Bills Digest No. 27, 2022–23

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Dr Shannon Torrens
Law and Bills Digest Section
24 October 2022

Key points The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 aims to address sexual harassment in Australian workplaces through further implementing recommendations of the Respect@Work Report. The Bill implements 7 of the recommendations of the Report, with the aim of strengthening the legal and regulatory frameworks in Australia relating to sexual harassment. The Respect@Work: Sexual Harassment National Inquiry Report (2020) was delivered following an inquiry conducted by the Australian Human Rights Commission. The Report outlined 55 recommendations to better prevent and respond to sexual harassment in the workplace. In April 2021, the Coalition Government delivered A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces. This document responded to all 55 of the AHRC’s recommendations as outlined in the Report. In September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 was enacted which sought to implement a number of these recommendations. Concerns were raised by some stakeholders that these amendments did not go far enough in responding to the recommendations in the Report. In February 2022, the Coalition Government sought feedback on implementing the outstanding recommendations from the Report that required Commonwealth legislative action. The current Government has committed to implementing all outstanding legislative recommendations of the Report and the Bill responds to this commitment. Key amendments in the eight-schedule Bill include an express prohibition to protect individuals from hostile workplace environments on the grounds of sex (Schedule 1). Also proposed is a positive duty for employers to take reasonable and proportionate measures to eliminate unlawful discrimination including sexual harassment as far as possible. The AHRC will have compliance powers to enforce this positive duty (Schedule 2).

Contents

Purpose of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions

 

Date introduced:  27 September 2022
House:  House of Representatives
Portfolio:  Attorney-General
Commencement:  Sections 1 to 3 on Royal Assent; Schedules 1, 2 (Part 1 and Part 2, Division 1) and 3 – 8 the day after Royal Assent; and Schedule 2 (Part 2, Division 2) 12 months after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at October 2022.

 

Purpose of the Bill

The purpose of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (the Bill) is to address sexual harassment in Australian workplaces through implementing 7 recommendations of the Respect@Work: Sexual Harassment National Inquiry Report (2020) (the Report).

Specifically, the Bill will:

• prohibit conduct that subjects a person to a hostile work environment on the grounds of sex (Schedule 1)
• introduce a positive duty on employers to take reasonable and proportionate measures to eliminate unlawful discrimination on the ground of a person’s sex, including sexual harassment, as far as possible and allow the Australian Human Rights Commission (AHRC or the Commission) to monitor or assess compliance with this duty (Schedule 2)
• allow the AHRC to conduct inquiries into systemic unlawful discrimination or suspected systemic unlawful discrimination (Schedule 3)
• enable representative bodies to progress complaints from conciliation at the AHRC to the federal courts (Schedule 4)
• insert cost protection provisions for unlawful discrimination proceedings (Schedule 5)
• require Commonwealth public sector reporting against gender equality indicators (Schedule 6)
• clarify that victimisation can form the basis for a civil action of unlawful discrimination through amending the Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975 and Australian Human Rights Commission Act 1986 (AHRC Act) (Schedule 7)
• extend the period of time between an alleged incident and the lodging of a complaint in relation to the AHRC President's discretion to terminate a complaint made under the Age Discrimination Act, Disability Discrimination Act, and the Racial Discrimination Act (Schedule 8)
• amend the objects clause of the Sex Discrimination Act 1984 to replace the reference to ‘achieve equality of opportunity between men and women’ with ‘achieve substantive equality between men and women’ (Schedule 8) and
• amend the definition of harassment on the grounds of sex in the Sex Discrimination Act to remove reference to conduct of a ‘seriously’ demeaning nature (Schedule 8).

Background

Respect@Work Report

In June 2018, the then Coalition Government announced it would fund the AHRC to undertake a National Inquiry into Sexual Harassment in Australian Workplaces. Prior to this Inquiry, the AHRC had conducted four periodic surveys since 2003 on the national experience of sexual harassment (Report, p. 10).

