Gaze, Beth --- "Context and Interpretation in Anti-Discrimination Law" [2002] MelbULawRw 18; (2002) 26(2) Melbourne University Law Review 325

[*] BSc (Melb), LLB (Hons) (Monash), LLM (UC Berkeley); Senior Lecturer, Faculty of Law, Monash University. I would like to thank the anonymous reviewers for their comments.

[1] Equal Opportunity Act 1977 (Vic). The Victorian Act has been re-enacted twice since it was adopted, and extra grounds have been added over time: ‘private life’ grounds were first introduced in the Equal Opportunity Act 1984 (Vic) (eg political and religious beliefs) and sexuality in the Equal Opportunity Act 1995 (Vic) (‘EOA’). The 1995 changes were seen as reducing the Act’s effectiveness by expanding the exclusions (eg religion), replacing the Commissioner for Equal Opportunity with an Equal Opportunity Commission, and making procedures more formal. Adjudication is now done by the Victorian Civil and Administrative Tribunal (‘VCAT’) where, because of resource limitations, cases are now usually heard by a single member and applicants have lost the benefit of a multi-member, multidisciplinary tribunal.

[2] Anti-Discrimination Act 1977 (NSW).

[3] Important advances have occurred in the following areas: the elimination of overt discrimination, eg Wardley v Ansett Transport Industries (Operations) Pty Ltd [1984] EOC 92-002 (Equal Opportunity Board of Victoria); Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237 (‘Wardley’); the recognition of sexual (and other types of) harassment as discrimination and its subsequent legislative recognition; recognition of the impact of ‘facially neutral’ practices: eg Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165; and government policies which impact harshly on a particular group: eg Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (‘Waters’); Sinnappan v Victoria [1995] VicRp 27; [1995] 1 VR 421 (Court of Appeal) (‘Northland Secondary College Case’).

[4] See, eg, Equal Opportunity Commission Victoria, The Way Forward: Annual Report 2000/2001 (2001) 9–10; Regina Graycar and Jenny Morgan, The Hidden Gender of Law (2nd ed, 2002) 147; Rosemary Hunter, ‘The Mirage of Justice: Women and the Shrinking State’ (2002) 16 Australian Feminist Law Journal 53; Human Rights and Equal Opportunity Commission (‘HREOC’), Pregnant and Productive: It’s a Right Not a Privilege to Work while Pregnant (1999).

[5] W B Creighton, ‘The Equal Opportunity Act — Tokenism or Prescription for Change?’ [1978] MelbULawRw 13; (1978) 11 Melbourne University Law Review 503, 535 concluded:

Tokenism as it undoubtedly is, it is better to have the EOA than to have nothing so long as it is not allowed to obscure the need for a much more radical approach to the problems with which it purports to deal. Even a rather half-hearted gesture like the EOA can serve a useful purpose as a consciousness-raising exercise both for the victims of discrimination and for the perpetrators of it.

Despite many changes over the years, many of the features identified by Creighton as tokenism in the Equal Opportunity Act 1977 (Vic) are still present in the EOA 1995 (Vic).

[6] The only exceptions are indirect discrimination under the Sex Discrimination Act 1984 (Cth) ss 7B, 7C, and the Discrimination Act 1991 (ACT) s 8, where unreasonableness is not an element of indirect discrimination to be proved by the complainant, but reasonableness is a defence for the respondent to establish.

[7] See, eg, Laurence Lustgarten, ‘Racial Inequality and the Limits of Law’ (1986) 49 Modern Law Review 68, 73.

[8] [2001] VSC 321; [2001] 3 VR 655 (‘Schou’).

[9] With the 1999 changes to the federal system brought in by the Human Rights Legislation Amendment Act 1999 (Cth) (‘HRLAA’), which moved adjudication from HREOC to the Federal Court and Federal Magistrates Court, the costs regime has changed.

[10] Sisely, above n 4, 10, 31–2 comments on the reduction of substantive complaints overall but an 11 per cent increase in complaints of victimisation (less favourable treatment on the ground of having lodged a complaint under the Act), which appears to reflect the changing balance of power between employer and employee; Peter Handley, ‘“Caught between a Rock and a Hard Place”: Anti-Discrimination Legislation in the Liberal State and the Fate of the Australian Disability Discrimination Act’ (2001) 36 Australian Journal of Political Science 515 comments on the drop in complaints under the Disability Discrimination Act 1992 (Cth) over the six years from 1995–2000 (at 517–18) and on the impact of the HRLAA (at 525–6).

