Adam Bandt (Melbourne, Australian Greens) Share this | Hansard source

The Respect@Work report shone a light on the scale of workplace sexual harassment, something that we've become all too familiar with in this place, sadly. In her landmark report, the Sex Discrimination Commissioner, Kate Jenkins, set out a comprehensive, practical and targeted suite of reforms to tackle the problem. Those recommendations were the product of many interviews and consultations with survivors, business owners, governments, unions, NGOs, lawyers and others. They represented a holistic plan to address discrimination and structural inequalities, to relieve the burden on victims and to make workplaces safe. The recommendations were designed as an integrated package, but the previous government opted to cherrypick the recommendations that it supported. We called it out at the time, and we're pleased to see this government recognise that they need to finish the job and implement the report in full.

The Senate inquiry into this bill, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, is ongoing, and we may propose amendments in the Senate after that investigation is complete. However, we acknowledge that this bill is a welcome and overdue reform to make workplaces safe and respectful for everyone. We're pleased that the objectives of this will be supported by giving additional funding to the Australian Human Rights Commission. This will allow the Human Rights Commission to undertake its extra powers and duties and provide funding for the national network of Working Women's Centres to provide practical advice and support to employees experiencing harassment.

The bill has a number of important provisions. Schedule 2 imposes positive duties on employers to maintain a safe workplace and gives the AHRC powers to investigate compliance with the duty. The positive duty was the centrepiece of the Respect@Work report. Eliminating workplace sexual harassment will take a big cultural shift. A positive duty to create and maintain a safe workplace is the best way to achieve that. It shifts the focus away from individual employees having to report bad behaviour and individual employers taking an ad hoc approach on what to do about it. Instead, it requires employers to proactively prevent discrimination and harassment in their workplace.

The previous government and some members of the business community maintained that the positive duty in the Sex Discrimination Act was not needed as workplace health and safety laws already include duties to ensure workplace safety. However, that duty is clearly not working. If it was, we wouldn't be seeing more than one-third of workers experiencing sexual harassment. Without a positive duty, we are stuck with the current reactive, adversarial victim complaint approach that has failed so many people—mostly women, people of colour, people with disability or queer folk.

The bill also gives the Human Rights Commission broad powers to investigate where a workplace is suspected of not meeting its positive duties. Employers are issued with show-cause notice, provided advice about what is needed to meet the duty and given an opportunity to set out a plan for what they'll do. The commission can accept voluntary enforceable undertakings from businesses that commit businesses to improvements. This is an approach that has worked well for other offences monitored by the AHRC. Where the employer 's response is inadequate, the commission may seek orders requiring actions to be taken. The emphasis is on supporting employers to be better employers, with a compliance and enforcement framework that allows strong action to be taken where employers don't lift their game.

Schedule 1 is also important because it focuses on hostile workplace environments. It prohibits a person subjecting another person to a workplace environment that is hostile on the grounds of sex. It calls for express prohibition of creating or facilitating a hostile environment in which sex based harassment is excused, ignored or even encouraged. Complementing the positive duty, this recommendation takes a workplace-level approach to cultural change.

Sexual harassment is more likely to occur where a workplace environment is sexually charged or hostile even if the conduct is not directed at a particular person—for example, on mine sites where women are habitually given menial tasks and where predatory behaviour is ignored; in hospitality businesses where women are expected to wear skimpy clothing and put up with lecherous customers; and in lunch rooms where sexist, racist or homophobic jokes are told or laughed at by senior staff.

The AHRC's 2018 national survey of sexual harassment found significantly higher rates of harassment in the fast-food and retail industries, particularly for young women. This schedule provides a clear obligation on employers and staff to identify cultures, work practices, uniforms and office set-ups that could create an environment in which harassment is facilitated, condoned or ignored.

Schedule 3 of this bill investigates systemic discrimination. Again, this schedule recognises that addressing sexual harassment issues at a systemic level will relieve the burden on individual workers to pursue complaints and will encourage cultural change. These changes allow the Human Rights Commission to have a look at systemic problems and practices. Examining systemic behaviour across a sector or a workplace helps to identify root causes of the discrimination affecting many employees, rather than asking one person to stand up to their boss directly and run the gauntlet of the legal system and risk their reputation, their mental health and their job.

Schedule 4 outlines representative actions by unions on behalf of those affected. Many workers want the harassment to stop but they don't want to be named as a victim. They don't want to go through a court process and the emotional and financial costs involved. Representative applications by unions in the Federal Court or the Federal Circuit Court will provide a mechanism for genuine cases to be heard and employees to get justice without the same personal cost.

Schedule 5 of the bill details the cost protections for complainants. It recognises that financial risks are a significant barrier to workers making complaints. The Women's Legal Centre ACT has said:

Many women worry that they will not be believed and will be forced to pay the other side's legal fees. In the case of large businesses and government departments, these fees can be so significant that the average person would face financial ruin. It's no surprise many women decide not to take this gamble.