The Inquiry was conducted by AHRC Sex Discrimination Commissioner Kate Jenkins and was established to review and report on the following:

• a national survey of the prevalence, nature and reporting of sexual harassment in Australian workplaces, by sector
• online workplace-related sexual and sex-based harassment and the use of technology and social media to perpetrate workplace-related sexual and sex-based harassment
• the use of technology and social media to identify both alleged victims and perpetrators of workplace-related sexual harassment
• the drivers of workplace sexual harassment, including whether:
• some individuals are more likely to experience sexual harassment due to particular characteristics including gender, age, sexual orientation, culturally or linguistically diverse background, Aboriginal and/or Torres Strait Islander status or disability
• some workplace characteristics and practices are more likely to increase the risk of sexual harassment
• the current legal framework with respect to sexual harassment
• existing measures and good practice being undertaken by employers in preventing and responding to workplace sexual harassment, both domestically and internationally
• the impacts on individuals and business of sexual harassment, such as mental health, and the economic impacts such as workers’ compensation claims, employee turnover and absenteeism, and
• recommendations to address sexual harassment in Australian workplaces.

The Report was publicly released by the AHRC in March 2020 and outlined 55 recommendations (Report, pp. 40–51). It found that workplace sexual harassment is ‘prevalent and pervasive: it occurs in every industry, in every location and at every level, in Australian workplaces.’ (Report, p. 13).

Through the Report, the AHRC proposes ‘a new approach for government, employers, and the community to better prevent and respond to sexual harassment in the workplace and provide leadership and innovation in addressing this complex and difficult issue.’ (Report, p. 15)

The Report notes that the new approach is (Report, p. 15):

• evidence-based
• victim-focused to enhance outcomes for people experiencing harassment
• framed through a gender and intersectional lens
• based upon existing legal frameworks to avoid duplication, ambiguity, or undue burden on employers. It is consistent with the Australian Government’s Deregulation Agenda of delivering more effective and efficient regulatory frameworks.

Further, the Report notes that there are 5 key areas of focus which underpin the new approach (Report, p. 15):

1. data and research
2. primary presentation
3. the legal and regulatory framework
4. workplace prevention and response
5. support, advice, and advocacy.

Coalition Government response to the Report

The then Coalition Government announced in April 2021 that it ‘has agreed to (in full, in-principle or in-part) or noted’ the 55 recommendations in the Report and set out its response to the recommendations in A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (Roadmap).

Of the 55 recommendations, 9 were noted by the Coalition Government, with 4 requiring further consideration (Recommendations 15, 17, 18, and 27). In the Roadmap, the Coalition Government stated that it would need to give further consideration to the recommendations to introduce a positive duty on employers to eliminate unlawful discrimination and to allow the AHRC to conduct inquiries into systemic unlawful discrimination or suspected lawful discrimination (Recommendations 17 and 18).

With respect to the recommendation to amend the AHRC Act to allow representative groups to bring claims to the Federal Court, the Coalition Government stated that ‘there is an existing mechanism to enable representative proceedings in the Federal Court’ (Recommendation 23).

Respect at Work Act 2021

In June 2021, the Coalition Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 which implemented its legislative commitments under the Roadmap and directly responded to the findings of the Respect@Work Report. The amendments contained in the Bill were intended to give effect to Report Recommendations 16, 20, 21, 22, 29 and 30 (see the Parliamentary Library’s Bills Digest for further information on these amendments).

In particular, the Bill proposed to amend the Sex Discrimination Act, the AHRC Act, and the Fair Work Act 2009 to enhance the effectiveness of Australia’s legal and regulatory frameworks in preventing and responding to sexual harassment.

The Bill was referred to the Senate Education and Employment Legislation Committee which tabled its report recommending the Bill be passed in August 2021. ALP Senators also provided a dissenting report criticising the Coalition Government for not adopting all of the recommendations of the Respect@Work Report and ‘[o]f the 6 recommendations it does adopt, the bill presents weakened versions that fail to capture the purpose of proposed legislative change.’

The Bill passed the Parliament in September 2021 and the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect at Work Act 2021) commenced on 11 September 2021.

Implementation of the outstanding recommendations from the Report

On 14 February 2022, the former Attorney-General Michaelia Cash released a consultation paper and survey seeking feedback on the outstanding recommendations from the Report for changes to Commonwealth legislation (Recommendations 16(c), 17, 18, 19, 23 and 25) which included the proposed introduction of a positive duty on employers. The consultation process concluded on 18 March 2022, however the 2022 Federal Election was called on 10 April 2022. Responses from 95 submitters are available on the website of the Attorney-General’s Department (AGD). 

The new Albanese Government committed to ‘implementing all outstanding legislative recommendations of the Respect@Work Report, including introducing a positive duty on employers to prevent sexual harassment in the workplace in the Sex Discrimination Act 1984 …’

Committee consideration

Senate Standing Committee for the Selection of Bills

On 27 September 2022, the Senate Standing Committee for the Selection of Bills recommended that: ‘the provisions of the Anti-Discrimination (Respect at Work) Bill 2022 be referred immediately to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 3 November 2022’ (see Report No. 5 of 2022).

