From Wardley to Purvis - How Far has Australian Anti-Discrimination Law Come in 30 Years?
The University of Sydney Law School
Australian Journal of Labour Law, Vol. 21, p. 3, 2008
Sydney Law School Research Paper No. 07/55
In this article I contrast the first Australian anti-discrimination law case with the most recent direct discrimination case of the High Court of Australia in order to demonstrate that the progressive potential of Australian anti-discrimination laws has diminished rather than grown over the past 30 years. In contrast to the first decision, the High Court in the case of Purvis v New South Wales (Dept of Education and Training) (2003) 217 CLR 92 significantly narrowed the approach for direct discrimination generally, by granting respondents free reign to identify the relevant comparator in the action. With this freedom respondents are able to avoid a finding of any different treatment, a prerequisite for a finding of direct discrimination. This approach makes clear that our direct discrimination laws are underpinned by a formal rather than substantive model of equality, and are thus limited in their capacity to eliminate all but a small subset of discrimination and able to do little more than promote procedural fairness. All citizens are ostensibly permitted to participate in education and work and other public realms of life, but our laws do little to enable the participation of those who don't fit the norm of benchmark man.
During this same 30 year period the regulatory framework of Australian anti-discrimination laws have changed little, leaving victims of discrimination and equality advocates to rely upon an individualised, victim driven approach to promote equality. By limiting the scope of direct discrimination, one of the central planks of the weak regulatory framework, Purvis lends further weight to calls for regulatory reform. Given the persistence of discrimination and inequality in Australia despite 30 years or so of anti-discrimination laws, it is time we considered taking a serious look at our discrimination laws to identify ways in which they could be made more (rather than less) effective.
Number of Pages in PDF File: 27
Keywords: Purvis, direct discrimination, formal equality, High Court Australia, disability, gender
JEL Classification: K10, K30, K42
Date posted: August 10, 2007 ; Last revised: April 1, 2015