Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I rise to speak on the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. The bill before the chamber will implement further recommendations from the Respect@Work report. Without a doubt all sides of politics agree that sexual harassment in the workplace is unacceptable. No matter who is in government it is important that we all continue to work together to ensure that we combat sexual harassment in all Australian workplaces.

The former coalition government commissioned the inquiry into sexual harassment in the workplace in June 2018. The final Respect@Work report is a very detailed document which made 55 recommendations to the former coalition government. By the time the election was called earlier this year, the former government had implemented or fully funded 42 out of the 55 recommendations of the Respect@Work report and was working on the implementation of the remaining recommendations.

The recommendations in the report were directed not just to the Commonwealth government; a number were also directed to the various state governments and to the private sector. In response to the report, when we were in government I worked with the cabinet and released the Roadmap for Respect, which responded to the report and outlined a long-term plan for preventing and addressing sexual harassment in the workplace. The roadmap included agreeing to, in full, in principle or in part, or noting all 55 recommendations of the Respect@Work report and in particular it focused on prevention. The former coalition government provided over $64 million over the four years in real money to support the implementation of the Roadmap for Respect.

In September last year our government legislated many of the recommendations of the Respect@Work report. This bill did many things. The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 expressly prohibited sex based harassment. It made it clearer than it has ever been in Australian law that sex based harassment is unacceptable. We also corrected gaps in the legislation to make sure that all workers are respected. We made it clear in the Sex Discrimination Act that members of parliament, judges and public servants would all be subject to the Sex Discrimination Act. This means that people are protected from sexual harassment regardless of the field in which they work or for whom they work.

The former coalition government also established the Respect@Work Council, which brings together leaders from key government regulators and policymakers responsible for sexual harassment policies and complaints to improve coordination, consistency and clarity—and this is so important—across existing legal and regulatory frameworks. We also increased the length of time that people have to make a complaint. The original time frame was six months, but, based on the recommendations from the report and certainly listening to stakeholder feedback, we lengthened that from six months to 24 months after the incident.

We also made incredibly important changes to the Fair Work Act to make it clear that being a perpetrator of sexual harassment is a valid reason for dismissal. This is and continues to be an essential reform because what it actually did was make it possible for employers to dismiss a worker who sexually harassed another worker without the risk of them bringing an unfair dismissal claim in response. Again, based on the feedback and looking at the Respect@Work report, it was essential that employers were given this ability, an ability they hadn't had, to respond swiftly when their employees' behaviour is unacceptable. As a community it is essential that we draw the line in terms of unacceptable behaviour in workplaces and beyond that has been common for too long.

The bill that we have before us today in the Senate chamber is one that builds on and continues the work that the former coalition government had commenced. It picks up on the particular issues that were given further time to ensure there was in-depth consideration and consultation. I'm pleased to say that, with the work having progressed, we support the principles behind this bill. There is so much in this bill that we support. I welcome the 12-month period between assent and commencement. This will be essential time for businesses, because it is businesses that need to go out there and learn about these new obligations. We are placing new obligations on businesses, and we need them to be able to put in place the new protocols and policies to ensure that they get their responses right and at the same time give them that ability to undertake the required training for their staff.

The role of the Australian Human Rights Commission is also essential. Under this bill, the Australian Human Rights Commission will be responsible for developing guidance materials, and what we need to ensure is that this guidance material is clear, is simple and is easy for businesses to understand. Again, it is the businesses that we are placing these additional obligations on. We need to ensure that the businesses are able to get that guidance in relation to what these new obligations are and how they need to properly discharge them. On that basis, the Human Rights Commission will be developing these guidance materials.

It's important that these obligations apply to all workplaces, but, when you actually look at the explanatory memorandum—and this is noted—a large bank or another large corporation with a human resources department will clearly have more resources at its disposal to ensure it is compliant. You need to then compare this particularly with small businesses—for example, a corner store—that only have a few staff. In terms of the development of the guidance materials, the Human Rights Commission does need to ensure that the guidance materials can't be one size fits all because businesses are not one size fits all. The guidance materials must meet the needs of different types of businesses. They need to reflect the different capacities that businesses will have to understand and discharge their obligations.

