3.1
The purpose of the Human Rights Legislation Amendment (Respect at Work) Bill 2022 (the Bill) is to implement seven recommendations from the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report (Respect@Work Report), strengthen the legal and regulatory frameworks relating to sexual harassment, and expand the role of the Australian Human Rights Commission (AHRC) in preventing sexual harassment and other forms of sex discrimination.
3.2
Throughout the inquiry—in both submissions and at the hearing—the committee heard that, notwithstanding existing anti-discrimination law, sexual harassment remains a significant problem in Australian workplaces.
3.3
Sexual harassment has no place in Australian workplaces, or society more broadly, and the committee commends all efforts to eradicate it.
3.4
The committee acknowledges particularly the work undertaken by the AHRC, in conjunction with business, industry, unions, advocates, and most importantly, those who have experienced sexual harassment, to review the existing frameworks and propose an alternate way forward.
3.5
Following the Respect@Work report, the Australian government has acted to implement its 55 recommendations, many of which required a legislative response. This work continues, including with the Bill.
3.6
As the Australian government acts to ensure safe workplaces for all Australians, the committee urges the government to be mindful of the need for legislative consistency both within and across anti-discrimination laws wherever appropriate and possible.
3.7
The committee recognises that the government is aware of the ‘thoughtful and constructive suggestions for refinements and improvements’ that have been made to this inquiry and that the government will engage with these suggestions.
3.8
In that spirit of cooperation, and with a view to eradicating the scourge of sexual harassment in Australian workplaces, the committee urges the Australian government to consider the feedback provided to this inquiry.
3.9
The committee recognises that the Bill responds to a comprehensive and considered investigation undertaken by the AHRC. Further, the Bill was developed in consultation with key stakeholders, who advised the committee that their input was reflected in the Bill and they support its key provisions with minor amendments only.
3.10
With respect to the objects clause, the committee notes that there are different and strongly held views about the construction of paragraph 3(e) of the Sex Discrimination Act 1984 (SD Act). The committee acknowledges the importance of gender inclusive language throughout Australia’s anti-discrimination law and urges the Australian government to give more thought to the matter.
3.11
Stakeholders supported the proposed hostile working environment provisions, although the committee heard that the phrase ‘engages in conduct’ does not reflect the policy intention of capturing bystanders. Proposed subsection 28M(4) of the SD Act would define ‘conduct’ and the committee suggests that this should be amended to include a failure to act or intervene.
3.12
Overwhelmingly, stakeholders endorsed the creation of the positive duty, whereby employers and people conducting a business or undertaking (PCBUs) would be largely responsible for preventing sexual harassment in the workplace. The committee accepts that, while there is a similar objective and legal duty under the Work Health and Safety (WHS) framework, the SD Act is its own separate framework, being grounded in human rights law. The committee agrees with the Sex Discrimination Commissioner that the two frameworks should complement each other, rather than one being supplanted by the other.
3.13
The committee acknowledges concerns regarding the scope of and compliance with the positive duty. The committee considers that the heading to proposed subsection 47C(4) of the SD Act should be amended to clarify that the duty extends to conduct by third parties, with the addition also of an appropriate note to that subsection.
3.14
In determining compliance, the committee recognises that the matters to be taken into account are not exhaustively listed in proposed subsection 47C(6) of the SD Act. However, the matters listed give the distinct impression that the only relevant factors are those relating to duty holders’ particular circumstances. While this is clearly not the case, the committee considers that the provision should be amended with the addition of a note that reflects the broader range of factors that can be taken into account, as set out in the EM.
3.15
Throughout the inquiry, submitters and witnesses also voiced concerns about how duty holders would comply with the positive duty. The committee heard that the development of guidance material and resources is well underway. The committee encourages the continuation of these efforts with a view to the publication of business and industry-specific, practical materials within six months of Royal Assent to the Bill. These materials should clearly state that compliance with proposed section 47C of the SD Act will not mean that an employer or PCBU is compliant with legal obligations under other anti‑discrimination laws, including the model WHS law.
3.16
The committee heard that there is broad support for the AHRC to be given new functions in relation to the positive duty, together with the requisite additional funding and resources. The AHRC commented particularly on the need for an express authority to publish certain compliance notices. The committee understands that the policy intention is to encourage compliance, which would not be achieved with the publication of a compliance notice at an early stage of the enforcement process.
3.17
The committee heard different views on the Bill’s proposal to introduce a ‘costs neutrality’ approach to costs protection in the federal courts for claims of unlawful conduct. The committee accepts that this approach would provide a degree of costs certainty for both parties and allow the courts the flexibility to deal with costs on a case-by-case basis. The committee considers that any uncertainty will dissipate over time, increasing access to justice for people experiencing or who have experienced unlawful discrimination. To ensure that the proposed cost provisions operate as intended, the committee considers that the operation of this legislation should be reviewed by the Australian Law Reform Commission six to 12 months after Royal Assent.
3.18
Finally, the committee acknowledges the urgent and long overdue need for reform to workplace sexual harassment law. As heard throughout this inquiry, duty holders must be supported and well-positioned to implement the positive duty. Given the ‘paradigm shift’ sought to be created by the Bill, the committee considers that it would be prudent to provide for an implementation and operational review of the legislative provisions.
3.19
The committee recommends that, six to 12 months after Royal Assent, the Attorney‑General refers to the Australian Law Reform Commission an inquiry into the operation of the cost provisions proposed in the Bill, including a focus on public interest litigation under those provisions.
3.20
The committee recommends that the Bill be passed.