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This subject examines the development, operation and future of anti-discrimination laws in Australia. In the absence of constitutional protection for equality in Australia, this is the major method of protecting people with specific attributes from discrimination. Legislation was first adopted in the 1960s to respond to problems of discrimination and inequality, and has since expanded in scope of both attributes protected and areas of activity covered. Knowledge about its social context, theories of equality and discrimination, and how the law operates has also developed. The course examines the capacities and limitations of law in trying to change broad social behaviour patterns in wide ranging areas of activity such as work, education, and supply of goods, services and accommodation. The introduction to the subject includes consideration of the ideas of equality and discrimination, and theories about their causes and remedies. Over time, emphasis has moved from a focus on discrimination to the underlying aim of promoting equality. The subject examines the difficulties of operating within a federal system, critically analyses the effectiveness of anti-discrimination law in reducing inequality in Australia, and where relevant contrasts Australian law with other approaches. Current issues such as the proposed Commonwealth religious discrimination bill will be considered.
The subject will introduce anti-discrimination law generally and consider its operation in relation to the attributes of sex, sexual orientation, race, and disability. The optional research paper provides students with an opportunity to study one of these areas, or another area of the law, in greater depth. The subject also offers the option for a limited number of students to undertake a placement in a legal service working in anti-discrimination law to provide an experiential basis for understanding and evaluating the law in operation. As limited placements are available, a selection process will be undertaken at the start of the subject if necessary.
The subject aims to develop expertise in the current legislative approaches and their development and a critical understanding of the historical and theoretical foundations of the law, and to evaluate its effect, including through international comparison. It considers how effective law has been in changing social practices and eliminating discrimination, and whether alternative approaches offer better prospects.
Intended learning outcomes
On completion of this subject, students will have developed a detailed, sophisticated and contextual understanding of:
- The social dimensions of inequality and discrimination in Australia;
- The history and development of the legislation in Australia, including its relationships with international human rights law, the successive stages of development, the interaction of legislative change and judicial interpretation, and current debates about legislative harmonisation and consolidation;
- The philosophical and legal concepts of equality and discrimination underpinning the legislation, their complexities, and the legal, theoretical and practical hurdles to giving full effect to the legislative scheme;
- The structure, purpose and application of anti-discrimination legislation;
- The complexities of the legislation in the context of a federal system and its scope, extending across work, education, many areas of business, government services, etc;
- The powers and challenges for agencies that play a role in enforcing the law, and for individuals seeking to enforce or defend a claim;
- How Australia's legislation and its effects compares with that of other relevant countries such as NZ, Canada, UK and the EU;
- The capacity and limits of law as a mechanism of broad social change.
- The factors that affect or limit the ability of the law to achieve its aims, and alternative approaches, such as positive action and positive duties; and
As a result students who successfully complete this subject will be able to:
- Analyse and research complex situations and apply the legislation and theories to them;
- Critically analyse and evaluate the problems and theories underlying the legislation and its application and limits; and
- Effectively communicate, to specialist and non-specialist audiences alike, their thinking in relation to both legal and broader discussions of legal efforts to counteract discriminatory acts, practices and structures.
On completion of the subject, students should have critically analysed a specific decision in anti-discrimination law from the perspective of both legal technique and theoretical perspectives. They will have further developed the following specialist skills:
- Expertise in recognising the complexities and tensions inherent in using law as an instrument of social change and applying theoretical ideas through legislation;
- The ability to learn from encountering very different perspectives, and sensitivity to the experiences and ideas of people from very different backgrounds to their own, including across cultures, gender, sexuality, age and other classifications;
- The ability to use complex legal materials and structures within a federal framework to read, interpret and analyse statutes, and understand the significance of variations in approaches in different jurisdictions, as well as to read analytically and understand complex cases focussing on statutory interpretation. This includes the demonstrated capacity to critically analyse the approach of decision-makers to the interpretation of anti-discrimination laws, including the nature of the arguments that courts accept and reject, and the approaches of parliaments to reform;
- Exploring the relationship between legal and social thought and analysis; and
- Understanding the practical effects of legislation and legal decisions as well as the doctrinal outcomes of legal decisions.
In addition, students undertaking a placement will further develop their practical skills in relation to legal workplaces of:
- Working cooperatively in a human rights organisation;
- Undertaking research of practical value to that organisation;
- Learning through observation and experience about the work of the organisation and the experiences of its client group; and
- Work-related skills such as communication, time management, and office organisation.
Last updated: 3 November 2022