Tuesday, 31 August 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021; Second Reading
[by video link] I continue my earlier contribution on the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. I was saying that I want to address the concerns that senators opposite, particularly Senator Waters, have raised in relation to the amendments in this bill because I am concerned that the government's position has been substantially misrepresented.
In recommendation 17 Commissioner Jenkins recommended that there be 'a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible'. What I'd like to make clear is that the government is considering this recommendation, but there is quite a bit of complexity with it legally because of duties which already exist under work health and safety laws as well as the Sex Discrimination Act, including to ensure that additional complexity is not created for those seeking to use the protections.
This includes an assessment against the model work health and safety laws, which already impose a positive duty on employers to protect workers from health and safety risks, including psychosocial risks such as sexual harassment, so far as is reasonably practicable. Work health and safety laws also provide for compliance, enforcement and inquiry functions to be exercised by work health and safety regulators. Employers that fail to meet obligations under work health and safety laws can be subject to prosecution and severe penalties.
The government is also considering the existing vicarious liability provisions in the Sex Discrimination Act, which ensure that if a worker engages in unlawful conduct such as sex discrimination or harassment then their employer can also be held liable for sexual harassment or sex discrimination if the employer did not take reasonable steps to prevent the conduct from occurring. This existing mechanism means that employers must take reasonable and preventive steps, such as implementing policies and providing training, to minimise their potential liability should an incident occur. So it is quite wrong for Labor and the Greens to characterise the government as not supporting a positive duty to eliminate sex discrimination, sexual harassment and victimisation.
I want to return to a very significant provision of funding that we have provided in relation to implementation of the Respect@Work response. As I mentioned in my earlier contribution, it's some $64.3 million. This builds on an initial $2.1 million over three years that was provided in October 2020 to implement key recommendations of the report. Some of the further detail in relation to this very significant investment is a breakdown of that funding which has been provided in our budget.
There is $7.3 million over four years to support the Respect@Work Council in implementing a range of practical measures to address workplace sexual harassment and implementing amendments to strengthen the legislative and regulatory framework. There's $0.2 million in interim funding in 2021-22 to continue the targeted delivery of support for women on work-related matters, including workplace sexual harassment. There's $1.7 million over two years to Comcare to deliver national forums for Commonwealth, state and territory work health and safety inspectors on sexual harassment, and training for employers and managers covered by Commonwealth work health and safety laws to better understand and meet their obligations. There's $6 million over four years to the Workplace Gender Equality Agency and the Australian Public Service Commission to strengthen public sector reporting on sexual harassment prevalence, prevention and response. There is $5.3 million to the Department of Social Services to be provided to Our Watch, to Australia's National Research Organisation for Women's Safety and to 1800RESPECT to build the evidence base and develop primary prevention initiatives to respond to sexual harassment. There's also $43.8 million over four years for additional legal assistance funding for specialist lawyers with workplace and discrimination law expertise. That is obviously a very significant additional investment as well.
I believe, and I think it is quite evident, that this bill evidences the government's commitment to seeing that women are safe in the workplace and to ensuring that women prosper in the workplace without fear of any form of sexual discrimination or harassment. The Sex Discrimination Commissioner's report was extremely well named—Respect@Work. That's what we all want. That's what we all deserve. That is the government's focus. This bill delivers on the government's commitment to give women a voice—a voice of truth, a voice of justice. I commend this bill to the Senate.
I'd like to make a contribution to this very important debate on the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. This bill represents the Morrison government's overdue response to Sex Discrimination Commissioner Kate Jenkins's Respect@Work: national inquiry into sexual harassment in Australian workplaces report. The final report, Respect@Work, was handed down to the government in January 2020 and made 55 recommendations to address the prevalence of sexual harassment in workplaces. It took this government more than a year and a half and a historic women's march to finally enact some form of a response.
Kate Jenkins reported in her review that, despite implementing world-leading reforms in 1984 with the Sex Discrimination Act, Australia now lags other countries in preventing and responding to sexual harassment. Workplace harassment not only causes untold psychological damage, but Deloitte Access Economics calculated that it also cost the Australian economy $3.8 billion in 2018 alone. The report made it very clear that sexual harassment is rife within Australian workplaces, that it is extremely damaging and that existing laws are not working to protect workers. It stated that reform is urgently needed, yet it took the Morrison government 18 months to respond, and this bill will not deliver the level of reform required. This did not stop Liberals from making a big, flashy statement. That's what they do. They made an announcement explaining that they had agreed to all 55 recommendations of the Respect@Work report, but, like with most things with this government, you must look at the fine detail. You have to look at the fine print. This bill, which has taken more than a year and a half to introduce, implements only six of the 55 recommendations in a watered-down reform. In its current form, this bill will not deliver the substantive change needed to address the systematic issues of sexual harassment in Australian workplaces. It shows that the Morrison government is not genuine in improving outcomes for women and in making workplaces safer for everyone.
The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 amends the Australian Human Rights Commission Act 1986, the Sex Discrimination Act 1984 and the Fair Work Act 2009 to improve the mechanisms for preventing and tackling workplace sexual harassment. We will not vote against this legislation, as we will not stand in the way of these changes that may help make workplaces safer. But we believe that additional amendments are needed. This bill does not adopt recommendation 17 of the Respect@Work report calling for the amendment of the Sex Discrimination Act to include a positive duty on employers to take responsible measures to eliminate sex discrimination, sexual harassment and victimisation in the workplace.
In a submission to the inquiry into this bill, the Shop, Distributive and Allied Employees Association, the SDA, reported that 39 per cent of SDA members experienced workplace sexual harassment in the last five years, which is significantly higher than the general workforce at 33 per cent. Alarmingly, this number is higher for female members under the age of 18, where over 50 per cent have experienced sexual harassment in the last five years. It sets an unacceptable precedent when you consider that retail and fast food are the most common industries in which young people get their first jobs and start their working lives. Given the high level of occurrence, it is essential that the Morrison government impose a positive duty on employers to take responsibility for eradicating workplace harassment.
Frontline workers in retail have been undercover heroes of this pandemic, keeping Australia going through lockdowns and ensuring we have access to essential goods and services. They are exhausted and unappreciated, in having deal with soaring volumes of sales with little time to prepare. They are putting their lives at risk every day. They deserve better from the Morrison government, from protection from workplace harassment to being prioritised—and I mean prioritised—in the vaccine rollout. They continue to be let down on both of these fronts.
It was only in the midst of the pandemic, as a result of the pressure applied on the government at the start of this year over their handling of the Brittany Higgins case, that women were miraculously moved up on the agenda. But, as with most of the government's responses, it's superficial in nature. Australian women need action from the government, not just words. They need real leadership, not someone who goes into hiding when things get tough. In the Respect@Work report, Commissioner Jenkins made it clear that the prevention of sexual and sex based harassment in the workplace would require a long-term, sustained effort, leadership and political will. With this watered-down bill before us, Australian women will not get that from the Morrison government. They will not get it from this cabinet.
