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

Published online by Cambridge University Press:  01 January 2025

Dominique Allen
Dominique Allen*
Affiliation:
Deakin Law School, Deakin University
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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.

Type
Article
Information
Federal Law Review , Volume 44 , Issue 2 , June 2016 , pp. 311 - 335
Copyright
Copyright © 2016 The Australian National University

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Footnotes

Earlier versions of this article were presented at the Global Challenges and New Perspectives on Equality Law conference at the Université libre de Bruxelles and at a seminar hosted by the Centre for Employment and Labour Relations Law, University of Melbourne. I am grateful to attendees at both for their feedback. Much of this article was completed while I was a visitor at the Faculty of Laws, University College London. My thinking about enforcement was aided by conversations with Colm O'Cinneide, John Wadham, and Sandra Fredman and her PhD students. I am also very grateful to the late Sir Bob Hepple for discussing his regulatory pyramid with me and reflecting upon the evolving role of equality commissions, and to Shae McCrystal for her help with the final version of this article. Any errors are my own.

References

1 Australian Human Rights Commission Act 1986 (Cth) s 46P (‘AHRC Act’). A parallel scheme operates in the states and territories. Complaints about discrimination in the workplace may also constitute a breach of s 351 of the Fair Work Act 2009 (Cth) (‘FWA’) but it is not possible to lodge a complaint about the same conduct under both the FWA and the anti-discrimination regimes: FWA ss 725, 732, 734.

2 AHRC Act s 46PO.

3 Innes v Rail Corporation (NSW) [No 2] (2013) 273 FLR 66.

4 Jacob Saulwick, ‘Disability Case Costs RailCorp $420 000’, The Sydney Morning Herald (Sydney), 29 March 2013.

5 AHRC Act s 46PO(4)(a).

6 Following the decision, Sydney Trains, which is now responsible for the service, said it would improve audible announcements and train its frontline staff: Public Interest Advocacy Centre, ‘Sydney Trains to Improve Announcements’ (Media Release, 14 August 2013).

7 Hepple, Bob, Coussey, Mary and Choudhury, Tufyal, Equality: A New Framework: Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Hart Publishing, 2000) ch 3.Google Scholar

8 Braithwaite, John, ‘Rewards and Regulation’ (2002) 29 Journal of Law and Society 12, 19.CrossRefGoogle Scholar

9 The AHRC also has powers in relation to human rights (see pt II div 3 of the AHRC Act). As this article is solely concerned with the enforcement of anti-discrimination laws, its human rights powers are not considered further.

10 See further Rees, Neil, Rice, Simon and Allen, Dominique, Australian Anti-Discrimination Law (Federation Press, 2nd ed, 2014) ch 12Google Scholar.

11 The Australian statutory commissions have favoured the terms ‘anti-discrimination’ and ‘equal opportunity’ and are either a Commission, Authority or Board. The AHRC is the only exception. ‘Equal opportunity’ was removed from the AHRC's name when it was renamed in 2008. Britain has preferred the term ‘equality’, as have Northern Ireland and Ireland. For ease of reference, ‘equality commission’ is used throughout this article when referring to the agency in general terms. It may be argued that this is not the most accurate descriptor of the AHRC but since the premise of this article is that the AHRC's role in tackling discrimination and promoting equality would be strengthened if it could enforce the law, ‘equality’ was selected in preference to ‘equal opportunity’ commission.

12 Home Office, Equality for Women (1974) 7 [29]. At 7 [28] the government identified the limitations of relying on individual complaints to address discrimination and noted the likelihood that a requirement that the equality commission investigate every discrimination complaint would lead to a backlog and distract the agency from its core work.

13 The Race Relations Board was responsible for complaint handling but not able to enforce the law. The Board was replaced by the Commission for Racial Equality in 1977, which was modelled on the Equal Opportunities Commission. See further Hepple, Bob, ‘Agency Enforcement of Workplace Equality’ in Dickens, Linda (ed), Making Employment Rights Effective: Issues of Enforcement and Compliance (Hart Publishing, 2012) 49, 51Google Scholar; Hepple, Bob, ‘The Equality Commissions and the Future Commission for Equality and Human Rights’ in Dickens, Linda and Neal, Alan C (eds), The Changing Institutional Face of British Employment Relations (Kluwer Law International, 2006) 101, 105–6.Google Scholar

