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Reforming Age Discrimination Law: Beyond Individual Enforcement, Alysia Blackham (2022)

Panel discussion Emeritus Professor Rosalind Croucher AM

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I am speaking today from the traditional lands of the Dharug and Gundungurra peoples and pay my respects to Elders past, present and emerging—and to the traditional custodians of the lands from wherever you are zooming in today.

I am honoured to take part in this book launch of Associate Professor Alysia Blackham’s new book, published this year by Oxford University Press in their prestigious Oxford Labour Law series.

First, I should say, that it is a fine book. Even before you get to page 1 (in Arabic numbering) you find a set of endorsements that would make any author blush.

Phrases like ‘must read’ and ‘”go-to” resource’, ‘groundbreaking’, and ‘outstanding contribution’, leap off the page.

This is in addition to the usual accolades you would expect for an academic book, like ‘meticulous research’, ‘scrupulous comparative doctrinal research with meticulous empirical case studies’, ‘sophisticated account’, ‘nuanced understanding’, ‘impressive socio-legal study’.

It is, as Professor Colm O’Cinneide, acclaims, ‘a remarkably good book’.

I was particularly encouraged to see Associate Professor Blackham’s list of reform ideas, integrated throughout the book, and then brought together as an Appendix at the end.

I am honoured today to be in the company of Emeritus Professor Andrew Byrnes, a tireless advocate and champion in the field of the rights of older people in particular. And for our moderator/inquisitor to be Professor Beth Gaze – let me say I am terrified already! The Hon Anthony North, now ‘KC’, and I are compatriots in the field of law reform, and Mr North brings his years on the bench to the discussion. It is humbling to be in all their company.

What can I bring, in such eminent company, on the important discussion on the topic of age discrimination? One thing I learned in my years of law reforming endeavours — 10 years at the ALRC and now five years at the Australian Human 2 Rights Commission — is to acknowledge the expertise of others, to learn from them, and draw the best of it all together in contributions to law reform, whatever the topic of consideration, attributing the wisdom to all those who informed those conclusions, and aiming for the long horizon.

On Human Rights Day last year, 2021, I released the first part of a roadmap for human rights reform in Australia, under the banner of ‘Free and Equal: an Australian Conversation on Human Rights’—the Commission’s position paper on federal discrimination law reform: A reform agenda for federal discrimination laws. We set out 38 recommendations covering every aspect of our federal discrimination law system, to ensure: that it offers robust protection against discrimination, provides better support for businesses and organisations to ‘do the right thing’, and is simpler to use.

The Position Paper will form part of a report to the Attorney-General in due course, together with the second major set piece, providing a revised and revamped model for a federal Charter of Rights for Australia.

The discrimination law paper builds from, and lifts conceptually higher than, the proposals in the Respect@Work report, focused on the response to sexual harassment in the workplace through the Sex Discrimination Act 1984 (Cth).

With respect to attribution, there is much of it in the 350 pages of the Discrimination law position paper – including to the work of Alysia, Beth and others who have advocated for using regulatory theory and models to reimagine and reform discrimination law.

Law reform work of this kind is not like an academic paper in its use of referencing. Key sources are named, rather than the ‘cite everything’ approach that is often required in demonstrating the comprehensiveness of doctrinal literature review. But using citation as some indicator, within this constrained context, we cite Alysia 29 times (and this was before the publication of the book we launch tonight); and Beth, 89.

In the few minutes I have in this part of the proceedings I would like to provide a snapshot of our conclusions in the context of Australia’s anti-discrimination laws. The proposals cover all of the four federal discrimination laws and aspects of the Commission’s constituting Act. As our jurisdiction is wider than employment, the scope is necessarily wider than the central focus of Alysia’s study. In our conclusions, you will see that their provenance is strongly grounded in the theoretical literature that Alysia draws from and enhances.

It would not surprise this audience to say that there are a number of key problems in discrimination law in Australia. Above all, we need to move ‘beyond individual enforcement’ – the subtitle to Alysia’s book.

First, addressing discrimination is heavily reliant on individuals to bring complaints, rather than on more systemic approaches to building cultures of prevention—within businesses, services and the institutions of public life. This is very much a feature of first-generation approaches to discrimination law.

The focus should shift to preventing discrimination, rather than reacting to it, after the fact.

Secondly, the regulatory framework is out of date and needs strengthening. There should be a full range of regulatory responses available to target discrimination of different kinds, at different levels of severity, and to engender understanding and certainty about legal obligations.

Federal discrimination laws do not provide adequate support to the business sector to take proactive efforts to address potential discrimination.