[11] Ron Callus, ‘The Future of Australians at Work’ (1999) 24 Alternative Law Journal 150 discussing the findings of the report by the Australian Centre for Industrial Relations Research, Australia at Work (1999).

[12] See, eg, sources cited in above n 4; Josephine Tiddy, It’s Just Not Fair (2001). On the status of indigenous people, see Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2001 (2001). For statistics on the status of women, see the Equal Opportunity for Women in the Workplace Agency’s regularly updated web page at <

http://www.eeo.gov.au/ResourceCentre/Statistics.asp> at 17 July 2002.

[13] These include the political shift to neo-liberalism and the effects of globalisation with their pressures towards deregulation of the labour market and reduction of the functions of government, both of which are vital to redressing inequality for those who are relatively powerless. For example, in the first years of the current federal Coalition government in Australia, resources to HREOC were cut by over 40 per cent: Human Rights and Equal Opportunity Commission, Annual Report 1997–98 (1998), 12.

[14] See Carol Smart, Feminism and the Power of Law (1989); Margaret Thornton, ‘Feminism and the Contradictions of Law Reform’ (1991) 19 International Journal of the Sociology of Law 453; Roger Cotterrell, The Sociology of Law: An Introduction (2nd ed, 1992); Sharyn Roach Anleu, Law and Social Change (2000); Lustgarten, above n 7.

[15] Australian Law Reform Commission, Equality before the Law: Women’s Equality, Part II, Report No 69 (1994) ch 3. Symmetrical laws mean that men can complain about sex discrimination against them, and white people about racial discrimination against them. Because men’s cases are often better understood by courts, a strategy used in selecting early sex discrimination cases for litigation under the US Civil Rights Act involved choosing cases with male plaintiffs because it was thought that courts were more likely to understand and respect their claims: Ruth Cowan, ‘Women’s Rights through Litigation: An Examination of the American Civil Liberties Union Women’s Rights Project, 1971–1976’ (1976) 8 Columbia Human Rights Law Review 373, 379, 394.

[16] Lustgarten, above n 7, 72.

[17] In race discrimination cases, for example, it has often been very difficult to convince courts that differential treatment was based on race, and not some other ground: see, eg, Sharma v Legal Aid Queensland [2001] FCA 1699; [2002] EOC 93-191; KLK Investments Pty Ltd v Riley (1993) 10 WAR 523; Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319; cf Lightning Bolt Co Pty Ltd v Skinner [2002] QSC 062 (Unreported, Fryberg J, 22 March 2002).

[18] Despite the current emphasis on international human rights as a source of rights, the adoption of anti-discrimination laws in Australia followed the UK’s adoption of race discrimination legislation based on the model of the US Civil Rights Act of 1964, Pub L No 88-352, 78 Stat 241, a product of the post-World War II civil rights movement.

[19] See Creighton, above n 5. Privilege, the reflection of discrimination, is equally pervasive: Joan Eveline, ‘The Politics of Advantage’ (1994) 19 Australian Feminist Studies 129; Stephanie Wildman and Adrienne Davis, ‘Language and Silence: Making Systems of Privilege Visible’ in Richard Delgado (ed), Critical Race Theory (1995) 573; Beth Gaze, ‘Some Aspects of Equality Rights: Theory and Practice’ in Brian Galligan and Charles Sampford (eds), Rethinking Human Rights (1997) 189. See also Trina Grillo and Stephanie Wildman, ‘Obscuring the Importance of Race: The Implications of Making Comparisons between Racism and Sexism (or Other -isms)’ [1991] Duke Law Journal 397.

[20] The exceptions are the Racial Discrimination Act 1975 (Cth) and the Anti-Discrimination Act 1977 (NSW), both enacted before the fashion for legislative statements of objectives began.

[21] For example, s 35 of the Interpretation of Legislation Act 1984 (Vic) provides:

In the interpretation of a provision of an Act or subordinate instrument —

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object ...

Section 15AA of the Acts Interpretation Act 1901 (Cth) provides:

(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

[22] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 234–5 (Dawson J).

[23] D C Pearce and R S Geddes, Statutory Interpretation in Australia (5th ed, 2001) 27.