14 For comparative assessments, see Colm O’Cinneide, ‘Single Equality Bodies: Lessons from Abroad’ (Working Paper No 4, Equal Opportunities Commission, 2002); Mary Coussey, ‘Tackling Racial Equality: International Comparisons’ (Research Study No 238, Home Office, April 2002); Sternlight, Jean R, ‘In Search of the Best Procedure for Enforcing Employment Discrimination Laws: A Comparative Analysis’ (2004) 78 Tulane Law Review 1401Google Scholar; Julie Chi-hye Suk, ‘Antidiscrimination Law in the Administrative State’ [2006] University of Illinois Law Review 405; Harvey, Colin and Spencer, Sarah, ‘Advancing Human Rights and Equality: Assessing the Role of Commissions in the United Kingdom and Ireland’ (2012) 35 Fordham International Law Journal 1615.Google Scholar

15 See, eg, Hepple, Coussey and Choudhury, above n 7; Sternlight, above n 14; O’Brien, Nick, ‘The GB Disability Rights Commission and Strategic Law Enforcement: Transcending the Common Law Mind’ in Lawson, Anna and Gooding, Caroline (eds), Disability Rights in Europe: From Theory to Practice (Hart Publishing, 2005) 249Google Scholar; Equality and Human Rights Commission, Compliance and Enforcement Policy (January 2015) <http://www.equalityhumanrights.com/legal-and-policy/commission/enforcement-powers>; US Equal Employment Opportunity Commission, US Equal Employment Opportunity Commission National Enforcement Plan (1997) <http://www.eeoc.gov/eeoc/plan/nep.cfm>.

16 Braithwaite, ‘Rewards and Regulation’, above n 8, 13.

17 Ayres, Ian and Braithwaite, John, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press, 1992)CrossRefGoogle Scholar figure 2.1.

18 Ibid, figure 2.2.

19 Braithwaite, ‘Rewards and Regulation’, above n 8, 20.

20 Smith, Belinda, ‘Not the Baby and the Bathwater: Regulatory Reform for Equality Laws to Address Work–Family Conflict’ (2006) 28 Sydney Law Review 689, 706 (emphasis in original).Google Scholar

21 Hepple, Coussey and Choudhury, above n 7, ch 3. See especially: at 58 [3.6], 59 (figure 3.1).

22 Hepple, Bob, Equality: The Legal Framework (Hart Publishing, 2nd ed, 2014) 225.Google Scholar

23 Ayres and Braithwaite, above n 17, 35.

24 Hepple, Coussey and Choudhury, above n 7, 58.

25 Ibid.

26 Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth) (‘SDA’); Disability Discrimination Act 1992 (Cth); Age Discrimination Act 2004 (Cth) (‘ADA’). See further Rees, Rice and Allen, above n 10, chs 6, 7. The enforcement provisions are contained in the AHRC Act.

27 AHRC Act pt IIB div 1.

28 Allen, Dominique, ‘Behind the Conciliation Doors: Settling Discrimination Complaints in Victoria’ (2009) 18 Griffith Law Review 778, 780CrossRefGoogle Scholar. In the 2012–13 financial year, the AHRC received 2177 complaints. Forty-five per cent of the complaints were conciliated, 13% were withdrawn and 9% were discontinued: AHRC, Annual Report 2012–2013, 129–30 (tables 6, 10).

29 AHRC Act s 46PH(1)(i).

30 Allen, ‘Behind the Conciliation Doors’, above n 28, 780. Fifty human rights matters were filed in the Federal Court in 2012–13. This includes all attributes, as well as judicial review cases: email from the Federal Court Registry to the author, 28 July 2014. It referred 39 human rights matters to mediation and 13 were resolved: Federal Court of Australia, Annual Report 2012–2013, 35, 38 (tables 3.6, 3.12). One hundred and five human rights matters were filed in the Federal Circuit Court over the same period but it is not known how those matters were resolved: Federal Circuit Court of Australia, Annual Report 2012–2013, 46 (table 3.4).

31 Hunyor, Jonathon, ‘Skin-Deep: Proof and Inferences of Racial Discrimination in Employment’ (2003) 25 Sydney Law Review 535Google Scholar; Allen, Dominique, ‘Reducing the Burden of Proving Discrimination in Australia’ (2009) 31 Sydney Law Review 579.Google Scholar

32 Gaze, Beth, ‘Anti-Discrimination Laws in Australia’ in Gerber, Paula and Castan, Melissa (eds), Contemporary Perspectives on Human Rights Law in Australia (Lawbook, 2013) 155, 168–70.Google Scholar

33 Allen, ‘Behind the Conciliation Doors’, above n 28, 786–7.

34 Gaze, above n 32, 175.

35 Allen, ‘Behind the Conciliation Doors’, above n 28, 786.

36 Ibid.

37 AHRC Act s 46PO(4).

38 Allen, Dominique, ‘Remedying Discrimination: the Limits of the Law and the Need for a Systemic Approach’ (2010) 29 University of Tasmania Law Review 83, 92Google Scholar.

