Reforming the DDA: Achieving is promise – Submission to the Commonwealth Attorney-General’s Department Review of the Disability Discrimination Act 1992 (Cth)

Dr Robin Banks PhD

14 November 2025

Table of contents

INTRODUCTION 1

TYPES OF REFORMS 2

LEGISLATIVE REVIEW REFORM PROPOSALS 3

REFORMS IDENTIFIED FROM ACADEMIC CRITIQUES 6

REFORMS IDENTIFIED BY INTERVIEW PARTICIPANTS 7

Meaning of ‘discrimination’ and interpretation 10

Other protections and obligations 10

Coverage and standing 10

Activities and defences 11

Complaint procedures 11

Compliance and pro-active mechanisms 12

Interaction with other laws 12

Orders and remedies 12

Further reviews and research 13

Other reforms 13

Overall 14

REFORMS DRAWN FROM THE PSYCHOLOGY OF PREJUDICE AND DISCRIMINATION 16

Building an understanding of discrimination from the Stereotype Content Model 16

Building a mechanism to respond to the harm caused by ongoing prejudice and stigma manifesting as discrimination 24

Other key social psychology theories relevant to reforms 25

REFORM INITIATIVES FROM OTHER JURISDICTIONS 30

United States of America 30 Pattern or practice reviews 30 US Access Board 32 US Department of Justice and Equal Employment Commission prosecutions 33

Canada 33 Commission participation in hearing 33 Employment equity legislation 34 Pay equity legislation 35 Accessibility standards 37

Ireland 38

Other areas for reform 38 Building an understanding of the systemic nature of discrimination 38 The nature of the respondent 40 The language of the law 42 Enabling representative actions 42

Prosecutorial approach 43

LIST OF RECOMMENDED REFORMS 44

IDEAS FOR FUTURE RESEARCH 49

CONCLUSION 50

Table of tables

Table 1: Comprehensive official reviews of discrimination laws in Australia …………… 4 Table 2: Categorisation of reform proposals ………………………………………………………. 5 Table 3: Areas of reform with sub-categories ……………………………………………………… 8 Table 4: Summary of areas of reform identified by different cohorts of interview participants ……………………………………………………………………………………………. 15 Table 5: Examples of possible framing to enhance tests for discrimination ………….. 22 Table 6: Levels of representation …………………………………………………………………….. 27 Table 7: Representation by alleged breach and outcome consolidated (federal courts only) ……………………………………………………………………………………………………… 28 Table 9: Reform proposals ……………………………………………………………………………… 45 Table 10: Other future research ………………………………………………………………………. 49

Table of figures

Figure 1: The warmth and competence matrix showing a sample of survey results 19 Figure 2: The BIAS map categorising the nature of the emotional response resulting from warmth and competence and the level to which the behaviour is active or passive …………………………………………………………………. 19 Figure 3: Mapping for disability on the warmth-competence matrix …………………….. 23 Figure 4: Chart indicating difference in outcomes plotted against representation …. 28

Reforming the DDA: Achieving is promise

Introduction

In this submission, I apply my research findings from my PhD to the question of reform of the Disability Discrimination Act 1992 (Cth) (‘DDA’). My PhD research considered reforms to discrimination law generally and made a number of both substantive and procedural reform recommendations. I have adapted these to the specific question of DDA reforms. This submission is largely drawn from Chapter 10 of my PhD thesis,1 with extracts from other chapters to illustrate specific points. In my PhD I conducted a undertook a range of research:

• doctrinal analysis of discrimination law;
• literature review of both academic and grey literature on critiques of discrimination law;
• case data analysis of all federal discrimination case decisions up to the end of 2018;
• interviews with professional and community experts, including people with disability in both cohorts; and
• review of key findings from psychology research into prejudice and related matters.

All of this research has informed the reforms proposed in my thesis and set out in this submission.

My PhD thesis arose out of my concern that one of the particular shortcomings of discrimination law is its disconnection from the nature and experience of prejudice. While this is a key focus of the reforms I recommended, I also considered more broadly other aspects of social psychology that are potentially relevant to the nature and aims of discrimination law, and other reform options identified through the research.

It is notable that the overarching architecture of discrimination law has changed little since its first enactment in Australia in the 1970s. While some jurisdictions have undertaken significant legislative reviews and reforms,2 other jurisdictions have seen little reform to the

1 Robin Banks, ‘A rose is a rose: But not all discrimination smells the same – An exploration of the capacity of the psychology of stigma, prejudice and discrimination to enhance discrimination law’ (PhD Thesis, University of Tasmania, 2023).

2 See, in particular, Victoria: Equal Opportunity Act 1977 (Vic) and the Equal Opportunity (Discrimination against Disabled Persons) Act 1982 (Vic), repealed and replaced by the Equal Opportunity Act 1984 (Vic) (‘EOA 1984 (Vic)’), reviewed by the Victorian Parliament in 1993—Scrutiny of Acts and Regulations Committee, Parliament of

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law, with the most notable of these being New South Wales. The DDA has seen relatively few reforms to the substantive or procedural provisions. Some might argue that this lack of change to the overarching approach demonstrates the solidity of those foundations. However, my research data and findings suggest this is a difficult argument to sustain. This argument is also difficult to sustain in light of the continuing lack of equality in terms of societal status and employment opportunities (among other measures) for people with disability.

This is the background against which I proposed the range of reforms. I highlight a number of technical changes that have been advocated by others over many years. I also take the discussion further into the territory of reforms to core aspects of the law, including the ways in which we define and interpret the fundamental concept of discrimination.

Types of reforms

In considering the range of potential reforms, it is useful to firstly identify the scope of reform options. By this I mean the different targets for reform and types of reform. Commonly reforms focus on changes to the text of specific provisions to affect substantive rights and obligations, or on procedures. (I note the main focus of the questions posed in the Issues Paper for the current DDA Review is on substantive rights provisions and related compliance mechanisms such as action plans and disability standards.)

These approaches alone are, I believe, inadequate to the task of reforming discrimination laws, including the DDA, to the extent identified as necessary. My view mirrors concerns from many discrimination law experts I interviewed in my research, particularly the narrow and formalistic interpretation that is commonly found in discrimination caselaw. The proposed approach to interpretation seeks to reflect aspects of human behaviour discussed in the social psychological literature, but largely excluded to date from consideration in discrimination law. Without addressing these and other, broader issues, modifying the specific language of provisions or procedures is unlikely to result in significant changes to the ways in which the law operates or its potential to achieve positive systemic change for people with disability.

As such, this submission identifies reforms to:

• the substantive rights protections and obligations within discrimination laws;
• the procedures set out in discrimination laws for dealing with both breaches of the law and for ensuring duties are met;
• the remedies available for breaches of discrimination laws;

Victoria, Review of the Equal Opportunity Act 1984, Final Report (1993)—and repealed and replaced by the Equal Opportunity Act 1995 (Vic) (‘EOA 1995 (Vic)’), which was in turn reviewed—see, Julian Gardner, An Equality Act for a Fairer Victoria: Equal Opportunity Review Final Report (State of Victoria, Department of Justice, June 2008)—and repealed and replaced by the Equal Opportunity Act 2010 (Vic) (‘EOA (Vic)’).

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• the bodies that administer and adjudicate in respect of discrimination laws, including in respect of their powers;
• allow for the development of subordinate legislation (regulations, etc) and guidance materials with or without legal effect;
• implement requirements in respect of the training and professional development of those who administer and adjudicate in respect of discrimination laws; and
• or the development of interpretative guidance materials.

Five areas of reform are reviewed, namely: legislative review reform proposals; reforms identified in academic literature; reforms proposed by interview participants; reforms stemming from the review of the psychological literature on prejudice and discrimination; and reforms based on the practices in comparable overseas jurisdiction.

Legislative review reform proposals

Almost since they were enacted, discrimination laws have been subject to calls and proposals for reforms. This section summarises key reform proposals and initiatives, including those enacted in some jurisdictions. It focuses only on reforms to process and definitions rather than on scope of coverage as, over time, new personal attributes have been recommended and often added. The range of reforms identified include reforms to the substantive rights and obligations provisions (including to affect interpretation of key concepts), to the administrative procedures of statutory authorities, and to the procedures for dealing with breaches of the laws and ensuring duties are met, to remedies, and to the powers of the various statutory authorities.

Appendix A of my thesis sets out reforms to discrimination laws at federal, state and territory levels proposed in government-initiated comprehensive reviews of legislation. These include reviews conducted by the relevant discrimination statutory authorities, reviews by other statutory or similar bodies, such as law reform commissions and the Productivity Commission, reviews by government departments; and parliamentary committee inquiries. The earliest review was of the (then) Equal Opportunity Act 1984 (Vic) (‘EOA 1984 (Vic)’) conducted by the Victorian Parliament in 1993. The most recent reviews considered in my research was the review of the Equal Opportunity Act 1984 (WA) (‘EOA (WA)’) conducted by the Law Reform Commission of WA, and the review of the Anti-Discrimination Act 1991 (Qld) (‘ADA (Qld)’) conducted by the Queensland Human Rights Commission. Error! Reference source not found. below lists the comprehensive reviews of federal, state and territory discrimination laws. It does not include inquiries into specific provisions or protections within particular discrimination laws. It identifies the only comprehensive review to date of the DDA – the review conducted by the Productivity Commission in 2004.

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Table 1: Comprehensive official reviews of discrimination laws in Australia

Reviews of federal discrimination laws:

1996 Review of the Racial Discrimination Act 1975 (Cth) (‘RDA’) by the (then) Human Rights and Equal Opportunity Commission. This did not proceed beyond publication of a community consultation document.3

2004 Review of the Disability Discrimination Act 1992 (Cth) (‘DDA’) by the Productivity Commission.4

2008 Review of the Sex Discrimination Act 1984 (Cth) (‘SDA’) by the Federal Senate.5

2011 Proposal to consolidate federal discrimination laws from the Federal Attorney-General’s Department. This did not proceed beyond an Exposure Draft Bill.6

Reviews of state and territory discrimination laws:

1993 Review of the Equal Opportunity Act 1984 (Vic) by the Victorian Parliament.7

1994 Review of the Equal Opportunity Act 1984 (SA) (‘EOA (SA)’) by Brian Martin QC.8

1999 Review of the Anti-Discrimination Act 1977 (NSW) (‘ADA (NSW)’) by the NSW Law Reform Commission.9

2007 Review of the Equal Opportunity Act 1984 (WA) (‘EOA (WA)’) by the WA Equal Opportunity Commission.10

2008 Review of the Equal Opportunity Act 1995 (Vic) (‘EOA 1995 (Vic)’) by Julian Gardner for the Victorian Department of Justice.11

2009 Review of the Anti-Discrimination Act 1988 (Tas) (‘ADA (Tas)’) by the Tasmanian Department of Justice.12

3 Race Discrimination Commissioner, The Racial Discrimination Act: A Review (Human Rights and Equal Opportunity Commission, December 1995); and Race Discrimination Commissioner, The Racial Discrimination Act: A review: Community consultation guide (Human Rights and Equal Opportunity Commission, May 1996).

4 Productivity Commission, Review of the Disability Discrimination Act 1992, Report No 30) (2004) vol 1 (‘Productivity Commission DDA Review’).

5 Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality (2008).

6 Attorney-General’s Department (Commonwealth), Consolidation of Commonwealth Anti-Discrimination Laws: Discussion Paper (Government of Australia, September 2011).

7 Scrutiny of Acts and Regulations Committee (n 2).

8 Brian Martin, South Australia: Legislative review of Equal Opportunity Act 1984: Report of Brian Martin QC (Report to Government, October 1994).

9 NSW Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW), Report No 92 (1999).

10 Equal Opportunity Commission (WA), Review of the Equal Opportunity Act 1984: Report (Commissioner for Equal Opportunity, May 2007).

11 Gardner (n 2).

12 Department of Justice (Tasmania), Review of the Complaints Handling and Dispute Resolution Provisions of the Anti-Discrimination Act 1998: Final Report (Recommended Position Paper) (Government of Tasmania, September 2009).

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2015 Review of the Discrimination Act 1991 (‘DA (ACT’) by the ACT Law Reform Advisory Council.13

2017 Review of the Anti-Discrimination Act 1991 (NT) (‘ADA (NT)’) by the NT Department of the Attorney-General and Justice.14

2019 Review of the EOA (WA) by the Law Reform Commission of Western Australia,15 with the discussion paper published in September 2021.16

2021 Review of the Anti-Discrimination Act 1991 (Qld) (‘ADA (Qld)’) by the Queensland Human Rights Commission.17

2023 Review of the ADA (NSW) by the NSW Law Reform Commission, referred by the NSW Attorney General on 29 August 2023, first Consultation Paper published 19 May 2025.18

Proposals for reform identified by these reviews can usefully be sorted into the 11 notional categories—A to K—based on scope set out in Table 2.

