Anti-discrimination legislation in Australia: A reckoning

Abstract

In recognition of the 30thanniversary of the IJDL, this article overviews anti-discrimination law in the Australian federal jurisdiction noting major trends. The individual complaint-based mechanism at the centre of anti-discrimination law has contributed to a degree of stagnation in respect of the grounds of race, disability, and age in terms of both legislation and jurisprudence, while sex and sexual harassment have been comparatively dynamic. First, the idea of sex as a binary was replaced with a new understanding of gender identity that prohibits discrimination against LGBTIQ + people; secondly, Respect@work emerged from the international #MeToo movement and gave rise to a range of reforms, which included positive action and an innovative equal costs regime that has the potential to revolutionise discrimination jurisprudence. While positive action is limited to the ground of sex, the equal costs regime applies to all grounds. It is nevertheless noted that equality, the aim of anti-discrimination legislation, remains elusive as competition policy and wealth accumulation are central in a market-based society and supportive of managerial prerogative.