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There is an element of incongruity in describing as a requirement or condition, compliance with which is required in the terms and conditions of employment as a casual teacher, a requirement that in order to access higher levels of salary, one must cease to be a casual teacher and obtain permanent appointment.[88]
In contrast to this restrictive approach, which regarded the two classifications as discrete, the minority felt that it was necessary to go beyond the value of the work to consider their rights and obligations. It is impossible not to agree with Kirby J (dissenting) that the interpretation adopted by the majority is 'narrow and antagonistic' to the beneficial and purposive approach mandated by the legislation.[89] The majority's deference to the employer's historic and gendered categorisation of casual and permanent staff, despite repeal of the statutory exception, had the effect of defining the discrimination complaint 'out of existence.'[90]
Ironically, Gummow, Hayne and Crennan JJ, in the very course of articulating a restricted meaning for the phrase 'requirement or condition', noted that the legislation is to be given a broad rather than a technical meaning.[91] They state that it was wrong to ask 'what was the requirement or condition' rather than 'whether the perpetrator engaged in a proscribed form of discrimination…'[92] It seems to me that the requirement or condition must be established before ascertaining whether it exerted a discriminatory effect or not. In this case, the permanency requirement disproportionately impacted on the complainants because they were women.
The restrictive interpretation adopted by the majority avoids consideration of the gendered nature of casual employment and why women 'choose' to do it, or feel duty bound to accept it. The majority position is striking in light of the fact that all but two of the complainants had formerly occupied permanent positions in the teaching service. In most cases, the explanation for the transfer to the casual category was simple. They had resigned to care for their families, a sacrifice not expected of their male partners.[93] When the women subsequently sought to return to the teaching service, permanency entailed them accepting a posting anywhere in the State, but they were not free to relocate because of family commitments. The social norm prevailed that they follow their partner's place of work and accommodate the needs of their families. Accordingly, they accepted casual positions that were accessible to their homes.
The powerful norms that govern gender and familial relations, to which I have adverted, have long shaped the employment conditions of women. A positivistic reading of the text of the ADA effectively sloughs off the historic discrimination inhering within the differential pay scales. The narrow stance adopted by the majority contrasts markedly with the earlier judgment of Banovic, in which Justices Deane, Dawson and Gaudron determined that past discrimination could not be used to justify conduct that continues to discriminate unfairly against women.[94]
While Amery[95] adopts a technocratic approach in the interpretation of a requirement or condition that appears to be neutral and depoliticised, its meaning is shaped by the juridical hermeneutic world which, in turn, is shaped by the shifts and turns within the broader socio-political nomos. This includes the neoliberal swing in favour of flexible work that is casual and precarious but which suits employers because it cuts costs. Such work is overwhelmingly feminised.[96] Precarious work suggests a greater deference to employer prerogative, as we see in Amery; workers' rights, including the non-discrimination principle, are no longer in the ascendancy.[97]
Focusing on the value to the employer of contingent or precarious work at the expense of employees also reifies the conventional public-private dichotomy of liberalism, as it cloaks the reasons why women predominate in this type of work and how it contributes to systemic discrimination in the workplace. While the normative universe comprises an unstable mixture of imperial and paideic elements, and various shades in between, neoliberalism, in conjunction with the prevailing neoconservatism, has legitimated the contemporary imperial turn in adjudication on issues of sex discrimination.
The concept of reasonableness, invariably the most vexed element of the indirect discrimination test, also deserves comment as it represents a classic instance of the abdication of responsibility by the legislature, which I have identified as a marked characteristic of anti-discrimination legislation. This familiar standard is left entirely to judges to interpret and invest with meaning within a particular context, or it is otherwise devoid of meaning. For this reason, Julius Stone described reasonableness as a concept that is 'slippery and even treacherous'.[98] Its open-ended character allows judges to determine whether to look to the future or the past and, in so doing, whether to favour the perspective of the complainant or the respondent. Some legislation now includes criteria to which the courts should pay particular heed when addressing the reasonableness test,[99] which gives the appearance of objectivity and certainty. While such mechanisms serve to obscure the subjectivity of the judge, the leeways of choice are inescapable. This is the case whether the onus of proving reasonableness is on the complainant or whether it has shifted to the respondent.[100]
The test of reasonableness is frequently the sticking point in indirect discrimination complaints, and there is a growing body of case law around the term,[101] although this is not necessarily illuminating. The longevity of a practice can endow it with a veneer of reasonableness, which may well have been a factor in Amery, although reasonableness was discussed only by Gleeson CJ (Callinan and Heydon JJ agreeing). Gleeson CJ was of the view that while the nature and quality of a permanent officer and casual teacher may be identical, the issue of deployability in a large geographical area could not be ignored.[102] He determined that it had not been shown to be unreasonable to pay the two categories differently.[103] Thus, even if this case had not foundered on the identification of the requirement or condition with which the complainants were expected to comply, the application of the reasonableness standard may well have proven fatal.
I propose to consider two appellate decisions that turned on the issue of reasonableness in the domain of sex discrimination to illustrate the extent and power of the hermeneutic role at the authoritative level: Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission ('Commonwealth Bank'),[104] a decision of the Full Bench of the Federal Court, and Schou,[105] a decision of the Victorian Court of Appeal. These decisions may be fruitfully considered alongside Amery because they involve indirect discrimination arising from maternity and caring responsibilities that disproportionately impact on women. In both cases, the complainants failed because of the favouring of a managerial perspective over the interests of the complainants, which had the effect of upholding the status quo.
It might be noted that both cases would probably have gone to the High Court had the complainants been able to afford it. On the basis of Amery and other recent discrimination cases,[106] however, it would not necessarily have been advantageous for them. In these cases, the leaning towards retention of an imperial world would not only have implicitly privileged corporate power and Benchmark Men, the unencumbered subjects of liberal legalism,[107] but managerial prerogative would also have been privileged over workers' rights. Recourse to the convenient catch-all concept of 'reasonableness' authorises the legitimation of this ordering by judges.