The risks that businesses must manage under this act and under the work health and safety framework vary significantly across industries. Again, this needs to be properly taken into account. When you look at the submission made by the Housing Industry Association in relation to this bill, they note it's extremely difficult for a business to control the various actors on a worksite: the various tradies, the subcontractors, the clients, the state based regulators, the union officials, the owners sometimes and others. Similarly, when you look at a business—for example, a pub—a person creating an unsafe working environment for a second person may be an intoxicated patron rather than an employee of the business. In terms of that fundamental role for the Australian Human Rights Commission in developing this explanatory material, I want to see the guidelines addressing in full that range of different businesses and the circumstances in which they may find themselves.

Guidance from the Human Rights Commission must meet the needs of businesses, as I said, because it is the businesses upon which we're placing these obligations. It needs to ensure that it's based on the different types of workplaces that exist across Australia. Every single day you go into a different business; it is a different workplace. We need to ensure that guidance material does address the different types of businesses that are the subject of this bill.

Let me be very clear: there is no place for sexual harassment in Australian society or Australian workplaces. That's why, when we were in government, the former coalition government, we took decisive action on these issues. The bill that we have before us today builds on the leadership of the former coalition government and the work that we did and the legislation that we put in place. Without a doubt we must continue to work as a society to continually improve and to ensure that everybody has an equal opportunity to succeed and that our workplaces are set up in such a way that someone who works hard, regardless of their background, can reach the highest of heights. We should never tolerate sexual harassment in the workplace or anywhere else. I commend the bill to the Senate.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

I rise to speak on the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. The Respect@Work report shone a light on the scale of workplace sexual harassment, something that we've become all too familiar with in this place.

In her landmark report, the Sex Discrimination Commissioner, Kate Jenkins, set out a comprehensive, practical and targeted suite of reforms to tackle the problem. Those 55 recommendations were the product of many interviews and consultations with victims-survivors, business owners, government, unions, NGOs, lawyers and others, and they represented a holistic plan to address discrimination and structural inequalities, to relieve the burden on victims and to make workplaces safe. The recommendations were designed to be implemented as an integrated package, but the previous government opted to cherry-pick the recommendations that they supported. They legislated some of them but left out the key one—the positive duty on employers to provide a safe workplace. The then government voted against a joint Greens-Labor amendment to implement that positive duty. We called it out at the time, but we're really pleased that the new government is now finishing the job and implementing the recommendations in full.

The Greens welcome and support this bill. It is a positive and overdue reform to make workplaces safe and respectful for everyone. We have a number of amendments to improve its operation, but the significance of the changes that this bill will make cannot be overstated. The Respect@Work report was clear that current laws present all kinds of barriers to workers calling out harassment: cultural attitudes, costs, risks and the genuine fear that they'd be targeted at work through further harassment or loss of hours. This bill goes a long way towards removing those barriers.

Firstly, the positive duty: this was the centrepiece of the Respect@Work report, but it was something that the previous government and some members of the business community resisted. They claimed it was unnecessary because workplace health and safety laws already included duties to ensure workplace safety. Well, those were clearly not working. If they were, we wouldn't have seen and wouldn't still be seeing more than a third of workers experience sexual harassment. Those are just horrific numbers. Eliminating workplace sexual harassment will take a big cultural shift, and a positive duty to create and maintain a safe workplace is the best way to drive that cultural shift. It shifts the focus from individual employees having to report bad behaviour to individual employers having to work out what to do about it. It requires employers to proactively prevent discrimination and harassment in their workplaces. Without such a positive duty, we're stuck with the current reactive, adversarial victim-complaint approach that's failed so many people, mostly women, people of colour, people with disability or queer folk.

It won't be a one-size-fits-all response. The steps taken by each workplace will depend on their size and their nature, but every workplace, once this bill passes, will have a responsibility to do what is needed to keep staff and clients safe. We'll move an amendment proposing that employers be required to consult with their staff about the specific measures needed in their workplace to achieve that. The Human Rights Commission, a body with clear expertise on protecting human rights and avoiding workplace discrimination, will prepare guidance for employers and will have powers to investigate and take action when needed. Employers will be given an opportunity to set out a plan for what they'll do, but the commission can take compliance action if the business fails to make progress. We would like the compliance notices to be published in order to hold workplaces to account and provide guidance to other workplaces, and I'll be moving an amendment along those lines as well. The goal is supporting employers to be better employers who listen to their staff and respond, but with a compliance framework that allows strong action to be taken when employers don't lift their game.

