination law in Australia is at a crossroads. After four decades of proliferation of legislation to regulate discrimination, national attention has turned from increasing regulation to legislative consolidation and reform. This article contributes a theoretical analysis to the reform debate. Two liberal theoretical justifications for prohibiting discrimination, harm and redistributive justice, are considered. This investigation assists to determine when the state should intervene in order to restrict discrimination, and whether state and territory anti-discrimination regimes have a legitimate continuing role in Australia's legislative landscape.
The thoughts that have been developed in this article were first conceived during time as a visiting academic at Queen Mary College, University of London, and the University of Melbourne. I would like to thank both institutions for the generous support they provided. The Fay Gale Centre for Research on Gender also supported this research through the award of a fellowship, for which I am very grateful. I would also like to thank Professor Rosemary Owens, Professor Ngaire Naffine and Cornelia Koch for their generosity in commenting on drafts, and Emily Haar for her research assistance. Any mistakes, of course, remain my own.
1 For a brief history of the development of Australian anti-discrimination legislation see Ronalds, Chris and Raper, Elizabeth, Discrimination Law and Practice (Federation Press, 4th ed, 2012) ch 1.Google Scholar
2 The Standing Committee of Attorneys-General, Summary of Decisions – July 2008, NSW Lawlink Attorney-General and Justice, 1 <http://www.sclj.gov.au/sclj/standing_council_decisions.html> at April 11, 2013.
3 The gateway can be accessed at <http://www.antidiscrimination.gov.au>.
4 Attorney-General's Department, Australia's Human Rights Framework (2010) 9 <http://www.ag.gov.au/Consultations/Documents/Publicsubmissionsonthedraftbaselinestudy/AustraliasHumanRightsFramework.pdf> at 21 March 2013.
5 Robert McClelland MP (Attorney-General) and Lindsay Tanner MP (Minister for Finance and Deregulation), ‘Reform of Anti-Discrimination Legislation’ (Press Release, 21 April 2010) <http://www.financeminister.gov.au/archive/media/2010/mr_292010_joint.html>.
6 Submissions were invited in response to a discussion paper launched by the Attorney-General and Minister for Finance and Deregulation on 22 September 2011: Attorney-General's Department, ‘Consolidation of Commonwealth Anti–Discrimination Laws’ (Discussion Paper, September 2011) <http://www.ag.gov.au/Consultations/Documents/ConsolidationofCommonwealthanti-discriminationlaws/Consolidation%20of%20Commonwealth%20Anti-Discrimination%20Laws.pdf> at 22 March 2013.
7 Human Rights and Anti-Discrimination Bill Exposure Draft Legislation, November 2012.
8 Senate Standing Committee on Legal and Constitutional Affairs, The Senate Legal and Constitutional Affairs Committee Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 (2013) <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/anti_discrimination_2012/report/index.htm> at 12 April 2013.
9 The Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 is being reconsidered in light of the Senate Committee's recommendations. However, as an interim measure, on 21 March 2013 the Attorney-General introduced the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 to implement the Senate Committee's recommendation regarding prohibition of discrimination on the basis of intersex status or gender identity: <http://www.ag.gov.au/Consultations/Pages/ConsolidationofCommonwealthanti-discriminationlaws.aspx> at 12 April 2013.
10 Standing Council on Law and Justice, Annual Report 2011-2012 (2012) 2 <http://www.sclj.gov.au/sclj/standing_council_publications/standing_committee_annual_reports.html>.
11 SCAG, above n 2.
12 See, eg, submissions regarding creation of a unified Commonwealth Anti-Discrimination Act: <http://www.ag.gov.au/Consultations/Pages/ConsolidationofCommonwealthanti-discriminationlaws.aspx>.
13 Sen, Amartya, ‘Equality of What?’ in Sterling M. McMurrin, The Tanner Lectures on Human Values (Cambridge University Press, 1980) vol 1, 197.Google Scholar
14 Thornton, Margaret, The Liberal Promise—Anti-Discrimination Legislation in Australia (Oxford University Press, 1990) 9 (references omitted).Google Scholar
15 State and territory anti-discrimination legislation includes: Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1991 (Qld); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 2010 (Vic); Anti-Discrimination Act 1992 (NT); Anti-Discrimination Act 1977 (NSW); Discrimination Act 1991 (ACT); Equal Opportunity Act 1984 (WA). Relevant Commonwealth prohibitions at the time of writing include the Sex Discrimination Act 1984 (Cth); Age Discrimination Act 2004 (Cth); Disability Discrimination Act 1992 (Cth); Racial Discrimination Act 1975 (Cth). However, a project to consolidate this federal legislation is well advanced, with an exposure draft of the Human Rights and Anti-Discrimination Bill released for comment in November 2012. Prohibitions of discrimination are also included in the Fair Work Act 2009 (Cth).