While reasonableness is normally an issue for an initial hearing, I have chosen to focus on appellate decisions, where the jurisgenerative role is respected and well established. Reasonableness confounds the fact/law distinction, since a matter of fact cannot be determined in the abstract, although, as a matter of law, reasonableness is characterised as requiring an objective test ― a weighing up of the evidence. Although reasonableness may be a question of fact, it is appellate judges who are charged with its review. They say it is to be determined by 'weighing all the relevant factors' (emphasis added).[108] Relevance is a category of illusory reference, no less than reasonableness, which further underscores the undeniable play of judicial subjectivity, despite asseverations to the contrary.
'Reasonableness' is a trope that allows discrimination against women to be justified and legitimated by the powerful today, no less than in the past, albeit less overtly. As a bona fide instrument within the hermeneutic tool kit of discrimination law, reasonableness selectively instantiates an imperial approach to issues of gender in the workplace that sustains the separation of the public and private spheres of liberal legalism. The message is that caring for young children belongs in the private sphere, a responsibility that should be clearly disconnected from the world of work. This approach is immune to the contemporary rhetoric of flexible work and work/life balance. The imperial view is that the workplace is a domain where employer prerogative reigns supreme, free from the 'unreasonable' demands of maternity leave and sick children.
This complaint was instituted by the Finance Sector Union on behalf of more than 100 female employees of the Commonwealth Bank. The bank engaged in a major restructure, which entailed the loss of about 7 500 staff, as a result of which employees had the option of either taking a redundancy package or applying for a new position. It was argued that the restructure disproportionately impacted on women because those on extended family leave, including maternity leave, did not have access to redundancy packages. So far as the new positions were concerned, employees had to be available to take them up within four weeks of appointment. For women on maternity leave, including those who have either recently had a baby or are about to give birth, this is unlikely to be practicable. The inability to apply for a superior position instantiates the idea of women as primary carers but secondary workers in accordance with the prevailing neo-conservative ethos.
While HREOC found in favour of the union in the first instance,[110] the Federal Court held on appeal that the condition was not unreasonable and reversed in favour of the bank.[111] The reasoning of the court was that HREOC had failed to take sufficient account of the fact that women on maternity leave were entitled to a comparable position when they returned from maternity leave.[112] HREOC had acknowledged the commercial imperative, but rejected the necessity of the four-week requirement. The effect was that the complainants missed out on the possibility of superior positions, which they might have been prepared to take up after the elapse of more then four weeks. In this case, we see judicial deference to corporate power and convenience.
Tarrant is critical of the approach of the Federal Court for what she terms its adoption of the 'package deal approach'.[113] That is, rather than focus solely on the effect of the detriment arising from the requirement or condition; the court takes into account any other benefit allegedly conferred which, in this case, was the availability of comparable positions: 'the primary mischief in the package deal approach is that it puts it in the power of the respondent unilaterally to assess and determine the needs of a complainant.'[114]
As Tarrant points out, there is no authority in Waters v Public Transport Corporation[115] for the 'package deal' approach, despite the Federal Court's purported reliance on its interpretation of reasonableness in Commonwealth Bank.[116] However, I would take issue with Tarrant regarding the power of the bank as the primary mischief here, for this power would have been of little avail without the crucial legitimating role of the judges of the Federal Court. As with Amery,[117] the judges were able to relegate the principle of equality for women at work and the values underpinning sex discrimination legislation to the background under the rubric of reasonableness.
The Finance Sector Union ran the case on behalf of the complainants but it was not prepared, or could not afford, to pursue an appeal to the High Court. Because of the high cost of representation and the risk of losing the case, which could entail paying the bank's costs as well as its own, the male members of the union were reputed to be opposed to an appeal. This chance element in litigation points to the way that the victors, invariably corporate entities with power and resources, are able to write sex discrimination jurisprudence in their own image. The homologous relationship between these corporate players and the judiciary induces judges to privilege the arguments of respondents over those of complainants. It also means that any successful utilisation of anti-discrimination legislation in the wake of a restructure would be virtually impossible.[118]
Schou is the second case I consider in respect of reasonableness. It represents yet another variation on the theme of the woman worker as carer, and highlights the difficulty of combining work and family in light of the competing values within the normative universe, despite the prevalence of the rhetoric. Indeed, as a manifestation of the changing discourse from the rights of individual workers to what is best for families, the alleged discrimination is based, not on sex, but the relatively recent ground of status as a parent or carer.[120]
The complainant was a Hansard reporter who had worked for the Victorian Parliament for seventeen years. Because she had a chronically ill child, she sought to do her transcription work at home for two days per week when Parliament was sitting (sometimes until 2:00 am), which was possible with a computer and a modem to which the employer had initially agreed. The requirement or condition with which the complainant was unable to comply was that she attended work full-time at Parliament House on sitting days. Neither the conceptualisation of the requirement nor the issue of proportionality were contentious, as it was accepted that a higher proportion of people without parental or caring status could comply with the requirement. As with Commonwealth Bank,[121] the focus was on the reasonableness of the attendance requirement. The Victorian Civil and Administrative Tribunal found (twice)[122] that the requirement was not reasonable as there was a practical alternative to working in situ, which was working online at home, and awarded the complainant damages of more than $160 000.
