A Regulatory Analysis of the Sex Discrimination Act 1984 (Cth): Can it Effect Equality or Only Redress Harm?

Abstract:     
Anti-discrimination legislation provides an understudied regulatory response to inequality in Australian workplaces. Its effectiveness in achieving its stated goal of eliminating discrimination has been significantly limited by a regulatory approach that in effect gives a higher priority to the remedial goal of compensating victims and resolving breaches as interpersonal disputes. Much of the previous criticism of Australian anti-discrimination law reflects an objection to this prioritisation of the private remedial goal over the public normative goal. This chapter takes the next step of reconceptualising this issue from a regulatory perspective.

It is argued that it is imperative to appreciate and acknowledge that anti-discrimination legislation has regulatory mechanisms and effects that might not be immediately apparent under a traditional legal analysis. The effectiveness of the Sex Discrimination Act 1984 (Cth) may be limited by the: general and narrow coverage of the prohibition; technical and conservative interpretations of the substantive provisions; the restriction on punitive damages; and the absence of a regulatory agency with enforcement powers. But the symbolic power of law and the informal or soft regulatory mechanisms available under the Act have been used to develop a norm of non-discrimination that gives the formal prohibition much greater force than it would otherwise have. Looking only at formal mechanisms, one would expect virtually no change; but there has been change - compelling us to look further at informal mechanisms and institutions. We have seen organisations start to change and I believe anti-discrimination legislation has played some role in this and has the seeds, even in its current apparently clawless form, to effectively challenge inequality.

Keywords: discrimination, regulatory, sex, gender, equality, law, Australia

JEL Classifications: K10, K30, K42

Accepted Paper Series