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Remedying discrimination : the limits of the law and the need for a systemic approach

Allen, Dominique 2010, Remedying discrimination : the limits of the law and the need for a systemic approach, University of Tasmania law review, vol. 29, no. 2, pp. 83-110.

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Title Remedying discrimination : the limits of the law and the need for a systemic approach
Author(s) Allen, Dominique
Journal name University of Tasmania law review
Volume number 29
Issue number 2
Start page 83
End page 110
Total pages 28
Publisher University of Tasmania
Place of publication Hobart, Tas.
Publication date 2010
ISSN 0082-2108
Keyword(s) discrimination
equality
remedy
settlement
Australia
South Africa
Summary Very few discrimination complaints reach the courts each year. As with other civil litigation, the reasons for this include the cost of pursuing litigation and, particularly for complainants, the risk of losing or receiving less than the complainant could have negotiated prior.

Drawing on interviews with lawyers and non-legal advocates in Victoria and an analysis of successful cases in three jurisdictions, this article examines the remedy the court is likely to award in a successful discrimination complaint and considers the effect of this on the eradication of discrimination in society. A comprehensive examination of the remedies awarded in successful discrimination complaints in Victoria over a three year period shows that courts are most likely to order compensation at modest amounts and complainants are not regularly awarded their costs. A comparison with Queensland and the federal system reveals a similar experience. Even in those jurisdictions where wider remedies are available, courts rarely take the opportunity to make broad orders which could affect other similarly situated individuals or deter would-be respondents.

While it is necessary to remedy the complainant’s experience, it is also necessary to address broader, systemic discrimination and a compensation award cannot do this. Remedying discrimination with compensation is primarily a problem because it is reactive. Compensation does not address other instances of discrimination in society or achieve systemic change nor does it encourage compliance because the respondent is not required to take anticipatory action to prevent another complaint.

Based on the interpretive principles and extensive remedies provided in South Africa’s recent anti-discrimination and a study of remedies ordered by the South African Equality Courts and the Irish Equality Tribunal, the article proposes reforms to Australia’s anti-discrimination legislation to enable courts to make wider orders which target other instances of discrimination in addition to remedying the complainant’s experience.
Language eng
Field of Research 180114 Human Rights Law
Socio Economic Objective 970118 Expanding Knowledge in Law and Legal Studies
HERDC Research category C1.1 Refereed article in a scholarly journal
Copyright notice ©2010, University of Tasmania, Law School
Persistent URL http://hdl.handle.net/10536/DRO/DU:30033129

Document type: Journal Article
Collections: School of Law
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Every reasonable effort has been made to ensure that permission has been obtained for items included in DRO. If you believe that your rights have been infringed by this repository, please contact drosupport@deakin.edu.au.