Further details about the inquiry, including submissions received by the Committee and public hearing dates, are available on the Inquiry’s webpage.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Senate Standing Committee for the Scrutiny of Bills had not yet considered the Bill (Index of Bills Considered by the Committee as of 4 October 2022).

Policy position of non-government parties/independents

At the time of writing, non-government parties and independents have not commented publicly on the Bill.

Position of major interest groups

In March 2022, prior to the introduction of the Bill, the Law Council of Australia provided a consultation paper on the Respect@Work Report and options to progress further legislative recommendations. In doing so, the Law Council said (page 5):

Behaviour constituting harassment and discrimination in the workplace is unacceptable but remains unfortunately commonplace. The Law Council is strongly supportive of the Australian Government’s efforts to drive necessary change through responding to and implementing the recommendations of the Sex Discrimination Commissioner’s Respect@Work: Sexual Harassment National Inquiry Report.

The Law Council has since made a submission to the Senate Legal and Constitutional Affairs Legislation Committee inquiry, specifically addressing the Bill.

The AHRC commended the introduction of the Bill. Kate Jenkins, Australia’s Sex Discrimination Commissioner who conducted the Report, said:

The right of workers to be free from sexual harassment is a human right, a workplace right and a safety right. This legislative reform will create a regulatory environment in Australia that is key to the realisation of that right for all Australian workers.

…

These important reforms are timely and should be considered by state and territory governments to achieve greater harmonisation of sexual harassment legislation as part of any upcoming legislative reviews, consistent with our recommendation in our Respect@Work report.

In addition to the critical focus on prevention and cultural change that will be brought about by a positive duty, increased clarity and consistency in the operation of sexual harassment laws —including across federal, state and territory anti-discrimination legislation — will help make the complaints process more accessible for individuals.

The Australian Council of Trade Unions (ACTU) has similarly welcomed action on Respect@Work, with ACTU President Michele O’Neil noting:

This is such an important and long overdue legislative change as sexual harassment at work is rife in Australia with women having a 2 in 3 chance of experiencing it in a current or former workplace.

Employers having an obligation to prevent sexual harassment is essential to making workplaces safe for everyone.

For workers in the retail and fast-food industry, many of them teenagers, customers are the biggest perpetrators of sexual harassment. It's welcome to see the Albanese Government taking steps to hold employers accountable for also preventing this type of harassment.

We will not have gender equality while women are having to leave jobs because they feel unsafe.

The Diversity Council of Australia (DCA) made a submission to the Senate Legal and Constitutional Affairs Legislation Committee in response to the Bill, noting:

We welcome the changes proposed in the Anti‑Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 and commend the Government’s efforts in taking action in this area.

On systemic inquiries into unlawful discrimination, DCA said:

DCA supports the new provision in the AHRC Act to provide the AHRC with a broad inquiry function to inquire into systemic unlawful discrimination or suspected systemic unlawful discrimination (recommendation 19 of the Respect@Work Report). We believe these inquiry powers are important for addressing systemic unlawful discrimination without relying on individual complaints.

The Australian Nursing and Midwifery Federation (ANMF) also made a submission to the Senate Committee Inquiry into the Bill. On the role of the AHRC in relation to the positive duty and its enforceability, the ANMF stated (p. 4):

Section 35A of the Bill provides the Commission with functions in relation to the positive duty. Those duties include the preparation and publishing of guidelines for complying with the positive duty, however the guidelines themselves are not enforceable.

The ANMF considers that unless these guidelines are enforceable, there will be uncertainty in relation to what constitutes compliance with the positive duty. The ANMF echoes the recommendations of the ACTU to prescribe the guidelines by regulation and ensure they are subject to regular review and update to ensure they remain relevant and responsive to current issues and circumstances.

Ai Group (an employers’ organisation), also made a submission to the Senate Committee inquiry. While supporting the policy intent behind the Bill, the Ai Group criticised a number of aspects of the Bill, including:

The Bill contains insufficient safeguards in respect of the AHRC’s broad inquiry functions in respect of systemic discrimination and requires further clarification on the rights of individuals in respect of the AHRC’s powers.

Financial implications

The Explanatory Memorandum (EM) to the Bill advises that the Bill will not have a financial impact on the Commonwealth (p. 11).

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible (EM, pp. 12, 19).

