Zoe Daniel (Goldstein, Independent) Share this | Hansard source

I'm pleased to speak on this bill, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, the direct consequence of the Respect@Work report and the behaviour that led to it. Safe and respectful workplaces aren't just a moral issue. Having a safe and respectful workplace is fundamental to increasing women's participation in the labour force, their career progression and fulfilment and their future economic security. Having a safe and respectful workplace is as much an economic imperative as it is a moral and a social one.

The statistics around sexual harassment paint a depressing picture. It's a pervasive issue in Australian workplaces that affects people across all industries, at all levels and in all locations, from Goldstein to Brisbane, Perth and Hobart. Some encouraging news is that it's now being talked about seriously, given more than lip service, and it's starting to be seen as a serious problem that needs addressing with more legislative clout.

In March 2020, the Australian Human Rights Commission released the Respect@Work report. It found that sexual harassment is a common experience. In 2018, one in three Australian workers had experienced workplace sexual harassment in the last five years, up from one in five in 2012. The current system places the onus on the victim to complain, yet only 17 per cent of the people who reported being sexually harassed at work in the commission's national survey made a complaint. Sexual harassment happens in all workplaces, including rural, regional and metropolitan settings, as well as small, medium and large workplaces. Workplace sexual harassment has a high cost. As well as having a devastating and profound impact on individuals, Deloitte Access Economics estimated that workplace sexual harassment cost the Australian economy $3.8 billion in 2018.

The Respect@Work report concluded that the existing frameworks are complex, difficult to navigate and overly reactive, rather than focused on prevention, and place a significant burden on individuals who experience harassment to make a complaint. The report recommended several legislative amendments to strengthen and clarify the legal and regulatory frameworks relating to sexual harassment and made 55 recommendations. This bill would implement seven of them.

The cornerstone reform is the introduction of a positive duty in the Sex Discrimination Act that would require employers to take reasonable and proportionate measures to eliminate sex discrimination, including sexual harassment and victimisation. The bill also expands the role of the commission by providing it with new powers to monitor and enforce compliance with the positive duty, including the ability to give compliance notices. The introduction of a positive duty and the ability of the commission to enforce that duty is a significant move. It's a turning-point moment that should finally start to shift the burden of sexual harassment from individuals to employers.

Under the current complaints based legislative framework, the onus is on people who experience the harassment to make the complaint. But, as the 17 per cent figure tells you, most people choose not to lodge a complaint because they fear the impact that complaining will have on their reputation, career prospects and relationships within their community or industry. Given that significant numbers of sexual harassment incidents go unreported and are therefore not investigated, requiring employers to proactively identify and take action to eliminate harassment at work is a critical first step in making workplaces safer for everyone. A positive duty will be a powerful tool in promoting broad systemic and cultural change around sex discrimination and sexual and sex based harassment in the workplace. It will incentivise employers to address the systemic drivers of harassment and help prevent it occurring in the first place.

However, as the Sex Discrimination Commissioner, Kate Jenkins, noted in her opening statement to the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the bill on 15 October this year:

… the legislative response to Respect@Work will also create some inconsistencies in coverage both within the Sex Discrimination Act and across the federal discrimination laws. The introduction of a positive duty in the Sex Discrimination Act is an excellent reform and may be seen as a pilot for the other acts.

Let's talk about that. Everyone deserves respect at work. While there is much to commend, the scope of this bill does not extend the same protections to everyone who is protected under federal discrimination law or even everyone who is protected under the Sex Discrimination Act 1984.

LGBTQIA+ people, among others, are being left out of the protections offered by this bill. In its submission to the Senate inquiry, Equality Australia argued that the positive duty to eliminate discrimination should apply to all protected attributes under the Sex Discrimination Act, including sexual orientation, gender identity and intersex status. This would ensure consistency and coherence in federal discrimination law and ensure that all protections in the Sex Discrimination Act apply equally to people regardless of their gender, sexual orientation or sex characteristics.

A 2021 survey by Women of Colour Australia illustrates the systemic barriers and structural inequities women of colour face. A total of 543 women of colour completed the survey, with 60 per cent saying they face ongoing discrimination in their workplace. Respondents also identified that the most pressing issues facing women of colour in Australian workplaces are the combination of racism, sexism and organisations engaging in tokenism, rather than real and meaningful action. Therefore, for any national workplace reform that aims to tackle sex discrimination and harassment to be successful it must be underpinned by an intersectional approach that addresses multiple intersecting systems of oppression and discrimination.

There are also other areas of federal discrimination laws that require pressing attention and reform. In its paper 'Free & equal: a reform agenda for federal discrimination laws,' in December 2021, the commission notes:

… Australia was a world leader on discrimination protections when the Racial Discrimination Act (Cth) was introduced in 1975… The Sex Discrimination Act 1984 (Cth) and Disability Discrimination Act 1992 (Cth) were also considered international best practice at the time they were introduced.

However, what was best practice in the second half of the 20th century is not so in the 21st century. Australia has fallen behind other comparable jurisdictions in the protection against discrimination and the transformation that has occurred in those jurisdictions in advancing equality.

For this reason, the commission says that Australia's discrimination laws 'are now in urgent need of renewal'.

The introduction of a positive duty into the Sex Discrimination Act is an excellent reform that places the onus firmly on employers to get their house in order. No-one should feel unsafe or uncomfortable in their place of work. This shouldn't stop with the Sex Discrimination Act. This should be a springboard for further change. There is a place for a positive duty to eliminate discrimination in all federal discrimination laws: the Racial Discrimination Act 1975, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004.

The people of Goldstein support equality. I urge the government to undertake a comprehensive review of its federal discrimination laws as a matter of priority.

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