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Australian Journal of Human Rights |
Reforms to Australian anti-discrimination law are suggested in order to produce one nationally uniform law that covers all types of discrimination. Legislative cooperation between the states and the Commonwealth is proposed as the best way to achieve national uniformity. It is further proposed that there be one anti-discrimination statute adopted nationally. The proposal suggests that generality be achieved by adding an overarching principle of identity/attribute relevance to existing tests of direct and indirect discrimination, and, by allowing the combination of a range of grounds and areas to cover all existing and potentially new forms of discrimination. These reforms are evaluated in terms of rights protection and our international obligations. The paper concludes by using social psychological research to justify the proposals. From this perspective it is suggested that the reforms will better reflect social psychological reality while also helping to create a more positive attitude towards anti-discrimination law.
Australians are currently protected from discrimination by various modes of state and Commonwealth anti-discrimination legislation. This often leads to inconsistencies in the protection available nationwide. No state has referred its power to legislate against discriminatory behaviour to the Commonwealth under section 51 (xxxvii) of the Commonwealth Constitution. Importantly, Commonwealth anti-discrimination legislation explicitly preserves the concurrent legislative power of the states and does not purport to cover the field; allowing concurrent regulation where possible[1]. Whilst the Commonwealth has separate statutes dealing with each type of discrimination[2], the states have tended to deal with all types of discrimination in one general anti-discrimination Act.[3] To some extent, this difference may reflect the different limits on the exercise of state legislative power vis-a-vis Commonwealth legislative power.[4] The various modes of anti-discrimination law across Australia also reflect various phases of international treaty making and legislative response to different eras of consciousness raising about discrimination.
This paper proposes reforms to anti-discrimination law that can produce national uniformity, and generality. Various routes to uniformity are discussed in Part 1 of the paper. It is proposed that uniformity may best be achieved by legislative co-operation between the states and the Commonwealth where anti-discrimination legislation of identical effect is passed in all Australian jurisdictions (a legislative compact). Discussion in Part 2 of the paper is aimed at achieving a standardised mode for all anti-discrimination regulation rather than using separate pieces of legislation with different tests of discrimination to regulate each type of discrimination. The reform proposed is to use one approach to the definition of all types of discriminatory behaviour. It is argued that identity relevance or attribute relevance is an important overarching concept that could be added to existing tests of in/direct discrimination providing a consistent approach in all areas of regulation. Despite this general approach towards tests of discrimination, targeted protection for specific types of discrimination is still favoured. This specificity could still be achieved by allowing for many possible combinations of listed discrimination grounds and areas of operation, as well as maintaining specificity at the level of proceedings and remedy. Social psychological theories of identity are discussed in Part 3 of the article as further justifications for passing nationally uniform and general anti-discrimination law.
It has been stated that, “discrimination is one of the relatively few areas of law in Australia where the applicable legislation at both federal and State levels are almost identical”.[5] Importantly though, state and federal laws being “almost identical” may simply mean that they are not identical enough. In some cases, the lack of uniformity means that complainants in one Australian state are afforded lesser or, at least, different protection. Complainants may suffer injustice compared to complainants in other states or when compared to norms of protection existing in Federal legislation or international treaties.
For example, such a situation arose in a recent complaint of sexuality discrimination made to the Human Rights and Equal Opportunity Commission (HREOC).[6] In this case, complainant Jacqui Griffen had 15 years teaching experience including two years as a teacher at an Anglican school. Griffen unsuccessfully applied for a job in a Catholic school in NSW. The complainant alleged that she failed to secure the job because she made her lesbianism known to her potential employers during the application process. Griffen also claimed that her application was unsuccessful due to her public role in the Gay and Lesbian Teachers’ and Students’ Association. Griffen’s complaint failed because NSW anti-discrimination law allows religious school administrators to discriminate on the ground of sexuality.[7] However, Federal Sex Discrimination legislation[8] and some other State legislation[9] only exempt religious practice from regulation; with the legislation still protecting complainants from sexuality discrimination due to decisions made by administrators of religious schools.
In response to this case, Federal Human Rights Commissioner, Chris Sidoti, suggested that a unified anti-discrimination system should be introduced with limited exemptions. He has lamented that the lack of enforceability of HREOC rulings is only further complicated by the initial lack of uniformity in Australian anti-discrimination law.[10] Sidoti has made the telling point that “it is only when we see the way individual people’s lives are affected that we begin to see the need to do something about [the lack of enforceability and uniformity]”.[11] The Griffen example illustrates that Australian anti-discrimination law is not uniform in terms of the types of discrimination proscribed and the available remedy and this non-uniformity can have serious consequences. Moving beyond the Griffen example, variation in the definition of and protection from indirect discrimination between states, between state and Commonwealth formulations, and between Commonwealth anti-discrimination laws is problematic.[12] Part of the challenge of unifying Australian anti-discrimination law would be obtaining uniform definitions of indirect discrimination and the related criterion of unreasonableness so tests of both direct and indirect discrimination achieve their maximal potential nationwide.
At least five possible routes exist for achieving nationally uniform anti-discrimination law. These are: (i) referral of state legislative power to the Commonwealth, (ii) use of the inconsistency doctrine, (iii) uniformity requirements of the external affairs power, (iv) use of express and implied provisions of the Commonwealth Constitution, and (v) national legislative cooperation between all Australian parliaments (a legislative compact). These options are considered briefly below
Referral of powers and s109 inconsistency
Both a referral of powers and the use of s109 inconsistency can be quite politically sensitive within our federation especially due to the lack of local control embodied in both of these routes to uniformity. Interestingly, no state has sought to refer legislative power over anti-discrimination regulation to the Commonwealth. Section 109 inconsistency renders state law inoperative for the period of inconsistency between state and Federal legislation. This includes inconsistency that may occur as a result of direct inconsistency[13] and also by the Commonwealth Parliament intending to “cover the field” and disallow the concurrent exercise of state legislative power in the same area.[14] The Federal Government could cover the field of discrimination regulation and this may allow Australia’s international obligations to be more directly implemented in legislation that binds the states.[15] It would also assist in creating more effective national support for anti-discrimination principles that derive ultimately from international human rights norms. However, the states may view the Commonwealth covering the field as a de facto way of forcing states to refer their legislative power to the Commonwealth.
McCarry has discussed how the inconsistency doctrine could be used to achieve national uniformity in anti-discrimination law, and has outlined options that do not require the Commonwealth to cover the field. These include the lowest common factor approach[16] whereby provisions of state Acts are preserved if they can concurrently operate alongside Commonwealth provisions. This may produce some consistency in effect but it is far removed from a national approach that is explicitly based upon our international human rights obligations. McCarry also suggests that state governments could repeal or amend their statutes to the extent that they are inconsistent with Commonwealth statutes[17]. This option has been criticised as inappropriately placing an onus on State governments that is not in the spirit of s109[18] whereby state legislation may stay inoperative on the statute books, waiting to be revived if the inconsistency is resolved in the future. Forcing states to repeal their legislation also wrongly assumes that existing Commonwealth anti-discrimination schemes are always superior to the state modes of protection This is not the case,[19] and the best possible protection will not result if we risk losing the more recent state formulations while retaining some of the older Commonwealth legislative provisions.
