Melbourne Law School - Research Publications

Permanent URI for this collection

http://hdl.handle.net/11343/382

Search Results

Now showing 1 - 10 of 50

Equality Law Protection for Legal Education: Internships, Volunteering and Clinics

Blackham, A (Faculty of Law, Bond University, 2024)

‘Practical’ legal education offers significant educational and personal benefits. However, it also comes with risks that need to be actively managed, including the risk of students experiencing harassment and discrimination. This article considers the scope of equality law, and how it applies to different forms of ‘practical’ legal education activities. It considers how equality law applies to ‘volunteer’ positions, including those in law firm partnerships, barristers’ chambers, and community organisations, legal internships and law school-run legal clinics. It considers the complexity of the legal framework, and the resulting difficulties law students might have in asserting their equality rights. It argues there is a particular need to address three gaps in the current legal framework for practical legal education activities, by: adopting a broader definition of ‘work’ to include unpaid roles; regulating harassment on grounds other than sex; and protecting law students from the actions of third parties, such as clients and members of the public.
Faces of Inequality: Reflections on Exceptional Developments

Blackham, A (Cambridge University Press (CUP), 2024-04)

In Faces of Inequality, Sophia Moreau puts forward a pluralistic theory of how discrimination wrongs people. I approach Moreau's ideas not as a legal philosopher or theorist, but as an empirical and socio-legal scholar of equality law. In this commentary, I pick up on five provocations that emerge for me from Moreau's work: on reasonable accommodations, on comparison in equality law, on the public/private divide, on the justification of discrimination, and on discrimination as a personal wrong. While Moreau's work is grounded in the common themes or shared features that emerge from equality laws across jurisdictions, I consider what these themes mean for the uncommon ground, drawing on exceptional developments in discrimination law in some Australian jurisdictions, and our experience with the “exceptional” protected characteristic of age.
Empirical legal research teaching in Australia: Building an empirical revolution

Blackham, A (SAGE PUBLICATIONS LTD, 2024-03)

There is a growing need for empirical legal research, and for lawyers and judges who are empirically literate. In this article, I consider the role legal education can and should play in achieving this empirical literacy, to enable law students and staff to be both skilled consumers and producers of empirical legal research. Drawing on a case study of initiatives at Melbourne Law School, I consider how empirical legal research could be embedded into law teaching, to better support the future of empirical legal scholarship.
Setting the Framework for Accountability for Algorithmic Discrimination at Work

Blackham, A (Melbourne Law School, 2023)

Algorithmic discrimination represents a growing challenge for equality law. While the elimination of discrimination in employment and occupation is a fundamental obligation of International Labour Organization members, Australian equality law remains ill-adapted to respond to emerging risks. This article argues that the automated application of machine learning algorithms presents five critical challenges to equality law related to the scale of data used; their speed and scale of application; lack of transparency; growth in employer control; and the complex supply chain associated with digital technologies. Considering principles from privacy and data protection law, third-party and accessorial liability, and collective solutions, this article puts forward reforms and suggestions to better set the framework for accountability for algorithmic discrimination in the workplace.
Federal age discrimination law finally coming of age: Gutierrez v MUR Shipping Australia

Blackham, A (LexisNexis Australia, 2023)

The Age Discrimination Act 2004 (Cth) has been in place for nearly 20 years. And yet, there has never been a successful case reported under the Act, at least in the context of employment. This does not mean that there has never been a successful claim under the Act; with extensive conciliation in equality law, it is likely that most claims are conciliated or withdrawn before proceeding to a public court hearing. At the same time, compared to other protected grounds – like sex, race, and disability – age discrimination law has led to few cases at the federal level, with claimants struggling to establish a successful claim. While age discrimination cases have been brought successfully under state and territory discrimination law, and industrial laws (like the Fair Work Act 2009 (Cth) (FW Act)), success in the age discrimination jurisdiction remains exceptional. Despite (or, perhaps, because of) this lack of age discrimination judgments, the Australian Human Rights Commission has found age discrimination to be prevalent and pervasive, being experienced by a majority of adults, across the age spectrum. Australia is not alone: the World Health Organisation describes ageism globally as ‘prevalent, ubiquitous and insidious because it goes largely unrecognised and unchallenged’. This status quo was fundamentally disrupted in 2021, with the first successful case handed down under the Age Discrimination Act 2004 (Cth): Gutierrez v MUR Shipping Australia.8 The remedy awarded was successfully appealed by the claimant to the Federal Court of Australia in 2023. This case note considers these dual cases, their implications for age discrimination law and for remedies in equality law more broadly.
Social Media and Court Communication

BLACKHAM, A ; WIlliams, G (Sweet and Maxwell, 2015)

