Melbourne Law School - Research Publications

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    Empirical legal research teaching in Australia: Building an empirical revolution
    Blackham, A (SAGE PUBLICATIONS LTD, 2023-01-01)
    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.
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    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.
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    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claim under the Act; with extensive conciliation in equality law, it is likely that most claims are conciliated or withdrawn before proceeding to a public court hearing.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.
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    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.
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    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.
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    When Law and Data Collide: The Methodological Challenge of Conducting Mixed Methods Research in Law
    Blackham, A (Wiley, 2022-09-01)
    A mixed methods research methodology – that integrates both qualitative and quantitative research methods – theoretically offers substantial advantages for empirical legal scholarship. I argue that mixed methods represent both a challenge to socio-legal scholarship and an invitation to re-evaluate our approach to socio-legal research; indeed, mixed methods are well-aligned with the inclusive and eclectic nature of the field. At present, though, these opportunities appear underutilised. This paper considers how socio-legal scholarship might advance mixed methods methodology, through a renewed focus on qualitative methods, improved dialogue between methods, and emphasizing the practical ‘messiness’ of quantitative data. Drawing on an empirical mixed methods study of the enforcement of age discrimination law, I illustrate how legal data poses its own challenges to the methodologies of quantitatively-oriented mixed methods researchers.
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    COVID-19 and the Australian labour market: how did older Australians fare during 2020?
    Fry, J ; Temple, J ; McDonald, P ; Blackham, A (Australian Population Studies, 2021)
    Background   In analysing the effects of the COVID-19 pandemic on the labour market, attention has focussed on younger people, leaving a research gap when it comes to outcomes for older Australians aged 50 years or over, in terms of employment, unemployment, underemployment and hours worked. Aims   To describe levels of labour force participation, unemployment, underemployment, and hours worked by older workers and job seekers during 2020. Data and methods   Using Australian Bureau of Statistics data, we perform descriptive analyses of variations in labour market outcomes by geographic areas, public and private sector employment, industry of employment and demographic characteristics. Results   Older employment fell in April but recovered by December. As the full-time share initially increased, average hours worked decreased due to reductions in hours offered to workers, increasing the underemployment rate. There was little recovery of employment in metropolitan Melbourne due to prolonged lockdown conditions. Of the largest industries, retail trade and manufacturing were worst affected.
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    GUEST EDITORIAL Introduction to the Special Issue Using Transparency to Achieve Equality
    Allen, D ; Blackham, A (La Trobe University, 2021-09-09)
    This Guest Editorial introduces a Special Issue of Law in Context which considers how the collection of large-scale data by government entities and organisations might advance the equality agenda across diverse areas of public life, and how best to manage the risks of this emerging strategy. Drawing on interdisciplinary perspectives and the insights of policymakers, the articles and comments listed below seek to develop new principles to guide government and organisational activity in this novel endeavour.
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    Positive Equality Duties: The Future of Equality and Transparency?
    Blackham, A (La Trobe University, 2021)
    Transparency is a radical expectation in the context of equality law. In a system highly dependent on individual en-forcement, the lack of transparency in individual claiming dramatically limits the potential of equality law to achieve systemic change. Overcoming discrimination that is systemic, embedded, and pervasive requires moving beyond confidential mechanisms for addressing discrimination. Given that the implementation of workplace equality law occurs in practice at the organisational level, there is a growing need to focus on what employers are actually doing to achieve equality, and how their practices are accountable to those affected and the broader community. In this paper, drawing on case studies from the United Kingdom and Australia, I consider how corporate and governmental transparency might be extended to equality and discrimination, by embedding such obligations within positive equality duties. I consider how the publication of equality information under the Public Sector Equality Duty in the UK, and more limited gender pay gap reporting in the UK and Australia, have promoted transparency and addressed inequality. Considering theories of targeted transparency and action cycles, I put forward five key criteria to make transparency via positive equality duties effective. I consider the limitations of existing models, and put forward suggestions for how transparency might be better embedded and enacted in future positive equality duties.
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    Does removing default retirement ages benefit individuals? A comparative empirical case study of the university sector
    Blackham, A (SAGE Publications, 2021)
    In 2011, the UK government abolished the national default retirement age. While this could support extended working lives and promote individual choice, it could also be a neoliberal ‘ploy’ to individualise the risks of old age. The question, then, is what impact does the removal of mandatory retirement have in practice: does it help to promote individual choice and autonomy? Or does it simply lead to work intensification and the individualisation of the risks of demographic change? Or both, perhaps simultaneously? Drawing on original qualitative and quantitative empirical data from UK and USA universities, this article considers the impact of removing mandatory retirement ages on individual workers in higher education. It argues that legal reform may have promoted or encouraged work intensification in universities, including through an increased focus and use of performance management. Thus, in practice, the consequences of removing retirement ages for individuals are mixed.