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

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. <br /><br />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. <br /><br />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. <br /><br />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.