McCarry has persuasively argued that national uniformity is required if Commonwealth statutes purporting to implement international treaty obligations are based solely on the external affairs power[20]. The High Court in Viskauskas v Niland[21] suggested that our international treaty obligations might not permit the Federal government to tolerate variable anti-discrimination standards or anti-discrimination laws of variable effect within Australia. In light of these arguments, McCarry suggests that this uniformity or equal treatment requirement of the external affairs power could be used to invalidate Commonwealth provisions attempting to save state laws – especially when those provisions of State anti-discrimination law are not mirrored in other states. McCarry suggests that in order for Commonwealth legislation to validly save state laws that create non-uniformity or unequal operation, the Commonwealth needs to rely on powers other than the external affairs power for validity, which do not have such uniformity requirements.
It has been argued that Australia needs to develop a human rights culture.[22] One of the strongest arguments against the need for uniform anti-discrimination law is that the basis for effective national uniformity already exists in the Constitution, and that this is enough to promote the development of a human rights culture. Some may claim that despite the existence of concurrent state power to pass anti-discrimination legislation, effective national uniformity flows from an interpretation of rights expressly stated and implied in the Commonwealth Constitution.
For example, Justice Kirby has suggested that broader interpretations can be given to s117 of the Constitution with the goal of producing national uniformity. His honour suggests that s117 could be used to provide a “broader protective function than that of assuring a few interstate barristers the right to appear in Queensland courts”.[23] Similarly, some commentators have suggested that s117 could provide a basis for nationally uniform of anti-discrimination legislation.[24] In a related sense, Peter Hanks adds the race power, s 51(xxvi), to this list, claiming it is a basis for creating a national Aboriginal policy that seeks to protect indigenous rights.[25] Many recent commentators have rejected the orthodox view that there are only a few rather insignificant rights provisions under the Constitution.[26] For example, Bailey lists twenty-seven sections of the Constitution that could support the assertion of up to seven political rights, five civil and legal process rights, nine economic and equality rights, and two social rights.[27] These sections could be interpreted as a national and constitutional statement of Australia’s support for certain rights including those relating to discrimination.[28]
Some implied Constitutional powers may also support nationally uniform legislation. For example, the implied nationhood power[29] could be particularly powerful if uniform anti-discrimination laws were held to be part of our national identity. Such laws based on this power could be used to emphasis the importance of a national commitment to international human rights norms, and could cover the field of anti-discrimination law. Arguments for the existence of the implied nationhood power in an international context were strengthened in the Tasmanian Dams case[30] by Justice Deane’s description of the implication as a power “inherent in its existence in the fact of Australian nationhood and international personality”[31].
Despite some arguments about the present power of the Constitution to ensure nationally uniform law, the use of these arguments remains somewhat controversial. These solutions to non-uniformity are also primarily legal rather than primarily political solutions supported by law. In this sense, they are quite indirect and incomplete methods of guaranteeing nationally uniform anti-discrimination law.
A legislative compact between the states and the Commonwealth remains the preferred option. Uniformity by any of the above routes may seem alluring in that they offer minimal change. However, centralist options such as the referral of powers by states, the operation of inconsistency doctrine, and the invalidation of state law are politically sensitive in a democratic federation. In addition, some of these routes to uniformity are legally complex and quite uncertain. For example, Justice Evatt has characterised s109 as “a rule of last resort”[32]. The cooperation of all Australian parliaments in passing legislation of identical effect avoids some of these political difficulties and is a more direct way of confronting inconsistencies and tensions within our federation. A legislative compact is a less top-down way to achieve national uniformity.
Legislative cooperation on a national scale has been referred to by some academics as “collaborative federalism”[33] and has also been suggested by some members of the High Court as a solution to the problem at the heart of some s109 cases.[34] The pursuit of collaborative solutions to resolve national disunity was given important emphasis by the Hawke Labor government in their “New Federalism” policy. This policy created the Special Premiers’ Conference and the Council of Australian Governments and seemed to challenge previous approaches such as arms-length, competitive federalism.[35]
Collaborative solutions at the administrative rather than the legislative level have been attempted in the context of Australian anti-discrimination regulation. Administrative cooperation[36] and some arrangements akin to cross vesting of complaints[37] still exist between the states and the Commonwealth in Victoria, South Australia and Western Australia. However, in December 1996 the arrangements in NSW, ACT and QLD failed, mainly due to disputes over funding contributions[38].
These arrangements are examples of administrative cooperation and differ from legislative compacts. Despite some administrative collaboration at various levels of success, legislative collaboration producing unified anti-discrimination law has not been effectively attempted in Australia to date. Legislative collaboration is an option that deserves investigation, especially in a nation that has witnessed the successful legislative cooperation resulting in uniform gun laws[39]. Admittedly, attempts to create national evidence law and national defamation law in Australia have not succeeded. Goldring has suggested that the success of collaboration resulting in uniform law is affected by political tensions between state and national interests:
If State politicians are to accept uniform laws, the political benefits of so doing must outweigh the political kudos which State politicians believe they obtain from the appearance of standing up for the rights of their States against encroachment on the powers of State Parliaments by the Commonwealth or by other States. The question [of passing uniform law] is entirely a political one.[40]
Despite this situation, these political tensions have been overcome from time to time producing legislative uniformity in areas other than the regulation of gun ownership. Some examples since 1990 include nationally uniform competition policy, regulation of interstate trade, and the formation of the National Road Transport Committee. These examples can be added to a body of uniform law achieved since federation in areas such as civil aviation, commercial arbitration, off-shore petroleum rights, child maintenance, sale of blood products, packaging and labelling. Such achievements have included the implementation of shipping conventions such as the Hague Rules.
The ongoing cooperative work being done in the Model Criminal Code Project is another heartening example of how collaborative federalism can work. The Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General has been drafting a national uniform criminal code since June 1990. The project has attracted continued support for the notion of legislative cooperation. In 1994, both the Commonwealth Government and the State and Territory Premiers’ Leaders forum gave continued endorsement of the project as “one of national significance”.[41] Recently, calls have been made for uniform laws in areas ranging from juvenile justice[42] to the law of electronic transactions[43].
Under a legislative compact model, with national coordination, the Australian people are asked to trust and interact with parliamentary representatives from all Australian parliaments. This contrasts to the extreme centralist position where the people place their trust only in Commonwealth legislators, or the extreme local position where people place their trust only in state governments. Often this type of point is put forward as a benefit of federalism generally. The distributed trust required in a federation is argued to reduce the scope for a particular government to act arbitrarily[44] Legislative collaboration enhances this political benefit of federalism, and seems to bind all Australian parliaments quite effectively to a common purpose and agenda. Importantly in the field of human rights, many national governments and international organisations have provided a number of avenues for formal and informal political pressure to be applied by individuals and groups like NGOs. The role of such actors may be even more effective when it can be aimed at refining the common legislative product of all Australian parliaments.
A legislative compact would allow the best of the State and Federal anti-discrimination schemes to be incorporated into the drafting of national laws. Furthermore, a compact of this nature can be based on nationwide parliamentary consensus. This is symbolically beneficial of itself but it would also allow the state parliaments and their Attorney General’s departments a chance to influence how our international obligations are implemented in domestic legislation. This would mean that an anti-discrimination legislative compact would also provide a way for the States to give post-hoc justification for the Commonwealth’s treaty action. All of these consequences would help to remedy the “democratic deficit” regarding how treaty ratification power is exercised within our federation.[45] This is especially important when treaties create nation-wide obligations such as periodic reporting obligations[46] where cooperation of all Australian governments is beneficial. The democratic deficit also exists at a purely national level and can be seen as a strong argument against routes to uniformity such as referral of state legislative power or the use of the inconsistency doctrine. For example, the states have often criticised centralism with arguments ranging from concerns about their autonomy to the erosion of representative democracy where the “Federal entity . . .in some way assert[s] undue dominance over the States”.[47]
Participation by the states may serve to reduce the threat to federalism and state autonomy of uniform law, especially when internationalised, uniform, domestic law results.[48] In addition to these arguments, there is a reassuring, democratic ring to sections in the national gun laws that describe a national purpose as the basis for uniform regulation[49] and make explicit reference to the lobby groups involved in the public debate that motivated the passing of the legislation[50].
