Melbourne Law School - Research Publications

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    Empirical legal research teaching in Australia: Building an empirical revolution
    Blackham, A (SAGE PUBLICATIONS LTD, 2024-03-01)
    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claim under the Act; with extensive conciliation in equality law, it is likely that most claims are conciliated or withdrawn before proceeding to a public court hearing.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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    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.
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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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    We are All Entrepreneurs Now : Options and New Approaches for Adapting Equality Law for the Gig Economy
    Blackham, A (Kluwer Law International BV, 2018-12-01)
    As the world of work moves to increasingly precarious, temporary and insecure forms of labour, traditional forms of work regulation are becoming less relevant for the ‘gig economy’. Equality law has traditionally been framed as protecting ‘employees’ (and now ‘workers’) against acts of discrimination by ‘employers’. As these categories become increasingly remote from the lived experience of work, the relevance and potential of equality law to secure individual employment rights becomes increasingly limited. Drawing on comparative legal doctrinal analysis of the UK and Australia, this article considers options and new approaches for protecting workers from discrimination in new forms of employment, canvassing ideas such as the extension of equalitylaw to non-traditional workers, collectivized approaches to individual protection, and the use of positive duties to regulate the gig economy. This article questions the basic relevance and structuring of equality law for new forms of work. If equality law is to remain relevant and effective, serious changes are required to how it is conceived, framed and promoted. Merely extending existing ideas of ‘equality law’ to new forms of work will not respond to fundamental shifts in the labour market: there is a need to rethink and retheorize the role and purpose of equality law
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    Under Wraps: Secrecy, Confidentiality and the Enforcement of Equality Law in Australia and the United Kingdom
    Allen, D ; Blackham, A (Melbourne University, Law Review Association, 2019)
    Confidentiality has become an integral part of the individual enforcement model for equality law in Australia and the United Kingdom. Contrary to the focus on openness and transparency in the courts generally, confidentiality is embedded in the enforcement, process, and outcomes of equality law. In this article, we consider the role and utility of confidentiality in equality law in Australia and the UK. We scrutinise the ways confidentiality is embedded in the enforcement, process, and outcomes of equality law in each jurisdiction, including via an examination of statutory provisions, the processes adopted by statutory equality agencies, and the available information about claims. We argue that the enforcement of equality law requires a more nuanced balance between confidentiality and transparency to support the individual and systemic aims of equality law and the imperatives of the rule of law.
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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.