The EM notes that the Bill ‘promotes the protection of human rights and, to the extent that it may operate to limit human rights, the limitations are reasonable, necessary and proportionate to achieve legitimate objectives.’ (p. 19).

The Bill engages the following rights (EM, p. 14):

• the right to equality and non-discrimination: Articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR)
• the right to an effective remedy: Article 2(3) of the ICCPR; Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
• the right to freedom of expression: Article 19 of the ICCPR
• the right to work and rights in work: Article 6(1) and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 11 of the CEDAW
• the right to the highest attainable standard of physical and mental health: Article 12 of the ICESCR
• the right to privacy and reputation in Article 17 of the ICCPR.

Parliamentary Joint Committee on Human Rights

The Committee had no comment on the Bill (p. 1).

Key issues and provisions

Positive duty obligation on employers

Schedule 2 of the Bill amends the Sex Discrimination Act to insert new Part IIA which creates a positive duty for employers or persons conducting a business to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.

This reflects the Government’s intention to implement recommendation 17 of the Report:

Recommendation 17: Amend the Sex Discrimination Act to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. In determining whether a measure is reasonable and proportionate, the Act should prescribe the factors that must be considered including, but not limited to:

1. the size of the person’s business or operations
2. the nature and circumstances of the person’s business or operations
3. the person’s resources
4. the person’s business and operational priorities
5. the practicability and the cost of the measures
6. all other relevant facts and circumstances. (Report, p. 44).

Law firm Clayton Utz noted the importance of implementing the Report’s recommendation to introduce a positive duty to prevent sexual harassment:

It is clear that the existing legal framework has not been effective at eliminating sexual harassment in the workplace. Despite many organisations having comprehensive policies and procedures on sexual harassment, and reinforcing these through staff training, workplace sexual harassment remains pervasive. There is often a disconnect between policies and statements of intent and what occurs in practice on the ground. The positive duty aims to tackle this by requiring a nuanced approach to be taken in response to an organisation’s specific risk factors relevant to sexual harassment.

Proposed section 47C (at item 8 of Schedule 2) requires an employer or a person conducting a business (the duty holder) to take reasonable and proportionate measures to eliminate, as far as possible, certain types of conduct being engaged in by either the duty holder or their employees, workers, and agents. The term 'reasonable and proportionate' is not defined and according to the EM will apply differently to each duty holder depending on their particular circumstances (EM, p. 37).

The conduct covered by proposed section 47C includes existing conduct defined in the Sex Discrimination Act that prohibits unlawful discrimination in the workplace (proposed paragraph 47C(2)(a)), as well as:

• sexual harassment, or harassment on the grounds of sex, that is unlawful under section 28B (proposed paragraph 47C(2)(b))
• conduct that results in a person being subjected to a hostile workplace environment under proposed section 28M, which is inserted by item 5 of Schedule 1 to the Bill and is discussed below (proposed paragraph 47C(2)(c))
• acts of victimisation that relate to the conduct mentioned in proposed paragraphs 47C(2)(a)-(c).

Further, the Bill will provide the AHRC with compliance powers to enforce the duty. This responds to Recommendation 18 of the Report:

Recommendation 18: The Commission be given the function of assessing compliance with the positive duty, and for enforcement. This may include providing the Commission with the power to:

1. undertake assessments of the extent to which an organisation has complied with the duty, and issue compliance notices if it considers that an organisation has failed to comply
2. enter into agreements/enforceable undertakings with the organisation
3. apply to the Court for an order requiring compliance with the duty. (Report, p. 44)

Proposed section 35K (at item 23 of Schedule 2) provides that proposed section 47C is enforceable under Part 6 of the Regulatory Powers (Standard Provisions) Act 2014, which creates a framework for accepting and enforcing undertakings relating to compliance with specified provisions. This means that the President of the AHRC (or their delegate) may accept an undertaking relating to compliance with proposed section 47C, may publish such an undertaking on the AHRC’s website, and may apply to the Federal Court or the Federal Circuit and Family Court of Australia (FCFCA) for orders to enforce the undertaking. If the Court is satisfied that the person has breached the undertaking it may make orders directing the person to comply with the undertaking, make a payment to the Commonwealth or a person who has suffered loss of damage as a result of the breach, or any other order the Court considers appropriate (subsection 115(2) of the Regulatory Powers (Standard Provisions) Act).

