Modernising the regulatory framework December 2021 • the review and identification of any discriminatory practices within the plan • the setting of goals and targets, where these may reasonably be determined against the success of the plan in achieving the objects of the Act • the appointment of persons within the organisation to implement the plan. Action plans have primarily been adopted by employers and service providers, including banks, public transport services and government departments. While the benefit of such plans is that they act as a public statement to the community of the commitments and actions to be taken by an organisation, the Commission’s role is currently a passive one: it can receive action plans and publish them. While the Commission has produced a range of guides to preparing action plans, available on the Commission’s website,124 the Commission is not required to assess their rigour or to consider whether they are being implemented. Further, the provisions relating to action plans do not require them to be of a specified duration or to be updated on a periodic basis. This leads to action plans being out of date, and therefore less effective tools to encourage compliance. As the Productivity Commission noted in its review of the Disability Discrimination Act in 2004, the success of an action plan, in terms of eliminating disability discrimination and as a defence against complaints, ‘will largely depend on the effectiveness of the actions taken’.125 In its Discussion Paper on the consolidation of discrimination laws, the Attorney-General’s Department observed that Action plans are voluntary, nonbinding and have limited effect on the action planner’s legal obligations. Action plans provide a collaborative mechanism for addressing the needs of people with a particular protected attribute. They are developed through consultation between the employer or service provider and the Commission and the community. This educative process can help businesses to avoid behaviour and practices which are likely to give rise to complaints of unlawful discrimination. Action plans may also be relevant to the assessment of unjustifiable hardship where a claim of discrimination has been made [under the DDA s 11(1)(e)].126 The development of an action plan is recognised by Hepple et al as a step in the regulatory pyramid after persuasion.127 The Attorney-General’s Department suggested that a power to register action plans may allow businesses to market their commitment to equality and assist them to analyse and improve their policies and procedures.128 The HRAD Bill proposed expanding the action plan provisions to all protected attributes, not just under the Disability Discrimination Act, to assist persons or bodies to avoid engaging in unlawful conduct.129 In this way, the development of action plans can be seen to reflect commitment to building a preventative culture. The Commission supports this approach. FREE AND EQUAL An Australian Conversation on Human Rights 121