Melbourne Law School - Research Publications

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

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The future of work in an ageing world: Priorities for advancing age equality at work

Blackham, A (Legal Service Bulletin Co-operative Ltd, 2024)

In an ageing world, age equality is critical for securing the future of work. Yet workplaces have not been designed with demographic ageing in mind, and age discrimination remains prevalent. This article offers a provocation to encourage the use of an age lens when considering the future of work and workplace change. It puts forward suggestions for future research and scholarship, to reframe equality law, and to build a research agenda that helps advance workplace equality for people of all ages.
Enacting Intersectionality: A Case Study of Gender Equality Law and Positive Equality Duties in Victoria

Blackham, A ; Ryan, L ; Ruppanner, L (Monash University, 2024)

While intersectionality offers important ideas to advance and extend understandings of inequality, it can be difficult to operationalise in practice. Intersectionality has rarely been integrated into the Australian legal framework. The Gender Equality Act 2020 (Vic) is one of the first discrimination statutes in Australia seeking to operationalise intersectionality. The Act establishes a new positive equality duty for the Victorian public sector, including requirements for ‘defined entities’ to report data on intersectional gender equality. The Act, and its implementation, therefore offers a critical case study for evaluating an intersectional approach to equality. Drawing on legal doctrinal research; 44 qualitative expert interviews with those involved in the development and implementation of the Act; and documentary analysis, we consider how the Victorian public sector has responded to this new legal regime, and identify barriers and difficulties in advancing an intersectional approach to equality in practice. We argue that major implementation gaps have emerged in Victoria, reflecting intersectional inequality in the public service itself, and the developing understanding of intersectionality by key players. We put forward suggestions and reforms to address these limitations.
Mixed methods research

Blackham, A ; Blackham, A ; Cooney, S (Edward Elgar Publishing, 2024-08)

Mixed methods research designs meaningfully integrate both qualitative and quantitative methods to understand a research problem. Mixed methods research methodologies can be used to cast a nuanced light on complex legal problems, generating new answers which would not be perceived with one data source alone. However, mixed methods research appears rare in labour law research, perhaps reflecting gaps in legal data, the time and cost of undertaking such studies, and limited training in quantitative methods in some jurisdictions. This chapter identifies data sources that could enable a new generation of mixed methods labour law research.
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.

Melbourne Law School - Research Publications

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