16 See, eg, Margaret Thornton, The Liberal Promise, above n 14.
17 Bamforth, Nicholas, Malik, Maleiha and O'Cinneide, Colm, Discrimination Law: Theory and Context (Sweet and Maxwell, 2008) 170.Google Scholar
18 Simmonds, Nigel, The Decline of Juridical Reason: Doctrine and Theory in the Legal Order (Manchester University Press, 1984) 12.Google Scholar
19 Knights, Samantha, Freedom of Religion, Minorities and the Law (Oxford University Press, 2007) 13.CrossRefGoogle Scholar
20 Hobbes, Thomas, Leviathan (Clarendon Press, first published 1651, 1909 ed).Google Scholar
21 Vanberg, Viktor J., ‘On the Complementarity of Liberalism and Democracy—A Reading of F.A. Hayek and J. M. Buchanan’ (2008) 4 Journal of Institutional Economics 139, 139.CrossRefGoogle Scholar
22 Gardner, John, ‘Liberals and Unlawful Discrimination’ (1989) 9 Oxford Journal of Legal Studies 1, 1.CrossRefGoogle Scholar
23 For example, decisions about to whom you want to lease a house, or whom to employ.
24 Anti-discrimination laws are clearly not alone in this regard. Nonetheless, as coercive laws they should be subject to this strict scrutiny.
25 Nagel, Thomas, ‘Moral Conflicts and Political Legitimacy’ (1987) 16 Philosophy and Public Affairs 215, 238.Google Scholar
26 This approach is associated with writers such as Dworkin and Rawls and is founded on the principle of ‘priority of the right over the good'. See, eg, Dworkin, Ronald, A Matter of Principle (Oxford University Press, 1985), ch 8Google Scholar; Rawls, John, A Theory of Justice (Oxford University Press, 1972)Google Scholar; Rawls, John, Political Liberalism (Columbia University Press, 1993).Google Scholar
27 These terms are used, for example, in Bamforth, Malik and O'Cinneide, above n 17, 194. A more detailed discussion of the differences between procedural and perfectionist liberal justifications can be found in Raz, Joseph, Ethics in the Public Domain (Clarendon Press, 1994) ch 5.Google Scholar
28 For example, both procedural and perfectionist liberals support some prohibitions of discrimination on the basis that they progress principles of redistributive justice. Dworkin (a procedural liberal) supports the redistribution of resources to ‘people who are the objects of systematic prejudice’ in order to prevent them ‘from suffering any serious or pervasive disadvantage from that prejudice': Dworkin, Ronald, ‘What is Equality? Part 3: The Place of Liberty’ (1987) 73 Iowa Law Review 1, 36-7.Google Scholar Perfectionist liberal theories also require attention be paid to the distribution of economic and social resources as necessary to achieve individual autonomy. ‘[T]hough rationally disposed to make the best of their situation and unhindered by threats and manipulation by others, they might be severely confined in the choices they could make by widespread poverty, disease, overpopulation, and absence of technology and culture': Hill, Thomas Jr, Autonomy and Self-Respect (Cambridge University Press, 1991) 36.CrossRefGoogle Scholar
29 Gardner supported this limitation if it was narrowly constrained to what he termed ‘direction sensitive’ relationships or activities, that is, those imbued with spontaneity and self expression which would be tainted or altered if associated with directive intervention by the state: Gardner, John, ‘Private Activities and Personal Autonomy: At the Margins of Anti-Discrimination Law’ in Hepple, Bob and Szyszczak, Erika M., Discrimination: The Limits of the Law (Mansell, 1992) 148-171.Google Scholar