The achievement of nationally uniform protection from discrimination accords better with the essence of our human rights obligations. The Australian Government has made reservations to some anti-discrimination provisions in international treaties suggesting that possible divisions of responsibility for implementing anti-discrimination principles may occur due to our federal structure.[51] However, in the case of this type of reservation to Articles 2 and 50 of the International Covenant on Civil and Political Rights (ICCPR), the Federal Government at the same time suggested that “the provisions of the Covenant extend to all parts of Australia as a federal State without any limitations or exceptions”[52]. In addition, the reservation to Articles 2 and 50 of the ICCPR states that “the Australian Government has been in consultation with the responsible State and Territory Ministers with the object of developing cooperative arrangements to coordinate and facilitate the implementation of the Covenant”. Therefore, at some stage in Australian history, the Federal Government had taken responsibility for motivating a nationally uniform and cooperative approach to anti-discrimination regulation. Tahmindjis has commented that international law has been “myopic when it comes to federations” but he supports the consequence that the national entity is held solely responsible for providing equal protection of human rights and providing equally effective remedies nationwide.[53] Article 27 of the Vienna Convention on the Law of Treaties (1969) also supports the view that Federal governments are held responsible for state and Territory breaches of international law even if the federal body is legally incapable of controlling the State or Territory’s actions[54]
Furthermore, it is important to note that existing anti-discrimination schemes have been developed in an international context[55] where Australian State government autonomy is not the only consideration.[56] In this sense, protection from discrimination is a national and international issue and not merely a state issue. The passing of anti-discrimination statutes has often been a domestic response to the demands of our international law obligations where the Commonwealth Government bears the ultimate responsibility to protect all Australian citizens from discrimination.[57] In this sense, the quality of Australia’s anti-discrimination schemes reflects our nation’s commitment to international human rights norms and the promises made to both the international community and the Australian people.
Therefore, arguments for national legislative uniformity are linked to the increasing internationalisation of domestic law.[58] Australian anti-discrimination rhetoric and legislation should be viewed as the national manifestation of shared international norms. Signing a treaty obliges all Australian parliaments and all Australians to abide by the international norms established by the international agreement. In this sense, Sir Anthony Mason has suggested that:
international affairs are conducted by nation states, not by Provinces or States. The international stage is not a suitable venue for the resolution of domestic disputes between the constituent elements in a federation.[59]
National identity and international reputation become the relevant motivations for passing uniform anti-discrimination legislation and this has regional and international significance. A uniform approach would provide a national framework within which to integrate local, state and Federal Government attempts at human rights protection according to international norms.
Freedom from discrimination anywhere within Australia should not be compromised by the exercise of a state’s legislative will. It does not seem beneficial to create national disunity in order to preserve Australian State government autonomy when national and international NGOs, fellow UN members, and treaty-compliance monitors are demanding respect for nationally uniform and internationally derived human rights norms.[60] A national approach is an appropriate way to reflect any national consensus to counter unjustified discrimination. National uniformity is appropriate if the norm of anti-discrimination is perceived by Australians to transcend the structural tensions and sub-national identities created by federalism.
The preferable view is that (inter)national intolerance of discriminatory behaviour is a norm that is relevant to regulating all governmental or individual power irrespective of where it is located within a federated nation[61]. This approach leaves little room for different regulatory approaches to be taken by Australian states shaped by state interest arguments[62] alone. A distinction can be drawn between political interests that can be safely left to the discretion of the Australian state legislatures and human rights that are more fundamental entitlements agreed between nations at the international level. The latter arguably should not be easily overborne by a State’s inappropriate focus on internal economy or majoritarianism. This distinction is especially valuable when the views or legislation of one state deviate substantially from the national norm and represent aberrant exercise of political will.[63] In this context state autonomy within the Federal structure can be regarded both as a “protection to rights, and also an impediment to their observance” (emphasis added).[64]
The suggestion of an anti-discrimination legislative compact can be linked to the campaign for a Bill of Rights for Australia. There has been some suggestion that a national legislative compact is a simpler and more promising way to achieve a statutory bill of rights.[65] Bailey has even described the grounds in the Racial Discrimination Act 1975 (Cth), s9 as a “mini Bill of Rights”.[66] In this sense, arguments supporting a Bill of Rights can also be used to support nationally uniform anti-discrimination law. Arguing for nationally uniform anti-discrimination law is conceptually similar to arguing for a Bill of Rights. The suggestion of both reforms reflects a desire for formalising national human rights norms and a desire for national consensus in the context of an internationalised domestic human rights law.[67] Achieving either a Bill of Rights or nationally uniform anti-discrimination law has benefits for Australia’s regional and international human rights reputation[68].
Nationally uniform anti-discrimination law would make it easier to determine if a piece of proposed legislation, a practice or decision constituted a breach of our international treaty obligations. In particular, this would remove from legislatures “the onus of making early or final decisions on important value issues”[69] – issues that may be hard for various legislatures to debate in the present environment of inconsistent state and Federal anti-discrimination standards. Furthermore, power holders with national activities and interests would be under uniform national regulation. A common message about anti-discrimination standards would be given to managers of inter-state businesses, whose workplaces in more than one state would be regulated in the same way. This may reduce possible forum shopping and avoidance of regulation that may be presently possible. This clarity could be attractive and beneficial to employers and may even aid business planning. Finally, national uniformity could result in consciousness-raising amongst employees, motivating them to look to national and international standards for use in comparisons of conditions and treatment. Uniformity could avoid the unsatisfactory result of being most severely discriminated against in the state with the weakest human rights protection.
Australian states may perceive uniform and internationalised human rights law as a threat to local autonomy in a similar way to the threat posed by centralism. For example, arguments of Australian state autonomy have been used by Australian states in defence of s109 inconsistency challenges by the Commonwealth. Constitutional protection of State autonomy has been achieved in cases such as Melbourne Corporation v Commonwealth [70]. However, if we place the power struggles of Federalism in the larger context of the norms of the international community, the Melbourne Corporation principles may more easily yield to the higher demand of maintaining international standards for human rights protection. In addition to the effect of this wider context, the process of formulating a legislative compact is potentially less threatening than pure centralist or global determination of state law.
The adoption of nationally uniform anti-discrimination law based on international standards may be perceived as an unwanted consequence of the “new” globalism; analogous to the exposure of vulnerable states to the global economy by encouraging zero-tariffs and greater international competition. However, this reaction towards internationalism may be less strongly felt if a co-operative legislative solution is achieved. Also, the demands for global morality, unlike ideas of an open global economy, are far from new. Failing to use international norms in order to achieve national uniformity in Australian human rights law has consequences for international diplomacy and reputation. In this sense, the debate becomes, not so much about centralism (or globalism) versus Australian state autonomy, but, rather a set of arguments for ensuring national unity that accords with the promises made as a nation to the international community. Australian States should continue to find it hard to selectively support international legal norms, especially the “refrain running through . . .the Charter [of the United Nations]”[71] of the enjoyment of human rights “without distinction of any kind”.
