December 2021 Modernising the regulatory framework Once this review has occurred, consideration should be given as to the need for additional clarity being provided in the AHRC Act on the example list of orders that a court can make – as suggested in 2008 by the Senate Standing Committee on Legal and Constitutional Affairs Committee in relation to the Sex Discrimination Act; as well as other mechanisms such as inclusion in judicial training and other guidance materials. The Law Council said that the ‘effectiveness of both monetary compensation remedies and nonmonetary remedies should be considered as part of the reform process’, noting that the level of monetary compensation awarded in anti-discrimination matters is ‘relatively modest compared to other areas of the law where personal harm has been done’: Committee members observe that since the inception of anti-discrimination legislation, awards of damages have been consistently disproportionately low compared to damages for other causes of action. At the same time, the experience of discrimination amongst many groups is frequently insidious, harming their dignity and precluding their active participation in public life. While the current system relies on complaints being made, the incentive to do so is often small.86 The remedies that may be obtained for individuals is an aspect of the effectiveness of discrimination law as an equality measure and also as a measure in discharge of international obligations: to provide an ‘effective remedy’ for discrimination.87 The courts can make any order they see fit if they determine that unlawful discrimination has occurred. The AHRC Act lists examples of orders the court may make, including requiring the respondent to reemploy the complainant, to perform any reasonable act to redress the loss or damage suffered by the complainant, including payment of damages, and requiring the respondent to vary the terms of a contract or agreement.88 Gaze and Smith observed that while the federal courts are empowered to grant any remedy they think appropriate for unlawful discrimination, ‘the courts have repeatedly interpreted this power narrowly to grant only compensatory remedies’: Compensation could redress some of the harm suffered by individual complainants, but is often inadequate and does little to address the wider and public harms that discrimination can cause. By limiting remedies to compensation, discrimination is characterised as merely a private, interpersonal tort-like dispute, not a public issue. Its public character could instead be served by other remedies such as punitive damages or civil penalties for actions or respondents that warrant some punishment and deterrence from future contraventions. To address entrenched and systemic discrimination, systemic preventative remedies could also be considered, such as ordering changes to policies, the implementation of training, and even improvements in processes or representation.89 Gaze and Smith advocate ‘twin reforms’: of an enforcement agency and a full range of remedies, to allow for ‘a constructive and efficient approach to regulating’, in the form of responsive regulation as developed by John Braithwaite. In a review of the Sex Discrimination Act conducted by the Senate Standing Committee on Legal and Constitutional Affairs Committee in 2008, the Committee recommended that the AHRC Act be amended to extend the example list of orders available to the courts to include corrective and preventative orders.90 112 FREE AND EQUAL An Australian Conversation on Human Rights