From Wardley to Purvis - How Far has Australian Anti-Discrimination Law Come in 30 Years?

Australian Journal of Labour Law, Vol. 21, p. 3, 2008

Sydney Law School Research Paper No. 07/55

27 Pages Posted: 10 Aug 2007 Last revised: 1 Apr 2015

See all articles by Belinda Smith

Belinda Smith

The University of Sydney - Faculty of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: August 2007

Abstract

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.

Keywords: Purvis, direct discrimination, formal equality, High Court Australia, disability, gender

JEL Classification: K10, K30, K42

Suggested Citation

Smith, Belinda M., From Wardley to Purvis - How Far has Australian Anti-Discrimination Law Come in 30 Years? (August 2007). Australian Journal of Labour Law, Vol. 21, p. 3, 2008, Sydney Law School Research Paper No. 07/55, Available at SSRN: https://ssrn.com/abstract=1005528 or http://dx.doi.org/10.2139/ssrn.1005528

Belinda M. Smith (Contact Author)

The University of Sydney - Faculty of Law ( email )

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

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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