States could argue that their legislative powers are less constitutionally constrained than the legislative power of the Commonwealth,[72] meaning that this could enable states to pass more effective, inclusive and specifically targeted human rights legislation compared to the Commonwealth. Along these lines states could argue that a purely centralist approach could be disadvantageous. However, collaborative federalism would exploit the relative legislative freedom of the states. Broad and identical legislation could be passed in all States avoiding centralism and avoiding the constitutional restrictions on Commonwealth legislative power that can narrow the scope of the resulting laws.
A concern with centralism or Federal government leadership is the risk of minimal local initiative from the Commonwealth government. This can be simply stated as “can we trust the Commonwealth Government of the day?” There is the risk of giving a Federal government too much legislative or political power regarding human rights protection – for example, referring state legislative power to the Commonwealth or allowing them to cover the field of anti-discrimination protection – and then having that government do precious little to promote such protection. The legislative compact model avoids this concern to a great extent providing possibilities for participating State governments to maintain any call for legislative uniformity and their involvement in the drafting process.
We now turn to consider what mode of regulation uniform anti-discrimination legislation should take. Any reform here should help facilitate national unification and improve the effectiveness of human rights protection. The proposal is that one standard mode of anti-discrimination legislation be drafted which will effectively protect victims of all types of discrimination. A general definition of direct discrimination and a general definition of indirect discrimination could be provided for use in all cases of discrimination. An extensive set of grounds and areas could be listed whose combination will provide comprehensive protection of all possible discriminatory behaviour. The drafting of such tests should take account of issues that have confronted many state and Federal drafts-people such as the potential overlap between direct and indirect discrimination[73] and the role of the unreasonableness requirement[74].
The final aspect of the proposed reforms is the inclusion of an overarching principle of identity or attribute relevance. It is envisaged that such a principle may aid in the application tests of discrimination and function as a general guide for the use of the legislation. This identity relevance principle would not function as a complete discrimination test in its own right. Most importantly, its inclusion is not intended to narrow the scope of existing tests of in/direct discrimination. The nature of this principle is discussed briefly in the section below.
Overarching principles of this nature are often suggested in the discussion of discrimination. For example, Justice Kirby has recently suggested one overarching principle that could guide our approach to sexuality discrimination.[75] His Honour suggested that “people should not suffer unjustifiable disadvantage by reason of attributes over which they have no control”.[76] Kirby emphasizes that “extending this basic principle to the campaign for human rights throughout the world will be an important mission for human rights organizations in the decades ahead”[77]. In discussion of sexuality discrimination Kirby has linked this “no control” principle to the possible fact that sexuality is genetically determined.[78] The no control principle may be helpful in the context of sexuality discrimination.[79] However, in other contexts it may invite quite inappropriate questions to be considered. For example, does a victim of disability discrimination have no control over the attribute on which they were discriminated if their quadriplegia resulted from their own reckless driving? Other problematic examples include those attributes over which people do have control such as marital status, religion, industrial or political activity[80].
The no control principle does not seem comprehensive enough for inclusion as a guiding principle in a general anti-discrimination Act. An identity or attribute relevance principle would be of more help guiding in/direct tests of discrimination and it includes the subset of discriminatory behaviour to which Kirby refers with his “no control over attributes test”. This is because an attribute that is irrelevant in a situation (for example, race or disability) will often be an attribute or aspect of identity that the owner has no control over. The identity or attribute relevance principle can be described in the following way. The principle could guide responses to any type of alleged discriminatory treatment on any ground or attribute and in any area of life. It would also continue to acknowledge that not all distinctions made should constitute unlawful discrimination.
This proposed principle is similar to what has sometimes been referred to as the relevance test of discrimination.[81] This principle would proscribe the use of irrelevant attributes or identities as the basis for unfavourable treatment. An attribute that is irrelevant in a particular situation should not be used as the basis for unfavourable treatment of people with these attributes. For example, sexuality is not relevant when most hiring decisions are made so it should neither be the explicit (direct discrimination) nor implicit (indirect discrimination) basis used for deciding whether to hire a lesbian or for subsequent treatment of that employee. The determination of what is an irrelevant attribute/identity in the circumstances would be made based on the grounds and areas specified in the statute. Evidence from both the complainant and the respondent could address this relevance issue as a way to add support to claims or denials of discrimination based on arguments about ground, area, and in/direct discrimination.
There are parallels here to the way the core administrative law principles operate such as principles against the use of irrelevant considerations in decision-making or the failure to take relevant considerations into account.[82] In Banovic Deane and Gaudron JJ also drew a parallel between a relevance approach to discrimination and relevance tests used in criminal proceedings[83]
Despite separate Commonwealth statutes for the regulation of each type of discrimination, there is some similarity in the mode of regulation used in each piece of legislation. For example, many areas of life protected by the Sex Discrimination Act 1984 (Cth) are substantively similar or identical to those in the Racial Discrimination Act 1975 (Cth). Notably, many international instruments effectively use general anti-discrimination statements that proscribe the discriminatory use of attributes in irrelevant contexts or areas of life. The proposed statute would be a consolidated approach that would support these internationally-made promises to eliminate all forms of discrimination of any kind.[84]
A general statute may also help the anti-discrimination message to extend more easily to new and unprotected grounds and areas; helping to build core norms reflecting a respect for the human right of non-discrimination. This approach seems integral in order to afford attitudinal change over time and creating a culture of human rights protection in Australia[85] enabling an effective pre-emptive strike against new forms of discriminatory attitudes and behaviour.
One argument against a general mode is that important specificity in targeted human rights protection may be lost. This reflects the belief that different types of discrimination demand different types of response and protection. Such fears may relate to the need for specialized remedies and procedures in response to discrimination in different areas of life rather than different tests of discrimination. A tailoring of remedies and procedures to suit certain types of discrimination could still be achieved in a statute with a generalized discrimination test and overarching principle. Such a test need neither reduce the quality of protection nor reduce the range of remedies offered. Specificity of protection would high provided a detailed and socially realistic set of grounds and areas is included in the proposed statute and the scope for various combinations of them is broad. What would need to be avoided is a general statute becoming an ineffectual scheme whose generalization fails to protect Australians from substantive as well as formal inequality in a wide range of areas of life.
Most importantly, any reform should not amount to standardization and simplification justified solely by economic rationalism and administrative convenience. The proposed reform is not meant to signal disregard for benefits that specialization may provide to potential complainants[86]
Another concern is that general tests of discrimination would require a greater exercise of discretion. This may lead to the fear that the protection offered to victims of specific forms of discrimination is reduced. This discretion argument suggests the importance of drafting the legislation in such a way as to minimize available discretion in the early stages; preventing the number of complaints failing at the first hurdle, where a determination is made about whether discrimination has occurred. Maybe the relevance of identity/attribute principle has a role to play in addressing this problem. In any case, this problem would exist to a similar extent under statutes currently regulating only one type of discrimination. Therefore the drafting required to avoid this problem is not significantly harder to achieve in a general Act than in a separate Act.
A final argument against a general Act is that generality already exists at the state level. Admittedly, some good models of generalized anti-discrimination law exist at the state level, with most statutes having general names and with most legislation protecting more than one ground or attribute [87]. However, the lack of national uniformity decreases the effective benefits of any generality, even in those jurisdictions where the test of discrimination is quite general and the grounds included in the legislation are diverse. For example, tests of both direct and indirect discrimination in the Anti-Discrimination Act 1991 (Qld) can be applied to the thirteen grounds covered in section 7 of that Act. These attributes are sex, marital status, pregnancy, breastfeeding, age, race, impairment, religion, political belief or activity, trade union activity, lawful sexual activity and association with any person identified on the based of any of these attributes. The general approach taken by some States and by the Commonwealth in some aspects of its legislation should be retained and reworked into any uniform and general national approach.
