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Sex Discrimination, Courts and Corporate Power

Published online by Cambridge University Press:  24 January 2025

Margaret Thornton
Margaret Thornton*
Affiliation:
ANU College of Law, Australian National University
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Extract

The concept of equality has been a familiar tenet of democratic theory since antiquity, but it has always been a skewed notion. In Athens, the birthplace of democracy (demokratia: the power of the people), women and slaves were excluded from ‘the people’ so far as life in the polis was concerned. Aristotle believed that this exclusion was justified because women and slaves were inferior in phusei (by their natures). The idea that ‘justifiable’ discrimination may be invoked selectively to derogate from equality continues to be the case today. What is justifiable is determined by those with power, just as it always has been. Equality between human beings, therefore, is a contingent and permeable notion; absolute equality belongs only in the world of the quantifiable and the mathematical. While women and Others have been ‘let in’ to public life, the heritage of the past continues to lie like a dead weight on equal participation.

Type
Research Article
Information
Federal Law Review , Volume 36 , Issue 1 , March 2008 , pp. 31 - 56
Copyright
Copyright © 2008 The Australian National University

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Footnotes

A version of this article was presented at Governing (and Representing) Women: Local, National and Global Approaches, Centre for International & Public Law, Australian National University, 2 November 2006. I thank Kim Rubenstein for organising the event. Thanks also to Trish Luker for assistance with the gathering of statistical data and to the Australian Research Council for financial assistance.

References

1 Aristotle, Politics (John Warrington ed & trans 1961 ed) §1254.

2 For a thoroughgoing discussion of the persistence of inequality, see Sandra Berns, Women Going Backwards: Law and Change in a Family Unfriendly Society (2002), especially ch 1.

3 State legislation preceded that of the Commonwealth. See Sex Discrimination Act 1975 (SA); Equal Opportunity Act 1977 (Vic); Anti-Discrimination Act 1977 (NSW) (‘ADA (NSW)’); Sex Discrimination Act 1984 (Cth) (‘SDA’).

4 Coverture, in which a woman entered into a state of civil death on marriage, is a startling example, captured most famously by Blackstone: ‘By marriage, the husband and wife are one person in law…’: William, Blackstone, Commentaries on the Laws of England (first published 1765–69, 1979 ed) 442Google Scholar. See also Mary, Lyndon Shanley, Feminism, Marriage, and the Law in Victorian England, 1850–1895 (1989)Google Scholar.

5 The moral conservatives included women too, most notably the anti-feminist Women Who Want to be Women. See Susan, Magarey, ‘The Sex Discrimination Act 1984’ (2004) 20 Australian Feminist Law Journal 127Google Scholar.

6 The Equal Opportunities Commission in the United Kingdom has been invested with stronger powers under the revamped Sex Discrimination Act 1975 (UK). HREOC has published numerous reports, developed guidelines and codes of practice to encourage compliance but they do not have the same clout. See, eg, Belinda, Smith, ‘A Regulatory Analysis of the Sex Discrimination Act 1984 (Cth): Can it Effect Equality or Only Redress Harm?’ in Christopher, Arup et al, Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (2006) 121–23Google Scholar.

7 Robert, Cover, ‘Nomos and Narrative’ (1983) 97 Harvard Law Review 4, 11Google Scholar.

8 Regina, Graycar, ‘The Gender of Judgments: An Introduction’ in Margaret, Thornton (ed), Public and Private: Feminist Legal Debates (1995) 262, 275Google Scholar.

9 Cf Rosemary, Hunter, Indirect Discrimination in the Workplace (1992)Google Scholar.

10 Cover, above n 7, 12–13.

11 Justice Michael Kirby of the High Court is a notable exemplar. See, eg, his comments in New South Wales v Amery (2006) 226 ALR 196 (‘Amery’).

12 Balfour v Balfour [1919] 2 KB 571 represents a clear judicial statement of the classic position. See also Jeff, Weintraub and Krishan, Kumar (eds), Public and Private in Thought and Practice: Perspectives on a Grand Dichotomy (1997)Google Scholar; Margaret, Thornton (ed), Public and Private: Feminist Legal Debates (1995)Google Scholar.

