Context and interpretation in anti-discrimination law.

• Jurisdiction: Australia
• Author: Gaze, Beth
• Date: 01 August 2002

[Recent decisions in Australian anti-discrimination law continue to reflect a judicial assumption that anti-discrimination law is merely another area where legislation must be interpreted by impartial judges according to the usual `neutral' principles of statutory interpretation. This article critiques a recent decision, noting that neutrality is not in fact what seems to occur and exploring the reasons for this. While this is not new ground, theoretical knowledge and critiques appear to have had little impact on judicial understanding of anti-discrimination laws in Australia. This article explores the context for judicial interpretation, in particular the composition of the judiciary and the identity of judges, and the understood role and aims of anti-discrimination law. The focus is on the dovetailing of two areas of critique: first, the institutional structure surrounding anti-discrimination law (claims brought by people with attributes of disadvantage, frequently against governments or large and powerful organisations), and second, the effect of the identities of participants in the system on their understanding of the context and aims of anti-discrimination law. Until the influence of these factors is better understood, the potential for change through anti-discrimination law in Australia will be limited, and the law's promise of equality rights illusory.]

I INTRODUCTION

It is 25 years since anti-discrimination legislation was introduced in Victoria (1) and New South Wales. (2) It has been the basis for some significant changes in practices in the workforce and elsewhere. (3) Concerns continue to be expressed, however, over the failure of the laws to effect significant improvements in the position of disadvantage occupied by many of the groups which they were intended to protect from discrimination. (4) In assessing the prospects for further change, the question of whether these laws amount to `tokenism or prescription for change' (5) is just as relevant today as it was then.

Over the quarter century of the laws' existence, critiques of many aspects of the legislation and its institutional structure have been developed. The social context has changed, so that despite the changes secured, through the legislation, such as the removal of formal discrimination and the development of harassment as a discriminatory harm, the reduction of disadvantage and marginalisation has become more difficult in many ways. Discrimination which is covert is still difficult to challenge, as proving the illegal ground remains difficult and rests entirely on the complainant. (6) Economic rationalism and the effects of globalisation have strengthened economic resistance to change and tend to overwhelm claims based on justice or individual rights. Enforcement of the legislation tends to focus on individual rights, and often interpretation assumes that discrimination is an occasional error in a neutral context rather than also being a product of systemic disadvantage and social structure. (7) There has been a strong tendency for courts to set aside tribunal decisions finding discrimination.

This article explores the reasons for the law's limited effectiveness. Of particular concern is the limited understanding of equality and discrimination in mainstream Australian legal and political thought, in which interpretation of anti-discrimination legislation occurs. Many decisions in Australian anti-discrimination law reflect a judicial assumption that there is nothing new or special about equality claims, and that anti-discrimination law is merely another area where legislation must be interpreted by impartial judges according to the usual `neutral' principles of statutory interpretation. Reluctance to depart from same treatment as the ideal of equality accompanies reluctance to question existing social arrangements, which might disturb accepted patterns of allocation and attributed merit. The recent Victorian Supreme Court decision in Victoria v Schou (8) is analysed to explore some factors contributing to this situation.

First, the difficulty of assessing the success of legislation aiming to achieve significant change in social practices is considered. To the extent that this depends on what the aim of the legislation is, some competing understandings of the aims of anti-discrimination law are introduced. The Schou case is then analysed and its legal basis critiqued. The value-laden aspects of the Supreme Court decision, which it is argued cannot be accounted for in legal terms, are drawn out and analysed. My conclusion is that the key to the effect of anti-discrimination legislation is in the understanding of the tribunal member or judge hearing the case or appeal. Some approaches lead to tokenism while others enliven the legislation as a prescription for change.

II ASSESSING THE EFFECTIVENESS OF ANTI-DISCRIMINATION LAW

Evaluating the effectiveness of legislation aiming to achieve social change is unavoidably problematic. Should we look at the outcomes of cases brought under the legislation, or complaint rates and the outcomes of conciliation (given that they are decided in the shadow of the law), or general statistics concerning the reduction of inequalities in society at which the legislation is aimed? The meanings of all these are subject to interpretation, and none provides an unambiguous measure.

What does it mean, for example, if a high proportion of cases brought to adjudication under anti-discrimination laws fail? Some will see it as evidence that the laws are too weak to protect the disadvantaged as intended, while others will say the legislation is too broad and empowers those who bring `bad' or `weak' cases by allowing self-representation and litigation without the discipline imposed by the risk of a costs award, thereby wasting the time and money of innocent respondents. (9) Does a reduction in complaint rates mean that discrimination has been reduced so there is less need to complain, or that potential complainants have lost faith in the ability of the system to remedy their grievances? (10) Social statistics provide only broad-brush information which cannot be causally linked to anti-discrimination laws as distinct from broader social pressures such as the changing balance of power between employer and employee, (11) and the impact of neo-liberal economic policies and globalisation on all facets of life. Studying individual cases from a socio-legal perspective can illuminate some features which affect them, and deepen understanding, but it cannot provide conclusive evidence in relation to the system as a whole.

Most commentators suggest that although formal and express discrimination have been affected, and the worst cases of sexual and racial harassment have been confronted, there has been little impact on the positions of inequality and social disadvantage in which the groups `protected' by anti-discrimination law exist. (12) Any advances made by the adoption of anti-discrimination laws have been countered by social pressures which have tended to worsen the position of members of disadvantaged groups. (13) Ultimately, it seems that Australian anti-discrimination legislation has not disturbed existing social power relations.

Discussion about the difficulties of using law to effect social change (14) makes clear that it is no foregone conclusion that having legislation in place to prohibit discrimination will eliminate discrimination totally, substantially, or even to a significant degree. Law can at best deter a practice. Legislation aiming for social change can operate at both instrumental and symbolic levels, changing actual practices or social understandings. However, a law which is relatively ineffective at the instrumental level may not have much impact at the symbolic level at which people understand what social practices are acceptable. Attitudes towards the acceptability of sexual harassment have changed dramatically, for example, but only under the pressure of harassment law.

Examining the factors which contribute to this lack of effect may suggest some areas in which change may be possible. Some are intrinsic to the legislation: it is drafted neutrally to avoid acknowledging the asymmetrical reality of social disadvantage based on the prohibited grounds of race, sex, disability and so on; (15) it is drafted to deal with discrimination not disadvantage; (16) some courts require a level of proof that is almost impossible to satisfy. (17) Other factors relate to the social context: indirect discrimination has the potential to challenge social practices, but it has been infrequently used, due perhaps to lack of understanding among the legal profession, the heavy burden placed on litigants who run such cases, and unfavourable judicial interpretations. Judges can interpret the element of `not reasonable' in indirect discrimination to maintain the status quo and limit the law's ability to require social change. However, this has not occurred uniformly: in some cases judges have strongly applied the law to challenge existing practices and protect those disadvantaged by them. Judges have exercised their choice in interpreting anti-discrimination legislation in very different ways. This article considers when and why this occurs.

III THE AIM OF ANTI-DISCRIMINATION LAWS

When anti-discrimination laws were passed in a more optimistic era, it was in recognition of widespread discriminatory practices in society that should be prevented. (18) It is implicit that our current social structures and practices are the result of such discriminatory practices. But what is not clear is how far it was intended that these laws should actually bring about change in those social structures and practices. The effectiveness of the legislation in achieving its aims may depend on identifying exactly what those aims are in order to guide its interpretation and application. It may also be necessary to assess how capable the...