39 See the data provided in AHRC, Federal Discrimination Law (21 October 2011) AustLII, ch 7.2.2 <http://www.austlii.edu.au/au/other/HRLRes/2011/1/>. See also ibid 90, 96 (figures 1, 3).

40 The AHRC can only assist a complainant with preparing the court forms to commence proceedings in the Federal Court: AHRC Act s 46PT.

41 The AHRC's other responsibilities are discussed below. It can also appear in court as an amicus curiae: AHRC Act s 46PV. Since 1988 it has intervened in 77 matters (as at 7 May 2015). Since 2001 its Commissioners have appeared as an amicus curiae in 23 matters (as at 14 March 2013): AHRC, Submission to Court as Intervener and Amicus Curiae <https://www.humanrights.gov.au/our-work/legal/submissions/submission-court-intervener-and-amicus-curiae>.

42 Tim Elliott, ‘Meet Gillian Triggs, the Woman Taking On Immigration Minister Scott Morrison’, The Sydney Morning Herald (online), 1 August 2014 <http://www.smh.com.au/federal-politics/political-news/meet-gillian-triggs-the-woman-taking-on-immigration-minister-scott-morrison-20140801-3cy82.html>.

43 Chapman, Anna, ‘Discrimination Complaint-Handling in NSW: The Paradox of Informal Dispute Resolution’ (2000) 22 Sydney Law Review 321, 321–2.Google Scholar

44 See further Allen, ‘Behind the Conciliation Doors’, above n 27.

45 The Brennan Committee's inquiry into a federal human rights Act received submissions which recommended changing the AHRC's functions: National Human Rights Consultation, Report (2009) [14.13]. The Human Rights and Anti-Discrimination Bill 2012 (Cth) did not propose to change the AHRC's role. It did propose introducing compliance mechanisms, including giving the AHRC the power to review an organisation's policies and procedures and to develop compliance codes for industry which would limit liability if a claim was made but these mechanisms would have been voluntary: at pt 3-1. The Senate Standing Committee on Legal and Constitutional Affairs’ 2008 inquiry into the effectiveness of the SDA did not recommend changes to the enforcement model, only to the AHRC's ability to intervene in proceedings and the Commissioners’ ability to appear as an amicus curiae, though it did recommend that further consideration be given to the AHRC's ability to commence action in the Federal Court for a breach of the SDA and to promulgate standards, and to the Sex Discrimination Commissioner's ability to conduct own motion investigations: Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Effectiveness of the Sex Discrimination Act 1984 in Eliminating Discrimination and Promoting Gender Equality (2008) xvi–xviii (recommendations 30–2, 37–9). To date these recommendations have not been implemented. Cf pts 9 and 10 of the Equal Opportunity Act 2010 (Vic) as originally enacted which introduced a much stronger enforcement model but this was repealed before the Act came into force: Equal Opportunity Amendment Act 2011 (Vic) pt 2.

46 Productivity Commission, Review of the Disability Discrimination Act 1992, Report No 30 (2004) 382–4. Similar concerns were expressed by the Senate Standing Committee on Legal and Constitutional Affairs: above n 45, 160.

47 Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986 (Cth).

48 Sex Discrimination and Other Legislation Amendment Act 1992 (Cth).

49 (1995) 183 CLR 245 (‘Brandy’).

50 FWA s 351.

51 See, eg, Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479 (9 May 2012); Fair Work Ombudsman v WKO Pty Ltd [2012] FCA 1129 (17 October 2012); Fair Work Ombudsman v Wongtas Pty Ltd [No 2] [2012] FCA 30 (2 February 2012). It has also reached enforceable undertakings with non-compliant employers in lieu of further litigation: see Fair Work Ombudsman, Enforceable Undertakings <http://www.fairwork.gov.au/About-us/Our-role/enforcing-the-legislation/enforceable-undertakings>.

52 AHRC Act s 31(d).

53 Ibid s 31(h).

54 See, eg, Australian Human Rights Commission, Effectively Preventing and Responding to Sexual Harassment: A Code of Practice for Employers (2008). In Richardson v Oracle Corp Australia Pty Ltd, Buchanan J considered whether the employer's sexual harassment policy complied with the AHRC's Code when determining whether the employer had taken all reasonable steps to prevent sexual harassment: (2013) 232 IR 31, 75–6 [159]–[164].

