December 2021 Modernising the regulatory framework This is now the case in Victoria, under s 152 of the Equal Opportunity Act 2010. Under the HRAD Bill, action plans were to remain voluntary and intended ‘to provide greater guidance to organisations and encourage proactive steps to comply with the Bill’.130 Action plans were also not to be binding, but the Commission or a court could have regard to an action plan, if considered appropriate.131 Compliance with a voluntary action plan would not be a complete defence to a complaint of unlawful conduct, but could be evidence of compliance.132 While clauses 67 and 68 of the HRAD Bill spelled out what was required in an action plan, and that action plans may be given to the Commission,133 it continued the existing approach under the Disability Discrimination Act – namely, the role of the Commission was to continue to lack an active, quality control element. In comparison, the 2010 Victorian provision states that VEOHRC may provide advice about preparing and implementing action plans and may set minimum requirements for action plans. Maurice Blackburn submitted that it should be mandatory for organisations to prepare and implement an action plan and supported a provision for action plans in all federal discrimination laws. Maurice Blackburn said it would be an aspect of taking positive steps ‘to try and prevent discrimination in the workplace while ensuring organisations understand the current statutory framework and their obligations at law’.134 The Australian Industry Group disagreed that the action plan mechanism should be extended to other attributes. However, it said that if this proposal were pursued, the action plans ‘need to remain voluntary and non-binding on the duty-holder’.135 The Disability Discrimination Legal Service said that action plans should be encouraged, but noted that ‘their use as a tool of compliance is limited and their role in establishing the defence of unjustifiable hardship is concerning’. Action plans under the Disability Discrimination Act are voluntary in the sense that any organisation that implements a plan is only bound to fulfil it to the extent that they choose to and there is no consequence for not doing so. Thus, while they are useful from a public information point of view, as they allow organisations to show an intention to the public that they are committed to equality, they should not play any role in establishing the defence of unjustifiable hardship as they currently do. An intention to improve, which is not binding, is irrelevant to whether an individual has suffered harm through discrimination contemporaneously. As such … organisations should not be allowed to use this to assist in their own defence.136 122 FREE AND EQUAL An Australian Conversation on Human Rights