Whose Fault Is It? Asking the Right Questions When Trying to Address Discrimination

Alternative Law Journal, Vol. 37, No. 1, pp. 31-36, 2012

Sydney Law School Research Paper No. 11/52

7 Pages Posted: 24 Aug 2011 Last revised: 9 Oct 2015

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

Dominique Allen

Labour, Equality and Human Rights research group, Department of Business Law, Monash Business School; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: August 22, 2011

Abstract

The Australian Government’s announcement that it intends to ‘consolidate’ federal anti-discrimination laws has prompted debate about how these laws could be reformed rather than merely reformatted. In this article we compare Australian anti-discrimination laws with equivalent laws in the United Kingdom and Canada to illuminate the conception of discrimination that underpins each law and to prompt further debate about the appropriateness of the Australian regulatory model.

If equality is accepted as a social good that benefits all members of a society, regulation that requires responsibility for addressing inequality to be shared is justified. In nations comparable to Australia, such as the UK and Canada, this has been accepted and built into the design of equality laws. The regulatory trend discernible in these jurisdictions is clearly a move away from an individual fault-based model of discrimination regulation like Australia’s which targets only discrimination that can be traced to a wrong-doer. The move is toward a regulatory model that castes a wider net requiring duty-holders not merely to refrain from wrong-doing but also to make at least reasonable efforts to eradicate discrimination and promote equality. In the United Kingdom this is illustrated by the introduction of positive equality duties to supplement the traditional anti-discrimination laws. Alternatively, Canada’s complaint-based system of anti-discrimination laws imposes a limited ‘positive’ obligation on duty holders to provide reasonable accommodation to members of all protected groups.

In contrast, Australia’s anti-discrimination laws have not significantly developed since their inception, leaving Australia with ineffective laws and lagging behind international consensus on human rights and equality. To avoid achieving nothing more than ‘consolidation’ of narrow, inadequate, fault-based laws, we need to ask better questions. Addressing inequality is not just about fault.

Keywords: anti-discrimination, equality, law, fault, capacity, Australia, UK, Canada

JEL Classification: K10, K30

Suggested Citation

Smith, Belinda M. and Allen, Dominique, Whose Fault Is It? Asking the Right Questions When Trying to Address Discrimination (August 22, 2011). Alternative Law Journal, Vol. 37, No. 1, pp. 31-36, 2012, Sydney Law School Research Paper No. 11/52, Available at SSRN: https://ssrn.com/abstract=1914844

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

Dominique Allen

Labour, Equality and Human Rights research group, Department of Business Law, Monash Business School ( email )

Caulfield Campus
Sir John Monash Drive
Caulfield East, Victoria 3084
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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