30 Nagel, above n 25, 238-9.
31 For example, Thornton argues the effect is to ‘reduce the ambit of unlawful actions and undermine the efficacy of [anti-discrimination] legislation': Thornton, The Liberal Promise, above n 14, 107. The public/private divide is also critically examined by multiple authors in Thornton, Margaret (ed), Public and Private, Feminist Legal Debates (Oxford University Press, 1995).Google Scholar
32 This legislative limitation can be seen in exceptions to the prohibition of discrimination, such as those permitting discrimination in relation to provision of accommodation in a private home (premises in which the person providing the accommodation or a near relative of that person will continue to reside). For Commonwealth examples of this exemption see: Racial Discrimination Act 1975 (Cth) s 12(3); Age Discrimination Act 2004 (Cth) s 29(3); Disability Discrimination Act 1992 (Cth) s 25(3). For state examples see: Equal Opportunity Act 1984 (SA) s 40(3) [discrimination on the basis of sex, chosen gender or sexuality]; s 62(2a) [discrimination on the basis of race]; s 77(2a) [discrimination on the basis of disability]; s 85L(5)(b) [discrimination on the basis of age]; s 85ZH(4) [discrimination on the basis of marital status, identity of spouse, pregnancy or caring responsibilities]. As well as being enacted through exceptions, the continued importance of the public/private divide can be seen in the limited areas of life in which prohibitions against discrimination apply. For example, legislation does not regulate discrimination in marriage, or in choice of friends and acquaintances.
33 Collins, Hugh, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 Modern Law Review 16, 28.CrossRefGoogle Scholar
34 Presumably circumstances that cross some threshold of seriousness, whether evaluated in terms of seriousness of consequences for society at large, or for the victim of the discrimination.
35 Most Australian anti-discrimination laws include objects clauses which mention elimination of discrimination, however Gaze has pointed out the legislation usually fails to address how far the commitment to such ‘motherhood statements’ is to be enforced: Gaze, Beth, ‘Context and Interpretation in Anti-Discrimination Law’ (2002) 26 Melbourne University Law Review 325, 330.Google Scholar
36 The avoidance of infliction of harm on individuals and just distribution of resources so as to achieve individual autonomy are perceived to be valuable goals, the achievement of which justifies state intervention in the public sphere, and are therefore consistent with perfectionist liberal theories. However, procedural liberals such as Dworkin also support: (1) the avoidance of harm inflicted on individuals which would violate the principle that citizens should be treated with ‘equal respect and concern': Dworkin, A Matter of Principle, above n 26; and (2) distribution of resources to minimise disadvantage flowing from prejudice in society: Dworkin, ‘What is Equality?', above n 28.
37 The social liberal forces which provided the impetus for enactment of the Commonwealth Sex Discrimination Act in 1984 have been discussed by Thornton, Margaret and Luker, Trish: Thornton, Margaret and Luker, Trish, ‘The Sex Discrimination Act and its Rocky Rite of Passage’ in Thornton, Margaret (ed), Sex Discrimination in Uncertain Times (ANU Press, 2010) 25-41.Google Scholar The social liberal model which informed the Sex Discrimination Act 1984 (Cth) and other key prohibitions of discrimination (as moderated by the political realities of the time) continues to operate in Australian legislation today.
38 See David Feldman, ‘Human Dignity as a Legal Value: Part 1’ [1999] Public Law 682, 695; David Feldman, ‘Human Dignity as a Legal Value: Part 2’ [2000] Public Law 61, 74. The Supreme Court of Canada has focussed considerable attention on dignity as the substantive concept informing equality rights. For discussion of the Canadian jurisprudence, see Réaume, Denise, ‘Discrimination as Dignity’ [2003] 63 Louisiana Law Review 645.Google Scholar
39 For example, harm to individual dignity is closely connected to Brest's understanding of harm as including psychological injury, or injury to an individual's self respect and sense of well-being: Brest, Paul, ‘Foreword: In Defence of the Anti-Discrimination Principle’ (1976) 90 Harvard Law Review 1.CrossRefGoogle Scholar
40 Young, Iris, Justice and the Politics of Difference (Princeton University Press, 1990).Google Scholar See in particular 33-8. See also Collins, above n 33.
41 For example, exclusion from such institutions may be part of a pattern of discrimination and exclusion which causes pervasive injury or harm, which will be further discussed below. See also: Brest, above n 39; Gardner, ‘Liberals and Unlawful Discrimination', above n 22.