The decision to make a complaint against someone in your workplace will always be difficult.

On this matter of costs, the member for Kooyong, Dr Ryan, has proposed amendments to instead introduce an equal access model that protects a complaint against an adverse costs order, other than when they've acted vexatiously, but allows them to be awarded costs when they succeed. The prospect of costs will help attract pro bono legal support and remove the cost risks. This is, as I understand it, also a provision that applies in whistleblower legislation. The Greens support the member for Kooyong's amendments. We hope the government accepts them.

This bill is otherwise a very good bill. Some other matters might come out during the Senate inquiry that we may initiate in the Senate. I hope the government has heard our support for this bill and our commendation of the government for introducing it. But this costs provision is important, and I don't think the government has got it quite right.

At the moment, as I understand it, in these kinds of claims if a complainant is successful then the other side will pay their costs. At the moment that allows for a large number of people to access the system in a way that they otherwise wouldn't. They wouldn't be able to do it. They can engage lawyers, and those lawyers can look at the claim and work out if it is likely to be successful. If so, they can then litigate the matter on behalf of the complainant and get a good outcome in the knowledge that the complainant won't be forced to bear the total of their own lawyer's costs. In other words, if the complainant has a good claim that they have been discriminated against or have suffered then they can go to court with legal representation knowing that the other side will have to pay their costs if it is a good claim and they win.

The government is proposing to shift that so that complainants now have to bear their own costs. The problem with that is that in some instances that may in fact make it unviable for someone to get a lawyer and pursue their claim. I understand the reason for the government doing this. They're saying that they're worried about a complainant thinking: 'What if I lose? Will I be ordered to pay costs? Will I have to meet my employer's costs as well?' But I think the government has gone too far because by saying that everyone just bears their own costs in this might actually discourage people from raising it, because they might go to a lawyer and get advice that they have a good claim but the legal fees will eat up the whole claim. So a lawyer could say, 'Yes, you have good claim under this new legislation, but now, because of the change made by the government, you have to cover your own costs, and I'm sorry to tell you that your own costs are going to eat up a substantial amount of what we're likely to achieve.'

A way of making sure that people feel comfortable about coming forward and not fear having to pay their employer's costs if they lose but still maintaining the integrity of the system is to do what the member for Kooyong is proposing—that is, to include an amendment that protects a complainant and says, 'You will not be liable for your own legal costs unless you act vexatiously.' If you bring a complaint in good faith—this is the member for Kooyong's amendment, which we support—and you're not being vexatious, you would have a shield and know you won't have to pay costs. Even if you lose, you won't have to pay costs, but, if you win, the other side will have to pay your costs because they committed something that was wrong. That's the kind of provision and protection that applies to whistleblowers in other legislation so whistleblowers have the confidence to come forward knowing they're not going to suffer a financial penalty. So long as they're not acting vexatiously or maliciously, they're not going to be asked to pay costs even if it's looked at and it's determined, 'It doesn't quite meet the test, but it was a good-faith claim.'

I urge the government to reconsider this question of costs, because I think it may have an effect opposite to what the government is proposing. It may actually discourage people's ability to get legal representation to follow these complaints through, because it will increase the likelihood that lawyers will say to some people: 'Yes, you've got a good claim. Yes, you have been harassed, but, I'm sorry, the amount we're going to be able to recover compared with what you're going to have to pay in lawyer fees now may not make it worth your while, because the government changed the law.' I don't think it's the government's intention to discourage people from bringing good-faith complaints, but I think that would potentially be the effect of it unless the member for Kooyong's amendment succeeds. If it doesn't succeed here, we'll be pursuing in the Senate. I think that, through the Senate inquiry, the government is going to hear that it would potentially have the effect of deterring complaints from being brought.

I hope the government takes that suggestion in good faith and considers it, because what we're asking is to bring it in line with, say, whistleblower protection. This is someone who is blowing the whistle on sexual harassment or misconduct. They should be entitled to have their day in court and they shouldn't be turned away from doing it as a result of the government changing the law in a way that makes it no longer financially viable for them to do. I hope the government will consider the member for Kooyong's amendment and also the Greens amendment when it gets to the Senate if they don't accept it in the House.

Finally, schedule 6 extends the Workplace Gender Equality Agency reporting powers to the Commonwealth public sector. Measuring data and monitoring progress is key to closing the gender pay gap that persists across all industries. The Greens have long called for reporting obligations to apply to the public sector and to private-sector companies with more than 50 employees. We are pleased to see the bill extends these obligations to the Commonwealth public sector and continue to push for robust and transparent reporting across more workplaces and across more measures.

The Greens support this bill. We welcome the decision of the government to refrain from cherry-picking the recommendations of the Respect@Work report—as the previous government sought to—and to pass a law which can finally start to address these pervasive issues across our workplaces. We will continue to pursue relevant amendments in the Senate and support the member for Kooyong's amendment, but we will support this bill in the House.

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