I want to speak now on the hostile work environment provisions. Akin to the positive duty provisions, the bill takes a workplace-level approach to cultural change, which is good. Sexual harassment is more likely to occur where a workplace environment is sexually charged or hostile, even if the conduct is not directed at a particular person. There are many examples: mine sites where women are habitually given menial tasks and where predatory behaviour is ignored; hospitality businesses where women are expected to wear skimpy clothing and to put up with lecherous customers; or lunchrooms where sexist, racist, or homophobic jokes are told or laughed at by senior staff or where anti-trans posters are displayed. The 2018 national survey of sexual harassment found significantly higher rates of harassment in the fast food and retail industries, particularly for young women. This bill introduces an offence of creating and maintaining a hostile work environment. It creates a clear obligation on employers and staff to identify cultures, work practices, uniforms and office set-ups that could create an environment in which harassment is facilitated, condoned or ignored. We strongly support this change. However, we'll be proposing an amendment to ensure that the provisions operate as they are intended to.

The bill makes two significant changes to address systemic harassment and relieve the burden on individual workers to pursue complaints. It gives the Human Rights Commission powers to have a look at systemic problems and practices, and it allows representative bodies to take action on behalf of workers. Examining systemic behaviour across a sector or workplace helps to identify the root causes of discrimination affecting many employees, rather than requiring one person to stand up to their boss, run the gauntlet of the legal system and risk their reputation, their mental health, their job and their finances. Many workers want the harassment to stop but they don't want to be named as the victim. They want their workplace to be safe for them and others but they don't want to have to go through a court process and the emotional and financial toll that it takes. Representative applications provide a way for genuine cases to be heard and the employees to get justice without that personal toll.

The bill also introduces a welcome protection against victimisation of workers who make complaints, another step towards making workers feel confident to come forward. These are good changes, and we support them. In fact, we think that they should be replicated across all discrimination laws, and I'll be moving a second reading amendment in due course urging the government to progress that. The positive duty to provide a safe workplace should apply to all protected attributes so that employers have to take proactive action to prevent discrimination on the basis of age, race and disability as well as gender.

Now I want to talk about costs. One of the significant barriers to workers taking action against colleagues or bosses—and it's often the most significant one—is the financial risk involved. The Women's Legal Centre says:

Many women worry that they will not be believed and will be forced to pay the other side's legal fees. In the case of large businesses and government departments, these fees can be so significant that the average person would face financial ruin. It's no surprise that many women decide not to take this gamble.

The decision to make a complaint against someone in your workplace will always be difficult. Costs should not be the determining factor in whether workers are prepared to call out bad behaviour and insist on a safe workplace. The costs model that was proposed in this bill was intended to address this issue. However, more than 100 experts—victims-survivors, lawyers, unions, advocates—have raised concerns that the alleged fix would still act as a deterrent and, for some, would make it worse. Many women would still fear that making a complaint could be both traumatic and financially risky. Without the ability to be awarded costs if the complainant is successful, women would also not be able to attract the services of no-win no-fee lawyers, and we know that justice is not cheap in this country—more's the pity. That deterrence could be the difference between a harassing boss being held to account or being allowed to continue to harass other employees. Those 100 experts had a better solution—an equal access cost model that would protect complainants against the risk of costs if they lose but allow them to recover costs where the court finds that their employer or colleague has broken the law. We strongly support that model.

We were going to move an amendment to give effect to that model, but we've heard the government's concerns that having that model just for sexual harassment claims would put them on a different footing to other discrimination complaints. We would like to see the equal access costs model apply across the board, but we recognise that it's important to get this right, so we're very pleased that the government agreed with the Greens to pause those costs changes. They won't be moving them. We'll come to those when the government move their own amendments. Instead, they'll now conduct a full review of costs provisions, in consultation with all of those who raised concerns. We will continue to push to make sure that workers can access justice and can actually enforce these new rights that have been given to them. We're hopeful and confident that the review will ultimately end up with a more effective and equitable cost model that allows workers to get justice.

The bill also extends reporting obligations under the Workplace Gender Equality Act to the Commonwealth public sector. This is a very welcome move. Measuring data and monitoring progress is the key to closing the gender pay gap that, sadly, still persists across all industries. The Greens have long called for gender pay gap reporting to apply to the public sector, and we will continue to push for robust and transparent reporting across more workplaces and across more measures, including better data on the prevalence and resolution of sexual harassment complaints and the use of nondisclosure agreements to silence victims-survivors.