Proposed section 35A (at item 16 of Schedule 2) confers the following functions on the AHRC aimed at assisting duty holders in complying with their obligations:

• preparing and publishing guidelines relating to complying with the positive duty in relation to sex discrimination (proposed paragraph 35A(a))
• promoting an understanding and acceptance, and public discussion on the topic (proposed paragraph 35A(b))
• undertaking research and educational programs (proposed paragraph 35A(c)) and
• anything incidental or conductive to the performance of the above functions (proposed paragraph 35A(f)).

The EM notes these types of functions are not new to the AHRC and ‘are designed for the Commission to educate businesses about their obligations under the positive duty, and to work cooperatively with them to build their capacity to comply’ (p. 48). The EM explains: ‘Guidelines would be a valuable compliance mechanism in assisting duty holders to understand the nature of their obligations under the positive duty, and the measures they must take to achieve compliance.’ (p. 48).

Further, the Bill will provide the Commission with a ‘full suite of compliance powers to enforce the positive duty’, though these powers won’t commence until 12 months after Royal Assent of the Bill (EM, pp. 47, 49).

Pursuant to proposed section 35B (item 23 of Schedule 2), the AHRC will be able to inquire into a person’s compliance with the positive duty in relation to sex discrimination if the Commission reasonably suspects that the person is not complying. The Commission must notify the person that an inquiry has been commenced and give them an opportunity to make submissions (proposed section 35C). Before making a finding, the Commission must give the person a reasonable opportunity to make written or oral submissions (proposed subsection 35C(2)).

If, as a result of an inquiry into a person’s compliance with the positive duty, the Commission finds that a person is not complying, the Commission must notify the person in writing of its findings and may notify the person of any recommendation of the Commission for preventing repetition or continuation of the failure to comply (proposed section 35E).

Further, the AHRC President may give the person a written compliance notice (proposed subsection 35F(1)). The EM states (p. 56):

The terms of the compliance notice should provide the recipient with practical and measurable steps to achieve compliance with the positive duty. For example, the compliance notice may require the person to remove specific offensive materials from the workplace and provide bespoke training to managers on sexual harassment within 21 days.

A person who is subject to a compliance notice can seek AHRC reconsideration of the decision to issue the notice (proposed subsection 35G) and/or review of that decision by the Federal Court or the FCFCA (proposed subsection 35H).

If the compliance notice is not complied with the Commission can apply to the Federal Court or the FCFCA for an order. The court may make an order directing the person to comply with the notice or any other order it considers appropriate (proposed section 35J).

Schedule 2 also amends the Inspector-General of Intelligence and Security Act 1986 to allow the Inspector-General of Intelligence and Security, as opposed to the AHRC, to inquire into any matters that may relate to compliance by intelligence agencies with the positive duty in relation to sex discrimination (items 26 to 30).

Impact on employers and businesses

The Bill will impose additional requirements on employers and businesses, including the creation of the positive duty for employers and businesses to take reasonable and proportionate measures to eliminate unlawful discrimination. This positive duty contributes to a shift in legislation responding to sex discrimination in the workplace from preventative to proactive measures.

Law firm Herbert Smith Freehills commented that these amendments proposed by the Bill reflect an important development to address these issues more actively:

Some of these amendments, such as the introduction of the positive duty, are a long-time coming. Since the Respect@Work report was released in March 2020, we have seen best practice employers focussing on continuously improving their systems and processes and challenging the status quo, to minimise the risk that sexual harassment and other unlawful discrimination will arise in their workplaces. Increasingly, we are seeing employers not just address this as a 'compliance' or legal issue and are seeing these steps as critically important to providing a safe workplace with a positive and productive culture to employees and others who work in their workplaces. Such actions are also increasingly being seen as crucial to discharging an employer's [environmental, social, and governance] ESG obligations.

The Bill will require employers and businesses to put systems into place to respond to the changes. As noted by the law firm Ashurst:

In light of the proposed amendments at both a state and federal level, employers should be taking positive steps to ensure that their processes and systems are directed at both preventing and responding to sexual harassment. These changes should go beyond updating policies and procedures and online compliance training to take account of both legislative change and compliance, and changing societal views.

DLA Piper has said that employers will have further obligations because of the amendments and the AHRC will have increased powers:

These changes are a significant enhancement of employers’ obligations and increase in the powers of the AHRC to achieve compliance. These reforms have been introduced in response to the acknowledgement that, to date, Australian workplaces have not sufficiently addressed sex discrimination, sexual harassment and victimisation. It is unlikely that the steps historically taken, and relied on, by employers to date, such as annual training for all staff and workplace policies, are going to be sufficient to meet these new standards.