It was only after Senator Cash's appointment as Attorney-General that the Morrison government even bothered to respond to the report. The previous minister took no action. I wonder why? The government argued that it was busy managing COVID-19 and Australia's recovery, but I call that into question: what recovery? As we have said time and time again in this place, the Prime Minister had two crucial jobs during this pandemic. One was to respond by rolling out the vaccines as quickly and as effectively as possible, which he hasn't been able to do because he didn't bother buying enough vaccines to vaccinate the entire population. The second was to build purpose-built quarantine facilities. He bailed on both of those.
Senator Birmingham has already advised that New South Wales is likely to be locked off to the rest of Australia for the rest of the year. The Morrison government should have foreseen the havoc that the delta variant would cause in our country, but they failed to heed the warnings and instead did nothing. There was plenty of evidence from what was happening overseas, but this Prime Minister, along with the Minister for Health and Aged Care, failed to respond in an appropriate manner. Now our death toll has increased. Frontline workers continue to put their health at risk. Families will be separated for months. Events will be cancelled. Our economy will probably slip into recession.
Since June there have been up to 15 million Australians in lockdown—that is, 60 per cent of our population. Not only is this hurting our economy; lockdowns are associated with an increase in domestic violence and, in particular, violence against women. As was experienced last year, the people who have lost their jobs first through the lockdowns are casuals, and women are overrepresented among the people who have lost their jobs.
The government are all spin. They have no intention of bringing meaningful reform to workplaces. They are full of excuses when it comes to the vaccine rollout. There is a complete refusal to commit to a national quarantine system. How can we expect anything different when it comes to protecting Australians from harassment in their workplaces? Time and time again this government has failed to enact meaningful reform, and this bill is just a tactical ruse for a government weighed down by allegations.
I call on the Morrison government—to show that they do, in fact, want to bring meaningful change to the systemic issues in workplaces, with harassment being of such prevalence—to enact the full suite of recommendations of the Respect@Work report. This is the only way to ensure that there are more robust measures in place to prevent, address and redress sexual harassment in the workplace.
A Labor government would implement and adopt all of the recommendations of the Respect@Work report—that's all 55 recommendations, not six, which is all this government is attempting, with this feeble piece of legislation, to enact: six, out of 55.
Despite not being specifically recommended by the report, we have also moved on an amendment to implement 10 days of paid domestic family violence leave. It is not only Labor but also stakeholders who believe that this is essential in reforming women's safety at work. We all know that economic independence is instrumental in helping someone escape from family violence, and this amendment would provide a safety net. It would give victims the time to deal with any matters that they need to deal with, in order for them to take steps to leave the situation of abuse which they have found themselves in. You should not have to resign or be terminated because of this.
In my lifetime, women of my generation would have experienced sexual harassment in the workplace on quite a regular basis. There's not one of my cohort of friends who has not experienced or witnessed sexual harassment in the workplace or who has not had to prove her worth for promotion, based on her gender. I remember, in one of my positions in a short-term finance company, when I lived in Melbourne, when men joined the company they were able to join the superannuation fund, but women like me might have been invited to join that superannuation fund after they had worked for the company for 10 years—that was the lived experience. Well, thank goodness for Paul Keating and what the Labor government did in introducing superannuation for every worker in this country, because superannuation was one of the economic circumstances in which your gender was used against you in workplaces. Regrettably, it is only a Labor government that will meaningfully improve outcomes for women. Only a Labor government can be trusted to bring the reforms to Australian workplaces so that we can again be a world leader when it comes to prevention of discrimination.
As I said earlier, in this country we led the way, but—as we've talked about so many times in this chamber—we've now had eight years of Liberal governments and we seem to be falling further and further behind in so many areas. We certainly haven't taken the opportunity to learn, in relation to this pandemic, about what happened through the US, Europe and, particularly, England, and to make sure that people weren't having to wait for a vaccine. We still have a situation where too many people can't even get an appointment yet for the vaccine. We've spoken on a number of occasions today about how many aged-care workers are still waiting to get their first jab. We still don't know, of the people who are delivering home-care-package care into older, vulnerable Australians' homes, how many still have not had a vaccine.
But we do know that the majority of those in this country being penalised and discriminated against based on their gender or age are women, time and time again. Sexual harassment can go for both genders. That is deplorable as well, and no-one here would say otherwise. But it's time that we spoke up for women and made the changes necessary to keep workplaces safe for all.
[by video link] I rise to speak on the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021—a bill this government has had to be dragged to finally bring to the table, though it still leaves much to be desired. Today we are marking Equal Pay Day and shamefully, staring at a gender pay gap of 14.2 per cent. It is pertinent to be debating this bill on sex discrimination and fair work today because the same structures of power, privilege and patriarchy that prevent us from reaching pay equality are the ones that allow sexism, sexual harassment and bullying to continue in workplaces and in society at large. It is way beyond time that we take strong action to dismantle these systems and hold those who perpetuate these injustices to account.
Women around the country have spoken their truth about the harassment, bullying and abuse they have been subjected to and have made it clear in no uncertain terms that they will not rest until this stops. The reality is that no workplace is safe from sexual harassment. You would be hard-pressed to find a woman who has not endured an unwanted sexual advance, be it verbal or physical, subtle or blatant. Young or old, white, brown or black, executive, teacher, student, political staffer, journalist or waitress, famous or completely anonymous, as women, no matter who we are, we are targets.
It is important, though, to recognise and highlight the ways in which different women face discrimination. Women at the intersections of racism and sexism face multiple and layered added challenges. The advocacy group Women of Colour Australia, in partnership with Murdoch University, recently released a survey that revealed that almost 60 per cent of women who responded to their survey had experienced discrimination in the workplace. What's more, most respondents, about 57 per cent, felt they had faced challenges in the workplace related to their identity as a woman of colour. It is this layered oppression that is absent from our mainstream discourse on the issues faced by women.
The Young Women's Advisory Groups of Equality Rights Alliance and Harmony Alliance—Migrant & Refugee Women for Change pointed out in their submission to the Respect@Work inquiry:
Temporary migrant workers face significant barriers in pursuing complaints about exploitative treatment at work which emanate from strong power differentials between an employer and visa holder.
It is clear that women on the margins experience their workplaces and society in general very differently from others. While we talk about gender inequality and discrimination at work, we must work to address the distinct challenges faced by women of colour, migrant women, First Nations women and other marginalised women's groups.
At the end of the day, every workplace and every person within that workplace must take up the responsibility of preventing the scourge sexual harassment. This workplace right here, the Parliament of Australia, my workplace, must show leadership and ownership of becoming a safe, equal, inclusive, supportive and just workplace, so we can set the example for other workplaces to follow. This requires transparency and accountability as well. But we are so far from it. The culture of this place leaves so much to be desired.
I really hope that every single member of this place, and especially Mr Morrison's cabinet, has read the comprehensive Respect@Work report by Sex Discrimination Commissioner Kate Jenkins. This report, which makes for sobering reading, found that the rate of change in Australia on sexual harassment and discrimination at work has been disappointingly low. Australia lags behind other countries in preventing and responding to sexual harassment. It found our current laws not just lagging but also confusing and insufficient. We can and we must do better.
