From Comparators to Detriment: Rethinking Direct Discrimination in Australia in Light of the Convention on the Rights of Persons with Disabilities

Sammanfattning

This thesis examines the degree to which the comparator test and detriment test, as the two prevailing tests for direct discrimination in Australia, are compatible with the Convention on the Rights of Persons with Disabilities (‘CRPD’). Drawing on the Committee on the Rights of Persons with Disabilities’ evolutive interpretation of the CRPD, this thesis derives two normative requirements for legislative prohibitions on direct discrimination — namely, that they: (a) contribute to, or (at the very least) do not undermine, substantive equality as understood under Fredman’s four-dimensional model (‘Fredman Model’); and (b) are capable of effectively addressing intersectional discrimination. This thesis concludes that the comparator test, as currently constructed and applied across most Australian jurisdictions, fails to satisfy either of these criteria to any significant degree. The ‘strict comparison’ methodology embodied in this test is demonstrated to substantially restrict its capacity to contribute to the Fredman Model and, in several respects, serves to actively un-dermine it. Similarly, this methodology is shown to be ineffective in capturing the complex, contextualised relationships of disadvantage that constitute intersectional claims. Conversely, the detriment test — by abandoning a ‘strict comparison’ methodology and, instead, facilitating a ‘contextual’ methodology — enables courts and tribunals to more effectively contribute to the Fredman Model. In addition, it is shown that this ‘contextual’ methodology could (at least in principle) enable courts and tribunals to more effectively address intersectional claims, even though its full potential in relation to such claims has not yet been realised in practice. Based on this analysis, legislative reform is recommended to incorporate the detriment test within all legislative prohibitions on direct discrimination at the federal level and in each state/territory. While this reform alone will not ensure that these prohibitions are completely compatible with the CRPD, it is undoubtedly a meaningful step towards that goal.