Table 2: Categorisation of reform proposals

Category	Coverage
A	meaning of and test for discrimination, and interpretation
B	other protections (for, example, against harassment, vilification, victimisation) and obligations (for example, duties on organisations)
C	who is protected against discrimination and other prescribed conduct (protected attributes) and who can complain (standing)
D	circumstances in which discrimination and other conduct is unlawful (including areas of activity in which discrimination is prohibited)
E	complaint requirements, procedures and decision making

13 ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT): Final Report (2015). Not included in this list is the 2021 process that considered implementation of the outstanding recommendations from the 2015 review: ACT Justice and Community Safety Directorate, Inclusive, progressive, equal: Discrimination law reform: Discussion paper 1: Extending the protections of discrimination law (ACT Government, October 2021).

14 Department of the Attorney-General and Justice (Northern Territory), Discussion Paper: Modernisation of the Anti-Discrimination Act (Government of the Northern Territory, September 2017). Exposure Draft Anti-Discrimination Amendment Bill 2022 (NT). https://agd.nt.gov.au/law-reform-reviews/published-reports-outcomes-and-historical-consultations/historical/2022/exposure-draft-anti-discrimination-amendment-bill-2022/fact-sheet-modernising-the-anti-discrimination-act-1992.

15 Law Reform Commission of Western Australia, Review of the Equal Opportunity Act 1984 (WA) (Project 111), commenced 2019, <https://www.wa.gov.au/government/publications/project-111-review-of-the-equal-opportunity-act-1984-wa>.

16 The Law Reform Commission of Western Australia, Review of the Equal Opportunity Act 1984 (WA), Project 111 Final Report (May 2022).

17 Queensland Human Rights Commission, ADA Review, commenced May 2021 and reported in July 2022: Queensland Human Rights Commission, Building Belonging: Review of Queensland’s Anti-Discrimination Act 1991 (July 2022) <https://www.qhrc.qld.gov.au/about-us/reviews/ada>.

18 NSW Law Reform Commission, Anti-Discrimination Act review (2025) <https://lawreform.nsw.gov.au/current-projects/anti-discrimination-act-review.html>.

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Category	Coverage
F	compliance and pro-active mechanisms
G	interaction with other laws
H	orders and remedies
I	further reviews or research
J	Miscellaneous
K	defences, exceptions, exemptions and special measures

In analysing all of the reviews I found that in total the reviews have proposed 1,154 potential reforms, some of which affect more than one of the identified areas. Three areas of reform dominate. The first of these is circumstances in which otherwise unlawful discrimination is permitted (defences, exceptions and exemptions) with 237 proposals (19.1%). The second is complaint handling requirements, procedures and decision making, with 235 recommendations or positions (19.0% of the total). The third most prevalent is who is protected against discrimination and other prohibited conduct (protected attributes) and who can complain (standing) with 233 recommendations (18.8% of the total). There have also been 151 recommendations (12.2%) touching on the scope of the protections and obligations beyond the provisions prohibiting discrimination.

Interestingly, only a relatively small number of reform proposals focus on the meaning of and test for discrimination and its interpretation: 78 proposals (6.3%).

Applying this categorisation, the current DDA review has questions focused on defences and exceptions (26.8%), other protections and obligations (19.6%), who is protected (12.5%), compliance and pro-active mechanisms (12.5%), other issues (12.5%), the meaning of discrimination and its tests (8.9%) and areas of activity (7.1%).

One feature of the current review is the lack of focus on the complaint processes, despite this being significant in many of the previous reviews and being an area of significant concern for people with disability as a key element affecting access to justice.

Reforms identified from academic critiques

Over many years, Australian academics with expertise in discrimination law have identified the need for reforms and proposed a range of reforms. Many of these are discussed below.

Some suggestions for changes to the approach in discrimination law in Australia include, for example:

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• the adoption of general rather than specific defences using the Canadian federal law as a model;19
• a ‘shifting onus’ of proof;20
• the reduction in focus on specific attributes, to allow for discrimination on other analogous grounds to be the subject of legal complaint;21
• adopting an underpinning anti-stigma principle;22 and
• a single national discrimination law.23

With one of the most consistent critiques of Australian discrimination law its apparent failure to understand and address the systemic nature of discrimination. While this is of relevance to all areas of discrimination law, I would argue that it has particular significance for people with disability given the structural barriers that prevail in Australian society. These include physical barriers, communication barriers, policy barriers and attitudinal barriers. Specific reforms to address the lack of focus on removing systemic discrimination tend to focus on regulatory compliance promotion or enforcement mechanisms (category F).

Reforms identified by interview participants

A key source of data for my PhD research was interviews conducted with a range of experts: community experts (including a significant proportion of people with disability) and professional experts.24 All the interviews conducted for my PhD research included questions and discussions about barriers to effectiveness and potential areas for reform. These questions and responses to them form the basis of this part of the submission.

Participants identified a range of reforms, with some coming up time and again in interviews. The range of proposed reforms are categorised using the same categories as applied to the formal reviews.25

The areas for reform most commonly identified were reforms to:

19 Human Rights and Anti-Discrimination Bill 2012 (Cth – Exposure Draft) (‘Human Rights and Anti-Discrimination Bill’) cll 23 & 24; Canadian Human Rights Act, RSC 1985, c H-6, ss 15(1)(a) and (g), (2).

20 Human Rights and Anti-Discrimination Bill (n 19) cl 124.

21 The Equal Rights Trust, Declaration of principles of equality (The Equal Rights Trust, 3–5 April 2008) principle 5.

22 Iyiola Solanke, Discrimination as stigma: A theory of anti-discrimination law (Hart Publishing, 2017).

23 Mark A Nolan, ‘Some legal and psychological benefits of a nationally uniform and general anti-discrimination law in Australia’ (2017) 6(1) Australian Journal of Human Rights 79.

24 The professional expert cohorts were: legal academics, legal practitioners, statutory officers, and social psychologists.

25 Banks (n 1) sets out in Appendix 3 the details of the proposed reforms and which participants identified them. This is available on request.

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• the complaint requirements, procedures and decision making;
• improvement to compliance and pro-active mechanisms (both through a statutory authority and as a stand-alone duty);
• meanings and interpretation of discrimination;
• and other reforms.

This last area included a number of recommendations for reforms to the overarching approach to discrimination law.

Within each area, there were particular reforms that were raised by multiple participants, as well as reforms that could usefully be clustered under sub-categories. These are set out in Table 3 in broad terms.

Table 3: Areas of reform with sub-categories

Scope and sub-categorisation	#
A Meaning of and test for discrimination, and interpretation
Definition	38
Interpretation	18
Test	14
B Other protections (for, example, against harassment, vilification, victimisation) and obligations (for example, duties on organisations)
Duties	8
Harassment	4
Vilification	1
C Who is protected against discrimination and other prescribed conduct (protected attributes) and who can complain (standing)
Protected groups	8
Standing	22
D Circumstances in which discrimination and other conduct is unlawful or permitted, and defences (exceptions) and exemptions)
Defences	15
Exemptions	2
Scope of protections	2
E Complaint requirements, procedures and decision making
Access to justice	19
Community education	4
Complaints	8
Complaints and decision making	1
Conciliation	10
Conflict of interest	1

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Cross-vesting | 1 Decision making body | 14 Expertise | 10 Investigation | 1 Robustness | 8 Time | 6 F Compliance and pro-active mechanisms | Action Plans | 1 Affirmative action | 1 Audit | 7 Codes | 1 Exemptions | 1 General approach | 15 Promotion | 3 Prosecution | 1 Reasonable adjustments | 1 Regulatory approach | 27 Standards | 6 G Interaction with other laws | Co-regulation | 3 Crime | 1 Health and safety laws | 2 Industrial laws | 2 H Orders and remedies | Costs | 5 Damages | 1 Orders | 17 Remedies | 9 I Further reviews or research | Guidance materials | 2 Research | 3 Reviews | 5 J Other | Consolidation | 3 Co-operation | 1 Expertise | 6 Other legislation/ legislative schemes | 5 Overarching approach | 33

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Resourcing | 13 Reviews | 1 Statutory officers | 1

The following discussion provides some detail of the key ideas raised in each of the identified areas.

Meaning of ‘discrimination’ and interpretation

A number of participants recommended that discrimination law incorporate a shifting burden of proof / reverse onus (respondent to prove valid non-discriminatory reason for conduct) with one Legal Practitioner observing:

… it would be great if we could follow the practice at fair work, where you have the reverse burden of proof…

… for someone who’s … an employer representative … [you] would think … I would tend to say things more from an employer’s perspective … I often tell my clients that the reverse onus makes a lot of sense.

This proposed reform is relevant to Consultation question 6 of the Review.

Clearer guidance for judges in their interpretation was also suggested, including through greater clarity in the objects provisions of legislation. This latter proposal is relevant to Consultation questions 10 and 11 of the Review.

Other protections and obligations

In the area of other protections and obligations, the proposal that was raised by the most participants was to incorporate clear positive duties to prevent/avoid discrimination. These views are relevant to Consultation question 12 of the Review.

Coverage and standing

A large number of participants recommended changes to who is protected and who can make a formal complaint, to move away from the focus and burden on individual complainants. Participants made recommendations for reforms to ‘transcend’ the individual nature of complaints, and to implement effective mechanisms for group, class and representative complaints to reflect the group-nature of disadvantage. One Legal Academic observed that ‘obviously the … survivor-focused enforcement … is never going to work’, while another noted ‘… there is something inherently individualistic about the way that we write our discrimination laws that … although you’re talking about your group disadvantage, you’re bringing it … as an individual claimant…’

Unfortunately the Review does not address this vital aspect of discrimination law. It is of particular relevance to people with disability given the fact that a particularly stigmatised and marginalised group within the disabled population is people with serious cognitive impairments. There are very few complaints made under discrimination law by this group

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and, to the extent that complaints are made on their behalf, the vast majority are made by parents in relation to the treatment of the school-age children with cognitive impairments. This is an area of discrimination law reform that must be addressed as a matter of urgency if the most marginalised people with disability are to benefit from the promise of lives free from prejudice and the enjoyment of the human rights to equality and non-discrimination.

Activities and defences

In the area of circumstances in which discrimination is unlawful and where it is permitted, three issues were raised by several participants. A key reform mentioned by several participants was to move from the multiple defences approach adopted in Australian law to the general justification defence approach found in Canadian discrimination law.26

Finally, informants proposed the need to move away from the language of ‘reasonable’ and ‘justifiable’ to ‘legitimate’ and ‘proportional’, with one Legal Academic observing ‘… you’ve always got this reasonableness thing, … what is reasonable? … or justifiable? … let’s use legitimate or proportional or whatever test you use from around the world’.

These views on defences available under discrimination laws are relevant to Consultation question 33 of the Review.

Complaint procedures

For complaint requirements, procedures and decision making, the strongest area of consensus for reform proposals was to adopt an expert decision maker model, with one legal academic, for example, arguing for ‘a specialist tribunal: I’d have this decided by people who knew what they were doing. So, … you actually have expertise committed to achieving statutory goals at every stage of the process.’

Other mechanisms identified to overcome some of the problems in decision making were to have independent legal experts assisting the decision-making body, and expert training for decision makers in discrimination law. A number of participants identified the need for the statutory authorities and decision-making bodies to be more robust in their complaint processes, and to use the full range of powers available to them. For example, as one Legal Practitioner urged, these bodies need to use ‘the power to compel production of documents in conciliation’. Another identified concerns with:

The accept/reject issue: … there are occasions when the various commissions don’t run a rigorous enough approach to material that they’ve got to actually say, ‘well, I’ve read all that and I don’t actually think on the material you’ve presented me so far that there is actually an issue’… They’ve also got to have that willingness to say ‘no’.

26 Canadian Human Rights Act (n 19).

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Timeliness was also identified by a number of participants as an area that requires reform to ensure urgent cases can be dealt with effectively, with resourcing identified as a related issue.

These views are all relevant to Consultation questions 50 and 51 of the Review.

Compliance and pro-active mechanisms

The strongest focus for participants proposing reforms in the area of compliance and pro-active measures was on reforming discrimination law to give the statutory authorities standing to litigate. One Legal Academic asked ‘… if [the statutory authority has] issued a report that says, “this is what we think is wrong”, why should they not then be able to go to court and say, “this is what we think is wrong in the law”.’

A Legal Practitioner asked, ‘why can’t we have discrimination [have] the same gravity [as Fair Work prosecutions]?’

Several participants recommended a range of mechanisms be enacted including audit functions, codes, automatically enforceable minimum standards, and active monitoring of all these mechanisms by relevant statutory authorities, including co-regulatory models.

These concerns and views are relevant to Consultation questions 12, 16–18, 41-44, and 45–47.

Interaction with other laws

The interaction with both industrial laws and workplace health and safety laws was the main concern raised in relation to the interaction of discrimination laws with other laws.

Orders and remedies

In the area of orders and remedies a number of participants raised possible reforms in relation to costs orders, with all but one suggesting discrimination law at the federal level should move to a non-costs approach. Participants also raised the need for the laws to be much clearer about the power to make orders for non-financial remedies. One legal practitioner asked, ‘if the purpose of the legislation is to affect change or outcomes, should it be about compensation or should it be about some other measure?’.

