Senate debates

Wednesday, 1 September 2021


Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021; In Committee

6:17 pm

Photo of Larissa WatersLarissa Waters (Queensland, Australian Greens) Share this | Hansard source

[by video link] I move Greens amendment (1) on sheet 1434:

(1) Schedule 1, item 60, page 14 (line 19), omit "seriously".

While we welcome the new offence of sex based harassment, the bill sets the threshold for establishing sex based harassment as unwelcome conduct that is 'seriously demeaning'. That's a very high threshold. Many submitters, including the commission themselves, said that that was an inappropriately high bar that would prevent women from coming forward. The explanatory memorandum provides that the threshold avoids capturing mild forms of inappropriate conduct that are not sufficiently serious in nature. The Northern Territory government, throughout the inquiry process, shared their concern that victims might be deterred from making complaints, and those concerns were shared by many others. The Northern Territory government said:

There has been some discussion in the NT about the burden of proof. and the onus on an employee to prove an act is 'sufficiently serious' to warrant action under the proposed legislation. There is some concern that that this may cause additional distress to employees who are already required to establish the facts of the harassment or discrimination.

The test for sex based harassment would still require conduct to be unwelcome, demeaning and something that a reasonable person would have anticipated would cause offence or humiliation. In determining whether conduct amounts to sex based harassment, the commission is required to have regard to the seriousness of the conduct, amongst other things, already. Those provisions already imply a degree of seriousness is needed to establish the offence. So explicitly requiring something to be 'seriously demeaning' will put people off making complaints if they think their stories won't be considered sufficiently serious. It sends a message that so-called 'minor' sex based harassment should be tolerated. There is no justification for subjecting victims of sex based harassment to a higher bar than victims-survivors of other offences.

Once again, the government are trying to change the goalposts. They are trying to appear like they're doing something, namely establishing a new offence of sex based harassment, but they're making it so damn hard for anyone to actually be able to make out that offence that it's an offence in writing only. It's a pyrrhic victory to have this on our law books when the threshold for meeting it has been designed to be so high that most people won't bother trying to make that claim—a fact I'm sure the government knows full well, and I'm sure they've drafted it deliberately.

This amendment seeks to delete the word 'seriously' so that the test would simply be one of 'demeaning' rather than 'seriously demeaning'. As I've said, it already has those in-built other features that need to be met. There is no need to have that additional bar of 'serious' when it is already imputed by the other limbs in those sections and the surrounds. I commend this amendment on sheet 1434 to the chamber.


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