Vol 37, No 1 (2020)

Despite the rhetoric of equality that infuses anti-discrimination legislation, a close analysis reveals that it is in-equality that is invariably privileged. With reference to the Australian example, this introductory article will show how the paradox is played out at multiple sites in terms of both form and substance, such as through the individualism and confidentiality of the complaint-based mechanism. A striking exclusion from the legislation is the attribute of class, the most significant manifestation of social inequality, which remains ineffable even when it significantly shapes other attributes. The prevailing political backdrop of neoliberalism plays a significant role in promoting inequality through competition policy and profit maximisation. Powerful corporations not only endeavour to resist transparency, but they also tend to oppose proactive measures in favour of substantive equality. The contradictions of anti-discrimination legislation thereby sustain in-equality while simultaneously espousing the rhetoric of equality.

I argue that a general initial case for pay transparency can be made given the role played by transparency of information about prices in bringing markets closer to the ideal of competition or equilibrium price. This initial case might then be limited or enhanced depending on more specific considerations about the status of information about pay in particular. Privacy considerations seem to count against pay transparency, but I argue here that the context of pay information lacks some features present in other contexts in which appeals to privacy have force. Building on work by Estlund, Moriarty, Caulfield, and others, I argue that pay transparency may be favoured by considerations relating to personal autonomy in labour markets. Finally, I argue that pay transparency may contribute towards the realization of conditions of publicity, particularly relating to the value of citizens’ assurance about each other’s tax compliance.

What if data used to inform knowledge is incomplete or false, leading to misunderstandings about the social world? In Australia, what is known about ethnic diversity is based on an outdated definition and inadequate measure of multiculturalism. This article explores how gaps in data can lead to and further entrench disempowerment. Using a sociodemographic approach, this paper examines the ways in which data can create and maintain poor representation; via collection, analysis and infrastructure. This paper demonstrates that what is counted matters for equality, and lays out what is necessary to help promote ethnic diversity through data collection.

Understanding the processes contributing to equality of opportunity and outcomes in contemporary societies is at the core of the discipline of sociology. This paper illustrates the value of administrative data to underpin research aimed at identifying, monitoring, and addressing socio-economic disparities between population groups. To accomplish this, I draw on three case studies of recent empirical research leveraging administrative data to examine processes contributing to the (re)production of inequalities by sexual orientation. Collectively, the three case studies exemplify how data sources that fall within the broad category of ‘administrative data’ can help social researchers generate new, policy-relevant knowledge on socio-economic inequalities, as well as robust information to contextualize public and legislative debate. The paper concludes with a discussion of the promises and challenges of using administrative data to understand inequalities by sexual orientation, as well as inequalities between other minority and majority groups.

Although we live in an era in which government and private organisations collect large amounts of data, this has not filtered through to anti-discrimination and equality law in Australia. Government and its agencies have little incentive to collect information, nor does business. Neither group bears any obligation to tackle discrimination if they detect it. Yet the self-regulating enforcement model used in equality law is premised on the idea that information will be available to aid voluntary compliance. This article examines the nature of the data organisations that are currently required to collect and identify significant information gaps. It argues that it is not enough to simply fill those gaps with information; increased data collection needs to be accompanied by the obligation to address inequality if that is what the data reveals.

Transparency is a radical expectation in the context of equality law. In a system highly dependent on individual enforcement, the lack of transparency in the treatment of individual claims dramatically limits the potential of equality law to achieve systemic change. Overcoming discrimination that is systemic, embedded, and pervasive requires moving beyond confidential mechanisms for addressing discrimination. Given that the implementation of workplace equality law occurs in practice at the organisational level, there is a growing need to focus on what employers are actually doing to achieve equality, and how their practices are accountable to those affected and the broader community.