The bill in front of us implements some recommendations from the Respect@Work inquiry, but not all. The Morrison government received Commissioner Jenkins' report on sexual harassment in the workplace in Australia in March 2020. So it is thoroughly disappointing to see that nearly 18 months later its legislative response misses the opportunity to implement the recommendations in full.
Indeed, it ignores one of the core recommendations, to put the onus on employers to maintain a safe workplace rather than on vulnerable workers and victims to take action against harassers. The Respect@Work report set out a comprehensive, practical and targeted suite of reforms that were developed after many interviews and consultations with stakeholders. The report presented a holistic plan to address discrimination and structural inequalities to relieve the burden on victims and to make workplaces safer.
The report recommends enacting a positive duty on employers to prevent sexual harassment, sex discrimination and victimisation, with accompanying enforcement powers. This recommendation has been dismissed by the government. The Respect@Work inquiry found the current system places a heavy burden on individuals to make a formal complaint, yet the government continues to doggedly and misleadingly claim that the positive duty in the Sexual Discrimination Act is not necessary as work health and safety laws include a duty to ensure workplaces are safe. Well, isn't it clear to us that the positive duty in work health and safety laws has completely failed to protect women from sexual harassment and discrimination at work? If it were protecting people, we wouldn't see nearly 40 per cent of women experiencing sexual harassment at work. The government's dismissal reinforces the victim-must-complain approach, which unfairly puts the onus on victims and is clearly not working, given the prevalence of sexual harassment in our workplaces.
We know that eliminating workplace sexual harassment will take a big cultural shift away from sexism and patriarchy. The positive duty on the employer to create and maintain a safe workforce would be a step towards achieving this cultural shift and would work as a signal to workers that their employers are invested in creating a safer workplace for all. The report very clearly endorsed that the legal and regulatory framework should encourage and support employers to take proactive and preventative measures to address sexual harassment rather than rely on individual complaints.
The vast majority of submissions to the Senate inquiry on the bill emphasised the positive duty recommendation as absolutely critical to achieving the objectives of the Respect@Work report. The government's refusal to enact a positive duty requirement on employers is in direct contrast to evidence provided by legal experts, unions and practitioners. Among them were the Law Council of Australia, the Australian Discrimination Law Experts Group, the Women's Legal Centre ACT, the Australian Council of Trade Unions and the Community and Public Sector Union, to name just a few. The ACTU said in their submission:
We strongly support this key recommendation. The Bill should be amended as recommended by Respect@Work to include a new positive duty on employers. Unlawful discrimination provisions only arise once a complaint has been made, which places too much burden on individual complainants. A new positive duty would complement (not duplicate) existing duties under WHS laws.
The Human Rights Commission reiterated its recommendation that the bill include a positive duty on all employers, and said:
This would be a powerful tool to promote broad systemic and cultural change that sits outside of the current adversarial framework of discrimination law.
Ms Tania Constable, the chief executive officer of the Minerals Council of Australia, told the Senate inquiry:
... the positive duty that already exists works for traditional physical health and safety risks; it is clearly not working for sexual harassment. Therefore, given the significant issue, we support there being a positive duty in the Sex Discrimination Act.
I hope the Senate can support the Greens' amendment to include the recommendation of the positive duty on employers.
I understand the bill in front of us extends the application of the act to state employees, which is an issue that is particularly close to my heart. In August 2016, during my time in New South Wales state parliament, a woman rang my office and reported that she had been fired after telling her boss she was pregnant. When she lodged a complaint she was told it was perfectly legal to dismiss her. I could not believe this was possible in the 21st century in New South Wales, but it was. Two subsections in the New South Wales Anti-Discrimination Act 1977 allowed employers to dismiss or not hire an employee who knew they were pregnant at the time of the job interview or at the time of hiring. So I got to work. We gave notice of a bill to make this change, ran a campaign and lobbied the government.
Six months later, the New South Wales government made the change to remove this exemption. Although we were able to remove pregnancy discrimination from the New South Wales Anti-Discrimination Act, there still exists a double standard for state employees, who are exempted from Commonwealth anti-discrimination laws. I'm glad to see this bill will finally remove this double standard. This is a step forward.
While the bill amends the objectives of the Sex Discrimination Act 1984 to include 'to achieve, so far as practicable, equality of opportunity between men and women', I have to say that the words 'so far as practicable' really irk me. This is a step down from the recommendation of the inquiry, which suggested that the objective be 'to achieve substantive equality between men and women'. 'So far as practicable' is not going to take us very far at all, especially not under a Liberal-National government which has already dragged its heels on this important reform. This narrow-minded interpretation of the report falls short of community expectations and well short of the legal changes that we need to address the widespread issue of workplace harassment.
Women have fought and won so many battles along the way to gender equity, but there are many more to win. Gaining the right to run for parliament has not yet led to equal representation. Women have joined the workforce in droves. We work hard and we pursue every career under the sun. Still, we are undervalued, underpaid and discriminated against. Gendered violence kills one woman a week. The feminisation of poverty means we earn less and our jobs are more insecure and casualised. It's undeniable that the impacts of COVID-19 are exacerbated for women in every sphere of economy and society. Australia's ranking in the global gender gap index has been steadily dropping for more than a decade. These are huge disparities that become even worse for First Nations women, migrant women, refugee women, women of colour, trans women and disabled women, as they fall through the cracks in the reporting of these statistics and in the enactment of change, however incremental.
Today, as we talk about Respect@Work, let's acknowledge that the goal of gender parity will not be achieved unless we dismantle the structures of power, privilege and patriarchy. The economic, social and political oppression of women continues because patriarchy is allowed to flourish. Feminism is the antidote to patriarchy. I am proud to be feminist AF. Let's make sure that our feminism is powerful, that it is collective and that it is for all and with all women. The message that women across Australia have given us is clear. They demand an end to sexism, harassment, discrimination, rape culture and the mistreatment of women, in parliament, in workplaces and in the community. We must hear this message and act on it. It's our job.
As we saw on the front page of the Australian today, Australians are actually more concerned about their mental health and job security than they are about COVID. Whilst this has ramifications for how we learn to live with the virus, open up, end lockdowns and remove border restrictions, we're also focused as a government on ensuring that everyone feels safe and secure at work. The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 will quickly and clearly implement a series of legislative reforms that the government committed to in Roadmap for respect. These improvements to the anti-discrimination industrial relations framework will see changes around sexual harassment in the workplace. What was once something that happened far too frequently and was often ignored or swept under the carpet is no longer acceptable.
I never thought I'd be mentioning Dolly Parton in this place, but, thanks to lockdowns, my consumption of documentaries has significantly increased, so over the weekend I watched the one on Dolly Parton. Whilst it looked at her whole career, a large part of it was devoted to perhaps her most well-known movie, 9 to 5. I remember seeing that movie when I was pretty young, and, whilst the movie was ultimately about women working together and taking back their power, the behaviour of the male boss was what we would today consider wildly inappropriate, to put it mildly.