Our developing knowledge of the social psychology of intra- and international relations and the perception of human rights regimes lends support to the thesis presented in this paper. The psychology of identity arguably underlies our perception of law and our deference to it.[88] It is useful to conclude this paper with a consideration of how social psychological theories of identity can be applied in the context of intranational and international relations in general and to the phenomenon of discriminatory behaviour in particular. The uniformity proposal is supported by a consideration of how Australian State and national identification occurs within an international context. Discussion of some psychology of discrimination is made in support for the proposed generality of anti-discrimination law.
The use of social psychology in the context of the legal theory of human rights seems consistent with Charles Sampford’s “fourth dimension” of human rights that he describes as being “psychological such that exercising the right involves a real choice by the right holder”[89]. Sampford suggests that “a human right in its fullest sense requires this fourth dimension for its realization”,[90] and that there is a need to consider the psychological basis for human rights attitudes, behaviours and institutional preferences in terms of the values and morals held by the right holder.[91] A social psychological approach also addresses Shelly Wright’s concern that human rights language and theory not fragment what it means to be human.[92] Kirby adds that the psychology of the perpetrator is relevant in addition to a focus on the psychology of the potential victim of human rights violations. His Honour claims that to be:
truly successful in combating discrimination and sustaining the effort, we must begin at the source of the problem: in the minds of those whose behaviour we must hope to modify – for their own protection, for the protection of others and for the protection of society.[93]
The existence of human rights instruments, institutions and norms continues to stimulate social psychological research.[94] Often legal academics use terms and approaches similar to those at the heart of social psychological research. This includes references to self-esteem, stereotyping[95], social identity and social perception. However, all too often a real discussion of psychological research is avoided in preference to using only political theory, legal theory or philosophy.
The following sections describe how a social psychological theory – Self-Categorization Theory (SCT)[96] – may be used to support calls for uniform and general anti-discrimination law. The SCT approach has included research of phenomena including personal identification, social identification, inter-group relations, social conflict, negotiation, organizational psychology, stereotyping and prejudice. Briefly, the theory suggests that social perception and behaviour are explicable by the interaction between social contexts and self-definition. Theoretical emphasis is given to the role of comparative contexts in explaining identification. In other words, the identity which is the most appropriate for defining self in context is determined partly by who you implicitly or explicitly compare yourself to when considering an issue or conflict. The interactions between social, cognitive and motivational aspects of identification processes are important for SCT.
Identity is thought to be relative and variable though not relativistic and vague[97]. Therefore, SCT is grounded and closed unlike some postmodern theories of identity. Self-Categorization theorists would argue that their psychological approach does not amount to “the vague relativism of political discourse [that] has no place in law”.[98] Additionally, Self-Categorization theory shares some similar conclusions to scholars seeking to realistically examine the role of identity in legal contexts. The work of Wayne Morgan is important here where he states:
We can no longer act on the basis of natural identification [eg. an essentialised gay and/or lesbian identity], but only on the basis of conscious coalition, of affinity, of political kinship (emphasis added).[99]
The following social psychological arguments relate to ideas of social influence and inter-group relations that are highly relevant for understanding the development, maintenance and enforceability of human rights norms.
In some circumstances the different state and Federal modes of anti-discrimination regulation do not correspond to our sense of national identity and the role that international human rights norms play in defining Australian identity. This is especially the case when these questions of identity are placed in the context of our international obligations where we often “pride ourselves on our reputation as a good international citizen”[100]. Maybe it is more helpful to acknowledge that often in the context of human rights it is our national identity in an international comparative context, rather than our sub-national identities in the intranational context of Australian federalism, that is more psychologically relevant. This seems to have been the argument of Deane J in Metwally commenting upon the interpretation of s109:
the Australian federation was and is a union of people and . . . . whatever may be their immediate operation, the provisions of the Constitution should properly be viewed as ultimately concerned with the governance and protection of the people from who the artificial entities called the Commonwealth and States derive their authority[101]
In this sense, the “artificial entities” of the Commonwealth and the states are psychological constructions of identity that can be adopted by the people to reflect social consensus and the values of nationhood or statehood in international or national contexts respectively. Federalism is a double-edged sword in terms of its ability to form and maintain national identity. It divides as much as it nationalizes. Australian federalism can also constitute a severe limitation on the applicability and effective use of international human rights norms in the domestic context. Mason has been critical of the inappropriate use of federalism, stating that “the amorphous notion of the federal balance”[102] is not a good enough reason to prevent the implementation of a treaty into Australian law.
If national uniformity is perceived by the people to be the most appropriate approach to the regulation of discriminatory behaviour, a uniform scheme may then have a better chance of producing confidence in our anti-discrimination law. It may also facilitate the psychological internalisation of anti-discrimination norms that are relevant to the identities and the comparative contexts involved when human rights standards are asserted. This seems preferable to persisting with laws that may confine our identity to the domestic level when, anti-discrimination – an international human rights issue – often forces us to identify trans-nationally and make international comparisons. Transnational identities of this nature seem to be defined less by geography and the most divisive aspects of Australian federalism per se and more by the values of internationalism which may impact on the domestic definitions of national values and conceptions of sovereignty.
National consensus is an important step towards effective national protection of human rights. In the social-psychological jargon of Self-Categorization Theory, Australian State identity may be made salient by issues affecting that State in domestic comparative contexts; resulting in identification with the State, greater State partisanship, greater State consensus on that issue and greater State pride. Similarly, international issues affecting Australia as a member of the international community (for example, our protection of international human rights norms) may increase the salience of our national identity in an international comparative context; resulting in national identification based on a desire for national consensus. In this sense, national uniformity in law may be a way to encourage the use of internationalist values, allowing us to shift our self-definition and group identification from the State level to identification at the national and international level. Legislative compacts may then be useful not only for remedying any democratic deficit, but they may be useful for psychological reasons as well. National legislative agreements to pass uniform law seem a psychologically sound way of reconciling our domestic and international identities.
Importantly, Self-Categorization Theory would not suggest that transnational identification permanently extinguishes domestic identities. Some sociological theories of globalization seem to argue for such identity redundancy at the domestic level, or at least suggest that a blurring of boundaries occur producing hybrid identities.[103] Such arguments are dangerously related to statements that pronounce the nation state to be dead.[104] Self-Categorization Theory suggests that domestic identities are left psychologically intact when not used and that they may become relevant at other times and in other contexts after a period of transnational identification has occurred. This reflects flexibility over time – though not an unconstrained variation or a fragmentation of humanness. SCT attempts describe and explain how we perceive our humanity and how our various possible identities are utilized in a constrained, contextualised and socially responsive way.
Perhaps the most important psychological argument supporting a generalized anti-discrimination law is that such legislation would recognize the complexity and richness of social life. This is surely preferable to using legal tests that may unduly misrepresent this richness. Social interaction in a diverse society[105] necessarily involves the psychological juggling of clashing, complementing, overlapping and seemingly contradictory multiple group memberships and identities. These memberships and identities may be derived from physical attributes and/or psychological attributes (like social groupings) and are the very stuff of day-to-day social interactions.