55 DDA s 64.

56 Ibid s 61.

57 Ibid s 64.

58 AHRC, Register of Disability and Discrimination Act Action Plans <https://www.humanrights.gov.au/our-work/disability-rights/standards/action-plans/register-disability-discrimination-act-action>.

59 DDA s 11(1)(e).

60 AHRC Act pt II div 3, pt II div 4.

61 Ibid schs 1–4.

62 Ibid ss 11(1)(f), 31(b).

63 In the 2012–13 financial year, 310 complaints were received but no reports were issued: AHRC, Annual Report 2012–2013, above n 28, table 6, table 10.

64 AHRC Act ss 29, 35, 46.

65 Hepple, Coussey and Choudhury, above n 7, 57.

66 For example, by joining the AHRC's ‘Racism. It Stops With Me’ campaign, employers who meet certain requirements for the representation of women in their workplace may be awarded an Employer of Choice for Gender Equality citation from the Workplace Gender Equality Agency which they can use to attract female candidates.

67 Smith has also suggested changing the regulatory model so that the AHRC better reflects other regulators. She proposes arming it with stronger enforcement powers so that it can pursue a range of escalating orders against a non-compliant respondent: Smith, above n 20, 723–9.

68 Cf the US Equal Employment Opportunity Commission which, like the AHRC, is required to process complaints before the complainant can proceed to court. Unlike the AHRC, it can also take enforcement action. However, throughout most of its existence, complaint handling has consumed most of its resources, leaving insufficient funds for enforcement: Green, Michael Z, ‘Proposing a New Paradigm for EEOC Enforcement After 35 Years: Outsourcing Charge Processing by Mandatory Mediation’ (2001) 105 Dickinson Law Review 305, 309–10Google Scholar. The British government recently removed the EHRC's power to provide conciliation services in non-employment discrimination complaints. One of the reasons it gave was this does not fit ‘with the EHRC's strategic role’: HM Government, Building a Fairer Britain: Reform of the Equality and Human Rights Commission (March 2011) 18.

69 See Productivity Commission, above n 46.

70 It is also responsible for human rights. It was originally called the Commission for Equality and Human Rights and that remains its legal name: Equality Act 2006 (UK) c 3, s 1. A separate institution exists in Northern Ireland.

71 The Equality Advisory and Support Service is a separate service which provides advice to complainants. It was originally run by the EHRC before being moved to the Government Equalities Office in March 2012 which outsourced it to a private company: Helen Grant, ‘New Equality Advisory and Support Service Is Launched’ (Media Release, 15 November 2012). See also Government Equalities Office, Information, Advice and Support on Equality and Human Rights Issues (March 2011).

72 Since 6 May 2014, this has been a compulsory step before a complainant can lodge their claim in the Employment Tribunal: Employment Tribunals Act 1996 (UK) c 17, s 18A which was inserted by the Enterprise and Regulatory Reform Act 2013 (UK) c 24, s 7(1).

73 Equality Act 2006 (UK) c 3, s 13.

74 Ibid s 28.

75 See ibid pt 1. On the background to the merger, see House of Lords and House of Commons Joint Committee on Human Rights, Commission for Equality and Human Rights: The Government's White Paper (Sixteenth Report of Session 2003–04, HL Paper 156 HC 998); O’Cinneide, Colm, ‘The Commission for Equality and Human Rights: A New Institution for New and Uncertain Times’ (2007) 36(2) Industrial Law Journal 141CrossRefGoogle Scholar; Anthony Lester and Kate Beattie, ‘The New Commission for Equality and Human Rights’ (2006) Public Law 197; Anthony Lester and Lydia Clapinska, ‘An Equality and Human Rights Commission Worthy of the Name’ (2005) 32(1) Journal of Law and Society 169; Choudhury, Tufyal, ‘The Commission for Equality and Human Rights: Designing the Big Tent’ (2006) 13 Maastricht Journal of European and Comparative Law 311CrossRefGoogle Scholar; Spencer, Sarah, ‘Equality and Human Rights Commission: A Decade in the Making’ (2008) 79(1) The Political Quarterly 6CrossRefGoogle Scholar; Hepple, Equality, above n 22, ch 7.