[24] Metal Manufacturers Pty Ltd v Lewis [1988] 13 NSWLR 315, 326 (Mahoney JA).

[25] Ontario Human Rights Commission v Simpsons-Sears Ltd 1985 CanLII 18 (SCC); [1985] 2 SCR 536; Thomson Professional Publishing, Racial Discrimination: Law and Practice, vol 3, 3-32.

[26] Waters [1991] HCA 49; (1991) 173 CLR 349, 362–5 (Mason CJ and Gaudron J), 378–9 (Brennan J), 383–4 (Deane J), 408–10 (McHugh J), concerning the Equal Opportunity Act 1984 (Vic). Mason CJ and Gaudron J would have adopted a ‘strict view’ of the meaning of ‘not reasonable’ in the definition of indirect discrimination (s 17(5)(c), the equivalent of s 9(1)(c) in the EOA 1995 (Vic)), but as this did not gain majority support in the Court, they agreed to form a majority for the proposition that reasonableness required consideration of all the circumstances of the case, affecting both the complainant and the respondent. In I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1, five High Court judges supported purposive interpretation in an impairment discrimination case under the Equal Opportunity Act 1984 (WA), confirming that ‘beneficial and remedial legislation, like the Act, is to be given a liberal construction’ but not one which is ‘unreasonable or unnatural’: at 12 (Brennan CJ and McHugh J); see also at 27 (Toohey J), 35–6 (Gummow J), 52 (Kirby J). This was further confirmed in Qantas Airways Ltd v Christie (1998) 193 CLR 280, which concerned the discrimination provisions of the Industrial Relations Act 1988 (Cth).

[27] In I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1, in construing the scope of ‘services’ in the Equal Opportunity Act 1984 (WA) to exclude the granting of planning permits by local government, Brennan CJ and McHugh J said that because the legislation contained specific definitions of discrimination (which they labelled ‘artificial’) and of the areas of activity covered, it was not intended as a broad anti-discrimination scheme and should be construed according to its ‘restricted terms’: at 14–15. Other members of the Court also adopted narrow interpretations of several aspects of the legislation in that case; cf at 52, 57–60 (Kirby J). This has subsequently been relied on as a basis for taking a narrow approach to interpreting specific terms of the legislation, including elements such as ‘not reasonable’ in the definitions of discrimination. It is strongly arguable that this view wrongly undermines the purposive approach and narrows the scope of anti-discrimination legislation well beyond what Parliament intended.

[28] Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78, 88 (Davies J) (Full Federal Court), relying on the statement of Brennan CJ and McHugh J in I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 15. A full discussion of the law concerning the element of ‘not reasonable’ in the test for indirect discrimination is beyond the scope of this article.

[29] Eg University of Ballarat v Bridges [1995] VICSC 90; [1995] 2 VR 418, where the complainant was asked a discriminatory interview question which confused her and led to a bad interview performance. The Court overturned a tribunal finding of discrimination, holding that it was her interview performance, not the discriminatory question, that led to her not being selected for the job, and that this was not discriminatory, as the causation was too distant. In Purvis v New South Wales (Department of Education & Training) [2002] FCA 503 (Unreported, Spender, Gyles and Conti JJ, 24 April 2002), where the complainant had a disability which involved disruptive and violent behaviour, the Full Federal Court upheld a single judge’s decision to overturn HREOC’s decision upholding the claim of discrimination. It said that while the complainant’s less favourable treatment was based on his behaviour, that did not mean it was discriminatory, as the Act required comparison between a person with the disability and a person without the disability but with the same behaviour. As noted in earlier cases, this deprives the legislation of meaning: I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 33–4 (Toohey J).

[30] Kirby J, for example, has clearly maintained that the legislation’s aim is to ‘achieve social change by removing stereotypes’, even if this is occasionally uncomfortable for those who exercise powers of choice, such as governments and employers: X v Commonwealth (1999) 200 CLR 177, 223–4 (dissenting).

[31] Christopher McCrudden, ‘Introduction’ in Christopher McCrudden (ed), Anti-Discrimination Law (1991) xi, xiv.

[32] Ibid xvii.

[33] Ibid.

[34] The law has not been prepared to require discrimination respondents to think through the effects of their prejudices on others: Charles Lawrence, ‘The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism’ (1987) 39 Stanford Law Review 317; Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319.