The state, in particular through its ability to enact legislation, has the capacity to either perpetuate or confront forms of systemic and structural disadvantage and inequality. Increasingly, transparency is being seen as key to designing effective equality law, and the ambitious new Gender Equality Act 2020 (Vic) (The Act) is a leading example. The Act seeks to break down outdated stereotypes and systemic inequalities—particularly those that relate to gender. Central to the design of the Act is its commitment to transparency. The Act mandates a level of organisational transparency about the advancement of gender equality that has not previously been required in the public sector in Victoria, or in the rest of Australia. This transparency underpins the ambitious objectives of the Act and is integral to the obligations it puts in place to drive progress towards gender equality. A focus on transparency serves four main purposes in accelerating the pace of change towards a more gender-equal society and providing leadership in this arena. Firstly, it functions as a practical tool to encourage knowledge-sharing and innovation along the path to gender equality. Secondly, transparent reporting of defined entities’ progress towards gender equality acts as a form of pressure to make material progress, instead of participating in box-ticking exercises. Thirdly, the transparency within the Act is a marker of ethical leadership, by democratising knowledge in this space. Lastly, a commitment to transparency is a sign of good governance; it both allows the public to access and interrogate public sector progress towards gender equality and ensures that government plays a leadership role in pushing for positive social change. The Gender Equality Act 2020 (Vic) is thus an example of how laying bares our challenges related to organisational gender equality can help drive progress towards a more gender-equal future.

The use of statistical data to prove racial discrimination by police in individual cases is relatively novel in Australia.  Based on a survey of international strategies, this article argues that statistical and social science data can play three critical evidential roles in litigation. Firstly, it can form part of the social context evidence used to influence the inferences that can be drawn from other evidence led in a case.  Secondly it can influence the cogency of the evidence required for claimants to meet the standard of proof, and thirdly, it can be used to shift the burden of proof.  Using these evidential methods, evidence of institutional racism can be used to assist in making findings of discrimination in individual cases. This article speculates on the role that statistics could have played in the Haile-Michael race discrimination claim that settled in 2013, and in the 2019 inquest into the death of Tanya Day.

While telemedicine and M Health Apps have been credited with increasing life expectancy and quality of life, the Coronavirus pandemic has illustrated many challenges in the efficient application of healthcare technology. For example, digitisation has been a successful addition to healthcare services but has also brought new and unforeseen problems such as outdated anti-virus or anti-malware software issues. Healthtech Law and Regulation addresses these new challenges, providing an overview of international treaties and European Union (EU) directives and regulations, as well as domestic European and United States (US) legislation; identifying gaps in existing laws and policies. Though primarily covering EU and US health law and regulation, this edited collection will be of interest to regulators and researchers in all jurisdictions. 

Regulatory triggers can provide a powerful motivator for transparency, including its implied expectations of openness and accountability. This includes section 151 of the Equal Opportunity Act 2010 (Vic), which enables the Victorian Equal Opportunity and Human Rights Commission to review a duty holder’s “programs and practices” to determine their compliance with the Act. This article argues that the exercise of the review function in section 151 supports transparency through the level of access to people and information it affords and the ability for the Commission to critically and openly assess the state of equality in a duty holder’s organisation. This level of access and openness encourages accountability and helps to persuade and motivate duty holders to take measurable steps towards achieving equality and compliance with the Equal Opportunity Act. Surprisingly little is known, however, about this regulatory tool and its facilitative approach to compliance. This article seeks to build awareness and understanding of the review function and critically analyses its potential to promote transparency and equality. It suggests that the review function is a tool deserving of greater consideration, particularly by duty holders, in efforts to achieve substantive equality.

Freedom of information (FOI) regimes are a hallmark of modern democracies and a crucial element of any government transparency and integrity framework. This paper examines how government responses to COVID-19 brought the need for greater transparency of government decision making to the fore. Genuine engagement with FOI regimes provides a fundamental mechanism to keep government decision makers accountable and increases and maintains trust capital between citizens and the state. In turn, governments rely on this trust capital to take strong and decisive action—as highlighted by global responses to COVID19. The author argues that FOI is an important mechanism to challenge poor government decision making, and ultimately enhance the long-term health of our democracy.

