The collective dimension of federal anti-discrimination proceedings in Australia

Published date01 March 2018
Date01 March 2018
DOI10.1177/1358229118759712
Subject MatterArticles
Article
The collective
dimension of federal
anti-discrimination
proceedings in Australia:
Shifting the burden from
individual litigants
Therese MacDermott
Abstract
The burden of pursuing federal anti-discrimination proceedings in Australia is essentially
an individual one, with little regard to the collective dimension of such claims. This is
reflected in the narrow approach to standing for organizations with established interests
in areas affected by such claims, the scarcity of representative proceedings for breaches
of federal anti-discrimination law legislation, and the lack of capacity on the part of the
national human rights agency to pursue test case litigation or provide advice or support
to individual complainants. In exploring these three key areas, this article highlights the
shortcomings of the Australian regulatory approach and its failure to provide adequate
mechanisms for redress that recognize the broader community concern in ensuring that
discriminatory practices are identified and addressed.
Keywords
Anti-discrimination proceedings, individual complainants, standing, representative
proceedings, human rights agencies
Macquarie Law School, Macquarie University, Sydney, New South Wales, Australia
Corresponding author:
Therese MacDermott, Macquarie Law School, Macquarie University, Sydney, New South Wales
2109, Australia.
Email: therese.macdermott@mq.edu.au
International Journalof
Discrimination and theLaw
2018, Vol. 18(1) 22–39
ªThe Author(s) 2018
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229118759712
journals.sagepub.com/home/jdi
Introduction
Redress in Australian anti-discrimination proceedings is built on a model that complaints
are pursued on the basis of an individual’s private rights or interests having been
affected. The individual orientation of the complaints process creates the impression
that a complaint is confined to a dispute between the named parties. In reality, however,
the outcome of a litigated discrimination complaint is likely to have ramifications for
many others within the community, who share the attribute that has been the subject of
the alleged discrimination as well as for community standards more broadly. While there
is no clear delineation between an instance of discrimination that is only a matter of
individual concern, and what might be considered one of broader community signifi-
cance, this article argues that the collective avenues for pursuing complaints under
federal anti-discrimination law are underdeveloped. It challenges the notion that per-
sonal interest or the transgression of a private right should be the only basis for a claim
for redress. This article also contends that the stringency with which procedural require-
ments have been applied to issues such as standing and representative proceedings in the
federal anti-discrimination c ontext, together with the lack of empowe rment of anti-
discrimination agencies to pursue test case litigation, fails to acknowledge the broader
community interest of ensuring that discriminatory practices are identified and
addressed, and burdens individuals disproportionately with the responsibility to pursue
such claims.
In order to examine the shortcomings of the Australian regulatory approach to col-
lective redress, this article focuses on three key areas. Firs t, it looks at the issue of
standing, where the technical requirements at different stages of the dispute resolution
process, together with the strict approach adopted by the courts, have left public interest
groups and non-government organizations unable to relieve the burden on individuals
seeking redress through the courts. Second, it examines the limited use of representative
proceedings to pursue discrimination complaints. Third, it identifies the lack of empow-
erment of the federal human rights agency (the Australian Human Rights Commission,
‘the Commission’) to pursue test case litigation or assist complainants with litigation, as
a fundamental flaw in the Australian framework for pursuing collective redress in dis-
crimination cases – a flaw not overcome by the capacity of the Commission to intervene
in proceedings, or its amicus curiae power.
In addressing these matters, this article focuses on the four principal pieces of federal
anti-discrimination legislation in Australia (the Racial Discrimination Act 1975 (Cth),
the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and
the Age Discrimination Act 2004 (Cth)). It acknowledges that different factors may arise
under various state and territory legislative schemes, or in claims pursued in the employ-
ment context, under national labour laws. It should be noted that, as this article is
primarily focused on who is entitled to initiate processes for seeking redress, it does not
deal directly with the question of how costs should be awarded in discrimination matters.
However, the difficulties in funding litigation and the risks associated with an adverse
costs order do play a part in the willingness of individuals to seek redress on their own
behalf, and on behalf of others.
MacDermott 23

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