Building a preventative culture 1 December 2021 Focusing on capacity to bring about change Positive duties focus on capacity to bring about change, rather than on fault. Beth Gaze and Belinda Smith, Equality and Discrimination Law in Australia: An Introduction (Cambridge University Press, 2017) 266 The first of four major reforms that the Commission proposes in this Position Paper, seeks to refocus federal discrimination law so that it encourages, and indeed expects, action to prevent discrimination from occurring in the first place. The Commission proposes that existing protections against discrimination in each of the federal discrimination laws should be complemented by the inclusion of a positive duty to take reasonable and proportionate measures to eliminate unlawful discrimination, along with harassment and victimisation. This involves a significant cultural shift in the operation of federal discrimination law, albeit a shift that has been occurring in discrimination law in other jurisdictions and in work, health and safety laws. The current model of federal discrimination law is heavily dependent on individuals bringing forward complaints of discriminatory treatment as the only available method for enforcing the law. We know that many people who have been discriminated against and treated unlawfully will never take such action. To do so, requires a person to be prepared to relive an incident or pattern of behaviour that may have been deeply hurtful or traumatic for them. It requires them to have enough knowledge of the law, and/or of how to get legal assistance, even to know that their treatment may be unlawful. It involves a significant investment of time and money. And it requires them to exercise bravery and, in some instances, to risk experiencing further adverse consequences from stepping forward. We also know that those most likely to experience discrimination on a regular basis may be less likely to bring individual actions. They are often the least resourced and least supported in our community to do so, and the cumulative impact of their exposure to such treatment on a regular basis may leave them the most disempowered in the community. The Commission’s report, Wiyi Yanu U Thangani: Women’s voices (2020),1 is a vivid illustration of this. It details regular experiences of discrimination faced by Aboriginal and Torres Strait Islander women – most of which goes unaddressed. Ensuring that there are remedies for those subject to discrimination is fundamental. It is a key component to meeting obligations to respect, protect and fulfil the right to non-discrimination. Complaints mechanisms are, therefore, of critical importance. But such mechanisms should not be the first or only mechanism for addressing discrimination, because they are focused on redress rather than prevention. FREE AND EQUAL An Australian Conversation on Human Rights 55