76 On the early history of the EOC see Sacks, Vera, ‘The Equal Opportunities Commission — Ten Years On’ (1986) 49 The Modern Law Review 560CrossRefGoogle Scholar; Byrne, Paul and Lovenduski, Joni, ‘The Equal Opportunities Commission’ (1978) 1 Women's Studies International Quarterly 131CrossRefGoogle Scholar; George Appleby and Evelyn Ellis, ‘Formal Investigations: The Commission for Racial Equality and the Equal Opportunities Commission as Law Enforcement Agencies’ [1984] Public Law 236.

77 On the history of the CRE see Christopher McCrudden, David J Smith and Colin Brown, Racial Justice at Work: Enforcement of the Race Relations Act 1976 in Employment (Policy Study Institute, 1991) 8–29; McCrudden, Christopher, ‘The Commission for Racial Equality: Formal Investigations in the Shadow of Judicial Review’ in Baldwin, Robert and McCrudden, Christopher (eds), Regulation and Public Law (Weidenfeld and Nicolson, 1987) 227, 228–42Google Scholar; Appleby and Ellis, above n 76.

78 On the development of the DRC see O’Brien, above n 15.

79 On the resulting changes to industrial relations law see Hepple, Bob, ‘Back to the Future: Employment Law Under the Coalition Government’ (2013) 42(3) Industrial Law Journal 203.CrossRefGoogle Scholar

80 For an overview see Nick O’Brien, ‘EHRC — Challenges and Opportunities: Impact of Enforcement Activities: Lion Tamer or Fly Swatter?’ (Research Paper, 17 February 2012) 2.

81 Ibid 4.

82 Hepple has argued that the changes brought about by the Equality Act 2006 (UK) and the Equality Act 2010 (UK) have not moved the regulatory approach towards a model of responsive regulation: ‘Agency Enforcement of Workplace Equality’, above n 13.

83 EHRC, above n 15, 6.

84 See, eg, West Midlands Passenger Transport Executive v Singh [1987] IRC 837.

85 The Code of Practice on Equal Pay, The Code of Practice on Employment and The Code of Practice on Services, Public Functions and Associations came into force on 6 April 2011.

86 EHRC, Equality Act Codes of Practice <http://www.equalityhumanrights.com/advice-and-guidance/information-for-advisers/equality-act-codes-of-practice>. Similarly, British Anti-Discrimination lawyer Michael Rubenstein writes that the codes ‘have not hesitated to set out the [DRC’s] own interpretation of what the law means in practice’: Michael Rubenstein, ‘Why the DRC's Legal Strategy Succeeded’ in DRC, DRC Legal Achievements: 2000–2007 (Legal Bulletin Issue 12, Legacy Edition, 2007) 13.

87 Equality Act 2006 (UK) c 3, s 14(6).

88 Ibid ss 14(7)–(8).

89 Ibid s 15(4). The earlier Acts contained similar provisions. See, eg, Race Relations Act 1975 (UK) c 74, s 47. On the history of the CRE's code-making capabilities and the process of drafting the first code, see McCrudden, Christopher, ‘Codes in a Cold Climate: Administrative Rule-Making by the Commission for Racial Equality’ (1988) 51 The Modern Law Review 409.CrossRefGoogle Scholar

90 [1987] IRC 837. See also Carrington v Helix Lighting Co [1990] ICR 125.

91 Public authorities may be required to prepare an action plan to fulfil the requirements of the positive duty to promote equality. See Equality Act 2010 (UK) c 15, s 149.

92 Equality Act 2006 (UK) c 3, s 20(2).

93 See Bamforth, Nicholas, Malik, Maleiha and O’Cinneide, Colm, Discrimination Law: Theory and Context (Sweet and Maxwell, 2008) 1260.Google Scholar

94 White Paper, Racial Discrimination (Cmnd 6234), Presented to Parliament by the Secretary of State for the Home Department by Command of Her Majesty September 1975, [110].

95 Ibid [51].

96 McCrudden, Smith and Brown, above n 77, 48.

97 Sex Discrimination Act 1975 (UK) c 65, ss 57–61, 67; Race Relations Act 1976 (UK) ss 48–52, 58.

98 Between 1977 and 1982, the CRE started 47 formal investigations of which 29 were into a named person alleging discrimination, 15 were into a named person but not alleging discrimination, and three were general: McCrudden, ‘The Commission for Racial Equality’, above n 77, 245. For a comprehensive account of the CRE's use of its investigations power, see also McCrudden, Smith and Brown, above n 77, chs 3, 4; Mary Coussey, ‘The Effectiveness of Strategic Enforcement of the Race Relations Act 1976’ in Bob Hepple and Erika M Szyszczak (eds), Discrimination: The Limits of Law (Mansell, 1992) 35, 38–40.