13 Human Rights and Equal Opportunity Commission, It’s About Time: Women, Men, Work and Family, Final Paper (2007) xi. The work/life balance has attracted extensive commentary in recent years. See, eg, Berns, above n 2; Barbara, Pocock, The Work/Life Collision: What Work is Doing to Australians and What to Do About It (2003)Google Scholar; Belinda, Smith and Joellen, Riley, ‘Family–friendly Work Practices and the Law’ (2004) 26(3) Sydney Law Review 395Google Scholar; Jill Murray (ed), Work, Family and the Law (2005) 23(1) Law in Context (Special Issue).

14 Margaret, Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990)Google Scholar.

15 For example, while 1779 complaints on all grounds were received by HREOC in 2006–07 (Human Rights and Equal Opportunity Commission, Annual Report 2006–07 (2007) 65), there were only 13 hearings by the Federal Magistrates Court of Australia of complaints declined by HREOC on all grounds in the same year. Data extracted from Federal Magistrates Court website at 29 February 2008 <http://www.austlii.edu.au/au/cases/cth/FMCA/>). While the Federal Court also has jurisdiction to hear terminated complaints (Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO), the matters heard by it tend to be of an appellate nature. Data extracted from Federal Court of Australia website at 29 February 2008 <http://www.austlii.edu.au/au/cases/cth/FCA/>.

16 In 2006/07, HREOC received 995 complaints under the SDA. See Human Rights and Equal Opportunity Commission, Annual Report 2006–2007 (2007) 75.

17 In 2006–2007, a total of 1342 complaints were lodged under the state and territory agencies on the ground of sex and cognate grounds (including sexual harassment and pregnancy) comprising: 240 complaints under the ADA (NSW) (Anti-Discrimination Board of NSW, Annual Report 2006–2007 (2007) 16); 434 under the Equal Opportunity Act 1995 (Vic) (Victorian Equal Opportunity & Human Rights Commission, Annual Report 2006/2007 (2007) 36); 255 under the Anti-Discrimination Act 1991 (Qld) (Anti-Discrimination Commission Queensland, Annual Report 2006-2007 (2007) 13); 86 under the Equal Opportunity Act 1994 (SA) (telephone communication with the Equal Opportunity Commission of South Australia, 29 February 2008); 171 under the Equal Opportunity Act 1984 (WA) Equal Opportunity Commission, Annual Report to Parliament 2006–2007 (2007) 26); 138 under the Anti-Discrimination Act 1998 (Tas) (Office of the Anti-Discrimination Commissioner, Tasmania, Eighth Annual Report 2006/2007 (2007) 19); 33 under the Discrimination Act 1991 (ACT) (Human Rights Commission, Annual Report 2006–2007 (2007) 17); 39 under the Anti-Discrimination Act 1992 (NT) (Northern Territory Anti-Discrimination Commission, Annual Report 2006–2007 (2007) 27).

18 Beth, Gaze, ‘The Costs of Equal Opportunity’ (2000) 25(3) Alternative Law Journal 125, 126, 128Google Scholar.

19 Decisions from primary hearings are generally reported in the CCH, Australian & New Zealand Equal Opportunity Law and Practice, although the current tendency is to digest them.

20 I will use the term ‘respondent’ to refer to the corporate party as that is their status in the original complaint, even though they are more likely to be appellants or applicants at the appellate level.

21 Marc, Galanter, ‘Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change’ (1974–5) 9(1) Law & Society Review 95Google Scholar.

22 Margaret, Thornton, ‘Towards Embodied Justice: Wrestling with Legal Ethics in the Age of the New Corporatism’ (1999) 23(3) Melbourne University Law Review 749Google Scholar.

23 Gaze suggests that the neutrality in drafting was deliberately designed to ‘avoid acknowledging the asymmetrical reality of social disadvantage’. See Beth, Gaze, ‘Context and Interpretation in Anti-Discrimination Law’ (2002) 26(2) Melbourne University Law Review 325, 329Google Scholar.

