Allegra Spender (Wentworth, Independent) Share this | Hansard source

The Respect@Work report shone a deeply troubling light on the culture within Australian workplaces. For some, the findings were surprising. For many of us here today, they were anything but. As the Attorney-General acknowledged in his second reading speech, sexual harassment is a serious and pervasive issue in Australia. It affects all of our industries and our professions. It's endemic across our workplaces, and for too long it has been accepted by society. When we could've chosen to act, we have turned away and ignored the problem.

Our country's inaction is borne out in facts. One-in-three people experienced sexual harassment at their workplace in the last five years. Amongst those people, almost half had experienced harassment previously at the same workplace, and yet only one-in-five of those people sought support or advice. The foundations of the Respect@Work report are the lived experiences of thousands of Australian women in the workplace. It's the stories of our mums and daughters, of our best friends and our old friends and of our colleagues and our communities. It's the display of pornographic material in our offices, the unwanted sexual advance at the Christmas party and the offensive and derogatory comments that masquerade as so-called banter.

The recent election may well have been about climate, but it's also been about women. Women in Wentworth and around the country are saying, 'Enough is enough.' Women in Wentworth and around the country stood up and demanded a response to the harassment, to the abuse and to the inequity of women across Australia, who have been subjugated for too long. They returned me and a record number of other women to this place to deliver that change.

As I speak in support of this bill today, I stand on their shoulders. I stand side by side with many thousands of survivors of sexual harassment and discrimination across this country, because enough is enough. That is why I'm delighted to speak on the bill today. This is a bill that prohibits conduct which subjects a person to a hostile work environment on the grounds of their sex. This is a bill that places a positive duty on employers to take reasonable and proportionate measures to eliminate unlawful discrimination on the basis of sex. This is a bill that empowers the Australian Human Rights Commission to conduct inquiries into systemic and unlawful discrimination and to support businesses to make work environments in Australia a safer place. I congratulate the government on its commitment to implementing the recommendations of the Respect@Work report and on its decision to prioritise this issue in the early months of their government.

The women of this country have spoken, and I'm glad the government is finally listening. However, we cannot allow the speed of change that is necessary to lead this legislation, which limits the ability of survivors to seek legal recourse. The cost provisions in the bill introduce what is known as a 'cost-neutrality approach'. As a default position, this means that in an unlawful discrimination proceeding each party would bear their own costs. There's an appealing logic to a cost-neutrality approach, and certainly it was my first instinct to support it. However, failing to reward successful applications with a favourable costs order may deter those with a meritorious claim from coming forward. This is because there is significant risk that a survivor's own legal costs will be higher than any compensation awarded. As currently drafted the bill gives an incentive for well-funded defendants to draw out proceedings against less-well-funded plaintiffs, adding to the trauma that survivors already are facing. When only 17 per cent of people experiencing sexual harassment make a formal complaint, we cannot afford to add further barriers to stop people coming forward. I know that this bill has been drafted with the best of intentions, and therefore I urge the government to work with the crossbench to consider options for costs that ensure equal access to justice for those who experienced harassment or discrimination.

But there's another key concern for me: why this bill fails LGBTQ people. It is, sadly, not just women who experience harassment and discrimination in the workplace. Unfortunately, many of those in the LGBTQ community are also badly affected, and governments of all stripes have for many years failed to address this. The discrimination and harassment experienced by the LGBTQ community in Australia is borne out by shocking findings in our country's largest-ever survey of the community, conducted in 2020. This survey found that six in 10 LGBTQ people felt that they had been unfairly treated to some degree in the last year because of their sexual orientation. This figure is even higher for people who are trans or gender diverse. Even worse, around 25 per cent of LGBTQ people have experienced sexual harassment in the past year, including being spat at or receiving an offensive gesture. In the workplace there is significant ongoing discrimination. A Human Rights Commission report found that 62 per cent of LGBTQ people felt they were unable to disclose their sexual orientation in the workplace despite wanting to and that there are higher rates of workplace sexual harassment among LGBTQ people compared to those who identify as straight or heterosexual.

Behind these statistics is an appalling lived experience for many thousands of ordinary Australians: people who are afraid to bring their whole selves to work, because they're afraid of what their co-workers might say; people who stayed quiet when they were harassed, because they think no-one will believe them; people who came to me in floods of tears during the election campaign, because of the abuse they had received due to the overt politicisation of issues around trans rights.

The point is that nobody should be subject to conduct in the workplace which is offensive, which is intimidating or which is humiliating, regardless of whether that conduct relates to their sex, to their sexual orientation, to their gender identity or to any other protected attribute. However, in this noble pursuit of swiftly implementing the remaining findings of the Respect@Work report, this bill does not provide appropriate protections for LGBTQ communities. Hostile-environment provisions, which are critical to defining and preventing the types of harassment that have characterised our workplaces for too long, do not extend to hostility relating to somebody's sexuality. By extension, the positive duty placed on employers by this bill is limited to pretending discrimination but only on the basis of sex. In both of these cases, this means the provisions of the bill do not reflect the full range of characteristics that are protected under the Sex Discrimination Act or the characteristics that are protected under similar discrimination laws such as the Racial Discrimination Act. We have an opportunity to put this right, to improve the bill before the House and to have a safe space at work not just for women but for people regardless of their identity.

On proposed changes to the bill, there are two ways that these can be done. First, the government can, and should, amend the bill so that the provisions relating to hostile workplace environments on the grounds of sex are expanded to include all attributes that are protected under the Sex Discrimination Act. This includes hostility on the grounds of sexual orientation, gender identity and whether someone is pregnant or breastfeeding. The government should also consider whether it's necessary to amend other federal discrimination laws, such as the Racial Discrimination Act, for the same reason.

Second, the government should extend the positive duty on employers in the same way such that it reflects the discrimination laws to which they are already subject. As currently written, the bill only requires employers to prevent unlawful sex discrimination and not other forms of unlawful discrimination. Now is the opportunity to address the intersectionality of discriminatory practices and to create a safe work environment for all, which is certainly the ambition of this parliament. I will be moving amendments in relation to both of these areas and I call on the government and the opposition to support them. Harmonising the provisions in this bill across different protected characteristics makes sense for those who it protects, but it also make sense for business. Some firms I speak to already have the measures detailed in this bill in place and they feel legislation is now catching up with industry good practice. Others acknowledge there is much more work to do and they are keen to get on with the job.

However, what is not helpful for businesses is a piecemeal approach to legislation that leaves them with a complex array of requirements that are inconsistent across discrimination, corporate and work health and safety laws. This has unfortunately been the approach to this legislation across many areas by many governments for many years. It has left them, many of whom care deeply about doing the right thing, scratching their heads and trying to understand whether they are compliant or not with all the different types of legislation that apply differently in different circumstances.

So I urge the government to consider how they can expand the provisions of this bill to ensure they consistently address discrimination across all protected characteristics, whether that be gender, sexual orientation, disability or race. To support business with the implementation, I urge the Human Rights Commission to draw up regulations and guidance supporting this bill that, to the greatest extent possible, reflect a consistent approach with existing work health and safety requirements. This is a landmark piece of legislation for women across Australia. I urge the government to ensure that this is also a landmark piece of legislation for LGBTQ people in Australia and those suffering discrimination.

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