[Recent decisions in Australian anti-discrimination law continue to reflect a judicial assumption that anti-discrimination law is merely another area where legislation must be interpreted by impartial judges according to the usual `neutral' principles of statutory interpretation. This article critiques a recent decision, noting that neutrality is not in fact what seems to occur and exploring the reasons for this. While this is not new ground, theoretical knowledge and critiques appear to have had little impact on judicial understanding of anti-discrimination laws in Australia. This article explores the context for judicial interpretation, in particular the composition of the judiciary and the identity of judges, and the understood role and aims of anti-discrimination law. The focus is on the dovetailing of two areas of critique: first, the institutional structure surrounding anti-discrimination law (claims brought by people with attributes of disadvantage, frequently against governments or large and powerful organisations), and second, the effect of the identities of participants in the system on their understanding of the context and aims of anti-discrimination law. Until the influence of these factors is better understood, the potential for change through anti-discrimination law in Australia will be limited, and the law's promise of equality rights illusory.]
It is 25 years since anti-discrimination legislation was introduced in Victoria (1) and New South Wales. (2) It has been the basis for some significant changes in practices in the workforce and elsewhere. (3) Concerns continue to be expressed, however, over the failure of the laws to effect significant improvements in the position of disadvantage occupied by many of the groups which they were intended to protect from discrimination. (4) In assessing the prospects for further change, the question of whether these laws amount to `tokenism or prescription for change' (5) is just as relevant today as it was then.
Over the quarter century of the laws' existence, critiques of many aspects of the legislation and its institutional structure have been developed. The social context has changed, so that despite the changes secured, through the legislation, such as the removal of formal discrimination and the development of harassment as a discriminatory harm, the reduction of disadvantage and marginalisation has become more difficult in many ways. Discrimination which is covert is still difficult to challenge, as proving the illegal ground remains difficult and rests entirely on the complainant. (6) Economic rationalism and the effects of globalisation have strengthened economic resistance to change and tend to overwhelm claims based on justice or individual rights. Enforcement of the legislation tends to focus on individual rights, and often interpretation assumes that discrimination is an occasional error in a neutral context rather than also being a product of systemic disadvantage and social structure. (7) There has been a strong tendency for courts to set aside tribunal decisions finding discrimination.
This article explores the reasons for the law's limited effectiveness. Of particular concern is the limited understanding of equality and discrimination in mainstream Australian legal and political thought, in which interpretation of anti-discrimination legislation occurs. Many decisions in Australian anti-discrimination law reflect a judicial assumption that there is nothing new or special about equality claims, and that anti-discrimination law is merely another area where legislation must be interpreted by impartial judges according to the usual `neutral' principles of statutory interpretation. Reluctance to depart from same treatment as the ideal of equality accompanies reluctance to question existing social arrangements, which might disturb accepted patterns of allocation and attributed merit. The recent Victorian Supreme Court decision in Victoria v Schou (8) is analysed to explore some factors contributing to this situation. …