I'll talk briefly now about the review of the bill. This bill is a very significant and welcome change to the way that we'll approach harassment and discrimination in workplaces across Australia. It's a real opportunity to drive cultural change, and we need to know if it works. Given the scale and the importance of the changes, and given the diversity of workplace environments and employee experiences, it's important that we review how these changes are working in practice and whether they're achieving the aims of the Respect@Work report. We need to monitor how effectively the provisions of the bill are driving the cultural change that's needed to reduce the shocking levels of harassment in workplaces across the country and assess what additional reforms or support might be needed. So I, along with Senator Tyrrell and Senator Lambie, will be moving an amendment to require such a review. I'm pleased that the government has indicated support for that amendment.

Finally, I'd like to talk about funding. As I've said, this bill is a critical opportunity to drive cultural change, but that opportunity will be undermined without adequate funding to the Australian Human Rights Commission, who will undertake the extra powers and duties under this bill. I was pleased to see the budget dedicate additional resources to the Human Rights Commission, but this must be kept under regular review to make sure that it's enough for the commission to do its job. The proposed statutory review will look at that issue, but I urge the government to heed any calls from the commission regarding the money it needs.

This bill could also be undermined if workers and employers can't access support and advice about their rights and responsibilities under the bill. We need a well-funded, functioning network of working women's centres to provide practical advice and support to employees experiencing harassment. Independent, expert, community-based, trauma-informed services are essential to the successful implementation of this bill. The Greens are really proud to support this bill, and we think our amendments would make a good bill even better. Workers across Australia, particularly women, deserve to be safe, respected and listened to.

I want to conclude my remarks by commending the work of the Sex Discrimination Commissioner, Kate Jenkins, who drafted this very prescient report, which is now finally being legislated in full, and who has also done incredible work looking at parliamentary workplaces. She's finishing up her term soon, and I want to place on record a tribute to the quality of her work, which has had multipartisan support and which indeed will make many women safer in workplaces across the country. Thank you, Commissioner Jenkins.

I move the second-reading amendment on sheet 1713 circulated in my name:

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

(a) acknowledges the significance of the hostile work environment and positive duty provisions in this Bill in strengthening workplace culture; and

(b) calls on the Government to urgently consider the creation of similar obligations under the Racial Discrimination Act 1975, the Age Discrimination Act 2004, and the Disability Discrimination Act 1992".

Marielle Smith (SA, Australian Labor Party) Share this | Link to this | Hansard source

Once again I find myself following Senator Waters on a topic in which I think we find much overlap in our views and beliefs. I thank you for your contribution and the contribution of others today. I'm also rising to speak to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. Bringing this bill to us today is a landmark moment. It marks a significant step in fulfilling our election commitment to implement the recommendations of the Respect@Work report. I am deeply proud to be part of a government which is taking these issues seriously, which is backing up the report recommendations with a bill before us today, and I'm delighted to have an opportunity to contribute to the debate.

The bill before us will place a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation as far as possible. It will expressly prohibit conduct that results in a hostile workplace environment on the basis of gender. It will ensure Commonwealth public sector organisations are also required to report to the Workplace Gender Equality Agency on its gender equality indicators. I note the government amended the bill in the other place to make it clear that duty-holders are required to take reasonable and proportionate measures to eliminate as far as possible third parties, such as customers, subjecting their employees to sexual and sex-based harassment. It will also provide the Australian Human Rights Commission with new powers to enforce the positive duty and help make sure employers are fulfilling their obligations. This means that in industries like retail and hospitality, where workers are already at risk of harassment by customers, due to the front-facing nature of their roles, employers under this legislation will be required to take measures to protect their staff.

I acknowledge the work of Sex Discrimination Commissioner Kate Jenkins and the commission in producing this landmark report and the work done since to implement the report's recommendations, including through the Respect@Work Council. As the Attorney-General acknowledged in his speech to the House, this bill would not have happened without the individuals and organisations who contributed their stories, their advocacy and their expertise to inform the findings and the recommendations in the Respect@Work report. They too should be proud of the bill which is before us today.

Every Australian has the right to feel safe and respected at work, no matter their gender, age, race or religion. The national inquiry into sexual harassment in Australian workplaces found that one in three people had experienced sexual harassment at work in the preceding five years, with women experiencing higher rates of harassment than men. Aboriginal and Torres Strait Islander Australians, members of the LGBTQI+ community and people with disability are, on average, more likely to experience workplace sexual harassment. Workers, no matter where they work, deserve to go to work each day without fear of being harassed, and the perpetrators of harassment must be held to account.

