Paul Scarr (Queensland, Liberal Party) Share this | Hansard source

At the outset, can I just commend Senator Smith for sharing her personal experiences in relation to this difficult topic. I think that shows great heart and the senator should be commended for it. Before I make some comments on the bill, I just want to reinforce two points which Senator Waters made. The first is in relation to cost. This is a very complicated area, and I congratulate the government for reflecting further on the matter. Because it could well be that, as well intentioned that the cost provisions as originally proposed in this bill were, they could have led to a worse situation insofar as there was uncertainty for legal professionals who might extend their services on a no-win, no-fee basis. They were concerned that there was a lack of certainty as to whether or not costs would flow from the event. I think these are really, really important matters which need to be carefully reflected upon. The other point that needs to be reflected upon is that this bill covers all workplaces, so it covers all businesses, all employers, from the multinationals with huge human resource departments and in-house legal staff all the way to the sole trader. That needs to be reflected upon in relation to costs.

The second point Senator Waters made, which I would like to commend, was in relation to the resourcing of the Australian Human Rights Commission. This is a big task that this parliament is putting on the Australian Human Rights Commission, to take on the enforcement and compliance role with respect to whether or not employers all over the country are discharging their role with respect to the positive duty. I know, from my experience of working in the Legal and Constitutional Affairs Committee and putting questions to Ms Jenkins and also the President of the Australian Human Rights Commission, that the Human Rights Commissioner has an appreciation of the magnitude of that task. But they will need to have appropriate resourcing in order to discharge those important obligations.

I do serve on the legal and constitutional affairs committee, and I did make some additional comments in relation to the bill. I'd like to touch upon three of those points in relation to these comments. I fully, 100 per cent, support the imposition of the positive duty on employers. There is absolutely no question about that, and I agree with Ms Jenkins when she explained:

… this will be a powerful tool in promoting broad systemic and cultural change around sex discrimination and sexual and sex based harassment in the workplace.

I did raise concerns with respect to the technical wording of the positive duty, and the main reason for that is that there is a disconnect between two parts of the clause. In one part of the clause there is an imposition of a duty upon employers to take 'reasonable and proportionate measures to eliminate', and that is a fair articulation. There's some consideration given to whether or not you're dealing with a small business or a large business and the capacity of the business to put in place measures, so I think the phrase 'reasonable and proportionate' is appropriate. But then the clause says, 'to eliminate as far as possible sex discrimination, sexual harassment, victimisation and other relevant unlawful behaviour'.

On one hand we are saying 'reasonable and proportionate measures' and on the other hand we're saying 'eliminate as far as possible' so there is somewhat of a disconnect between those two notions. I note it appears from the explanatory statement that that is not the intention of the bill. The intention appears to be to replicate the principles in terms of vicarious liability. I note under section 17 of the Work Health and Safety Act and indeed under amendments proposed to the fair work amendment bill 'reasonableness of steps taken' is the benchmark, so I really do query why we've introduced the phrase 'as far as possible'. There does appear to be a disconnect in relation to the drafting, and it would be good if that could be resolved.

The second point I wanted to make was to reaffirm the importance of the Australian Human Rights Commission in providing guidance to all the different employers who are going to have to discharge this positive duty. In many cases, these are very complicated workplaces, and this duty extends to protecting their staff from acts of sexual harassment perpetrated by customers, clients, all the people their staff engage with, so one can well imagine that the challenges faced by, for example, someone who is managing a hotel, a pub, a nightclub are going to be somewhat different from someone who is managing, say, a news agency. The Housing Industry Association raised particular concerns with respect to construction sites, where you've got different employers and subcontractors coming on to a site along with all sorts of people who are employees of all sorts of organisations coming together on a workplace. It's very, very important, I think, that the Australian Human Rights Commission articulates some quite clear bespoke guidelines for employers in different situations so that employers know clearly what they need to do in order to discharge their obligations. Again, from the questions I asked of the Australian Human Rights Commission, they are cognisant of the need to do that, and I look forward to seeing how they discharge that obligation.

The last point I'd like to make is in relation to an additional comment I made saying that I could see some merit in the Fair Work Ombudsman having a role in relation to enforcement. The main reason I could see the benefit of that was the Fair Work Ombudsman currently has nearly a thousand employees all over Australia, so they can get access to worksites very easily. They're on worksites for other purposes, so whilst they're on a worksite for purpose A, they could potentially be looking at whether or not an employer is discharging their positive duty with respect to taking reasonable steps to protect staff from sexual harassment. I could see some merit in the Fair Work Ombudsman discharging that enforcement role, given the footprint they have at the moment across Australia in terms of infrastructure and staff. I do have confidence that the Australian Human Rights Commission understand that they need to mobilise additional resources in order to discharge their role in enforcement. With those comments, I commend the bill to the Senate.