Again, unfortunately, the Review does not address this vital aspect of discrimination law. It is highly relevant to the nature of discrimination experienced by people with disability, which is often systemic in nature. Without a clear requirement that discrimination law decision makers expressly consider what systemic remedies are needed to address the discrimination being experienced we will continue to see the almost exclusive reliance on making orders for compensation. These orders are both inadequate in responding to the need for systemic change and in recognising the nature of harms experienced by people with disability (levels of compensation are egregiously low). Unless and until our discrimination law decision makers expressly order systemic change actions, those people with disability who do not

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have the wherewithal to pursue a complaint will not benefit from the complaints made by those who do.

Further reviews and research

Two repeated suggestions for reform in the areas of further reviews and research were to develop ‘bench books’ on equality and discrimination law for decision making bodies and for there to be a statutorily entrenched review requirement in all discrimination laws to ensure currency.

Other reforms

In the ‘other’ category, there was a strong focus on the need for a much clearer public education approach, and to move away from a private rights to a public wrongs model with a related view of the need for recognition of the many reasons individuals do not complain about discrimination they experience. One Community Expert identified some of the reasons becoming a complainant is challenging:

… people have been preconditioned to just put up with it and be quiet. And … particularly if people have … had a disability from birth … that’s quite a strong … conditioned response… also … there’s a lot of fear… people feel intimidated by the process, even though it is … sort of designed to be accessible and reasonable and easy, … people feel intimidated by the prospect of having to actually, sit there… and recount their experience and justify why they felt that that was discrimination. I mean, … as someone who’s pretty experienced, I still felt incredibly intimidated having to sit there in front of [company representatives] and explain the whole thing and go through why … that was a problem… we underestimate the trauma … there’s a huge amount of shame about… ‘if that organization or that person is … discriminating against me, then … I must therefore be a bad person…

It was in this area that overarching reforms were proposed to the way we as a society approach prejudice and discrimination, with suggestions from two Social Psychologists around developing a reward rather than punishment approach, and a strong emphasis on broader messaging and role modelling strategies that reduce the reliance on the complaint system to establish or strengthen societal norms.

The possibility of federal discrimination law consolidation was raised by several participants, as was the need for training and education of decision makers on discrimination harms, potential bias and the benefits of non-discrimination.

A number of participants identified the need for resourcing to statutory authorities to use mass media public promotion strategies to strengthen the normative effective of the law, and to fulfil their full range of statutory functions.

The most common reform identified in this category was on ensuring that the overarching approach of discrimination law is deeply rooted in and reflects international human rights. This view is relevant to Consultation questions 10 and 11 of the Review.

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Overall

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Table 1 shows the focus of reforms discussed or proposed by interview participants. Perhaps unsurprisingly there was a stronger focus among Legal Academics and Legal Practitioners on what is arguably the more technical aspects of the law: meaning of and test for discrimination and interpretation, and complaint requirements, procedures and decision making. This latter category also dominated the recommendations of Statutory Officers. This is likely to reflect their direct experience of having to administer these requirements. Together with Legal Academics, it was again Statutory Officers who focused most strongly on compliance and pro-active mechanisms.

Again it is probably not surprising to see the Social Psychologists’ recommendations focused in the area of ‘other reforms’, with their research-informed expertise on behaviour and how it is shaped and changed.

Similarly, this was the category in which the Community Experts made the most suggestions, although they also identified the need for reforms to the technical language of discrimination and its interpretation, the scope of protection and standing, with many in this cohort (and in others) identifying the need to ‘transcend the individual nature of complaints’ and ensure effective group and/or representative complaints, class actions and statutory officer actions. As noted earlier, more detail of these reforms is provided in Appendix 3 to my PhD, which is available on request.

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Table 4: Summary of areas of reform identified by different cohorts of interview participants

Scope	Community experts (N=14)	Legal Academics (N=12)	Legal Practitioners (N=13)	Social psychologists (N=8)	Statutory officers (N=15)	Total
A Meaning of and test for discrimination, and interpretation	10	19	20	2	12	63
B Other protections (for, example, against harassment, vilification, victimisation) and obligations (for example, duties on organisations)	0	5	2	0	6	13
C Who is protected against discrimination and other prescribed conduct (protected attributes) and who can complain (standing)	9	10	3	1	7	30
D Circumstances in which discrimination and other conduct is unlawful or permitted (including areas of activity discrimination is prohibited in, and defences (exceptions) and exemptions)	3	7	5	0	4	19
E Complaint requirements, procedures and decision making	9	27	25	1	21	83
F Compliance and pro-active mechanisms	9	28	9	3	15	64
G Interaction with other laws	0	3	3	0	2	8
H Orders and remedies	4	14	11	0	3	32
I Further reviews or research	2	0	0	1	7	10
J Other	13	13	11	13	13	63
TOTAL FOR COHORT	59	126	89	21	90	385

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Reforms drawn from the psychology of prejudice and discrimination

As noted in the introduction to this submission, my PhD research was born out of my concerns as a practitioner that discrimination law treats all discrimination, irrespective of the group being targeted, as being of the same nature. It is not, in my view, rational or evidence based to argue—paraphrasing Gertrude Stein—discrimination is discrimination is discrimination.27 Rather, the evidence from the experience of people whose lives are marred by discrimination and from the research undertaken particularly by social psychologists, indicates that discrimination takes diverse and patterned forms depending on the identity of the group affected.

My understanding of theories in social psychology developed in the course of my PhD research expanded my thinking beyond my original focus on the work of Fiske, Glick and Cuddy on the Stereotype Content Model.28 As such, below I begin my development of reform proposals with that model and then consider other aspects of social psychology that can inform effective reforms to discrimination law and processes.

Building an understanding of discrimination from the Stereotype Content Model

The seminal work of Fiske, Glick and Cuddy on the Stereotype Content Model29 provides a starting point for considering how we might reform the way the law approaches discrimination. There is a relatively common way in which the prohibited conduct that we call ‘discrimination’ is categorised: firstly as direct or indirect discrimination, and within these sub-sets as ‘less favourable’ or ‘unfavourable’ treatment on the basis of an identified characteristic, or superficially characteristic-neutral actions that have a more detrimental and excluding effect (‘less favourable effect’) for members of groups with an identified characteristic. The statutes themselves provide no guidance on the extent of the meaning of ‘less favourable’ or ‘detriment’; this is left to the understanding of and interpretation by

27 In her poem, ‘Sacred Emily’, Gertrude Stein first wrote: ‘Rose is a rose is a rose is a rose’: Gertrude Stein, ‘Sacred Emily’ in Geography and Plays (The Four Seas Company, 1922) 178. She subsequently used variations of this phrase. It has been taken to mean ‘a thing is what it is’. The title of my PhD thesis begins with this phrase, ‘a rose is a rose’, but is followed by ‘but not all discrimination smells the same’ – a veiled reference to the words of Juliet in Romeo and Juliet, ‘What’s in a name? That which we call a rose, / By any other name would smell as sweete’: William Shakespeare, The Most Excellent and Lamentable Tragedie of Romeo and Juliet (Duke University Press, 1964 (A critical edition by George Walton Williams) Act II, Scene II, 28. This is considered to have a similar meaning to Stein’s line. I provided a note to the title of my thesis referring to these two sources and stating: ‘I quote / paraphrase both here to question the idea that all discrimination is the same, a core question in this thesis. In doing this I seek to challenge a persistent issue in discrimination law: the issue of decision makers looking for a pattern of behaviour that they understand to be discrimination and not looking beyond that particular pattern.

28 Susan T Fiske et al, ‘A model of (often mixed) stereotype content: Competence and warmth respectively follow from perceived status and competition’ (2002) 82(6) Journal of Personality and Social Psychology 878.

29 Ibid.

Dr Robin Banks: Submission to the review of the DDA 17

judicial decision makers. Such understanding is inevitably shaped in part by the life and legal experiences of those decision makers. In the absence of exposure to the diversity of experience of discrimination, their understanding is likely to be constrained. It is of note that there is a tiny number of judicial decision makers in Australia who are people with disability. This strongly suggests that very few have direct person experience of the nature of prejudice experienced by people with disability and even fewer would understand the different forms prejudice-based behaviour takes for people with different types of impairments.

A way to change this situation would be to reframe ‘discrimination’ to provide evidence-based examples or tests of discrimination with clear guidance around the need to take notice of the different forms that prejudice-based behaviour takes depending on group identities. A strengthening of this approach would come from clearly specifying in the long titles and objects provisions of legislation that its purpose is to provide effective mechanisms to challenge discriminatory actions, practices and attitudes based in prejudice. This then would invite the decision maker to ensure their interpretation is consistent with an understanding of the mechanisms of prejudice and how prejudice-based discrimination differs across characteristics.

Discrimination law should also expressly require interpretation to be informed by the intersectional impact of multiple characteristics,30 moving away from the current approach in law of requiring the discrimination to be identifiable as based on one characteristic only. The intersectional approach highlights that discrimination differs not only across different attribute groups, but also based on the constellation or profile of attributes they have.

Turning to the Stereotype Content Model,31 it is evident that prejudice is patterned by the identity of the person being considered, with a warmth and competence interaction framing our emotional responses to those identities.32 This interaction is mapped onto a warmth–competence matrix in which.

[w]armth refers to the appraisal of others’ motives and includes social and moral qualities (warm, likable, friendly, honest, etc.); competence refers to the appraisal of others’ ability to effectively enact their motives and includes intellectual and motivational qualities (intelligent, capable, skillful, ambitious, etc.). Abundant research on group perception has demonstrated that most

30 See, for example, Kimberlé W Crenshaw, ‘Demarginalizing the intersection of race and sex: A black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics’ (1989) 1 University of Chicago Legal Forum 139; Shreya Atrey, Intersectional discrimination (Oxford University Press, 2019).

31 Banks (n 1) Chapter 7.

32 Susan T Fiske et al, ‘(Dis)respecting versus (Dis)liking: Status and interdependence predict ambivalent stereotypes of competence and warmth’ (1999) 55(3) Journal of Social Issues 473; Fiske et al, above n 28; Amy J C Cuddy, Susan T Fiske and Peter Glick, ‘The BIAS map: Behaviors from intergroup affect and stereotypes’ (2007) 92(4) Journal of Personality and Social Psychology 631.

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stereotypes are of a mixed nature, including ambivalent warmth–competence combinations: those groups seen as high on one dimension are usually seen as low on the other.33

For example, the majority of people with visible disability may be perceived as warm but incompetent; minority groups such as Asians or Jews may be stereotyped as competent but cold; and some groups such as the homeless and ‘foreigners’ may be perceived as both incompetent and cold.

The BIAS map34 developed alongside the warmth and competence matrix. It indicates that, for example, people with different disabilities who are perceived as high in warmth but low in competence are likely to experience discrimination in the form of patronising restrictions associated with pity and sympathy.35 The resulting behaviours are more actively harmful for those considered less warm, and more passively harmful for those considered less competent:

In active harm (i.e., acting against), one explicitly intends to hurt a group and its interests. Verbal harassment, sexual harassment, bullying, and hate crimes all constitute interpersonal active harm. Institutionally, active harm can range from discriminatory policies to legalized segregation to mass internment (e.g., Japanese Americans during World War II) to genocide.36

…

In passive harm (i.e., acting without), one demeans or distances other groups by diminishing their social worth through excluding, ignoring, or neglecting. Relational or social aggression (e.g., Crick & Grotpeter, 1995) and passive negative coping (e.g., withdrawal of social support; Ayduk et al., 2003) are related concepts. Interpersonal passive harm includes avoiding eye contact, being dismissive, or ignoring outgroup members. Institutionally, passive harm involves disregarding the needs of some groups or limiting access to necessary resources such as education, housing, and healthcare. In passive harm, one acts without the group, denying its existence, harming its members by omission of normal human recognition.37

Figure 1 shows the perceptions recorded in relation to blind people, as distinct from ‘retarded people’, with blind people being perceived as of slightly higher warmth and significantly higher competence. The figure also maps the location of ‘disabled people’ within the same quadrant of the matrix. The warm and incompetent quadrant is one of the two referred to as ‘ambivalent’, the other being the cold and competent quadrant.

33 Odile Rohmer and Eva Louvet, ‘Implicit stereotyping against people with disability’ (2018) 21(1) Group Processes & Intergroup Relations 127, 128.

34 Cuddy, Fiske and Glick (n 32).

35 See, for example, Susan T Fiske, ‘Stereotype content: Warmth and competence endure’ (2018) 27(2) Current Directions in Psychological Science 67, 68.

36 Cuddy, Fiske and Glick (n 32), 633.

37 Ibid.

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Figure 1: The warmth and competence matrix showing a sample of survey results

Source: Susan T Fiske et al, ‘(Dis)respecting versus (Dis)liking: Status and Interdependence Predict Ambivalent Stereotypes of Competence and Warmth’ (1999) 55(3) Journal of Social Issues 473 at 480, figure 1.

Caption on original: ‘Fig 1 Cluster analysis of 17 outgroups, arrayed on competence and warmth dimensions from Survey 1’.

