Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022
It’s a great pleasure to rise in support of this bill, and I congratulate my good friend the Attorney-General on bringing this bill before the House so early in this government’s first term.
Before the May election Labor gave a firm commitment that in government, we would implement in full the recommendations of the Sex Discrimination Commissioner, Kate Jenkins, in her landmark Respect@Work report.
This bill honours that commitment.
Background - the problem
Sexual harassment is a real and growing problem in Australian workplaces.
This is not just anecdotal; the Australian Bureau of Statistics conducts a Personal Safety Safety survey to inform the nation of the data.
It collects information from men and women aged 18 years and over about the nature and extent of violence and harassment they had experienced.
The survey found that 53% of women and 25% of men had experienced sexual harassment in their workplace. The most recent survey found that the prevalence of sexual harassment had increased between 2012 and 2016 for both men and women.
The survey found that those who had experienced sexual harassment were more likely to have also experienced sexual assault, compared with those who had not experienced sexual harassment.
It also found that sexual harassment can have long term consequences for those who experience it. Lower life satisfaction and financial stress were associated with higher rates of sexual harassment.
We should be clear about what the term “sexual harassment” means. The ABS survey gave the following definition:
It may seem shocking or astonishing to some Honourable Members that behaviours such as this are so prevalent in Australian workplaces, but both the ABS survey and the Respect@Work Report make it clear that this is the case.
They happen in blue-collar and white-collar employment, in the private and public sectors, in large workplaces and small ones, in school and hospitals, in the police and defense forces, and in the offices of Members of Parliament.
The challenging nature of sexual harrasment is reflected in what we know about the perpetrators.
Whilst sexual harrasment exists across all levels of workplaces and involves workers of all types, when the perpetrator is an employer or manager these behaviours it escalates to be an abuse of authority as well as an infringement of the personal dignity of the employee.
The harassment is also a form of blackmail, because the victim fears being disciplined or dismissed if they reject such behavior or make a complaint about it.
This is why workplaces must have processes in place to protect and support employees in these situations.
We recently saw a particularly shocking example of how sexual harassment can go on for years in the offices of the highest dignitaries in the land, and go on with impunity, because of the power imbalance between a male in a position of prestige and authority and young female employees.
In June 2020 we learned that the High Court Justice Dyson Heydon engaged in sexual harassment of female junior court staff over a long period of time. We learned this as a result of an inquiry instigated by the High Court and conducted by the former inspector-general of intelligence and security, Dr Vivienne Thom.
Heydon was a man in his 60s, a married man, and a High Court judge. His status was such that after he retired from the Court he was recruited by the Abbott Government to head its Royal Commission into Trade Union Governance and (alleged) Corruption.
The women he employed were in their early 20’s.
His power over their future careers in the law was obvious and was sufficient to intimidate them into silence for a long time.
As their lawyer said, there was an extreme power imbalance between Heydon and the young women.
There was no clear avenue for the women to complain about his conduct.
The fear of his power and influence meant that the women did not feel able to come forward.
This was but one instance of a much wider phenomenon.
In this case the women concerned were able eventually to expose the objectionable behaviour of a powerful older man because they had access to good legal representation, and because the institution involved, the High Court, was willing to conduct an investigation into one of its own senior figures and to accept its findings.
These are advantages not available to most people subjected to this kind of behaviour.
For the great majority of such people, the power of government must be brought to bear to protect them against harassment and intimidation.
Men in positions of authority must recognise that sexual harassment is a crime which will lead to serious consequence for them if it is detected, reported and exposed.
Those subjected to such behaviour must know that they have rights and that the law will protect them if they come forward.
Providing that protection is the duty of this Parliament.
Sex Discrimination Commissioner
The House will recall that in 2019, partly as a result of the ABS survey and other reports drawing attention to the high and apparently increasing level of sexual harassment in Australian workplaces, Commissioner Jenkins was asked to investigate this situation and produced a report to government on it.
In March 2020 she produced her Sexual Harassment National Inquiry Report, titled Respect@Work, the result of a year-long inquiry into the law relating to sexual harassment in Australian workplaces.
The report broadly confirmed the findings of the 2016 ABS survey.
It found that up to one-third of people – mainly but not exclusively women – who had worked in the previous five years had been sexually harassed. It concluded that the current system for addressing workplace sexual harassment was inadequate and confusing, and that it put an excessive burden on the individual employee to make a complaint, while imposing no responsibility on employers and managers to prevent sexual harassment.
