A rose is a rose is a rose : but not all discrimination smells the same. An exploration of the capacity of the psychology of stigma, prejudice and discrimination to enhance discrimination law.

This thesis considers the potential to improve the effectiveness of discrimination law through incorporating understandings of prejudice, stigma and discrimination from social science research into its substantive provisions and its processes. It seeks, in particular, to expose and address gaps and failings in discrimination law that reflect the current absence of consideration of the psychology of prejudice and discrimination.
The second half of the 20th century saw the development of formal laws prohibiting discrimination in relation to a range of specific personal characteristics. These built on both civil rights movements and international system recognition of the harm done by prejudice and stigma-based negative treatment and exclusion of significant population groups, including, in particular, women, racial and religious minorities, and people with disability. More recently, discrimination law protections have been extended to include people discriminated against because of, for example, their age, their sexual orientation, and their gender identity.
These laws focus on the manifestation, in conduct, of prejudice and stigmatisation. They seek to characterise particular forms of conduct as unlawful discrimination. They deal with both unequal treatment—formal inequality—through prohibition of direct discrimination, and unequal opportunities—substantive inequality—through prohibition of indirect discrimination. They focus largely on the harm caused by discrimination targeting or affecting an individual.
Stigma, prejudice and stereotypes (including implicit attitudes or unconscious bias) have been topics of significant academic research in the social sciences, particularly sociology and psychology, during the second half of the 20th century. Public interest and information in more mainstream publications has also increased during this time. Despite the growth in scientific understanding, the way the law deals with discrimination as a manifestation of stigma and prejudice has not evolved to reflect what that research has revealed. We have failed to build into discrimination law mechanisms that reflect an understanding of how prejudice develops, its various internal manifestations (attitudes and emotional responses in the person holding the prejudice), its different external manifestations (behaviours), and its systemic nature.
This lack of evolution of the scope, approaches to, and content of discrimination law reflects a separation of the law from those social sciences that seek to understand the behaviour that law is often promulgated to address. The lack of incorporation of the learnings from the social sciences about prejudice and stigma has limited the capacity of discrimination law to respond effectively to the complexity and impact of discrimination at either an individual or systemic level.
In this thesis, the effectiveness of discrimination law in Australia is investigated using both qualitative and quantitative methods, including through drawing on the views of professional experts and expert members of equity-seeking groups to identify key areas of concern and potential reform. Consideration is then given to the body of psychological research that focuses on prejudice and discrimination to identify key areas that could usefully inform developments in discrimination law to achieve more effective and evidence-based processes to challenge discrimination. While the central focus of this research is on considering how understandings of prejudice and discrimination in psychology could be used in law and legal process reform, consideration is also given to other aspects of psychological research that are relevant to the law and legal dispute resolution and decision making more broadly.
This research is then used to propose new approaches to address gaps in discrimination law, particularly developing reform proposals based on the psychological research. These substantive and procedural law reform proposals are considered from three perspectives. Novel data from the present thesis is distilled into a summary of views on reforms from interview participants with professional expertise in discrimination and prejudice and from expert members of equity-seeking groups. This analysis is complemented by a summary of key reform initiatives developed by formal law review and reform processes, those proposed by discrimination law academics over a number of years, and the novel work of identifying potential reforms drawn from practices in other jurisdictions.
In the final chapters, I consider what may be needed to implement such reforms. The roadmap to implementation is developed through considering how law reform has been achieved in the past and identifying the range of actors that need to be persuaded and the structural and cultural barriers to reforms that will need to be overcome. Of particular note is the need to ensure that the interpretation of discrimination law is more responsive to the science of prejudice and discrimination as it continues to develop. This responsiveness will require a shift in the judicial and quasi-judicial decision-making processes that currently operate for discrimination law.
Through developing empirical evidence of problems with the effectiveness of current discrimination law and process, and then identifying ways in which the law can be reformed based on scientific understandings of prejudice and discrimination, this thesis makes a significant and novel contribution to the field of discrimination law and its reform. The first key insight of the thesis is that the oft-expressed concerns about the effectiveness of discrimination law in Australia to achieve greater equality are supported by empirical evidence. A second key insight is that there is significant capacity for discrimination law to be enhanced in its effectiveness through incorporating scientific understandings of discrimination and prejudice into the way the law is framed and operates. A final insight is that further research is needed to enhance our understandings of the impact of formal legal system approaches—in terms, for example, of the needs for a plaintiff who has experienced an identifiable harm and where the perpetrator of the harm can be identified—on laws that seek to challenge the exercise of power against disadvantaged groups.