Reproduced with permission of the authors.

The related BIAS Map (Figure 2 below) shows that pity is the dominant emotional response to those we consider warm and incompetent. It is likely that the discrimination experienced by people with disability will reflect this emotional response.

Figure 2: The BIAS map categorising the nature of the emotional response resulting from warmth and competence and the level to which the behaviour is active or passive

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Source: Amy J C Cuddy, Susan T Fiske, Peter Glick, ‘The BIAS map: behaviors from intergroup affect and stereotypes’ (2007) 92(4) Journal of Personality and Social Psychology 631 at 634, figure 1.

Caption on original: ‘Schematic representation of behaviors from intergroup affect and stereotype map Hypothesis 1 and 2. Competence and warmth stereotypes are represented outside the figure along the x- and y-axes, respectively. Emotions are represented by gray arrows, within the figure on diagonal axes. Behavioral tendencies are represented by black arrows within the figure on horizontal and vertical axes. © 2007.’

Reproduced with permission of the authors.

Pity is more likely to manifest in behaviours towards people with disability that:

• are over-protective;38
• demonstrate low expectations;
• are patronising; exclude people from opportunities in education, employment, etc;
• are over-managing;
• ignore their needs when planning and reforming systems;39 and
• limit or exclude them from having agency.40

It has been noted that the ambivalent nature of this quadrant interestingly also results in perceptions of people with disability as ‘courageous, heroic, hardworking, persistent, conscientious, honest, moral and friendly’.41

The situation of people with disability is to be contrasted to that of people who are perceived as cold and competent. Research using Australian participants suggests that rich people are perceived in this way.42 Here the emotional response, according to the BIAS map, is envy and jealousy.43 This has very different behavioural manifestations from pity, and, as such, very different discriminatory conduct is likely.

I propose that this understanding of the different forms of prejudice-based behaviour (‘discrimination’) takes needs to be available to those considering allegations of discrimination. Without it, the decision maker is applying their interpretation of ‘less

38 For example, by keeping people with disability separated from wider society to reduce perceived risks to those people.

39 For example, failing to meet the access needs of people with disability in the built environment, in on-line information provision, etc.

40 For example, by excluding a person with disability from decision making about their own circumstances.

41 Rohmer and Louvet (n 33). See also, Michelle R Nario‐Redmond, Alexia A Kemerling and Arielle Silverman, ‘Hostile, benevolent, and ambivalent ableism: Contemporary manifestations’ (2019) 75(3) Journal of Social Issues 726.

42 Federica Durante et al, ‘Nations’ income inequality predicts ambivalence in stereotype content: How societies mind the gap’ (2013) 52(4) British journal of social psychology 726, 736.

43 Fiske (n 35).

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favourable’ without necessarily understanding that the less favourable treatment experienced by, say, a person with Down Syndrome or a person of short stature,44 will be of a very different character to that experienced by an adult Aboriginal man,45 a strong feminist woman or an Asian student.46

This proposal is supported, in my view, by the finding from my case data analysis – reported in Chapter 5 of my thesis – that claims of sexual harassment have a significantly higher rate of findings of unlawful conduct than do claims of sex discrimination. While sexual harassment is a sub-set of sex discrimination—its identification came out of the prohibition of sex discrimination as less favourable treatment based on sex—the tests in legislation for sexual harassment differ from sexual discrimination. Discrimination laws provide a detailed listing of types of conduct that constitute the particular form of less favourable treatment based on sex that is called sexual harassment.47 This more extensive articulation of what conduct constitutes sexual harassment helps shape a broader understanding and contributes, in my view, at least in part to the greater likelihood of a claim of sexual harassment being upheld because the decision makers are provided with much greater guidance on what they are looking for. This is particularly relevant where the decision maker is a person who has never personally experienced sexual harassment.

As such, I propose that the definition of discrimination include specific types of conduct that affect different identity groups. I note that there are references in early racial discrimination laws to discrimination expressly including where a person ‘segregates [another person] from persons of a different race’.48 This and the articulation of sexual harassment provide a model for reforms in this area.

By way of example, discrimination laws could include reference to the particular ways in which discrimination is experienced across the different attributes. Table 5 below explores some possible language that could help in interpretation. This language is based on the Stereotype Content Model’s identification of the dominant emotional responses to particular attributes. I have included here the content relating to all discrimination and disability discrimination rather than the spectrum I included in my thesis.

44 Characterised within the stereotype content model as warm and incompetent and therefore eliciting pity and sympathy.

45 Characterised within the stereotype content model as cold and incompetent, and therefore eliciting contempt and disgust.

46 Characterised within the stereotype content model as cold and competent, and therefore eliciting envy and resentment.

47 See, for example, Sex Discrimination Act 1984 (Cth) s 28A.

48 Anti-Discrimination Act 1977 (NSW) s 7(e).

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Table 5: Examples of possible framing to enhance tests for discrimination

Attribute	Character of discriminatory conduct: conduct that …
All	… reflects commonly held stereotyped views of people with that attribute including by responding to people whose behaviour does not conform to those stereotypes … results in barriers to equal opportunity because of deliberate or inadvertent failure to take account of the specific needs of particular attribute groups
Disability	… is over protective … indicates that the person is perceived to be less capable of engaging in the full range of activities … over-rides a person’s decision-making choices … separates or segregates the person from the broader community or group, irrespective of the stated intention of that separation or segregation … limits a person’s opportunities to demonstrate new skills or capacities … indicates a view that the person/group poses a threat of some kind

Further development of this approach should be informed by contemporary research on stereotypes of particular groups.

In considering how to approach this reform, it is important to consider the options of incorporating these understandings into the specific prohibitions of discrimination, or by separately providing guidance on these understandings and how they might inform interpretation.

It is important to understand that different sub-categories within particular attribute groupings may fall in different quadrants of the warmth-competence matrix and, as such, experience different responses to their impairment. Figure 3 show the mapping for disability extracted from the more detailed matrix from a second research paper by Cuddy, Fiske and Glick.49 While in this data, both specific disability ‘categories’ fall within the high-warmth and low-competence quadrant there are a number of other sub-identities, for example, people with mental illness, people who are blind or vision impaired, Deaf people and people with hearing impairments, people who are neurodiverse, and more. It is likely that the mapping of responses to these groups would extend the pattern outside the high-warmth and low-competence quadrant.

49 Cuddy, Fiske and Glick (n 32), 638 (fig 2). See also, Emily Canton, Darren Hedley and Jennifer R Spoor, ‘The stereotype content model and disabilities’ (2022) The Journal of Social Psychology 1.

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Figure 3: Mapping for disability on the warmth-competence matrix

* This is the language used in the original matrix and reflect the language of the time.

More extensive review, as suggested, of stereotypes could assist in developing an expanded and inclusive list of behaviours experienced as discriminatory.

The level of difference within the protected attribute groups also suggests that something more could also usefully be considered in order to operationalise evidence from social psychology. An option is to build into the provisions of the DDA and the Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’) a requirement that decision makers consider the evidence-based research on the different types of discriminatory behaviour experienced by identity groups within the broad cohort of ‘disability’. This could usefully be complemented by supporting research to be conducted and updated on a regular basis to ensure the evidence remains relevant both temporally and geographically. This has a further advantage of being able to incorporate research findings in respect of members of intersectional groups. For example, include Aboriginal women or Asian women, as compared to Anglo-Australian woman and Anglo-Australian men; women with disability as compared to women without disability and men without disability; and lesbians as compared to gay men and heterosexual men.

However, this alone may be insufficient if there is an absence of understanding of the available research. Therefore, mechanisms are required for ensuring that all judicial decision makers dealing with discrimination complaints undertake regular professional development programs that cover prejudice and discrimination research.

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Building a mechanism to respond to the harm caused by ongoing prejudice and stigma manifesting as discrimination

A persistent aspect of the critiques of discrimination law is the low levels of compensation awarded to victims of discrimination, and concerns about lack of understanding of the significant harm that ongoing experiences of discrimination cause to members of marginalised groups. In part, the challenge in addressing this arises from the individualised nature of the complaint processes embedded in discrimination laws in Australia. That said, there is a significant body of research in social psychology that could assist judicial decision makers to understand the ongoing effects of discrimination on those who experience it. The research discussed in Chapter 7 of my thesis identifies that experiencing stigma, discrimination and prejudice leads to negative mental and physical health outcomes that are often long-term in nature.50 It can also, through the operation of Stereotype Threat, undermine performance and thereby reduce perception of merit.51

It is clear that, in an individual complainant-respondent system, requiring decision makers to order remedies from the respondent that reflect the systemic impacts of stigma, prejudice and discrimination would be unfair to the individual respondent, who is not responsible for that broader cumulative impact. This suggests that a mixed remedy system may be needed, with specific remedies available in respect of the named respondent, and a cumulative remedy available from the state.

For a possible approach to the remedy for the cumulative harm aspect of such a system it is useful to consider the mechanism that exists for victim compensation in various states and territories. For example, under the Victims of Crime Assistance Act 1976 (Tas) (‘Victims Assistance Act’), a person who is the victim of a crime can receive compensation from the Criminal Injuries Compensation Commissioner for injuries sustained, where injury is defined to include any impairment to bodily or mental health.52 The Victims Assistance Act sets out what kinds of assistance can be provided and specifies what other amounts received by the

50 See, for example, Janet K Swim and Charles Stangor, Prejudice: The target’s perspective (Academic Press, 1988); Kimberly T Schneider, Suzanne Swan and Louise F Fitzgerald, ‘Job-related and psychological effects of sexual harassment in the workplace: Empirical evidence from two organizations’ (1997) 82(3) Journal of Applied Psychology 401; Apu Chakraborty and Kwame McKenzie, ‘Does racial discrimination cause mental illness?’ (2002) 180(6) British Journal of Psychiatry 475; Mark L Hatzenbuehler, Katherine M Keyes and Deborah S Hasin, ‘Associations between perceived weight discrimination and the prevalence of psychiatric disorders in the general population’ (2009) 17(11) Obesity 2033; Elizabeth A Pascoe and Laura Smart Richman, ‘Perceived discrimination and health: A meta-analytic review’ (2009) 135(4) Psychological Bulletin 531.

51 See, for example, Claude M Steele and Joshua Aronson, ‘Stereotype threat and the intellectual test performance of African Americans’ (1995) 69(5) Journal of Personality and Social Psychology 797; Jason W Osborne, ‘Testing stereotype threat: Does anxiety explain race and sex differences in achievement?’ (2001) 15 Contemporary Educational Psychology 291; Laurie T O’Brien and Mary Lee Hummert, ‘Memory performance of late middle–aged adults: Contrasting self–stereotyping and stereotype threat accounts of assimilation to age stereotypes’ (2006) 24(3) Social Cognition 338.

52 Victims of Crime Assistance Act 1976 (Tas) (‘Victims Assistance Act’) s 2(2).

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victim may be offset. There is a second Act, the Victims of Crime Compensation Act 1994 (Tas) that sets up the mechanism for specified convicted criminal offenders to be required to pay a compensation levy. That levy is paid to the state, in effect as a fine.53 The levy along with an allocation approved by the Tasmanian Parliament and various other amounts make up the Criminal Injuries Compensation Fund, from which the assistance awards made under the Victims Assistance Act are drawn.54

A scheme, administered by the relevant statutory authority – the Australian Human Rights Commission – could be required to consider the findings of the judicial decision maker to:

• (a) identify appropriate remedies beyond those within the individual respondent’s liability; and
• (b) make an award based on an understanding of the research evidence on continuing and accumulating harms experienced by complainants who are members of marginalised groups.

This could be complemented by commissioned research into health, economic and social impacts of discrimination on groups that have not been studied to date. This may be needed where there is only recent or emerging understanding of the group’s experience of prejudice, or because the research does not take account of the Australian context.

Other key social psychology theories relevant to reforms

Three other aspects of social psychology warrant further consideration. They are the impact of just world beliefs55 on both decision makers and people experiencing discrimination, the impact of implicit attitudes—commonly referred to as unconscious bias—on decision making,56 and the impact of ingroup favouritism.57

53 Victims of Crime Compensation Act 1994 (Tas) ss 5 & 8.

54 Victims Assistance Act (n 52) s 11.

55 Melvin J Lerner, The belief in a just world: A fundamental delusion (Springer Science + Business Media, 1980); see also, Michael W Kraus and Dacher Keltner, ‘Social class rank, essentialism, and punitive judgment’ (2013) 105(2) Journal of Personality and Social Psychology 247; Lori W Malahy, Michelle A Rubinlicht and Cheryl R Kaiser, ‘Justifying inequality: A cross-temporal investigation of US Income disparities and just-world beliefs from 1973 to 2006’ (2009) 22 Social Justice Research 369; Julian A Oldmeadow and Susan T Fiske, ‘System-justifying ideologies moderate status = competence stereotypes: Roles for belief in a just world and social dominance orientation’ (2007) 37(6) European Journal of Social Psychology 1135. See, for discussion, Banks (n 1) Chapter 7.

