Building a preventative culture December 2021 The Disability Discrimination Legal Service Inc urged that any positive duty in the federal discrimination law framework ‘must learn from the Victorian experience, particularly ensuring that the duty is enforceable’.99 Associate Professor Dominique Allen noted that the Victorian provision, as initially passed, included enforcement powers, but these were removed before the Act came into force following a change of government.100 VEOHRC itself sees this as a missing, limiting piece in its functions.101 Allen noted that her research on the operation of the positive duty in Victoria has shown that it was being used by VEOHRC ‘as an educative tool and to “set the tone” for the Act’.102 Nonetheless, she submitted, ‘it is difficult for [VEOHRC] to do more than that because the duty is not enforceable’. Respondents, therefore, she concluded, ‘place no weight on it’.103 Professor Beth Gaze and Associate Professor Belinda Smith observe, similarly, that the Victorian provision has been described as having ‘valuable educative and normative force’, although its legal effect is not clear.104 The Commission has set out why a positive duty needs to be accompanied by enforcement mechanisms in the Respect@Work report as follows: an enforceable positive duty would help to ensure employers engage with their legal obligations. It would also provide both a collaborative and enforceable mechanism for employers to work with the Commission and engage in the Commission’s processes in a full and meaningful way and to effect change. In determining whether a measure is reasonable and proportionate, the factors that must be considered could draw on the positive duty under the Victorian Equal Opportunity Act, as well as all other relevant facts and circumstances, which may include systemic issues within that industry or workplace. The impact on both employers and workers should be considered when assessing each of these factors.105 The Commission also recommended that it should be given responsibility for assessing compliance with the positive duty and for enforcement, and the necessary powers to fulfil this role.106 These issues are considered further in the Chapter3 in sections 5 and 6. (c) The value of a positive duty Ultimately, bearing in mind the differing perspectives referred to above, the Commission concludes as follows: • The existing system of federal discrimination law often does not address systemic problems – even though outcomes of complaints do often require respondent organisations to reconsider their policy frameworks and conduct internal training, achieving systemic outcomes in the process. • The reliance on individuals bringing a formal complaint means that many incidents of discrimination and harassment go unaddressed. FREE AND EQUAL An Australian Conversation on Human Rights 77