1.1
On 28 September 2022, the Senate referred the provisions of the Anti‑
Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (the Bill) to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 3 November 2022.
1.2
The Bill would amend Commonwealth legislation to implement seven recommendations made by the Australian Human Rights Commission (AHRC) in its 2020 Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report (Respect@Work Report). The amendments would also strengthen the legal and regulatory frameworks relating to sexual harassment in Australia, and expand the role of the AHRC in preventing sexual harassment and other forms of sex discrimination.
Conduct of the inquiry and acknowledgement
1.3
In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to organisations inviting submissions by 12 October 2022. The committee received 40 submissions, which are listed at Appendix 1.
1.4
The committee held a public hearing in Sydney on 17 October 2022. A list of the witnesses who appeared at the hearing is at Appendix 2.
1.5
The committee thanks those individuals and organisations who made submissions and gave evidence at the public hearing.
Scope of the report
1.6
This report comprises three chapters:
Chapter 1 provides background information relating to the Bill, outlines the Bill's structure and key provisions, and notes consideration of the Bill undertaken by other parliamentary committees;
Chapter 2 examines some of the key issues raised by stakeholders; and
Chapter 3 sets out the committee's findings and recommendations.
Note on references
1.7
In this report, references to the Committee Hansard are to the proof (that is, uncorrected) transcript. Page numbers may vary between the proof and the official transcript.
Background to the inquiry
1.8
In 2018, the AHRC conducted its fourth national workplace sexual harassment survey (2018 National Survey). Everyone’s business: Fourth national survey on sexual harassment in Australian workplaces found that sexual harassment in Australian workplaces is widespread and pervasive, with one third of people experiencing sexual harassment at work over the past five years, and some groups of people being particularly susceptible to workplace sexual harassment.
1.9
In presenting the 2018 National Survey, Ms Kate Jenkins, Sex Discrimination Commissioner at the AHRC, remarked that the survey provides ‘a rich collection of data on the sexual harassment experiences of Australians’ and highlights the need for reform:
The 2018 National Survey provides the entire community—government, employers and the general public—with a robust evidence base to help understand the dimensions of sexual harassment in Australia, especially in our workplaces. However, more importantly, the survey findings compel us to take action to change the underlying social norms and inequalities that contribute to sexual harassment, to change workplace cultures that do little to address sexual harassment and to respond appropriately when sexual harassment occurs. Our goal must be to ensure all people work in an environment that is safe and non-threatening.
1.10
That same year, Ms Jenkins and the Hon Kelly O’Dwyer MP, then Minster for Women, jointly announced a National Inquiry into Sexual Harassment in Australian Workplaces (Respect@Work Inquiry). The terms of reference directed the AHRC to report on specific matters, including recommendations to address sexual harassment in Australian workplaces.
1.11
In 2020, the AHRC released the Respect@Work report, which made 55 recommendations directed to all levels of government and the private sector, for reforms aimed at preventing and addressing workplace sexual harassment.
1.12
In particular, the Respect@Work report recommended a number of legislative amendments to strengthen and clarify the legal and regulatory framework (including Recommendations 16(a) and (c), 17, 18, 19, 23 and 25), and to increase the focus on prevention (including Recommendation 43).
1.13
A key finding from the Respect@Work Inquiry was that Australia needs a new approach to addressing workplace sexual harassment:
Overwhelmingly, the Commission heard that the current system for addressing workplace sexual harassment in Australia is complex and confusing for victims and employers to understand and navigate. It also places a heavy burden on individuals to make a complaint. Yet most people who experience sexual harassment never report it. They fear the impact that complaining will have on their reputation, career prospects and relationships within their community or industry. Throughout the Inquiry, the Commission heard of the need to shift from the current reactive, complaints-based approach, to one which requires positive actions from employers and a focus on prevention.
Introduction of the Bill
1.14
On 27 September 2022, the Attorney-General, the Hon Mark Dreyfus KC MP, introduced the Bill into the House of Representatives, describing it as ‘a significant step in fulfilling the government’s election commitment to implement the recommendations of the Respect@Work report’.
1.15
The Bill was developed by the Attorney-General’s Department (AGD) in consultation with targeted stakeholders, including employer and industry bodies, unions, legal and advocacy bodies, and academics. Development of the Bill was also informed by the consultations that were conducted as part of the Respect@Work Inquiry.