This bill provides a framework for holding workplaces and communities accountable for failures to tackle harassment that occurs under their watch—well overdue. This framework is especially important in industries where workers are at higher risk of harassment and abuse, like retail and hospitality. A survey conducted by the Human Rights Commission and the retail workers union, the SDA, in 2019 showed that 42 per cent of all survey respondents had experienced sexual harassment in the previous five years. For women, it was even higher, with 46 per cent of the women who participated in the survey reporting sexual harassment. And for young women, it is higher again, with 51 per cent of members aged 15 to 17 years having experienced sexual harassment at work. The harassment came from customers, managers, peers and business owners. They are shocking statistics that speak to a workplace culture that has to change.

I remember being one of those statistics as a young retail and hospitality worker. You never forget it. You never forget the feelings that start with embarrassment and awkwardness, which grow into a sense of discomfort and then fear about heading back into your workplace. From the decisions you have to make about whether to seek another job, whether there is another job available, that anxiety keeps you up at night because you do not want to go back to work tomorrow because you know the harassment that you will experience and endure. No-one should have to endure it.

This bill represents a paradigm shift in how public policy and the legislative framework will support those in our community experiencing sexual harassment and discrimination at work. It says loudly and clearly to all workers that they deserve to be safe at work. Change is hard but it is essential, because sexual harassment, just like violence, is not inevitable; it can be prevented. In this bill, we are taking steps to deliver change. I commend the bill to the Senate.

Paul Scarr (Queensland, Liberal Party) Share this | Link to 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.

Mehreen Faruqi (NSW, Australian Greens) Share this | Link to this | Hansard source

I rise to speak to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, and I'd like to associate myself with the comments made by my wonderful colleague Senator Waters. The bill implements those recommendations of the Respect@Work report which the previous government chose to ignore, including the introduction of a positive duty on employers to take reasonable and proportionate steps to eliminate sex discrimination in their workplaces and the prohibition of conduct that subjects another person to a workplace environment that is hostile on the grounds of sex. The bill also provides the Australian Human Rights Commission with a function to inquire into systemic unlawful discrimination.

Imposing a positive duty on employers to prevent sexual harassment, sex discrimination and victimisation, with accompanying enforcement powers, is so important. The Respect@Work inquiry found that the current system places a heavy burden on individuals to make a formal complaint. The positive duty on the employer to create and maintain a safe workplace would be a step towards achieving a cultural shift and signalling to workers that their employers are invested in actually creating a safer workplace for all of them. As the Human Rights Commission has said, positive duty would be a powerful tool to promote broad, systemic and cultural change that sits outside of the current adversarial framework of discrimination law, so it is really good to see this introduction of positive duty on employers through this bill.

However, the bill should do more, as described by my colleague Senator Waters. As noted in the Greens additional comments to the Senate inquiry into this bill, a core finding of the Respect@Work report and other work of the Australian Human Rights Commission was that sexual harassment and discrimination are often intersectional, with compounding effect. Though specifically targeted at sexual harassment and sex based discrimination, the bill really does present such a good opportunity to require employers to ensure their workplace is free from discrimination on any grounds. That opportunity should have been taken up by the government. There is no reason the positive duty and hostile work environment provisions should apply to preventing discrimination only on the basis of sex. I know that Senator Waters will be moving a Greens amendment for similar obligations to extend to other protected attributes such as race, age and disability.

The Greens are supporting the bill of course because it represents significant progress for women around the country who have so courageously spoken their truth about the harassment, bullying and abuse that they have been subjected to and who have made it clear in no uncertain terms that they will not rest until it stops. This bill is the product of significant effort, investigation and analysis into sexual harassment and other forms of gendered violence at work. The National Inquiry into Sexual Harassment in Australian Workplaces was announced by the previous government in June 2018 in the context of the Me Too movement and global recognition of the serious harm caused by the problem of sexual harassment in workplaces. The inquiry, conducted over 18 months by the Sex Discrimination Commissioner, Kate Jenkins, was a world first. The 930-page report is comprehensive, thorough, well researched and informed by extensive consultations with a wide range of stakeholders. It made 55 practical and carefully considered recommendations for reform to fix our broken system, all of which the Greens support.