99 Hepple, ‘Agency Enforcement of Workplace Equality’, above n 13, 53. See also Coussey, ‘The Effectiveness of Strategic Enforcement of the Race Relations Act 1976’, above n 98.

100 Science Research Council v Nasse [1979] 1 QB 144, 172.

101 Dickens, Linda, ‘The Road is Long: Thirty Years of Equality Legislation in Britain’ (2007) 45(3) British Journal of Industrial Relations 463, 475.CrossRefGoogle Scholar

102 In CRE v Amari Plastics [1982] QB 1194 (‘Amari Plastics’), Lord Denning MR described the procedural requirements as ‘so elaborate and so cumbersome that [the investigation] is in danger of grinding to a halt’: at 1201. The other decisions which impacted upon the conduct of investigations were R v CRE, ex parte London Borough of Hillingdon [1982] AC 779 and Re Prestige Group plc [1984] 1 WLR 335 (‘Prestige’). See also Catherine Barnard, ‘A European Litigation Strategy: The Case of the Equal Opportunities Commission’ in Jo Shaw and Gillian More (eds), New Legal Dynamics of European Union (Clarendon Press, 1995) 258; O’Cinneide, ‘The Commission for Equality and Human Rights’, above n 74, 148–9; Appleby and Ellis, above n 75; McCrudden, ‘The Commission for Racial Equality’, above n 77, 252–8; Sacks, above n 75, 581–4.

103 Prestige [1984] 1 WLR 335; R v CRE, ex parte London Borough of Hillingdon [1982] AC 779; Amari Plastics [1982] QB 1194. Following Amari Plastics the subject of the investigation could also challenge the CRE's findings of fact and the requirements of the non-discrimination notice. See also Connolly, Michael and Townshend-Smith, Richard, Discrimination Law: Text, Cases and Materials (Cavendish, 2nd ed, 2004) 553Google Scholar. On the drafting error that created this problem which was not rectified until the DRC was created in 1999: at 554. Dickens says the government ignored the CRE's calls for these laws to be reformed: Dickens, above n 100, 475.

104 Appleby and Ellis write that the CRE abandoned nine formal investigations as a consequence of these decisions: Appleby and Ellis, above n 75, 264.

105 Hepple, ‘Agency Enforcement of Workplace Equality’, above n 13, 53–4.

106 McCrudden says there were occasions when organisations being investigated approached the CRE about negotiating a settlement and it refused. Its legal advice was that it could not negotiate an agreement when a notice could be issued: ‘The Commission for Racial Equality’, above n 77, 227, 249. Because of this, the DRC was given the power to enter into an agreement, as discussed below. This was retained when the EHRC was formed.

107 O’Brien, ‘The GB Disability Rights Commission and Strategic Law Enforcement’, above n 15, 258–9. See also Disability Rights Commission Act 1999 (repealed) (UK) c 17, s 3; Explanatory Notes, Disability Rights Commission Act 1999 (repealed) (UK).

108 The Act refers to them as an ‘agreement’: Disability Rights Commission Act 1999 (repealed) (UK) s 5(1).

109 Ibid.

110 Dudley Westgate, ‘A Company's Perspective — Entering Into a “Voluntary Binding Agreement” with the DRC’ in DRC, DRC Legal Achievements: 2000–2007 (Legal Bulletin Issue 12, Legacy Edition, 2007) 54.

111 Agreements were also reached after the DRC agreed to provide financial assistance to a person with a disability so they could pursue their claim but the effect was the same; enforcement action was suspended: Disability Rights Commission Act 1999 (repealed) (UK) s 5(2)(a).

112 Ibid s 5. The EHRC can also enter into an agreement in lieu of enforcement action. The EHRC can enter into an agreement and seek an injunction to ensure the recipient complies with it. The respondent is not taken to have admitted to a contravention by entering into the agreement. They undertake not to commit the unlawful act or to refrain from taking action or to complete the positive steps specified in the agreement which could include completing an action plan: Equality Act 2006 (UK) c 3, ss 23, 24. Only four examples of such agreements are recorded on its website: EHRC, Enforcement Work (21 June 2016) <https://www.equalityhumanrights.com/en/legal-casework/enforcement-work>.