But, when that movie was made, that sort of behaviour was seen as so commonplace that no-one really raised an eyebrow about it. In fact, the slurs were directed at the woman who was being chased around the desk and inappropriately propositioned.
Thankfully, that sort of behaviour is no longer tolerated, certainly not at that level. But we do know there is still behaviour that occurs that's not acceptable, behaviour that makes people feel unsafe in their workplaces, especially where there are significant power imbalances and people feel insecure in their job. The amendments to the Sex Discrimination Act will aim to ensure, so far as practicable, that there is equality of opportunity between men and women to clarify that sex based harassment is prohibited. It will also remove the current exemptions for state public servants, members of parliament, ministerial staff as well as judges. In fact, it will ensure the prohibitions against sexual harassment and sex based harassment cover all forms of workers. Everyone is now legislatively protected regardless of where they work. And for those who perpetrate the harassment, under the clarification that victimisation is unlawful, this can now form the basis of civil action against them.
But, while these are clear and concise improvements in this area, there is another part of the bill I wanted to particularly draw attention to—the granting of paid compassionate leave if an employee or their partner experiences a miscarriage. Miscarriage is still in some ways seen as a taboo topic, something we don't talk about or really acknowledge in the way that we should. Any parent will tell you that, from the moment they found out they were expecting, they were parents. It was their baby. But we know that up to one in four pregnancies end in miscarriage. That's around 300 women every single day experiencing this. We don't know about many of them because many people still don't tell anyone that they are expecting until they hit that 12-week mark. And, when it does occur, people often fail to recognise the real grief that is being felt. They make comments like, 'It's lucky it happened early,' or, 'Maybe there was something wrong with it.' The parents' grief is diminished or dismissed in a way grief would never normally be treated.
This morning, I spoke to the CEO of Pink Elephants, Sam Payne. It's the only national miscarriage support service in Australia. They are incredibly welcoming of this leave-for-loss plan, as they refer to it. She welcomed the opening up of the conversation and the recognition that this is a tragic event for many, many couples and that this leave includes partners because, while we should always remember that the physical loss is experienced by the mother, partners also feel the grief around the loss of that child. For anyone requiring support, pinkelephants.org.au have the resources to help you and to remind you that you did nothing wrong and that it is natural to grieve. The women involved in this organisation have all experienced miscarriage themselves. They know that, while time heals, the pain never truly goes away. The fact is so many women keep going. They try again and, sometimes, again and again to have that child. This resilience is incredible. So thank you Pink Elephants for the work that you do and the work that you have done in this space, for ensuring miscarriage is something we acknowledge, and that we acknowledge appropriately, and support those experiencing this significant loss.
I am angry about the inadequacy of the legislation before us today in parliament, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. More than a year and a half has passed since the release of the Human Rights Commission's landmark Respect@Work report, written by Australia's Sex Discrimination Commissioner, Kate Jenkins. What the report found was that our workplaces and the laws that govern them are failing to provide workplaces that are free from sexual harassment and discrimination. There hundreds of stories from women and men about the sexual harassment that they have been subjected to in their workplaces.
It is utterly shameful that this government has stood idly by while people, especially women, continue to be victimised in their workplaces.
This government waited more than a year and a half before responding to the Respect@Work report. An advance copy of the report was given to the government as early as January last year, before it was released publicly in March last year, but the then Attorney-General, Mr Christian Porter, left it to gather dust on his desk. He did nothing—nothing—about this scourge of sexual harassment that was well documented in the commissioner's report. He did not once meet with the commissioner about the report or its recommendations. He ignored the report and disrespected the process. How could he have been handed a landmark report about how we, as a nation, could make our workplaces safer, especially for women, and then baldly ignore it, especially in the face of the trauma that had been revealed inside that report?
In March this year, when the Prime Minister asked Attorney-General Porter to step down amidst allegations of workplace sexual assault and harassment in the parliament itself and historic rape allegations against the minister, this government had still not responded to this report. It was only following Senator Cash's appointment as Attorney-General that the government then rushed to respond to it. So, in many ways, I am not surprised at the entirely limited legislation that we now have before us to address this scourge.
The response itself and the legislation before us have not been not deeply considered. In fact, we've seen senators opposite say: 'We haven't got to the issue of a positive duty yet. We're still considering that. We haven't rejected it.' You have had an extraordinary length of time in which to consider this. I have to say that perhaps it only started being considered because of the scandal around the government, not because of the sexual harassment which is being experienced in workplaces right around Australia and which has been experienced since this report was tabled. It has happened in my own home state of WA. In Western Australia's mining industries, there have been allegations of rape and sexual harassment—events that have taken place since this report was tabled and that could have and should have been prevented. So I don't think it's any wonder that this government is still making excuses about assessing a duty of care.
Plainly, this bill is worthwhile, but it is a face-saving device for a government that is weighed down by scandal and allegations against its own members. It has not done the due diligence to put a comprehensive package together before this place. Victims of sexual harassment and discrimination deserve so much better. The case for change and the path forward was very clearly put forward by Commissioner Jenkins, and this parliament has a responsibility to act on and implement her recommendations.
The government sat on this report for over a year without responding and without the responsible minister meeting even once with the commissioner. Now we have a bill before us that implements only six of the 17 legislative recommendations that Commissioner Jenkins made, and, of those six, some are only a partial implementation of those recommendations.
Implementing all the Respect@Work report recommendations is entirely consistent with my commitment, the Labor leader's commitment and the Labor Party's commitment to achieving substantive equality between men and women in our nation. By doing this, we're making the legal and structural changes that enable power inequalities to be addressed in the community and in our workplaces.
But the bill in this current form does not come even close to this objective. It doesn't implement recommendation 17, to insert a positive duty into the Sex Discrimination Act. It doesn't implement recommendation 28, to amend the Fair Work Act to expressly prohibit sexual harassment. It does not amend the Fair Work Act to provide all workers with access to 10 days paid family and domestic violence leave. It does not implement recommendation 23, to amend the Human Rights Commission Act to allow representative groups to bring representative claims to court. It does not implement recommendation 25, to amend the Human Rights Commission Act to insert a costs protection provision consistent with section 570 of the Fair Work Act. It does not provide broad and 'stop sexual harassment' orders to cover sex based harassment extending to any circumstances connected with work. And it does not amend the Sex Discrimination Act to achieve substantive equality between men and women as an objective for our nation. It does not implement recommendation 16b and 16c, to prevent the creation of hostile work environments. The bill says it has to be 'seriously demeaning'; you have to be subjected to seriously demeaning behaviour rather than just demeaning behaviour.
If you look at what is left out of this bill, then you can see that this bill provides an advancement but no real protection for women from sexual harassment in their workplace. Why? Because, in order to raise a complaint and take it to court, you could be subjected to costs. When you get to court, you could end up debating whether the harassment that you were subjected to was seriously demeaning or just demeaning. Will it be credible enough to stick to a charge? Can you imagine debating the extent to which you've been demeaned by someone's behaviour? It is little surprise to me that so many stakeholders in the course of the Senate inquiry agreed with Commissioner Jenkins, who herself said to the inquiry this bill is not good enough and does not live up to what this nation needs to protect people from sexual harassment in their workplaces. The government has failed to address fundamental recommendations for reform. The bill still leaves intact reactive and adversarial regulatory systems that are, by this legislation, largely unchanged, and because of this the law will continue to fail to protect people in their workplaces from sexual harassment and behaviour from colleagues or bosses—or even from customers—that demeans them.
