December 2021 Modernising the regulatory framework Systems of co-regulation can be found in a number of Commonwealth laws, such as the Privacy Act 1988 (Cth), the Taxation Administration Act 1953 (Cth) and the Broadcasting Services Act 1992 (Cth). As explained by the Attorney-General’s Department, A typical co-regulatory framework will involve a law that sets minimum standards, while permitting industry codes or other mechanisms developed by industry bodies which supplement the law. These codes and mechanisms may be monitored or validated by a government regulator.119 The need for a mix of mechanisms within an overall compliance framework is not uncommon to ensure that diverse circumstances covered by the legislation are appropriately addressed. For example, the Competition and Consumer Act 2010 (Cth) and work health and safety laws provide models of varied mechanisms situated within a broader compliance framework. In its review of the Disability Discrimination Act in 2004, the Productivity Commission recommended that the Commission be empowered to certify such coregulation arrangements.120 It concluded that ‘the benefits of co-regulation, particularly its flexibility to deal with a variety of different circumstances and changes over time, are compelling’.121 The Productivity Commission concluded that co-regulatory arrangements between organisations and government, could increase awareness of, and willingness to comply with, the Disability Discrimination Act. 4.1 Action plans Action plans are currently provided for in the Disability Discrimination Act. Provisions in Part 3 permit public authorities, employers, educational institutions, and providers of goods, services and facilities to develop action plans concerning ways in which they will act to achieve the objects of the legislation.122 The Commission considers that action plans should be a measure available across all discrimination laws as part of a suite of voluntary measures and a constructive strategy in addressing issues of intersectionality, where inequalities may raise issues across more than one of the Discrimination Acts. As Neil Rees, Simon Rice and Dominique Allen explain in relation to action plans under the Disability Discrimination Act, The intention of the action plan provisions in Part 3 of the DDA is to encourage organisations – particularly those that offer goods or services in a way which may be difficult to access by some people with limited mobility – to plan for ways of improving the delivery of goods or services over time, especially when it was likely to be costly to make changes. If a complaint was made against the organisation before it had fully implemented the action plan, the existence of the plan could be an important part of an unjustifiable hardship ‘defence’.123 Section 61 of the Disability Discrimination Act provides that the action plan must include provisions relating to: • the devising of policies and programs to achieve the objects of the Act • the communication of these policies and programs to persons covered by the plan 120 FREE AND EQUAL An Australian Conversation on Human Rights