Senate debates

Tuesday, 31 August 2021


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

12:01 pm

Photo of Jenny McAllisterJenny McAllister (NSW, Australian Labor Party, Shadow Cabinet Secretary) Share this | Hansard source

There is scarcely an institution in Australia that has not been touched by an allegation of sexual harassment over the past few years—the Defence Force, the High Court, hospital operating theatres, theatre productions, big banks, big miners and, of course, here in the Parliament of Australia. The fact that these stories are being openly reported and publicly discussed may be new, but the stories themselves are old. They are wearyingly old for the generations of women who have had to live them. Sexual harassment has been a standing feature of women's working lives. That is one of the inescapable conclusions of the landmark Respect@Work report produced by Sex Discrimination Commissioner Kate Jenkins.

The report itself is a sobering document. I have read it, and it is difficult to imagine making your way through it and not feeling compelled to act urgently to address sexual harassment in Australian workplaces, yet, staggeringly, that is precisely what the Morrison government did. The Morrison government ignored the Respect@Work report for over a year, leaving it to gather dust on the desk of former Attorney-General Mr Porter. During that year Mr Porter didn't even bother to meet with the Sex Discrimination Commissioner to discuss it.

It took until April this year to respond to the report. Mr Morrison made a flashy announcement that he would adopt every recommendation in the Respect@Work report, but the truth is a lot more complex, because, if you read the fine print—and you always need to with this government—you see that the government agreed to all the recommendations except that for some that agreement was in principle or in part or they just noted the recommendation with no intention to do anything about it. It was months after that when the government prepared the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, which we are now considering. Even this legislation has been brought on for debate a week late. As I'll go on to explain, the bill ignores the most important and urgent legislative changes and it botches most of the recommendations that the government has grudgingly agreed to.

From start to finish this government's actions tell a pretty simple story: unless the Prime Minister is being asked questions about this issue at a press conference, sexual harassment is not a political priority for the Morrison government. That is simply not good enough, because, as the Respect@Work report makes clear, this is a serious problem that demands serious action.

The report is a confronting document. It found that workplace sexual harassment is prevalent and pervasive.

It occurs in every industry, in every location and at every level in Australian workplaces, and Australians across the country are suffering the financial, social, emotional, physical and psychological harm associated with sexual harassment. And of course this is particularly so for Australian women. This behaviour also represents a very real financial cost to the economy through lost productivity, staff turnover and other associated impacts, with workplace sexual harassment estimated to cost the Australian economy $3½ billion a year.

The inquiry found that 40 per cent of women and 25 per cent of men have been sexually harassed at work in the past five years. The inquiry also found that most people who experience sexual harassment never report it, because they fear the impact that reporting it will have on their reputation and their career prospects. The answer to this is legislative change. The report makes that clear. The Sex Discrimination Commissioner has said:

The current legal and regulatory system is simply no longer fit for purpose.


… the current system for addressing workplace sexual harassment in Australia is complex and confusing for victims and employers to understand and navigate. It also places a heavy burden on individuals to make a complaint.

Often there are consequences for employers only after sexual harassment has occurred and only if victims are brave enough to risk their careers by making a formal complaint. This can lead to employers discouraging victims from making complaints—instead of providing a safe working environment free from sexual harassment. The commissioner found that there is an 'urgency for change'. She said that a whole new approach to addressing sexual harassment in workplaces is needed. Well, this bill doesn't do that. This bill does not implement that urgent new approach. Instead, it nibbles around the edges of substantial reform, with most changes simply clarifying or confirming the way the law already operates. The Respect@Work report was clear: we cannot tackle sexual harassment without meaningful legislative reform. Unfortunately, the commissioner herself has described the government's response as a missed opportunity.

Labor recognises the opportunity before us to remedy these wrongs. Labor is committed to fully implementing all 55 recommendations of the Sex Discrimination Commissioner's groundbreaking Respect@Work report to help keep Australians safe from sexual harassment at work. We will be moving a detailed series of amendments to remedy the worst of the government's oversights. If the government refuse to amend the shortcomings in their bill, then, under Anthony Albanese, a Labor government will work with the Workplace Sexual Harassment Council, employers, workers, unions and legal experts to finalise and implement stronger laws as a matter of priority.

As part of our commitment, Labor announced today that we will commit $24 million to ensure that there are properly funded Working Women's Centres in every Australian state and territory. I visited the surviving Working Women's Centres and met with the amazing and hardworking people who staff them. They provide free, confidential assistance and advice about workplace matters, including sexual harassment, wage theft and discrimination. You would think that, having received and committed to the Respect@Work report's recommendations, the Morrison government would want to keep these centres open. You'd be wrong. In May this year I was at the Alice Springs office of the Northern Territory Working Women's Centre, which was under threat because of budget cuts by this government. A Labor government would act to keep the centre's doors open and establish new centres across the country.

