Thornton, Margaret --- "Sex Discrimination, Courts and Corporate Power" [2008] FedLawRw 2; (2008) 36(1) Federal Law Review 31
[*] 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.