Modernising the regulatory framework 1 December 2021 Federal discrimination law – an outdated regulatory framework What is needed is a truly comprehensive review enabling us to examine our current equality laws against regulatory innovations, allowing us – in assessing and (re)designing equality law – to better account for developments in regulatory thinking as well as evidence emanating from reform efforts overseas. Belinda Smith, ‘It’s about Time: For a new Regulatory Approach to Equality’ (2008) 36(2) Federal Law Review 117, 144 The powers of the Commission in unlawful discrimination matters are almost entirely based on persuasion, reliant on education and awareness raising and, where disputes arise, alternative dispute resolution. It is difficult to think of any other area of law in the federal arena where a regulatory agency operates solely on the basis of such limited powers. This is not an effective regulatory model. The current federal discrimination law regime lacks key elements to build a preventative culture to address discrimination and to ensure accountability. Alternative dispute resolution (ADR), that sits at the core of Australia’s anti-discrimination framework, can be an empowering process for complainants and can be very effective at achieving both individual and systemic outcomes. However, the compliance framework that operates alongside this is extremely limited. Individual complainants, and the ADR process, should not bear the bulk of responsibility for ensuring compliance with discrimination laws. As Associate Professor Belinda Smith has observed: Anti-discrimination legislation is designed to protect disempowered groups – those who traditionally experience marginalisation and exclusion. Expecting members of such groups to have the time, security and resources to pursue legal action in order to gain compensation and possibly bring about wider change represents a fundamental regulatory weakness.1 The Commission’s ADR powers have remained largely as they were at the establishment of the first iteration of the Commission in 1981. However, as noted in Chapter 1, the Commission’s additional powers, which revolved around a hearing and determination function were reduced in 2000, in response to the High Court’s decision in Brandy v HREOC.2 At the same time, other regulatory agencies have had their frameworks modernised with a broader suite of regulatory powers and options to aid compliance and address non-compliance. FREE AND EQUAL An Australian Conversation on Human Rights 91