A second reading amendment in my name has been circulated, and I now move:

At the end of the motion, add ", but the Senate:

  (a) notes:

  (i) it took tens of thousands of Australian women taking to the street in the March4Justice before the Government responded to the Sex Discrimination Commissioner's groundbreaking Respect@Work Report, and even then the Government would not commit to implementing the 55 recommendations in full,

  (ii) genuine action on sexual harassment in the workplace includes fully implementing all 55 recommendations of the Respect@Work Report to help keep Australians safe from sexual harassment at work,

  (iii) this bill as drafted does not fully implement all legislative recommendations of the Respect@Work Report,

  (iv) Australian women are looking at the Prime Minister's record and assuming this bill is just another political fix,

  (v) the Sex Discrimination Commissioner herself has described the Federal Government's weak response to her report as a "missed opportunity", and

  (vi) if the Government refuses to amend the shortcomings of this bill, an Albanese Labor Government will work with the Workplace Sexual Harassment Council, employers, workers, unions and legal experts to finalise and implement stronger laws as a matter of priority; and

  (b) calls on the Government to support amendments to this bill to ensure it fully implements all 55 recommendations of the Respect@Work Report".

I will have more to say about Labor's other amendments in the committee stage, but I want to outline at this stage in the debate the key issues we are seeking to remedy.

At the heart of the new approach Kate Jenkins called for is recommendation 17, which calls for a positive duty on employers to take reasonable steps to prevent sexual harassment in the workplace—not to fix it up later but to prevent it happening in the first place. This recommendation is designed to shift from the current reactive model that requires complaints from individuals—brought on an ad hoc basis by those with the courage and means to do so—to a proactive model that would require employers to take the initiative, to take responsibility, to create workplaces that are free from sexual harassment.

Despite claiming that it has taken action to implement the Respect@Work report, the government only notes this recommendation that is at the heart of the approach. And this bill does nothing to seek to implement it. Recommendation 18 of the Respect@Work report calls for the Sex Discrimination Commissioner to be given the function of assessing compliance with the new positive duty and for enforcement, and these powers are important to make the new positive duty real and enforceable.

Unfortunately, there are many other recommendations that remain unimplemented in this bill—for example, recommendation 19, which was to give the commission a broad function to inquire into systemic unlawful discrimination, including systemic sexual harassment; recommendation 25, which calls for the introduction of a cost protection provision in the AHRC Act, mirroring the cost protection regime that is already in place in section 570 of the Fair Work Act; recommendation 23, to amend the AHRC Act to allow unions and other representative groups to bring representative claims to court, consistent with the existing provisions in that act that allow unions and other representative groups to bring a representative complaint to the commission; and recommendation 28, that the Fair Work system be reviewed to ensure and clarify that sexual harassment—using the definition in the Sex Discrimination Act—is expressly prohibited. The government's response to recommendation 28 was only to agree in principle, and it's not actioned in this bill.

Unfortunately, the reality is that there is only so much that can be done to fix a bill once it has been introduced. Labor will be moving amendments to introduce a positive duty on employers to take reasonable steps to prevent sexual harassment from happening in the first place. We will seek to change the Fair Work Act to explicitly prohibit sexual harassment. We will seek to make substantive equality between women and men one of the objects of the Sex Discrimination Act. We will allow unions and other organisations to bring legal action against perpetrators on behalf of complainants, and we will seek to establish cost protections for complainants so they aren't discouraged from taking legal action against perpetrators due to the possibility of having to pay massive court ordered legal costs. I look forward to debating this during the committee stage. I look forward to hearing from the government why these matters are not considered a matter of urgency for them—why these matters haven't been included in this bill.

The Respect@Work inquiry was an important and landmark piece of work. It confirmed what Australian women already knew: the steady drumbeat of sexual harassment and assault cases reported in the media is simply the tip of the iceberg. The truth is that going public has been no guarantee of justice for women who have experienced completely unacceptable behaviour at work. It is also an option that is not available to the overwhelming majority of Australian women. Your boss or your workplace should not have to be high profile for you to receive justice and support. All women deserve a safe workplace.

This bill reveals that the Prime Minister didn't really mean it when he said that the government would implement all 55 recommendations of the Respect@Work report. That was a hollow commitment. Labor will do what we can in this debate to remedy the gaps, but an Albanese Labor government will work with the Workplace Sexual Harassment Council, employers, workers, unions and legal experts to finalise and implement stronger laws as a matter of priority.


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