The Human Rights Commission told the Senate inquiry that the introduction of a positive duty would be 'a powerful tool to promote broad systemic and cultural change that sits outside the current adversarial framework of discrimination law'. It's little wonder that so many submitters to the committee, and in the community, have hinged around every aspect of what Commissioner Jenkins recommended that is entirely absent from this bill. Those opposite have said we already have a duty of care in the Work Health and Safety Act. Well, Commissioner Jenkins said very explicitly in her submission on this legislation that the Work Health and Safety Act is not an adequate, substantive, proactive duty of care because it is not specific enough, and the Work Health and Safety Act is not perceived in those terms; it's not perceived in the terms of preventing discrimination and harassment.
It's tied up in the vagaries of psychosocial hazards, which this government has admitted still need to be looked at and further reformed. And yet Australian women who are subject to sexual harassment in their workplace will again be abandoned by this government, which is failing to make these changes.
Commissioner Jenkins said:
This would not impose an undue regulatory burden and would have a greater chance of reducing the cost of sexual harassment to business.
In the report she characterised the billions of dollars that this behaviour costs workplaces, the productivity effects and, undoubtedly, the incredible toll that it takes on those subject to this behaviour. Even employer groups like the Minerals Council agreed. When the Minerals Council CEO, Tania Constable, appeared before the Senate inquiry, she said:
… given the significant issue—
and the failure of existing laws to adequately address the problems—
we support there being a positive duty in the Sex Discrimination Act.
The Law Council supports it, Diversity Council Australia supports it, legal aid supports it and the Australian Discrimination Law Experts Group supports it. It seems entirely bizarre to me that this government has refused to include the introduction of the positive duty into this legislation. The right of workers to be free from sexual harassment is a human right, a workplace right and a safety right. I implore those opposite to amend the bill to support a positive duty in the Sex Discrimination Act.
I know others will speak to the importance of implementing other recommendations ignored by this government, but I want to speak to one other in this contribution: recommendation 23, which would address what the Australian Human Rights Commission identified as the 'chilling effect' of current regulatory regimes and the impact that has on victims-survivors taking action against perpetrators. The government rejected this recommendation without detailed reasoning, simply noting that there's an existing mechanism to enable representative proceedings in the Federal Court. I have to say: is the government living in the real world? The power dynamics that exist in Australian workplaces and that make workers extremely hesitant to even come forward and report sexual harassment, let alone go down the route of taking their employer to court, have been manifestly ignored by this government in the way that it has brought this bill forward and in all its public comments. This government is entirely out of touch with the experiences of victims. It has taken an enormous toll on them. They've left their jobs. They've lost income. In some cases, as I learned when I spoke to women during the course of the Senate inquiry, it has ruined their mental health and their financial future.
Today I call on the government to fully implement the Respect@Work report recommendations by amending the bill currently before the parliament. I condemn the government for its delay. Every day without action allows the scourge of sexual harassment in Australia's workplaces to continue. It is shameful that, in the legislation that is before us today, this government has failed to take real action to stop sexual harassment in Australia's workplaces.
[by video link] I too rise to speak on the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. This is the government's response to the landmark Respect@Work report on sexual harassment in Australian workplaces, so it is also their response to the one in three people, mostly women, who have experienced sexual harassment at work.
These are women who have experienced great harm, have lost jobs and income and are still living with the long-term effects of their experiences. They are women who deserve and expect urgent action from this government.
Instead, we have a response that has been described by experts as a missed opportunity and a failure, a half-hearted version of the substantial reforms that this crisis of sexual harassment deserves. It's a response that shows this government knows what needs to be done but is simply refusing to do it.
The Respect@Work report was groundbreaking, a world-first inquiry into workplace sexual harassment. It shone a giant spotlight onto the experiences of working women in this country, women who too often are made to endure damaging and traumatic harassment just on the basis of their gender. The personal stories in the Respect@Work report were a call for change—urgent change.
But, instead of answering that call, this government chose to ignore the report. The Prime Minister and the former Attorney-General Mr Porter left it on their desks, ignored for over a year. For over a year, they refused to take action. They even refused to meet with the Sex Discrimination Commissioner to discuss the report's recommendations. While they let this report gather dust, they spent their time defending their own reputations about the very behaviour that this report sought to uncover. They stood by as minister after minister and member after member was caught up in the various scandals and allegations that we know this government had to endure. They refused to take any serious action, to show any leadership and to make clear that sexual and sex based harassment is completely unacceptable in this country today. They refused to show leadership not just with words and spin but through real action and urgent change. It wasn't until tens of thousands of women took to the streets in the March4Justice protests that this government finally started to care. Finally, over a year after this urgent report was handed down, the new Attorney-General, Senator Cash, has responded. This is a government that is always dragged kicking and screaming to take action. Then, when they get there, they act with half-responses and half-measures.
Let me be clear: we absolutely welcome the opportunity to finally begin implementing the important and urgent recommendations of Commissioner Jenkins. But, as it stands, this bill is nowhere near enough. It is nowhere near strong enough to deliver the changes that the commissioner recommended. This bill fails to implement 14 of the 55 recommendations which would see women be safer at work. Labor's amendments will strengthen this bill in line with the recommendations of the report. Critically, our amendments will ensure that sexual and sex based harassment are properly addressed in workplaces. Labor have committed to implementing all 55 recommendations. That commitment goes further than just this bill. A Labor government will work with employers, workers, unions and legal experts to finalise and implement stronger laws as a matter of priority in government.
The Respect@Work report clearly says that Australia's existing laws are out of date. They are failing to protect workers, and reform is urgently needed—reform that this government has just not delivered. Labor's amendment to this bill seeks to introduce a positive duty on employers to take reasonable steps to prevent sexual harassment from happening in the first place. This amendment acts on recommendation 17 of the Respect@Work report, a recommendation which is supported by both unions and employer bodies and which the government have ignored. Labor's amendment will ensure that employers have a duty to create and maintain safe workplaces, because we know that the cases that are reported are just the tip of the iceberg. It's not enough for employers just to react to complaints that are made; they need to actually take active measures in the first place to stop the harassment from happening.
A recent inquiry into sexual harassment at mining sites in Western Australia revealed that BHP has taken disciplinary action and fired 48 workers in relation to inappropriate sexual behaviour in the past two years. But evidence from the Western Mine Workers Alliance showed that just four in 10 women FIFO workers felt encouraged to report that harassment in the first place, and half of them said workers are not supported through the reporting process. So we know that the incidences of sexual harassment that were acted on were just the tip of the iceberg and that there are many barriers to reporting sexual harassment. Insecure work is one. Fear of victimisation is another. Trauma and shame are others.