24 See, eg, Thornton, above n 14. Recent analyses include Margaret, Thornton, ‘Feminism and the Changing State: The Case of Sex Discrimination’ (2006) 21(50) Australian Feminist Studies 151Google Scholar. For a succinct doctrinal overview, see Chris, Ronalds and Rachel, Pepper, Discrimination Law and Practice (2nd ed, 2004)Google Scholar.

25 Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 513 (entered into force 3 September 1981) (‘CEDAW’).

26 The principle of neutrality was upheld following a constitutional challenge in Aldridge v Booth (1988) 80 ALR 1.

27 The notion of gender neutrality is also accepted by all Australian State legislation.

28 Aristotle, above n 1, §1282b.

29 Gaze, above n 23, 335.

30 Jonathon, Hunyor, ‘Skin-Deep: Proof and Inferences of Racial Discrimination in Employment’ (2003) 25(4) Sydney Law Review 535Google Scholar. He discusses the evidentiary standard of ‘reasonable satisfaction’ that was established by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. This standard entails something more than the normal civil standard based on the balance of probabilities, for it requires regard to be paid to the seriousness of the allegation.

31 The same phenomenon is familiar in respect of race complaints. See Hunyor, above n 30; Beth, Gaze, ‘Has the Racial Discrimination Act contributed to Eliminating Racial Discrimination? Analysing the Litigation Track Record 2000–2004’ (2005) 11(1) Australian Journal of Human Rights 6Google Scholar.

32 In 2006–07, 81 per cent of complaints lodged with HREOC under the SDA were on the ground of employment. See Human Rights and Equal Opportunity Commission, Annual Report 2006–2007 (2007) 65Google Scholar.

33 See above n 12.

34 For critiques of contemporary developments in these fields, see Regina, Graycar & Jenny, Morgan, The Hidden Gender of Law (2nd ed, 2002)Google Scholar, chs 10–11; Australian Law Reform Commission, Equality Before the Law: Justice for Women, Report No 69 (1994), Part I, chs 8–12.

35 Australia ratified ILO Convention No. 156 Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, opened for signature 23 June 1981, (entered into force 11 August 1983) in 1990. In 1992, the ground of family responsibilities was included as a proscribed ground within the SDA. All states and territories, except South Australia, now include parental status, or a cognate term, as a ground in their anti-discrimination legislation: ADA (NSW) s 49S; Equal Opportunity Act 1995 (Vic) s 6(ea); Anti-Discrimination Act 1991 (Qld) s 7(1)(d); Equal Opportunity Act 1984 (WA) s 35A; Anti-Discrimination Act 1998 (Tas) s 16(i); Discrimination Act 1991 (ACT) s 7(1)(e); Anti-Discrimination Act 1992 (NT) s 19(1)(g).

36 As a result of ongoing criticism of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 (Cth) was introduced and referred to the Standing Committee on Education, Employment and Workplace Relations for report: see the Senate Standing Committee on Education, Employment and Workplace Relations, Parliament of Australia, Workplace Relations Amendment (Transition to Forward with Fairness) Bill [Provisions] (2008).

37 (2006) 226 ALR 196.

38 (2004) 8 VR 120.

39 Bob, Walker and Betty, Con Walker, Privatisation Sell Off or Sell Out? The Australian Experience (2000)Google Scholar.

40 Galanter, above n 21, 123 ff.

41 It is startling to find the general principle of the anti-discrimination jurisdiction that each party bear its own costs at the tribunal level now being undermined in sexual harassment complaints, if the complainant is unable to prove her case to the requisite standard. For example, in Prolisko v Knight (Anti Discrimination) [2006] VCAT 2046 (3 January 2006), a young woman who was only 16 at the time of the alleged conduct, not only had her complaint dismissed, despite some corroborating evidence, but was ordered to pay $10 000 towards the respondents’ costs. In another unsuccessful sexual harassment complaint before the Victorian Civil and Administrative Tribunal, the complainant was ordered to pay 50 per cent of the costs and disbursements of both respondents. See Gonsalves v MAS National Apprenticeship Services Costs (Anti Discrimination) [2007] VCAT 64 (5 January 2007).

