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A Case for Recognising Non-discrimination as a Fundamental Right at Common Law


Dominique Allen, Janina Boughey and Dan Meagher

This article seeks to make a case that the common law of Australia should now recognise non-discrimination as a fundamental right. To do so, we argue, would equip future generations of Australian judges with a normative and doctrinal tool that would commit the common law to take seriously – so far as institutionally and interpretively possible – the challenges of discrimination in the content and application of law. A conception of non-discrimination is offered, and we explain how it may inform the content of such a ‘right’ and the development of common law doctrine and interpretive principle. We then turn to consider where and how the recognition of non-discrimination as a fundamental right might perform meaningful work in contemporary Australian law. Our aim is a modest but important one. We hope to demonstrate that common law recognition of non-discrimination as a fundamental right is symbolically important and may prove doctrinally useful.

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