The Conflicting Purposes of Australian Anti-Discrimination Law

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Abstract

The underlying rationale for prohibiting discrimination continues to be subject to significant debate. This debate leads to a lack of clarity with respect to the kinds of harms anti-discrimination law is designed to prevent and the kinds of behaviours it is designed to capture. A frequent criticism of the Australian courts’ approach to discrimination law is that it fails to grapple with the underlying purpose of anti-discrimination law. The consequence of this failure is a jurisprudence that is underdeveloped. This paper makes a different argument. This article argues that the Australian courts can and do give a purposive interpretation to anti-discrimination law but the purpose that the courts draw on lacks an underpinning coherence or consistency. This paper will make this argument by considering three recent Australian appellate court decisions on disability discrimination to consider the different ways in which the court exhibits an understanding of the purpose of anti-discrimination law.
Original languageEnglish
Pages (from-to)188-210
Number of pages22
JournalUniversity of New South Wales Law Journal
Volume42
Issue number1
Publication statusPublished - 2019

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title = "The Conflicting Purposes of Australian Anti-Discrimination Law",
abstract = "The underlying rationale for prohibiting discrimination continues to be subject to significant debate. This debate leads to a lack of clarity with respect to the kinds of harms anti-discrimination law is designed to prevent and the kinds of behaviours it is designed to capture. A frequent criticism of the Australian courts’ approach to discrimination law is that it fails to grapple with the underlying purpose of anti-discrimination law. The consequence of this failure is a jurisprudence that is underdeveloped. This paper makes a different argument. This article argues that the Australian courts can and do give a purposive interpretation to anti-discrimination law but the purpose that the courts draw on lacks an underpinning coherence or consistency. This paper will make this argument by considering three recent Australian appellate court decisions on disability discrimination to consider the different ways in which the court exhibits an understanding of the purpose of anti-discrimination law.",
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The Conflicting Purposes of Australian Anti-Discrimination Law. / Taylor, Alice.

In: University of New South Wales Law Journal, Vol. 42, No. 1, 2019, p. 188-210.

Research output: Contribution to journalArticleResearchpeer-review

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AB - The underlying rationale for prohibiting discrimination continues to be subject to significant debate. This debate leads to a lack of clarity with respect to the kinds of harms anti-discrimination law is designed to prevent and the kinds of behaviours it is designed to capture. A frequent criticism of the Australian courts’ approach to discrimination law is that it fails to grapple with the underlying purpose of anti-discrimination law. The consequence of this failure is a jurisprudence that is underdeveloped. This paper makes a different argument. This article argues that the Australian courts can and do give a purposive interpretation to anti-discrimination law but the purpose that the courts draw on lacks an underpinning coherence or consistency. This paper will make this argument by considering three recent Australian appellate court decisions on disability discrimination to consider the different ways in which the court exhibits an understanding of the purpose of anti-discrimination law.

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