December 2021 Modernising the regulatory framework Figure 3.4: Commission’s powers under reform proposals Addressing non-compliance Inquiry function, with powers such as enforceable undertakings, compliance notices and the ability to seek civil penalties in court Standards (enforceable) Co-regulatory Persuasion Action plans (with active Commission role) Voluntary audits Code of practice Special measure certifications Temporary Exemptions Alternative Dispute Resolution Complaints information Guidelines and Resources Training and education Gaze and Smith argue in support of an enhanced regulatory approach in relation to discrimination laws: Even if the legal obligation of anti-discrimination laws remains a negative rule to not discriminate, this alternative approach to regulatory enforcement could lead to a more nuanced and constructive outcome. The rule, combined with the existence and known practices of the agency, would provide the external stimulus to regulated actors, prompting them to develop their own systems and practices to identify and address discrimination. Complaints of unlawful discrimination could still be made, but enforcement of the law would not depend only on the will and capacity of the victim; the matter might not be resolved simply according to the power differential between the parties. The agency could investigate and engage with the respondent, starting at the base of the pyramid and only escalating as required, while engaging in a process of consultation with victims and target groups to ensure outcomes reflect the principles and objectives of the legislation. Of course much of the capacity of the agency to do any of this would depend upon what resources are available, including funding, expertise and some scope to experiment.38 100 FREE AND EQUAL An Australian Conversation on Human Rights