From Wardley to Purvis — How far has Australian anti-discrimination law come in 30 years?

Abstract

In this article the first Australian anti-discrimination law case is contrasted 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. When anti-discrimination laws were enacted in Australia, they were considered radical and cases such as Ansett Transport Industries (Operations) Pty Ltd v Wardley demonstrated the laws' capacity to challenge exclusionary policies and practices. However, the most recent direct discrimination case in the High Court, Purvis v New South Wales (Dept of Education and Training), reflects and cements a significant kerbing of the power of these laws to effect equality. In Purvis, the High Court narrowed the approach for direct discrimination generally, by ruling that in determining treatment education providers only needed to consider a student's behaviour, not whether his disability caused the behaviour. So long as a school, and by extension employer, treats a person with disability the same as anyone else who behaves that way, there will be no different treatment, a prerequisite for a finding of direct discrimination. The Purvis approach confirms 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 anti-discrimination laws do little to enable the participation of those who do not fit the norm of benchmark man. In this way, the Purvis case demonstrates the limited capacity of our equality laws to achieve substantive equality and lends weight to calls for regulatory reform.