Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Hansard source

My anger at the government in relation to what's been dished up in this legislation is palpable. Minister Cash has just told this chamber that the bill represents what they could pull together quickly and easily, even though the report was handed down by Commissioner Jenkins at the beginning of last year and the government had an early copy of it—over a year without responding.

I feel like I'm truly between a rock and a hard place today in contributing to this debate, because I want to interrogate in this place all of the outstanding issues and recommendations in Commissioner Jenkins's report. However, we know we have a timetable in this place that we need to meet. We have other issues in other legislation before the parliament this week that we also need to complete in a timely way because it affects women's lives. It's at the convenience of the government, in terms of which legislation they choose to put up first, as to whether we could, for example, fix paid parental leave, which we again need to fix in this place later this week. That's because the government botched the legislation by not leaving themselves the flexibility to fix it. Because of the coronavirus pandemic, they didn't leave themselves the flexibility to fix it even though we in this place told them they should. I know there are other important issues that affect women's lives that we need to get to and debate, which means I feel terribly truncated in all of the very substantive issues that we should be able to interrogate in a detailed way during this committee discussion. It is entirely on the head of this government, due to its incompetence not only in managing paid parental leave but also in how it has handled this set of issues from the outset, when the former Attorney-General, Christian Porter, sat on this report so that Minister Cash was left with what could be implemented quickly and easily. There was no need for the government to treat this as an exercise in dishing up to the Senate what could be done quickly and easily. Frankly, there's an opportunity to accept amendments that could fix the bill now, in line with Commissioner Jenkins's recommendations.

The bill in its current form does not come even close to the comprehensive package that Commissioner Jenkins put forward. There's no positive duty in the Sex Discrimination Act. I'll frame my first question to Senator Cash in relation to that. The government said, over and over again, that work health and safety was the positive duty. Commissioner Jenkins said the onus in the Work Health And Safety Act was not an effectively framed positive duty. The government then said, 'Well, it's covered in psychosocial hazards, and we all know they need to be reformed.' Then Commissioner Jenkins said: 'Well, that's not good enough. It's not like other hazards in the workplace, where you've got, for example, a positive duty to ensure that someone mops up a wet floor.' In the workplace, wet floors will be created, and you need to mop them up, but, in the case of sexual harassment, it is not something that should be happening in Australia's workplaces. It is indecent behaviour. Yet, Minister Cash, in these amendments to the Fair Work Act, you do not expressly prohibit sexual harassment.

I don't see why it should be framed as a positive duty when it is not something that should be occurring in Australian workplaces. Positive duties are about the activities that you undertake in the course of business. The way the Work Health and Safety Act frames its positive duties is about getting the actual job done. It's about how you go about your main business safely. But sexual harassment is not something that should be occurring in Australian workplaces as a matter of course. If you can't distinguish between how duties within the Work Health and Safety Act should operate and how duties within the Sex Discrimination Act should operate, then heaven help us with you as the Attorney-General, Minister Cash.

As raised by Commissioner Jenkins and many others, women in Australia have a terrible time bringing these cases to court. Yet, in this legislation, you do not allow representative groups to bring representative claims to court. You do not insert a cost-protection provision, consistent with section 570 of the Fair Work Act, and you do not provide a broadened 'stop sexual harassment' order to cover sex based harassment extending to any circumstances connected to work. In Commissioner Jenkins's report, the reasons these things need to be done were well articulated, and I don't believe you've got any excuse for continuing to sit on them as things that can't be done quickly and easily. The legislation before us does not prevent the creation of hostile work environments. Frankly, I find that incredible, when you look at what the Work Health and Safety Act, the Fair Work Act and our Sex Discrimination Act should be there to provide.

In relation to the positive duty, even the Minerals Council agreed. Tania Constable of the MCA said that, given the significance of the issue and the failure of existing laws to adequately address the problem, they would support there being a positive duty in the Sex Discrimination Act. So, Minister, I've got a technical question now to ask you. There are workplaces in Australia that are not covered by work health and safety laws, so even your minimalistic argument that they are covered by the Work Health and Safety Act and the model laws is completely void. That includes the workplaces where we have had sexual assault and sexual harassment in mining camps in Western Australia. So please explain to me how you are going to protect women—all Australians, but especially women—from sexual harassment in mining camps in Western Australia, in Queensland and right around the country when they're not currently covered by the Work Health and Safety Act?