Kylea Tink (North Sydney, Independent) Share this | Hansard source

The reforms in the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill are warmly welcomed and long overdue. As members of the 47th Parliament, however, we must recognise this reform is actually a small first step in what needs to be a much larger and broader reform of the human rights legislative framework in Australia.

The Respect@Work report completed by the Australian Human Rights Commission in March 2020 indisputably found the current legal and regulatory system in Australia is inadequate to deal with the prevalence and pervasiveness of workplace sexual harassment. At the outset, I want to sincerely thank all the victims, survivors and everyone who bravely shared their stories to inform this important work.

With one-third of workers reportedly experiencing sexual harassment, the Respect@Work review was a long and thorough process, finally bringing to light what many women have known to be true for decades: we need to do better in workplaces right around the country. To do this, we must shift the emphasis of the burden of responsibility from the potentially vulnerable individual to the employer who ultimately controls the culture in their workplace.

The report noted that the financial, social, emotional, physical and psychological harm associated with sexual harassment is particularly borne by women, with gender inequality a key driver of behaviour. It also found sexual harassment represents a very real financial imposition to the economy through lost productivity, staff turnover and other associated impacts. It is estimated the total financial cost of workplace sexual harassment to the Australian economy was $3.8 billion annually—noting this was likely a conservative estimate—and that most of the costs associated with that lost productivity, approximately $1.8 billion worth of it, were borne by Australian businesses.

The bill before us is a good faith implementation of what is recommended in the Respect@Work report as it seeks to prohibit conduct which subjects a person to a hostile work environment on the grounds of their sex, and places a positive duty on employers to take reasonable and proportionate measures to eliminate unlawful discrimination based on sex. In what I think is a strong and positive development, the Human Rights Commission will also be empowered to conduct inquiries into systemic and unlawful discrimination and support businesses to make work environments in Australia a safer place.

As is the case in so many overdue reforms, however, it is only when we shine a light on a problem and start to work towards solutions that we end up uncovering other areas of concern that are equally important to address. Human rights in Australia, more broadly, is one such area. This bill provides vital reform to eliminate sexual harassment and gender based inequalities. At the same time, it highlights the patchwork of discrimination in human rights laws in play right across the country.

This piecemeal approach leads all of us as rights holders, and, in some instances, victims and survivors, on uncertain ground, feeding complexity and confusion for businesses and authorities. This is particularly true when you take into account the intersectional nature of discrimination. As the Australian Human Rights Commission's 2018 national survey report revealed, almost 40 per cent of women and just over 25 per cent of men have experienced sexual harassment in the workplace in the past five years. Aboriginal and Torres Strait Islander people are more likely to have experienced workplace sexual harassment than people who are non-Indigenous. This distorted experience is also the case for people with a disability or those from a racially diverse background.

Given this, while this legislation addresses the challenge from the filter of sex it does not, nor does it seek to, address discrimination across all protected characteristics. As Human Rights Commissioner Jenkins identified:

The introduction of these reforms in the Sex Discrimination Act 1984 specifically focused on sex discrimination and sexual harassment provides an invaluable pilot for broader reforms that are needed across all areas of federal discrimination law.

In this context, I am very supportive of these reforms leading the way. For it to be its strongest, we must ensure we do not inadvertently weaken this legislation by pushing for amendments that, rather than strengthen it, spread it so thinly that its potency is lost.

The Human Rights Commission has developed a comprehensive reform agenda for our federal discrimination laws called 'Free and equal'. The paper supporting this agenda identifies a pressing need to shift the focus of the federal discrimination law system to a more preventative approach and towards actions that better support the fulfilment of rights. It is an important piece of work, the recommendations of which need to be actioned as a matter of urgency. I'm therefore calling on the Attorney-General to provide clarity as to what work the Labor government is doing more broadly in the area of human rights policy. The Labor Party has long promised a human rights framework that is fit for purpose, accessible and promotes equality, and the parliament deserves to know a time frame for this work.

I am pleased the objectives of this bill will be supported by some additional funding to the Human Rights Commission; however, having reviewed this funding allocation and looking at the broad scope of work the Australian Human Rights Commission must do, I do not believe the amount is adequate. Like many independent statutory authorities over the last decade, under previous governments, the Human Rights Commission has been hollowed out in what can only be seen as an attempt to lessen its impact or punish it for adverse reports.

As noted by the Kingsford Legal Centre at the University of New South Wales, compliance notices will be the main way positive duties are enforced and will be the driving force behind cultural and legal change. But the commission's ability to issue compliance orders and process complaints may be delayed without increased funding. I also support funding being made available for community legal services, to ensure free and independent legal advice is available to applicants. On behalf of the people of North Sydney, then, I'll be watching closely to ensure additional functions and areas of responsibility are properly funded.

There are some amendments, which have been circulated, to the bill that I will now touch on briefly. The amendments presented by the member for Wentworth relate to the inclusion of protections for people who identify as LGBTQI+. The bill in its current form prohibits conduct that subjects another person to a workplace environment that is hostile on the grounds of sex. However, this does not cover all attributes protected by the Sex Discrimination Act, such as discrimination based on sexual orientation, gender identity and/or intersex status. The amendment proposed by the member for Wentworth seeks to expand the hostile work environment provisions and the positive duty provisions to cover hostility on the grounds of sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, breastfeeding and/or family responsibilities. I support this amendment and thank the member for Wentworth for moving it.

The amendment moved by the member for Kooyong relates to the cost provisions. Recommendation 25 of the Respect@Work report provides that the Australian Human Right Commission Act be amended to insert a cost protection provision consistent with section 570 of the Fair Work Act 2009. This cost model is as outlined in the Australian Human Rights Commission's 2021 Free & Equal position paper. The benefit of this model for access to justice is that it will apply to all Commonwealth antidiscrimination law, providing a clear and certain approach in which parties are responsible for their own costs. With that said, a judge will continue to have the power to intervene and make a different costs award.

I look forward to assessing the pros and cons of other cost models in the context of a broader strengthening and harmonisation of our discrimination laws. I would support a wider consultation with a longer time frame on a cost model which might allow applicants to claim costs against respondents in a wider range of circumstances or other models.

The amendments moved by the member for Berowra relate to the role of the Fair Work Ombudsman and, while I can recognise the position that the member is advocating for, having sought broader opinion, I am comfortable, and I agree with the Australian Human Rights Commission, that they are the most appropriate statutory body to deliver a trauma-informed inquiry function.

Finally, the amendments moved by the member for Warringah clarify the objects of the act and posit that it would be stronger if language referring to men and women were replaced with gender-neutral language. I support this amendment.

Australia was once at the forefront of tackling sexual harassment globally. More than 35 years on, the rate of change has been disappointingly slow. Australia has been lagging other countries in preventing and responding to sexual harassment. I hope that this bill brings us back to the fore and that, as a parliament, we continue the important work of keeping us at the front of the pack.

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