As a proud feminist, I celebrate the work we have done in this country to address sexual harassment and other forms of gendered violence at work. We must continue this work, but we should be equally determined to eliminate other forms of systemic and structural discrimination in Australian workplaces—in particular racism, homophobia, transphobia and ableism. The Respect@Work report noted that, alongside gender inequality, other inequalities experienced by groups with less power in society also contribute to the sexual harassment of people from these groups and that addressing sexual harassment requires an intersectional approach. An intersectional approach to sexual harassment sees gender as intersecting with other forms of discrimination and systems of power. The report found that workers were more likely to experience sexual harassment in the workplace if they were LGBTQI+, First Nations, people from culturally and linguistically diverse communities and migrant workers.

As those in the chamber would know, the need to address racism is particularly close to my heart. It is a personal lived experience of mine and so many people in the community that I know. Racism compounds the sexism that women of colour and First Nations women experience at work and obviously in society at large. Unfortunately, in Australia, a nation built on genocide and racist government policies such as the White Australia policy, there is a deep reluctance to talk about racism and the persistent denial of the scale of the problem. But racism is pervasive in Australian workplaces.

In response to the global push for racial justice in 2020, Diversity Council Australia prepared a report titled Racism at Work. The report surveyed 1,547 workers across various sectors and found 88 per cent of respondents agreed racism is an issue in Australian organisations, and 93 per cent of respondents agreed organisations need to take action to address it. Only 27 per cent of survey respondents said that their organisations were proactively preventing workplace racism. Research respondents told of being singled out by their colleagues because of their race and being subjected to derogatory names, harmful stereotypes and constant taunting. They also told of having complaints downplayed or dismissed by management.

Racism in Australian workplaces also manifests in many other ways, such as businesses disproportionately filling fixed-term contracts with people of colour or failing to promote deserving people of colour. This racism in workplaces does cause immense personal harm, just as sexism and other forms of discrimination do, and for many of us this intersection of racism and sexism really heavily compounds disadvantage, harm and discrimination. So the government really does need to start acting on preventing such harm from intersecting forms of discrimination in all our workplaces and in our society.

Tammy Tyrrell (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I rise to speak on behalf of the Jacqui Lambie Network. We have circulated an amendment on sheet 1700, but, for the benefit of this chamber, we would like to advise we are no longer intending to move it. There's another amendment that we are intending to move on sheet 1702, but I'll talk about that later.

First, I want to talk about the bill. Senator Lambie and I welcome the introduction of the government's bill, Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, which implements the Australian Human Rights Commission's Respect@Work report. This legislation is long overdue. The Respect@Work report was published over two years ago, and for two years we've known that women experience higher rates of workplace sexual harassment than men. For two years we've known that certain groups of workers experience sexual harassment at a higher rate than others. Workers under 30 are copping it hard. Workers with a disability are copping it hard. And nobody should be copping it at all. For two years we've also known that sexual harassment takes place in certain workplace settings, like workplaces where there's a high level of contact with third parties and workplaces with strong hierarchies. These facts are disturbing. What's also disturbing are the statistics behind this.

The Respect@Work report looked at the data from the 2018 fourth national survey on sexual harassment in Australian workplaces. The survey results revealed that 33 per cent of people who had been in the workforce in the previous five years experienced workplace sexual harassment—that's one in three. And, of the one in three, 80 per cent never reported it. The survey also revealed that 23 per cent of Australian women and 16 per cent of Australian men had experienced workplace sexual harassment in the previous year. Clearly, there's a massive problem with sexual harassment in the workplace.

The Respect@Work report made 55 recommendations that will help address these problems. Labor told us before the election that they'd fully implement all of these recommendations, and I think that's the right thing to do. One of the recommendations is to introduce a positive duty on employers to take reasonable and proportionate measures to eliminate unlawful sexual discrimination, sexual harassment and victimisation. What does this mean? Well, employers already have a workplace health and safety responsibility to prevent sexual harassment, and this comes under the broader duty to eliminate or manage hazards and risks to a worker's health. But the Respect@Work report highlighted how the current WHS framework is not enough. At the moment it is focused on harassment that has already occurred. This bill will require workplaces to create a safe place to work, free of sexual harassment. This means people can feel safer at work before they're given a reason not to. Another recommendation is to empower the commission to assess compliance and enforce this positive duty. This means the commission can make sure employers comply with their legal obligations. I'm happy to see the recommendations of the Respect@Work report have been supported by the government and appear in this bill.

