Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Hansard source

I thank honourable members for their contribution to the debate on this Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. This bill is a significant milestone in delivering on the government's commitment to fully implement the Respect@Work report. It represents an historic shift in how public policy and the legislative framework supports people who experience sexual harassment and discrimination in the workplace. I thank the Sex Discrimination Commissioner, Kate Jenkins. I thank members of the Respect@Work Council and all those who have worked and continue to work to implement the Respect@Work report recommendations and drive change in Australian workplaces.

The government has moved decisively to implement seven of the recommendations of the Respect@Work report through this bill. These reforms will have an immediate impact in setting cultural norms around preventative effort and are critical for ensuring safer, respectful and more equitable workplaces in Australia. The cornerstone recommendation of the Respect@Work report which is implemented by this bill is the introduction of a positive duty on employers to take reasonable and proportionate measures to eliminate certain forms of unlawful sex discrimination, including sexual harassment, as far as possible. To ensure the positive duty is effective, the bill will provide the Australian Human Rights Commission with new functions to monitor and enforce compliance with the duty, working with businesses along the way to support their compliance. This will implement recommendations 17 and 18 of the Respect@Work report.

The bill will replace the object clause, inserted by the respect at work act 2021, which stated that an object of the act is to achieve 'equality of opportunity' between men and women with 'substantive equality' between men and women. This will implement recommendation 16(a) of the Respect@Work report. The bill will also implement recommendations 16(b) and 16(c) by expressly prohibiting in the Sex Discrimination Act conduct that results in a hostile workplace environment on the basis of sex, and ensuring the provision relating to sex-based harassment prohibits an appropriate range of conduct by removing the reference to conduct of a 'seriously' demeaning nature.

The bill will provide the Australian Human Rights Commission with a broad inquiry function to inquire into systemic unlawful discrimination, implementing recommendation 19. The bill will insert a cost protection provision in the Australian Human Rights Commission Act to provide greater certainty to parties during court proceedings in relation to costs. It will also remove procedural barriers in the Australian Human Rights Commission Act by enabling representative bodies to continue representative complaints in the federal courts. These measures will implement recommendations 23 and 25. This bill will ensure that Commonwealth public sector organisations are also required to report to the Workplace Gender Equality Agency on their gender equality indicators, pursuant to recommendation 43. The bill will also make amendments arising from the changes made by the respect at work act 2021 to provide consistency across the Commonwealth antidiscrimination framework and to achieve the intended outcomes of the Respect@Work report. This includes clarifying that victimising conduct can form the basis of a civil action for unlawful discrimination, and ensuring that a complaint can be terminated by the President of the Australian Human Rights Commission only if it is made more than 24 months after the alleged unlawful conduct took place.

This bill will significantly strengthen the legal and regulatory frameworks relating to sexual harassment and increase the focus on prevention. In doing so, this bill represents a paradigm shift in how public policy and the legislative framework supports people who experience sexual harassment and discrimination in the workplace. Sexual harassment is unacceptable, but it is by no means inevitable. It is preventable. This bill is a crucial step in the government's ongoing prevention efforts. There is more work to do to implement the remaining Respect@Work report recommendations, and the government is committed to this task.

I thank all honourable members who have moved amendments to the bill for their contributions to and engagement with the bill. The amendments moved by the opposition bear no actual resemblance to the recommendations of the Respect@Work report, and so the government will not be supporting them. The amendments moved by the members for Wentworth and Warringah, while I appreciate the intent behind them, go beyond the scope of the Respect@Work report. The government will not support them.

I would like to spend a short amount of time discussing the member for Kooyong's amendment. This is a very important matter, and it is not a simple matter. The issue of the cost model in the bill has been the subject of some debate recently, so I'd like to set out just why the Australian Human Rights Commission and Commissioner Jenkins have recommended the model in the bill. Let's be very clear about this—the cost model in the bill is the model recommended by the Australian Human Rights Commission and Commissioner Jenkins. That recommendation was the product of extensive consultation and careful consideration by the commission. Importantly, we are not talking about a cost provision that would apply only to matters involving allegations of sexual harassment in an employment context, which is the example that has been cited by the member for Kooyong and others.

The costs provision in the bill would apply to all federal discrimination matters equally. Under the costs model in the bill, the default position would be that an applicant and a respondent would have to bear their own costs only. However, the court would retain a discretion to award costs in the interest of justice, which will be decided according to a set of mandatory criteria, including the financial circumstances of the parties, the conduct of the parties, whether the proceedings involved an issue of public importance, and other matters. This is a vast improvement on the status quo. Currently when it comes to discrimination matters the default provision is that an unsuccessful party will be ordered to pay the other side's costs. And as Commissioner Jenkins told us in the Respect@Work report, this risk of an adverse costs order deters victims of sexual harassment and other forms of discrimination from pursuing claims in the federal courts. As Commissioner Jenkins recently told a Senate committee, the costs model in the government's bill—and I quote from her evidence—'addresses the deterrent factor discussed in the Respect@Work report while also giving the courts significant flexibility to make costs orders in the interests of justice'. That is a really key point.

I've listened carefully to the member for Kooyong. I've listened carefully to the many individual advocates and organisations who have contacted me and my office and contacted other ministers in the government in support of what is often called an equal access costs model. The government takes the concerns that have been raised very seriously and will continue to consider those concerns as we finalise our response to the Senate committee's report on this bill. I would note that in her speech on the bill the member for Kooyong referred to sexual harassment and sex discrimination matters and referred to the need to change workplace cultures that permit discriminatory treatment. I understand and share her concerns and agree that we need to change workplace cultures that permit discriminatory treatment. That is fundamentally what this bill is about, particularly when it comes to the introduction of a positive duty on employers to eliminate sexual harassment and sex discrimination.

However, it must not be forgotten that the costs provision in this bill and the alternative model proposed by the member for Kooyong would apply equally to all discrimination matters, not just sexual harassment and sex discrimination matters and not just employment matters or matters where there exists a vast asymmetry of power and advantage. It cannot be assumed that respondents to all discrimination claims will have deep pockets. In some cases respondents may be sole traders or small-business owners. Respondents may be unincorporated associations or local sporting clubs. The costs model in the bill seeks to strike a balance when it comes to discrimination matters generally, and I accept that reasonable minds may differ on whether the bill strikes that balance appropriately.

Importantly, the model in the bill includes a discretion for courts to award costs in the interests of justice. In considering the interests of justice in a particular case—such as a sexual harassment matter in an employment context, where, as the member for Kooyong says, there will almost invariably exist a vast asymmetry of power and economic advantage—the bill directs a court to consider the financial circumstances of each of the parties, whether the subject matter of the proceedings involves an issue of public importance, and other relevant considerations. And that is a really key point.

More broadly, I would like to reiterate that this is just the start, in the earliest months of a new government, of a conversation about human rights and antidiscrimination in this country. It's a conversation that I welcome and that I want to keep having. I thank the Senate Legal and Constitutional Affairs Committee for their considered inquiry into and report on the bill. I note the Senate committee's recommendation that I should refer for inquiry by the Australian Law Reform Commission the operation of the cost provisions in the bill, including a focus on public interest litigation under those provisions, six to 12 months after royal assent. I will have more to say about that soon. I also welcome the Senate committee's recommendation that the bill be passed. I again thank all honourable members of this House for their contributions to the debate and commend the bill to the House.

Question agreed to.

Bill read a second time.

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