42 Stella, Tarrant, ‘Reasonableness in the Sex Discrimination Act: No Package Deals’ (2000) 19(1) University of Tasmania Law Review 38Google Scholar. Cf Gaze, above n 23, especially 331–333.

43 Martin, Loughlin, Public Law and Political Theory (1992) 20–21, 230Google Scholar.

44 Hart, one of the major exponents of legal positivism, seeks to draw a line between law and history, law and politics, and law and social values of all kinds, including law and morality: H L A, Hart, The Concept of Law (1961)Google Scholar 253n.

45 Bentham, Austin and Dicey are exemplary. See Loughlin, above n 42.

46 Gaze, above n 23, 338–40; Robert Thomson, The Judges (1987) especially 37–43.

47 Women comprised 26 per cent of all judges and magistrates in October 2006. See Australian Institute of Judicial Administration, Judges and Magistrates (% of Women) (March 2008) <http://www.aija.org.au/index.php?option=com_content&task=view&id=32&Itemid=121> at 3 March 2008.. This contrasts with a figure of 8.7 per cent in 1995. See Australian Institute of Judicial Administration Incorporated figures in Margaret, Thornton, Dissonance and Distrust: Women in the Legal Profession (1996) 294Google Scholar.

48 Cf Sandra, Berns, To Speak as a Judge: Difference, Voice and Power (1999) 159Google Scholar.

49 Margaret, Thornton, ‘Auditing the Sex Discrimination Act’ in Marius, Smith (ed), Human Rights 2004: The Year in Review (2005) 21Google Scholar.

50 See, eg, John, Gava, ‘The Rise of the Hero Judge’ (2001) 24(3) University of New South Wales Law Journal 747Google Scholar; JusticeJ D, Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23(2) Australian Bar Review 110Google Scholar; Frank, Carrigan, ‘A Blast from the Past: The Resurgence of Legal Formalism’ (2003) 27(1) Melbourne University Law Review 163Google Scholar; John, Gava, ‘Another Blast from the Past or Why the Left Should Embrace Strict Legalism: A Reply to Frank Carrigan’ (2003) 27(1) Melbourne University Law Review 186Google Scholar; Tom, Campbell, ‘Judicial Activism ― Justice or Treason?’ (2003) 10(3) Otago Law Review 307Google Scholar; JusticeMichael, Kirby, ‘Judicial Activism: Power without Responsibility? No, Appropriate Activism Conforming to Duty’ (2006) 30(2) Melbourne University Law Review 576Google Scholar.

51 I drew attention to the active role of judges in the construction of Aboriginal people as Others in Margaret, Thornton, ‘Citizenship, Race and Adjudication’ in Tom, Campbell and Jeffrey, Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (2000) 335Google Scholar.

52 The question of who is the appropriate comparator has been thrown into disarray by Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92, a complaint arising under the Disability Discrimination Act 1992 (Cth). The majority judges in the High Court held that the appropriate (hypothetical) comparator was a person without a disability who nevertheless acted in the same way as the complainant, rather than simply a person without the disability. The majority judges’ constitution of the comparator has ramifications for all direct discrimination cases. For analysis, see Jacob, Campbell, ‘Using Anti-Discrimination Law as a Tool of Exclusion: A Critical Analysis of the Disability Discrimination Act 1992 and Purvis v NSW’ (2005) 5 Macquarie Law Journal 201Google Scholar.

53 See, eg, Dothard v Rawlinson, 433 US 321 (1977).

54 This is where affirmative action (AA) is, or was, supposed to step into the breach. Affirmative action was excised from the equal opportunity discourse in 1999. See Margaret, Thornton, ‘EEO in a Neo-Liberal Climate’ (2001) 6(1) Journal of Interdisciplinary Gender Studies 77Google Scholar.

55 But see above n 52.

56 For a sustained analysis of the elements of indirect discrimination generally, see Hunter, above n 9.

57 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237.

58 (1989) 168 CLR 165.

59 (2006) 226 ALR 196.

