Modernising the regulatory framework December 2021 4 Expanded co-regulatory mechanisms – level two The Commission recommends the introduction of new, as well as the refinement of existing, co-regulatory mechanisms in federal discrimination law. This includes through such measures as the ability to certify special measures and the expanded operation of action plans. Co-regulation typically refers to the situation where industry develops and administers its own arrangements, but government provides legislative backing to enable the arrangements to be enforced.114 In the context of federal discrimination law, existing co-regulatory measures have tended to set out that actions taken by industry are lawful and do not breach the legislation. They have lacked enforcement mechanisms to also ensure that industry complies with the measures – a fundamental element of a coregulatory approach. At present, the Commission also has a function under the Disability Discrimination Act that it may publish action plans developed by organisations outlining how they intend to comply with disability discrimination laws. While such mechanisms are valuable, they are limited in their effectiveness as regulatory tools. Queensland Advocacy Incorporated, for example, said that the current mechanisms administered by the Commission are ‘necessary and helpful’ and supported their continuation, but that the introduction of things like voluntary audits and positive duties would be of significant value.115 The Discussion Paper produced by the Attorney-General’s Department on the consolidation of discrimination laws in 2011, included suggestions for measures that could assist businesses to understand and fulfil their obligations under anti-discrimination laws.116 The Human Rights and Anti-Discrimination Bill 2012 (HRAD Bill) that followed included a number of voluntary measures, with the object of assisting compliance with anti-discrimination obligations, without affecting potential liability. They were aimed at assisting business to understand their obligations under anti-discrimination law and ‘provide them with an opportunity to promote their efforts towards compliance to interested members of the community’.117 The Commission acknowledges the importance of clarity in obligations for employers, and especially for small businesses.118 The Commission considers that any new compliance mechanisms should be considered alongside existing mechanisms to ensure that they work together to provide a spectrum of options that are effective and efficient. The Commission considers that a broader set of co-regulatory tools will provide more focused support for the business sector to build confidence to initiate positive measures to prevent discrimination. FREE AND EQUAL An Australian Conversation on Human Rights 119