Barking and Biting: The Equal Opportunity Commission as an Enforcement Agency

Abstract

Federal anti-discrimination law centres upon the individual who has experienced unlawful discrimination. To address this discrimination, the individual is required to lodge a complaint at the Australian Human Rights Commission (‘AHRC’), which will attempt to resolve the complaint using Alternative Dispute Resolution (‘ADR’). While institutions in other areas, like competition law and occupational health and safety, have a broad range of powers to enforce compliance, successive governments have chosen not to invest the AHRC with equivalent powers. Quite a different model has operated in Britain for four decades. This article analyses the role of the AHRC by comparing it to its British equivalents and examining these institutions according to the ‘enforcement pyramid’ for regulating equal opportunity, which British academics Bob Hepple, Mary Coussey and Tufyal Choudhury have developed. According to these regulatory theorists, to tackle discrimination effectively, equality commissions need to be able to follow up their loud ‘bark’ with a punitive ‘bite’ if necessary. The article concludes by identifying what the experience in both countries reveals about the enforcement of antidiscrimination laws by statutory institutions.