1.16
The Attorney-General emphasised the Australian government’s commitment to eliminating sexual harassment in the workplace, adding:
Sexual harassment is a serious and pervasive issue that affects all industries and all professions and demands a fundamental rethink in how our laws are shaped to prevent and respond more effectively. The Respect@Work report represents a paradigm shift in how public policy and the legislative framework support people who experience sexual harassment and discrimination in the workplace. This bill takes those steps as set out in the Respect@Work report, makes that paradigm shift and signals to all workers that they deserve to be safe at work.
1.17
While the Bill focuses on seven specific recommendations, the Australian government is working toward implementation of all recommendations made in the Respect@Work Report. The majority of these recommendations do not require a legislative response from government and are well advanced.
Structure and key provisions of the Bill
1.18
The Bill comprises eight schedules, which set out provisions for key proposals that align directly with recommendations from the Respect@Work Report, as indicated.
Schedule 1—Hostile workplace environments (Recommendation 16(c))
1.19
Schedule 1 would amend the Sex Discrimination Act 1984 (SD Act) to expressly prohibit one person from subjecting another person to a workplace environment that is hostile on the ground of sex (proposed section 28M). The proposed provision would capture conduct that results in an offensive, intimidating or humiliating environment for people of one sex, rather than conduct aimed at an individual.
1.20
The Explanatory Memorandum to the Bill (EM) states that this approach was indicated by the Respect@Work Report, which found that sexual harassment may occur where a workplace environment or culture is sexually charged or hostile, even if the conduct is not directed at a particular person.
1.21
In his second reading speech, the Attorney-General added that the proposed provision would provide ‘clarity to employers, employees and other people in the workplace on their obligations to create safe and respectful workplace environments’.
Schedule 2—Positive duty (Recommendations 17 and 18)
1.22
Part 1 of Schedule 2 would amend the SD Act to require employers or people conducting a business or undertaking (PCBU) to take reasonable and proportionate measures to eliminate, as far as possible, the discriminatory conduct outlined in the provision (proposed section 47C). This is the ‘positive duty’ referred to throughout the Bill.
1.23
The EM references directly the key finding from the Respect@Work Report that the current legal framework is failing to prevent sexual harassment, as it focuses on conduct that has already occurred:
This amendment is intended to shift this focus by requiring employers and PCBUs to proactively prevent discrimination and harassment in their workplaces in order to achieve compliance with the SD Act.
1.24
According to the EM, proposed section 47C is also intended to align with section 106 of the SD Act, which relates to employers’ vicarious liability, and to operate concurrently with existing duties in the model Work Health and Safety law, which requires employers and PCBUs to provide a safe working environment for workers, so far as is reasonably practicable.
1.25
Part 2 of Schedule 2 would also amend the Australian Human Rights Commission Act 1987 (AHRC Act) and the Inspector-General of Intelligence and Security Act 1986 to enable the AHRC and the Inspector-General to enforce the positive duty, by providing them with a range of compliance powers.
1.26
The EM notes that these proposals originated from the Respect@Work Report, which recommended an appropriate enforcement mechanism to ensure that the positive duty is effective, employers engage with their legal obligations and the AHRC can initiate action to address unlawful discrimination, rather than relying on individuals to make complaints.
Schedule 3—Systemic unlawful discrimination (Recommendation 19)
1.27
Schedule 3 would amend the AHRC Act to provide the AHRC with a broad function to inquire into ‘systemic unlawful discrimination’ or ‘suspected systemic unlawful discrimination’, as defined in the provision (proposed section 35L).
Empowering the Commission to inquire into systemic issues of discrimination would enable them to investigate the root causes of unlawful discrimination where it affects a number of people (compared to a single individual) and to assist businesses and organisations to rectify these issues, through recommending systemic remedies, such as organisational training and other mechanisms that promote structural change.
1.29
Proposed section 35L of the AHRC Act is intended to complement the AHRC’s positive duty compliance function, help shift the compliance burden away from individuals, and enhance the AHRC’s existing inquiry functions in sections 11 and 31 of the Act.
Schedule 4—Representative applications (Recommendation 23)
1.30
Schedule 4 would amend the AHRC Act to enable the making of a ‘representative application’, as defined in the proposed provision, in the Federal Court of Australia and the Federal Circuit and Family Court of Australia (collectively, ‘the federal courts’) on behalf of one or more people who have experienced unlawful discrimination.
