Modernising the regulatory framework December 2021 This would enable courts to order the respondent to perform any reasonable act or acts aimed at ensuring future compliance with the Sex Discrimination Act.91 When the consolidation of federal discrimination laws was under consideration, the Attorney-General’s Department’s Discussion Paper suggested that, while not strictly necessary, such an amendment could provide better guidance to courts on the range of possible orders it may wish to make, and ‘highlight to duty holders the possible consequences of noncompliance with the Act’.92 The Human Rights and Anti-Discrimination Bill 2012 included some specific amendments which, while ‘not intended to significantly change existing policy’,93 sought to address some of the concerns raised in previous reports. One clause provided for an order focusing on systemic orders to attempt to stop such conduct from happening again in the future. Implementing a recommendation of the 2008 Senate committee review of the Sex Discrimination Act, the clause provided that the court may make an order requiring the respondent to perform any reasonable act or course of conduct aimed at ensuring future compliance with the Bill.94 An order of this nature could, for example, include changing policies, directing specific staff training or reviewing internal practices. An additional provision was to clarify that an order of damages (and other orders) did not have to be limited to compensation.95 Ideally, orders should reflect the kinds of steps expected through a positive duty. In the national inquiry into sexual harassment in the workplace, the powers of the court to award certain types of damages was raised as a specific matter for reform, particularly in light of the decision of the Full Court of the Federal Court in Richardson v Oracle Corporation Australia Pty Ltd (Oracle),96 which set a new benchmark for compensation awarded to victims of sexual harassment, holding that the previous range of general damages awards in sex discrimination and sexual harassment cases was out of step with community standards, and that harm (and therefore compensation) should be assessed more consistently with harm from other types of conduct.97 As noted in the Respect@Work report, the decision in Oracle ‘has given greater guidance to courts, suggesting that courts should have regard to the prevailing community standards of behaviour to determine the appropriate amount of compensation’.98 The court can also award aggravated damages. However there has been some uncertainty as to whether exemplary damages may be awarded in discrimination cases, as exemplary damages are more punitive than compensatory in character.99 In Wotton and Others v Queensland and Another (No 5),100 Mortimer J concluded that the Federal Court had no power to award exemplary damages under the AHRC Act. While acknowledging the list of remedies in s 46PO(4) is not exhaustive, Mortimer J considered that Parliament’s intention when enacting this clause was for a compensatory and remedial regime and ‘not a regime designed to punish, or confer any deterrent or punitive functions on a court by its orders’.101 In the Respect@Work report, the Commission said that it would ensure that the court’s existing powers are better explained in education and guidance materials. FREE AND EQUAL An Australian Conversation on Human Rights 113