Is Anti-Discrimination Law Effective
Teresa Dwight
The understanding of equality under national and international standards inherently affects the ways that discrimination is addressed (McCrudden 1999:302). The complexities of non-discrimination law are very apparent in varying conceptions of equality (Wentholt 1999:53). The concept of equality is taken from the universally accepted International Covenant on Civil and Political Rights (ICCPR) where discrimination is defined in Article 26 (Wentholt 1999:54). This definition of discrimination pursues a formal approach to equality of which the fundamental basis is that all persons should be treated equally (Bamforth 1996:55). This approach does not take into account substantive equality of treating unlike people differently (Wentholt 1999:54). The importance of substantive equality is that it takes into account that minorities are in fact different (Jackson 1999:252).
Discrimination is defined as treating someone more or less favourably based on certain considerations, and becomes illegal in circumstances where these considerations are commonly regarded as irrelevant (LIAC 2002:5). Discrimination that occurs as a result of intentional treatment on the grounds of one of the protected considerations is known as direct discrimination, while treatment which simply results in a discriminatory outcome is known as indirect discrimination (Browne 1999:412). The perception of discrimination in terms of formal equality has important implications for more embedded forms of discrimination such as structural discrimination which results from past discrimination, and statistical discrimination, which pertains to attitudes and stereotypes (Bamforth 1996:57).
Anti-discrimination law in the form of statute and case law is the major machinery for addressing discrimination in both the international and Australian context. In Australia, discrimination is addressed under a variety of enactments which are aimed specifically at the most commonly regarded unacceptable grounds for discrimination (Pritchard 1999:365). These grounds include race, sex, disability and rights under the Human Rights and Equal Opportunity legislation (Human Rights and Equal Opportunity Act 1986 (Cth) and the Privacy Act 1988 (Cth) (LIAC 2002:5). The effectiveness of these laws is often evaluated in terms of their purposes, strategy, and enforcement.
The fundamental purposes and focus of legislation are what guides its strategy and the subsequent effectiveness of discrimination laws (McCrudden 1999:297). As national discrimination laws are enacted as ratification of international covenants, the universal norm of formal equality is largely influential over national laws (Ronalds 1979:2). Wentholt (1999:56) explains that substantive equality of treating unlike cases differently is not satisfied by exceptions that already exist in discrimination law that recognise where it is appropriate to discriminate. The perception of formal equality encourages the view that equal treatment is the norm and preferential treatment is an exception (Wentholt 1999:59). According to Wentholt (1999:60), the problem with this conception is that prejudices and stereotypes which are at the heart of statistical discrimination are not always regarded as discriminatory, a major pitfall which exacerbates statistical discrimination rather than addressing it. Wentholt (1999:60) explains that to embrace substantive equality, in some cases preferential treatment of disadvantaged minorities should be required rather than merely allowed. This encompasses the distinction between a negative duty to not discriminate and a positive duty to provide equality of opportunity (McCrudden 1999:304).
More specifically, the purposive approaches to each of the major pieces of legislation, the Racial Discrimination Act 1975 (Cth) (RDA), the Sex Discrimination Act 1984 (Cth) (SDA) and the Disability Discrimination Act 1992 (Cth) (DDA), fail to provide a negative freedom from discrimination and an encompassing, positive right to equality (Prichard 1999:370). The RDA appears to have a broad purpose which encompasses any adverse treatment of a person based on their race (Prichard 1999:366). It is limited, however, to overt adverse action rather than encompassing a general freedom from discrimination (Prichard 1999:366). However, the RDA has operated in a major capacity as a safety net against state government attempts to extinguish native title rights in Mabo v The State of Queensland (Prichard 1999:368). This is an example the capacity of discrimination legislation to act against government agencies, as well as non-state actors and individuals (Prichard 1999:383). In contrast with the RDA, the SDA fails to establish a general substantive and positive right of women to equality (Prichard 1999:371).
The strategy of non-discrimination law in Australia tends to focus mostly on direct discrimination, and to a lesser degree, indirect discrimination (Sedler 1999:99). By only providing for an ‘aggrieved’ individual to make a complaint under the relevant act, legislation is confined to addressing discrimination on a case by case basis, rather than as a wider systemic issue (Prichard 1999:367). The RDA, SDA and DDA all effectually provide that direct discrimination is unlawful. While the RDA expressly prohibits indirect as discrimination is unlawful in s9(1A), it provides no other mechanisms of locating indirect discrimination (Prichard 1999:369). In 1995, the Race Discrimination Commissioner concluded that the Race Discrimination Act 1995 (Cth) was inadequate for addressing structural discrimination (Prichard 1999:368). This argument appears to have substance up against the assertion that there have been more indirect discrimination complaints under the RDA than either the SDA or the DDA (Prichard 1999:368). More complaints suggest a greater general dissatisfaction with circumstances.
The SDA has a stronger focus on indirect discrimination than the RDA by addressing specific issues such as family responsibilities and potential employment (Prichard 1999:369). However, where there is discrimination against one group in society such as part time employees that tends to be dominated by women due to social structures, cases of indirect discrimination are less successful (Jackson 1999:251). Furthermore, the origins of structured gendered inequality, such as unpaid work, are overlooked (Ronalds 1979:120). The ALRC has recommended that the definition of indirect discrimination be simplified and the onus of proof should be reversed away from the applicant (Prichard 1999:370).
The DDA, which was implemented most recently, adopts broader approaches to discrimination. It offers a broad definition of disability which includes one which, “currently exists, no longer exists, or that may exist in the future” (Pritchard 1999:373). It also develops disability standards and action plans aimed at structural discrimination (Prichard 1999:373). However, it should be noted that structural discrimination for disabled people is not as systemic compared with gender and racial discrimination (Szysczak 1996:125). The most fundamental purpose of anti-discrimination legislation in pursuit of equality is to affect behavioural patters (Mulder 1999:67). In order for behavioural patterns to be affected, effective structures of enforcement are critical (McCrudden 1999:297).