[35] Alan Freeman, ‘Antidiscrimination Law: A Critical Review’ in David Kairys (ed), The Politics of Law: A Progressive Critique (1982) 96, 97.

[36] Ibid 97–8.

[37] Ibid 98–9 (emphasis in original).

[38] Joan Scott, ‘Deconstructing Equality-versus-Difference: Or, the Uses of Poststructuralist Theory for Feminism’ (1988) 14 Feminist Studies 33.

[39] See sources cited above n 19.

[40] See, eg, Deborah Rhode, ‘The “No-Problem” Problem: Feminist Challenges and Cultural Change’ (1991) 100 Yale Law Journal 1731, 1748, 1754.

[41] In the case of sex, such systems are often justified on the basis of ‘natural differences’, and in the area of disability, by assumptions about people’s capacities without looking at the effect of social arrangements in creating them.

[42] Kathleen Lahey, ‘Feminist Theories of (In)Equality’ (1987) 3 Wisconsin Women’s Law Journal 5, 15.

[43] It is true that allowing different treatment can expose a group to the risk of discriminatory (detrimental) treatment. This risk can be minimised by safeguards such as seeking the group’s agreement. Failing to allow for difference, however, inevitably disadvantages those for whom the system is not yet designed. For example, provision of adequate maternity leave cannot occur unless women’s difference from men is acknowledged and different treatment given.

[44] Beth Gaze, ‘The Costs of Equal Opportunity: Will Changes to HREOC Solve the Problem of Anti-Discrimination Law Enforcement?’ (2000) 25 Alternative Law Journal 125.

[45] In Australia, only WA provides for the Commission to assist complainants in presenting a case for adjudication: Equal Opportunity Act 1984 (WA) s 93(2). This is much more common in Canada, where decisions as to whether to proceed to adjudication are usually made by the administrative agency: Thomson Professional Publishing, Racial Discrimination: Law and Practice, vol 2, 2-4.

[46] Among the States, NSW and Queensland provide some legal aid for State discrimination law matters, while in WA assistance is provided in selected cases by the Equal Opportunity Commissioner: see above n 45. Although there is provision in the Commonwealth discrimination laws for the Attorney-General to provide legal assistance, this is very rarely done.

[47] The courts talked about finding the respondent ‘guilty’ of discrimination in Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319, 325 (Fullagar J) and Schou [2001] VSC 321; [2001] 3 VR 655, 661 (Harper J).

[48] The gender composition of the federal judiciary is summarised and regularly updated at the Australian Institute of Judicial Administration website: <http://www.aija.org.au/

WMNjdgs.htm>. At 30 May 2002 the gender breakdown of the federal judiciary was: High Court: 1 female, 6 male (14 per cent female); Federal Court: 4 female, 43 male (8.5 per cent female); Family Court: 16 female, 36 male (31 per cent female); Federal Magistrates Court: 6 female, 13 male (31.5 per cent female).

[49] See Sandra Berns, Concise Jurisprudence (1993); Margaret Davies, Asking the Law Question: The Dissolution of Legal Theory (2nd ed, 2002); Regina Graycar, ‘The Gender of Judgments: Some Reflections on “Bias”’ (1998) 32 University of British Columbia Law Review 1.

[50] See Rosemary Hunter and Helen McKelvie, Equality of Opportunity for Women at the Victorian Bar: A Report to the Victorian Bar Council (1998).

[51] See, eg, Gaudron J (joint judgment with Mason CJ) in Waters [1991] HCA 49; (1991) 173 CLR 349; Kirby J in X v Commonwealth (1999) 200 CLR 177.

[52] For example, the VCAT 2000–2001 Annual Report (2001) 55–8 lists the following as appointed to the anti-discrimination list (although not all members appointed to it may actively sit): Deputy Presidents: 3 female, 1 male; Senior Members: 2 female (1 full-time, 1 sessional), 2 male (full-time); Full-Time Members: 2 female, 1 male; Sessional Members: 22 female, 6 male. Current members of the NSW Administrative Decisions Tribunal’s Equal Opportunity Division as listed in the Annual Report 2000–2001, Appendix B are: 1 female Division Head; Judicial (legally qualified) Members: 4 female, 9 male; Non-judicial Members: 13 female, 5 male. These figures are enough to indicate the increasing presence of women as the status of the position decreases. It is less easy to identify purely by name members who have a disability or are of indigenous or non-English speaking background, but it appears that they are few, although possibly more numerous than on the courts.

