Modern Australian

what Australian discrimination law says about quotas

  • Written by Liam Elphick, Adjunct Research Fellow, Law School, University of Western Australia

In March last year, Frances McDormand won the Academy Award for Best Actress.

In her acceptance speech, she drew attention to the female nominees in the room and left them with two final words: “inclusion rider”.

Inclusion riders are contractual clauses that can be used by prominent stars like McDormand to demand quotas for greater employment of minority groups on- and off-screen.

Within weeks, a long list of actors including Brie Larson, Matt Damon and Michael B. Jordan had pledged to adopt an inclusion rider in future contracts. Last September, Warner Bros became the first major Hollywood studio to adopt a company-wide policy to implement an inclusion rider practice.

But what do Australian discrimination laws say about hiring practices based on attributes such as gender, race or disability?

Pressure to diversify

Developed in the US by Dr Stacy Smith, inclusion riders are designed to put pressure on film companies to diversify their hiring practices. They are particularly targeted at increasing diversity through supporting acting roles and positions among the crew.

An actor in a leading role could request a clause in their contract stipulating that Indigenous Australians must comprise at least 10% of the supporting cast in an Australian film, or 50% of the film crew must be women.

Through this, power imbalances in creative industries can begin to be rectified.

Read more: The Oscars: inclusivity riders are a start but change needs to come from the ground up

Women have the majority of dialogue in just 22% of films. Just 4% of major film directors are female. While 17% of the Australian population are of non-European background, only 7% of characters in Australian television are of non-European descent. Further, 91% of Australian TV characters with a disability are cast with non-disabled actors.

Unclear legal implications

Discrimination laws in Australia protect most attributes symmetrically. For instance, this means men and women are both protected from sex discrimination.

Consider a male actor not selected for a supporting role where the lead actor’s contract required 50% of the supporting cast be female. If the male actor would have been selected but for the inclusion rider, he could mount a discrimination case.

However, all four of the current federal discrimination law statutes (race, sex, disability and age) - and indeed the new draft religious discrimination bill – contain a “special measures” provision.

These provisions permit otherwise unlawful discriminatory acts where they seek to further the opportunities of historically disadvantaged groups.

These laws also permit casting practices for particular roles on the basis of authenticity, through “genuine occupational requirement” provisions: a role can be written for a woman, or someone of Asian descent, and cast appropriately. The “genuine occupational requirement” provisions would not usually apply to inclusion riders, as riders target roles where these attributes are not “required” - such as supporting roles or off-screen roles.

Would inclusion riders be lawful?

We recently published a paper in the Media and Arts Law Review which examined the lawfulness of inclusion riders as “special measures”.

This is an especially difficult question because of the way these discrimination laws are drafted. Different policy reasons underpin each of the special measure provisions, such as “achieving substantive equality” (sex), “reducing a disadvantage” (age), and securing “adequate advancement” (race).

Inclusion riders that target groups across all four laws would therefore have to meet four different sets of requirements.

But the question essentially boils down to this: is the measure targeted at increasing opportunities for a disadvantaged group, and is it a reasonable and/or appropriate way of achieving this?

If a quota or measure is stricter, its rationale must be stronger. And the less represented a group is, the easier it is to make this rationale.

Our paper suggests inclusion riders are likely to meet this test and qualify as a special measure under all four laws. The groups targeted by inclusion riders are undoubtedly disadvantaged in the film industry.

When particular groups do achieve fair representation in creative industries, inclusion riders may then become unlawful. But this seems a long way off.

The rest of the ride

Despite inclusion riders likely being lawful under Australian discrimination laws, barriers to their implementation remain.

Producers may be concerned at the potential for discrimination claims and the consequential attention this could draw – even more so when measures must comply with four different federal laws and eight state and territory laws, which each provide different complex tests.

As such, we propose two reforms to encourage and empower actors and film companies to take up inclusion riders in Australia.

First, a new harmonised provision on special measures should be drafted. If each federal law contained the same special measures test this would provide certainty to producers seeking to implement inclusion riders. Though the harmonisation of all federal discrimination laws failed back in 2012, the harmonisation of a single provision should be more achievable.

Second, companies should be able to certify inclusion riders as lawful special measures.

The Australian Human Rights Commission currently has no power to approve particular special measures.

Allowing the Commission to certify such measures would provide producers with the preemptive authority and confidence to implement special measures. It could create greater certainty on the lawfulness of quotas in other sectors, too.

Inclusion riders aren’t the only answer

While inclusion riders provide an important and effective step towards the goal of achieving greater diversity in creative industries, it is not the only step to be taken.

Producers must consider how diverse groups are represented so as to avoid reinforcing stereotypes.

