Barking and Biting: The Equal Opportunity Commission as an Enforcement Agency
| Date | 01 June 2016 |
| DOI | 10.1177/0067205X1604400206 |
| Published date | 01 June 2016 |
| Author | Dominique Allen |
| Subject Matter | Article |
COMMISSION AS AN ENFORCEMENT AGENCY
Dominique Allen*
ABSTRACT
Federal anti-discrimination law centres upon the individual who has experienced
unlawful discrimination. To address this discrimination, the individual is required to
lodge a complaint at the Australian Human Rights Commission (‘AHRC’), which will
attempt to resolve the complaint using Alternative Dispute Resolution (‘ADR’). While
institutions in other areas, like competition law and occupational health and safety, have
a broad range of powers to enforce compliance, successive governments have chosen
not to invest the AHRC with equivalent powers. Quite a different model has operated
in Britain for four decades. This article analyses the role of the AHRC by comparing it to
its British equivalents and examining these institutions according to the ‘enforcement
pyramid’ for regulating equal opportunity, which British academics Bob Hepple, Mary
Coussey and Tufyal Choudhury have developed. According to these regulatory
theorists, to tackle discrimination effectively, equality commissions need to be able to
follow up their loud ‘bark’ with a punitive ‘bite’ if necessary. The article concludes by
identifying what the experience in both countries reveals about the enforcement of anti-
discrimination laws by statutory institutions.
I INTRODUCTION
Federal anti-discrimination law centres upon the individual who has experienced
unlawful discrimination. To address this discrimination, the individual is required to
lodge a complaint at the Australian Human Rights Commission, which will attempt to
resolve the complaint using Alternative Dispute Resolution.1 The AHRC is a gatekeeper
* Senior Lecturer, Deakin Law School, Deakin University. Earlier versions of this article were
presented at the Global Challenges and New Perspectives on Equality Law conference at the
Université libre de Bruxelles and at a seminar hosted by the Centre for Employment and
Labour Relations Law, University of Melbourne. I am grateful to attendees at both for their
feedback. Much of this article was completed while I was a visitor at the Faculty of Laws,
University College London. My thinking about enforcement was aided by conversations with
Colm O’Cinneide, John Wadham, and Sandra Fredman and her PhD students. I am also very
grateful to the late Sir Bob Hepple for discussing his regulatory pyramid with me and
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in that it must process a discrimination complaint before the complaint can be heard by
the Federal Court or the Federal Circuit Court.2 The bulk of the AHRC’s work comprises
complaint handling and educating the community about the law; the AHRC is not able
to enforce the law.
A 2013 case brought by the then Disability Discrimination Commissioner, Graeme
Innes, in a private capacity illustrates the inadequacies of the current model of enforcing
anti-discrimination law. Innes won a disability discrimination case against RailCorp
NSW after the Commissioner, who is blind, experienced repeated instances of RailCorp
NSW failing to provide audible station announcements on Sydney trains.3 Innes tried to
resolve the matter informally by meeting with the respondent and lodging complaints
at the AHRC. When he was unable to resolve the matter, Innes lodged a complaint as a
private individual, supported by the Public Interest Advocacy Centre, at the risk of
substantial cost to himself.4 Although it had the power to order RailCorp NSW to change
its practices, 5 the Federal Magistrates Court only awarded Innes compensation,
potentially leaving the unlawful practices in place; thus if announcements are not made
again, another person will have to lodge another discrimination claim.6 If the AHRC had
been able to take enforcement action, the case may not have been litigated. The AHRC
could have conducted its own investigation into the matter and sought enforceable
undertakings from RailCorp NSW, whereby the latter would agree to systemic changes
such as audible stop announcements and discrimination training in lieu of further
action. Failing that, the AHRC could have issued a compliance notice with an action plan
to achieve the same outcome or it could have sought the imposition of a sanction, such
as a civil penalty, if the respondent failed to comply. This approach would have
addressed the systemic problem earlier and without the need for legal action. However,
unlike other federal agencies, like the Australian Competition and Consumer
Commission and the Fair Work Ombudsman, the AHRC cannot undertake enforcement
work; that burden is borne by the individual.