We're also happy the new functions the commission will get under this bill were fully funded in the budget. I'm a huge supporter of the Australian Human Rights Commission. They do important work on a shoestring budget and they could be doing more, which is the tragic bit about this. The reason we need this bill is we need the commission to be able to do more. If it's going to do more, it's got to be funded to do more. That's something we want to see happen. We're not going to push for it now, but it's something we will continue to raise with the government. While we are happy with the bill, it's because we are happy with how it looks on paper. It's one thing to look good on a piece of paper. It's another thing to work when it hits the factory floor.

That's why Senator Lambie and I, together with the Greens, are proposing an amendment for a review of the changes this bill will make. This review will include the new positive duty and the additional functions of the commission. It also includes looking at the capacity of the commission to undertake its new functions. These powers are new, and we hope we get them right the first time. But, as I have said before, we are going to make mistakes. Sometimes groundbreaking changes break more than just ground. We need a statutory review in place to see if this bill actually works how we want it to. We need to know if it's operating as intended. If not, that's fine; I'm happy to make further changes down the track if we need to. What's important is that we get this right, and the only way we will know for sure if the changes we make in this place are right is if we take the time to check in and check under the hood to see how these changes are playing out in the real world.

The review we are proposing within our amendment is a flexible one, and I'm happy that this has broad support. The review will be independent, and it's set to take place anywhere between two and three years after the commencement of these changes. Usually, a review is done no later or no earlier than a certain period. But we're proposing something different here; we've given the government some flexibility so that the review can happen when it's most appropriate. We want to make sure the commission will have had the time to do its important work of educating employers on this new positive duty. We also want to make sure that, if an employer is not meeting its duty to prevent sexual harassment in the workplace, the commission has had the time to use its enforcement powers. We want to make sure that the legislation is tested in the courts. This all may take two years to play out or it may take three, and that's why we've included some flexibility in the review. Basically, we want to make sure that this bill is working well for all parties involved—employees, employers and the commission. So that's our amendment.

There's also the issue around costs. There's been a bit of talk about the cost provision in the bill. We've heard from legal centres who represent victims of sexual harassment that this wording would stop costs being a barrier to pursuing an action. But the government didn't adopt this wording in the bill. The government had proposed a default position where parties bear their own costs. The government's proposed cost provisions were an important change to the status quo. But those costs of bringing an action can still be big. They can be huge if the other party is all lawyered up and happy to drag out proceedings. We weren't alone in being concerned about this; we heard from those same legal centres that they had concerns with proposed cost provisions in the bill. They were concerned this would still be a barrier to justice. That's why we proposed an amendment that adopted the recommendation in the Respect@Work report. This is what the member for Kooyong did in the other place, and we were prepared to put forward amendments that mirrored hers because we had the same concerns.

The government has heard these concerns; the Attorney-General and the Minister for Women published a media release about this today. The government has decided to take this part out of the bill. They've told us they're going to consult a little more on this. The Attorney-General's Department will conduct an immediate review, which will be completed by May next year. They want to get this right. We want this too. And that's why we're happy to not proceed with our amendment to the cost provisions. We're happy that the government is taking the time to listen to the concerns of the legal centres and the people they represent. We're happy that they've committed to conducting a departmental review and implementing the recommendations of that review as quickly as possible. We will see the legislation that gives effect to those recommendations here next year. I'm looking forward to working together with the government on this issue next year so that we can get it right, so that cost is not a barrier to anyone seeking justice. Your rights aren't conditional on your bank balance. They're yours all the time.

We can't accept a world where it's fine to harass somebody so long as they're poor. That's why costs can't be a barrier, and that's what they'll be so long as justice has a price tag.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I thank all senators for their contributions to the debate on the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. This bill is obviously a significant milestone in delivering on the government's commitment to fully implement the Respect@work report. It represents a historic shift in how public policy and the legislative framework support people who experience sexual harassment and discrimination in the workplace.

I thank all of those who have been involved in the development of this, whether it be Sex Discrimination Commissioner Kate Jenkins or the members of her council, and I particularly thank those survivors who came forward to share their personal experiences, which have led to this terrific change. I am conscious that there are a lot of people who have been waiting a long time for these changes to be made, so I will leave my summing up there so that we can get into the committee stage.

Question agreed to.

Bill read a second time.