Courts have traditionally relied on the delivery of judicial decisions as their sole means of direct communication with the general public. Over time this reliance is shifting, including through the willingness of courts to have their proceedings televised. Courts have also sought to have greater influence on how others communicate about and report their decisions, such as by employing public information officers to prepare press releases on court activities and liaise with the media. Most recently, judges and courts have taken their engagement with the public one step further by experimenting with the use of social media. Social media such as Twitter or Facebook provide a new means by which courts can enhance their openness and accessibility. However, such technologies also come with a fresh set of challenges. In particular, unlike television or media reporting, social media is designed to foster dialogue and ongoing interaction between participants. This needs to be carefully considered, as the use of social media has the potential to affect not only the processes by which courts communicate, but also the nature and substance of court proceedings. While this latter effect could be positive, injudicious use of social media could compromise a court’s ability to operate with independence and integrity. Drawing on a case study of social media use by courts in three common law jurisdictions (the United Kingdom, Australia and the United States of America), this paper considers the extent to which direct communication processes via social media may further the underlying objectives of court communication and enhance the courts’ constitutional role. It considers the opportunities and challenges posed by such media for courts, and how the inherent limits and constraints of social media may affect the nature of court communication. We assess the extent to which courts should make greater use of social media to enhance their existing communication processes and consider whether additional safeguards should be adopted to ensure the use of social media does not detrimentally impact upon the judicial system.
A Life Course Approach to Addressing Exponential Inequalities: Age, Gender, and Covid-19

Blackham, A ; Atrey, S ; Fredman, S (Oxford University PressOxford, 2023-01-19)

This chapter argues that age is an exponential amplifier of inequality. It puts forward a life course perspective as a nuanced lens for enriching our understanding of discrimination and its impacts over time. A life course approach offers a targeted focus for addressing exponential inequalities, drawing our attention to discrimination at critical transition points. Building on this life course perspective, experiences of discrimination over time can be seen as non-linear and multi-directional, but still interlinked and biographic, punctuating and shaping life stories in unpredictable ways. These ideas are illustrated through a case study of gendered ageism at work, drawing on empirical evidence to map how gender inequality is amplified with age and time, and further exacerbated by the impacts of the Covid-19 pandemic. Viewed with this life course lens, this chapter argues that discrimination law appears fundamentally ill-adapted for responding to exponential inequalities. The chapter therefore considers the extent to which ‘next generation’ positive duties—like the Gender Equality Act 2020 (Vic)—might address these concerns.
Laying the foundation for gender equality in the public sector

Ryan, L ; Blackham, A ; Ainsworth, S ; Ruppaner, L ; Gaze, B ; Yang, E ( 2021)
Abandoning Individual Enforcement? Interrogating the Enforcement of Age Discrimination Law

Blackham, A (Cambridge University Press, 2023)

Discrimination law primarily relies on individual enforcement for addressing discrimination at work; yet those who are most impacted by discrimination are likely the least able to enforce their rights. The question then becomes: what role should individual enforcement play in discrimination law? Can we effectively abandon individual enforcement as part of the legislative model? Drawing on a mixed method, multi-year comparative study of the enforcement of age discrimination law in the UK, Australia and Sweden, this article considers the gaps, limits and risks of the individual enforcement model in discrimination law. Integrating doctrinal analysis; statistical analysis of claims and cases, and data from the EU and OECD; qualitative expert interviews; and a survey of legal practitioners, this article argues that while individual enforcement is inherently limited as a tool for achieving systemic change, it must remain part of any legislative model. Reflecting on the experience in Sweden, where individual enforcement of discrimination law is significantly curtailed, the article posits that individual rights and individual enforcement remain important complements to other regulatory tools, particularly in jurisdictions with strong enduring age norms. Abandoning or severely restricting individual enforcement is unlikely to support either the macro or micro effectiveness of age discrimination law.
Promoting Innovation or Exacerbating Inequality? Laboratory Federalism and Australian Age Discrimination Law

Blackham, A (SAGE Publications, 2023-09-01)

According to laboratory federalism, federal systems can promote governmental innovation and experimentation, while containing the risks of innovation to only one jurisdiction. However, it is unclear whether these benefits are realised in practice and whether states are actually effective ‘laboratories’. This article evaluates the extent to which laboratory federalism is occurring in practice, focusing on a case study of age discrimination law in Australia. Drawing on related ideas of democratic experimentalism; legal doctrinal analysis of age discrimination law in the Australian states and territories, and at the federal level; and qualitative expert interviews with 66 Australian respondents, I map the potential and limits of laboratory federalism in advancing age equality. I argue that, in this particular context, the benefits of experimentation may be outweighed by the resulting difficulties of enforcing age discrimination law, exacerbating inequality in practice. The federal structure has led to a confused and confusing patchwork of legal regulation. There is therefore a need for stronger federal structures to facilitate mutual learning and better realise the benefits of laboratory federalism.

Melbourne Law School - Research Publications

Permanent URI for this collection

Filters

Date

Author

Type

Settings

Sort By

Results per page

Statistics

Citations

Search Results