The Federation Press

Australian Anti-Discrimination Law

Text, cases and materials

Overview

This is the first cases and materials book in the field of Australian anti-discrimination law. The book, which deals with all Australian jurisdictions, contains a detailed analysis of Australian anti-discrimination law as well as extracts from all of the major cases and the writings of leading commentators.

All of the major grounds of unlawful discrimination, such as race, sex and disability, are considered in detail. The book records the history of the major pieces of anti-discrimination legislation and it includes numerous suggestions for reform. While the book deals systematically and critically with all aspect of anti-discrimination law, such as grounds, areas of activity, exceptions, procedure, and remedies, it also contains extensive materials dealing with the policy goals of the law.

The central chapter in the book is devoted to the concept of unlawful discrimination. All of the major High Court decisions concerning the notions of direct and indirect discrimination are extracted, explained and analysed. The chapter also contains a useful overview of the international history of these concepts, with references to leading United States and United Kingdom cases.

The book will be of interest to practitioners as well as students, especially as there are comprehensive chapters in the areas of procedure and remedies. Each chapter contains problems for students.

Reviews

...the real strength of this book is in the perceptive and insightful commentary bringing together the cases and materials extracted in it...the book is primarily devised as a teaching tool as it appears from the questions posed at the end of each chapter. The questions are designed in such a way as to challenge the reader to think about the contents of the substantive part of the book and service to highlight the complexity of anti-discrimination law that protect many classes, some of whose interest may not merge. - Human Rights Law Review, 9:4(2009), 691-698

Every day, governments, private companies and individuals must navigate the shoals of discrimination law. They must grapple with issues for which there is no clear answer and disputes in which both sides are understandable; often institutions and individuals will have little or no idea of their positive or negative obligations to others.
For lawyers too this area is a minefield. The law, which is borne of a plethora of statutes, themselves often children of international treaties, is constantly evolving and adapting. Australian Anti-Discrimination Law is the answer to the prayers of the discrimination law practitioner for a complete case and materials textbook on the subject. The book contains extracts from cases (state, federal and international), statutes and statutory instruments, and academic materials where they assist our understanding.
The authors are eminently qualified by their practical and academic experience. The book deals thoroughly with the subject from procedure and remedies through philosophical and political underpinnings to thorny issues of constitutional, international and comparative law. It covers both state and federal discrimination law. - Law Institute Journal of Victoria, July 2009

This book, which honours the best traditions of its genre, provides, within an appropriate conceptual framework, careful selection of extracts from cases and other pertinent materials and, importantly, incisive textual analysis. Whilst providing a cogent critique of the current law, the authors have kept their feet firmly on the ground. The result is an authoritative analysis based on the very considerable practical and academic experience of its authors. Under the leadership of Professor Neil Rees, and subsequently Simon Rice, Kingsford Legal Centre developed in the early 1980s a specialist practice in anti-discrimination law, providing the skill and experience to mount many of the early groundbreaking cases. Professor Rees continued his work in the area after moving to the University of Newcastle, where he collaborated with Katherine Lindsay. Together, they have established an immensely valuable resource covering the full spectrum of anti-discrimination law in Australia. - From the Foreword by John Basten, Judge of Appeal, Supreme Court of New South Wales

Table of Contents

Australian anti-discrimination law: an overview

The legislative schemes
Enforcement of the law
Judicial responses to the law
The structure of the book

Policy goals of Australian anti-discrimination law

A brief history of Australian anti-discrimination law
Statements by legislators
Statements by the judiciary
Some selected commentators

The impact of the Australian Constitution on anti-discrimination law

Constitutional Protection from Unlawful Discrimination?
Constitutional validity of Commonwealth Anti-discrimination Laws
Limited Application Provisions
Crown Immunity and Commonwealth Anti-discrimination Laws
Chapter III and the validity of procedural mechanisms.
Constitutional Regulation of Inconsistency
Discrimination and the Constitution
Implied Constitutional freedoms
Further reading

The concept of unlawful discrimination

The concept of direct discrimination
The concept of indirect discrimination
Problems of proof
Some reform options
Problems for students

Grounds of unlawful discrimination

Race
Sex
Disability
Age
Family/carer’s responsibility
Other grounds

Areas of unlawful discrimination

Work
Goods, services and facilities
Education
Other areas

Defences, exceptions and exemptions

An overview of the exceptions to the legislation
‘Special measures’
The defence of statutory authority
Temporary individual exemptions
Problems for students

Sexual harassment

The legal meaning of ‘sexual harassment’
The relationships in which sexual harassment is unlawful
Sexual harassment as sex discrimination
Attributed (vicarious) liability for sexual harassment
Complaints of sexual harassment
Harassment on other grounds
Problems for students

Vilification

Policy considerations
Commonwealth racial hatred legislation
State and Territory racial vilification legislation
Religious vilification legislation
Sexuality and gender identity vilification legislation
Other vilification legislation
Procedure and remedies
Problems for students

Procedure

Remedies

Of interest...