Senate debates

Tuesday, 31 August 2021


Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021; Second Reading

6:31 pm

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | Hansard source

I rise to make a contribution on this very important step forward. But it's a small step, this bill before us, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. This bill is a movement towards reform, but it is very limited and, ultimately, insufficient to address the moment that we are in. That said, it will still go a small way towards making Australia a little safer for Australians who are exploited in their workplace by sexual harassment, and it's time that something were done. I characterise it as a firm first step, but so much more needs to be done.

Labor is proposing to improve the strength of this bill and to seize this moment to make a change that will profoundly protect and improve the lives of Australian women and ensure that sexual harassment and sexual violence is crushed within a generation. We should not lose this moment. I note this unique historical moment that we are in. Thanks to the courage of some incredible women, our nation is finally having a long overdue conversation about society's treatment of women. But I also note that the recent statistics over the last five years reported in Commissioner Jenkins' report indicate that, while it's 40 per cent of women who are harassed, there is also an increase to 25 per cent of men who are experiencing sexual harassment.

I applaud Brittany Higgins and her courage in telling her story. Her brave stance catalysed a chain reaction that seared through every layer of Australian society—from powerful corporate boardrooms to political parties to the halls of this very building. The struggle of women for safe workplaces was put on the national agenda. Let me give the chamber some history on this bill. Initially, the first Me Too movement prompted the landmark Respect@Work review set in motion by the former Minister for Women Kelly O'Dwyer in 2018. Conducted by the Sex Discrimination Commissioner Kate Jenkins, the report laid out 55 recommendations to make our institutions and our workplaces safer for women and cracked down on the scourge of violence and harassment that's been endemic for too long. I actually have the report with me. I don't how many people will be watching—I know more people listen across the country than watch—but this is a substantial body of work. It is a very significant and careful investigation into the reality of living in Australia in our time and the sexual harassment that's going on in our workplaces. It's not something to be ignored.

Those who are listening to the debate this evening, and perhaps tomorrow as well, should really be aware that the government commissioned this report. The government have this information. The government have the power to write the legislation. They have all the resources of government to create outstanding legislation in response to this outstanding work. But you'd have to say that, when faced with that opportunity, they squibbed it. They simply haven't taken the reins and moved us far enough along the journey towards a better Australia.

Labor will back the very important work of the commission, and, of course, we've made it clear that we support all 55 recommendations. That's a very different kind of support. It's authentic, genuine support that we're happy to be held accountable for. It contrasts significantly with the version of reality—all announcement and pretty short on delivery—that we're experiencing with this Liberal and National Party government. There's the announcement; then there's the gap or, increasingly, the chasm; and then there's what actually gets done. That's what's happening with this piece of legislation as well.

We know that Minister Porter kept this very important report locked away in his bottom drawer for over a year, gathering dust. So I do want to acknowledge that Senator Cash, having taken over the portfolio, has got on with the job, but I just wonder how much more might have been done and how much better a job this Australian parliament might have been able to achieve if the work necessary to govern well had actually been undertaken, instead of great reports like this being allowed to just sit off to the side with no response. The fact is that this could still have been sitting in Minister Porter's bottom drawer but for the course of history. It took an alleged rape in the ministerial wing for the government to finally come to its senses, blow the dust off the report and begin to implement the pieces of it that it liked.

So let's be clear. This extensive, well-researched, well-prepared report was an opportunity to create very significant and lasting legislation to improve the life and wellbeing of the Australian people. When they finally got to blowing the dust off the report, what did they come forward with? A bill that will implement six—six—of those 55 recommendations: Nos 16, 20, 21, 22, 29 and 30. It's something, but there's absolutely no way that it's enough.

The bill as it stands will clarify the object of the Sex Discrimination Act. This will add a line to the 'Objects' section of the act so that, in addition to the elimination of discrimination and harassment, the act claims 'to achieve, so far as practicable, equality of opportunity between men and women'. The bill will also clarify an existing provision in the Sex Discrimination Act to ensure that it's unlawful to harass a person on the ground of their sex. This is necessary due to confusion regarding this provision in current case law. The bill will also expand protection significantly to cover all paid and unpaid workers, interns and volunteers.

It will also cover previously excluded categories such as members of parliament, MOP staff and judges, and it will remove the current exemptions of state and territory public services from protections under the act. This is important given the context of this debate, and it would close a loophole that should never have been there in the first place. It shows, importantly, that this parliament is not above the law and that we must hold ourselves to the same standard as every other workplace in Australia. The standards need to be rising standards, not minimum, basic standards that continue the practices that are too much enmeshed in the culture of Australian workplaces. The work we do in this place is of national consequence, so there should be no reason at all why our workplace should be an unsafe place.