Taking action against sexual harassment should not be reliant on the courage of the victim. Taking action against sexual harassment should mean stopping it before it actually starts. Positive duties would require employers to take reasonable and proportionate steps to prevent this harassment. This is what would really mark a shift from the current reactive model that relies on workers having the courage and the means to make complaints. We need to shift that model to a proactive model that requires employers to take initiative to create workplaces that are free from harassment. Importantly, these duties will require employers to consider all aspects of the workplace when taking those reasonable steps to prevent harassment from staff, from management and from customers.
In 2016 the union for retail and fast-food workers, the SDA, conducted a survey with the Human Rights Commission on the prevalence of workplace sexual harassment amongst its members. The survey found that one in three incidents of workplace sexual harassment experienced by members were perpetrated by customers. A young woman under the age of 18 said in her response to the survey:
all the times I have been inappropriately touched or commented on, it has been by customers. I feel as if I can't tell them to stop because I don 't want to be rude to a customer.
In my own time, before coming to the Senate, I was proud to stand with workers against sexual harassment in the hospitality sector. I heard so many stories from young women who were harassed, stalked and pinned against bars by customers, and they received absolutely no support from their management. A survey of hospitality workers at the time showed 90 per cent had experienced sexual harassment and 19 per cent had been sexually assaulted at work.
These young workers deserve to be safe at work and safe from harassment, whether that be from other employees, management or customers. It is employers who are responsible for making these workplaces safe. Indeed, many employers have signed up to zero-tolerance measures through the Respect is the Rule program in the hospitality sector, putting workers' rights to be safe over the assumption that customers are always right. The positive duty obligations in Labor's amendment will require employers to take action towards eliminating harassment from all areas of the workplace, including those customers. In order for the positive duty obligations to be effective, Labor's amendment will ensure that the Sex Discrimination Commissioner has the power to investigate and enforce compliance.
This bill is a direct response to the Respect@Work report, but it is also a chance for the parliament to make further steps to improve women's safety. The Respect@Work report found that gender inequity is an underlying cause of sexual harassment. Recognising the unique experiences of women workers is an important step in reversing this inequality.
As part of the bill, the government has included the provision of compassionate leave for miscarriages. Labor unequivocally supports this change and acknowledges how impactful this will be on those who experience miscarriage. This is absolutely the right thing to do. In times of immense personal trauma, a person should not have to worry about losing pay or losing their job. They should be supported with paid leave to allow them time to process, and deal with, these deeply personal matters. We agree with this. We also believe this should extend to those experiencing domestic violence. That's why Labor's amendment to legislate 10 days paid domestic violence leave is also critically important—no-one should have to choose between their livelihood and their safety.
This leave will allow workers who are facing domestic violence access to 10 days paid leave. That means they don't have to worry about their pay or job while they make the incredibly brave decision to get help or seek support. The government have acknowledged the need to address gender equality in workplaces through changes to leave entitlements, so supporting Labor's further amendment should be a no-brainer. Labor's amendments to this bill are about taking real action, because, as it stands, this bill is a slap in the face to workers who just want to feel safe and respected at work—workers who deserve a prime minister and a government that will stand up for them and show leadership for them.
Of the 55 recommendations made by the Sex Discrimination Commissioner, this government is ignoring 14 critical recommendations. Women of Australia are struggling to believe the Prime Minister and his promises that he takes this issue seriously. It's not hard to see why: 40 per cent of women and 25 per cent of men have been sexually harassed at work in the last five years. Workplace sexual harassment is costing our economy $3.5 billion per year. Sex Discrimination Commissioner Kate Jenkins found that there is an urgency for change. The Morrison government has failed to meet this urgency, and it is failing Australian women.
Only Labor understands this urgency. Only Labor will take the action needed to implement all 55 recommendations of the Respect@Work report. If those across the chamber do not support our amendments to this bill, a Labor government will introduce stronger laws as a matter of priority.
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.
[by video link] In March this year I joined thousands of angry Australian women. We'd had enough of the never-ending gendered violence, of horrific sexual assaults, of shocking allegations, of the abuse and violence perpetrated against women, especially here in the halls and offices of parliament. Australian women roared in March and we marched to say it was enough. We'd reached our line in the sand. We'd had enough of the appalling workplace culture in Parliament House and other workplaces and the continuing discrimination, continuing harassment and violence. I'm sickened that we still have people holding positions of leadership and authority in this parliament who are the subject of serious allegations and whose behaviour is the subject of serious questions. What sort of message does that send to women, particularly young women, about taking up positions of leadership and working here in this place?
The reality of women's lives, of our lives, is that we are surrounded every day by sexual violence. From the age of 15, one in two young women report being sexually harassed at work and almost two in five women have experienced sexual harassment in the last five years. But it's not just young women or working women facing this every day. Even when we're frail and elderly in aged care we're at risk of assault. One woman a week is killed by their current or former partner. The rates of violence, as we know, are even higher for First Nations women. From the youngest women to the oldest women, in our homes and in our workplaces, we live our lives surrounded by violence. We learn not to look at this full on, not to stare at this for too long, because it burns a hole in our hearts. We know all this. We've known this for lifetimes, and it's way past time to act.
I am horrified but also frustrated and furious that there's been so much talk and so little real action. If we in the Senate and the other place, the lawmakers, cannot keep women safe and believe women then something fundamental has to change. The government seems incapable of taking action and of taking those bold steps. It's developed a small response to an overwhelming issue, a mediocre mumble to a full-throated demand from Australian women. This legislation, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, is so limited in its scope, exactly like the Morrison-Joyce government.
In 2018, the national inquiry into sexual harassment in Australian workplaces was announced, and that culminated in the Respect@Work report released by Sex Discrimination Commissioner Kate Jenkins in March 2020. The report found that workplace sexual harassment in Australia is both prevalent and pervasive and that the current legal and regulatory system is insufficient to effectively address sexual harassment in the workplace. The report, through 55 recommendations, proposed widespread changes to how sexual harassment is handled in the workplace, including in relation to improving training, education and awareness in relation to respectful relationships, methods of reporting and initiatives around support, advice and advocacy. When handing down her report, the commissioner said:
I call on all employers to join me in creating safe, gender-equal and inclusive workplaces, no matter their industry or size. This will require transparency, accountability and leadership.
Sadly, they're all attributes this Morrison-Joyce government does not possess.
This legislation is a weak response and a missed opportunity. Instead of taking the opportunity to commit to and implement all of the 55 recommendations in the groundbreaking Respect@Work report, we have this response, which is nowhere near strong enough to deliver the legislative changes proposed by the Sex Discrimination Commissioner. This legislation should be changing the Fair Work Act to explicitly prohibit sexual harassment. It should introduce a positive duty on employers to take reasonable steps to prevent sexual harassment happening in the first place. It should make 'substantive equality between women and men' an objective. It should allow unions or other organisations to bring legal action against perpetrators on behalf of complainants. It should establish cost protections for complainants so that they aren't discouraged from taking legal action due to the possibility of having to pay massive court ordered legal costs.
