Editorial
| DOI | http://doi.org/10.1177/1358229118762215 |
| Published date | 01 March 2018 |
| Date | 01 March 2018 |
| Subject Matter | Editorial |
Editorial
Editorial 18(1)
In this issue Therese MacDermott examines the problems in pursuing federal anti-
discrimination proceedings in Australia, where complaints are pursued on the basis of
the individual’s private rights or interests and the complaint is treated as one between the
parties, although the results of litigation are likely to affect others in the community with
the same characteristic, as well as the broa der standards. She argues that collectiv e
means of pursuing complaints are under-developed. The current approach adopted by
the courts has left NGOs and public interest groups unable to help relieve the burden on
individuals seeking redress. Her article examines the limited use of representative pro-
ceedings to pursue discrimination complaints and identifies the lack of empowerment of
the federal human rights agency, the Australian Human Rights Commission, to pursue
test case litigation or to assist complainants with litigation. Under the statutory frame-
work the burden falls exclusively on the individual experiencing discriminatory conduct
to pursue the matter, while public interest groups and NGOs have been excluded from
anti-discrimination proceedings. Class actions or representative complaints are rarely
used because of their complexity and their limited remedies. At present the Commission
has limited powers to intervene. The failure to give powers to anti-discrimination agen-
cies is an oversight of Australian anti-discrimination law. MacDermott argues that
statutory change is needed to address the issue.
Dondoli also considers the role of NGOs, but focuses on their efforts to persuade
the courts to recognise indirect discrimination on the grounds of sexual orientation
against same sex couples. She claims that NGOs have had an important role in
influencing both the court and the debate and discusses the decision in Taddeucci
and McCall v Italy in 2016, where the Strasbourg Court recognised that an unmar-
ried same sex couple is discriminated against when not allowed to attain the rights
and benefits attached to marriage. One of the applicants had been denied a family
residence permit and the applicants argued their situation was quite different from
an unmarried different sex couple because the marriage requirement is an insur-
mountable obstacle, given that Italy does not recognise same sex marriage and has
only recently recognised civil unions. The Strasbourg Court has now accepted that
unmarried same sex couples are discriminated against on the grounds of their sexual
orientation and are treated less favourably than married different sex couples.
Dondoli also notes the implications of this decision for the right to form a family
and access to adoption and assisted reproductive treatments.
International Journalof
Discrimination and theLaw
2018, Vol. 18(1) 3–4
ªThe Author(s) 2018
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DOI: 10.1177/1358229118762215
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