This bill also expands ancillary liability provisions so that people who cause, instruct, induce, aid or permit another person to engage in sexual harassment or sex based harassment can also be found liable for the unlawful conduct. It also clarifies where the federal courts can hear civil applications under the AHRC Act regarding victimisation.

One of the most important reforms in this bill is to amend the AHRC Act so that the president will be unable to terminate a complaint on the grounds of time, until 24 months have passed. That's a 400 per cent increase in time. It's very necessary based on the evidence that we received. Certainly, from my own experience of sexual harassment, there's a period of trying to process what on earth happened to you. When you're harassed, it's such a shock because it's often by a person that is senior to you and a person that you trusted. You do the mind replay and think: did that really happen? And then there's the confronting of that and what might follow, including the emotional impediments to action, let alone the practical ones. It means that often there can be a significant delay before people come forward.

Perhaps Senator Cash has seen this, as one of the few women in a leadership position in this government: back in 2017, this government cut the time frame for people to bring forward a complaint. They cut it in half. It was a year and they took it back to only six months. We haven't seen great leadership over the period of this government, and, let's face it, these guys have been here for eight years and we have not seen good leadership. In a way, I suppose it's remarkable that there's been progress—but not enough. So I endorse the increase in the time in which a complaint can happen to 24 months.

The bill will also give the Fair Work Commission the ability to make 'stop bullying' orders to deal with sexual harassment in the workplace. Other important reforms are also included in the bill, such as amending the Fair Work Act so that 'sexual harassment can be conduct amounting to a valid reason for dismissal'. Oh, my God—how many women wish that that had been the case prior to this legislation coming forward. It will also seek to enable an employee to take two days of compassionate leave if the employee or their partner has a miscarriage. Those are the worthy reforms that I identify in my contribution, but they barely scratch the surface of what needs to be done. As I said, implementing only six of the 55 recommendations of the Respect@Work report is barely 10 per cent.

I participated in the inquiry regarding this bill and heard some very, very troubling evidence about the insufficiency of current Australian laws in dealing with the scourge of sexual harassment, and that's convinced me that the bill the government has presented does not adequately address the scale of the crisis. Additionally, there is the smorgasbord of disgusting evidence that's embedded in the report that reveals the ugly reality of sexual harassment in the workplace. When this very rushed inquiry was undertaken, Labor senators put forward a dissenting report and in that report we quoted Ms Julia Fox, the National Assistant Secretary of the Shop, Distributive and Allied Employees Association. She told the committee:

Working in retail and fast food, our members are also exposed to an increased risk of sexual harassment due to their customer-facing roles, with one in five members sexually harassed by a customer. The impact that sexual harassment on workers is profound. A quarter of our members who experienced sexual harassment said that it negatively impacted their employment, career opportunities, and work. Almost half of those who have been sexually harassed reported experiencing mental health issues as a result, with six per cent reporting they'd experienced suicidal thoughts and four per cent with PTSD. Employers need to recognise the health and safety impacts of sexual harassment in the workplace and take steps to ensure the workplace is safe.

I know that those comments may trigger some people who might be listening to this debate, and I encourage them to seek support from the mental health lines that are available to help us all when we find ourselves in a time of struggle.

The ACTU's submission to the inquiry that looked at this piece of legislation found it inadequate and noted:

The government's response to Respect@Work falls well short of what the Respect@Work Report says is necessary to prevent sexual harassment and other forms of gendered violence at work. The government's decision to refuse to take the actions recommended by Respect@Work—an Inquiry commenced by them—to end sexual harassment and other forms of gendered violence in Australian workplaces is unforgivable. Workers at Parliament House and countless other workplaces around the country who have had the courage to speak up about these injustices deserve much better.

There is an opportunity for those on the crossbench and the Greens senators to work with Labor—and I encourage the government to give it consideration even at this late stage of the bill advancing through the Senate—to make changes as outlined in the amendments that will be put forward by the Labor Party and to seize this moment, to take heed of the historical moment that we are in. Do not squib it. Do not lose the opportunity to make a bill that does a few things of import much better than it currently is. Give Australians the protection that they need.

Tania Constable, the chief executive of the Minerals Council of Australia, spoke to the committee about the appalling rates of sexual harassment in the mining industry. She told us that workplace sexual harassment in the mining industry is notably higher, at 40 per cent, than the national prevalence rate of 33 per cent. The proportion of male perpetrators is higher, at 83 per cent, than the national average of 79 per cent. The likelihood of being sexually harassed by more than one person is higher. The mean number of perpetrators of sexual harassment in the mining industry is three, compared to 1.7 overall. There's so much more to say, and I look forward to continuing the debate, but this is a moment for an improved bill as we move through the next stages of consideration here in the chamber.


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