Once again, we find a restrictive approach being adopted by appellate courts before, first, a single judge[123] and, secondly, a majority of the Full Bench of the Victorian Supreme Court.[124] While Gaze presents a trenchant critique of the judgment of Harper J in the first appeal to the Supreme Court for his less than adequate grasp of the elements of indirect discrimination,[125] a similar charge could be levelled against the majority judges in the subsequent appeal to the Full Bench.[126] Both Harper J, sitting as a single judge, and Phillips JA (Buchanan JA agreeing) of the Full Bench held respectively that the focus of the reasonableness provision should have been directed to the attendance requirement without regard to the modem proposal. In the disaggregation of issues, we see the same narrow technocratic interpretation as in Amery[127] although, in this case, particularly so far as Phillips JA (Buchanan JA agreeing) was concerned, there was little attempt to disguise the preference for managerial prerogative. Phillips JA found it 'almost inconceivable' that the attendance requirement could be regarded as not reasonable as a matter of law, since it was authorised by the employment contract.[128] Common law, however, was not the end of the matter as the complainant had entered into an individual workplace agreement that guaranteed to promote 'flexible and progressive work practices and reasonable changes in the way work is organised'.[129] This agreement was ignored by the Supreme Court judges, which would seem to discount the legislative requirement that 'all the relevant circumstances of the case be taken into consideration' in weighing up the meaning of reasonableness,[130] a position supported by the High Court judges in Waters.[131] Callaway JA, in a brief dissent, rejected the narrow view, holding that the question of reasonableness was a matter of fact for the Tribunal.
The semiotics of 'choice' and 'flexibility' has changed our understanding of work. This language has been deployed by neoliberals to place responsibility on individual employees for the course of their lives and to deflect attention away from prevailing social structures and the profit-making imperative.[132] Choice was invoked in Amery to explain that the unwillingness of the complainants to accept teaching positions outside nominated geographical areas. While the Anti-Discrimination Tribunal recognised the socially constructed nature of this choice in that it was not merely a 'personal' or 'lifestyle' choice, the propensity of conservative judges to individualise it deflects attention away from the structural factors that require women to place their families first in determining work location. Hence, Buchanan JA in Schou, suggested that the modification of a general requirement to accommodate one person's special needs is not what the indirect provisions of the Act are about.[133] Equality as sameness was also stressed by Harper J: 'the Act forbids discrimination. It does not compel the bestowing of special advantage'.[134] This stance virtually guarantees the failure of any complainant's case that entails any accommodation of difference.[135]
Charlesworth has observed that there is a propensity to treat 'working mums' as transient workers with little commitment to the workplace.[136] The secondary worker status for women with children is a prominent strand of the nomos and through Schou, together with Commonwealth Bank and Amery, we can see the power of judges in keeping alive this imperial construction. When a choice has to be made, there is an unwillingness to find that the interests of women workers with childcare responsibilities could possibly take precedence over powerful institutional and corporate interests. In this way, the hermeneutic role of judges may be invoked to authorise the evisceration of the promise of sex discrimination legislation so as to retard women's struggle for equality.
The trajectory of sex discrimination cases shows a symbiotic relationship between the socio-political climate and the adjudicative norms of the day. There is never going to be a precise congruence because of the ad hoc nature of adjudication, such as which complainants possess the fortitude to appeal and who has the resources to do so. Despite the small numbers of heroic complainants, the movement away from an expansive and paideic view of the legislation to a more restrictive and positivistic approach over two decades is discernible in appellate decisions. This has crystallised into what Justice Kirby refers to as a 'hostile litigious environment in which claims of the present kind are typically litigated'.[137] To some extent, the change mirrors the shift from social liberalism to neoliberalism, which has spawned an environment that is antipathetic to social justice. A similar observation could be made about the American Supreme Court. It was seen as the champion of civil rights under Chief Justice Warren (1953-1969),[138] but the subsequent swing to the right saw the appointment of conservative judges under Presidents Reagan, Bush Senior and Bush Junior, together with the gradual unpicking of the great civil liberties victories in terms of race and sex discrimination.[139]
Today, legal aid for sex discrimination complaints and for civil litigation generally (other than for some family law matters) has contracted. The demise of legal aid is another casualty of neoliberalism, with its assumption of a user-pays philosophy.[140] A law firm could agree to act pro bono,[141] but it might hesitate in view of the identity of a powerful corporate respondent with deep pockets. The New South Wales Women's Advisory Council, which advocated on behalf of the 34 women of non-English speaking background in Banovic, has been abolished and there is no replacement body with access to ministers, as existed in the 1980s. In Amery, while the State of New South Wales supported the government department respondent's appeal to the High Court, it also agreed to pay the complainants' costs. In the Schou case, a law firm ran the case pro bono on behalf of the complainant to the Supreme Court. This firm was also prepared to run an appeal to the High Court provided that the State of Victoria undertook not to sue for costs, but the Attorney-General declined to give this undertaking.[142] In Amery and Schou, we see respondent Labor Governments in both New South Wales[143] and Victoria[144] undermining their own anti-discrimination legislation as the political pendulum swings further to the right.[145]
Of course, access to the courts is by no means the end of the matter. Inevitably, the power and resources of corporate respondents determine the course of the litigation and shape the jurisprudence that emerges, although the extent of support that corporate respondents currently receive from both governments and courts encourages them to appeal. Such a climate does not bode well for the advancement of the non-discrimination principle.[146] Three sex discrimination cases before the High Court in thirty years is not very many.
In reflecting on why more race than sex cases have gone to the High Court,[147] Jocelynne Scutt speculates that it is because race cases, such as Koowarta[148] and Mabo[149] were framed in terms of property rights rather than human rights or discrimination.[150] While the discourse of human rights has become more prominent in recent years, the normalisation of sex discrimination has militated against it being perceived as a human rights violation. However, there has been a resiling from the recognition of rights of all kinds in favour of 'the good of the economy'. The recent diminution of workers' rights is salutary, for there has been a correlative enhancement of employer prerogative which has augmented the burden of proof confronting all complainants in discrimination cases.[151] In Amery,[152] we see deference towards the idea of respondents defining a requirement or condition in their own interests that earlier courts warned against.[153] One of the express aims of the SDA is to 'promote recognition and acceptance within the community of the principle of the equality of men and women'.[154] A narrow positivistic reading of the indirect provisions effectively nullifies this principle of equality underpinning the legislation. Even in the case of direct discrimination, the tendency is to recognise only those instances that lie close to the surface.[155] The judicial propensity to slough off history and context effectively legitimates systemic discrimination.
