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

SEX DISCRIMINATION IN UNCERTAIN TIMES, pp. 235-259, M. Thornton, ed., ANU E Press: Canberra, 2010

Sydney Law School Research Paper No. 10/32

21 Pages Posted: 22 Mar 2010 Last revised: 1 Oct 2010

See all articles by Belinda Smith

Belinda Smith

The University of Sydney Law School; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: March 15, 2010

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

Suggested Citation

Smith, Belinda M., Rethinking the Sex Discrimination Act - Does Canada’s Experience Suggest We Should Give Our Judges a Greater Role? (March 15, 2010). SEX DISCRIMINATION IN UNCERTAIN TIMES, pp. 235-259, M. Thornton, ed., ANU E Press: Canberra, 2010, Sydney Law School Research Paper No. 10/32, Available at SSRN: https://ssrn.com/abstract=1570923

Belinda M. Smith (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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