[53] Eg O’Callaghan v Loder [1983] 3 NSWLR 89 (cf O’Callaghan v Loder [1984] EOC 92-024, complaint failed on the facts) and other sexual harassment decisions; Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 (retrenchments based on seniority were discriminatory in a workforce where women had lower seniority due to sex discrimination at the entry stage); Northland Secondary College Case [1995] VicRp 27; [1995] 1 VR 421 (Court of Appeal) (discriminatory for government to close a secondary college which uniquely catered to indigenous students); McKenna v Victoria [1998] EOC 92-927, aff’d [2000] EOC 92-080 (Smith J) (discrimination in treatment of a policewoman). In Waters v Public Transport Corporation [1990] EOC 92-293 (Equal Opportunity Board of Victoria), it was held to be discriminatory for the government to change the public transport ticketing system in a way which disadvantaged people with disabilities. The High Court held, on appeal, that reasonableness is a question of fact for the tribunal to be assessed in light of all the circumstances of the case, affecting both complainant and respondent, including financial position; the case was remitted to the Board (but was settled before decision): [1991] HCA 49; (1991) 173 CLR 349.

[54] See, eg, the judgments of Kirby and Gaudron JJ referred to above n 51. See also the decisions of Commissioner Innes (who himself has a disability) as an Inquiry Commissioner in Purvis v New South Wales (Department of Education) [2001] EOC 93-117, overturned in the Federal Court: Purvis v New South Wales (Department of Education & Training) [2002] FCA 503 (Unreported, Spender, Gyles and Conti JJ, 24 April 2002); Finney v Hills Grammar School [1999] HREOCA 14; [1999] EOC 93-020, aff’d by the Federal Court in Hills Grammar School v Human Rights and Equal Opportunity Commission [2000] FCA 658; (2000) 100 FCR 306.

[55] Hickie v Hunt and Hunt [1998] HREOCA 8 (Unreported, Inquiry Commissioner Evatt, 7 March 1998) (‘Hickie’); Bogle v Metropolitan Health Service Board [2000] EOC 93-069.

[56] Peter Bailey and Rachel Callinan, ‘How the Courts Treat the Tribunals’ in CCH, Equal Opportunity Update, No 117 (25 January 2001) 1, found that in cases where HREOC had made a finding involving a substantive interpretation of the law (as opposed to procedure) only three of 20 decisions appealed to the courts were supported. The cases overruled by the Federal Court were largely during the years 1997–99. Although State tribunals fared slightly better than HREOC in terms of support from their Supreme Courts, they were overruled in 55 per cent of cases involving matters of substance: at 2, 7. See also William Adams, ‘The Judiciary and Anti-Discrimination Law’ (1986) 11 Legal Service Bulletin 247.

[57] This may change under the new federal system (see above n 9) where the courts will hear evidence at first-hand, but the disparity of resources between the parties and lack of legal aid are likely to hamper the presentation of cases in courts by unrepresented complainants.

[58] See above nn 52, 56.

[59] Eg Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319; Schou [2001] VSC 321; [2001] 3 VR 655. See also the technicalities referred to above n 26.

[60] Marc Galanter, ‘Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law and Society Review 95. Although the Commonwealth has adopted model litigant rules which emphasise that the government should operate with the public interest in mind when litigating and not act just like a private litigant, these rules are not enforced in any way, nor do they apply to large private litigants like the Commonwealth Bank. On the potential disincentives of the new federal system for complainants, see Gaze, ‘The Costs of Equal Opportunity’, above n 44, 126–9.

[61] [2001] VSC 321; [2001] 3 VR 655.

[62] Schou v Victoria (Department of Victorian Parliamentary Debates) [2000] EOC 93-100 (liability); [2000] EOC 93-101 (damages).

[63] Schou v Victoria (Department of Victorian Parliamentary Debates) [2000] EOC 93-100, 74 427–8.

[64] Ibid 74 427.

[65] Ibid 74 428.

