Modernising the regulatory framework December 2021 3 Persuasion and capacity building– level one of the regulatory pyramid The base level of a regulatory pyramid recognises that, in most instances, people and organisations want ‘to do the right thing’, but may need support to do so. It also recognises that despite this willingness, discriminatory actions may still occur and need to be resolved. The measures at this level involve education initiatives, engagement and guidance materials to assist people and organisations to understand the law and build practices to comply, as well as alternative dispute resolution services (in this case through the Commission’s Investigation and Conciliation Service and National Information Service) to resolve disputes. This first level of the regulatory pyramid is described as measures of persuasion and capacity building. 3.1 Alternative dispute resolution The model that applies to all the federal Discrimination Acts is complaint-based and reliant on conciliation. Since the first federal discrimination law, the Racial Discrimination Act in 1975, alternate dispute resolution (ADR) for individual complaints has been used. It is an administrative means of dealing with complaints, rather than leaving matters to be resolved in court. It was, as Professor Anne Twomey described, ‘aimed at solving the problems which underlie … discrimination, rather than exacerbating them with adversarial proceedings’.39 The emphasis was on the resolution of issues for individuals. The choice of conciliation as the primary method of dispute resolution was also ‘in keeping with the predominant “private law” view of human rights’, as Annemarie Devereux explained, which ‘aimed for optimal flexibility in styles and outcomes in such a way as to maximise the parties’ opportunity to reach a satisfactory settlement’.40 Court proceedings were available, but they were kept separate from the conciliation process. If a settlement could not be reached through conciliation, a person aggrieved could institute civil proceedings and seek a range of enforceable remedies, including damages.41 It is also only through court proceedings that case law is developed that interprets the legislation. It is estimated that fewer than 3% of discrimination matters make it to the court stage, meaning that there is little judicial guidance on the law, and very few precedents setting benchmarks for the type of damages that may flow from such proceedings.42 This lack of judicial elaboration is particularly important because the regulatory framework provides no other means of rule elaboration. For example, work health and safety regulatory agencies have the capacity to produce authoritative guidelines. FREE AND EQUAL An Australian Conversation on Human Rights 103