This paper considers the availability and use of data in parental leave policy making and monitoring in Australia. The terminology of parental leave is discussed and its use in Australia is explained as referring to paid and unpaid leave for mothers, fathers and partners at the time of birth or adoption of a child and usually covering the first 12–24 months after the birth or adoption. It includes entitlements in labour law legislation, the federal government’s Paid Parental Leave scheme and separate employer provisions. The paper outlines the range of data sources and how they were used to construct a case in favour of the introduction of the Paid Parental Leave scheme in 2010 and to monitor its implementation, as well provision of paid parental leave through enterprise bargaining and company policies. The paper also explains how data was used in a deliberately constructed way to defend the Paid Parental Leave scheme when it was under threat of significant change. In conclusion the paper draws attention to the way terminology is shifting, to how data illuminates the gendered use of parental leave in Australia and argues for the need for refreshed data on parental leave availability, access and use in Australia.

Science in Australia Gender Equity (SAGE) began as a Pilot program in 2015. It was modelled on the UK’s Athena Swan Charter (Advance HE), a framework for improving gender equity and diversity in science, technology, engineering, mathematics and medicine (STEMM); specifically, within higher education and research.

The literature of higher education widely notes the importance of reflection and reflective practice as a critical aspect of professional practice. This enables learners to act and think professionally by combining theory and practice. As such, many teaching and learning strategies and activities to enhance reflection have been incorporated into professional degrees. Notwithstanding the support for reflective practice, critical reflection remains a contested concept with a lack of consensus as to its definition and best practice. The frameworks chosen by higher institutions may be influenced by course context, ideology and expectations around the course/unit learning outcomes. This paper commences with a discussion of reflection and critical reflection. By examining different notions of reflection, the paper will discuss why the concept of critical reflection is important for practitioners in the 21st Century. It is advanced that critical reflection can encourage learners to better understand professional practice by linking discipline knowledge and theories to professional practice and wider insights. Whilst reflective practice is a desirable capability for law graduates, legal education in Australia largely fails to incorporate and assess critical reflective skills, as it is directed at producing a technically skilled and ideologically compliant legal workforce. The authors advance that adherence to a solely doctrinal approach to legal education is no longer justified in the 21st Century, which is characterised by profound change and uncertainty that impacts on the legal profession and society at large. Law schools have a positive role to play in the education of their students through instilling doctrinal knowledge, professional practice skills and critical thinking skills, which foster an understanding and analysis from multiple perspectives, to ensure that law graduates are able to holistically understand the reasons for changes within their profession and effectively adapt to change through informed choices. The final part of the paper outlines how critical reflection can be implemented in legal education.

Human vulnerability is at the core of refugee status determination and human rights provides its regulatory frame, so to speak of artificial intelligence within the refugee context may seem troubling at least, dystopian at worst. But the rapid development of artificial intelligence in government decision-making will unlikely be slowed by such ethical quandaries. The potential integration of automation, machine learning and algorithmic decision-making into global migration regulation and policy has far-reaching implications for refugee law. The consequences for efficiency, legality, accountability, transparency and human rights warrant a timely and critical conversation about the possible impact of existing and future technologies on refugee status determination. Predictive analytics, biometrics, automated credibility assessments and algorithmic decision-making are technologies that could have utility for refugee status determination processing, credibility assessments and decision-making. Each technology is considered through a lens of ‘risk and potential’, which is measured in terms of ‘fair, efficient and effective’ refugee status determination. The opportunities that artificial intelligence offers for efficiency and effectiveness in refugee status determination are compelling. Artificial intelligence allows for faster data processing and the ability to undertake high-volume, repetitive tasks. Increased consistency and up-to-date information, a capacity to plan for workloads and predict movements and the potential to ‘design out’ existing biases, promise to deliver positive outcomes for asylum seekers. But the risks of integrating artificial intelligence in a decision-making process that is defined by human vulnerability loom large. The lack of transparency in algorithms may result in a denial of procedural fairness, and algorithmic bias continues to be a vexing issue. If refugee and human rights are denied, international protection may be compromised. Technical and contextual issues may increase the potential for error, and unanswered questions remain around legality.