Consumer protection: Why diversity and inclusion matters

Disability Discrimination Commissioner Dr Ben Gauntlett delivered this keynote speech at the Australian Competition and Consumer Commissioner (ACCC)'s International Consumer Protection and Enforcement Network (ICPEN) Conference Dinner on Tuesday 9 May, 2023. 

I wish to acknowledge and pay my deep respects to the Traditional Owners of the land where I am presenting to you today – the Gadigal people of the Eora Nation. I pay respect to their Elders; past, present and emerging and acknowledge their continuing connection to this country. I also acknowledge all other Aboriginal and Torres Strait Islander Elders and community members who are here today.

Introduction

Ladies and gentlemen, Presidents, Directors-General, Commissioners, Board Members, Secretaries and other distinguished guests.

Thank you for that kind introduction. I was last at this beautiful venue for a function to celebrate the awarding of some scholarships for young people to study overseas. There is nothing quite like the youth of today to make you feel woefully inadequate.

Overseas Experience

However, they made me contemplate the travels I had been on as part of what could best be described as “academic tourism”. I wanted to, and fortunately did, live in various locations throughout the world and contemplated trying to work for organisations such as the Federal Trade Commission or Department of Justice in the United States, the United Kingdom Office of Fair Trading or the Competition and Markets Authority, DG Competition in Brussels.

Sadly, I was in England when they won both the Rugby World Cup and beat Australia in Cricket in a series for the first time in 20 years. Never has a better lesson in hidden markets or hidden consumers been provided. My postgraduate studies were in European Community Law, but lacking a gift for foreign languages, a return to Australia beckoned.

Diversity and Inclusion and Consumer Protection Law and Enforcement

I would like to focus my remarks today on the issue of diversity and inclusion and its relevance to consumer protection law and enforcement. Perhaps unsurprisingly, as a person who presently works in discrimination law and policy for people with disability, I am going to talk a bit about people with disability, which is an issue of global concern. However, I think it would be misleading to just isolate one diversity characteristic and focus upon it. We know that people have many interwoven characteristics and to focus upon one is simplistic.

Issues in Australia and Across the World

In Australia, we have recently had a lot of work done in the area of workforce participation for women and the dangers of gender-based harassment and violence. This is an ongoing area of improvement. But we also have had significant challenges in the areas of inclusion of people from culturally and linguistically diverse backgrounds, which includes our first nations people, and the rights of LGBTQIA+ individuals.

All countries in the world, and all people in the world, face similar challenges in appreciating diversity and being inclusive. The appreciation of difference, in all its forms, requires a careful assessment of policy settings and how we interact with each other. Often, at the moment, this debate is framed in terms of economic participation. This includes access to leadership positions within organisations. “You cannot be what you cannot see” is often articulated to change perception on particular issues. This excludes invisible aspects of diversity, such as many people with disability.

Historical Background of Diversity and Inclusion

The debates we have concerning diversity and inclusion have a long historical background – but are still relevant today (if perhaps requiring different solutions). The medical profession and other health professionals have had to grapple with the importance of considering the diversity of their patients. The term “bedside manner” is often used to articulate the need for doctors and other health professionals to have good communication skills. When issues of diversity are not considered by a doctor or a health professional then misdiagnosis can occur.

When law enforcement officials, particularly those individuals with policing obligations, interact with people from different racial backgrounds and/or certain disability, we know that certain profiling can take place, which can lead to egregious outcomes.

The way to reduce the error rate in medicine or in law enforcement is to provide additional training for professionals on issues such as unconscious bias. Many civil rights movements the world over have historically pointed out much needs to be done now and in future. But how does unconscious bias training assist a computer programmer developing artificial intelligence programs? When data inputs in an algorithm are not reflective of the population, the outputs of the algorithm invite error.

Role as Disability Discrimination Commissioner

When I took on the job as Disability Discrimination Commissioner at the Australian Human Rights Commission approximately four years ago, I thought I had a reasonable grasp of the lives of people with disability in Australia and, to a lesser extent, across the world. In a sense, you think that might be the reason why you were appointed. However, my views were misguided.

Bushfires and Covid-19

In late 2019 and into early 2020, Australia had a series of significant bushfires, which caused enormous damage to property and loss of life. It was, at the time, thought to be a significant stressor for people who were affected – particularly people with disability. Shortly afterwards, a global pandemic struck. There are many views about the Covid-19 pandemic and its effect upon people across the world. One view many commentators will agree upon is that the pandemic exacerbates disadvantage. I also found it educated me just how little I knew about diversity and inclusion.