Thirdly, the discrimination system, while offering a range of options, can be difficult to navigate, and legal remedies difficult to access, with the result that many meritorious claims may not be pursued in the courts.

Individuals need the tools to obtain access to justice.

Fourthly, with, for now, four sets of federal discrimination laws, alongside state and territory instruments—and overlapping regimes such as Fair Work—the mix of discrimination laws is complex and sometimes inconsistent, which leads to difficulties in applying the law.

There are also gaps in protection, so some people are not protected at all by discrimination laws, or are unable to obtain access to a remedy for discriminatory conduct.

What, then are the solutions?

I crystallised key areas for reform into four pillars: building a preventative culture; modernising the regulatory framework; enhancing access to justice; and improving the practical operation of laws.

These four pillars strongly resonate with the empirical and theoretical analysis that Alysia presents in her book.

Pillar One—Building a preventative culture

The foundation stone here is a positive duty to take reasonable and proportionate measures (in accordance with their size and resourcing) to eliminate unlawful discrimination.

Positive duties are an emerging feature of discrimination and workplace laws in Australia—and overseas—reflecting a shift to a preventative focus in dealing with discrimination and avoiding harm.

These are not new ideas. In part III of Alysia’s book, ‘Beyond Individual Enforcement’, the argument is made strongly in favour of both introducing positive duties and providing the enforcement tools to make them effective.

In the Commission’s 2020 Respect@Work report into workplace sexual harassment, we recommended the introduction of a positive duty to take measures to eliminate sex discrimination, sexual harassment and victimisation.

I am excited to say that the new Government is about to introduce amendments to give effect to this recommendation.

However, sex discrimination in the workplace is only one aspect of federal discrimination law.

In the discrimination law Position Paper, we advocate that a positive duty be included in all discrimination laws, requiring organisations to take reasonable and proportionate measures (in accordance with their size and resourcing) to eliminate unlawful discrimination – along the lines of the Victorian model.

The benefit of positive duties is that they are focused on instituting change— rather than on fault. A positive duty would support businesses to take steps to embed non-discrimination measures into their operations. It would also benefit businesses by helping to prevent individual claims of discrimination from being brought against them.

The Business Council of Australia, for example, commended the approach in Work Health and Safety laws for their focus on encouraging prevention as part of the obligations imposed by those provisions. This focus—on prevention— builds a different mindset into all aspects of a business to ensure that these obligations are met.

They used the following example to explain this: a worker in a supermarket will be mindful of the potential for injury to result from a lettuce leaf being left on the shop floor and will automatically pick it up. They will not wait for someone to be injured or for a complaint before doing so. For discrimination law, a positive duty has the potential to shift mindsets in a similar way.

There are also strong economic incentives for proactive measures—. That’s a staggering figure.

Overall, a positive duty would re-balance the discrimination law system—to focus on prevention, rather than redress—and is therefore a key measure towards improving the effectiveness of discrimination law in Australia.

Respect@Work recognised this. In the Discrimination law position paper we have taken it further. It is pillar one of our reforms.

Pillar Two—Modernising the regulatory framework

The alternative dispute resolution processes used by the Commission, and many other equality bodies to handle discrimination complaints can be an empowering process for complainants—and can be very effective at achieving both individual and systemic outcomes.

However, the compliance framework that operates alongside this is extremely limited.

Individual complainants, and the ADR process, should not bear the bulk of responsibility for ensuring compliance with discrimination laws.

The Commission’s regulatory powers have remained effectively untouched since our permanent establishment in 1986. By contrast, since the Abbott Government introduced the Regulatory Powers (Standard Provisions) Act in 2014, most other regulatory agencies, across the Commonwealth of Australia, have had their frameworks reviewed and modernised, with many tools now at their disposal to address different kinds of issues. This has also resulted in standardising some of these tools across jurisdictions, leading to greater business certainty—and simplicity.

Modernising the regulatory framework for the �����鱨վ is a neglected part of that agenda.

We put forward reforms that reflect the concept of ‘responsive regulation’, based on Professor John Braithwaite’s regulatory pyramid. Alysia considers such theoretical models in the first part of her book.

Using this theoretical conceptualisation, a range of different approaches are required to achieve compliance with the law. This includes capacity building where there is an inability to comply, and more coercive powers, towards the top of the pyramid, where there is an unwillingness to comply. These ‘higher order’ powers provide leverage—the leverage that having such powers can bring in enforcing obligations, even when not exercised. The availability of the ‘stick’ can be a very effective ‘carrot’ to shift behaviour towards a compliance mindset.

