Anti-Discrimination and Human Rights Legislation Amendment Bill 2022

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 marks a significant step in fulfilling the government’s election commitment to implement the recommendations of the [email protected] report.

The [email protected] report was a watershed moment in recognising the impact of sexual harassment in Australian workplaces and setting out a clear path to reform. The National Inquiry into Sexual Harassment in Australian Workplaces found that 33 per cent of people who had been in the workforce in the preceding five years had experienced workplace sexual harassment. The national inquiry found that almost two in five women said they had experienced sexual harassment in the workplace in the last five years. Gender inequality is a key driver of sexual harassment in the workplace, which is borne out by the disproportionate impact this behaviour has on women.

The government acknowledges the work of the Sex Discrimination Commissioner, Kate Jenkins, and the work of the commission more generally in producing the [email protected] report and also the work that Commissioner Jenkins and the commission have done since the report was published to implement the report’s recommendations, including through the [email protected] Council.

This bill would not have happened without the individuals and organisations who contributed their stories, advocacy and expertise to inform the findings and recommendations in the [email protected] report.

The [email protected] report made 55 recommendations to federal, state and territory governments, independent government agencies, the private sector and the community more broadly, all driven by the same impetus-to put an end to sexual harassment and make Australian workplaces safe for all.

The government is moving decisively to implement the outstanding legislative recommendations of the [email protected] report, as these changes will have an immediate impact in setting cultural norms around preventive efforts and are essential to eliminating workplace sexual harassment, discrimination and victimisation.

Hostile Work Environment (Schedule 1)

Schedule 1 to the bill introduces an express prohibition in the Sex Discrimination Act to protect people from hostile workplace environments on the ground of sex. This protection will not require that conduct is directed at a specific person but instead prohibits conduct that results in an offensive, intimidating and humiliating environment for people of one sex. As noted in the [email protected] report, sexually charged or hostile workplace environments can increase the risk of a person experiencing other forms of unlawful discrimination, including sexual harassment. This new provision will provide clarity to employers, employees and other people in the workplace on their obligations to create safe and respectful workplace environments. This will implement recommendation 16(c) of the [email protected] report.

Positive Duty (Schedule 2)

Schedule 2 to the bill creates positive duty on employers to take reasonable and proportionate measures to eliminate unlawful discrimination, including sexual harassment, as far as possible. This will implement recommendation 17 of the [email protected] report.

The Australian Human Rights Commission will also be equipped with appropriate compliance powers to enforce the positive duty. The commission will prepare and publish guidelines for compliance with the positive duty and will educate businesses and employers to better understand and comply with their obligations. This will implement recommendation 18 of the [email protected] report.

This cornerstone of the [email protected] report recommendations is a key step to focusing actions on the prevention of sexual harassment and discrimination, looking beyond remedies for misconduct. The focus on prevention of workplace sexual harassment and discrimination also shifts responsibility from those who experience that discrimination and harassment to those who are best placed to prevent it: employers. The positive duty will complement the existing work health and safety framework, which also requires employers to ensure, as far as reasonably practicable, the physical and psychological health and safety of workers.

The bill will enable the commission to monitor and assess compliance, working with businesses along the way to support their compliance. The commission’s functions will include:

conducting inquiries into a person’s compliance and making recommendations to achieve compliance;

giving a compliance notice specifying the action that must be taken to address noncompliance;

applying to the courts for an order to direct compliance with a notice; and

the ability to enter into enforceable undertakings.

Inquiries into systemic unlawful discrimination

Schedule 3 to the bill will provide the Australian Human Rights Commission with a function to inquire into systemic unlawful discrimination. This will implement recommendation 19 of the [email protected] report.

The [email protected] report found that there are significant cultural and systemic factors that drive sexual harassment in the workplace and that addressing these drivers can be challenging.

This function will enable the commission to inquire into any matter that may relate to systemic unlawful discrimination or suspected unlawful discrimination.

Suspected unlawful discrimination is unlawful discrimination that affects a group of people and is continuous, repetitive or forms a pattern. The commission can undertake an inquiry where requested by the minister or when the commission considers it would be desirable. At the conclusion of an inquiry, the commission may publish a report and provide it to the minister, which may include recommendations.

