Rethinking the Sex Discrimination Act - Does Canada’s Experience Suggest We Should Give Our Judges a Greater Role?

Abstract

It is not uncommon to hear laments about how Australian judges have failed to progress or even undermined gender equality by providing conservative or technical interpretations of anti-discrimination legislation and reinforcing merely a formal notion of equality. However, a comparison of Australian and Canadian anti-discrimination statutes suggests that the way in which Australian anti-discrimination laws have been drafted both reflects and possibly reinforces a very limited role for our judiciary in mediating value conflicts and addressing complex social problems such as inequality. The open textured drafting style of Canadian human rights statutes and the advent of the Charter have given the Canadian courts the power and legitimacy to develop more interesting and effective approaches to equality and discrimination than judges in Australia who have highly prescriptive legislation that reflects and reinforces a strict separation of powers and narrow judicial role. This raises the question: Should we give our judges a greater role?

Keywords: anti-discrimination legislation, Australia, Canada, judicial discretion, sex discrimination, equality

JEL Classification: K10, K30, K33