Judges always encounter leeways of choice between the imperial and the paideic, but a neoliberal milieu with its promotion of market values and moral conservatism signals a turn to the right that is less likely to champion the rights of women workers and the ideals of gender equality. Judges, however, are invariably more comfortable with the world maintaining norms of the past, despite their jurisgenerative role. The inclusion of open-ended standards like 'reasonableness', together with substantial lacunae within the legislative texts, endorses the predilection in favour of the imperial turn. The interpretive community is most comfortable with a positivistic paradigm in which justice is incidental.
One could go a step further and distinguish the earlier cases dealing with the 'letting in' of women to non-traditional areas of work, such as Wardley[156] and Banovic,[157] from the more recent cases, such as Amery,[158] Commonwealth Bank[159] and Schou.[160] It might be averred that 'letting in' a few women to non-traditional workplaces, when their exclusion was egregious, is significantly less destabilising than radically challenging established work practices emanating from the old master–servant relationship, such as the employer's right to determine the structure of the workplace, the site of work, and the terms and conditions of employment. Despite the legislative prescripts of anti-discrimination legislation, the conservative view is that according gender equality to women with caring responsibilities in the public sphere is corrosive of the core values at the heart of the normative universe. The malleable hermeneutics of adjudication allow judges to sustain benchmark masculinity by adopting an imperial approach that is legitimated by the rule of law.
The imperial approach represents an unstable position, however. Faith in the rule of law demands the adoption of a paideic approach towards anti-discrimination legislation ― at least some of the time. A changed political climate may provide just the spur that is needed.
[*] Professor of Law, ARC Professorial Fellow, ANU College of Law, Australian National University. A version of this article was presented at Governing (and Representing) Women: Local, National and Global Approaches, Centre for International & Public Law, Australian National University, 2 November 2006. I thank Kim Rubenstein for organising the event. Thanks also to Trish Luker for assistance with the gathering of statistical data and to the Australian Research Council for financial assistance.
[1] Aristotle, Politics (John Warrington ed & trans 1961 ed) §1254.
[2] For a thoroughgoing discussion of the persistence of inequality, see Sandra Berns, Women Going Backwards: Law and Change in a Family Unfriendly Society (2002), especially ch 1.
[3] State legislation preceded that of the Commonwealth. See Sex Discrimination Act 1975 (SA); Equal Opportunity Act 1977 (Vic); Anti-Discrimination Act 1977 (NSW) ('ADA (NSW)'); Sex Discrimination Act 1984 (Cth) ('SDA').
[4] Coverture, in which a woman entered into a state of civil death on marriage, is a startling example, captured most famously by Blackstone: 'By marriage, the husband and wife are one person in law...': William Blackstone, Commentaries on the Laws of England (first published 1765–69, 1979 ed) 442. See also Mary Lyndon Shanley, Feminism, Marriage, and the Law in Victorian England, 1850–1895 (1989).
[5] The moral conservatives included women too, most notably the anti-feminist Women Who Want to be Women. See Susan Magarey, 'The Sex Discrimination Act 1984' (2004) 20 Australian Feminist Law Journal 127.
[6] The Equal Opportunities Commission in the United Kingdom has been invested with stronger powers under the revamped Sex Discrimination Act 1975 (UK). HREOC has published numerous reports, developed guidelines and codes of practice to encourage compliance but they do not have the same clout. See, eg, Belinda Smith, 'A Regulatory Analysis of the Sex Discrimination Act 1984 (Cth): Can it Effect Equality or Only Redress Harm?' in Christopher Arup et al, Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (2006) 121–23.
[7] Robert Cover, 'Nomos and Narrative' (1983) 97 Harvard Law Review 4, 11.
[8] Regina Graycar, 'The Gender of Judgments: An Introduction' in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995) 262, 275.
[9] Cf Rosemary Hunter, Indirect Discrimination in the Workplace (1992).
[10] Cover, above n 7, 12–13.
[11] Justice Michael Kirby of the High Court is a notable exemplar. See, eg, his comments in New South Wales v Amery [2006] HCA 14; (2006) 226 ALR 196 ('Amery').
[12] Balfour v Balfour [1919] 2 KB 571 represents a clear judicial statement of the classic position. See also Jeff Weintraub and Krishan Kumar (eds), Public and Private in Thought and Practice: Perspectives on a Grand Dichotomy (1997); Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995).
[13] Human Rights and Equal Opportunity Commission, It's About Time: Women, Men, Work and Family, Final Paper (2007) xi. The work/life balance has attracted extensive commentary in recent years. See, eg, Berns, above n 2; Barbara Pocock, The Work/Life Collision: What Work is Doing to Australians and What to Do About It (2003); Belinda Smith and Joellen Riley, 'Family–friendly Work Practices and the Law' [2004] SydLawRw 17; (2004) 26(3) Sydney Law Review 395; Jill Murray (ed), Work, Family and the Law (2005) 23(1) Law in Context (Special Issue).
[14] Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990).
[15] For example, while 1779 complaints on all grounds were received by HREOC in 2006–07 (Human Rights and Equal Opportunity Commission, Annual Report 2006–07 (2007) 65), there were only 13 hearings by the Federal Magistrates Court of Australia of complaints declined by HREOC on all grounds in the same year. Data extracted from Federal Magistrates Court website at 29 February 2008 <http://www.austlii.edu.au/au/cases/cth/FMCA/> ). While the Federal Court also has jurisdiction to hear terminated complaints (Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO), the matters heard by it tend to be of an appellate nature. Data extracted from Federal Court of Australia website at 29 February 2008 <http://www.austlii.edu.au/au/cases/cth/FCA/> .