56 See, for example, Mahzarin R Banaji, Curtis D Hardin and Alexander J Rothman, ‘Implicit stereotyping in person judgment’ (1993) 65(2) Journal of Personality and Social Psychology 272; Anthony G Greenwald et al, ‘A unified theory of implicit attitudes, stereotypes, self-esteem, and self-concept’ (2002) 109(1) Psychological Review 3; Laurie A Rudman and Richard D Ashmore, ‘Discrimination and the implicit association test’ (2016) 10(3) Group Processes & Intergroup Relations 359. See, for discussion, Banks (n 1) Chapter 7.

57 See, for example, Henri Tajfel, ‘Experiments in intergroup discrimination’ (1970) 223(5) Scientific American 96; John C Turner, Rupert J Brown and Henri Tajfel, ‘Social comparison and group interest in ingroup favouritism’ (1979) 9(2) European Journal of Social Psychology 187. See, for discussion, Banks (n 1) Chapter 7.

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In respect of just world beliefs, I have not been able to identify research that considers the extent to which legal professionals—who make up the vast bulk of the decision makers in discrimination cases—hold strong or weak just world beliefs. Holding strong just world beliefs may affect the extent to which a decision maker accepts a respondent’s arguments justifying their alleged behaviour based on the merit, conduct or otherwise of the complainant. Given this lack of evidence, I am of the view that the most appropriate way to utilise this aspect of social psychology in the short term is to raise awareness of it with those judicial decision makers who deal with discrimination cases to help them to understand the potential for such beliefs to impact on attitudes to parties in discrimination cases. This would include both through ongoing judicial education and through express reference to the importance of considering expert evidence in the legislation. In the longer term, further research into legal professionals and just world beliefs would enable more evidence-based and targeted education and support.

The impact of strong just world beliefs on those experiencing discrimination would most likely be that they would form the view that their treatment was somehow deserved. This may be exacerbated by internalised prejudices, such as internalised ableism. If a person felt their treatment was deserved they are less likely to challenge the behaviour enabling it to continue unchecked, not only affecting that person but also others with the same disability. This aspect of the research into just world beliefs and its impacts highlights the importance of moving away from a model of enforcement that relies on individuals who are directly affected by discrimination.

A similar conclusion can be drawn from research into implicit attitudes and their impact in legal decision-making, although existing research has largely focused on jury decision making. While there is some evidence that judicial decision makers are less likely to be affected by implicit attitudes in determining guilt or innocence in respect of criminal offenders, other research shows a potential impact on sentencing decisions.58 Translating this research into the realm of non-criminal cases, the impact may be more likely on the level of compensation awarded to the complainant where a finding of discrimination has been made.

The third aspect—ingroup favouritism—may be relevant in a range of ways including, for example, the impact on decision makers of representation, and the lack of it for complainants, compensation awards, and the current individualised nature of claims.

The following data from Chapter 5 of my thesis, in which I analysed all federal discrimination case decisions up to and including 2018, the level of representation of complainants is markedly lower than that of respondents.59 Table 6 shows that, overall across the full period, complainants were represented in 56.8% of hearings, while respondents were represented in 89.8%. Arguably, most relevantly is the data for the Federal Court of Australia

58 Banks (n 1) Chapter 7, section on ‘Prejudice in the law and legal system’.

59 Banks (n 1) Chapter 5, section on ‘Legal representation’.

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(‘FCA’) and the Federal Circuit Court (now the Federal Circuit and Family Court) (‘FCCA’). Combined, these represent 444 judgments in which 57.7% of complainants were represented and 96.8% of respondents were represented (a different of almost 40%).

Table 6: Levels of representation

Court or Tribunal	Total Judgments	Complainant represented	% of hearings	Respondent represented	% of hearings
HREOC*	407	221	54.3	311	76.4
FCA	303	199	65.7	294	97.0
FMCA	407	237	58.2	389	95.6
FCCA	141	57	40.4	136	96.5
TOTAL	1,258	714	56.8	1,130	89.8

• Note: the published decisions for HREOC hearings do not always indicate whether parties are represented. While it is, in some cases, possible to determine party representation by reading the judgment, this is not always the case. The figures here for HREOC decisions report the numbers of cases in which the complainant’s and respondent’s representation was reported as a percentage of all cases. A total of 50 judgments provided no indication of complainant representation and 44 of respondent representation.

My research indicates that representation correlates with outcomes. Figure 4 shows that represented complainants had their complaint upheld in approximately 50% of cases, while unrepresented complainants had their complaint upheld in less than 10% of cases.

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Figure 4: Chart indicating difference in outcomes plotted against representation

Table 7 shows provides comparative data for the different federal discrimination cases by legislation. It shows the lower rate of complaints being upheld for disability and race discrimination cases and that where a complainant is unrepresented in a case under the DDA they have a rate of success of 1.7%. While this is higher than for age discrimination and LGBTI discrimination, neither of those can be relied on as there are not sufficient numbers of cases to provide meaningful data. It is, however, notably lower than the rate of success for complaints under the Racial Discrimination Act 1975 (Cth) (4.5%) and the Sex Discrimination Act 1984 (Cth) (4.0% for sexual harassment and 4.3% for all other forms of sex discrimination).

Table 7: Representation by alleged breach and outcome consolidated (federal courts only)

	Represented Upheld % (N)	Represented Dismissed % (N)	Unrepresented Upheld % (N)	Unrepresented Dismissed % (N)
Sexual harassment	65.8 (25)	34.2 (13)	4.0 (1)	96.0 (24)
Sex discrimination	61.0 (36)	39.0 (23)	4.3 (2)	95.7 (45)
Disability discrimination & harassment	32.3 (32)	67.7 (67)	1.7 (2)	98.3 (117)
Race discrimination & vilification	44.4 (20)	55.6 (25)	4.5 (4)	95.5 (84)
Age discrimination	0.0 (0)	100.0 (3)	0.0 (0)	100.0 (14)
LGBTI discrimination	0.0 (0)	100.0 (2)	0.0 (0)	0.0 (0)

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Several observations that relate to ingroup favouritism arise from these data.

Firstly, where a person/party has legal representation the key interactions for that party in the inquiry/hearing process are between that representative and the decision maker. The representative is, at least in one significant regard, an ingroup member for the decision maker: they are a legal professional, as are the decision makers.

Second, where a person does not have legal representation the key interaction is between them personally and the decision maker. Where the person is the complainant they must identify as a member of one or other protected attribute groups, most of which are marginalised groups. As such, complainants are in the vast majority of cases, at least in that significant regard, an outgroup member in respect of the decision maker.

Third, where a respondent organisation does not have legal representation but is represented by an officer or senior staff member of that organisation, that person will be at the centre of the key interactions of that party with the decision maker. Such senior staff or officers are likely to be business or professional people of some sort (including in-house counsel, chief executive officers, etc) and, as such, more likely to be an ingroup member for the decision maker. This likelihood is increased if that organisational representative also shares other attributes with the decision maker, such as gender, race or ethnicity, class, or education. It is notable that there are few judicial decision makers in Australia with significant disability, or from other than Anglo-Australian backgrounds. There is an increasing number of women among the ranks of judicial decision makers and this provides some room for speculation about the higher rates of success in sex discrimination and even higher rates in sexual harassment complaints. This is an area where much more research is needed to unpack the identity groupings of complainants in such complaints, of respondents and those who participate in the various legal processes on behalf of organisational respondents, and of legal representatives for the parties, and to examine any relationship with the identities of decision makers.

This higher likelihood of individual, unrepresented complainants being ‘outgroup’ to the decision maker and those representing respondents as ‘ingroup’ to the decision maker is relevant to the issue of decision making because of the research evidence that people consider members of their ingroup more credible, and favour ingroup members in terms of the allocation of rewards.

For the respondent represented by a person who is more likely to be perceived to be within the same identity group as the decision maker, there may be an unconscious favouring of their evidence and/or credibility and a greater tendency to disbelieve negative allegations against them and the entity they represent.

This research suggests two things: the urgent need to ensure representation for complainants in discrimination cases, and the need to ensure much greater diversity in decision makers in discrimination cases, including across the diversity of disability. This could include a return

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to the original approach in some Australian jurisdictions of multi-member decision-making panels that included both legal and other experts, including identified community experts.

It should be recognised that, while these are identified as key social psychological theories relevant to reforms, there is much benefit to be gained in discrimination law from much broader understanding of the richness of prejudice research in social psychology. Again, this points to the need for professional development for those determining discrimination cases, as well as those representing parties in discrimination cases.

Reform initiatives from other jurisdictions

While commentators in other countries express levels of criticism of their own discrimination laws, and there are various legal system differences at play, there appear to be some mechanisms adopted that may be useful to consider in the Australian context. It should be noted that many if not all of them operate in a legal system where there is an effective overarching protection of human rights.

United States of America

There are three mechanisms operating in the USA at the federal level that are of particular interest, given some of the areas needing reform identified by interview participants, and through the other research conducted in this thesis. These are the ‘pattern or practice reviews’, the work of the US Access Board, and the role of the Federal Department of Justice as a prosecutor.

Pattern or practice reviews

One mechanism adopted in the USA is pattern or practice reviews. Pattern and practice review provisions are found in various civil rights statutes in the USA60 and authorise the US Federal Attorney General or, in the case of employment discrimination, the Equal Employment Opportunity Commission to investigate and litigate cases involving ‘a pattern or practice of conduct’ that violates Constitutional or federal rights’.61 The work of investigating, litigating and resolving ‘pattern or practice cases’ is done by a specialist division in the Federal Department of Justice.

60 For example, under the 42 USC § 14141(a), the Attorney General is authorized to conduct pattern or practice reviews in respect of law enforcement; with the Equal Employment Opportunity Commission authorised to conduct pattern or practice investigations and litigation into employment practices; and the Attorney General authorised to conduct such investigations and litigation in respect of breaches of various provisions of that Act (excluding employment protections).

61 See, for example, US Department of Justice Civil Rights Division, The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994–Present (US Department of Justice, 2017) 3.

Dr Robin Banks: Submission to the review of the DDA 31

Cases62 conducted by this division have resulted in systemic outcomes for a range of identity groups. Many of these cases are finalised through a ‘consent decree’: and agreement between the respondent party and the Department of Justice as to what reforms will be implemented by the respondent party.63 While some of the cases focus on a specific instance of discrimination, many deal with systemic discrimination. As well as prosecuting cases, the Civil Rights Division also makes submissions in other cases in which discrimination is alleged.64

Chanin has studied the pattern and practice reviews of law enforcement, and their long-term impacts.65 His article provides some useful insights on design of this sort of process for the Australian context. Reviews of the US Equal Employment Commission’s ‘systematic program’ conducted in 200666 and 201667 also provide useful insights into the process as it pertains to employment. These reviews indicate need for further research but sufficient positive progress to indicate that a pattern and practice review approach could be a useful development for Australia.

An important aspect of such an approach is its capacity to challenge systemic or structural discrimination in ways that individual cases rarely do. This shortcoming of Australian discrimination law was consistently identified as a limit on effectiveness. Reforming the DDA to create a ‘pattern or practice review’ mechanism is recommended. Complementing it

62 See <https://www.justice.gov/crt/search-cases-and-matters> for access to the list of cases and matters in which the Division has been involved in the areas of disability, educational opportunities, employment litigation, federal co-ordination and compliance, housing and civil enforcement, immigrant and employee rights, voting, ‘special litigation’ and appellate cases.

63 See, for example, Consent Decree between the United States of America and Baltimore County, Maryland <https://www.ada.gov/baltimore_co_cd/baltimore_co_cd.htm> resolving a complaint about the County’s alleged violation of the Americans with Disabilities Act of 1990, 42 USC § 12101 (‘ADA (US)’) through a ‘pattern or practice of discrimination’ its employment practices ‘requiring certain employees to submit to unnecessary medical examination and unnecessary disability-related inquiries…’ and other practices. The Consent Decree specifies what policies the County will adopt and implement in respect of conducting medical examinations (see [11]). Other cases relating to the ADA (US) deal, for example, with communication for persons who are deaf or hard of hearing in a range of justice system settings: see, for example, <https://www.ada.gov/arlington_co_sheriff_sa.html>; with discrimination against applications for admission to the Bar for applicants with mental health disabilities: <https://www.ada.gov/louisiana-supreme-court_sa.htm>.

64 See, for example, the Statement of Interest filed in the case of Williams v the City of New York. In that Statement, the Department of Justice sets out its interpretation of the obligations of police in conducting policing activities ‘on the street’ and the obligation to make ‘provide auxiliary aids and services reasonable modifications to accommodate an individual’s disability’. <https://www.ada.gov/williams_new-york_soi.docx>.

65 Joshua Chanin, ‘Evaluating section 14141: An empirical review of pattern or practice police misconduct reform’ (2016) 14 Ohio State Journal of Criminal Law 67.

66 Leslie E Silverman et al, Systemic Task Force Report to the Chair of the Equal Employment Opportunity Commission (Equal Employment Opportunity Commission, 2006).

67 Jenny R Yang, Advancing opportunity: A review of the systemic program of the US Equal Employment Opportunity Commission (Equal Employment Opportunity Commission, 2016).