Lessons about what these reforms will mean can be taken from the Report and from other legislative frameworks that require employers to take “reasonable steps” to achieve workplace outcomes.

Gadens has said that the positive duty will require employers to make a number of changes:

Given these changes, and particularly the new positive duty on employers to eliminate unlawful sex discrimination, it is critical that employers consider what is being done within their business to address and eliminate unlawful sex discrimination. At the very least, the new positive duty will likely require employers to:

• have clear policies in place, which make it clear that sex discrimination (including sexual harassment) is against the law and that employees may face disciplinary action, up to and including the termination of their employment, for breaches of such policies;
• ensure that employees are aware of the policies and receive appropriate training; and
• ensure that any complaints about unlawful sex discrimination are dealt with appropriately.

The Attorney-General’s Department has estimated that the average annual regulatory cost associated with the enforceable positive duty is $226.4 million. This figure relates to start-up costs to businesses and updating policies and training materials.

Prohibition on conduct that results in a hostile workplace environment on the basis of sex

Schedule 1 of the Bill amends the Sex Discrimination Act to include an express requirement to protect people from hostile workplace environments on the grounds of sex. For conduct to be caught by the amendments proposed in Schedule 1, it does not need to be directed at a specific person but rather conduct that results in an offensive, intimidating and humiliating environment for people of one sex.

This is intended to implement recommendation 16(c) of the Report:

Recommendation 16: Amend the Sex Discrimination Act to ensure: …

3. creating or facilitating an intimidating, hostile, humiliating or offensive environment on the basis of sex is expressly prohibited. (Report, p. 43)

Inserted into Division 3 of Part II of the Sex Discrimination Act, proposed subsection 28M(1) (at item 5 of Schedule 1) provides that it is unlawful for a person to subject another person to a workplace environment that is hostile on the grounds of sex.

In outlining what it means for a person (the first person) to subject another person (the second person) to a hostile workplace environment, the Bill applies a reasonable person test whereby a reasonable person ‘would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimating or humiliating to a person of the sex of the second person’ (proposed subsection 28M(2)).

The conduct that results in a hostile workplace environment must relate to either the sex of the person, a characteristic that appertains to persons of that sex or a characteristic that is imputed to a person of that sex (proposed subparagraphs 28M(2)(c)(i)-(iii)).

On the reasonable person test, the EM notes (p. 25):

The ‘reasonableness’ should be considered by reference to the conduct of the first person, rather than their intention or the way the conduct was actually received by the second person. However, the requirement to consider what was reasonable ‘having regard to all the circumstances’ can provide a mechanism to allow for particular subjective considerations or factors.

Circumstances that are taken into account include the seriousness of the conduct; whether it was continuous or repetitive; the role, influence or authority of the person engaging in the conduct; and other relevant circumstances (proposed paragraphs 28M(3)(a)-(d)).

Proposed section 8A (at item 4 of Schedule 1) provides that a workplace environment ‘may be offensive, intimidating or humiliating to a person on the ground of sex’ if at least one of the reasons for the environment meeting that description is by reason of:

• the sex of the person (proposed paragraph 8A(a)) or
• a characteristic that pertains to persons of a particular sex (proposed paragraph 8A(b)) or
• a characteristic generally imputed to person of a particular sex (proposed paragraph 8A(c)),

even if that is not the dominant or substantial reason. As the EM states (p. 23):

This means that a person subjects another person to a hostile workplace environment if they engage in conduct that is offensive, intimidating or humiliating by reason of the person’s sex and another matter (or matters), regardless of whether sex was the dominant or substantial reason for their engagement in the conduct. [emphasis added]

The EM further provides an illustrative example of how proposed section 8A is intended to operate (pp. 23-24):

Craig is the owner and head chef of a small restaurant. Craig regularly makes racist jokes about some of the restaurant’s customers, including insulting comments about their physical appearance. Craig also displays pornographic images of women in the kitchen area and requires the female front-of-house staff to wear revealing uniforms. One of the female staff, Uma, lodges a complaint in the Commission on the basis that Craig is subjecting her to a hostile workplace environment (as defined in subsection 28M(2)). The operation of section 8A means that Uma only needs to establish that the workplace environment was offensive, intimidating or humiliating by reason of her sex (or related characteristics), even if there were other matters, such as her race or ethnicity, that contributed to this outcome.

