Can A Theoretical Consideration of Australia's Anti-Discrimination Laws Inform Law Reform?

AuthorAnne Hewitt
Publication Date01 March 2013
DOI10.22145/flr.41.1.2
SubjectArticle
ORIGINALISM IN CONSTITUTIONAL INTERPRETATION
CAN A THEORETICAL CONSIDERATION OF
AUSTRALIA'S ANTI-DISCRIMINATION LAWS INFORM
LAW REFORM?
Anne Hewitt
ABSTRACT
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.
INTRODUCTION
Australian anti-discrimination law is at a crossroads. After decades of each jurisdiction
developing and expanding their own legislative regimes,1 harmonising and
consolidating anti-discrimination laws is on the national agenda.
In 2008 a three-stage plan for harmonisation of Australia's anti-discrimination laws
was proposed by the Standing Committee of Attorneys-General (now the Standing
Council on Law and Justice).2 The first stage, enhancing access to information and to
complaint handling procedures in all jurisdictions, was accomplished through the
_____________________________________________________________________________________
 Senior Lecturer, University of Adelaide Law School. 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
Chris Ronalds and Elizabeth Raper, Discrimination Law and Practice (Federation Press, 4th
ed, 2012) ch 1.
2
The Standing Committee of Attorneys-General, Summary of Decisions – July 2008, NSW
Lawlink Attorney-General and Justice, 1 _decisions.html> at April 11, 2013.


36
Federal Law Review
Volume 41
____________________________________________________________________________________
creation of a national anti-discrimination information gateway.3 The second stage,
implementing medium term legislative and policy reform, is being progressed through
the development of 'legislation harmonising and consolidating Commonwealth anti-
discrimination laws to remove unnecessary regulatory overlap, address inconsistencies
across laws and make the system more user-friendly'.4 This will entail replacing the
existing federal anti-discrimination Acts with a single consolidated statute.5 An
extensive public consultation on this process was completed in February 20126 and a
draft uniform Act was released for consultation in November 2012.7 On 21 November
2012 the Senate referred the Exposure Draft of the Human Rights and Anti-
Discrimination Bill 2012 for inquiry and the Senate Standing Committee on Legal and
Constitutional Affairs released a report on 13 February 2013.8 However, it appears that
the harmonisation agenda has stalled here.9 Stage two of the harmonization process is
not complete, the third and final stage of the harmonisation process has not yet begun
and harmonisation of discrimination laws has fallen off the priorities of the Standing
Council on Law and Justice.10 For the final stage of the harmonisation project the Anti-
Discrimination Law Harmonisation Working Group was tasked with identifying
'options for reform that examine opportunities for (and obstacles to) substantive
reforms to anti-discrimination laws, procedures, and institutional and/or co-operative
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3
The gateway can be accessed at .
4
Attorney-General's Department, Australia's Human Rights Framework (2010) 9

estudy/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) .
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) ConsolidationofCommonwealthanti-discriminationlaws/Consolidation%20of%20
Commonwealth%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) 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:

discriminationlaws.aspx> at 12 April 2013.
10 Standing Council on Law and Justice, Annual Report 2011-2012 (2012) 2
l_reports.html>.


2013
Theoretical Consideration of Australia's Anti-Discrimination Laws and Law Reform
37
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arrangements'.11 The trajectory of the harmonisation process so far suggested that this
final stage would have focused on creating a nationally consistent legislative regime,
which would necessitate consideration of the continued role and content of state and
territory anti-discrimination legislation.
While the harmonisation and consolidation projects have generated, and continue
to generate, substantial consideration of options for improving Australia's anti-
discrimination laws, this attention has been largely practical in its focus.12 A practical
consideration of the limitations of the existing anti-discrimination regimes, and of
future reforms, is certainly important. However, examining Australia's anti-
discrimination laws from a theoretical perspective could also prove to be useful. To
date there has been no significant theoretical consideration associated with the reform
process, or consideration of the utility of such an examination. This article aims to
contribute to the process of filling that gap.
It will do so by utilising a modified version of what Sen describes as a case-
implication critique. By that term Sen refers to a process by which a moral principle
can be critiqued by applying it to practical scenarios and examining its implications
against our intuition.13 In this article the methodology of case-implication critique is
utilised in two ways. First, it is used to evaluate two justifications of anti-
discrimination law. This is consistent with Sen's approach in that it facilitates rigorous
critique of theory. Secondly, the methodology is extended beyond critique of theory to
an evaluation of the practical operation of regulation of discrimination by application
of specific justifications to practical discrimination scenarios. The outcome of this
analysis facilitates a critical evaluation of the operation and scope of existing
prohibitions of discrimination, which is relevant to the ongoing harmonisation project.
Part I of the article considers the relationship between liberalism and anti-
discrimination law and examines a number of the theoretical justifications which have
been proposed for anti-discrimination laws in a liberal state. Two of these justifications
(harm and redistributive justice) are then evaluated via case-implication critique in
Parts II and III. In Part IV the case-implication critique is extended by examining the of
the extent to which the harm justification legitimises legislative intervention to restrict
discrimination. This analysis is relevant to the federal discrimination law consolidation
project. In Part V, an extended case-implication critique is used to determine whether
state and territory anti-discrimination regimes have a legitimate continuing role in
Australia's legislative landscape. This analysis would have been applicable to Stage 3
of the harmonisation process, which has lapsed, but remains relevant to any future
reform of regulation of discrimination in Australia.
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11 SCAG, above n 2.
12 See, eg, submissions regarding creation of a unified Commonwealth Anti-Discrimination
Act: discriminationlaws.aspx>.
...

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