Defining the scope and operation of prohibitions on discriminatory conduct has proven difficult in many jurisdictions. Often, the legislation or constitutional enactments prohibiting discriminatory conduct provides little guidance with respect to the aim or purpose of discrimination law. Consequently, it is the role of the judiciary to both further elucidate the aim or purpose of prohibitions on discriminatory conduct and construct the scope and operation of the legislation to fulfil that overarching aim. How these prohibitions have been interpreted by courts has varied significantly with some judicial determinations giving discrimination law a broad and substantive interpretation, while others have determined that discrimination law requires only a formal notion of equal justice.
This presentation will explore this divergence and the implications that this divergence has for the capacity to appropriately define equality and discrimination in law by considering the different approaches take by the Australian, Canadian and British court’s in understanding discrimination law’s purpose. It will argue that a significant problem that the comparison of these jurisdictions expose is the lack of agreement as to discrimination law’s purpose and its ultimate aims.