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would be the creation of a ‘binding undertaking’ mechanism, which was raised by several interview participants, as a form of consent decree.

While there have, in the past, been suggestions that the Australian Human Rights Commission should be empowered to prosecute breaches of federal discrimination laws, the approach of empowering the justice agency of government to undertake this role gives it an executive government status and centrality that would enhance the prominence of discrimination law, overcoming the perception that it is ‘voluntary law’ identified by the Community Expert cohort in the interviews.

US Access Board

In respect of systemic discrimination facing people with disability, of central importance is failure to provide non-discriminatory access to opportunities across the majority of life domains. The US Access Board is an independent US Federal Agency established under the Rehabilitation Act of 1973.68 It conducts research into accessibility and develops accessibility guidelines and standards. It does this across key life domains including transport, the built environment, and information and communication technology. It provides technical assistance and training and has a role in enforcing accessibility standards in respect of federally funded buildings and facilities.69

While the federal disability discrimination law in Australia includes the capacity of the federal government to make ‘Disability Standards’,70 there is no body equivalent to the Access Board in terms of either the specific function of developing such standards, providing advice and training, or enforcing the standards. Enforcement of Disability Standards in Australia is left to individuals personally affected by discrimination related to a failure to comply with the standards. This current arrangement was a matter of concern for interview participants, particularly members of the Community Experts cohort who were people with disability and is addressed in more detail in the submission made to the current review by the Australian Discrimination Law Experts Group (‘ADLEG’).

It is noted that the Access Board’s membership includes 13 members appointed by the President of whom the majority must be people with disability, along with the heads (or their high-level delegate) of 12 US federal departments or agencies.71 This approach is likely to ensure the Access Board has a recognised status and centrality within the US federal government.

68 Rehabilitation Act of 1973, 29 USC § 792 (‘US Rehabilitation Act’).

69 Ibid (b)(1) and Architectural Barriers Act of 1968, 42 USC §§ 4151–7 (‘Architectural Barriers Act’).

70 Disability Discrimination Act 1992 (Cth) pt 2 div 2A.

71 US Rehabilitation Act (n 68) (a)(1)(A) and (B).

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The establishment of a statutory body in Australia with similar membership, functions and powers as are found in the US Access Board would greatly enhance the development of national standards across a range of life domains affecting people with disability, and would shift the burden of enforcement to a more appropriate and resourced body.

US Department of Justice and Equal Employment Commission prosecutions

As well as the empowerment of the US Department of Justice in respect of pattern or practice reviews, and the US Access Board to prosecute breaches of standards, the US federal law empowers the US Department of Justice and the US Equal Employment Opportunity Commission to prosecute particular breaches of the Civil Rights Act of 1964.72

Canada

As with the USA, there are particular mechanisms operating in Canada at the federal level that are of potential relevance to responding to some of the areas needing reform identified by interview participants, and the other research conducted in this thesis. There are four of particular interest:

• Commission participation in hearings;
• employment equity legislation;
• pay equity legislation; and
• accessibility standards

Commission participation in hearing

For many years, the Canadian Human Rights Commission (‘CHRC’), the national statutory authority, appeared in most (if not all) hearings of discrimination complaints under the Canadian Human Rights Act.73 These hearings are conducted by the Canadian Human Rights Tribunal (‘CHRT’)—also established under that Act—and the CHRC appeared effectively as a friend of the court—amicus curiae—with it being required to ‘adopt such position as … is in the public interest having regard to the nature of the complaint’.74

In more recent years, this practice has become less universal, but the CHRC still appears in the majority of such hearings.75 These appearances benefit the development of Canadian discrimination law through a consistently high standard of legal argument particularly in respect of key interpretive issues arising in cases. Further research I have undertaken

72 Civil Rights Act of 1964, 42 USC § 1981a (‘Civil Rights Act’), which includes prosecutions under the ADA (US) (n 63).

73 Canadian Human Rights Act (n 19).

74 Ibid s 51.

75 A review of the 54 published decisions of the Canadian Human Rights Tribunal for 2021 and 2022 indicates that the Canadian Human Rights Commission was a party in all but one of those hearings: Canadian Human Rights Tribunal, Decisions <https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/nav_date.do>.

Dr Robin Banks: Submission to the review of the DDA 34

indicates that the rate of discrimination complaints being upheld in the Canadian federal system has remained relatively steady at around 60% over the same period that the rate in federal system in Australia has declined from around 60% to under 10%.76

Reforms in Australia to ensure the federal, state and territory statutory authorities have automatic standing and are resourced to appear in all hearings of discrimination cases would greatly enhance the quality of legal analysis presented to the decision makers and would reduce the impact of lack of representation of individual parties. This would be consistent with addressing at least in part concerns raised by a number of interview participants about lack of representation.

Employment equity legislation

Since 1986, Canada has had federal legislation setting up a mechanism to promote the achievement of employment equity, the Employment Equity Act (‘the Canadian EEA’).77 The purpose of the Act,78 includes that it:

… is to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and … to correct the conditions of disadvantage in employment experienced by women, Aboriginal peoples, persons with disabilities and members of visible minorities by giving effect to the principle that employment equity means more than treating persons in the same way but also requires special measures and the accommodation of differences.

Unlike the Australian Workplace Gender Equity Act 2012 (Cth) (‘WGEA’) which deals only with gender-based employment barriers, this Act deals with employment equity for the four listed groups. Each of these groups is defined and together they are referred to as ‘designated groups’. As with the Australian WGEA, the Canadian EEA limits private sector obligations to employers with 100 or more employees.

The Canadian EEA sets out obligations of federally regulated employers—public and private—and mechanisms to ensure compliance with those mechanisms. Part I sets out employer obligations to take specific actions including ‘identifying and eliminating employment barriers’ affecting members of designated groups, and ‘instituting such positive policies and practices and making such reasonable accommodations’ as are needed to achieve

76 In the early years of federal discrimination law in Australia, hearings were conducted by specialist ‘hearing commissioners’ and there were ‘counsel assisting’ in those hearings. There is a correlation in the decline in the rate of success of complainants in Australia with the shift of hearings to the federal court system and the loss of the counsel assisting function.

77 Employment Equity Act, RS 1985, c 23 (‘Canadian EEA 1985’) and provisions of the Financial Administration Act, RSC 1985, c F-11 (‘FAA (Can)’) repealed and replaced by the Employment Equity Act, SC 1995, c 44 (‘Canadian EEA’).

78 Canadian EEA (n 77), s 2.

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workforce representation of designated groups reflective of that group’s broader Canadian workforce representation.79

The same part—Part 1—requires employers to:

• collect workforce data and analyse these to identify designated group underrepresentation in their workforce’s various occupational groups;
• review their ‘systems, policies and practices’; and
• ‘develop an employment equity plan’.

The Act specifies what must be included in an employment equity plan, including ‘short-term numerical goals for hiring and promotion of persons in [under-represented] designated groups’.

All of this must be made available to employees and through an annual report to the Minister.

Under Part II, the CHRC is responsible for enforcement of most of the employer obligations under Part I.80 This includes a range of mechanisms such as compliance audits, written undertakings, and directions to employers. The Part also establishes Employment Equity Review Tribunals that can review a direction given and alleged non-compliance with a direction.81

Part III of the Canadian EEA details what actions are ‘violations’, the monetary penalties available to the Minister, the process for review of penalties imposed and their enforcement.

The extension of workplace equity measures to key equity-seeking groups in Australia is long overdue with Aboriginal people and Torres Strait Islanders, people with disability, and members of visible minorities continuing to experience systemic barriers to employment that may currently only be challenged through individual discrimination complaints. The Canadian EEA provides a model for reform. It is important to note that the enactment of the Canadian EEA is supported by significant additional resource allocation. Such reform would address, at least in respect of employment equity, concerns identified consistently by interview participants about Australian discrimination law’s failure to address systemic or structural discrimination.

Pay equity legislation

The systemic issue of unequal pay for work of equal value affects a range of equity-seeking groups in Australia including women, Aboriginal people and Torres Strait Islanders, people with disability and members of racial minorities. In Canada until recently the Canadian

79 Ibid s 5.

80 Ibid s 22(1).

81 Ibid ss 27–28.

Dr Robin Banks: Submission to the review of the DDA 36

Human Rights Act82 contained specific provisions making it a form of unlawful discrimination for employers to have differences in wages between male and female employees doing ‘work of equal value’.83 The provision goes on to specify how work value is to be assess and other factors.

There is a long history of legal action by the Canadian Human Rights Commission dealing with pay equity claims made on behalf of women.84 In the litigation of these claims, the Canadian Human Rights Commission is party, and its role is to represent the public interest.

In 2018, the Canadian Parliament enacted the Pay Equity Act,85 which again is limited in scope to dealing with pay equity on the basis of gender, and applies to all federally regulated public and private workplaces with 10 or more employees. This Act came into force in August 2021.

Part 1 of the Act requires relevant employers to have a pay equity plan and there are requirements to report to the Pay Equity Commissioner about a number of matters relating to this requirement. There are provisions requiring the employer to update its plan. Part 6 of the Act empowers the Pay Equity Commission to conduct compliance audits86 and, in the event of breaches of the Act or any orders previously made, may make orders for contraventions to be rectified.87 The Commissioner can also issue a Notice of Violation with a penalty.

82 Canadian Human Rights Act (n 19).

83 Ibid s 11(1).

84 The earliest decision dates back to 1986: Public Service Alliance of Canada v Qu’Apelle Indian Residential School Council, 1986 CanLII 75 (CHRT) (24 September 1986) <https://www.canlii.org/en/ca/chrt/doc/1986/1986canlii75/1986canlii75.html?>. Cases have involved a range of federally regulated employers, including the public service of Canada (Public Service Alliance of Canada v Canada (Treasury Board), 1987 CanLII 93 (CHRT) (15 July 1987), the Department of National Defence (Public Service Alliance of Canada v Canada (Department of National Defence), 1994 CanLII 236 (CHRT) (30 August 1994), Bell Canada (see, for example, the earliest of the many decisions involving Bell Canada: CTEA v Bell Canada, 1997 CanLII 24816 (CHRT) (4 June 1997), the Government of the North West Territories (Public Service Alliance of Canada v Northwest Territories (No 1), 1998 CanLII 29855 (CHRT) (7 December 1998), Canadian Airlines (Canadian Union of Public Employees v Canadian Airlines International Ltd, 1998 CanLII 674 (CHRT) (15 December 1998), Canada Post (Public Service Alliance of Canada v Canada Post Corporation, 2005 CHRT 39 (CanLII) (7 October 2005). The complaint against Canada Post was originally filed in 1983. The 2005 decision was appealed, and in 2011, the Supreme Court of Canada upheld the original 2005 Canadian Human Rights Tribunal decision: Public Service Alliance of Canada v Canada Post Corporation (2011) SCC 57 (17 November 2011). This resulted in a payment of $150 million to the members of the ‘largely female group paid less for work of equal value’.

85 Pay Equity Act, SC 2018, c 27, s 416 (‘Pay Equity Act’).

86 Ibid s 118(1).

87 Ibid ss 118(8) and 119.

Dr Robin Banks: Submission to the review of the DDA 37

This new approach in Canada may provide a useful model to consider as it develops as the issue of pay inequality in Australia remains a significant form of systemic discrimination affecting a diverse range of equality seeking groups.

Accessibility standards

One of the features of the enactment of the Disability Discrimination Act 1992 (Cth) (‘DDA’)88 is the inclusion of a mechanism to allow for the establishment of Disability Standards89 across all the areas in which discrimination is prohibited. In 2019, the Canadian federal parliament enacted the Accessible Canada Act,90 which among other things provides for the establishment of the Canadian Accessibility Standards Development Organization (called ‘Accessibility Standards Canada’), overseen by a board, the majority of whom are people with disability, and the appointment of an Accessibility Commissioner within the CHRC. The stated aim of the legislation is to achieve a barrier-free Canada for people with disabilities by 2040.

Accessibility Standards Canada has the role of establishing ‘accessibility standards’ to prevent, identify, and remove accessibility barriers facing people with disability, conducting research into identifying and removing barriers and prevention of new barriers. In this form accessibility standards provide guidance. They can, however, be regulated at which point they become mandatory for federally regulated entities.

The Act also requires federally regulated entities to consult with people with disability in order to establish accessibility plans. They must have a mechanism for receiving feedback on their plans and their performance and must report against those plans, again in consultation with people with disability.

The Accessibility Commissioner has enforcement powers in respect of the Accessibility Canada Act and regulations (including regulated accessibility standards) made under that Act. The Act also provides for penalties to be imposed for failure to comply with obligations, a mechanism for individuals to complain if affected by a breach of a regulation (including regulated accessibility standards) made under the Act, and for robust investigation and determination by the Accessibility Commissioner of such a complaint.

