December 2021 Building a preventative culture The duty applies to all decisions made in the course of exercising public functions, not just policy and highlevel decisions.45 Case law has fleshed out the nature of the duty and has emphasised that compliance requires a conscious, substantive, and continuing approach, that is not satisfied by ‘box ticking’.46 EHRC Guidance explains the purpose of the duty as follows: The broad purpose of the equality duty is to integrate consideration of equality and good relations into the day-to-day business of public authorities. If you do not consider how a function can affect different groups in different ways, it is unlikely to have the intended effect. This can contribute to greater inequality and poor outcomes. The general equality duty therefore requires organisations to consider how they could positively contribute to the advancement of equality and good relations. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.47 The requirement to consider equality in decision-making is a flexible one. Decision makers must consider whether and to what extent the duty is relevant to their functions; gain enough relevant information to have an evidence base for their decisions (for example, diversity information), which may involve engagement with service users or employees; understand the potential impact of their decisions on people with different protected characteristics and identify potential mitigating steps to reduce or remove adverse impacts. The emphasis is on informed decision-making, not on ‘carrying out particular processes or producing particular documents’.48 Specific duties in regulations include requirements for listed public authorities to publish annual information to demonstrate compliance with the general duty; and develop specific and measurable objectives to further any of the aims of the general equality duty at least every four years. This information must be accessible to the public.49 The EHRC is responsible for regulating the PSED. It develops strategies to promote and enforce compliance with the duty including providing advice and information, building relationships with bodies, monitoring implementation, undertaking compliance assessments, and entering agreements with bodies to implement action plans to address breaches. It has the power to issue a compliance notice which can be enforced through the courts, and to challenge actions via judicial review. An application for judicial review can also be made by a person or group of people with an interest in the matter.50 The flexibility of the PSED leads to public authorities utilising a range of different approaches. The case studies, set out in the text box below, illustrate how the PSED has been used in practice. The UK experience is illustrative of how a positive duty can apply across a range of protected grounds, ensuring that there is ‘no hierarchy of equality’.51 Research has found that, generally, the PSED was thought by public authorities to be simpler and easier to respond to than the previous standalone duties.52 Much of the debate and focus on positive duties in Australia has focused on its application to sexual harassment and sex discrimination, which is but one set of protected attributes to which a positive duty should apply. 66 FREE AND EQUAL An Australian Conversation on Human Rights