Modernising the regulatory framework (iii) December 2021 Research on the effectiveness of different complaint resolution mechanisms There are now a range of different complaint mechanisms that operate in relation to discrimination and human rights matters across Australia. Queensland, the ACT and Victoria have Human Rights Acts, and operate parallel discrimination and human rights complaint processes. States such as Victoria also utilise an administrative tribunal model for hearing complaints, in addition to the conciliation role of the state Commission. Some of these processes rely on litigation whilst others include conciliation. The Commission has recently supported an ARC Linkage grant proposal that would evaluate the effectiveness of these different processes, in partnership with a range of industry partners from the legal sector and other human rights commissions. The outcome of that proposal is not known at this stage. It is proposed it would analyse qualitative and quantitative data to investigate what kinds of human rights complaints are mediated, conciliated and litigated, and develop an evidence-based model for human rights dispute resolution in an Australian context. This would provide valuable guidance on best practice mechanisms for dispute resolution nationally. 3.3 Guidelines One of the Commission’s functions is to produce guidelines for employers and resources to assist organisations to comply with their obligations under federal discrimination laws. The power to do so is set out in the AHRC Act and in the four Discrimination Acts.104 The Commission develops resources – such as toolkits, factsheets, guides – to assist employers understand their workplace obligations with respect to federal discrimination law and to assist organisations and the community.105 Guidelines are practical tools to assist decision making and compliance. These are non-binding and do not provide a defence in any subsequent legal action, although they do have an educative value and are able to reflect best practice approaches to various issues. Courts have, on occasion, referred to guidelines issued by the Commission when considering an employer’s compliance with federal discrimination laws.106 The policy rationale for the Commission preparing guidelines was set out by the Attorney-General’s Department in 2012 as follows: Guidelines provide greater guidance to organisations on what is and is not unlawful conduct. [They] assist … users … to understand their rights and obligations, and therefore increase compliance.107 The Commission considers that such guidelines and resources provide important tools to assist dutyholders understand what amounts to unlawful discrimination and how they might prevent it. This is a key function of the Commission in building a preventative culture. It is also a key function in the element of ‘persuasion’ at the base of the regulatory pyramid. Guidelines are appropriate ‘when an issue is developing, and a degree of flexibility is still required’. They can also be adapted and respond to emerging trends and issues quicker than more formalised tools such as Codes of Practice or Standards.108 FREE AND EQUAL An Australian Conversation on Human Rights 115