[16] In 2006/07, HREOC received 995 complaints under the SDA. See Human Rights and Equal Opportunity Commission, Annual Report 2006–2007 (2007) 75.
[17] In 2006–2007, a total of 1342 complaints were lodged under the state and territory agencies on the ground of sex and cognate grounds (including sexual harassment and pregnancy) comprising: 240 complaints under the ADA (NSW) (Anti-Discrimination Board of NSW, Annual Report 2006–2007 (2007) 16); 434 under the Equal Opportunity Act 1995 (Vic) (Victorian Equal Opportunity & Human Rights Commission, Annual Report 2006/2007 (2007) 36); 255 under the Anti-Discrimination Act 1991 (Qld) (Anti-Discrimination Commission Queensland, Annual Report 2006-2007 (2007) 13); 86 under the Equal Opportunity Act 1994 (SA) (telephone communication with the Equal Opportunity Commission of South Australia, 29 February 2008); 171 under the Equal Opportunity Act 1984 (WA) Equal Opportunity Commission, Annual Report to Parliament 2006–2007 (2007) 26); 138 under the Anti-Discrimination Act 1998 (Tas) (Office of the Anti-Discrimination Commissioner, Tasmania, Eighth Annual Report 2006/2007 (2007) 19); 33 under the Discrimination Act 1991 (ACT) (Human Rights Commission, Annual Report 2006–2007 (2007) 17); 39 under the Anti-Discrimination Act 1992 (NT) (Northern Territory Anti-Discrimination Commission, Annual Report 2006–2007 (2007) 27).
[18] Beth Gaze, 'The Costs of Equal Opportunity' [2000] AltLawJl 46; (2000) 25(3) Alternative Law Journal 125, 126, 128.
[19] Decisions from primary hearings are generally reported in the CCH, Australian & New Zealand Equal Opportunity Law and Practice, although the current tendency is to digest them.
[20] I will use the term 'respondent' to refer to the corporate party as that is their status in the original complaint, even though they are more likely to be appellants or applicants at the appellate level.
[21] Marc Galanter, 'Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change' (1974–5) 9(1) Law & Society Review 95.
[22] Margaret Thornton, 'Towards Embodied Justice: Wrestling with Legal Ethics in the Age of the New Corporatism' [1999] MelbULawRw 28; (1999) 23(3) Melbourne University Law Review 749.
[23] Gaze suggests that the neutrality in drafting was deliberately designed to 'avoid acknowledging the asymmetrical reality of social disadvantage'. See Beth Gaze, 'Context and Interpretation in Anti-Discrimination Law' [2002] MelbULawRw 18; (2002) 26(2) Melbourne University Law Review 325, 329.
[24] See, eg, Thornton, above n 14. Recent analyses include Margaret Thornton, 'Feminism and the Changing State: The Case of Sex Discrimination' (2006) 21(50) Australian Feminist Studies 151. For a succinct doctrinal overview, see Chris Ronalds and Rachel Pepper, Discrimination Law and Practice (2nd ed, 2004).
[25] Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 513 (entered into force 3 September 1981) ('CEDAW').
[26] The principle of neutrality was upheld following a constitutional challenge in Aldridge v Booth [1988] FCA 170; (1988) 80 ALR 1.
[27] The notion of gender neutrality is also accepted by all Australian State legislation.
[28] Aristotle, above n 1, §1282b.
[29] Gaze, above n 23, 335.
[30] Jonathon Hunyor, 'Skin-Deep: Proof and Inferences of Racial Discrimination in Employment' [2003] SydLawRw 24; (2003) 25(4) Sydney Law Review 535. He discusses the evidentiary standard of 'reasonable satisfaction' that was established by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. This standard entails something more than the normal civil standard based on the balance of probabilities, for it requires regard to be paid to the seriousness of the allegation.
[31] The same phenomenon is familiar in respect of race complaints. See Hunyor, above n 30; Beth Gaze, 'Has the Racial Discrimination Act contributed to Eliminating Racial Discrimination? Analysing the Litigation Track Record 2000–2004' [2005] AUJlHRights 6; (2005) 11(1) Australian Journal of Human Rights 6.
[32] In 2006–07, 81 per cent of complaints lodged with HREOC under the SDA were on the ground of employment. See Human Rights and Equal Opportunity Commission, Annual Report 2006–2007 (2007) 65.
[33] See above n 12.
[34] For critiques of contemporary developments in these fields, see Regina Graycar & Jenny Morgan, The Hidden Gender of Law (2nd ed, 2002), chs 10–11; Australian Law Reform Commission, Equality Before the Law: Justice for Women, Report No 69 (1994), Part I, chs 8–12.
[35] Australia ratified ILO Convention No. 156 Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, opened for signature 23 June 1981, (entered into force 11 August 1983) in 1990. In 1992, the ground of family responsibilities was included as a proscribed ground within the SDA. All states and territories, except South Australia, now include parental status, or a cognate term, as a ground in their anti-discrimination legislation: ADA (NSW) s 49S; Equal Opportunity Act 1995 (Vic) s 6(ea); Anti-Discrimination Act 1991 (Qld) s 7(1)(d); Equal Opportunity Act 1984 (WA) s 35A; Anti-Discrimination Act 1998 (Tas) s 16(i); Discrimination Act 1991 (ACT) s 7(1)(e); Anti-Discrimination Act 1992 (NT) s 19(1)(g).
[36] As a result of ongoing criticism of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 (Cth) was introduced and referred to the Standing Committee on Education, Employment and Workplace Relations for report: see the Senate Standing Committee on Education, Employment and Workplace Relations, Parliament of Australia, Workplace Relations Amendment (Transition to Forward with Fairness) Bill [Provisions] (2008).
[37] [2006] HCA 14; (2006) 226 ALR 196.
[38] [2004] VSCA 71; (2004) 8 VR 120.
[39] Bob Walker and Betty Con Walker, Privatisation Sell Off or Sell Out? The Australian Experience (2000).
