Melbourne Law School - Research Publications

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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.
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    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.
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    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.
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    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.
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    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.
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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.