1.31
Proposed subsection 46PO(2A) aims to take into consideration the following comments from the Respect@Work Inquiry:
The Respect@Work Report recognised that engaging with the complexities of the court system can be difficult and costly for applicants and representative applications can provide a mechanism for genuine cases to be heard. It was also noted that representative applications may be particularly valuable in circumstances where a systemic problem affects a wide class of persons. Therefore, the Respect@Work Report concluded that there are advantages to enabling representative bodies to pursue unlawful discrimination matters in the federal courts on behalf of others.
Schedule 5—Costs (Recommendation 25)
1.32
Schedule 5 of the Bill would amend the AHRC Act to provide greater cost protections to parties in the federal courts. At present, these courts have a broad discretion to award costs in unlawful discrimination proceedings as they see fit. In general, costs are awarded following the event, meaning that the unsuccessful party is required to pay the costs of the successful party.
1.33
The Respect@Work Inquiry reported that the risk of adverse cost orders acts as a disincentive to applicants considering pursuing sexual harassment matters in the federal courts. The current practice therefore raises access to justice concerns, particularly for vulnerable members of the community.
1.34
Proposed new section 46PSA of the AHRC Act would require each party to bear its own costs, unless the court considers that there are justifiable circumstances for it to ‘make such order as to costs, whether by way of interlocutory order or otherwise, as the court considers just’.
1.35
Schedule 5 of the Bill would also amend the Federal Circuit and Family Court of Australia Act 2021 and the Federal Court of Australia Act 1976 to provide that proposed new section 46PSA of the AHRC Act would apply to proceedings brought for unlawful discrimination in those courts.
Schedule 6—Amendment of the Workplace Gender Equality Act 2012 (Recommendation 43)
1.36
Schedule 6 of the Bill would amend the Workplace Gender Equality Act 2012 to extend reporting obligations for gender equality indicators to a ‘Commonwealth company’ or ‘Commonwealth entity’, as the ‘relevant employers’ defined in proposed section 4.
1.37
The Attorney-General highlighted the finding from the Respect@Work report that ‘improved data collection is important to ensure that there is robust understanding of gender inequality in Australian workplaces’.
Schedule 7—Victimisation
1.38
Schedule 7 of the Bill would amend five Commonwealth Acts—the Age Discrimination Act 2004, the AHRC Act, the Disability Discrimination Act 1992 and the Racial Discrimination Act 1975—to clarify that ‘victimising conduct can form the basis of a civil action for unlawful discrimination in addition to a criminal complaint’.
1.39
The Attorney-General stated that this has always been the intention of the SD Act and other Commonwealth anti-discrimination legislation, however, this requires clarification following a number of judicial decisions. While the SD Act was amended by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, the clarification has not yet been made in respect of the other Acts.
Schedule 8—Other amendments
1.40
Schedule 8 of the Bill would amend the AHRC Act to change the timeframe for when a complaint under anti-discrimination law may be terminated at the discretion of the AHRC, from six to 24 months.
1.41
The Attorney-General noted the inconsistency between complaints under anti‑discrimination law, and those made under the SD Act, which has resulted in ‘procedural challenges and complexity for people who are entitled to make a claim under more than one Commonwealth anti-discrimination [A]ct’.
1.42
In addition, the EM notes that it can be challenging for the AHRC to manage an intersectional complaint when different time periods apply to different components of the complaint.
1.43
Schedule 8 of the Bill would also amend the objects clause in the SD Act, to state that an object of the Act is to ‘achieve, so far as practicable, substantive equality between men and women’.
1.44
In addition, Schedule 8 of the Bill would amend paragraph 28AA(1)(a) of the SD Act to remove the term ‘seriously’ from the definition of harassment on the ground of sex. The EM states that the current definition imposes an ‘overly high threshold’ for sex-based harassment, which conflicts with the Act’s threshold for sexual harassment:
This amendment would ensure that sex-based harassment is not subject to a higher threshold than section 28A (sexual harassment), which requires conduct to be ‘of a sexual nature’ and does not set any further qualifiers.
Examination by other parliamentary committees
1.45
When examining a bill, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
1.46
The Scrutiny of Bills Committee assesses legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties and obligations, the rule of law and on parliamentary scrutiny. As at the time of writing, the Scrutiny of Bills Committee has not examined the Bill.
1.47
The Human Rights Committee examines bills and legislative instruments for compatibility with human rights, and reports its findings to both Houses of Parliament. The Human Rights Committee has examined but made no comments on the Bill.