This Act takes the concept of ‘disability standards’ under Australian law further, with a dedicated independent agency responsible for the development of accessibility standards, the capacity to regulate those standards, requirements on federally regulated entities to pro-actively achieve compliance and stronger enforcement mechanisms. It does not attempt to extend the application of regulated standards beyond the scope of federally regulated entities and, in this regard, is narrower than the disability standards under the Australian DDA. While

88 DDA (n 70).

89 Ibid pt 2 div 2A.

90 Accessible Canada Act, SC 2019, c 10 (‘Accessible Canada Act’).

Dr Robin Banks: Submission to the review of the DDA 38

there are reasons that this model cannot be fully adopted in Australia, the establishment and resourcing of a dedicated standards development and research agency, the requirement of accessibility plans from federally regulated entities, and the enforcement powers are all aspects that could usefully be considered in Australia. To this end, following the developments in Canada and how the Canadian provincial governments respond to the federal developments will be useful in considering future reforms in Australia.

Ireland

Like the USA and Canada, Ireland has established a mechanism for the development of specific disability standards, along with a range of other functions that are aimed at achieving systemic or structural changes to address ongoing discrimination against people with disability. The National Disability Authority, established under the National Disability Authority Act 1999,91 has a range of statutory functions including research, assisting in the development of standards, development of codes of practice,92 and monitoring of the implementation of both standards and costs of practice. Of particular note is the establishment within the Authority of the Centre of Universal Design Excellence. The concept of Universal Design is of foundational importance to achieving barrier-free lives, particularly for people with disability. It is not, however, limited to achieving this for people with disability, the underlying concept being that “accessible or universal design”, which aims at ensuring that products, systems, services, environments and facilities can be used by persons from a population with the widest range of characteristics and abilities’.93

Again, this approach to funding targeted research to inform equity-promoting developments is important and using the universal design lens extends it beyond disability equity.

Other areas for reform

Building an understanding of the systemic nature of discrimination

Many of the critiques of discrimination law discussed earlier and the reforms proposed have identified that Australian approaches to discrimination law fail to comprehend the systemic and structural nature of discrimination against historically marginalised groups, many of whom remain marginalised – including people with disability.94 While some discrimination laws in Australia have systemic options available in respect of the orders that a judicial

91 National Disability Authority Act 1999 (Ireland).

92 This function is expanded by the Disability Act 2005 (Ireland), which provides in section 30 for the Minister to ask the National Disability Authority to prepare draft Codes of Practice in respect of accessibility of public services (including information to the public), and of heritage sites.

93 ISO/IEC, Guide for addressing accessibility in standards; Guide pour l’intégration de l’accessibilité dans les normes (No Guide 71, 1 December 2014), vi.

94 See, eg, Shreya Atrey, ‘Structural racism and race discrimination’ (2021) 74(1) Current Legal Problems 1.

Dr Robin Banks: Submission to the review of the DDA 39

decision maker can make, there appears to be a reluctance to use those options when a complaint is seen as being about an individual wrong done to the complainant.

The reluctance to make orders other than for financial compensation may reflect a lack of understanding among judicial decision makers of the patterned and persistent nature of prejudice and its manifestly discriminatory behaviours. The lack of understanding, in turn, may go to the question of the appointment of judicial decision makers and their experience of diversity and working with people with marginalised identities. The proposal above that judicial decision makers involved in determining discrimination matters be required to undertake regular professional development in respect of prejudice and discrimination could go some way to addressing this concern. The lack of understanding also points to the need for discrimination legislation to very clearly identify the need for decision makers to have regard to expert evidence on these matters.

In addition, consideration needs to be given to how the provisions relating to remedies could be more clearly framed to require judicial decision makers to consider whether or not a finding of discriminatory conduct indicates a systemic issue. Systemic issues may be systemic within the specific respondent’s scope of authority, or may be an industry- or society-wide issue.

The authority of the judicial decision maker to make specific orders is currently limited to orders that apply to the respondent. This does not, however, preclude the possibility of the judicial decision maker identifying a broader systemic issue and making recommendations to relevant authorities for actions. For this mechanism to be effective, legislation would need to clearly empower an agency to collect and monitor the responses of the relevant authorities to all such recommendations and have the expertise to work with relevant authorities to develop and implement the appropriate changes. Such an approach could usefully include a mechanism for reporting to parliaments on the work of this monitoring agency and what has been achieved through actions on the recommendations. Discrimination laws with a focus on systemic discrimination should properly have a focus on prevention of discrimination through identifying and addressing systemic discrimination, with recommendations from decision making bodies being one source of information about issues to be addressed.

To illustrate how this might work, consideration could be given to the nature of recommendations that may be made by Coroners. A key focus of coronial processes is on prevention of avoidable deaths. Apart from making findings in respect of the cause of the particular death and related details, Coroners are empowered to go further. So, for example, the Coroners Act 1995 (Tas) provides that:95

(2) A coroner must, whenever appropriate, make recommendations with respect to ways of preventing further deaths and on any other matter that the coroner considers appropriate.

95 Coroners Act 1995 (Tas) s 28.

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(3) A coroner may comment on any matter connected with the death including public health or safety or the administration of justice.

…

Similarly, but more expansively, the Coroners Act 2008 (Vic) provides that:96

(2) A coroner may make recommendations to any Minister, public statutory authority or entity on any matter connected with a death or fire which the coroner has investigated, including recommendations relating to public health and safety or the administration of justice.

(3) If a public statutory authority or entity receives recommendations made by the coroner under subsection (2), the public statutory authority or entity must provide a written response, not later than 3 months after the date of receipt of the recommendations, in accordance with subsection (4).

(4) A written response to the coroner by a public statutory authority or entity must specify a statement of action (if any) that has, is or will be taken in relation to the recommendations made by the coroner.

With this in mind, a reform to discrimination law to be considered is to include a provision requiring the judicial decision maker to consider the question of systemic discrimination and provide a mechanism for orders and recommendations. A possible approach is as follows:

1. Require the judicial decision maker to consider submissions from parties and third parties with relevant expertise on the extent to which the alleged discrimination is systemic in nature and/or has systemic impacts.
2. If there is a finding of discrimination, require the judicial decision maker to expressly determine whether or not the alleged discrimination is systemic in nature and give reasons for that decision.
3. Where there is a finding that the alleged discrimination is systemic in nature, require the judicial decision maker to make recommendations to relevant Minister, public authorities or private entities on actions to be taken to prevent the continuation of that systemic discrimination and to remedy the impact it has had to date on members of the affected group.
4. Require any entity that receives such a recommendation to provide a written response to the relevant discrimination statutory authority and, if a Minister or public authority, to the Parliament within a specified time and set out in that response what action has or will be taken in response to the recommendation.

Such an approach could also empower the relevant discrimination statutory authority to monitor such recommendations and responses.

The nature of the respondent

A striking aspect of discrimination complaints is the diversity of respondents. They range from individuals (probably most commonly co-workers or sole business operators), through

96 Coroners Act 2008 (Vic) s 72.

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to medium, and to large businesses and government. There are significant differences in the capacity—both financially and conceptually—of different respondents to understand and respond effectively to an allegation that they have discriminated.

For example, governments have legal expertise within their attorneys-generals’ departments and/or departments of justice (however described) and through the offices of solicitors general, and directors of public prosecution. They also often have ongoing arrangements with the larger, private law firms that have specialist discrimination law expertise. Similarly, large corporations usually have both a team of in-house lawyers and access to external legal experts. Both governments and large corporations also have high levels of legal literacy and the financial means to use these options without concern for their ongoing viability.

In contrast, small to medium businesses often have limited legal literacy, lack in-house lawyers and are more likely to access smaller private law firms for their advice. Such firms commonly maintain a level of generalist expertise across a broad spectrum of legal issues and have less specialist discrimination law expertise. Several interview participants observed the problem of parties being represented by lawyers with little or no expertise in discrimination law. For example, one Statutory Officer said:

… the first [issue] I’d name is the number of practitioners who come into the jurisdiction thinking they know all about it when they don’t. That’s a significant challenge for judicial officers. And so … that just requires better education/awareness of discrimination law amongst the legal profession because that has a significant disadvantage for parties, not just complainants… I’ve seen some respondents who are really badly represented.

Further research into the detail of discrimination claims may show patterns in terms of respondents and the nature of the claims against them. Some of this research is possible using the data sets compiled for my thesis. That analysis may indicate the potential to implement reforms to the ways in which different types of complaints are dealt with. This could include whether the alleged discrimination is highly personalised and incident-based, or, in contrast, systemic or structural in nature.

Reforms to deal differently with complaints involving organisational decision or practices could require the production of evidence during investigation of organisational practices in the challenged area of operations. Taking this a step further could involve using a model based on the existing action plan approach found in the DDA:97 respondents could be required to provide evidence of actions taken to identify potentially systemic barriers for members of the complainant’s attribute group, actions date to remove those barriers, and actions planned to complete such barrier removal and the timeframes for those actions. This approach is discussed in more detail in the submission of ADLEG and I endorse that approach and related recommendations.

97 DDA (n 70) pt 3.

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The language of the law

As identified in the interviews, the term ‘discrimination’ has strong moralising force and, as such, a finding of discrimination carries significant moral opprobrium. While this may be entirely appropriate in respect of deliberate and targeted discriminatory behaviour, it may interfere with decision making in respect of more subtle and inadvertent forms of discrimination, most commonly identified as indirect discrimination.

The concept of equal opportunity is intertwined with that of discrimination and, indeed, is found in the names of some of the statutes in Australia, yet not within the language of the provisions in those statutes. One potential reform is to characterise discrimination as including actions that create or maintain barriers to equal opportunity, and renaming indirect discrimination to remove the term ‘discrimination’ and instead reflect that idea of barriers to equal opportunity. Research into emotional responses—both conscious and unconscious—of respondents and decision makers to these different approaches would provide a useful insight and basis for considering implementing such a reform.

Enabling representative actions

One reform that is urgently needed is technical in nature and relates to the use of representative actions in discrimination law. Early in the operation of the Disability Discrimination Act 1992 (Cth), several significant complaints proceeded as representative complaints and resulted in systemic changes that benefitted members of identified groups. Perhaps the most significant of these is the case of Scott v Telstra.98 In that case, Mr Scott, a Deaf man, made a complaint against Telstra in respect of the equipment it made available to customers to access the telecommunications system that it operated. Mr Scott was joined by Disabled People’s International on behalf of Deaf people in Australia more broadly. As a result of that complaint, Telstra was required to implement a system for providing Deaf customers with a teletypewriter, a machine that enables a Deaf person to use a telephone. This complaint was determined during the period in which the Human Rights and Equal Opportunity Commission had authority to hear and determine complaints.

Since the complaint hearing and determination function has transferred to the Federal Court system (including the Federal Magistrates’ Court and more recently the Federal Circuit Court), such complaints have become unworkable because the provisions in the Federal Court Rules deal only with class actions and have very specific (and different) requirements to the provisions in the Australian Human Rights Commission Act 1986 (Cth) that provide for representative complaints. As a result, while an organisation or individual can make a representative complaint under the Australian Human Rights Commission Act, that complaint cannot be dealt with as a representative complaint in the Federal Court. This problem came

98 Geoffrey Scott v Telstra Corporation Limited; Disabled People’s International (Australia) Limited v Telstra Corporation Limited (Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, No H95/34, H95/51, 19 July 1995) (‘Scott v Telstra’).

Dr Robin Banks: Submission to the review of the DDA 43

to light in the case of Access for All Alliance (Hervey Bay) v Hervey Bay City Council.99 In that case, the complainant organisation was found not to have standing to pursue the complaint.

Technical changes to the Federal Court Act and Rules are therefore necessary to ensure that complaints made as representative complaints under section 46PB the Australian Human Rights Commission Act 1986 (Cth) can proceed on that basis to full hearing. In addition, to reflect the systemic disadvantage experienced by many individuals who experience discrimination, the representative procedures should expressly permit an organisation to pursue a complaint on behalf of people whose interests the organisation is established to pursue. This was possible in the Scott v Telstra case, but the later case of Access for All Alliance v Hervey Bay indicates that reforms are needed to ensure organisational standing.

Prosecutorial approach

Many people, including participants in my interviews, have raised the possibility of strengthening enforcement of discrimination laws by empowering a statutory authority—either those already existing under discrimination laws or another—to prosecute certain types of discrimination claims. This has particularly been raised in respect of breaches of disability standards made under the Disability Discrimination Act 1992 (Cth). Such an approach would alleviate the burden of already-disadvantaged complainants with disability to litigate claims in respect of breaches of minimum standards set by government.

Of relevance here is the approach taken in the USA in federal discrimination claims, where the Federal Department of Justice has a role in prosecuting systemic breaches of discrimination laws. This separates out those individual, inter-personal complaints from others and provides a mechanism to alleviate the burden on the individual group members. It also provides a strong message to society that this is an area of law that government takes seriously, and that the government considers it important to resource the enforcement of the law.

To implement this reform, it would be necessary to determine the appropriate prosecutorial body, whether it be the existing discrimination statutory authorities at the state, territory and federal level, or a generalised prosecutorial body such as a unit within each Attorney-General’s department or within the office of the Director of Public Prosecutions. A generalist approach would strengthen community perceptions that discrimination is a public wrong that is a matter of serious concern to the state. However, such a change would require a significant cultural shift within the relevant authorities.

