This workshop will focus on the success and limitations of Australian anti-discrimination laws. Such laws have major importance as the symbol of our social commitment to equity and intergroup harmony, but they are also expected to provide remedies in individual cases of discrimination and mechanisms for deterring and reducing the incidence of discriminatory practices and behaviour.
Australian anti-discrimination law was adopted in the 1970s and early 1980s. Since then, its basic mechanisms and definitions have not been revised or updated, although basically similar laws have been adopted in more jurisdictions and they have been extended to cover new grounds of discrimination. It is accepted that anti-discrimination law cannot be a complete answer to social problems of discrimination exclusion and disadvantage. However, there are concerns that Australia’s laws are drafted so weakly, and are so conflicted about their aims and the mechanisms available for advancing equality, that it is not really possible for them to seriously tackle these social problems. If so, the existence of these laws would provide false reassurance that Australian law has addressed discrimination. There is also controversy over whether laws in this format are capable of affecting the social phenomenon and incidence of discrimination, or whether they in fact allow it to continue unseen by creating an illusion that law had dealt with it.
The Australian laws contain some major problems which have limited the ability to enforce them and consequently have limited what could be achieved by them. Nor have Australia’s legal profession and judges generally taken them seriously as a vehicle for achieving social and legal change. The two aspects affect each other, as the relatively weak drafting of the laws encourages judges interpreting them to read them narrowly and limit their potential.
In other comparable countries, anti-discrimination laws were drafted more strongly to begin with, and have been updated and strengthened well beyond the current Australian laws, for example by facilitating proof of discrimination, allowing systemic remedies where discrimination is proved, encouraging institutional pro-active enforcement rather than reliance on individual complaints, making individual complaints easier to bring, and developing positive obligations on public sector bodies to consider equality and discrimination in developing policies and providing services. The international standard for equality laws has advanced well beyond Australia’s persistent basic model. However, there is little sign that any government in Australia is interested in updating and developing anti-discrimination law, and they have received surprisingly little debate, perhaps due to the complex and technical nature of the problems.
This Workshop will explore the problems with Australia’s laws, and examine the experience in other countries, in order to develop a clearer case for and understanding of future reform directions for Australian laws. This is an important step in trying to strengthen Australia’s anti-discrimination laws, which are the only real legal mechanism for dealing with community disharmony on lines such as ethnicity, race, and religion which are of increasing importance, as well as in progressing the agenda in relation to the equality claims of women, people with disabilities, sexual minorities and other disadvantaged groups. There will be a strand that pursues the detailed legal doctrinal analysis and socio-legal study of the impact of the legislation that are important to develop a full critique of the existing laws and flesh out the arguments as to why they need to be updated. Another important aspect, however, will be to develop the argument that the inadequacy of the current law in Australia requires governments to take action to deal more effectively with the social practices and understandings that support and permit discrimination.
The aim of the workshop will be to pool the experience of the participants in relation to the operation so far of Australian anti-discrimination laws and directions for their effective reform. The aims will be both to develop participants’ understanding of the challenges of this area and to develop a basis for expanded public policy understanding of:
- how and why the current role of anti-discrimination law in Australia is so limited
- the potential of and need for extensive reform and updating of the law to address social practices of discrimination
- the need to develop a better understanding of non-discrimination and equality issues and what is required by this commitment in the Australian community, including the role of law, and
- the role of governments in implementing a legal strategy to facilitate and underpin the societal commitment to non-discrimination.