Promoting Innovation or Exacerbating Inequality? Laboratory Federalism and Australian Age Discrimination Law
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/0067205X231187971 |
| Author | Alysia Blackham |
| Date | 01 September 2023 |
| Subject Matter | Special Issue: Inequality and Public Law (Part I) |
Special Issue: Inequality and Public Law (Part I)
Federal Law Review
2023, Vol. 51(3) 347–371
© The Author(s) 2023
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DOI: 10.1177/0067205X231187971
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Promoting Innovation or
Exacerbating Inequality? Laboratory
Federalism and Australian Age
Discrimination Law
Alysia Blackham*
Abstract
According to laboratory federalism, federal systems can promote governmental innovation and
experimentation, while containing the risks of innovation to only one jurisdiction. However, it is
unclear whether these benefits are realised in practice and whether states are actually effective
‘laboratories’. This article evaluates the extent to which laboratory federalism is occurring in
practice, focusing on a case study of age discrimination law in Australia. Drawing on related ideas of
democratic experimentalism; legal doctrinal analysis of age discrimination law in the Australian
states and territories, and at the federal level; and qualitative expert interviews with 66 Australian
respondents, I map the potential and limits of laboratory federalism in advancing age equality. I argue
that, in this particular context, the benefits of experimentation may be outweighed by the resulting
difficulties of enforcing age discrimination law, exacerbating inequality in practice. The federal
structure has led to a confused and confusing patchwork of legal regulation. There is therefore a
need for stronger federal structures to facilitate mutual learning and better realise the benefits of
laboratory federalism.
Accepted 7 October 2022
I Introduction
The practical operation of Australian federalism —its benefits, advantages and limits as a form of
government—has been thrown into the public eyeby the management of the COVID-19 pandemic.
1
In a period of crisis, the benefits and flaws of government systems are thrown into stark relief.
* Associate Professor, Melbourne Law School, University of Melbourne. This research was funded by the Australian
Government through the Australian Research Council’sDiscovery Projects funding scheme (project DE170100228). The
views expressed herein are those of the author and are not necessarily those of the Australian Government or Australian
Research Council.
1. Julian R Murphy and Erika Arban, ‘Assessing the Performance of Australian Federalism in Responding to the Pandemic’
(2021) 51(4) Publius: The Journal of Federalism 627; Alan Fenna, ‘Australian Federalism and the COVID-19 Crisis’in
Rupak Chattopadhyay et al (eds), Federalism and the Response to COVID-19: A Comparative Analysis (Taylor& Francis,
2022) 17.
Even before this immediate crisis, though, the impact of federalism on public policy in Australia
was an issue of significant importance, particularly in relation to measures seeking to address
inequality.
In theory, federalism offers major advantages as a governmental structure, over and above those
offered by unitary government. In particular, laboratory federalism puts forward the advantages of
federalism in promoting governmental innovation and experimentation, while containing the risks of
innovation to only one jurisdiction. Laboratory federalism offers the possibility of testing and evaluating
various policy options, with the aim of optimising policy solutions at both the federal and state level. It is
unclear, however, whether laboratory federalism is being realised in practice. Indeed, it is un clear whether
states actually experiment within particular policy areas and whether there is mutual learning between and
across jurisdictions. Thus, one of the main benefits or advantages of federalism may not be realised.
This article evaluates the extent to which laboratory federalism is occurring in Australia, focusing
on a case study of age discrimination law. It considers the potential benefits of state-based ex-
perimentation, and how these opportunities are tempered by the risks of federal governance. The
article draws on the literature on laboratory federalism and related ideas of democratic experi-
mentalism; legal doctrinal analysis of age discrimination law in the Australian states and territories,
and at the federal level; and semi-structured qualitative expert interviews with 66 Australian re-
spondents. Interview respondents were drawn from across the Australian states and territories,
including representatives from equality bodies, legal practice, age lobby groups, government and
unions, conducted in July 2015 (the pilot stage) and between March 2018 and September 2020.
2
In Part 2, the article commences with a discussion of laboratory federalism, as it has been
developed and tested across comparative jurisdictions including the United States and Australia. In
Part 3, it considers potential similarities and disjunctions between laboratory federalism and
democratic experimentalism, using experimentalism to critique laboratory federalism. In Part 4,
drawing on a case study of Australian age discrimination law, the potential benefits and limits of
state-based experimentation are evaluated. I argue that, in the context of Australian age discrim-
ination law, the federal structure has led to a confused and confusing patchwork of legal regulation,
inhibiting access to justice for the most vulnerable claimants. The benefits of experimentation, in this
context, may therefore be outweighed by the resulting difficulties of enforcing age discrimination
law, exacerbating inequality. There is therefore a need to better balance the benefits of experi-
mentation in laboratory federalism with the risks of federalism in advancing equality.
II Laboratory Federalism
AFederalism, Laboratory Federalism and Their Advantages
Federalism, and divesting legislative power to states or lower-level governments, is seen as having a
number of theoretical benefits as a model of governance. It can facilitate policies that are tailored to
2. This method is discussed in detail in Alysia Blackham, Reforming Age Discrimination Law: Beyond Individual En-
forcement (2022, Oxford Monographs on Labour Law,Oxford University Press) (‘Reforming Age Discrimination Law’);
Alysia Blackham, ‘Addressing Age Discrimination in Employment’(Interviews, July 2015, March 2018 to September
2020), files on hold with the author and available at ageworks.info. This research had human ethics approval from the
University of Melbourne (1748973.4). To maintain source anonymity,each respondent is identified with A and a number
(eg, A1). While age discrimination occurs across society, my focus in these interviews was particularly on age dis-
crimination in employment, given the potential economic value and individual significance of extending working lives.
348 Federal Law Review 51(3)
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