The Respect@Work report clearly says that Australia's existing laws are out of date, failing to protect workers and that reform is urgently needed. After commissioning the work in 2018, the Morrison government ignored the final Respect@Work report for a year, leaving it to gather dust on the desk of former Attorney-General Christian Porter. It should not have taken this long.
I'm very proud that an Albanese Labor government will fully implement all 55 recommendations of the Respect@Work report to help keep Australians safe from sexual harassment at work. An Albanese Labor government will help keep Australians safe all the time. I'm even prouder of the commitment announced by Labor today that backs our promise and will see action to make women's lives better. Labor will commit around $24 million to ensure there are properly funded working women's centres in every Australian state and territory. That's what Labor will do.
Working women's centres provide free, confidential assistance and advice about workplace matters, including sexual harassment, wage theft and discrimination. Sadly, many working women's centres have cut back their services, have closed or have faced closure because of the federal Liberals' funding cuts. I have spoken here of the dire situation the NT Working Women's Centre is facing because of federal government cuts. In October the NT Working Women's Centre faces its cliff edge. It's only a little over a month away. Without a further funding commitment, it will have to substantially cut back its services to Territory women. There are only three working women's centres currently in existence in Australia, and, of these three, only one in South Australia has its future assured.
Working women's centres are community based, not-for-profit organisations that provide free and confidential advice and holistic support services on work related matters to female, transgender and non-binary workers and specialise in gender based workplace issues. The Northern Territory and Queensland centres were established in 1994 and the South Australian centre in 1979.
Working women's centres work primarily with women who are not represented by a lawyer or other advocate. These women are often economically disadvantaged and vulnerable and work in precarious areas of employment. Working women's centres assist with a broad range of workplace issues, such as gender discrimination, unfair dismissal, bullying, harassment, sexual harassment and assault. They also conduct research and project work on a range of issues that women experience in relation to work, including on access to child care, family-friendly practices, the needs of First Nations working women, pregnancy and parental status discrimination, leave entitlements, work-life balance, pay equity and the impact of domestic violence on women workers and their workplaces. Additionally, they provide free and fee-for-service training for workers and employers about workplace rights on areas such as bullying, sexual harassment and domestic violence. The experience of working women's centres is that sexual harassment at work remains a persistent public health challenge, with implications for workplace safety and workers compensation.
In their submission to the Senate inquiry on this bill, the NT Anti-Discrimination Commission described sexual harassment as a significant and pervasive issue here in the Northern Territory. They pointed out the significant barriers that exist for NT women in a small jurisdiction. For example, if a woman works in a particular field, there may be only one employer in the Northern Territory where she can do that particular work, and speaking out may result in her losing her job and severely limit future employment prospects.
Recommendation 49 from the Respect@Work report is that:
Australian governments provide increased and recurrent funding to working women's centres to provide information, advice and assistance to vulnerable workers who experience sexual harassment, taking into account particular needs of workers facing intersectional discrimination. Australian governments should consider establishing or re-establishing working women's centres in jurisdictions where they do not currently exist.
In the government's A roadmap to respect response to the report, they agreed with the recommendation and stated that they will engage with state and territory governments on funding for working women's centres. The Commonwealth government cut all federal funding to the Queensland and Northern Territory working women's centres in 2016 and again in 2020, and the centres are only managing to survive because of modest funding commitments from the Labor state governments. The shadow minister for industrial relations and the shadow minister for women wrote to the Attorney-General, the Minister for Women and the Minister for Women's Economic Security on 27 August, urging the Morrison government to provide urgent funding to ensure the NT Working Women's Centre does not close and to ensure there are properly funded working women's centres in all jurisdictions. I would like to acknowledge the shadow ministers' strong and ongoing support for the work of the working women's centres and particularly for the strong advocacy they've done to ensure the NT centre can keep its doors open. The government indicated, through Senate estimates, that they are negotiating with the states and territories on a joint funding arrangement for working women's centres to be established in all states and territories. This was welcome news, but it cannot be an excuse for the Morrison government to try and dodge responsibility and put this onto the states and territories.
The NT Working Women's Centre has proven its worth for more than 30 years, and the evidence is clearly there, in the work of the NT Working Women's Centre, in what it has done and what it continues to do, which aligns with the National Plan to Reduce Violence against Women and their Children and will contribute to the development of the next national plan. With the women's safety summit planned for next week, I have no doubt that the vital work of the working women's centres will again be highlighted.
But time is running out for the NT Working Women's Centre. Women of the Northern Territory cannot afford for it to further reduce its services or, worse, to close its doors.
In the past five years, one in three people experienced sexual harassment at work, including two in five women. This widespread workplace harassment costs the Australian economy $3.5 billion a year. It must stop. I don't believe this legislation will do this. At best, this bill may be a small first step—
The government have not indicated any further legislative changes they will make or the time frame for doing so. Time is running out for the NT Working Women's Centre and for women in the Northern Territory to retain the specialist service that acts to ensure that they can be safe in the workplace.
Acting Deputy President Askew, thank you for coming in early to take my last few minutes in the chair. The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 joins a long list of half-hearted attempts, complete failures, and instances of downright contempt for women's issues demonstrated by the Liberal government since its election, and particularly by this Prime Minister, Mr Morrison. In 2016, when Mr Morrison was Treasurer, he cut $35 million from community legal centres, which provide vital support to women and family violence survivors. The National Association of Community Legal Centres has said that 160,000 people were turned away due to funding cuts. As Prime Minister, Mr Morrison completely defunded the National Family Violence Prevention and Legal Services Forum, the peak body representing First Nations survivors of domestic abuse. Ironically and callously, the group lost their funding on the International Day for the Elimination of Violence Against Women. Just a few months ago—in June, in fact—Mr Morrison allowed Mr Barnaby Joyce to join the cabinet group Mr Morrison had formed to improve outcomes for women. This women's safety and security task force has been blasted as a farce, with Mr Joyce as a member.
Labor will move many amendments to strengthen this bill, including to provide for domestic violence leave. Who could forget the assertions made by Minister Cash, as employment minister, when she rejected calls for domestic violence leave, claiming instead that it would be a barrier to women getting a job and it would act as a perverse disincentive for employers to employ women? As employment minister she ignored or was completely ignorant of the fact that there are many current enterprise bargaining agreements where unions have successfully negotiated domestic violence leave and there are hundreds of employers who support it. We will see in this debate whether Minister Cash has changed her tune.
Last December, Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar released the Wiyi Yani U Thangani: women's voices report. It is a landmark report. It is the first in 34 years, following the 1986 Women's business report. Commissioner Oscar held open meetings across the country to hear from women and girls. What has the government—or, indeed, the Prime Minister or the Minister for Women in this place—done about this report? Absolutely nothing. They have not even acknowledged its existence. The report provides guidance to the Commonwealth government on measures that can be taken to effectively address the needs of Aboriginal and Torres Strait Islander women and girls. The failure of the Morrison government to acknowledge this report completely misses the opportunity to include some of its recommendations in the bill before the Senate.
