December 2021 Modernising the regulatory framework Associate Professor Belinda Smith has identified the different roles guidelines can play, depending on how they are drafted. These include explaining or translating the law; illustrating rules by providing examples of wrongful practice and correct practice; and providing best practice guidance to aid dutybearers in their own proactive efforts.109 The utility of guidelines in assisting employers and organisations to understand their obligations under federal discrimination laws was acknowledged by stakeholders – and the Commission was encouraged to do more. The Australian Chamber of Commerce and Industry, for example, suggested that the Commission itself could do more to promote an understanding of anti-discrimination laws among small to medium sized enterprises and that the impact be monitored.110 Maurice Blackburn Lawyers said that guidelines are ‘a valuable compliance mechanism as they are another form of information developed by the AHRC to encourage organisations to improve behaviour by providing best practice and comprehensive information’.111 The Australian Industry Group said that the importance of guidelines and educative materials to assist employers ‘should not be underestimated’: ‘small to medium enterprises, in particular, that typically have no internal HR staff are greatly assisted by free, quality online resources’.112 A similar view was expressed by the Council of Small Business Organisations Australia in consultations. In its review of the Disability Discrimination Act in 2004, the Productivity Commission considered that guidelines were a useful and positive measure, with the advantage of flexibility: ‘they can be easily updated to reflect changes in best practice and precedents set in case law’. However, there are also weaknesses, because they are not legally binding. Service providers are not obliged to comply with the requirements and responsibilities set out in guidelines; even if they do, compliance with guidelines is not necessarily a defence if a complaint is lodged.113 However, compliance with guidance could still be relevant to a case, and provisions in legislation could enable compliance to be considered by courts, without prescribing a particular outcome. The Commission acknowledges the importance of its guidance materials and seeks to ensure that they are regularly updated, easily accessible and cover major topics under the Discrimination Acts. The Commission is limited in the guidance that it can prepare by its resourcing. It was noted in consultations, for example, that it would be valuable for the Commission to expand the range of guidance materials it has on emerging issues such as the applicability of the Disability Discrimination Act to psycho-social conditions, supporting inclusive education in the context of particular types of disability, and supporting reasonable adjustments in the workplace. While the Commission agrees that guidance is valuable, and resourcing is a key constraint, a further limitation is the lack of judicial interpretation of key provisions in federal discrimination laws. Guidance, without such interpretation, can only be generalised or estimated, and not precise, which may make guidance in such circumstances somewhat limited. 116 FREE AND EQUAL An Australian Conversation on Human Rights