A reform agenda for federal discrimination laws December 2021 3.5 Effectiveness – responsive regulation A common theme in submissions and consultations in this Free and Equal Inquiry, and in broader commentary, was that the current model of federal discrimination laws is not ‘effective’ on a number of levels. In particular, the model is reliant on an individual to make a complaint; the ADR proceedings, being conducted confidentially do not generate a sense of expectations or benchmarks; access to a remedy through judicial pathways is potentially very costly; the Commission has limited investigation powers and no enforcement powers. The mix of laws, both federal and state and territory, is also an issue – not just for complainants but also for employers and organisations, as is the limited way that the Commission can assist employers to ‘do the right thing’. Business representatives stressed the importance of ‘confidence’ in discrimination law and that any reform to discrimination laws should result in a ‘net improvement to the regulatory framework, including in the capacity of employers to comply’.76 The Australian Industry Group emphasised that what is needed to ensure that human rights legislation is ‘practical, fair and complied with’, is that it is ‘simple to understand, not overly complex and recognises that employers can comply in different ways’.77 The Australian Chamber of Commerce and Industry also suggested that reform should be sensitive to business size and capacities – that the ‘particular circumstances of smaller and medium-sized businesses need to be taken into account in framing and implementing the law’.78 The Commission acknowledges the concerns of employers, particularly in those areas of discrimination law that relate to businesses. The question of ‘confidence’ is one that involves issues of clarity: clear expectations of all those who engage with discrimination laws. This Position Paper addresses the issue of expectations on several levels, for example: what is expected of employers; what complainants can expect; what outcomes are likely; and what support for preventative actions can the Commission give. In developing the reform agenda in this Position Paper, the Commission has considered the model of responsive regulation initially developed by Professors Ian Ayres and John Braithwaite in 199279 and including their ‘enforcement pyramid’, that was subsequently developed by UK academics as a specific application of Braithwaite’s model in the context of regulating equal opportunity.80 FREE AND EQUAL An Australian Conversation on Human Rights 39