Costs protection provisions

Schedule 5 inserts a costs protection provision into the AHRC Act with the objective of providing greater certainty for applicants and respondents in terms of costs.

Currently, while federal courts have a broad discretion in deciding how to award costs in unlawful discrimination proceedings, they generally follow the practice of awarding costs following the event. The EM notes that this ‘generally means that the unsuccessful party is required to pay the costs of the successful party’ (EM, p. 86).

As noted by the Attorney-General, Mark Dreyfus, in his second reading speech the Government’s justification for the changes to costs include:

The Respect@Work report heard that concerns about adverse cost orders deter applicants from seeking to resolve complaints through the courts. Cost reforms will give both applicants and respondents greater certainty in terms of the costs they may face while not impacting their access to legal representation.

The model proposed in the Bill is different from that recommended by the AHRC in its Report:

Recommendation 25: Amend the Australian Human Rights Commission Act to insert a cost protection provision consistent with section 570 of the Fair Work Act 2009 (Cth). (Report, p. 45)

As noted in the EM (p. 86), the Report:

… proposed an amendment based on section 570  of the Fair Work Act. This model provides that costs may only be ordered against a party if the court is satisfied that the party instituted the proceedings vexatiously or without cause, or if the court is satisfied that a party’s unreasonable act or omission caused the other party to incur costs.

However, the Government has stated that the model adopted is one supported by the AHRC in 2021, with the Attorney-General noting:

The cost reform in this bill is the model supported by the Australian Human Rights Commission in their 2021 Free and Equal Position Paper [page 201], and these reforms will apply to all applications under Commonwealth anti-discrimination law. The approach balances the need for certainty and the clear impact costs can have on applicants taking action in the courts against the unintended consequences of costs reform, such as impacting access to legal representation.

The EM explains that the Bill would adopt a ‘cost neutrality’ approach in alignment with the AHRC’s 2021 Paper, noting ‘this diverges from the approach under section 570 of the Fair Work Act because it allows the court to consider matters broader than only the conduct of the parties.’ (p. 86).

The Bill inserts proposed subsection 46PSA(1) into the AHRC Act (item 3 of Schedule 5) which provides that the default position is that in unlawful discrimination proceedings each party will bear their own costs. However the courts will have the discretion to default from this position and make orders as to costs where it is considered just to do so (proposed subsection 46PSA(2)).

Factors that must be considered by the courts in determining whether to make a costs order include (proposed subsection 46PSA(3)):

• the financial circumstances of each of the parties
• the conduct of the parties
• whether any party has been wholly unsuccessful
• whether any party has made an offer in writing to another party to settle and
• whether the subject matter of the proceedings involves an issue of public importance.

Notably, in a representative application if the court makes a costs order, it can only be made against the representative body, not the individual/s on behalf of whom the application was made (proposed subsection 45PSA(4)).

Items 4–10 of the Bill amend the Federal Circuit and Family Court of Australia Act 2021 and the Federal Court of Australia Act 1976 to provide that proposed section 46PSA of the AHRC Act applies to unlawful discrimination proceedings in the Federal Circuit and Family Court and in the Federal Court.

Overview of other amendments

AHRC inquiries into systemic unlawful discrimination

Schedule 3 amends the AHRC Act to allow the AHRC to inquire into, and report on, systemic unlawful discrimination or suspected systemic unlawful discrimination (proposed section 35L, at item 8 of Schedule 3). The inquiries can be requested by the Minister or undertaken when the AHRC believes it is desirable to do so (proposed section 35M, at item 8 of Schedule 3).

This is intended to implement recommendation 19 of the Report:

Recommendation 19: Amend the Australian Human Rights Commission Act to provide the Commission with a broad inquiry function to inquire into systemic unlawful discrimination, including systemic sexual harassment. Unlawful discrimination includes any conduct that is unlawful under the federal discrimination laws. The Commission should be given powers to require:

1. the giving of information
2. the production of documents
3. the examination of witnesses
4. with penalties applying for non-compliance, when conducting such an inquiry. (Report, p. 44).

Representative applications

Schedule 4 amends the AHRC Act to allow representative bodies to progress a complaint on behalf of affected persons from conciliation at the AHRC to the federal courts. The amendments are intended to provide support to people experiencing harassment and discrimination to navigate the legal system and resolve their complaints (EM, p. 79).

These amendments are intended to implement recommendation 23 of the Report:

Recommendation 23: Amend the Australian Human Rights Commission Act to allow unions and other representative groups to bring representative claims to court, consistent with the existing provisions in the Australian Human Rights Commission Act that allow unions and other representative groups to bring a representative complaint to the Commission. (Report, p. 45).

