A CASE FOR RECOGNISING NON-DISCRIMINATION AS A FUNDAMENTAL RIGHT AT COMMON LAW

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.