730-372 Sex Discrimination Law

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Credit Points:

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Subject Description:

General introduction: the meaning of equality and discrimination, looking at a variety of understandings of equality and the consequences in social policy of adopting each model; the notion of equality and discrimination embodied in Australian legislation and general overview of Australian legislation. Constitutional issues: particular constraints on Commonwealth powers in this area, including discussion of the external affairs power, corporations power and inconsistency issues as a result of the operation of s.109; how international conventions have been implemented in Australian law. Problems of Proof in discrimination law and exemptions in the legislation: the difficulties in proving discrimination on the ground of sex and the embodiment of the public/private distinction in the legislation on sex discrimination. Sex Discrimination in Employment: a consideration of empirical information on women's position in the paid labour force, earnings, and dependence on the welfare state; a detailed consideration of the Victorian and Commonwealth legislation, particularly the case law on the meaning of discrimination on the ground of sex, terms and conditions of employment and in dismissal, focusing on the discrimination in employment provisions. Discrimination on the ground of marital status and sex discrimination in other areas: related grounds of discrimination such as marital status, pregnancy and family responsibilities, sex discrimination in the areas of accommodation, goods and services and clubs; the extent to which the Australian anti-discrimination legislation requires a comparison of women with a male model. Sexual harassment: the development of the cause of action both here and overseas, comparison with tort law, empirical material on the incidence of sexual harassment and the understanding of sexual harassment as a form of sex discrimination both at common law and in statutory form. Applications for exemption: protective legislation, particularly the lead industry, and Tribunal understandings of special measures in dealing with exemption applications. Affirmative action: various models of affirmative action, the legislated affirmative action requirements, the extent to which they meet shortcomings in the discrimination approach and criticisms of them. The interrelationship of discrimination law and industrial law: some of the following topics will be examined; alternative remedies under industrial law, union participation in discrimination issues, equal pay and comparable worth. Procedures for dealing with complaints: the process of resolving disputes and issues of proof and remedies, the review and appeal function of courts; the role of conciliation in discrimination complaints and the function and place of specialist Tribunals. Although the emphasis throughout the course is on Australia, comparisons will be made with other relevant countries, including the US and the UK.

Assessment:

Prescribed Texts:

• Act, Equal Opportunity Act, 1984, (Vic).
• Act, Sex Discrimination Act, 1984, (Vic).