An associated reform could be to have a different mechanism for unrepresented individual complaints focusing on dispute resolution at an early stage with minimal formality (reverting to the original approach intended for discrimination cases), and identification by the statutory

99 Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615 (2 May 2007) (‘Access for All Alliance v Hervey Bay’).

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authority of complaints with a systemic element for either prosecution or referral to expert legal representation panels.

List of recommended reforms

The table below (

Dr Robin Banks: Submission to the review of the DDA 45

Table 8) summarises the reform ideas developed in my thesis, as well as summarising key reforms identified through the research conducted for that thesis. This includes the consideration of comprehensive legislative reviews, the cohort interviews, and consideration of approaches in other countries. I have amended the language of those recommendations to focus specifically on disability discrimination under the DDA. I have also added Recommendations 26 to 30 to reflect other reforms needed.

Dr Robin Banks: Submission to the review of the DDA 46

Table 8: Reform proposals

#	Basis	Reform
1.	Social psychology: Stereotype Content Model100	Building the understanding of the diversity of prejudice-based conduct: Amend definitions of discrimination to be inclusive of specified forms of conduct identified through comprehensive review of research on discrimination and prejudice-based conduct in social psychology (see Table 5: Examples of possible framing to enhance tests for discrimination above).
2.	Social psychology: Stereotype Content Model101	Ensuring empirical evidence is considered: Specify that discrimination law decision makers are to have regard to contemporary research on the diverse nature of discriminatory conduct, and are empowered to require such evidence be presented.
3.	Social psychology: harms, Stereotype Threat	Ensuring empirical evidence is considered: Specify that discrimination law decision makers are to have regard to contemporary research on the impacts of stereotype threat102 and different harms experienced by those who are subjected to discrimination,103 and are empowered to require such evidence be presented.
4.	Social psychology: Stereotype Content Model, harms, stereotype threat, intersectionality	Building the relevant research base: Establish a research capacity to update and expand the empirical evidence of: - the nature of discriminatory conduct,104 - the health, economic and social impact of such conduct,105 - intersectional discrimination.106

100 Fiske et al (n 28).

101 Ibid.

102 See, for example, Joshua Aronson and Matthew S McGlone, ‘Stereotype and social identity threat’ in Todd D Nelson (ed), Handbook of prejudice, stereotyping, and discrimination (Taylor & Francis Group, 2009), 153

103 See, for example, Swim and Stangor (n 50); Schneider, Swan and Fitzgerald (n 50); Chakraborty and McKenzie (n 50); Hatzenbuehler, Keyes and Hasin (n 50); Pascoe and Smart Richman (n 50).

104 Fiske et al (n 28).

105 See, for example, Swim and Stangor (n 50); Schneider, Swan and Fitzgerald (n 50); Chakraborty and McKenzie (n 50); Hatzenbuehler, Keyes and Hasin (n 50); Pascoe and Smart Richman (n 50); Mark L Hatzenbuehler, Susan Nolen-Hoeksema and John F Dovidio, ‘How does stigma “get under the skin”? The mediating role of emotion regulation’ (2009) 20(10) Psychological Science 1282; Aronson and McGlone (n 102).

106 Crenshaw (n 30); Elizabeth R Cole, ‘Intersectionality and research in psychology’ (2009) 64(3) American Psychologist 170; Jessica D Remedios, Alison L Chasteen and Jeffrey D Paek, ‘Not all prejudices are experienced equally: Comparing experiences of racism and sexism in female minorities’ (2011) 15(2) Group Processes & Intergroup Relations 273; Jessica D Remedios, Samantha H Snyder and Charles A Lizza, ‘Perceptions of women of color who claim compound discrimination: Interpersonal judgments and perceived credibility’ (2016) 19(6) Group Processes & Intergroup Relations 769. From the perspective of discrimination law, see, for example, Iyola Solanke, ‘Stigma, synergy and intersectionality’, Discrimination as stigma: A theory of anti-discrimination law (Hart Publishing, 2017) 133; Atrey, Intersectional discrimination (n 30).

Dr Robin Banks: Submission to the review of the DDA 47

#	Basis	Reform
		This should particularly include research into these issues for groups whose experience has not previously been the subject of sufficient Australian research.
5.	Social psychology: Stereotype Content Model and others	Ensuring empirical evidence is considered: Consider mechanisms to require decision makers dealing with discrimination complaints to participate in regular professional development programs on prejudice and discrimination developed in conjunction with and informed by researchers in these fields within psychology.
6.	Social psychology	**Recognising harms:**107 Establish a Compensation Scheme that provides for compensation for the long-term impacts of discriminatory marginalisation to supplement individual awards of damages made against respondents.
7.	Social psychology: Just World Belief108	Ensure professional development for decision makers: Such professional development in discrimination law should include content on just world belief and its impact on attitudes to and of parties in discrimination cases.
8.	Social psychology: Just World Belief	Encourage research into just world belief and legal professionals.
9.	Social psychology: Just World Belief; Implicit attitudes;109 ingroup favouritism;110 stereotype threat111 Reform initiatives from other jurisdictions: Canada; USA	Amend discrimination law to empower an independent statutory body to prosecute discrimination claims, both individual and systemic.
10.	Social psychology: Just World Belief; Implicit attitudes; ingroup favouritism; Interviews	Ensure competent legal representation is available for all parties, particularly complainants, irrespective of their capacity to pay. This could be achieved through all legal aid bodies in Australia having both specialist expertise in-house and through grants of aid to community-based and private legal practitioners with discrimination law expertise. Given the current option of complaining under either federal or state/territory laws, this representation should be jointly funded by the two levels of government.
11.	Social psychology: ingroup favouritism	Explore ways to ensure greater diversity among decision makers in discrimination cases including through the establishment of

107 See, for example, Hatzenbuehler, Keyes and Hasin (n 50); ; Hatzenbuehler, Nolen-Hoeksema and Dovidio (n 105); Aronson and McGlone (n 102).

108 Lerner (n 55); Oldmeadow and Fiske (n 55); Malahy, Rubinlicht and Kaiser (n 55).

109 Banaji, Hardin and Rothman (n 56); Greenwald et al (n 56); Rudman and Ashmore (n 56).

110 Tajfel (n 57); Turner, Brown and Tajfel (n 57).

111 Aronson and McGlone (n 102).

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#	Basis	Reform
		multi-member decision-making panels with diverse community membership, including people across the spectrum of disability.
12.	Social psychology: Heuristics and decision making, and social psychology generally	Encourage or require students in discrimination law courses and legal professionals working in discrimination law to complete specific course content on contemporary social psychological research into prejudice.
13.	Social psychology: Reward incentives, and social psychology generally; Interviews	Amend either the language of ‘indirect discrimination’ or its definition to include conduct that establishes or maintains barriers to equal opportunity.
14.	Reform initiatives from other jurisdictions: USA; Interviews	Establish a legislative mechanism for an independent ‘pattern or practice review’ mechanism.
15.	Reform initiatives from other jurisdictions: USA; Interviews	Establish a ‘binding undertaking’ mechanism with audit of compliance and enforcement by an independent statutory authority.
16.	Reform initiatives from other jurisdictions: USA; Canada; Ireland; Interviews	Establish a specialist statutory body in Australia empowered to establish ‘accessibility’ or ‘disability’ standards for achieving a society free of barriers for people with disability. Such a body should have a governance structure with majority representation of people with disability, along with heads of all federal government agencies. It should be fully resourced to conduct research into barriers, their prevention and removal.
17.	Reform initiatives from other jurisdictions: Canada.	Mandate that, at minimum, federally regulated entities develop, in consultation with people with disability, ‘accessibility’ or ‘disability’ plans to achieve the prevention and removal of barriers for people with disability, and require regular reporting on actions taken to progress those plans.
18.	Reform initiatives from other jurisdictions: USA; Canada; Ireland; Interviews	Empower an independent statutory body in Australia to monitor and enforce compliance with disability standards.
19.	Reform initiatives from other jurisdictions: Canada; Interviews	Amend discrimination laws in Australia to give the federal, state and territory statutory authorities automatic standing to appear in all hearings of discrimination cases, and ensure resourcing of this as a core function.
20.	Reform initiatives from other jurisdictions: Canada	Establish workplace equity legislation for all key equity seeking groups in Australia Aboriginal people and Torres Strait Islanders, people with disability, and members of visible minorities; using the Canadian Employment Equity Act as a model for such reform.

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#	Basis	Reform
21.	Reform initiatives from other jurisdictions: Canada	Monitor the impact of the Canadian Pay Equity Act,112 on the gender pay gap in Canada with a view to implementing similar a similar legislative framework in Australia in respect of gender and other attributes where a persistent pay gap exists (including disability).
22.	Reform other initiatives: other	In respect of the hearing and determination of discrimination complaints, amend the legislation to: 1. Require the judicial decision maker to consider submissions from parties and third parties with relevant expertise on the extent to which the alleged discrimination is systemic in nature and/or has systemic impacts. 2. If there is a finding of discrimination, require the judicial decision maker to expressly determine whether or not the alleged discrimination is systemic in nature and give reasons for that decision. 3. Where there is a finding that the alleged discrimination is systemic in nature, require the judicial decision maker to make recommendations to the relevant Minister, public authorities or private entities on actions to be taken to prevent the continuation of that systemic discrimination and to remedy the impact it has had to date on members of the affected group. 4. Require any entity that receives such a recommendation to provide a written response to the relevant discrimination statutory authority [the AHRC] and, if a Minister or public authority, to the Parliament within a specified time and set out in that response what action has or will be taken in response to the recommendation. Such an approach could also empower the relevant discrimination statutory authority to monitor such recommendations and responses.
23.	Reform other initiatives: other	Mandate that, at minimum, federally regulated entities develop, in consultation with disability representative organisations, disability action plans to achieve the prevention and removal of barriers for people with disability in respect of employment and service delivery (including, for example, information provision, and performance of mandatory or statutory duties). The priority for these plans should be in respect of those disability cohorts that continue to experience sustained and systemic patterns of discriminatory experiences and outcomes.
24.	Reform other initiatives: other	Encourage the development by all entities of action plans to achieve the prevention and removal of barriers affecting attribute groups. As with the DDA, such an approach could be encouraged through being able to rely on evidence of an action plan and actions taken in compliance with that plan in defending a claim involving systemic discrimination.

112 Pay Equity Act SC 2018, c.27.

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#	Basis	Reform
25.	Reform other initiatives: other	Specify investigation powers that include the production of evidence relating to action plans including work done to identify barriers to equality for the particular attribute group, actions taken to remove those barriers and the continuing engagement with members of the attribute groups in the development and monitoring of such plans.
26.	Reform initiatives: Interviews	Amend the DDA to ensure that the onus to proof shifts as recommended by ADLEG in its submission.
27.	Reform initiatives: Interviews	Amend the DDA to include a clear reference to the Convention on the Rights of Persons with Disabilities in the objects provision and require all provisions under the DDA to be interpreted consistent with that Convention.
28.	Reform initiatives: Interviews	Amend the DDA to include a positive duty as recommended by ADLEG in its submission.
29.	Reform initiatives: Interviews	Amend the DDA and disability standards made under the DDA to remove the word ‘reasonable’ in respect of adjustments as recommended by ADLEG in its submission.
30.	Social psychology: Stereotype Content Model and others	Amend the DDA to specify in the long title and objects provision that its purpose is to provide effective mechanisms to challenge discriminatory actions, practices and attitudes based in prejudice.

Ideas for future research

The many reforms recommended by legislative reviews and by interview participants highlight the need for concerted research on whether reforms make a meaningful difference to the effectiveness of discrimination law in challenging individual and systemic discrimination.

Such research should include consideration of the practicality of implementing the reforms, and the ease with which such reforms would achieve political support, without which reforms are not possible. The range of reforms raised by interview participants provides a particularly rich source of ideas.

The reform ideas developed in my thesis from the social psychological research and from foreign jurisdictions also highlight the need for further research to inform the development of a more empirical approach in the law to the prevention and remedying of discrimination. Apart from those research areas identified in

Dr Robin Banks: Submission to the review of the DDA 51

Table 8 above, others identified in this submission include the following:

Table 9: Other future research

Academic area	Data	Focus
Law & psychology	Case data	Collate and analyse data on the identity groupings of complainants, respondents, representatives and decisions makers, particularly in sex discrimination and sexual harassment, to identify any patterns that may help explain differences in rates of success.
Law	Policy and practice reviews	Collate data on short, medium and long term impacts of pattern and practice processes if implemented.
Law & psychology	Testing	Develop and test responses—both conscious and unconscious—of respondents, lawyers and decisions makers to different terms to described ‘discrimination’, particularly indirect discrimination.

Conclusion

This submission proposes a range of potential reforms, both statutory and procedural. While the core focus is on reforms that are built on the social psychological research into prejudice and discrimination, attention has also been given to other sources for reform ideas, including from the interview participants, previous comprehensive reviews of Australian discrimination law, and approaches in other similar foreign jurisdictions.

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