[66] Following a rehearing in March 2002, VCAT again upheld Ms Schou’s claim in Schou v Victoria [2002] VCAT 375 (Unreported, Judge Duggan V-P, 24 May 2002). The Tribunal examined the work required of Ms Schou in detail and concluded that the attendance requirement was not reasonable. Ms Schou was thereby exposed to a ‘detriment’ in her work, and was also denied access to the ‘benefit’ of flexible and progressive work practices as provided for in her employment agreement: these constituted breaches of s 14(a) and (d) of the EOA 1995 (Vic). In reaching his conclusion, Judge Duggan had regard to the following considerations (at [94]):

• The consequences of failing to comply with the strict and inflexible attendance requirement which I have found to be insufficiently detrimental to the respondent undertaking its functions to dissuade me from the conclusion that the requirement is unreasonable
• The feasibility of more flexible options
• The ... inflexible attendance requirement
• The financial cost to the respondent [and]
• The serious consequences for the applicant of refusal to vary the attendance requirement ... with the ultimate result that her employment was terminated.

In July 2002, the Victorian government lodged an appeal against this VCAT decision, which will be heard in the Court of Appeal as the decision was by a Presidential member of VCAT.

[67] Schou [2001] VSC 321; [2001] 3 VR 655, 660.

[68] [1980] HCA 8; (1980) 142 CLR 237.

[69] Eg O’Callaghan v Loder [1983] 3 NSWLR 89; O’Callaghan v Loder [1984] EOC 92-024; Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165; Hickie [1998] HREOCA 8 (Unreported, Inquiry Commissioner Evatt, 7 March 1998); Bogle v Metropolitan Health Service Board [2000] EOC 93-069. Development of flexible work practices is now seen as part of good human resource management practice.

[70] Schou [2001] VSC 321; [2001] 3 VR 655, 660.

[71] See, eg, Commonwealth v Human Rights and Equal Opportunity Commission [1995] FCA 1067; (1995) 63 FCR 74 (‘Dopking [No 2]’).

[72] Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251 (‘Styles’) (reversing [1988] EOC 92-239); Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78, where the Full Federal Court held that HREOC had not taken into account the right of women on maternity leave to a guarantee of return to work.

[73] Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78, 116–18 (Sackville J).

[74] Schou [2001] VSC 321; [2001] 3 VR 655, 661 (emphasis added).

[75] See the examples given in Fabove n 53. The employment contract (like contracts for supply of goods and service) and awards and agreements have had to coexist with, and even to give way to, anti-discrimination law: Wardley [1980] HCA 8; (1980) 142 CLR 237. In addition, legislation has extended the reach of the anti-discrimination principle into the area of workplace relations through the removal of exemptions for awards in anti-discrimination laws, and the requirement for the Australian Industrial Relations Commission to deal with discriminatory provisions of awards: Industrial Relations Act 1988 (Cth) ss 93, 93A and 113.

[76] Hickie [1998] HREOCA 8 (Unreported, Inquiry Commissioner Evatt, 7 March 1998); Bogle v Metropolitan Health Service Board [2000] EOC 93-069.

[77] Beth Gaze, ‘Working Part Time: Reflections on “Practicing” the Work-Family Juggling Act’ (2001) 1 Queensland University of Technology Law and Justice Journal 199, 211–12.

[78] For this reason, the SA Parliament has not prohibited indirect discrimination on the ground of parental status: Rosemary Owens and Therese McDermott, ‘Equality and Flexibility for Workers with Family Responsibilities: A Troubled Union?’ (2000) 13 Australian Journal of Labour Law 278, 287–8. By contrast, NSW has legislated to require employers to accommodate carers’ responsibilities unless it would impose unjustifiable hardship: Anti-Discrimination Act 1977 (NSW) ss 49S–ZC.

[79] This term was first used by Brennan CJ in a wider sense in Waters [1991] HCA 49; (1991) 173 CLR 349, 378 to refer to one of the two factors he saw as important to assessing reasonableness in that case. The other factor was the ability to perform the activity without the challenged requirement in a way which was not discriminatory or was less discriminatory.

[80] Schou [2001] VSC 321; [2001] 3 VR 655, 657. These attributes, which are defined in the EOA 1995 (Vic) s 4(1), are attributes on the basis of which discrimination is prohibited: s 6(ea).

[81] Schou [2001] VSC 321; [2001] 3 VR 655, 661.

[82] See Rhode, above n 40, 1767, on envy of accommodation for women’s responsibilities and resentment against ‘special treatment’ for women, as determined from a male reference point. More generally, claims for ‘special measures’ are often seen by those who enjoy the benefits of the existing system as claims for special advantages, rather than for substantive equality of treatment. Attitudes here depend on whether or not the existing system of social practices is seen as neutral and fair.

