Published in association with the Law and Justice Foundation of NSW
This major study breaks new ground in exploring the effectiveness and accessibility of procedures for protecting the rights of individuals to equality and freedom from discrimination on the grounds of race, sex and disability.
The enforcement of Australian federal anti-discrimination laws has encountered constitutional limitations. Because federal tribunals are unable to make binding decisions, in 2000 enforcement of federal discrimination matters was moved from a tribunal (the Human Rights and Equal Opportunity Commission) to the federal courts.
The study examines how the move from a specialist tribunal to the federal courts affected enforcement of federal anti-discrimination law. Drawing on statistical data, analysis of reported cases and interviews with parties and their advisors under both the ‘old’ and ‘new’ systems, it investigates the impact of the change in terms of:
specialist versus generalist decision-making
relatively informal versus formal procedures
a regime in which each party bears their own costs versus one in which the loser pays the winner’s costs
The study traces the impact of these changes on the decisions made by complainants about whether (and where) to bring a complaint, whether to settle their cases or proceed to litigation, and on decisions made by respondents about whether to defend or settle a case. The enforcement process in federal discrimination matters was found to erect significant barriers to individuals seeking to pursue their claims in this area.