Sex Discrimination, Courts and Corporate Power

AuthorMargaret Thornton
Publication Date01 March 2008
Margaret Thornton*
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).1 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
To address the more egregious manifestations of sex discrimination in accordance
with the prevailing liberal commitment to formal equality, legislation proscribing sex
discrimination first appeared in Australia in the 1970s and 1980s.3 This was ostensibly
radical legislation as the common law had never recognised the concept of
discrimination. Indeed, the common law had been engaged in reifying regimes of
discrimination against women and disfavoured Others for centuries.4
* Professor of Law, ARC Professorial Fellow, ANU College of Law, Australian National
University. 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.
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
32 Federal Law Review Volume 36
It is testament to society's faith in the beneficence and neutrality of the courts that
we accept judges as the arbiters of the non-discrimination principle, just as we
accepted them a mere nanosecond ago as the arbiters of discrimination. Herein lies
the nub of the problem, even though it may appear somewhat paradoxical to argue
that a legislative instrument that purports to be progressive and remedial can in fact
exert a deeply conservative effect. In one sense, of course, this is unsurprising as the
legislature may have to accommodate multiple divergent interests in the one
instrument. In the case of the passage of the federal Sex Discrimination Act 1984 ('SDA'),
the scale and diversity of opinion was such that unanimity was impossible. Vying with
one another were women's groups lobbying for equal rights, employer groups, such as
the Business Council of Australia, anxious to preserve employer prerogative, and
moral conservatives who believed that women's place was in the home.5
A familiar technique adopted by the legislature in controversial areas is to minimise
the detail in legislation so that the interpretive role is expanded. The SDA is a prime
example of such a text, for the legislature has left so much unsaid. Instead, it has
charged decision makers, primarily judges, with the crucial hermeneutic role of
endowing the trailblazing text, including its gaps and omissions, with meaning.
Ambiguity could have been minimised by including a stronger statement of objects or
by investing an agency, such as the Human Rights and Equal Opportunity
Commission ('HREOC'), with enhanced powers of enforcement,6 but I suggest that
such a course of action was deliberately eschewed because it was not politically
palatable. Furthermore, the typical legislative instrument purporting to proscribe
discrimination is riddled with exceptions that further amplify the uncertainty of
Stare decisis, the primary security blanket on which judges conventionally rely to
support their reasoning, has been of remarkably little help, as there were initially no
precedents, at least none with binding authority. Judges could look to overseas
jurisdictions — the United States, Canada or the United Kingdom — for guidance, but
a propulsion towards parochialism and self-referentialism has generally constrained
them. Instead, they tend to fall back on their subjective appreciation of what is right.
This does not mean that they necessarily act in a way that is arbitrary or capricious, for
they must draw on the nomos, or normative universe, which they inhabit in order to
engage in what Robert Cover refers to as 'jurisgenesis', or the creation of meaning.7 The
nomos includes judges' 'commonsense ideas about the world' based on their own
published 1765–69, 1979 ed) 442. See also Mary Lyndon Shanley, Feminism, Marriage, and
the Law in Victorian England, 1850–1895 (1989).
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 127.
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–
7 Robert Cover, 'Nomos and Narrative' (1983) 97 Harvard Law Review 4, 11.

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