Representative actions

Schedule 4 to the bill will enable representative actions to proceed from conciliation at the commission to make an application to the courts and will implement recommendation 23 of the [email protected] report.

Currently a representative body is able to make a representative complaint to the commission on behalf of one or more persons; however, where a complaint is not resolved, the representative body is not able to initiate court proceedings.

This bill will enable a representative body to progress a complaint on behalf of one or more affected persons from conciliation at the commission to application to the court. This will improve support for people who experience harassment and discrimination to navigate the legal system and resolve their complaints. It will also better enable issues of systemic discrimination affecting a broad range of people to be addressed.

Costs protections

Schedule 5 to the bill will insert a costs protection provision into the Australian Human Rights Commission Act to provide greater certainty in relation to the cost of pursuing legal action. This will implement recommendation 25 of the [email protected] report.

The [email protected] 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 cost reform in this bill is the model supported by the Australian Human Rights Commission in their 2021 Free and Equal Position Paper, 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.

Public sector reporting to the Workplace Gender Equality Agency

Schedule 6 to the bill will amend the Workplace Gender Equality Act to require the Commonwealth public sector to report against six gender equality indicators to the Workplace Gender Equality Agency. The [email protected] report found that improved data collection is important to ensure that there is robust understanding of gender inequality in Australian workplaces. This will implement recommendation 43 of the [email protected] report for the Commonwealth public sector.

Victimisation

Schedule 7 to the bill will clarify that victimisation can be the basis for a civil action of unlawful discrimination against Commonwealth anti-discrimination law, being the Age Discrimination Act, the Disability Discrimination Agent and the Racial Discrimination Act.

The Respect at Work Act 2021 included an amendment to clarify that victimisation can be the basis of a civil-and not just a criminal-action of unlawful discrimination under the Sex Discrimination Act.

It had always been the intention that the provisions in relation to victimisation in the Sex Discrimination Act-and the equivalent provisions in other Commonwealth antidiscrimination acts-could form the basis of either a civil or criminal cause of action, but the clarifying amendment in the Respect at Work Act 2021 was made necessary by a number of court decisions which gave rise to uncertainty around whether the relevant provisions achieved their intent.

The amendments in schedule 7 would address the same potential issue in other Commonwealth antidiscrimination acts by ensuring that the victimisation provisions in those acts reflect what has always been the intention-which is that acts of victimisation can form the basis of both civil and criminal causes of action.

Objects clause and termination timeframe alignment (Schedule 8)

Schedule 8 to the bill will amend the objects clause of the Sex Discrimination Act to state that an object of the act is to achieve substantive equality between men and women. This will implement recommendation 16(a) of the [email protected] report.

The bill will also insert a new objects clause to support the operation of the new hostile work environment protection. The addition to the objects clause will state that an object of the act is to eliminate, so far as is possible, discrimination involving workplace environments that are hostile on the ground of sex.

This schedule will also change the timeframe for when a complaint under anti-discrimination law may be terminated by the President of the Australian Human Rights Commission from six months to 24 months.

The Respect at Work Act 2021 amended the time frame for complaints made under the Sex Discrimination Act, but not for any other antidiscrimination law. This has led to procedural challenges and complexity for people who are entitled to make a claim under more than one Commonwealth antidiscrimination act.

The president retains a discretion to consider complaints beyond the statutory timeframe, but this change will give greater certainty to complainants that intersectional aspects of an antidiscrimination complaint can be considered without procedural obstacles.

Conclusion

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 [email protected] 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 [email protected] report, makes that paradigm shift and signals to all workers that they deserve to be safe at work.

Sexual harassment is by no means inevitable. It is preventable. And this government will continue to work to ensure it is addressed.

I am both pleased and proud that the government is taking this next crucial step in fully implementing the [email protected] report.

The Attorney-General’s Department consulted with a number of key stakeholders in relation to the measures contained in this bill, including members of the [email protected] Council. I would like to thank the unions, business groups and other individuals and organisations that provided constructive feedback to the Attorney-General’s Department as part of that process.

I expect the bill will be referred to a Senate committee for an inquiry. Given the range of views about how best to implement the recommendations of the [email protected] report, I have no doubt that the committee will receive a number of thoughtful and constructive suggestions for refinements and improvements to the bill. The government looks forward to engaging, through the Attorney-General’s Department, with that important parliamentary process.

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