42 Breaking entrenched patterns of exclusion has been argued to be the rationale for prohibitions of indirect discrimination, which have also been described as a liberal redistributive technique. See, eg, McCrudden, Christopher, ‘Institutional Discrimination’ (1982) 2 Oxford Journal of Legal Studies 303CrossRefGoogle Scholar; Gardner, John, ‘Discrimination as Injustice’ (1996) 16 Oxford Journal of Legal Studies 367.CrossRefGoogle Scholar Young also argues that affirmative action can be understood as a redistributive technique, however justifications for affirmative action will not be specifically considered in this paper: Young, above n 40, ch 7.
43 Sen, Amartya, Development as Freedom (Oxford University Press, 1999) 191Google Scholar; Nussbaum, Martha C., ‘Capabilities as Fundamental Entitlements: Sen and Social Justice’ (2003) 9(2-3) Feminist Economics 33.CrossRefGoogle Scholar
44 Gardner, ‘Discrimination as Injustice', above n 42.
45 Fredman, Sandra, Discrimination Law (Oxford University Press, New York, 2002) 176-188.Google Scholar See also Fredman, Sandra ‘Changing the Norm: Positive Duties in Equal Treatment Legislation’ (2005) 12 Maastricht Journal of European and Comparative Law 369-398.CrossRefGoogle Scholar
46 The Equal Opportunity Act 2010 (Vic) is one of the few legislative instruments that contain positive duties. For example, that Act requires that an employer must accommodate an employee's responsibilities as a carer or parent: Equal Opportunity Act 2010 (Vic) s 19. It is worth noting in this context that many of the submissions regarding the proposed unified Commonwealth act advocate increased positive obligations in Australia. See, eg, Discrimination Law Experts Group Submission No 81 and 82 to Attorney-General's Department, Consolidation of Commonwealth Anti-Discrimination Laws, December 2011, 18-9; Equality Rights Alliance, Submission No 91 to Attorney-General's Department, Consolidation of Commonwealth Anti-Discrimination Laws, 19 December 2011, 10-12. In its 2008 report, Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality, the Senate Standing Committee on Legal and Constitutional Affairs also recommended imposition of positive duties on public sector organisations, employers, educational institutions and other service providers to eliminate sex discrimination and sexual harassment, and promote gender equality. However, this recommendation was rejected and such positive duties have not been incorporated into the proposed consolidated federal act: Attorney-General's Department, Human Rights and Anti-Discrimination Bill 2012 Explanatory Notes (2012) 143.
47 Such an analysis could, however, usefully contribute to any future national reform of Australia's anti-discrimination laws.
48 They also form the basis of the anti-discrimination legislation of the United Kingdom, the European Union, Canada and the United States.
49 Gardner, ‘Liberals and Unlawful Discrimination', above n 22.
50 Ibid 1.
51 Brest, above n 39.
52 Brest is not alone in having considered prevention of harm as a potential justification for prohibitions of discrimination, however, his categorisation of harms is diverse, and therefore provides a useful basis for analysis.
53 In fact, Brest himself recognises that his arguments were capable of extending beyond race and ethnic origin which provided the context for his analysis. In order to establish the broad relevance of these concepts of harm they will be applied to a variety of types of discriminatory action via case-implication critique below.
54 Brest, above n 39, 8.
55 Gardner, ‘Liberals and Unlawful Discrimination', above n 22, 6.
56 Brest, above n 39, 8-9.
57 The phrase ‘pain and suffering’ can embrace emotions such as worry, upset, anxiety and frustration: Wickham v Treloar (1960) NSWR 86.
58 Brown v Board of Education 347 US 483 (1954) 494 (Warren CJ), in Brest, above n 39, 9.
59 Joseph Raz also discussed the importance of self respect and a sense of individual well-being in Raz, above n 27, 26.
60 Gardner, ‘Liberals and Unlawful Discrimination', above n 22, 6.
61 That is, the potential for discriminatory action to cause injury to an individual's valuable self-respect or sense of well-being: Brest, above n 39, 10.
62 Ibid 8.
63 Gardner, ‘Liberals and Unlawful Discrimination', above n 22, 7.
64 Symmetrical or formal laws are the norm in the United Kingdom, the European Union and the United States.
65 Brest, above n 37, 6-8.
66 That is, there is no need for the existence of a pervasive pattern of discrimination against a group to justify prohibition of discrimination against them.
