It's About Time - For a New Regulatory Approach to Equality

Abstract

In 2007, the Human Rights and Equal Opportunity Commission (HREOC) concluded that 'it's about time for a new approach' to the problems faced by men and women in respect of work and family responsibilities in Australia. In its report, 'It's About Time: Women, Men, Work and Family,' HREOC recommended the enactment of new federal legislation to promote cultural change through greater protection and support for workers with family responsibilities. The Family Responsibilities and Carers' Rights Act would serve to extend the current federal prohibition of discrimination on the basis of family responsibilities and provide employees with a right to request flexible working arrangements.

While the proposal is welcome there continues to exist a pressing need to consider more fundamental regulatory reform of anti-discrimination laws. Adopting the existing anti-discrimination law framework, HREOC recommends victim enforcement of individual rights as the mechanism for achieving equality for workers with family responsibilities: a rights-based approached which has achieved only limited success in respect of various other groups (eg, women, racial minorities) already covered by anti-discrimination legislation. The case for change is made out, but not for that which is reliant upon victims to achieve it. The key weakness of the proposed law is that it relies too heavily upon the existing anti-discrimination law model, which has well-researched limitations. In this way, the proposal does not sufficiently reflect the body of research surrounding effective regulation for change, failing to offer a truly new approach.

In this article, I explore the basis and nature of HREOC's legislative proposal, its merits and limitations, the assumptions that underpin it, and research on alternative regulatory innovations in other jurisdictions. Other jurisdictions are beginning to recognize that a rights or fault-based approach to achieving equality is limited and needs to be supplemented with regulatory mechanisms requiring action of those in positions to promote equality, not only those who are victims of inequality. The positive duties recently introduced in the United Kingdom reflect a move to a more proactive regulatory approach to achieving equality and offer a contrast to the Australian recommendation.

Keywords: equality, work, family, Australia, family responsibilities, discrimination, regulatory, law