[40] Galanter, above n 21, 123 ff.
[41] It is startling to find the general principle of the anti-discrimination jurisdiction that each party bear its own costs at the tribunal level now being undermined in sexual harassment complaints, if the complainant is unable to prove her case to the requisite standard. For example, in Prolisko v Knight (Anti Discrimination) [2006] VCAT 2046 (3 January 2006), a young woman who was only 16 at the time of the alleged conduct, not only had her complaint dismissed, despite some corroborating evidence, but was ordered to pay $10 000 towards the respondents' costs. In another unsuccessful sexual harassment complaint before the Victorian Civil and Administrative Tribunal, the complainant was ordered to pay 50 per cent of the costs and disbursements of both respondents. See Gonsalves v MAS National Apprenticeship Services Costs (Anti Discrimination) [2007] VCAT 64 (5 January 2007).
[42] Stella Tarrant, 'Reasonableness in the Sex Discrimination Act: No Package Deals' [2000] UTasLawRw 3; (2000) 19(1) University of Tasmania Law Review 38. Cf Gaze, above n 23, especially 331–333.
[43] Martin Loughlin, Public Law and Political Theory (1992) 20–21, 230.
[44] Hart, one of the major exponents of legal positivism, seeks to draw a line between law and history, law and politics, and law and social values of all kinds, including law and morality: H L A Hart, The Concept of Law (1961) 253n.
[45] Bentham, Austin and Dicey are exemplary. See Loughlin, above n 42.
[46] Gaze, above n 23, 338–40; Robert Thomson, The Judges (1987) especially 37–43.
[47] Women comprised 26 per cent of all judges and magistrates in October 2006. See Australian Institute of Judicial Administration, Judges and Magistrates (% of Women) (March 2008) <http://www.aija.org.au/index.php?option=com_content & task=view & id=32 & Itemid=121> at 3 March 2008.. This contrasts with a figure of 8.7 per cent in 1995. See Australian Institute of Judicial Administration Incorporated figures in Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession (1996) 294.
[48] Cf Sandra Berns, To Speak as a Judge: Difference, Voice and Power (1999) 159.
[49] Margaret Thornton, 'Auditing the Sex Discrimination Act' in Marius Smith (ed), Human Rights 2004: The Year in Review (2005) 21.
[50] See, eg, John Gava, 'The
Rise of the Hero Judge' [2001] UNSWLawJl 60; (2001) 24(3) University of New South Wales Law
Journal 747; Justice J D Heydon, 'Judicial Activism and the Death of the
Rule of Law' (2003) 23(2) Australian Bar Review 110; Frank Carrigan, 'A
Blast from the Past: The Resurgence of Legal Formalism' [2003] MelbULawRw 6; (2003) 27(1)
Melbourne University Law Review 163; John Gava, 'Another Blast from the
Past or Why the Left Should Embrace Strict Legalism: A Reply to Frank Carrigan'
[2003] MelbULawRw 7; (2003) 27(1) Melbourne University Law Review 186; Tom Campbell, 'Judicial
Activism ― Justice or Treason?' [2003] OtaLawRw 2; (2003) 10(3) Otago Law Review 307;
Justice Michael Kirby, 'Judicial Activism: Power without Responsibility? No,
Appropriate Activism Conforming to Duty' 
[2006] MelbULawRw 18 
; (2006) 30(2) Melbourne University
Law Review 576.
[51] I drew attention to the active role of judges in the construction of Aboriginal people as Others in Margaret Thornton, 'Citizenship, Race and Adjudication' in Tom Campbell and Jeffrey Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (2000) 335.
[52] The question of who is the appropriate comparator has been thrown into disarray by Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92, a complaint arising under the Disability Discrimination Act 1992 (Cth). The majority judges in the High Court held that the appropriate (hypothetical) comparator was a person without a disability who nevertheless acted in the same way as the complainant, rather than simply a person without the disability. The majority judges' constitution of the comparator has ramifications for all direct discrimination cases. For analysis, see Jacob Campbell, 'Using Anti-Discrimination Law as a Tool of Exclusion: A Critical Analysis of the Disability Discrimination Act 1992 and Purvis v NSW' [2005] MqLawJl 10; (2005) 5 Macquarie Law Journal 201.
[53] See, eg, Dothard v Rawlinson, [1977] USSC 144; 433 US 321 (1977).
[54] This is where affirmative action (AA) is, or was, supposed to step into the breach. Affirmative action was excised from the equal opportunity discourse in 1999. See Margaret Thornton, 'EEO in a Neo-Liberal Climate' (2001) 6(1) Journal of Interdisciplinary Gender Studies 77.
[55] But see above n 52.
[56] For a sustained analysis of the elements of indirect discrimination generally, see Hunter, above n 9.
[57] Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237.
[58] [1989] HCA 56; (1989) 168 CLR 165.
[59] [2006] HCA 14; (2006) 226 ALR 196.
[60] [1980] HCA 8; (1980) 142 CLR 237.
[61] Thornton, 'Towards Embodied Justice', above n 22.
[62] Wardley [1980] HCA 8; (1980) 142 CLR 237, 250–53.
[63] Ibid 280 (Aickin J).
[64] [1989] HCA 56; (1989) 168 CLR 165.
[65] Najdovska v Australian Iron & Steel Pty Ltd (1985) 12 IR 250.
[66] Australian Iron & Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587.
[67] Banovic [1989] HCA 56; (1989) 168 CLR 165.
[68] [1980] HCA 8; (1980) 142 CLR 237.
[69] [1989] HCA 56; (1989) 168 CLR 165.
[70] Julius Stone, Legal System and Lawyers' Reasonings (1968) 325-30 et passim.
[71] [1980] HCA 8; (1980) 142 CLR 237.
[72] Banovic [1989] HCA 56; (1989) 168 CLR 165, 206 (McHugh J; Brennan J agreeing).