67 That is, a situation in which compound harms intersect. This could have been described as ‘intersectional harm’ but the terms ‘intersection’ and ‘intersectionality’ are often used to refer to situations where there is an overlap between prohibited grounds of discrimination. The concept of intersectionality has particularly been developed in the context of intersections and overlaps between race discrimination and sex discrimination. See, eg, Kimberle Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) University of Chicago Legal Forum 139. In order to avoid confusion with the existing concept of intersectionality, the simultaneous existence of more than one type of harm will be referred to as ‘multiplicity of harms'.
68 Gardner, ‘Liberals and Unlawful Discrimination', above n 22, 16.
69 Ibid 1.
70 If tempered by an objective evaluation of overall seriousness, the more inclusive understandings of each of the three forms of harm discussed above which were criticised as potentially over inclusive when relied upon individually can be used. For example, tempered by an evaluation of the overall seriousness of the harms suffered, it would not be inappropriate to expand the definition of ‘psychological injury’ from actual diagnosable psychological injury to the objective existence of the potential for, or likelihood of, infliction of injury. In each instance, however, it would be appropriate to evaluate whether or not the harm exists objectively, rather than subjectively. For example, it would be appropriate to objectively evaluate whether an individual has been the subject of an unfair process, rather than rely upon an individual's subjective sense of having been treated unfairly. Objective analysis would hopefully ensure the harms are understood and applied in a consistent manner. It would also address the concern raised above of particularly resilient (or vulnerable) individuals—those who do not perceive unfairness even though they have objectively been treated unfairly, or those who perceive unfairness where none is apparent to others.
71 Other justifications for anti-discrimination laws have been criticised as partial. For example, procedural liberals argue that a justification of prohibitions of discrimination on the basis of morality is susceptible to criticism on this basis: Nagel, above n 25, 216.
72 The form of federal regulation of discrimination is currently under review as part of the ongoing harmonisation process, and state and territory laws are likely to be considered in the next stage of the harmonisation project. Therefore analysis of particular legislative forms currently being utilised is not warranted.
73 The facts for this example are drawn from Toll Pty Limited v Abdulrahman [2007] NSWADTAP 70 and Abdulrahman v Toll Pty Ltd [2006] NSWADT 221.
74 Brest considered pervasive injury to be the ‘especially frustrating, cumulative and debilitating injuries’ that occur as a result of a pervasive pattern of discrimination: Brest, above n 39, 8.
75 Goel, Deepti, ‘Perceptions of Immigrants in Australia after 9/11’ (2010) 86(275) The Economic Record 596.CrossRefGoogle Scholar See also Poynting, Scott and Noble, Greg, Living with Racism: The Experience and Reporting by Arab and Muslim Australians of Discrimination, Abuse and Violence since 11 September 2001, Report to the Human Rights and Equal Opportunity Commission (HREOC, 2004).Google Scholar
76 Brest, above n 39, 8.
77 This scenario is drawn from the facts of Fittler v New South Wales Electoral Commission (No 2) [2008] NSWADT 116.
78 See, for example: Disability Discrimination Act 1992 (Cth) s 11; Equal Opportunity Act 1984 (SA) s 84. This defence also applies to discrimination based on carer's responsibilities in NSW: Anti-Discrimination Act 1977 (NSW) s 49U.
79 While some legislation has defined indirect discrimination differently in recent years, this historical definition is often still applied, and will be considered in this paper. As stated earlier, positive or affirmative action will not be specifically considered.
80 McCrudden, above n 42.
81 Gardner, ‘Discrimination as Injustice', above n 42.
82 Gardner, John, ‘On the Ground of Her Sex(uality)’ (1998) 18(1) Oxford Journal of Legal Studies 167, 182.CrossRefGoogle Scholar
83 Gardner, ‘Liberals and Unlawful Discrimination', above n 22, 9.
84 Fredman, Discrimination Law, above n 45, 20.
85 This is the model of regulation of indirect discrimination used in most Australian legislation. For example, the Sex Discrimination Act 1984 (Cth) s 5(2) provides:
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
This provision is accessible by both men and women. The Racial Discrimination Act 1975 (Cth) s 9(1A) and the Age Discrimination Act 2004 (Cth) s 15 are both similarly neutral. However, the Disability Discrimination Act 1992 (Cth) is not neutral and only applies to indirect discrimination against the disabled. Section 6(1) of that Act provides:
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and (c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
86 See, eg, Disability Discrimination Act 1992 (Cth) s 6(3); Age Discrimination Act 2004 (Cth) s 15(1)(b); Racial Discrimination Act 1975 (Cth) s 9(1A)(a); Sex Discrimination Act 1984 (Cth) s 7B.
