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

LABOUR LAW AND LABOUR MARKET REGULATION - ESSAYS ON THE CONSTRUCTION, CONSTITUTION AND REGULATION OF LABOUR MARKETS AND WORK RELATIONSHIPS, pp. 105-124, C. Arup, et al, eds., Federation Press, 2006

Sydney Law School Research Paper No. 07/56

22 Pages Posted: 10 Aug 2007  

Belinda Smith

The University of Sydney Law School

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 Classification: K10, K30, K42

Suggested Citation

Smith, Belinda, A Regulatory Analysis of the Sex Discrimination Act 1984 (Cth): Can it Effect Equality or Only Redress Harm?. LABOUR LAW AND LABOUR MARKET REGULATION - ESSAYS ON THE CONSTRUCTION, CONSTITUTION AND REGULATION OF LABOUR MARKETS AND WORK RELATIONSHIPS, pp. 105-124, C. Arup, et al, eds., Federation Press, 2006; Sydney Law School Research Paper No. 07/56. Available at SSRN: https://ssrn.com/abstract=1005530

Belinda M. Smith (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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