[73] Banovic [1989] HCA 56; (1989) 168 CLR 165, 180 (Deane and Gaudron JJ), 191 (Dawson J).
[74] [2006] HCA 14; (2006) 226 ALR 196.
[75] [1989] HCA 56; (1989) 168 CLR 165.
[76] [1980] HCA 8; (1980) 142 CLR 237.
[77] See, eg, Pocock, above n 13; Catherine Hakim, Key Issues in Women's Work: Female Diversity and the Polarisation of Women's Employment (2nd ed, 2004).
[78] Of particular note are the race and disability cases: Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168; Mabo v Queensland (No 2) (1992) 175 CLR 1; Wik Peoples v Queensland (1996) 187 CLR 1; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349.
[79] [2006] HCA 14; (2006) 226 ALR 196.
[80] Simpson makes this argument with particular reference to the provisions dealing with the non-discrimination principle in the Australian Constitution. See Amelia Simpson, 'The High Court's Conception of Discrimination: Origins, Applications, and Implications' [2007] SydLawRw 10; (2007) 29(2) Sydney Law Review 263, especially 278.
[81] This was a source of dispute in an initial hearing before the New South Wales Administrative Decisions Tribunal (ADT), based on a decision of the Industrial Commission of NSW in 1983, but the ADT found that there was little or no discernible difference in the tasks or responsibilities of teachers, whether permanent or supply casual; see Amery v New South Wales (2001) EOC 93–130 (NSW ADT) 75 289.
[82] It was only in 1994 that industrial awards and agreements in New South Wales were required to comply with the ADA. It was previously a defence to a complaint of discrimination to argue that it was necessary to comply with an award or agreement. The retention of this exception would have precluded the successful pursuit of a discrimination complaint.
[83] Amery v New South Wales (2001) EOC 93–130 (NSW ADT).
[84] New South Wales v Amery (2003) 129 IR 300.
[85] Amery v New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404.
[86] Amery [2006] HCA 14; (2006) 226 ALR 196.
[87] Amery [2006] HCA 14; (2006) 226 ALR 196, 213-14; relying on the interpretation of Lee J in Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47, 55.
[88] Amery [2006] HCA 14; (2006) 226 ALR 196, 214.
[89] Ibid 230 (Kirby J).
[90] Ibid.
[91] Amery [2006] HCA 14; (2006) 226 ALR 196, 213.
[92] Ibid.
[93] Amery v NSW (2001) EOC 93–130 (NSW ADT) 75 290 (P King (Judicial Member), K Edwards and O McDonald (Members)).
[94] Banovic [1989] HCA 56; (1989) 168 CLR 165, 180 (Deane and Gaudron JJ), 191 (Dawson J).
[95] [2006] HCA 14; (2006) 226 ALR 196.
[96] Judy Fudge and Rosemary Owens (eds), Precarious Work, Women, and the New Economy: The Challenge to Legal Norms (2006).
[97] Katherine V W Stone, From Widgets to Digits: Employment Regulation for the Changing Workplace (2004); Rosemary Owens and Joellen Riley, The Law of Work (2007).
[98] Julius Stone, Human Law and Human Justice (1965) 328.
[99] See, eg, SDA, s 7B; Equal Opportunity Act 1995 (Vic) s 9(2).
[100] As in the case of the SDA, s 7C. This amendment, effected in 1995, is one of the few acknowledgements of the virtually insuperable burden confronted by complainants.
[101] See, eg, Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251, 263 (Bowen CJ and Gummow J); Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 395–6 (Dawson and Toohey JJ).
[102] Amery [2006] HCA 14; (2006) 226 ALR 196, 203 (Gleeson CJ).
[103] The onus of proving a condition to be unreasonable lies with the complainant under the ADA (NSW). The onus was reversed by SDA s 7C in 1995.
[104] Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78 (Commonwealth Bank).
[105] [2004] VSCA 71; (2004) 8 VR 120.
[106] Amery [2006] HCA 14; (2006) 226 ALR 196; see also, most notably Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92, and above n 52.
[107] Berns, Women Going Backwards, above n 2, ch 2.
[108] See, eg, Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 395 (Dawson and Toohey JJ).
[109] Commonwealth Bank [1997] FCA 1311; (1997) 80 FCR 78..
[110] Finance Sector Union v Commonwealth Bank of Australia (1997) EOC 92–889 (HREOC).
[111] Commonwealth Bank [1997] FCA 1311; (1997) 80 FCR 78, 113 (Sackville J).
[112] Ibid.
[113] Tarrant, above n 42.
[114] Ibid 47.
[115] [1991] HCA 49; (1991) 173 CLR 349.
[116] [1997] FCA 1311; (1997) 80 FCR 78, 84–85 (Davies J); 90–91 (Beaumont J); 110–12 (Sackville J).
[117] Amery [2006] HCA 14; (2006) 226 ALR 196.
[118] Cf Rosemary Hunter, 'The Mirage of Justice: Women and the Shrinking State' (2002) 16 Australian Feminist Law Journal 53, 63–65.
[119] Schou [2004] VSCA 71; (2004) 8 VR 120.
[120] Australia ratified ILO Convention No. 156 Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, opened for signature 23 June 1981, (entered into force 11 August 1983) in 1990. In 1992, the ground of family responsibilities was included as a proscribed ground within the Sex Discrimination Act 1984 (Cth). All states and territories, except South Australia, now include parental status, or a cognate term, as a ground in their anti-discrimination legislation: Anti-Discrimination Act 1977 (NSW) s 49(s); Equal Opportunity Act 1995 (Vic) s 6(ea); Anti-Discrimination Act 1991 (Qld) s 7(1)(d); Equal Opportunity Act 1984 (WA) s 35A; Anti-Discrimination Act 1998 (Tas) s 16(i); Discrimination Act 1991 (ACT) s 7(1)(e); Anti-Discrimination Act 1992 (NT) s 19(1)(g).
