Building a preventative culture December 2021 Similarly, a number of complaints may draw attention to a policy, such as an airline policy that all people with disabilities requiring wheelchair assistance must prove medical fitness to travel. Several complaints may have been lodged by different individuals regarding the policy and settled, without any change to the policy. The systemic issue of discrimination is continuing.13 ‘Systemic’ is also used in other ways in the discrimination law context, such as systemic remedies. For example, settlement of an individual complaint may give rise to a resolution for the individual as well as to systemic changes, as where the policy or practice is changed for everyone. Systemic outcomes have been achieved. Systemic remedies can result through conciliation, but courts are unlikely to order them as the Discrimination Acts do not explicitly authorise systemic remedies, and because the focus of a court is on the achievement of justice for the individual, on the basis of the particular case. Courts also only provide remedies after the fact. Ideally, systemic changes can be made early, when problems are first identified, preventing the need for an individual to go to court altogether. The Respect@Work report drew attention to other issues of a systemic nature that may give rise to discrimination. One aspect of the Terms of Reference for that inquiry concerned the ‘drivers, including risk factors for particular population groups or in different workplace setting’. This led to a focus in the report on other ‘cultural and systemic factors’ that contribute to the prevalence of workplace sexual harassment, including • the culture or ‘climate’ of a workplace, including the critical role of leadership in setting workplace culture • a lack of understanding about what constitutes sexual harassment • use of alcohol in a work context.14 Other ‘systemic drivers’ identified included gender inequality and social norms, and power disparities in workplaces.15 Gaze and Smith argue that positive duties are crucial in tackling systemic discrimination. They point to the work of Professor Sandra Fredman, who urged that positive duties ‘should be the future of equality law because of their potential for transforming systems to prevent discrimination arising’. Designed to address systemic problems that are not easily reached by a prohibition on discrimination, they do not depend on individuals identifying a breach of the law and having the resources to follow through what can be a lengthy enforcement process.16 Gaze and Smith argue that, rather than simply addressing particular instances of unlawful discrimination, ‘within a system that continues to generate them’, it would be more effective to prevent discrimination occurring in the first place ‘by changing the system and its practices’: This requires positive action to be taken by people and organisations that are in a position to change the way things are done. In this way, positive duties are seen as a more effective response to discrimination.17 FREE AND EQUAL An Australian Conversation on Human Rights 61