113 Disability Rights Commission Act 1999 (repealed) (UK) s 5(8).

114 DRC, DRC Legal Achievements: 2000–2007 (Legal Bulletin Issue 12, Legacy Edition, 2007) 144.

115 Ibid 124–5. The DRC did not enter into any agreements in relation to employment: at 144. It is noted that both agreements were reached in the context of the DRC assisting the complainant with their matter rather than following an investigation but this illustrates the wider, systemic change that agreements can lead to compared with litigation.

116 Only damages would have been available: Disability Discrimination Act 1995 (UK) c 13, s 25.

117 Office for Public Management, Evaluating the Impact of the Disability Rights Commission: Summary Report (2007), 45. See also the article by Dudley Westgate, the Director of Heritage Attractions Ltd, discussing his company's experience in entering into an agreement with the DRC and the subsequent benefits to his organisation: above n 110, 54–6.

118 O’Brien, ‘The GB Disability Rights Commission and Strategic Law Enforcement’, above n 15, 259.

119 They were ‘The Web: Access and Inclusion for Disabled People’ (2004), ‘Equal Treatment: Closing the Gap: A Formal Investigation Into Physical Health Inequalities Experienced by People With Learning Disabilities and/or Mental Health Problems’ (2006) and ‘Maintaining Standards: Promoting Equality: Professional Regulation Within Nursing, Teaching and Social Work and Disabled People's Access to These Professions’ (2007). For an overview see DRC, above n 114, 134–6.

120 Equality Act 2006 (UK) c 3, s 20(2). The EHRC is required to send a draft report to the person and give them the opportunity to make a written representation about the draft which it must consider: at s 20(4). Further procedural requirements are contained in sch 2 which codifies the jurisprudence about the previous commissions’ equivalent powers following the Prestige decision.

121 Equality Act 2006 (UK) c 3, ss 23, 24(2). Alternatively, the EHRC can seek an injunction to prevent a person from committing an unlawful act: at s 24(1).

122 EHRC, Enforcement Work, above n 112.

123 EHRC, ‘Commission Signs Agreement With the Priory Group’ (Media Release, 23 November 2009).

124 Hepple, ‘Agency Enforcement of Workplace Equality’, above n 13, 185.

125 At the time of writing its most recent update on its enforcement activities listed one investigation, which was launched in September 2014, and one agreement: EHRC, Enforcement Snapshot October 2015 (2015) <http://www.equalityhumanrights.com/legal-and-policy/commission/enforcement-powers>.

126 For example, it has conducted inquiries into home care for older people in England, disability-related harassment and board diversity in the finance sector. See EHRC, Inquiries and Investigations <http://www.equalityhumanrights.com/legal-and-policy/our-legal-work/inquiries-and-investigations>.

127 Equality Act 2006 (UK) c 3, s 16.

128 Its power to issue a compliance notice relates to the public sector equality duties only: ibid s 32.

129 Suk, above n 14, 444.

130 Equality Act 2006 (UK) c 3, s 21.

131 Ibid s 21(4).

132 Ibid s 22.

133 Hepple, Coussey and Choudhury, above n 7, 58.

134 Equality Act 2006 (UK) c 3, s 21.

135 Ibid s 24.

136 Equality Act 2006 (UK) c 3, s 21.

137 Connolly and Townshend-Smith, above n 103, 563.

138 Employment Tribunals Act 1996 (UK) c 17, s 12A which was inserted by the Enterprise and Regulatory Reform Act 2013 (UK) c 24, s 16.

139 Explanatory Notes, Enterprise and Regulatory Reform Act 2013 (UK) [100].

140 Hepple, Coussey and Choudhury, above n 7, 57.

141 White Paper, Fairness For All: A New Commission for Equality and Human Rights (Cm 6185), Presented to Parliament by the Secretary of State for Trade and Industry and the Secretary of State for Constitutional Affairs by Command of Her Majesty, May 2004, 19, 43.

142 Nick O’Brien, ‘Accentuating the Positive: Disability Rights and the Idea of a Commission for Equality and Human Rights’ (Paper presented at the Industrial Law Society, St Catherine's College, Oxford, 10 September 2004). This was also the opinion of a senior lawyer who had worked at the EHRC: Interview (London, 20 May 2014). Fletcher and O’Brien write that the CRE and EOC played a role more akin to that of a law centre after their investigations power was curtailed and they focused on funding litigation: Fletcher, Agnes and O’Brien, Nick, ‘Disability Rights Commission: From Civil Rights to Social Rights’ (2008) 35 Journal of Law and Society 520, 530CrossRefGoogle Scholar.

143 Hepple, Coussey and Choudhury, above n 7, 52–3.

144 Indeed, in the British government's White Paper it said it expected the EHRC to take a strategic approach to using its enforcement tools: Fairness For All, above n 141, 41.

