Riding Towards Inclusion in the Film Industry: Quotas and Special Measures Under Australian Discrimination Law

23(2) Media and Arts Law Review 143, 2019

U of Melbourne Legal Studies Research Paper No. 859

34 Pages Posted: 16 Oct 2019 Last revised: 3 Dec 2019

See all articles by Monica Brierley-Hay

Monica Brierley-Hay

The University of Western Australia Law School

Liam Elphick

The University of Western Australia Law School; Melbourne Law School; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: 2019

Abstract

Diversity has long been a problem in the film industry, whether for actors, directors, or crew members. Various groups are under-represented in film, particularly women, persons with a disability, LGBTI+ persons, and those from diverse racial, cultural and linguistic backgrounds. To address this, Academy Award winner Frances McDormand used her 2018 Oscars acceptance speech to draw attention to inclusion riders. An inclusion rider is a clause that actors can incorporate into their contracts with film companies to require the film company to hire a more diverse range of candidates both on- and off-screen in a way that reflects the demography of a film’s setting. Various actors and film companies have since flagged their plans to implement inclusion riders, yet their lawfulness remains largely unexamined. We consider how Australian discrimination law would apply to inclusion riders, focusing particularly on the ‘special measures’ provisions found in the four federal discrimination Acts. These provisions exempt otherwise unlawful discriminatory acts where they seek to further the opportunities of historically disadvantaged groups, thereby allowing for the use of quotas and other positive action in certain circumstances. We argue that inclusion riders would likely be lawful under these provisions, but that the inconsistency and complexity of special measures provisions in Australia renders further reform necessary in order to encourage and empower actors and film companies to take up inclusion riders.

Keywords: discrimination law, inclusion rider, film industry, special measures, quotas

JEL Classification: K10, K31

Suggested Citation

Brierley-Hay, Monica and Elphick, Liam, Riding Towards Inclusion in the Film Industry: Quotas and Special Measures Under Australian Discrimination Law (2019). 23(2) Media and Arts Law Review 143, 2019; U of Melbourne Legal Studies Research Paper No. 859. Available at SSRN: https://ssrn.com/abstract=3465273

Monica Brierley-Hay

The University of Western Australia Law School ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

Liam Elphick (Contact Author)

The University of Western Australia Law School ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

HOME PAGE: http://https://research-repository.uwa.edu.au/en/persons/liam-elphick

Melbourne Law School ( email )

185 Pelham Street
Melbourne, VIC 3010
Australia

HOME PAGE: http://https://law.unimelb.edu.au/students/grd/students/liam-elphick

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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