Pay parity also requires significant work: an inclusion rider cannot achieve its aims if more women are employed but they are paid vastly less than male counterparts.

Stakeholders could also build on Screen Australia’s Gender Matters program, which is already reaping benefits.

As then-Sex Discrimination Commissioner Elizabeth Broderick noted in a speech ten years ago on gender equality and quotas: “without a significant change in approaches the only thing we can expect is more of the same.”

If the response to McDormand’s speech is anything to go by, creative industries have the platform and opportunity to be leaders in this change.

Inclusion riders are a start: but more needs to be done to ensure we aren’t sitting here in another decade saying the same thing.

This article was co-authored with Monica Brierley-Hay (Associate, Federal Court of Australia)

Authors: Liam Elphick, Adjunct Research Fellow, Law School, University of Western Australia

Read more http://theconversation.com/the-case-for-inclusion-riders-in-creative-industries-what-australian-discrimination-law-says-about-quotas-122264

NEWS

High-speed rail on Australia's east coast would increase emissions for up to 36 years

PiqselsBullet trains are back on the political agenda. As the major parties look for ways to stimulate the economy after the COVID-19 crisis, Labor is again spruiking its vision of...

Three years on from Uluru, we must lift the blindfolds of liberalism to make progress

Wes Mountain/The Conversation, CC BY-NDThe Uluru Statement from the Heart offered a new compact with all Australians that would reset our national identity and enhance our political legitimacy. But its...

Can't resist splurging in online shopping? Here's why

ShutterstockThe demand for online shopping has obviously increased since COVID-19 restrictions were put in place. But less obvious are the subtle psychological drivers behind our collective online shopping splurge. In...

The problem with arts funding in Australia goes right back to its inception

The Bell Shakespeare Company – established with support from the Trust – had to end its touring season of Hamlet early due to coronavirus. Brett BoardmanThe arts and culture sector...

Coronavirus has changed our sense of place, so together we must re-imagine our cities

Is it time to re-imagine our fundamental relationship with cities?People bring cities to life. They interact, work, socialise and travel. Without this, cities are just collections of buildings and infrastructure...

JobKeeper $60 billion snafu like your house builder revising quote: Morrison

Campaigning in Eden-Monaro with just-selected Liberal candidate Fiona Kotvojs, Scott Morrison on Sunday turned folksy to present the upside of the $60 billion JobKeeper forecasting snafu.“If you’re building a house...

Beware the 'cauldron of paranoia' as China and the US slide towards a new kind of cold war

In September 2005, before an audience of some of the most powerful business figures in the United States, then US Deputy Secretary of State Robert Zoellick unveiled his “responsible stakeholder”...

Treasury revises JobKeeper's cost down by massive $60 billion, sparking calls to widen eligibility

The federal treasury has revised down by a massive $60 billion the estimated cost of the JobKeeper wage subsidy program, from an original $130 billion to $70 billion.Treasury revealed its...

Internet traffic is growing 25% each year. We created a fingernail-sized chip that can help the NBN keep up

This tiny micro-comb chip produces a precision rainbow of light that can support transmission of 40 terabits of data per second in standard optic fibres. Corcoran et al., N.Comms., 2020, CC...

Target's decline is part of a deeper trend

Wesfarmers’ decision to close or rebrand up to 167 of its 284 Target and Target Country stores should not come as too much of a surprise. The once popular store...

The WHO's coronavirus inquiry will be more diplomatic than decisive. But Australia should step up in the meantime

US Mission Geneva/Flickr/Wikimedia Commons, CC BYThis week the World Health Assembly, the governing structure of the World Health Organization, endorsed a resolution that comprehensively addressed the global COVID-19 response. Buried...

Is it time to reopen our borders? For states still recording new cases, it's too soon

This week, we’ve seen state governments in heated debate over the question of reopening borders between Australian states and territories.New South Wales premier Gladys Berejiklian is arguing for the reopening...

Popular articles from Modern Australian

Urban Development: Trends Shaping The Future of CitiesThree cities worth visiting in PolandUpgrade your career in beauty therapy with these short beauty courses6 Ways To Treat Obstructive Sleep Apnea (OSA)Top Tips for the Best Camping TripHealthy Cooking at Home - Tips & TricksMental Health and Covid-19: How Effective are Health- Supplements?Know the Best Times to Eat Protein BarsEnhancing Self Sense of HumorPlanning a wedding overseas? Keep your spending in check with these simple tipsNutri-Grain is launching 'Gold Honey Crunch', a limited-edition flavourTammy Hembrow Launches Mini Saski In Time For Mother's DayBad Cooking Habits You Must BreakTeaching Kids to Brush Their Teeth and Floss CorrectlyLocked Out Of Your Car? Here Is What You Can Do!