Legal scholars are increasingly attuned to the substantial benefits that can be derived from empirical and socio-legal scholarship. While drawing on the knowledge of legal insiderssuch as legal practitioners, judges or academics-to critique and evaluate the effectiveness of law and legal reform is an established means of empirically evaluating legal impact, this approach can be particularly problematic in relation to empirical equality research, as legal insiders are unlikely to be members of the under-represented groups that are the focus of equality regulation, and are instead more likely to represent the majoritarian status quo. Drawing on two empirical projects conducted in Australia and the UK, this paper considers the benefits, potential pitfalls and challenges of undertaking empirical equality research in the workplace. Using an insider / outsider lens to facilitate analysis, it canvasses existing gaps in empirical equality law scholarship and considers how future research could address these limitations.

The year 2018 saw significant tribunal and court decisions concerning the definition of ‘casual’ for the purposes of the National Employment Standards, the obligations of labour hire employers, and the employment status of food delivery drivers in the gig economy. This review also covers a number of significant changes to awards made by the Fair Work Commission as part of its 4-yearly award review; a Full Federal Court decision about the extent to which a small group of employees genuinely agreed to approve an enterprise agreement. An unusual tribunal decision about an employee who was assumed to have a disability is noted. Finally, the review considers several significant judicial decisions on accessorial liability and penalites under the Fair Work Act.

Alternative Dispute Resolution ('ADR') is a long-standing feature of both Australian and UK anti-discrimination law. In this article, we critically examine the advantages and disadvantages of using ADR to resolve a discrimination claim in Australia and the UK, and the effect ADR is having on discrimination law more broadly. While the UK and Australia have similar discrimination law statutes, and both largely rely on an individual rights model to address discrimination, they use ADR in contrasting ways, and with varying implications in practice. We argue that while ADR offers potential benefits in resolving discrimination claims, the extensive reliance on ADR in both jurisdictions to resolve disputes risks undermining the development of discrimination law. We offer five key areas in which the regulatory framework could be reviewed to address these limitations and risks.

Federal anti-discrimination law centres upon the individual who has experienced unlawful discrimination. To address this discrimination, the individual is required to lodge a complaint at the Australian Human Rights Commission (‘AHRC’), which will attempt to resolve the complaint using Alternative Dispute Resolution (‘ADR’). While institutions in other areas, like competition law and occupational health and safety, have a broad range of powers to enforce compliance, successive governments have chosen not to invest the AHRC with equivalent powers. Quite a different model has operated in Britain for four decades. This article analyses the role of the AHRC by comparing it to its British equivalents and examining these institutions according to the ‘enforcement pyramid’ for regulating equal opportunity, which British academics Bob Hepple, Mary Coussey and Tufyal Choudhury have developed. According to these regulatory theorists, to tackle discrimination effectively, equality commissions need to be able to follow up their loud ‘bark’ with a punitive ‘bite’ if necessary. The article concludes by identifying what the experience in both countries reveals about the enforcement of antidiscrimination laws by statutory institutions.

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