This was of course particularly problematic, because many people experiencing sexual harassment in the workplace do not feel able report such incidents, out of fear that it will impact their work relationships, reputation and career prospects.
Let’s recall what Commissioner Jenkins said:
“The current legal and regulatory system is simply no longer fit for purpose. In the Inquiry report, I have recommended a new model that improves the coordination, consistency and clarity between the anti-discrimination, employment and work health and safety legislative schemes. Workplace sexual harassment is not inevitable. It is not acceptable. It is preventable.”
She concluded by saying “The rate of change has been disappointingly slow. Australia now lags behind other countries in preventing and responding to sexual harassment.”
What was the response of the Morrison Government to Commissioner Jenkins’s report?
In April 2020, Mr Morrison announced that he would adopt all the recommendations in the report, but as usual with the former Prime Minister, his announcement was not all it seemed to be.
We soon learned that although the Government had formally agreed to all the recommendations, it did so in some cases only “in principle” or “in part.” Even worse, they just “noted” some recommendation, which as it turned out meant that they weren’t going to do anything about them.
The former government
In 2021 the Morrison Government introduced its legislative response, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill.
That Bill nibbled around the edges of the substantial reforms needed, with most of its provisions simply clarifying or confirming the way the law already operated.
The Bill ignored the most important and urgent legislative changes recommended by Commissioner Jenkins, and made a bad job of implementing even those recommendations that the government had, grudgingly, agreed to.
For example, the Morrison Government accepted the Report’s recommendation to introduce “stop orders” when sexual harassment occurred, but they refused to introduce a positive duty on employers to take reasonable steps to prevent sexual harassment happening in the first place, and they refused to prohibit explicitly sexual harassment in the Fair Work Act.
The Morrison Government also failed to implement the regulatory changes that could help prevent sexual harassment in the workplace from occurring in the first place, despite their response to the Inquiry stating that “prevention must be our focus.”
The then Government couldn’t even bring itself to make clear that one of the objects of the Sex Discrimination Act should be to achieve substantive equality between women and men.
Instead, they watered down their ambition with weasel words, only aiming for “equality of opportunity… as far as practicable.”
The then Labor opposition did not oppose that bill, but we made it clear that we thought it was completely inadequate, and that Labor in government would revisit this issue as a high priority.
So now we have an opportunity to get this Parliament’s response to the Respect@Work report right.
This bill grasps that opportunity.
It gives effect to Labor’s pre-election commitment to fully implement all the remaining legislative recommendations of the report, except Recommendation 28 which is being progressed separately by the Minister for Employment and Workplace Relations.
The Bill significantly strengthens and clarifies the legal and regulatory frameworks relating to sexual harassment in Australia.
Most significantly, the Bill introduces a positive duty on employers and persons conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual and sex-based harassment, hostile work environments, and victimisation in workplaces across Australia.
The bill also amends the Sex Discrimination Act 1984, the Australian Human Rights Commission Act 1986 and the Workplace Gender Equality Act 2012 to provide the Human Rights Commission with the function of assessing and enforcing compliance with the positive duty now incorporated in the Sex Discrimination Act.
The bill replaces the rather feeble object clause inserted by Morrison Government’s act, which stated that an object of the Act is to achieve “equality of opportunity” between men and women, with a much stronger object: to “achieve substantive equality between men and women.”
The bill ensures that the provisions relating to sex-based harassment in the Sex Discrimination Act extend to conduct of a demeaning nature and not just conduct of a “seriously” demeaning nature.
It expressly prohibits conduct that results in a hostile workplace environment on the basis of sex.
It gives the Commission a broad inquiry function to inquire into systemic unlawful discrimination.
This bill removes procedural barriers to enable representative bodies to bring representative complaints in the federal courts.
It provides greater certainty to parties involved in court proceedings. It requires Commonwealth public sector organisations to report to the Workplace Gender Equality Agency on gender equality indicators.
All of these provisions give effect to recommendations of Commissioner Jenkins’s report.
This bill is a landmark piece of legislation, and is the embodiment of Labor’s commitment to both gender equality, ending harassment in our workplaces and to the rights of employees.
I again thank and congratulate the Attorney-General for bringing this bill forward, and I commend the bill to the House.
22 November 2022