‘Incredible burden’ on the victim: The problem with Australia’s anti-discrimination laws

‘Incredible burden’ on the victim: The problem with Australia’s anti-discrimination laws

Associate Professor Dominique Allen, Director of the Labour, Equality and Human Rights research group in the Department of Business Law & Taxation, has identified a key flaw within our anti-discrimination laws - it’s largely left to often-traumatised individuals to fight their own battles for justice. And now her research is helping fuel reforms.

High profile sexual harassment and assault allegations, from within some of Australia’s most important institutions like the High Court and Federal Parliament, have put a public spotlight on what sexual harassment and discrimination lawyers have long known – harassment and discrimination is commonplace.

On March 4 2021, thousands marched on Parliament and in Australia’s state capitals to protest sexual harassment and discrimination. Stoking the outrage was frustration and shock among many that this sort of behaviour could still be tolerated in contemporary workplaces.

For Monash Business School human rights law expert Dominique Allen, the shock some felt was understandable because the vast majority of cases of sexual harassment and discrimination never see the light of day – they are settled out-of-court in confidential agreements.

Judging the extent of sexual harassment and discrimination is often then left to surveys. For example a 2018 survey found that 23 per cent of women and 16 per cent of men had experienced sexual harassment at work in the last year.

Similarly, surveys suggest that almost half of working mothers report experience discrimination during pregnancy, their parental leave or on their return to work, while 27 per cent of people aged over 50 report recently experienced age discrimination in the workplace.

No real consequences for employers

The private nature of claims, says A/Prof Allen, means that when employers fail to ensure safe workplaces they aren’t penalised or made to improve in any systematic way, and justice depends entirely on individuals being prepared to pursue claims against often more powerful entities.

“I’ve interviewed lots of anti-discrimination lawyers and sexual harassment lawyers as part of my research, and they know claims are being made all the time, day in and day out – it’s happening at workplaces, even in our parliaments and courts –  but it is all hidden in confidential agreements,” A/Prof Allen says.

“It is only when the media picks up a scandal that the wider public realise that yes, this is still a big problem,” she says.

A/Prof Allen’s research cited in calls for reform

A/Prof Allen sounded a warning bell on these problems in 2019 with the release of her report assessing Victoria’s anti-discrimination laws – the most-up-to date laws in Australia. At the time her report was released there was little impetus for change despite the weight of evidence she brought. But times have changed.

Last year A/Prof Allen’s research was cited by Sex Discrimination Commissioner Kate Jenkins in the Australian Human Rights Commission’s National Inquiry into Sexual Harassment in Australian Workplaces.

The Inquiry’s findings, that too much of the burden is put on individuals and that the Commission needed an “enhanced inquiry function” to investigate systemic sexual harassment, were in line with Dr Allen’s findings on anti-discrimination law.

The inquiry also called for the introduction of a “positive duty” on employers to proactively prevent sexual harassment, but one with actual monitoring and enforcement provisions.

This is what A/Prof Allen had argued in her 2019 report when she found that the “positive duty” provisions in Victoria’s anti-discrimination laws were effectively little more than lip service.

“It all depends on someone who has gone through an awful experience, who often comes from a vulnerable or disadvantaged background, to name, blame and claim”

Associate Professor Dominique Allen

Live debate as calls for change build momentum

Western Australia is in the process of consulting on updating its anti-discrimination laws and is looking at Dr Allen’s evidence. Queensland also plans to review its laws, and will have a submission from A/Prof Allen when it does.

“There is now live debate going on about how we can further improve the laws, with different states re-examining their own laws and the Australian Human Rights Commission pushing for reforms to sexual harassment laws,” A/Prof Allen says.

“As part of that debate my research brings clear and independent evidence of what needs to change and how it can be done.”

“Without that evidence, a lot of the discussion that’s taking place would be simply theoretical.”

Research on Victorian laws highlights key problem

A/Prof Allen began assessing Victoria’s anti-discrimination laws after she was awarded a grant from the Victorian Legal Services Board.

The laws had been in place since 2011, and the sector was keen to understand how they were working.

She reviewed 188 cases as part of the research and interviewed 34 solicitors, barristers and bureaucrats involved in using and administering the laws.

“The central message from the evidence in my report is that anti-discrimination laws – even in Victoria, which has the most up to date and innovative laws in the country – rely completely on the individual,” A/Prof Allen said.

“It all depends on someone who has gone through an awful experience, and who often comes from a vulnerable or disadvantaged background, to name, blame and claim, in what is a stressful and expensive process,” she said.

“There is no separate body like the Australian Competition and Consumer Commission (ACCC) or the Australia Securities and Investments Commission (ASIC) to act on someone’s behalf.

“They have to do it all on their own, and that places an incredible burden on the individual to try and tackle what is a societal issue.”

In addition, remedies either in the form of agreed compensation or decided by a court, will only extend to an individual’s loss or damages and won’t change the ‘system’ at workplaces that allows discrimination to happen.

“It means as a society we don’t know the extent of the problem, both in discrimination and sexual harassment, and there is no scope for a regulator to step in to impose penalties and force changes in organisations to end discrimination and sexual harassment,” A/Prof Allen says.

Why private dispute resolution works

On the plus side, A/Prof Allen found that there was strong support for continuing with a model of private dispute resolution since it avoids court costs and allows for more flexibility and innovation in resolving disputes.

The challenge is how to retain this confidential model while bringing more transparency to what is going on and bring in some monitoring and enforcement so that employers take sustainable steps to stop discrimination happening.

A critical part of the solution, A/Prof Allen argues, is giving regulatory bodies resources and powers to act on their own behalf to examine systemic discrimination and sexual harassment, as well enforce penalties to drive change.

For example, she notes that the Victorian Equal Opportunity and Human Rights Commission’s role in dispute resolution is to be a neutral facilitator between parties, though it can intervene in ligation.

In contrast, agencies in the UK and US, as well as Australia’s Fair Work Ombudsman, can assist parties with their claims and launch their own investigations.

As part of a watchdog role, a regulator could also collect and publish de-identified information on confidential agreements to provide accurate information on the extent and nature of discrimination and sexual harassment, as well as the remedies being agreed.

“Knowing what is going on more widely would help both sides in resolving disputes and address some of the power imbalance against individual claimants,” A/Prof Allen says.

Looking forward, A/Prof Allen says she’s optimistic that change is on the way.

“Things are happening and people are actively trying to improve the laws whether it is governments, agencies, lawyers or civil society, and having evidence on what works and what doesn’t is invaluable.”

“As a researcher, that’s why you do it. You want your work to be used.”