One of the policies that was instituted in Australia by the government was to change the rate of certain government payments. This changed rate of payment was designed to take into consideration the public health measures that have been instituted by different governments and to enable people to isolate. As a quadriplegic, I took isolation and public health measures extremely seriously. For approximately 12 to 18 months, I rarely left the house. One exception was to go to the hospital for medical appointments. I was still working and would often take advantage of mobile phone technology to do some work while waiting to be seen (not everyone can do this).

One day I was scrolling through my emails and came across an email that I had previously looked at but was undecided upon what I wanted to do. A person who received government payments or social security benefits had emailed me inquiring why I did not argue more openly as to the inadequate nature of some of the changes that had been made for people with disability who were struggling financially.

For no reason I can recall, I did exactly the thing that you’re told never to do, and I called this individual. We had a lengthy and respectful conversation where I tried to listen to her point of view and explain why I could not make the changes she wanted. During the conversation, the individual said something to me that resonated. She repeatedly said to me, “you do not understand my life”. She was right. I did not. She asked quite openly that if I did not contest the issue on her behalf who would?

Role of Public Servants

As public servants, or people who work in consumer law and enforcement, you are often required to try and understand the effect of conduct on individuals who have backgrounds that are different from your own. In a sense, you must put yourself in their shoes. Why an appreciation of diversity and inclusion is important is that it enables us to better understand the people who we seek to protect and/or serve.

Global events of the past few years are a salient reminder of a need to not make assumptions about how people live. Not every person has an iPhone or knows how to use QR codes. Technology can improve our quality of life but it can also exclude or discriminate. For example, in the field of facial recognition technology and people from diverse backgrounds.

Diversity and Inclusion from Three Perspectives

I want to talk about the importance of diversity and inclusion from three perspectives: as a society or community; as organisations; and as individuals. However, in doing so, I hope to make you contemplate three interrelated points.

First, when we appreciate diversity and inclusion at a community or society level, we have a better grasp of the intended and unintended consequences of policy choices.

Second, when we appreciate diversity and inclusion at an organisational level we are likely to deploy resources more effectively, from the harnessing of talent to the judgment on enforcement priorities.

Third, when we appreciate diversity and inclusion at an individual level, we ask better questions and, perhaps most importantly, are receptive to feedback from others.

I have chosen these three levels of analysis deliberately as these are the levels of engagement over a prolonged period needed to create social impact in society.

Diversity and Inclusion at a Community or Society Level

The prism through which we have all viewed issues of diversity and inclusion has changed over time. For people with disability, we have moved from a view that focuses upon an underlying medical diagnosis, to objects of charity, to being directly affected by the laws and world around us to the holders of rights to participate in society. But sometimes people’s differences are forgotten.

On 17 June 2017, at or around the time I was in London, a fire broke out at a Grenfell Tower, which was a 24-storey residential housing block, in North Kensington. 72 people died – many of those people were from diverse backgrounds and almost all from low socio-economic circumstances. The fire started from a faulty fridge freezer but it was exacerbated by external cladding, which was a fire hazard. The regulatory failure stemmed from a need to relax regulation to promote economic activity. No one considered the effect of such imperatives on people who usually live in public housing or were or are socially disadvantaged.

Policies have consequences – not all of them intended and we can overlook potential outcomes. A modern example of this is the application of artificial intelligence to diverse populations. A greater appreciation of diversity and inclusion as a society means that we appreciate why laws and policies exist.

Diversity and Inclusion at an Organisational Level

Appreciating diversity and inclusion creates a feeling of “trust” with internal and external stakeholders. From a person in customer service sensing a need to ask a question about how they could better assist someone to employees being their whole selves, diversity and inclusion improves performance.

In looking at the effect of trust on business performance the Harvard Business Review found in an article entitled, “The Neuroscience of Trust - Management behaviors that foster employee engagement” that:

Compared with people at low-trust companies, people at high-trust companies report 74% less stress, 106% more energy at work, 50% higher productivity, 13% fewer sick days, 76% more engagement, 29% more satisfaction with their lives, and 40% less burnout.

People will volunteer their perspectives when they feel appreciated. Those perspectives can ensure a more effective use of resources.

Diversity and Inclusion at an Individual Level

Appreciating diversity and inclusion at an individual level makes us better practitioners and, where applicable, leaders. Being openly vulnerable can change discussions and organisations but to do so we all need to acknowledge we can do better.

Often in law the key issue is to ask, “what is the correct question?” Knowing the potential audience informs that question.

Conclusion

We all have chances to reflect on how we practice in our careers and personally. The effort to understand others is not effort wasted. Acknowledging the need to embrace the different aspects of diversity and inclusion is an important step.

Thank you for asking me to speak tonight. It has been an honour and a privilege.