Reforming Age Discrimination Law book forum: Alysia Blackham - Author’s reply

Alysia Blackham replies to reflections from Rosalind Croucher, Andrew Byrnes, Oanh Tran and the Hon Anthony North KC on her book Reforming Age Discrimination Law: Beyond Individual Enforcement. To see all posts, please click here.

Alysia Blackham

24.10.2022

It is an incredible privilege to have such an esteemed panel reflect on this book. Reforming Age Discrimination Law is, at its heart, a call to action. It maps the many ways in which individual enforcement of age discrimination law is struggling to achieve meaningful change. It puts forward a series of reforms to improve the individual enforcement model, strengthen positive equality duties, bolster the roles of statutory equality agencies, and enhance collective enforcement. This is an ambitious programme of reform, that requires action by governments, employers, unions, statutory agencies, legal practitioners, legal educators, courts, and judges. I argue, too, that these reforms work best together; they are mutually supportive and reinforcing, just as these forms of enforcement work best together.

In this response, I wanted to reflect on how this research – and the work of the many other equality law researchers in Australia – can achieve, and is achieving, change. Academic research can sometimes feel abstract or removed from the ‘coal face’ of organisations or governments – the ‘ivory towers’ critique. But, certainly in the field of equality law, we can see academic research creating ripples of change – which may, in time, become tidal waves of reform.

Ripples of change

Ros Croucher’s contribution speaks to the important priorities put forward by the Australian Human Rights Commission’s (AHRC) Free and Equal report. Croucher also kindly acknowledges the influence this research – and the work of so many other discrimination law scholars – has had in developing that reform agenda. As Croucher emphasises, there are strong synergies between the AHRC’s proposals and the reforms advocated for in this book; we are all on the same page, and the empirical findings of this project provide strong support for many of the AHRC’s conclusions and recommendations. As Tony North notes, this is also consonant with the work of law reform agencies across the country. Working together, we may be able to nudge the law forward and achieve meaningful change, particularly in relation to the adoption of positive duties, shifting the burden of proof, and strengthening enforcement mechanisms.

We are already seeing some of these research-informed reforms being embraced by the Albanese Federal government, with the introduction of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Cth). This Bill, while designed to implement many of the outstanding recommendations of the AHRC’s Respect@Work report on sexual harassment, goes beyond those recommendations, to also reform costs orders and extend the time limit for bringing a complaint for all protected characteristics – including age. The Bill proposes to introduce a positive duty into federal discrimination law for the first time, although this is confined to sex discrimination and sexual harassment, and does not speak to age discrimination. These reforms do not (yet) go as far as I recommend in Reforming Age Discrimination Law, nor as far as the AHRC proposes in Free and Equal. But they are ripples of change, progressively improving our existing systems.

Since I concluded work on the book’s manuscript, we have also seen significant reports on the reform of discrimination law in Queensland and Western Australia, with further changes likely in the ACT and NT in the coming months. For laws that have remained relatively static in many jurisdictions for many years, this is a very encouraging development. The impetus for this reform can partly be linked back to Respect@Work. Again, however, the scholarly work being done in the academy, and the extensive submissions made by academic scholars, have strongly framed the direction of reform.

Age equality as a human right

A common challenge recurring through this research related to how we view and value age and age equality. Age tends to be de-prioritised as a protected characteristic in organisational programmes, the work of statutory agencies, and in the priorities of trade unions.

It is here that Andrew Byrnes’s contribution, and the work of all those advocating for a UN Convention on the Rights of Older Persons, is particularly timely. As Byrnes states in his post, ‘[t]he lessons from the international human rights experience to date has been that if you don’t explicitly mention older persons and their specific circumstances [in human rights instruments], they will be largely ignored.’ I reached similar findings in the domestic context, across both Australia and the UK. Byrnes and I therefore both see significant opportunities to use a substantive understanding of human rights, and a strengthened human rights framework, to enhance our existing approaches to age discrimination law and age equality in Australia.

It is encouraging, then, to hear from Ros Croucher of the AHRC’s intention to put forward a revised and revamped model for a federal Charter of Rights for Australia. It is critical, though, that the position of older and younger people be meaningfully considered and accommodated in such proposals. Further, Byrnes’s contribution emphasises important differences between the way we have conceived and framed domestic age discrimination law, and developments at the international level in advancing the human rights of older persons. These disjunctions need to be grappled with in order to advance the human rights of people of all ages.

Measuring what matters

A further, fundamental challenge that shaped this research related to the (lack of) data held by statutory agencies, courts and governments relating to age discrimination and age equality. This is not a new problem – but it is a recurring challenge, which can seriously inhibit our understanding of how the law is used in practice (and by whom), how people experience discrimination, and whether legal enforcement is ‘working’ for those most impacted by discrimination.

What we value, we measure, and what we measure has value. As Oanh Tran emphasises, 'you don’t count if you’re not counted'. We need to reprioritise gathering quality data on these issues, as well as adequately funding statutory agencies and courts to improve their data management capacities.

Moving ahead – COVID-19 and a call to action

The COVID-19 pandemic has made these reforms even more urgent. Older and younger workers have been disproportionately affected by industry shutdowns and job losses, and – as Tran notes – were disproportionately excluded from JobKeeper payments. Using age as a lens to interrogate inequality is more pertinent than ever. Further, as Croucher observes, the pandemic ‘has also shown us that no single piece of law reform is too hard or too much to undertake'.

As I have said at the outset, this book represents a call to action. I am honoured and encouraged to see these panellists driving forward the ripples of change.

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Alysia Blackham is an Associate Professor at Melbourne Law School, the University of Melbourne.

Suggested citation: Alysia Blackham, ‘Book Forum: Alysia Blackham - Author’s reply’ on AUSPUBLAW (24 October 2022) <https://auspublaw.org/blog/2022/10/reforming-age-discrimination-law-book-forum-alysia-blackham-authors-reply/>