145 O’Brien, ‘The GB Disability Rights Commission and Strategic Law Enforcement’, above n 15, 253.

146 Braithwaite, John, ‘The Essence of Responsive Regulation’ (2011) 44 UBC Law Review 475, 482.Google Scholar

147 Hepple, Coussey and Choudhury, above n 7, 57.

148 Braithwaite, ‘Rewards and Regulation’, above n 8. See also Hepple, Coussey and Choudhury, above n 7, 57. It was outside the scope of this article to explore what effect the problems with investigations and the minimal use of the upper level sanctions has had on compliance. Regulatory theory suggests that it would have had a negative impact on compliance but arguably this was alleviated by the equality commissions’ assistance work. Cf Fletcher and O’Brien, who regard this work as legal aid by another route: above n 142, 531.

149 Smith, above n 20, 725.

150 Crowley, Niall, An Ambition for Equality (Irish Academic Press, 2006) 44Google Scholar. Former Chair and CEO of the CRE, Lord Ouseley, said that for the first seven years the EHRC operated, organisations did not fear that it would be ‘likely to be knocking on their doors and asking them questions about their policies on equality.’ His Lordship continued that Britain needs an independent body that is ‘able to say we will take regulatory action, we will enforce the law against you where you are failing to conduct yourself in a lawful manner with regard to equalities’: Quoted in Amelia Gentleman, ‘Herman Ouseley Says Equality and Human Rights Commission Has Failed’, The Guardian (London), 29 November 2012.

151 Sacks, above n 76, 568.

152 Elliott, above n 42; Chapman, above n 43.

153 Smith has also recognised this failing of anti-discrimination law: Smith, Belinda, ‘It's About Time — For A New Regulatory Approach to Equality’ (2008) 36 Federal Law Review 1, 19CrossRefGoogle Scholar; Smith, ‘Not the Baby and the Bathwater’, above n 20, 714–15.

154 Cf the FWO's power to seek civil penalties for workplace discrimination in s 539 of the FWA. In Fair Work Ombudsman v Drivecam Pty Ltd (2011) 208 IR 79, in determining the civil penalty Emmett FM took account of the fact that the employer did not intend to discriminate or exploit the employee's disability: at [75]. In Fair Work Ombudsman v Wongtas Pty Ltd [No 2] [2012] FCA 30 (2 February 2012), Cowdroy J took into account that the respondent initially challenged the FWO's power to bring the action and it did not take any corrective action in response to the FWO's inquiries. Instead, it terminated the employee: at [53]–[56]. See also Smith, ‘It's About Time’, above n 153.

155 Appleby and Ellis, above n 76, 274.

156 One of the problems with the early investigations launched by the CRE and EOC was that their approach was quite adversarial and organisations reacted in kind by briefing lawyers and challenging the basis of the investigation. See the example discussed by Sacks, above n 76, 584–5.

157 Hepple, ‘Agency Enforcement of Workplace Equality’, above n 13, 53.

158 Hepple, Bob, ‘Enforcing Equality Law: Two Steps Forward and Two Steps Backwards for Reflexive Regulation’ (2011) 40 Industrial Law Journal 315, 317.CrossRefGoogle Scholar

159 This is evidenced by the number of organisations which have submitted disability action plans, for example. See AHRC, Register of Disability and Discrimination Act Action Plans, above n 58.

160 See also Smith, ‘Not the Baby and the Bathwater’, above n 20.

161 Braithwaite, ‘The Essence of Responsive Regulation’, above n 146, 483.

162 Sacks, above n 76.

163 Nick O'Brien and Caroline Gooding, ‘Final Reflections’ in DRC, DRC Legal Achievements: 2000–2007 (Legal Bulletin Issue 12, Legacy Edition, 2007) 155.

164 For further discussion see Harvey and Spencer, above n 14, 1668–80.

165 For example, in 1993 the Victorian Equal Opportunity Commissioner found herself without a job when her position was abolished following the commission's 14 month long investigation into prison conditions: Christopher Richards and Tim Winkler, ‘Moira Rayner's Job Axed in Revamp’, The Age (Melbourne), 27 October 1993, 1.

166 National Institutions for the Promotion and Protection of Human Rights, GA Res 48/134, 85th mtg (20 December 1993) annex.

167 For example, the Equality Commission for Northern Ireland was established by the Belfast (‘Good Friday’) Agreement of 1998, which was codified by the Northern Ireland Act 1998 (UK).