A reform agenda for federal discrimination laws December 2021 This presents a mix of sometimes overlapping jurisdictions, particularly in relation to discrimination in the workplace, which can appear complex. Duplication is managed through statutory provisions that prevent people from forum shopping by moving from one jurisdiction to another. So, for example, a person is not entitled to make a complaint to the federal jurisdiction, if they have first made a complaint under a state or territory anti-discrimination law in relation to the same act or practice.36 In the Commission’s national inquiry into sexual harassment in Australian workplaces, a consistent theme that emerged was that ‘the interaction between the schemes is complex and confusing for both victims and employers to understand and navigate’, and that changes were required to provide greater clarity.37 In its response to the Respect@Work report recommendations, the Australian Government acknowledged that ‘the duplication, conflicting definitions and concepts and unclear pathways for resolution … create challenges for dealing with these kinds of matters when they arise’ and stated that its response ‘seeks clear paths to maximise Australians’ access to justice’.38 For example, it accepted recommendations designed to encourage joined up responses across different service providers and agencies.39 The subsequent Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 recognised the need for coordination across anti-discrimination, employment and work health and safety laws, introduced a definition of sexual harassment consistent with the Sex Discrimination Act into the Fair Work Act, and allows the Fair Work Commission to issue a ‘stop sexual harassment order’ in the same way that it can currently issue a ‘stop bullying order’. The Fair Work Act has been amended to provide certainty to employers that engaging in sexual harassment is a valid reason for the termination of a person’s employment.40 However, differences between schemes of themselves are not necessarily a reason for reform. Differences of laws in a federal system, with similar or complementary objectives, may be seen to be an unsurprising aspect of federal systems. The purposes of laws and their framework of operation may also have distinct rationales. Laws that emerged in the industrial framework and with a focus on a workplace developed in a different context from laws that expressed goals of addressing inequality and removing discrimination in public life, including aspects of workplaces. The purpose of the Fair Work Act is expressed in an objects clause, s 3: ‘to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians’. The purpose of discrimination laws is expressed very differently. The outcomes to be achieved through a reform process need to be sensitive to such rationales and that, while the complexity remains, bodies like the Commission itself and the Fair Work Commission can assist in making the avenues as accessible and straightforward as possible from the perspective of the user. Accessibility of systems, and a ‘no wrong door’ approach, are important aspects of effectiveness, even where aspects of the overall framework are structurally complex and multi-layered. Ensuring systems are as seamless as possible, and retain the confidence of users, may provide greater stability in the short term, while incremental reforms can align these systems more effectively in the long term. FREE AND EQUAL An Australian Conversation on Human Rights 33