[83] Schou [2001] VSC 321; [2001] 3 VR 655, 665.

[84] Ibid 665–6.

[85] See, eg, Glenn Patmore, ‘Moving towards a Substantive Conception of the Anti-Discrimination Principle: Waters v Public Transport Corporation of Victoria Reconsidered’ [1999] MelbULawRw 4; (1999) 23 Melbourne University Law Review 121; Gaze, ‘Some Aspects of Equality Rights’, above n 19.

[86] The Court was unsympathetic to her inability to measure up to the standard of commitment of the ‘ideal worker’, the full-time committed worker with no domestic or competing responsibilities.

[87] In NSW there is a duty to accommodate the responsibilities of carers, within the defence of unjustifiable hardship. In other States, even without a duty to accommodate, the law still makes it discriminatory to impose such requirements if they are not reasonable. While a lower test, this still requires assessment of relevant factors on both sides of the issue.

[88] Hickie [1998] HREOCA 8 (Unreported, Inquiry Commissioner Evatt, 7 March 1998) [6.17.12].

[89] [2001] VSC 321; [2001] 3 VR 655, 661–2. In the quotes given, the Court consistently referred to the fact that the attendance requirement was not ‘unreasonable’. However, the legislative test is that it be ‘not reasonable’, which is not necessarily the same.

[90] Ibid 663.

[91] Ibid 662.

[92] Ibid 663.

[93] Styles [1989] FCA 342; (1989) 23 FCR 251, 263 (Bowen CJ and Gummow J).

[94] Waters [1991] HCA 49; (1991) 173 CLR 349.

[95] Ibid 395.

[96] Ibid 383.

[97] [1995] FCA 1067; (1995) 63 FCR 74, 87.

[98] [1997] FCA 1311; (1997) 80 FCR 78, 112.

[99] Ibid 88. See also above n 28 and accompanying text.

[100] In Hickie [1998] HREOCA 8 (Unreported, Inquiry Commissioner Evatt, 7 March 1998), the requirement that a woman partner returning from maternity leave work full-time was held to be not reasonable as the firm had not established that she could perform all her functions only on a full-time basis. See Kate Eastman, ‘Maternity Leave, Sex Discrimination and Lawyers’ (1998) 36(5) Law Society of New South Wales Journal 38.

[101] Rosemary Hunter, Indirect Discrimination in the Workplace (1992) 240.

[102] For example, in suggesting a test which runs directly counter to the legislative formula, giving very little or no weight to the detriment imposed on Ms Schou and assuming that the contract of employment should prevail over anti-discrimination law.

[103] The appeal from the second VCAT decision will examine issues raised by the respondent in its appeal, which do not necessarily cover this ground.

[104] CCH, Australian and New Zealand Equal Opportunity Law and Practice, vol 1 (at 124-12-01) 4-700.

[105] Waters [1991] HCA 49; (1991) 173 CLR 349, 372.

[106] Schou [2001] VSC 321; [2001] 3 VR 655, 659.

[107] See, eg, Juliet Bourke, ‘Getting to the Heart of Career Progression’ (2001) 39(7) Law Society of New South Wales Journal 6.

[108] This includes Kirby J, Gaudron J, and Inquiry Commissioner Evatt acting as a hearing commissioner of HREOC, as well as Mason CJ who, although not having an attribute subject to disadvantage, delivered progressive judgments in anti-discrimination cases. Kirby J, one of the few judges to reach such eminence who is prepared to identify as having an attribute subject to discrimination, has consistently dissented in discrimination cases: eg I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1; Qantas Airways Ltd v Christie (1998) 193 CLR 280; X v Commonwealth (1999) 200 CLR 177; see also above nn 26, 27.

[109] Katherine O’Donovan, ‘Fabled Explanations of Bias’ in Clare McGlynn (ed), Legal Feminisms: Theory and Practice (1998) 49.

[110] NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40 (Unreported, Allsop J, 31 January 2002).

[111] Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990) 261.

[112] Denise Reaume, ‘Harm and Fault in Discrimination Law: The Transition from Intentional to Adverse Effect Discrimination’ (2001) 2 Theoretical Inquiries in Law 349; Alice Tay, ‘Human Rights and Human Wrongs’ [1999] AdelLawRw 1; (1999) 21 Adelaide Law Review 1, 4.