60 (1980) 142 CLR 237.

61 Thornton, ‘Towards Embodied Justice’, above n 22.

62 Wardley (1980) 142 CLR 237, 250–53.

63 Ibid 280 (Aickin J).

64 (1989) 168 CLR 165.

65 Najdovska v Australian Iron & Steel Pty Ltd (1985) 12 IR 250.

66 Australian Iron & Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587.

67 Banovic (1989) 168 CLR 165.

68 (1980) 142 CLR 237.

69 (1989) 168 CLR 165.

70 Julius Stone, Legal System and Lawyers’ Reasonings (1968) 325-30 et passim.

71 (1980) 142 CLR 237.

72 Banovic (1989) 168 CLR 165, 206 (McHugh J; Brennan J agreeing).

73 Banovic (1989) 168 CLR 165, 180 (Deane and Gaudron JJ), 191 (Dawson J).

74 (2006) 226 ALR 196.

75 (1989) 168 CLR 165.

76 (1980) 142 CLR 237.

77 See, eg, Pocock, above n 13; Catherine, Hakim, Key Issues in Women’s Work: Female Diversity and the Polarisation of Women’s Employment (2nd ed, 2004)Google Scholar.

78 Of particular note are the race and disability cases: Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Mabo v Queensland (No 2) (1992) 175 CLR 1; Wik Peoples v Queensland (1996) 187 CLR 1; Waters v Public Transport Corporation (1991) 173 CLR 349.

79 (2006) 226 ALR 196.

80 Simpson makes this argument with particular reference to the provisions dealing with the non-discrimination principle in the Australian Constitution. See Amelia, Simpson, ‘The High Court’s Conception of Discrimination: Origins, Applications, and Implications’ (2007) 29(2) Sydney Law Review 263Google Scholar, especially 278.

81 This was a source of dispute in an initial hearing before the New South Wales Administrative Decisions Tribunal (ADT), based on a decision of the Industrial Commission of NSW in 1983, but the ADT found that there was little or no discernible difference in the tasks or responsibilities of teachers, whether permanent or supply casual; see Amery v New South Wales (2001) EOC ¶93–130 (NSW ADT) 75 289.

82 It was only in 1994 that industrial awards and agreements in New South Wales were required to comply with the ADA. It was previously a defence to a complaint of discrimination to argue that it was necessary to comply with an award or agreement. The retention of this exception would have precluded the successful pursuit of a discrimination complaint.

83 Amery v New South Wales (2001) EOC ¶93–130 (NSW ADT).

84 New South Wales v Amery (2003) 129 IR 300.

85 Amery v New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404.

86 Amery (2006) 226 ALR 196.

87 Amery (2006) 226 ALR 196, 213-14; relying on the interpretation of Lee J in Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47, 55.

88 Amery (2006) 226 ALR 196, 214.

89 Ibid 230 (Kirby J).

90 Ibid.

91 Amery (2006) 226 ALR 196, 213.

92 Ibid.

93 Amery v NSW (2001) EOC ¶93–130 (NSW ADT) 75 290 (P King (Judicial Member), K Edwards and O McDonald (Members)).

94 Banovic (1989) 168 CLR 165, 180 (Deane and Gaudron JJ), 191 (Dawson J).

95 (2006) 226 ALR 196.

96 Judy, Fudge and Rosemary, Owens (eds), Precarious Work, Women, and the New Economy: The Challenge to Legal Norms (2006)Google Scholar.

97 Katherine, V W Stone, From Widgets to Digits: Employment Regulation for the Changing Workplace (2004)Google Scholar; Rosemary, Owens and Joellen, Riley, The Law of Work (2007)Google Scholar.

98 Julius, Stone, Human Law and Human Justice (1965) 328Google Scholar.

99 See, eg, SDA, s 7B; Equal Opportunity Act 1995 (Vic) s 9(2).

100 As in the case of the SDA, s 7C. This amendment, effected in 1995, is one of the few acknowledgements of the virtually insuperable burden confronted by complainants.