If this point is not recognized at the outset by legislators of anti-discrimination law, the resultant law may simply be psychologically condescending and ahuman; maybe also too restrictive and unworkable. Such laws would represent poorly researched reactions to the social psychological reality that we use attributes and identities to define others and ourselves. Anti-discrimination law must acknowledge that the process of social categorization leads to positive outcomes (for example, affirmation and legitimization of identity, self-esteem, pride, and confidence to argue for identity-based self-determination) as well as negative outcomes (prejudice and racism). This is not an argument that suggests Australia should weaken the protective scope of its anti-discrimination law. On the contrary, being mindful of these psychological aspects of identity may help guide action in complex areas of Australian human rights law.
Social psychological theories suggest that we do categorize others and ourselves in many complex ways. As a result, we may be discriminated against in many complex ways:
The difference between [identities] is not a matter of the attributes that define the categories or of the abstract level of inclusiveness of the categories used to define self . . . . What matters is how the self is actually being defined in a specific instance, the level of comparison and self-categorization that is actually taking place and the subjective sense of self that results.[106]
This statement highlights one of the central social psychological arguments for establishing a relevance principle in a general anti-discrimination statute dealing with all forms of discrimination. A relevance principle would promote the consideration of how an attribute or ground as defined in an anti-discrimination statute is contextualised by the area of life with which it is combined. It would seek an answer to the following question when determinations of unlawful discrimination are being made: Is the attribute relevant to the area of life in which it has been used as a basis for decisions or behaviour? Such relevance or, in the jargon of SCT, the “fit between attribute and context”[107] is what social psychologists claim governs categorical perception and processes such as self-identification.
Self-Categorization Theorists believe that such processes determine how we define ourselves and why others often wish to be identified by their group memberships. Such relevance permits us to use socially-condoned and appropriately contextualised differential treatment: such as praising Nova Peris-Kneebone as a successful female Aboriginal athlete, or offering flexibility in workplace arrangements to pregnant women or RSI sufferers. This flexibility is one important psychological justification for the continuance of special measures, affirmative action or positive discrimination exemptions in Australian anti-discrimination law. It also explains why such measures can be welcomed by their beneficiaries and may often be tolerated at the same time by non-beneficiaries. Special measures often embody appropriate references to an attribute and can be then perceived as relevant to an identity made salient by context. This psychological process may prevent a perception of tokenistic and disempowering paternalism by the recipient of special treatment and can help to prevent the perception of social injustice by the non-recipients.
We are not psychologically adapted to a world that is formally equal and prevents us from asserting and being treated according to relevant identities. We will, however, psychologically react to irrelevant links being made between some attributes and some areas of life. Flexibility in identification over time and place explains why we sometimes welcome identity-based or attribute-based treatment, while at other times we are motivated to complain of unfair discrimination. Such arguments support both a relevance principle of discrimination and the use of a general anti-discrimination statute. These psychological processes arguably apply irrespective of the type of attribute involved.
Goldring has suggested that “where politicians can be convinced that uniformity is desirable, not for its own sake but because of the benefits it offers, uniformity is possible.”[108] Nationally uniform and general anti-discrimination law within Australia would not threaten the effectiveness of human rights protection in Australia. In fact, it may provide much better protection of human rights. In this sense, the suggested reforms aimed at providing uniformity and generality are neither suggested as reforms for their own sake nor as part of some “great pipe dream” [109]. Instead, it is claimed that Australia’s ability to protect human rights may remain weak without such reforms. The preference for a collaborative legislative solution acknowledges the importance of engendering, for example, “political support for unification which can only come from an appreciation of the full extent of the disadvantages of diversity of state laws and the benefits of uniform laws.”[110]
The reforms suggested in this paper could facilitate greater internationalization of our domestic law, and shift our focus to the more relevant question of honouring our international obligations rather than concentrating purely on domestic issues such as state legislative autonomy and federalism[111]. It could also provide greater national consensus about the importance of human rights protection, and, above all, acknowledge that we are psychologically able to identify as members of an Australian State, of Australia, and of international organizations when the need arises. Such an acknowledgement focuses theorizing on an understanding of our humanness[112] rather than on aspects of our federal structure. The latter may add little which encourages a national desire for effective anti-discrimination and human rights protection. Uniformity in approach can only add to the benefits of generalizing anti-discrimination law and clarifying the definition of all forms of discrimination. Adequate specialization could still be achieved by careful drafting of the relationships between ground and area and ensuring that appropriate access to tailored processes and remedies remains in certain cases. These suggested reforms accord with social psychological theory of how the social identification process operates in a society where many attributes can define our social group memberships.
[*] BSc (Hons) LLB (ANU), PhD candidate in Psychology, ANU. The author wishes to thank Peter Bailey, Dr Penelope Oakes and two anonymous reviewers for comments on an earlier draft
[1] Savings provisions preserve State legislative power in Racial Discrimination Act 1975 (Cth), s 6A; Sex Discrimination Act 1984 (Cth), s 10(3) and 11(3); Human Rights and Equal Opportunity Commission Act 1986 (Cth), s4; Disability Discrimination Act 1992 (Cth), s 13(3).
[2] Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Human Rights and Equal Opportunity Commission Act 1986 (Cth), Disability Discrimination Act 1992 (Cth).
[3] Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 1984 (Vic); Equal Opportunity Act 1984 (SA); Equal Opportunity Act 1984 (WA); Anti-Discrimination Act 1991 (Qld); Discrimination Act 1991 (ACT); Anti-Discrimination Act 1992 (NT); Anti- Discrimination Act 1998 (Tas).
[4] Compare the common State Constitutional formula of power to legislate for the peace, order and good government of the State in contrast to the express and implied constitutional limits on Federal legislative power and the enumeration of legislative power in s 51 of the Commonwealth Constitution.
[5] Michael Kirby “Discrimination: the Australian Response”, (1993) 19 Commonwealth Law Bulletin 1691, 1693.
[6] M Walden “School Principles”, (1998) The Weekend Australian June 27-28, p19.
[7] Anti-Discrimination Act 1977 (NSW), s 49ZH(3)(c).
[8] Sex Discrimination Act 1984 (Cth), s37.
[9] Equal Opportunity Act 1984 (Vic).
[10] As a general guide to the inconsistency of Australian anti-discrimination law see Bailey P and A Devereux “The Operation of Anti-Discrimination Laws in Australia” in D Kinley (ed) Human Rights in Australian Law (The Federation Press, 1998) p 298.
[11] Walden, n 6.
[12] Which author is this in reference to? Use above n insteadop cit at 310-313.
[13] The inability to obey both Federal and State laws: R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23; or, when one law confers a right and the other law diminishes that right or takes it away: Calvin v Bradley Brothers Pty Ltd [1943] HCA 41; (1943) 68 CLR 151.
[14] Clyde Engineering Co. Ltd v Cowburn (1926) 37 CLR 466 per Issacs J; Ex parte McLean (1930) 43 CLR 472 per Dixon J.
[15] One way to do this includes explicitly stating an intention to cover the field in Commonwealth anti-discrimination statutes and repealing the savings provisions in all Commonwealth Acts that preserve the concurrent exercise of State legislative power: see G McCarry “Landmines Among the Landmarks: Constitutional Aspects of Anti-Discrimination Laws”, (1994) 63 Australian Law Journal 327 at 342.
[16] Ibid at 332-333.
[17] Ibid at 341.
[18] H PLee “Retrospective amendment of federal laws and the inconsistency doctrine in Australia”, (1985) 15 Federal Law Review 335.
