A Creative Interpretation: A comparative study of statutory discrimination law

Abstract

This thesis explores the judiciary's role in achieving substantive equality utilising statutory discrimination law. The normative literature almost uniformly suggests that a substantive approach should be adopted. But the extent to which courts have interpreted, or are likely to interpret, discrimination law consistent with a substantive purpose has been under-explored. I tackle this problem by exploring the idea that there needs to be a 'creative' interpretation of discrimination law to achieve substantive results. In this thesis, I fill this gap by asking: Is a 'creative' interpretation of statutory discrimination law consistent with the institutional role of the judiciary?

In my thesis, I adopt a comparative approach to the interpretation of non-discrimination rights by considering the interpretation of statutory discrimination law in Australia, Canada and the United Kingdom. These jurisdictions were chosen because each prohibits discrimination on the basis of a similar list of attributes, in a similar manner and in similar areas. However, in each case, the aims and purpose of statutory discrimination law has been understood differently. I explore and explain this difference by considering the approaches that have been taken with respect to three key controversies in discrimination law: who should be protected by discrimination law; what protection is provided (or what is unlawful discrimination); and how far can discrimination law 'transform' society. Through this thesis I establish that the different interpretation is not explained by distinctive statutory schemes but by the different interpretive choices made by the judiciary in each jurisdiction.

I explain this difference by focusing on the different ways in which the appropriate role for the courts in rights review and norm elaboration is conceived in Australia, Canada and the United Kingdom. I ultimately argue that without an accepted role for the courts in rights review, statutory discrimination law will not be interpreted 'creatively' to achieve substantive results.