101 See, eg, Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, 263 (Bowen CJ and Gummow J); Waters v Public Transport Corporation (1991) 173 CLR 349, 395–6 (Dawson and Toohey JJ).

102 Amery (2006) 226 ALR 196, 203 (Gleeson CJ).

103 The onus of proving a condition to be unreasonable lies with the complainant under the ADA (NSW). The onus was reversed by SDA s 7C in 1995.

104 Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 (Commonwealth Bank).

105 (2004) 8 VR 120.

106 Amery (2006) 226 ALR 196; see also, most notably Purvis v New South Wales (2003) 217 CLR 92, and above n 52.

107 Berns, Women Going Backwards, above n 2, ch 2.

108 See, eg, Waters v Public Transport Corporation (1991) 173 CLR 349, 395 (Dawson and Toohey JJ).

109 Commonwealth Bank (1997) 80 FCR 78..

110 Finance Sector Union v Commonwealth Bank of Australia (1997) EOC ¶92–889 (HREOC).

111 Commonwealth Bank (1997) 80 FCR 78, 113 (Sackville J).

112 Ibid.

113 Tarrant, above n 42.

114 Ibid 47.

115 (1991) 173 CLR 349.

116 (1997) 80 FCR 78, 84–85 (Davies J); 90–91 (Beaumont J); 110–12 (Sackville J).

117 Amery (2006) 226 ALR 196.

118 Cf Rosemary, Hunter, ‘The Mirage of Justice: Women and the Shrinking State’ (2002) 16 Australian Feminist Law Journal 53, 63–65Google Scholar.

119 Schou (2004) 8 VR 120.

120 Australia ratified ILO Convention No. 156 Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, opened for signature 23 June 1981, (entered into force 11 August 1983) in 1990. In 1992, the ground of family responsibilities was included as a proscribed ground within the Sex Discrimination Act 1984 (Cth). All states and territories, except South Australia, now include parental status, or a cognate term, as a ground in their anti-discrimination legislation: Anti-Discrimination Act 1977 (NSW) s 49(s); Equal Opportunity Act 1995 (Vic) s 6(ea); Anti-Discrimination Act 1991 (Qld) s 7(1)(d); Equal Opportunity Act 1984 (WA) s 35A; Anti-Discrimination Act 1998 (Tas) s 16(i); Discrimination Act 1991 (ACT) s 7(1)(e); Anti-Discrimination Act 1992 (NT) s 19(1)(g).

121 (1997) 80 FCR 78.

122 Schou v Victoria (Department of Parliamentary Debates) (2000) EOC ¶93–101 (VCAT); Schou v Victoria (Department of Parliamentary Debates) (2002) EOC ¶93–217 (VCAT).

123 Victoria v Schou (2001) 3 VR 655.

124 Schou (2004) 8 VR 120.

125 Gaze, above n 23; cf K, Lee Adams, ‘A Step Backward in Job Protection for Carers’ (2002) 15(1) Australian Journal of Labour Law 93Google Scholar; K, Lee Adams, ‘Indirect Discrimination and the Worker-Carer: It’s Just not Working’ in Jill, Murray (ed), Work, Family and the Law (2005) 23(1) Law in Context (Special Issue) 18Google Scholar.

126 While Callaway J dissented, his decision is brief and somewhat cryptic. Schou (2004) 8 VR 120, 136–37.

127 (2006) 226 ALR 196.

128 Schou (2004) 8 VR 120, 128 (Phillips JA).

129 Deborah Schou v Victoria (2000) EOC ¶93–100 (VCAT), 74 424; Schou v Victoria Melb (Department of Parliamentary Debates) (2002) EOC ¶93–217 (VCAT), 76 507–509.

130 EOA 1995 s 9(2).

131 Waters v Public Transport Corporation (1991) 173 CLR 349, 393 (Dawson and Toohey JJ).

132 See, eg, Peter, Self, Government by the Market? The Politics of Public Choice (1993)Google Scholar.

133 Schou (2004) 8 VR 120, 137.

134 Victoria v Schou (2001) 3 VR 655, 661 (Harper J).

135 Such a strict view was adopted in Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92, a direct discrimination complaint involving a complainant with a disability. See above n 52.