Difficulties in regards to enforcement arise from locating statistical discrimination, the nature of the complaints-based system, non-uniform and piecemeal rules, and the difficulties posed by the separation of powers. Because statistical discrimination pertains to systematic differentiation on the basis of ingrained stereotypes, addressing statistical discrimination necessarily involves the changing of systemic attitudes. However, Browne (1999:412) draws attention to the difficulties and inherent dangers involved in proving the existence of systemic discrimination. Brown (1999:412) argues that, mathematically, it is impossible to separate socially discrete factors from each other and further, that a focus on outcomes of diversity often involved flawed reasoning. Macewen (1999:430) appears to have more faith in the use of statistics to locate systematic discrimination as he argues that these statistics can be used to demonstrate long term treatment of minority groups.
The reactive rather than proactive feature of the individual complaints based system (LIAC 2002:7) is arguably ineffectual in addressing the wider systemic issue (McCrudden 1999:303). However, Griffiths (1999:323) and McCrudden (1999:300) agree that legislation is one mechanism by which social norms are developed and this contribution means that private action can play a ‘dual role’ in the regulating both direct and structural discrimination. On the other hand, litigation is commonly regarded as risky and less preferable to conciliation to the point where Griffiths (1999:323) estimates that there are considerably fewer applicants under legislation than there are aggrieved persons.
The non-uniformity of Australia’s discrimination law is often criticised and many authors advocate reform to generalise the norms (Nolan 2000:2; Williams 1996:4). Reform should be aimed at a procedural framework for addressing discrimination concerns that is standardised across the nation (Nolan 2000:2). As it stands, applicants must satisfy a variety of criteria that is written in complex language and satisfy a range of tests which vary by legislation and by state (Nolan 2002:3). Prichard (1999:378) suggests a single, coherent piece of federal anti-discrimination legislation that encompasses all grounds and areas and that applies the same tests.
The determinations of the Human Rights and Equal Opportunities Commission (HREOC) have been unenforceable since the 1995 decision of Brandy v HREOC where it was held that making tribunal decisions enforceable offended the separation of powers doctrine within the Constitution (Prichard 1999:382). The critical function of providing incentives and disincentives for the law to work need to be manifest in effective structures as essential components of effective law enforcement (McCrudden 1999:298&306). While there is a limited mechanism by which the Federal Court in Australia and the Supreme Court in the US can make binding orders (Prichard 1999:377; Rubenfeld 2002:1143), due to the financial and emotional costs involved in litigation, many complainants are unlikely to bring litigation further (Griffiths 1999:383). As effective structures are an essential component of effectively enforcing the law, difficulties that arise in these structures are problematic (Nolan 2000:3). Since “legislation only works when it’s used” (Griffiths 1999:326), legislation needs to be reformed in terms of its aims, strategy and enforcement to provide a stronger mechanism for social reform.
In order to rate the effectiveness of anti-discrimination law, it is appropriate to contrast it’s effectiveness with other ways of addressing discrimination. LIAC (2002:6) explains that equality is a goal, and that effectiveness is achieved via a combination of discrimination laws and affirmative action to achieve that goal. Structural and statistical discrimination are social and systemic issues and must be addressed by changing social behavioural patterns (Griffiths 1999:314). This can be more broadly achieved with the use of policy as opposed to concrete laws. Nolan (2000:6) and Prichard (1999:383) agree that legislation has been successful by raising consciousness about discrimination. Further, discrimination statutes have been effective in providing some sort of explicit mechanism for direct discrimination to be addressed (McCrudden 1999:297).
Other measures that are more appropriately addressed at the policy level by the government include affirmative action or positive action (Macewen 1999:431; Wentholt 1999:60). These are programmes often in the form of preferential treatment and are a way of achieving substantive equality by taking into account existing differences in people and their subsequent needs (Sedler 1999:99). This form of action can not necessarily be achieved within the confines of the law, and due to shortfalls in enforcement, should not be left to the judiciary (Rubenfeld 2002:1143).
Quotas, which are not used in Australia (LIAC 2002:7) are used to implement a diversified outcome as a means of addressing systemic discrimination (Jackson 1999:252). However, recognising difference and applying standards that address past discrimination and systemic prejudice, is different from using a physical considerations without reference to any other factors (Pitt 1992:281). In reviewing the effectiveness of affirmative action, it is necessary to understand that a balance must be struck between preferential treatment and what is termed as reverse discrimination (Jackson 1999:250). Reverse discrimination impedes the ability of equality measures to achieve formal equality by drawing on irrelevant considerations to treat someone more favourably than anyone else (Pitt 1992:283). However, the approach that discrimination law should be entirely ‘colour blind’ ignores the material facts that inequality and discrimination still exists and does not take into account issues of substantial equality (Jackson 1999:263).
Conclusion
Anti-discrimination law follows the orthodox formal approach to equality where it has been relatively effective in addressing direct and indirect discrimination. However, the shortfalls of legislation are apparent in its approach to equality, strategy and enforcement which lead to inefficiencies in dealing with structural and statistical discrimination. Nevertheless, effects of legislation which are aimed at direct and indirect discrimination can arguably have long-term positive effects for structural and statistical discrimination. It is important to understand that anti-discrimination law is a valuable aspect of the entire process towards equality. While it can be argued that anti-discrimination law is not holistically effective by itself, this should not imply that it is unnecessary as pursuing the goal of equality becomes effective with the combination of legislation with other innovations of programmes, policies and structures.
copyright, 2005