Models of Anti-Discrimination Laws – Does Canada offer any lessons for the reform of Australia’s laws?

Abstract

Looking around the world, there are various models that have been used in the design of antidiscrimination laws. In this paper I compare the model used by Canada, which has a reputation for being a leader in addressing inequality, and the model used in Australia which has come to be seen as an international laggard. Canada’s open model provides much discretion to the courts to identify what constitutes discrimination and legitimate justifications. With this scope for interpretation the courts are free to establish principles and, importantly, also to revise them over time as society changes. Australia, on the other hand, chose a more closed model, precisely defining a formula for direct discrimination and indirect discrimination, on specific grounds in specific areas, and with specific exceptions. In Australia there is growing evidence of our laws’ limitations and growing interest in legislative reform. In exploring legal reforms, I suggest that we need to consider changing not merely the legislative prescription but also the prescriptiveness of our model. Rewriting the definitions without taking a look at the bigger picture of what role our judges could and should play might help to solve a particular problem but leave us with a regulatory framework that is still ill-equipped to evolve over time. We need to re-examine both the legitimacy and capacity of our courts to take on a greater role in the protection of human rights, and specifically the promotion of substantive equality, in Australia.