[19] Tajmindjis P "Is the Closure of QLD and ACT offices of the Human Rights and Equal Opportunity Commission a breach of Australia's international human rights obligations?" (1997) Australian and New Zealand Equal Opportunity Law and Practice (CCH, Vol 2, 91-713) 76144 at 76147-8: "In general, state and territory anti-discrimination legislation is in fact of wider application than the federal, covering grounds such as breastfeeding, age, religion, sexuality, transsexuality, political belief and trade union activity which either do not exist or are unenforceable at the federal level"; also compare how differently discrimination on the ground of race is regulated under the Anti-Discrimination Act 1991 (Qld) compared to the Racial Discrimination Act 1975 (Cth).
[20] McCarry, above n 15 at 332-334.
[21] [1983] HCA 15; (1983) 153 CLR 280 at 290.
[22] G Williams, Human Rights Under the Australian Constitution (Oxford University Press, 1999), p52.
[23] B A Hocking "Where Are We After 10 Years of Anti-Discrimination Law" (1995) 15 Proctor 19, P21.
[24] In terms of invalidating Commonwealth legislation that results in unequal protection between states: New South Wales Anti-Discrimination Board Annual Report (NSW Government Printing Service, 1985) at 85; McCarry, above n 15, p334.
[25] P Hanks “A National Aboriginal Policy?”[1993] UNSWLawJl 4; , (1993) 16 UNSW Law Journal 45; the Hanks line is supported by Gaudron and Kirby JJ in Kartinyeri v Commonwealth [1998] HCA 22; (1998) 152 ALR 540, but see the judgement of Gummow and Hayne JJ in the same case where they find that the race power could be used to the detriment of Aborigines; note that the issue of whether the race power can be used to the detriment of Aborigines was not finally determined in Kartinyeri; Williams above n 22, p252-253.
[26] P Bailey Human Rights: Australia in an International Context (Butterworths, 1990); Williams, above n 22.
[27] Bailey ibid, p84-6.
[28] Commonwealth Constitution, ss 41, 51(2), 75, 84, 99, 102, 104, 116, and 117 as described ibid.
[29] Davis v Commonwealth (1988) 199 CLR 79.
[30] Commonwealth v Tasmania (1983) 158 CLR 1.
[31] Ibid at 252; see also arguments by Wilson and Dawson JJ in Davis op cit at 101-104 for implying the nationhood power from the text of the Constitution such as ss 61 and 51(39).
[32] Victoria v The Commonwealth [1937] HCA 82; (1937) 58 CLR 618 at 634.
[33] M Painter Collaborative Federalism: Economic Reform in Australia in the 1990s (Cambridge University Press, 1998).
[34] A legislative compact was suggested separately by Murphy J and Deane J in University of Wollongong v Metwally (1984) 158 CLR 447: see the discussion in HP Lee, “Retrospective amendment of federal laws and the inconsistency doctrine in Australia” (1985) 15 Federal Law Review 335, p342.
[35] Op cit at 1 and 7; Hawke RJL “Towards a Closer Partnership”, speech given to the National Press Club, Canberra, 19 July 1990.
[36] Described by Tahmindjis n 19 at 76144 as the running of sensible and convenient one-stop shops explaining differences between jurisdiction and providing advice on which one to choose, helping to avoid fragmentation and duplication of function.
[37] The Equal Opportunity Commissions in these states can handle Federal complaints that occur within those States: Bailey and Devereux n 110 at 299-300.
[38] Op cit at 76145; separate administrative arrangements exist in NT and TAS.
[39] These statutes include three Commonwealth statutes: National Firearms Program Implementation Act 1996, 1997, 1998 (Cth) and the following State legislation: Weapons (Amendment) Act 1996 (ACT), Firearms Act 1996 (ACT), Firearms Act 1996 (NSW), Firearms (Miscellaneous Amendment) Act 1996 (SA), Firearms Act 1996 (Tas), Guns Amendment Act 1996 (Tas) Firearms (Prohibited Firearms) Act 1996 (Vic), Firearms Act 1996 (NT), Firearms Act 1996 (Vic), Firearms Amendment Act 1996 (WA).
[40] Goldring J “Unification of Laws in Australia: The Great Pipe Dream”, (1977) 1 Uniform Law Review 82 at 116.
[41] Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General Model Criminal Code, (Report of the Model Criminal Code Officers Committee, Chapter 9, Offences Against Humanity: Slavery, 1998) p i; see discussion of the history of this Standing Committee in Goldring ibid at 91-94.
[42] ALRC and HREOC, “Speaking for Ourselves: Children and the Legal Process” (1996), Issues Paper No. 18, (Australian Government Printing Service, 1996).
[43] See recent statements by the Attorney General regarding the Electronic Transactions Bill 1995 (Cth) in Williams D “States Free in E-trade”, (1999) The Australian (Letters to the Editor, Wednesday 3 February).
[44] Williams n 22 at 52; this consequence seems even more important when no Bill of Rights exists as a further method of shaping legislative action nationwide.
[45] Mason AF The Internationalisation of Domestic Law, (Centre for International and Public Law, The Australian National University, 1996, Law and Policy Papers, No. 4).at 13; the introduction of National Interest Analyses by the Joint Standing Committee on Treaties and with public consultation is also a positive step in overcoming any “democratic deficit”
[46] ICCPR article 40, CERD article 9, CEDAW article 18, Convention Against Torture article 19.
[47] Bailey n 26 at 67.
[48] Mason n 45 at 7.
[49] Eg. Firearms Act 1996 (ACT), s 3(1)(c) where the purpose of the Act is stated as “to facilitate a national approach to the control of firearms”.
[50] Eg. Firearms Amendment Act 1996 (WA), s 11(2)(b) which refers to four meetings of the Australasian Police Ministers’ Council who argued for nationally uniform gun laws.
[51] Australia's reservation to Articles 2 and 50 of the ICCPR reads: "in relation to the Australian States the implementation of those provisions of the Covenant over whose subject matter the federal authorities exercise legislative, executive and judicial jurisdiction will be a matter for those authorities; and the implementation of those provisions of the Covenant over whose subject matter the authorities of the constituent States exercise legislative, executive and judicial jurisdiction will be a matter for those authorities".
[52] Ibid.
[53] Tahmindjis above n 19 at 76 145-6
[54] Ibid at 76 145; in this sense the Federal Government could take the lead in encouraging uniform law to avoid the difficult situation whereby the Federal Government must respond to a communication to a treaty body based on nationally exceptional legislation or practice that attracts international critique. This situation existed when Nick Toonen complained of Tasmania's anti-gay laws to the UN Human Rights Committee: Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992, 4 April 1994.
[55] Bailey n 26; Mason n 45.
[56] Mason ibid at 3.
[57] Gaudron lists such international law in Gaudron M "Equal Rights and Anti-Discrimination Law", (1992) The Sir Richard Blackburn Memorial Lectures at 5-6: Universal Declaration of Human Rights (“UDHR”); Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”); International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”); International Covenant on Civil and Political Rights (“ICCPR”); International Covenant on Economic, Social and Cultural Rights (“ICESCR”); Convention on the Political Rights of Women; International Labour Organisation Convention Concerning Discrimination in Respect of Employment and Occupation; Convention Against Discrimination in Education; also Williams, n 9 at 11-12; Bailey, n 11 at 28 claims that no less than eight of the seventy general instruments promulgated under the UN relate specifically to the prevention of discrimination.
[58] Mason n 45.
[59] Ibid at 11.