This article analyses the role of the AHRC by comparing it to its British equivalents
and by applying to these institutions the enforcement pyramid for regulating equal
opportunity that British academics Bob Hepple, Mary Coussey and Tufyal Choudhury
reflecting upon the evolving role of equality commissions, and to Shae McCrystal for her help
with the final version of this article. Any errors are my own.
1 Australian Human Rights Commission Act 1986 (Cth) s 46P (‘AHRC Act’). A parallel scheme
operates in the states and territories. Complaints about discrimination in the workplace may
also constitute a breach of s 351 of the Fair Work Act 2009 (Cth) (‘FWA’) but it is not possible
to lodge a complaint about the same conduct under both the FWA and the anti-discrimination
regimes: FWA ss 725, 732, 734.
2 AHRC Act s 46PO.
3 Innes v Rail Corporation (NSW) [No 2] (2013) 273 FLR 66.
4 Jacob Saulwick, ‘Disability Case Costs RailCorp $420 000’, The Sydney Morning Herald
(Sydney), 29 March 2013.
5 AHRC Act s 46PO(4)(a).
6 Following the decision, Sydney Trains, which is now responsible for the service, said it would
improve audible announcements and train its frontline staff: Public Interest Advocacy
Centre, ‘Sydney Trains to Improve Announcements’ (Media Release, 14 August 2013).
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developed.7 The article then identifies what this analysis reveals about the enforcement
of anti-discrimination laws by a statutory institution. The article is structured as follows.
Part II outlines Hepple, Coussey and Choudhury’s enforcement pyramid. The pyramid
is based on the ideas of regulatory theorist John Braithwaite, who argues that a regulator
(in this instance, the equality commission) will be more effective in securing voluntary
compliance by using persuasion when it is backed by punishment.8 The regulator starts
with voluntary measures and, if necessary, scales the pyramid, utilising measures that
escalate in severity to achieve compliance. Part III examines the AHRC’s powers relating
to anti-discrimination law in the context of the enforcement pyramid.9 Although this
article focuses on the AHRC, its state and territory equivalents have very similar
powers,10 so the conclusions drawn are applicable across the country.
It is not unusual to have civil legislation prohibiting discrimination, enforced by the
individual who has experienced discrimination along with a national statutory equality
commission responsible for all prohibited forms of discrimination.11 This model is used
in Britain, Northern Ireland, Ireland, the United States of America, Canada and New
Zealand. Part IV compares the Australian experience to Britain because the latter offers
an example of a jurisdiction where the statutory commission can seek compliance with
the law but is not responsible for complaint handling; the complainant has direct access
to court. When the British government created the first modern equality commission
(the Equal Opportunities Commission), it said it expected the body to play ‘a major role
in enforcing the law in the public interest’. 12 Thus the Commission was given
appropriate powers to do so. Soon after, the responsibility for complaint handling was
taken away from the British Race Relations Board (Britain’s first equality commission)
so that the Board could take a broader, strategic approach to addressing discrimination
7 Bob Hepple, Mary Coussey and Tufyal Choudhury, Equality: A New Framework: Report of the
Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Hart Publishing,
2000) ch 3.
8 John Braithwaite, ‘Rewards and Regulation’ (2002) 29 Journal of Law and Society 12, 19.
9 The AHRC also has powers in relation to human rights (see pt II div 3 of the AHRC Act). As
this article is solely concerned with the enforcement of anti-discrimination laws, its human
rights powers are not considered further.
10 See further Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination Law
(Federation Press, 2nd ed, 2014) ch 12.
11 The Australian statutory commissions have favoured the terms ‘anti-discrimination’ and
‘equal opportunity’ and are either a Commission, Authority or Board. The AHRC is the only
exception. ‘Equal opportunity’ was removed from the AHRC’s name when it was renamed
in 2008. Britain has preferred the term ‘equality’, as have Northern Ireland and Ireland. For
ease of reference, ‘equality commission’ is used throughout this article when referring to the
agency in...
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