As noted by the previous Coalition Government in its response to the Report, ‘there is an existing mechanism to enable representative proceedings in the Federal Court of Australia under Part IVA of the Federal Court of Australia Act 1976.’ (Roadmap, p. 13) However, the EM outlines that these mechanisms are ‘rarely used’ because of the ‘technical and complex requirements which differ from the requirements for bringing representative complaints to the Commission’ (EM, pp. 79– 80).

Item 1 of Schedule 4 inserts a definition of representative application into subsection 3(1) of the AHRC Act, that distinguishes representative proceedings under Part IVA of the Federal Court of Australia Act from representative proceedings under the AHRC Act. It provides that a representative application is:

an application under subsection 46PO(1) that is made on behalf of at least one person other than the person making the application, but does not include an application that commences a representative proceeding in accordance with Part IVA of the Federal Court of Australia Act 1976 (emphasis added).

As set out in the EM, this definition ‘explicitly excludes an application that commences a representative proceeding, known as a class action, in accordance with Part IVA of the [Federal Court of Australia Act] FC Act. In doing so, this Bill does not interfere with the existing and separate mechanisms for class actions under the FC Act’ (p. 80).

Herbert Smith Freehills argued that the amendments may lead to the risk of increased litigation in this area and the potential for a lack of transparency in sexual harassment and unlawful discrimination situations:

On the other hand, the proposed introduction of a specific mechanism for class actions for unlawful discrimination in the Federal courts does give rise to the risk that there may become increasing litigation in this space. However, it is difficult to see how such proceedings will be practical or effective in workplace discrimination matters which are typically highly individualised. The amendment may also have a negative impact on the trend amongst employers towards transparency in relation [to] sexual harassment and unlawful discrimination, given the heightened litigation risk which that transparency may bring. This would be unfortunate given the considerable progress which has been made towards accountability and transparency in recent years.

Commonwealth public sector reporting

Schedule 6 amends the Workplace Gender Equality Act 2012 to require Commonwealth public sector organisations with 100 or more employees to report annually against six gender equality indicators to the Workplace Gender Equality Agency. This is to ensure there is a robust understanding of gender inequality in Australian workplaces and bring the Commonwealth public sector in line with the private sector (EM, p. 93).

This is intended to implement recommendation 43 of the Report:

Recommendation 43: The Australian Government:

1. amend the Workplace Gender Equality Act 2012 to require public sector organisations to report to the Workplace Gender Equality Agency on its gender equality indicators
2. fund the Workplace Gender Equality Agency adequately to meet these expanded reporting obligations (p. 49).

Victimisation as a basis for a civil action

Schedule 7 amends the AHRC Act, Age Discrimination Act, Disability Discrimination Act and Racial Discrimination Act to clarify that victimisation is a basis for a civil action of unlawful discrimination under the Age Discrimination Act, Disability Discrimination Act or the Racial Discrimination Act, in addition to a criminal complaint. These amendments mirror the amendments made to the Sex Discrimination Act by the Respect at Work Act 2021 (see pages 30–31, Bills Digest for further information).

Changes to objects clause

Schedule 8 amends the objects clause of the Sex Discrimination Act to replace the reference ‘to achieve, so far as practicable, equality of opportunity between men and women’ with ‘to achieve, so far as practicable, substantive equality between men and women’.

This amendment is intended to implement Recommendation 16(a) of the Report:

Recommendation 16: Amend the Sex Discrimination Act to ensure:

1. the objects include ‘to achieve substantive equality between women and men’ (Report, p. 43).

The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 amended the objects clause of the Sex Discrimination Act to include the object that is now sought to be amended. As noted in the Bills Digest (pp. 20–22), some stakeholders criticised the adoption of formal, rather than substantive equality, in the objects clause while some preferred the drafting introduced by the Respect at Work Act 2021.

Currently under subsection 46PH of the AHRC Act, the President may terminate a complaint made under the Age Discrimination Act, Disability Discrimination Act, or the Racial Discrimination Act if the complaint was lodged more than 6 months after the relevant alleged act took place. Item 1 of Schedule 8 will change this so that the discretion to terminate a complaint on this basis applies where a complaint is lodged more than 24 months after the relevant alleged act. These amendments mirror the amendments made to the Sex Discrimination Act by the Respect at Work Act 2021 (see p. 30, Bills Digest for further information).

 

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