GUEST EDITORIAL Introduction to the Special Issue Using Transparency to Achieve Equality

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.

SAGE Ltd: Continuing the Journey to Transform Gender Equity, Diversity and Inclusion in Australia’s Higher Education and Research Sector

Science in Australia Gender Equity (SAGE) began as a Pilot program in 2015. It was modelled on the UK’s Athena Swan Charter (Advance HE), a framework for improving gender equity and diversity in science, technology, engineering, mathematics and medicine (STEMM); specifically, within higher education and research.

Government Transparency in Decision Making

Freedom of information (FOI) regimes are a hallmark of modern democracies and a crucial element of any government transparency and integrity framework. This paper examines how government responses to COVID-19 brought the need for greater transparency of government decision making to the fore. Genuine engagement with FOI regimes provides a fundamental mechanism to keep government decision makers accountable and increases and maintains trust capital between citizens and the state. In turn, governments rely on this trust capital to take strong and decisive action—as highlighted by global responses to COVID19. The author argues that FOI is an important mechanism to challenge poor government decision making, and ultimately enhance the long-term health of our democracy.

The Use of Data in the Making and Monitoring of Parental Leave in Australia

This paper considers the availability and use of data in parental leave policy making and monitoring in Australia. The terminology of parental leave is discussed and its use in Australia is explained as referring to paid and unpaid leave for mothers, fathers and partners at the time of birth or adoption of a child and usually covering the first 12–24 months after the birth or adoption. It includes entitlements in labour law legislation, the federal government’s Paid Parental Leave scheme and separate employer provisions. The paper outlines the range of data sources and how they were used to construct a case in favour of the introduction of the Paid Parental Leave scheme in 2010 and to monitor its implementation, as well provision of paid parental leave through enterprise bargaining and company policies. The paper also explains how data was used in a deliberately constructed way to defend the Paid Parental Leave scheme when it was under threat of significant change. In conclusion the paper draws attention to the way terminology is shifting, to how data illuminates the gendered use of parental leave in Australia and argues for the need for refreshed data on parental leave availability, access and use in Australia.

Book Review: Julie Fraser and Brianne M. Leyh (Eds.), Intersections of Law and Culture at the International Criminal Court

Book Review: Anita Mackay, Towards Human Rights Compliance in Australian Prisons, Canberra: Australian National University Press, 345pp + xxii, ISBN: 9781760464004.

The Equal Opportunity Act 2010 (Vic) Review Function: ‘Soft’ Regulation or an Effective Tool to Promote Transparency and Equality?

Regulatory triggers can provide a powerful motivator for transparency, including its implied expectations of openness and accountability. This includes section 151 of the Equal Opportunity Act 2010 (Vic), which enables the Victorian Equal Opportunity and Human Rights Commission to review a duty holder’s “programs and practices” to determine their compliance with the Act. This article argues that the exercise of the review function in section 151 supports transparency through the level of access to people and information it affords and the ability for the Commission to critically and openly assess the state of equality in a duty holder’s organisation. This level of access and openness encourages accountability and helps to persuade and motivate duty holders to take measurable steps towards achieving equality and compliance with the Equal Opportunity Act. Surprisingly little is known, however, about this regulatory tool and its facilitative approach to compliance. This article seeks to build awareness and understanding of the review function and critically analyses its potential to promote transparency and equality. It suggests that the review function is a tool deserving of greater consideration, particularly by duty holders, in efforts to achieve substantive equality.

Book Review: Anita Mackay, Towards Human Rights Compliance in Australian Prisons

Book Review: Anita Mackay, Towards Human Rights Compliance in Australian Prisons, Canberra: Australian National University Press, 345pp + xxii, ISBN: 9781760464004.

Litigating Racial Profiling: The Use of Statistical Data

The use of statistical data to prove racial discrimination by police in individual cases is relatively novel in Australia. Based on a survey of international strategies, this article argues that statistical and social science data can play three critical evidential roles in litigation. Firstly, it can form part of the social context evidence used to influence the inferences that can be drawn from other evidence led in a case. Secondly it can influence the cogency of the evidence required for claimants to meet the standard of proof, and thirdly, it can be used to shift the burden of proof. Using these evidential methods, evidence of institutional racism can be used to assist in making findings of discrimination in individual cases. This article speculates on the role that statistics could have played in the Haile-Michael race discrimination claim that settled in 2013, and in the 2019 inquest into the death of Tanya Day.

Book Review: Jelena Madir (Ed.), Healthtech Law and Regulation

While telemedicine and M Health Apps have been credited with increasing life expectancy and quality of life, the Coronavirus pandemic has illustrated many challenges in the efficient application of healthcare technology. For example, digitisation has been a successful addition to healthcare services but has also brought new and unforeseen problems such as outdated anti-virus or anti-malware software issues. Healthtech Law and Regulation addresses these new challenges, providing an overview of international treaties and European Union (EU) directives and regulations, as well as domestic European and United States (US) legislation; identifying gaps in existing laws and policies. Though primarily covering EU and US health law and regulation, this edited collection will be of interest to regulators and researchers in all jurisdictions.

Book Review: Michael Giudice, Social Construction of Law: Potential and Limits

That law is socially constructed is so ubiquitous a statement in law and the humanities as to render itself dangerously close to ‘common sense’. The subheading ‘Potential and Limits’ is the key to Giudice’s original argument in which he suggests that law is both socially constructed; yet retains a ‘natural’ core. When teaching critical theory, I encourage students to examine anything they understand as ‘common sense’ as a potential blind spot for bias and assumptions deeply ingrained in ideology. As such, the attempt to examine exactly such a potential blind spot is exactly the sort of problem legal philosophy should seek to address.