4. Discrimination law reform (iii) Pillar 3: Enhancing access to justice Major Reform 1: Building a preventative culture Major Reform 4: Improving the practical operation of laws Major Reform 2: Modernising the regulatory framework Major Reform 3: Enhancing access to justice Recommended actions under Pillar 3 are: Reform 16: Parties bearing their own costs in discrimination law proceedings should be the default position. Courts should retain discretion to award costs and mandatory criteria should be developed for courts to make this assessment. Reform 17: The evidentiary burden in relation to unlawful discrimination matters should be shifted to align with the approach taken in the Human Rights and Anti‑Discrimination Bill 2012. Reform 18: Guidance material to be developed on the type of matters relevant to discharging the shifting burden. Reform 19: The Commission proposes that the standard of proof be clarified as the usual standard of proof as set out in the Evidence Act 1995 (Cth) s 140. Reform 20: Unions and other representative groups should be permitted to bring representative claims to court, consistent with the existing provisions in the AHRC Act. Reform 21: The President’s discretion to terminate a complaint is 24 months after the alleged acts and is applicable across federal discrimination laws. Reform 22: Consideration be given to reintroducing an intermediate adjudicative process into the federal discrimination system. Reform 23: The intermediate adjudicative process could be, a tribunal-like body, the restoration of hearing and determination functions of the Commission or the creation of an arbitral process. ADR is often an effective tool for generating positive outcomes for rights-holders in unlawful discrimination matters. However, not all complaints resolve at conciliation. If a matter does not resolve at conciliation, then a complainant’s only option is to bring an action to the Federal Circuit Court or the Federal Court. Proceeding to court can be extremely resource- and time-intensive. A number of meritorious complainants may decide not to pursue their claims because of this. Pillar 3 considers how to improve access to justice for complainants who fail to reach a suitable outcome at the conciliation phase, yet who have a meritorious case. Key recommendations relate to costs, onus of proof, standing provisions and timeframes. The Commission also proposes that serious consideration be given to reintroducing an intermediate adjudicative process into the federal discrimination law system to bridge the gap between voluntary conciliation at the Commission and litigation in the federal courts. This could take a range of options: a tribunal‑like body; the restoration of hearing and determination functions to the Commission; the creation of an arbitral process or a different mechanism. The consideration of such mechanisms would benefit greatly from public consultation and expert advice about the best options available in today’s legal landscape, and consideration of how to address constitutional issues to ensure that any such option does not amount to an exercise of judicial power. FREE & EQUAL: Revitalising Australia’s Commitment to Human Rights 87