Then there are, of course, Mr Morrison's personal failures: his disgraceful management of recent sexual assault allegations in this parliament, particularly when he revealed he'd asked his wife about what he should do in relation to the Ms Higgins matter. This was followed by his failure and his refusal to talk to thousands of protesters outside the parliament. Most of these protestors were women, and along with many of my Labor caucus members I went out and joined the protest. Then there has been the complete protection of the member for Pearce against the allegations of historical rape. Mr Morrison has steadfastly refused to investigate that matter, admitting he has not even read the allegations against Mr Porter. The Prime Minister could have taken his lead from the Chief Justice of the Federal Court, Susan Kiefel, who did investigate and found against Justice Hayden.
Many Australians feel the Prime Minister has not done enough to listen to or protect women, and this bill before the Senate is another clear indication of that. There was, of course, his now forgotten mea culpa, an admission of error that he had failed to get the timing right on the marginalisation, the trivialisation, the harassment and the sexual assault of women. That acknowledgement of failing to get the tone right is long gone. Actions speak louder than words, and this bill before the Senate is further acknowledgement that the Prime Minister has no intention of getting it right. After commissioning the national inquiry in 2018, Mr Morrison ignored the final Respect@Work report, ignored it for over a year. It was only after all of the disgraceful sexual harassment and rape allegations in this place that the Prime Minister resurrected the report, which had been gathering dust on the desk of the former Attorney-General, the member for Pearce, Mr Porter. It should never have taken this long.
This bill is very basic. It fails to implement all of the recommendations from the Respect@Work report. It well and truly lets women down. The report tells us that two out of every five women have experienced sexual assault at work. That's a significant number of the women in this place. Failing to act on the Jenkins recommendations does not build much confidence that Mr Morrison will act on the recommendations of the inquiry the government has charged the commissioner to hold into the culture of this workplace. If Mr Morrison won't act to prevent sexual harassment in Australian workplaces, it doesn't seem likely that he will hold his government to a higher standard. The government has shown disregard and disrespect for Australian women time and time again. This bill was an opportunity to get it right, but it falls well short.
Workplace sexual harassment is prevalent and pervasive. It occurs in every industry, in every location and at every level in Australian workplaces. Australians across the country are suffering the financial, social, emotional, physical and psychological harm associated with sexual harassment, and this is particularly so for women. The behaviour also represents a very real financial impost to the economy, through lost productivity, staff turnover and other associated impacts, with workplace sexual harassment estimated to cost the Australian economy around $3.5 billion a year.
The inquiry also found that most people who experience sexual harassment never report it. I'd suggest that most women in this place know this, because, if they haven't experience sexual harassment in the workplace, their friends and/or their family have. This is something women discuss amongst ourselves, but, sadly, we rarely report it. It's often done by one person to another and it's very hard to prove, but we all know someone—or many women—who has experienced sexual harassment. Women don't report it, because they fear it will have an impact on their reputation and career prospects. They fear they won't be believed. They fear they'll be embarrassed. They fear because they've seen over and over again that the perpetrator will simply get off with a slap on the wrist or perhaps won't be questioned at all.
We know that, back in April, Mr Morrison made a flashy announcement promising he would adopt every recommendation in the Respect@Work report. I remember watching him say those words. But, as usual with Prime Minister Morrison, it was all spin. In reality the Morrison government is refusing to implement a number of the major legislative reforms recommended by Commissioner Jenkins. The Morrison government has also failed to take action or has tried to pass off responsibility to the states—something we see in this place every day—on a number of the other key recommendations, including recommendations 25, 27, 28, 49 and 50. I'll bet you any money you like that government senators in this place will stand up and say the government is fully implementing the Respect@Work report, so let's put it on Hansard that they're not.
The Morrison government has not adopted recommendations 17 and 18, which place a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation as far as possible. Over the last two or three months, in Western Australia, we've had an inquiry going on in the state parliament, looking at sexual harassment in the mining sector. Sadly, it came about because a woman was raped, and those matters are before the courts. Since that time, a number of other women have come out and made rape allegations against workmates—just think about that for a few seconds. I've no doubt that, if the government was actually real about implementing the Respect@Work report and actually did introduce a positive duty on employers to prevent sexual and sex based harassment, it would make a world of difference in the mining sector.
At the moment, what we've seen the mining sector come up with is all these punitive measures. Yes, we do need punitive measures—people should lose their jobs if they're found to have engaged in sexual harassment, and of course they should face criminal charges if they have engaged in rape—but there is a requirement for the employers in the mining sector to do a little more than provide a wet mess and a gym. If they had a positive duty of care they would need to engage with their workforce and talk to them about the sorts of things that make a workplace better and safer. The reality is that in Western Australia those swings are long. They're 12 hour days, 14 days in a row. This is a long time to be away from your family, and it's a long time to allow negative workplace cultures to develop. So that is a major flaw in this legislation.
A couple of weeks ago, I held a meeting in Western Australia and our shadow minister for women, Tanya Plibersek, came and talked to that group—well, she Zoomed in, obviously. Ms Plibersek described the legislation as really important and went on to say: 'You wouldn't be allowed to work in a workplace where there was live electricity and you wouldn't be able to work in a workplace where there was asbestos falling on the ground, but in Australia you can work in a workplace which is unsafe because there is sexual harassment.' But, sadly, we see that this legislation is another example of spin over substance from a government big on talk and pathetic on delivery. If you want to see what a total failure of national leadership looks like, it is this legislation that is currently before the Senate and the weasel words that go with it. It is an absolute missed opportunity and another refusal by the Prime Minister to take action on a problem right in front of him and he then tries to pass it off as something else.
This Prime Minister would have to be the bare minimum Prime Minister. On all accounts, he fails to deliver and he says one thing and does another. On this particular piece of legislation, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, it is just unthinkable that he told Australian women that he would take seriously our concerns, our anger and our frustration with harassment at work and that he would implement all of the recommendations of the Jenkins' inquiry and report, yet once again we see this Prime Minister fall short. He is full of excuses but he really has answers for nothing.
After the last 18 months, women in this country have had enough with being shunted from pillar to post by this government. COVID has been terrible for Australian women. More women than men have lost their jobs. More women than men have lost hours. More women than men have lost pay. More women than men have had to take on more unpaid work. Today is Equal Pay Day, 31 August, and what does it show us? It shows us that the wage gap between men and women in this country is only getting worse—and it's getting worse under the leadership of this Prime Minister, Mr Scott Morrison. If there were ever a Prime Minister that was bad for women, this is it—this government and this Prime Minister, Scott Morrison. When he is confronted with the facts and with the difficult issues, he always finds a way of blaming everybody else. He never takes responsibility; it's always someone else's fault or he wasn't told—or he didn't bother to read the documentation.
This bill and the government's response to the Respect@Work report had been sitting on the desk of Mr Christian Porter for months and months and months and have only been brought forward because the issue of harassment and sexual abuse of women in the workplace by men has become so stark in our national discussion and debate, because of the bravery of a handful of very strong, courageous women—women who work in this building. Brittany Higgins is a hero; Brittany Higgins is one of the strongest women I have ever met in my life. She was sexually assaulted, allegedly in this building, in a ministers office—and we have been told that people very close to the Prime Minister knew.