87 Brest, above n 39, 6.
88 This scenario is drawn from the facts of Tate v The Department of Education and Early Childhood Development (Anti-Discrimination) [2012] VCAT 973 (6 June 2012).
89 See, eg, Australian Institute of Health and Welfare, The Geography of Disability and Economic Disadvantage in Australian Capital Cities (AIHW, 2009).Google Scholar
90 As a consequence the disabled are less likely to: be in the labour force; be in the top 40 per cent of income distribution; have completed Year 12 or have a post-secondary qualification: Australian Government Productivity Commission, Review of the Disability Discrimination Act 1992, Report No 30 (2004) 37-8.
91 Gardner, ‘Liberals and Unlawful Discrimination', above n 22, 7.
92 See, eg, Disability Discrimination Act 1992 (Cth) s 11; Equal Opportunity Act 1984 (SA) s 84. This defence also applies to discrimination based on carer's responsibilities in NSW: Anti-Discrimination Act 1977 (NSW) s 49U.
93 Commonwealth and state examples can be found at: Sex Discrimination Act 1984 (Cth) s 7B; Anti-Discrimination Act 1977 (NSW) ss 7(1)(c), 24(1)(b), 38B(1)(c), 39(1)(b), 49B(1)(b), 49T(1)(b), 49ZG(1)(b) and 49ZYA(1)(b).
94 Thornton, The Liberal Promise, above n 14, 2.
95 Reg Graycar and Jenny Morgan ‘Equality Unmodified’ in Thornton, Sex Discrimination in Uncertain Times, above n 37, 177.
96 Nagel, above n 25, 227 (emphasis added).
97 Beth Gaze, ‘The Sex Discrimination Act at 25: Reflections on the Past, Present and Future’ in Thornton, Sex Discrimination in Uncertain Times, above n 37, 125.
98 However, even this example would not necessarily cross the threshold test for seriousness. If the individual concerned has a particular susceptibility to psychological injury it may be decided that the threshold of seriousness is not satisfied in context. In relation to other forms of harm other threshold issues may arise. For example, if determining whether a denial of opportunity is of sufficient seriousness to warrant intervention, even in the absence of other harms, it may be necessary to engage in consideration of the relative importance of the opportunity lost. This could potentially result in an effective hierarchy of rights: is limiting the right to family life more or less serious than the right to employment, or housing, or medical treatment? Consideration of whether such a hierarchy is appropriate and the potential consequences of such an approach is beyond the scope of this paper. However, it is worth noting that the Racial Discrimination Act 1975 (Cth) prohibits acts which restrict or deny human rights and fundamental freedoms, without imposing any hierarchy within such rights and freedoms. This is an approach which could be adopted in the current harmonisation process.
99 Fittler v New South Wales Electoral Commission (No 2) [2008] NSWADT 116; Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70; Abdulrahman v Toll Pty Ltd trading as Toll Express [2006] NSWADT 221.
100 Tate v The Department of Education and Early Childhood Development (Anti-Discrimination) [2012] VCAT 973 (6 June 2012).
101 Australian prohibitions of discrimination are enforced solely by private litigation and rely on the victim of discrimination to initiate a complaint: Rees, Neil, Lindsay, Katherine and Rice, Simon, Australian Anti-Discrimination Law: Text, Cases and Materials (The Federation Press, 2008) 7.Google Scholar
102 Gaze, above n 97.
103 This approach is consistent with the approach taken by the Supreme Court of Canada in its equality jurisprudence. See for example Law Society of British Columbia v Andrews [1989] 1 SCR 143 in which the Supreme Court first set out its substantive view of equality in Canadian law.