[60] There is an argument that some international instruments covering issues other than discrimination may not require equal or uniform operation between Australian States for the treaty obligations to be fulfilled: see McCarry n 15 at 332 including his footnote 45.
[61] This seems to be related to arguments for universalism which do not allow cultural variation to erode human rights norms. In this sense alleged variation between the "culture" of different Australian States should be acknowledged but not allowed to fracture the framework of international human rights norms to which we purport to subscribe as a nation.
[62] The decision in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 is concerning in that it seems sympathetic to the use of economic arguments by Australian States to excuse them from expensive non-discriminatory practices.
[63] Bailey n 26 at 69; a desire to eliminate such aberrant State law seemed to motivate the Commonwealth’s reply to the Toonen complaint to the Human Rights Committee: see n 54 at para 6.5 in terms of interference with the national HIV/AIDS strategy; para 6.6 regarding the national mores of privacy and the repeal of laws criminalising consensual homosexual sex by other states; para 6.7 regarding the national acceptance of a right to sexual orientation; and para 6.8 which described the Tasmanian laws as a disproportionate way to protect Australian society’ moral standards. The Committee commented that Tasmania seemed to be a legal anomaly on the issue of homosexual rights at para 8.6.
[64] Bailey n 26 at 67.
[65] A legislative compact which results in nationally uniform and effective rights protection is a much simpler process than requiring joint enactment of Commonwealth and State Parliaments to change the Constitution to insert a Bill of Rights which could also provide a constitutional basis for nationally uniform anti-discrimination law: Bailey above n 26 at 67.
[66] Ibid at 188-190.
[67] Ibid at 67: "a national measuring stick to ensure that fundamental rights are observed".
[68] Ibid at 75-6.
[69] Hocking n 23 at 73.
[70] [1947] HCA 26; (1947) 74 CLR 31; see also Queensland Electricity Commission v Commonwealth [1985] HCa 56; (1985) 159 CLR 192; Re Australian Education union; Ex parte Victoria [1995] HCA 71; (1995) 184 CLR 188.
[71] Bailey n 26 at 28.
[72] Above n 4.
[73] See Bailey and Devereux n 10 at 310-312 for a discussion of potential overlap between direct and indirect discrimination and note the combined test in the Discrimination Act 1991 (ACT) discussed in at 312; for example, the Anti-Discrimination Act 1991 (Qld), s 8 defines discrimination on the basis of an attribute to be direct and indirect discrimination on the basis of inter alia, " (d) an attribute that a person had, even if the person did not have it at the time of the discrimination." This approach when linked to this subsection indicates that some approaches to discrimination do blur the boundaries between direct and indirect discrimination; see also the Discrimination Act 1991 (ACT) which similarly lumps indirect and direct discrimination together.
[74] Ibid at 312-313.
[75] Kirby M "Justice for All" (1999) The Weekend Australian July 3-4 at 19; this is an edited version of a speech prepared for delivery to the Kings College (London) School of Law conference on Legal Recognition of Same-Sex Partnerships; Kirby M “Human Rights: An Agenda for the Future”, in Galligan B and Sampford C (eds), Rethinking Human Rights (The Federation Press, 1997)
[76] Kirby in Galligan and Sampford at 7.
[77] Ibid.
[78] Kirby "Justice for All" n 75.
[79] Though this is subject to the findings of the Human Genome Project
[80] I am indebted to an anonymous reviewer for these examples.
[81] For examples of this test see the discussions of “legitimate considerations in Leves v Haines (1986) EOC 92-167 at 76362; relevant base group selection and relevant comparisons in Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 179 per Deane and Gaudron JJ; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 per Mason CJ and Gaudron J at 363: “Anti-discrimination legislation operates on the basis that certain characteristics or conditions are declared to be irrelevant or impermissible”; see also the concern that “reasonableness” should be taken to mean relevance as the core of the relevance test in Waters at 364.
[82] Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(2)(a) and 5(2)(b).
[83] Banovic n 81 at 179.
[84] For example, UDHR, articles 2, 7 and 23; ICCPR, articles 2, 16, 24, 26.
[85] Williams n 22 at 269-270.
[86] See the debates surrounding proposed reforms to HREOC in Boniface DJ "Does Anyone Really Know Where We Are Going?: Changes to the Human rights and Equal Opportunity Commission" [1997] AUJlHRights 25; (1997) 4 Australian Journal of Human Rights 206.
[87] See n 3.
[88] Tyler TR Why people obey the law (Yale University Press, 1990); Tyler TR “Beyond Self-Interest: Why People Obey Laws and Accept Judicial Decisions”, (1998) 8 The Responsive Community: Rights and Responsibilities 44.
[89] Sampford C “The Four Dimensions of Rights” in Galligan B and Sampford C (eds), Rethinking Human Rights (Federation Press, 1997) p 56
[90] Ibid.
[91] Ibid; Sampford C “The Dimensions of Rights and Their Protection by Statute” in Sampford C and Galligan B (eds), Law, Rights and the Welfare State (Croom Helm, 1986); Sampford C “The Dimensions of Liberty and Their Protection by Courts” (1986), 4 Law in Context 29.
[92] Wright S “The 50th Anniversary of the Universal Declaration: Reflections on Narratives of Humanness in International Human Rights” (1998), Proceedings of the 6th Annual International Law Conference of the Australian and New Zealand Society of International Law, 19-21 June, Canberra, Australia, p 39, <http://www.law.anu.edu.au/centres/cipl> .
[93] Kirby n 5 at 1698.
[94] Including recent large-scale work on human rights values, attitudes and behaviours in cross-cultural contexts: Doise W, Spini D and Cléménce A “Human Rights Studied as Social Representations in a Cross-National Context”, (1999) 29 European Journal of Social Psychology 1.
[95] Op cit.
[96] Turner JC, Hogg MA, Oakes PJ, Reicher S and Wetherell M Rediscovering the Social Group (Basil Blackwell, 1987).
[97] Turner JC, Oakes PJ, Haslam SA, and McGarty C “Self and Collective: Cognition and Social Context”, (1994) 20 Personality and Social Psychology Bulletin 454.
[98] Director-General of Education v Breen (1982) 2 IR 93 at 103 per Hutley JA.
[99] Morgan W "Queer Law: Identity, Culture, Diversity, Law" (1995) 5 Australasian Gay and Lesbian Law Journal 1 at 40.
[100] Mason n 45 at 10.
[101] University of Wollongong v Metwally (1984) 59 ALJR 48 at 59; see also Painter’s point that artificial barriers are set up by divided government. Above n 26, p5.
[102] Ibid, p11.
[103] J Pieterse “Globalization as Hybridisation”, (1994) 9 International Sociology 179.
[104] As criticized by Wiseman J Global Nation? Australia and the Politics of Globalization (Cambridge University Press 1998) p107-108.
[105] T R Tyler, R J Boeckmann, H J Smith, and Y J Huo Social Justice in a Diverse Society (Westview Press: 1997).
[106] Turner et al. n 97, p455.
[107] P J Oakes, J C Turner and S A Haslam, “Perceiving People as Group Members: The Role of Fit in the Salience of Social Categorizations”, (1991) 30 British Journal of Social Psychology 125.
[108] Goldring above n 40, p117.
[109] As in Leach above n .
[110] Op cit at 116-117.
[111] Bailey and Devereux n 10 at 318 conclude that “International law, from whence the central concept of discrimination has arisen, is enjoying a renewed prominence in shaping understandings of central concepts such as substantive equality and the appropriate targets of anti-discrimination law”.
[112] Wright n 92.
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