136 Sara, Charlesworth, ‘Working Mums: The Construction of Women Workers in the Banking Industry’ (1999) 4(2) Journal of Interdisciplinary Gender Studies 12Google Scholar.

137 Amery (2006) 226 ALR 196, 219.

138 See, eg, Lucas, A Powe Jr, The Warren Court and American Politics (2000)Google Scholar.

139 The trend began with the cause célèbre of Regents of the University of California v Bakke, 438 US 265 (1978), in which the Supreme Court struck down quotas for racial minorities in terms of admission to medical school but upheld a commitment to diversity as legitimate. A qualified commitment to diversity has been maintained in more recent years. See, eg, Grutter v Bollinger 539 US 982 (2003), a case involving a white woman who was unsuccessful in her application for admission to law school. More recently, concern has been expressed regarding the likely effect of the appointment of several ultra-right wing judges to the United States Supreme Court. See Ronald Dworkin, ‘The Supreme Court Phalanx’, New York Review of Books, (New York), Vol 54(14), 27 September 2007, 92.

140 Mary Anne Noone and Stephen A Tomsen, Lawyers in Conflict: Australian Lawyers and Legal Aid (2006), especially ch 6; Regina, Graycar and Jenny, Morgan, ‘Disabling Citizenship: Civil Death for Women in the 1990s’ (1995) 17(1) Adelaide Law Review 49Google Scholar; Hunter above n 9, 66–69.

141 National Pro Bono Resource Centre, Mapping Pro Bono in Australia (2007); Christopher, Arup and Kathy, Laster (eds) ‘For the Public Good’ (2001) 19 Law in ContextGoogle Scholar (Special Issue).

142 The Victorian Attorney-General, Mr Rob Hulls, referred the matter on to Ms Monica Gould, President of the Victorian Legislative Council, for attention. Letter from Rob Hulls to Margaret Thornton, 25 May 2004. It would appear that no action was taken.

143 Amery (2006) 226 ALR 196. See also Purvis v New South Wales (2003) 217 CLR 92. The NSW Department of Education and Department of Technical and Further Education, in its various incarnations, has figured disproportionately in discrimination hearings for almost thirty years, beginning with Harrison v TAFE [1979] NSW Anti-Discrimination Board (Unreported, 19 June 1979), discussed in Margaret, Thornton, ‘Board’s First Decision’ (1979) 4 Legal Service Bulletin 180Google Scholar.

144 Schou (2004) 8 VR 120.

145 Adams, ‘Indirect Discrimination and the Worker-Carer’, above n 125.

146 The narrow positivism that has been invoked to delimit sex discrimination complaints in the past decade has also affected complainants in other areas of discrimination law, particularly disability. See, eg, IW v City of Perth (1997) 191 CLR 1; X v The Commonwealth (1999) 200 CLR 177; Purvis v New South Wales (2003) 217 CLR 92.

147 It is notable that there has been a cessation of successful race discrimination cases before the High Court since the controversial decision of Wik Peoples v Queensland (1996) 187 CLR 1.

148 Koowarta v Bjelke-Petersen (1982) 153 CLR 168.

149 Mabo v Queensland (No 2) (1992) 175 CLR 1.

150 Jocelynne, A Scutt, ‘Without Precedent: Sex/Gender Discrimination in the High Court’ (2003) 28(2) Alternative Law Journal 74Google Scholar.

151 Justice Kirby has remarked on the change of heart of the High Court towards complainants in discrimination cases over the last decade in Amery (2006) 226 ALR 196, 217–18..

152 (2006) 226 ALR 196.

153 For example, Waters v Public Transport Corporation (1991) 173 CLR 349, 394 (Dawson and Toohey JJ).

154 SDA s 3(d).

155 Thornton, The Liberal Promise, above n 14, 245.

156 (1980) 142 CLR 237.

157 (1989) 168 CLR 165.

158 (2006) 226 ALR 196.

159 (1997) 80 FCR 78.

160 (2004) 8 VR 120.