Australian anti-discrimination laws: Framework, developments and issues

Abstract

Australian anti-discrimination laws reflect an individual complaints-based model of anti-discrimination laws, seeking to address discrimination and inequality by providing individual victims with the right to take legal action against the individual discriminator for compensation. Under this fault-based system, employers are prohibited from discriminating and, in the event of transgression, liable to the victim but otherwise not specifically required to be proactive in eliminating discrimination or promoting equality. While they were radical at the time of their introduction, over thirty years ago, the significant limitations of Australian anti-discrimination laws in addressing the many different forms of discrimination have since surfaced, signaling the need for development. The objective of these laws is to eliminate discrimination', the regulatory mechanisms in the legislation are largely ineffective at achieving this goal. The most recent developments or proposals in Australia - namely, in respect of age and family responsibilities discrimination - do little more than extend the existing framework to new grounds, providing a limited right of redress and a symbolic statement, but failing to acknowledge and address the regulatory limitations of system at large. In this paper, I provide an outline of the current anti-discrimination laws in Australia, an analysis of the regulatory framework established by this legislation, and a closer look at the elements and difficulties relating to proof of direct and indirect discrimination within this framework. Following a brief outline of affirmative action legislation, I note three recent developments in the final part that illustrate both innovation and limitation: the introduction in 2004 of a federal Age Discrimination Act; the introduction of 'Disability Standards' in respect of public transport and education; and the push to establish wider anti-discrimination law protection for workers with family responsibilities.

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