[121] [1997] FCA 1311; (1997) 80 FCR 78.
[122] Schou v Victoria (Department of Parliamentary Debates) (2000) EOC 93–101 (VCAT); Schou v Victoria (Department of Parliamentary Debates) (2002) EOC 93–217 (VCAT).
[123] Victoria v Schou [2001] VSC 321; (2001) 3 VR 655.
[124] Schou [2004] VSCA 71; (2004) 8 VR 120.
[125] Gaze, above n 23; cf K Lee Adams, 'A Step Backward in Job Protection for Carers' (2002) 15(1) Australian Journal of Labour Law 93; K Lee Adams, 'Indirect Discrimination and the Worker-Carer: It's Just not Working' in Jill Murray (ed), Work, Family and the Law (2005) 23(1) Law in Context (Special Issue) 18.
[126] While Callaway J dissented, his decision is brief and somewhat cryptic. Schou [2004] VSCA 71; (2004) 8 VR 120, 136–37.
[127] [2006] HCA 14; (2006) 226 ALR 196.
[128] Schou [2004] VSCA 71; (2004) 8 VR 120, 128 (Phillips JA).
[129] Deborah Schou v Victoria (2000) EOC 93–100 (VCAT), 74 424; Schou v Victoria Melb (Department of Parliamentary Debates) (2002) EOC 93–217 (VCAT), 76 507–509.
[130] EOA 1995 s 9(2).
[131] Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 393 (Dawson and Toohey JJ).
[132] See, eg, Peter Self, Government by the Market? The Politics of Public Choice (1993).
[133] Schou [2004] VSCA 71; (2004) 8 VR 120, 137.
[134] Victoria v Schou [2001] VSC 321; (2001) 3 VR 655, 661 (Harper J).
[135] Such a strict view was adopted in Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92, a direct discrimination complaint involving a complainant with a disability. See above n 52.
[136] Sara Charlesworth, 'Working Mums: The Construction of Women Workers in the Banking Industry' (1999) 4(2) Journal of Interdisciplinary Gender Studies 12.
[137] Amery [2006] HCA 14; (2006) 226 ALR 196, 219.
[138] See, eg, Lucas A Powe Jr, The Warren Court and American Politics (2000).
[139] The trend began with the cause célèbre of Regents of the University of California v Bakke, [1978] USSC 145; 438 US 265 (1978), in which the Supreme Court struck down quotas for racial minorities in terms of admission to medical school but upheld a commitment to diversity as legitimate. A qualified commitment to diversity has been maintained in more recent years. See, eg, Grutter v Bollinger [2003] USSC 5029; 539 US 982 (2003), a case involving a white woman who was unsuccessful in her application for admission to law school. More recently, concern has been expressed regarding the likely effect of the appointment of several ultra-right wing judges to the United States Supreme Court. See Ronald Dworkin, 'The Supreme Court Phalanx', New York Review of Books, (New York), Vol 54(14), 27 September 2007, 92.
[140] Mary Anne Noone and Stephen A Tomsen, Lawyers in Conflict: Australian Lawyers and Legal Aid (2006), especially ch 6; Regina Graycar and Jenny Morgan, 'Disabling Citizenship: Civil Death for Women in the 1990s' [1995] AdelLawRw 3; (1995) 17(1) Adelaide Law Review 49; Hunter above n 9, 66–69.
[141] National Pro Bono Resource Centre, Mapping Pro Bono in Australia (2007); Christopher Arup and Kathy Laster (eds) ‘For the Public Good’ (2001) 19 Law in Context (Special Issue).
[142] The Victorian Attorney-General, Mr Rob Hulls, referred the matter on to Ms Monica Gould, President of the Victorian Legislative Council, for attention. Letter from Rob Hulls to Margaret Thornton, 25 May 2004. It would appear that no action was taken.
[143] Amery [2006] HCA 14; (2006) 226 ALR 196. See also Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92. The NSW Department of Education and Department of Technical and Further Education, in its various incarnations, has figured disproportionately in discrimination hearings for almost thirty years, beginning with Harrison v TAFE [1979] NSW Anti-Discrimination Board (Unreported, 19 June 1979), discussed in Margaret Thornton, 'Board's First Decision' (1979) 4 Legal Service Bulletin 180.
[144] Schou [2004] VSCA 71; (2004) 8 VR 120.
[145] Adams, 'Indirect Discrimination and the Worker-Carer', above n 125.
[146] The narrow positivism that has been invoked to delimit sex discrimination complaints in the past decade has also affected complainants in other areas of discrimination law, particularly disability. See, eg, IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1; X v The Commonwealth (1999) 200 CLR 177; Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92.
[147] It is notable that there has been a cessation of successful race discrimination cases before the High Court since the controversial decision of Wik Peoples v Queensland (1996) 187 CLR 1.
[148] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168.
[149] Mabo v Queensland (No 2) (1992) 175 CLR 1.
[150] Jocelynne A Scutt, 'Without Precedent: Sex/Gender Discrimination in the High Court' [2003] AltLawJl 15; (2003) 28(2) Alternative Law Journal 74.
[151] Justice Kirby has remarked on the change of heart of the High Court towards complainants in discrimination cases over the last decade in Amery [2006] HCA 14; (2006) 226 ALR 196, 217–18..
[152] [2006] HCA 14; (2006) 226 ALR 196.
[153] For example, Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 394 (Dawson and Toohey JJ).
[154] SDA s 3(d).
[155] Thornton, The Liberal Promise, above n 14, 245.
[156] [1980] HCA 8; (1980) 142 CLR 237.
[157] [1989] HCA 56; (1989) 168 CLR 165.
[158] [2006] HCA 14; (2006) 226 ALR 196.
[159] [1997] FCA 1311; (1997) 80 FCR 78.
[160] [2004] VSCA 71; (2004) 8 VR 120.
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