104 Alexander, Larry, ‘What Makes Wrongful Discrimination Wrong? Biases, Preferences, Stereotypes, and Proxies’ (1992) 141(1) University of Pennsylvania Law Review 149, 219.CrossRefGoogle Scholar
105 This is not to suggest that there will not be different social patterns of exclusion in some centres, but instead to suggest that within each state there are likely to be a range of patterns of social inclusion and exclusion. For example, there are likely to be different patterns in a regional centre as opposed to a capital city, however capital centres and regional centres between jurisdictions may be comparable.
106 For example, a transgendered person may suffer psychological injury as a result of being placed in a male prison when that is not their preferred sexual identification, whereas a heterosexual man may suffer psychological injury as a result of his incarceration, but this is not determined by his sex/gender status.
107 For example, every jurisdiction in Australia except South Australia and New South Wales prohibits discrimination based on religious belief or practice. However, such discrimination is not prohibited at Commonwealth level. Instead the Human Rights and Equal Opportunities Commission is given power to investigate and attempt to conciliate allegations that an act or practice of the Commonwealth is inconsistent with human rights, which includes the right to hold and manifest religious beliefs: Australian Human Rights Commission Act 1986 (Cth) ('AHRC Act’) s 11(1)(f) and s 3(1); International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1967) art 18. The Commission can also investigate and conciliate complaints of discrimination in employment or occupation on a number of specific grounds, including religion: AHRC Act s 31(b). However, no enforceable decision can be made in either of these areas. The differences between state/territory and federal laws will continue even at the conclusion of the federal consolidation project.
108 This argument is supported by the opening addresses to the 2009 conference to celebrate the twenty-fifth anniversary of the Sex Discrimination Act 1984 (Cth): Helen Watchirs, ‘Opening Address I’ and Susan Ryan, ‘Opening Address II’ in Thornton, Sex Discrimination in Uncertain Times, above n 37.
109 It is worth noting that calls for consistency of coverage in the field of anti-discrimination are not unique to the Australian context. In the United Kingdom repeated calls for a unified equality act led to the enactment of the Equality Act 2010 (UK).
110 Australian Government Productivity Commission, above n 90, 177.
111 The Commonwealth Parliament has no directly relevant head of power under which it could enact national discrimination legislation. Existing Commonwealth regulation of discrimination relies primarily upon the external affairs power: Australian Constitution 1901 (Cth) s 51 (xxix). However, in order to utilise this power to enact new legislation the federal parliament would be required to be giving effect at a domestic level to Australia's international obligations. This is potentially problematic, as it may prove to be an insufficient basis to support a comprehensive Commonwealth legislative regime which relates to the wide range of attributes in respect of which discrimination is currently prohibited around Australia. Current Commonwealth anti-discrimination legislation does not purport to displace or limit the operation of state anti-discrimination laws capable of operating concurrently: Age Discrimination Act 2004 (Cth) s 12; Sex Discrimination Act 1984 (Cth) s 10; Racial Discrimination Act 1975 (Cth) s 6A; Disability Discrimination Act 1992 (Cth) s 13. Clause 14 of the Exposure Draft of Human Rights and Anti-Discrimination Bill 2012 also provides for the continued operation of state and territory prohibitions of discrimination.
112 Australian Constitution 1901 (Cth) s 51(xxxvii). Historically, the states have referred power over industrial relations, corporations, terrorism law and the Murray Darling basin: see, eg, Commonwealth Powers (Industrial Relations) Act 1996 (Vic); Terrorism (Commonwealth Powers) Act 2002 (SA).
113 Nolan suggests this could be done by a ‘legislative compact’ according to which ‘anti-discrimination legislation of identical effect is passed in all Australian jurisdictions': Nolan, Mark, ‘Some Legal and Psychological Benefits of Nationally Uniform and General Anti-Discrimination Law in Australia’ (2000) 6(1) Australian Journal of Human Rights 79, 80.CrossRefGoogle Scholar
114 Options two and three are both beset with practical obstacles. The decision to refer power and the terms and conditions of the referral remain with the states: R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207. It is unlikely that the states/territories would be persuaded to refer power over discrimination to the Commonwealth. In addition, a State may revoke the referral at a future time. The enactment of uniform legislation around Australia also poses problems. The time required to negotiate an agreement and settle legislation could be considerable, and there is always a risk that uniformity will not be maintained over time as amendments within one jurisdiction are not replicated in another.
115 Bamforth, Malik and O'Cinneide, above n 17, 172.