Currently, the Commission has large gaps in its regulatory framework, particularly at the top end of the pyramid.

We are recommending a range of measures to fill some of those gaps, with a particular focus on co-regulation.

These include a new power to conduct inquiries that we initiate ourselves—into systemic discrimination.

Our proposed framework is designed to help businesses and enable certainty and support—through co-regulatory measures. These include the power to conduct voluntary reviews of policies or programs, in terms of compliance with federal discrimination laws, and to enable the Commission to issue ‘special measure’ certifications, where an action is proposed that confers a benefit on a group of people to reduce their experience of inequality—such as targeted recruitment of people with disability.

This will require change to the legislative framework—with greater capacity for the Commission to work in a proactive, preventative way.

Pillar Three—Enhancing access to justice

Our conciliation processes do work well. We generally record positive outcomes, and high rates of satisfaction—from all parties involved in discrimination law matters. Although there is pressure on these outcomes with both the exponential increase in complaint numbers these past two and half years and significant budget constraints to meet them.

But not all complaints are resolved through conciliation.

So, what then? Now, the only ‘next’ is to proceed to the federal courts. And entering that arena can be extremely resource- and time-intensive.

This discourages individuals from pursuing discrimination claims in court—many of them, meritorious. Fewer than 3% of discrimination matters finalised by the Commission ever proceed to court. This is a big consequence of the ‘individual enforcement’ model.

To improve access to justice outcomes for individuals, we propose:

• Reforms to how costs are calculated in the courts
• Reforms to address difficult evidentiary issues for claimants, without shifting the overall onus of proof, and
• Reforms to enable representative actions taken on behalf of a group of claimants.

An additional consideration is that there is no intermediate process that bridges the gap between voluntary conciliation at the Commission, and litigation through the courts. There used to be—but it was removed.

This makes the federal jurisdiction a particularly vexed one.

Until 2000, the Commission had an adjudicative function to make determinations in discrimination matters that could not be resolved by conciliation or negotiation. But this function was removed following the High Court decision in Brandy v HREOC in 1995 ((1995) 183 CLR 245). The amendment was to address problems raised by a process that had been introduced of registering determinations of the Commission as if they were judgements of the Federal Court.

For the Australian Constitutional lawyers joining us this evening, this was a Chapter III issue. But the solution post-Brandy went much further than addressing that question. We lost all the adjudicative hearing powers we had.

In our Position Paper, we refer to this as the ‘Brandy myth’. The powers that were removed from the Commission went beyond what was necessary.

Indeed, since the Brandy decision, other federal regulatory agencies have been granted—or retained—similar kinds of powers, such as the Fair Work Commission and Fair Work Ombudsman. New powers have also been developed in accordance with the Regulatory Powers Act. For example, the Office of the Information Commissioner, which itself used to be part of the Human Rights Commission, has seen its regulatory framework expand over time.

By comparison, our powers have gone backwards—to the detriment of all.

Moreover, the lack of ‘middle layer’ adjudication for complainants further limits the accessibility and availability of remedial options – in distinct contrast with the States and Territories and access to Civil and Administrative Tribunals.

‘For this reason, we recommend that the Government give serious consideration to reintroducing an intermediate adjudicative process to bridge the gap between voluntary conciliation and federal court litigation, whether through the Commission, or through a tribunal-like body or new arbitral process. Perhaps an overhaul of the AAT may be the occasion to take this on seriously.

It has been a gap of over twenty years which has not improved access to justice.

Pillar Four—Improving the practical operation of laws

There are many different recommendations within our package of reforms about ‘improving the practical operation of laws’.

A number of them are technical in nature, designed to improve clarity and consistency across the various discrimination laws and in their practical applications, and to reduce the level of complexity across the system overall. Those of you who know and work in this area would cheer, here.

Importantly, we also recommend measures to close the existing gaps in discrimination law coverage, to ensure that everyone is protected from discrimination.

Other proposed changes would close gaps to make the law more inclusive of volunteers and interns in the workplace, and those with family responsibilities. These modest changes would reflect the realities of the modern world of work.

In conclusion—

Discrimination law reform is a critical piece of the puzzle of ensuring the protection and advancement of human rights in Australia—but it is not enough.

National human rights legislation will enable Australia to finally have a complete, functional and effective system of rights protections. That, too, is long overdue.

The pandemic has shown us that putting people at the centre, and having debates about people’s rights, is possible. It has also shown us that no single piece of law reform is too hard or too much to undertake.

It is time we applied that thinking to federal discrimination laws.

Laws that were fit for the times in the 1970s and 1980s now need to evolve to meet the needs of the 21st century.